<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 28, 1998
REGISTRATION NO. 333-[ ]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
HARRIS CORPORATION
(Exact name of registrant as specified in its charter)
------------------------
DELAWARE
(State or other jurisdiction of incorporation or organization)
34-0276860
(I.R.S. Employer Identification No.)
1025 WEST NASA BOULEVARD
MELBOURNE, FLORIDA 32919
(407) 727-9100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------
RICHARD L. BALLANTYNE
HARRIS CORPORATION
1025 WEST NASA BOULEVARD
MELBOURNE, FLORIDA 32919
(407) 727-9100
SCOTT T. MIKUEN
HARRIS CORPORATION
1025 WEST NASA BOULEVARD
MELBOURNE, FLORIDA 32919
(407) 727-9100
(Name, addresses, including zip code, and telephone numbers, including area
code, of agents for service)
------------------------
COPIES TO:
JIM L. KAPUT
SIDLEY & AUSTIN
ONE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60603
DANIEL M. ROSSNER
BROWN & WOOD LLP
ONE WORLD TRADE CENTER
NEW YORK, NEW YORK 10048
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
- ------------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- ------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED UNIT (1) OFFERING PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities............. $500,000,000 100% $500,000,000 $139,000
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE> 2
SUBJECT TO COMPLETION, DATED OCTOBER 28, 1998
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Prospectus
$500,000,000
Harris Corporation Logo
Debt Securities
------------------------------------------------------------------
Harris Corporation intends to offer at one or more times Debt Securities with a
total offering price not to exceed $500,000,000. We will describe the terms of
these securities in supplements to this prospectus. You should read the
prospectus and the supplements carefully before you invest.
------------------------------------------------------------------
THIS PROSPECTUS MAY BE USED TO OFFER AND SELL DEBT SECURITIES ONLY IF
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT FOR THOSE DEBT SECURITIES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE DEBT SECURITIES OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
[ ], 1998
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About this Prospectus........... 2
Where You Can Find More
Information................... 2
The Company..................... 3
Ratios of Earnings to Fixed
Charges....................... 4
Use of Proceeds................. 4
Description of Debt
Securities.................... 4
Plan of Distribution............ 10
Legal Matters................... 11
Experts......................... 11
</TABLE>
-------------------------
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission ("SEC") using a "shelf" registration process.
Under this shelf process, we may, from time to time, sell the Debt Securities
described in this prospectus in one or more offerings with a total offering
price not to exceed $500,000,000. This prospectus provides you with a general
description of the Debt Securities. Each time we sell Debt Securities, we will
provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add, update or change
information in this prospectus. Please carefully read both this prospectus and
any prospectus supplement together with additional information described under
the heading "Where You Can Find More Information."
We are not making an offer of the Debt Securities in any state where the offer
is not permitted.
You should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of each
of those documents.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports and other information with the
SEC. You may read and copy any document we file at the SEC's public reference
room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
room. Our SEC filings are also available to the public over the Internet on the
SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
part of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the following documents we filed with the SEC (file number 1-3863) and any
future filings that we make with the SEC under Section 13(a), 13(c), 14, or
15(d) of the Securities Exchange Act of 1934 until we or any underwriters sell
all of the Debt Securities:
- - Our Annual Report on Form 10-K for our fiscal year ended July 3, 1998; and
- - Our Current Reports on Form 8-K dated July 14, 1998, August 31, 1998 and
September 23, 1998.
You may request a copy of these filings at no cost, by writing or calling:
Richard L. Ballantyne
Secretary
Harris Corporation
1025 West NASA Boulevard
Melbourne, Florida 32919
(407) 727-9100
You should rely only on the information incorporated by reference or provided in
this prospectus and any prospectus supplement. We have not authorized anyone
else to provide you with different information.
2
<PAGE> 4
THE COMPANY
Harris Corporation, along with its subsidiaries, is a worldwide company focused
on four core businesses: communications, semiconductors, office systems and
equipment, and advanced electronic systems. Our principal executive offices are
located at 1025 West NASA Boulevard, Melbourne, Florida 32919, and our telephone
number is (407) 727-9100.
Our four core businesses are carried out through three business sectors and a
subsidiary: Communications Sector, Semiconductor Sector, Lanier Worldwide, Inc.
and Electronic Systems Sector. We structure each of our operations primarily
around the markets it serves. Operating divisions within each of our businesses
serve as our basic operating units and have been organized on the basis of
technology and markets. For the most part, each operating division has its own
marketing, engineering, manufacturing and service organization.
The markets served and principal products of our business sectors are as
follows:
- - Our Communications Sector produces a comprehensive line of communications
equipment and systems and application solutions for television and radio
broadcast, radio-communication and telecommunication. Its products include
transmitters and studio equipment for analog television and digital television
(formerly HDTV); analog and digital AM and FM radio equipment; HF, VHF, UHF
radio-communication equipment; air traffic and national law enforcement
communication systems; microwave radios and transmission equipment; digital
telephone switches; telephone subscriber-loop and test systems equipment; and
network management and workforce management systems.
- - Our Semiconductor Sector produces standard, custom and semi-custom integrated
circuits and discrete devices for analog, digital, mixed-signal, and power
control and protection applications. These products are used in signal
processing, data-acquisition, and logic applications for automotive systems,
wireless communications, telecommunication line cards, video and imaging
systems, multimedia, industrial equipment, personal computers and computer
peripherals, and military and aerospace systems.
- - Our wholly-owned subsidiary, Lanier Worldwide, Inc., markets, sells,
distributes, services, supports and provides supplies for copying systems,
facsimile systems and networks, dictation systems, multi-function devices,
optical-based electronic-image management systems, document productivity
solutions, continuous recording systems and computer-based healthcare
information management systems and provides a variety of outsourcing services
including transcription, systems integration, reprographics, litigation
support services, binding and mailroom management.
- - Our Electronic Systems Sector designs, develops and produces state-of-the-art
electronic, communication and information systems for the defense, air
traffic, aerospace, telecommunications, law enforcement and newspaper
composition markets. Applications of the sector's technologies and products
include advanced avionics systems; aircraft, spacecraft and missile
communications; terrestrial and satellite communication antennas, terminals
and networks; command, control, communication and intelligence systems,
products and services; global positioning system-based controls systems;
signal and image processing; weather support systems; electronic warfare
simulation; civil and military air traffic control systems; and integrated
airport communication and management systems.
3
<PAGE> 5
RATIOS OF EARNINGS TO FIXED CHARGES
The ratio of our earnings to our fixed charges for each of the periods indicated
is as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
---------------------------------------------------------------------------------
JUNE 30, 1994 JUNE 30, 1995 JUNE 30, 1996 JUNE 27, 1997 JULY 3, 1998
------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
3.56 3.88 4.41 4.48 2.89*
</TABLE>
For these ratios, earnings include income from continuing operations before
income taxes, fixed charges and amortization of interest capitalized (but not
interest capitalized during the period). Fixed charges include interest expense
(including interest capitalized during the period) plus one-third (the
proportion we believe to be representative of the interest factor) of rents. Our
earnings and fixed charges include the earnings and fixed charges of Harris
Corporation and its subsidiaries on a consolidated basis.
- -------------------------
* Our fiscal year 1998 results include pre-tax restructuring charges of $130.0
million for the reduction of personnel and write-off or write-down of assets
related to the exit of several product lines. Excluding these charges, this
ratio would have been 4.15.
USE OF PROCEEDS
We will use the net proceeds from the sale of the Debt Securities for general
corporate purposes, including the repayment of existing indebtedness and
additions to working capital.
DESCRIPTION OF DEBT SECURITIES
We will issue the Debt Securities under an Indenture dated as of May 1, 1996
between us and The Chase Manhattan Bank (successor to Chemical Bank) as Trustee.
We have summarized selected provisions of the Indenture below. This is a summary
and is not complete. It does not describe certain exceptions and qualifications
contained in the Indenture or the Debt Securities. If you would like more
information on the provisions of the Indenture you should review the Indenture,
which we have incorporated by reference as an exhibit to the registration
statement for the Debt Securities.
In the summary, we have included references to article and section numbers of
the Indenture so that you can easily locate these provisions. Capitalized terms
used in the summary have the meanings specified in the Indenture.
GENERAL
The Debt Securities will be unsecured and will rank equally (pari passu) with
all our unsecured and unsubordinated indebtedness. The Indenture does not limit
the amount of Debt Securities that we may issue.
The Indenture permits us to issue Debt Securities in one or more series. Each
series of Debt Securities may have different terms. The terms of any series of
Debt Securities will be set forth in (or determined in accordance with) a
resolution of our Board of Directors or in a supplement to the Indenture
relating to that series. (Section 2.03)
4
<PAGE> 6
A supplement to this prospectus will describe specific terms relating to the
series of Debt Securities being offered. These terms will include some or all of
the following:
- - the title of the series of Debt Securities;
- - the total principal amount;
- - the maturity date or dates;
- - the public offering price;
- - the interest rate or rates, if any (which may be fixed or floating), and
interest payment dates;
- - the manner of payment of principal and interest and where the Debt Securities
of the series may be exchanged or transferred;
- - whether (and if so, when) the series can be redeemed by us or the holder;
- - whether there will be a sinking fund; and
- - any other terms of the series.
Each series of Debt Securities will be a new issue with no established trading
market. There can be no assurance that there will be a liquid trading market for
the Debt Securities.
We may purchase Debt Securities at any price in the open market or otherwise.
Debt Securities we purchase may, in our discretion, be held or resold, cancelled
or used to satisfy any sinking fund or redemption requirements.
Debt Securities bearing no interest or interest at a rate which, at the time of
issuance, is below the prevailing market rate will be sold at a substantial
discount below their stated principal amount. Special United States federal
income tax considerations applicable to any of these discounted Debt Securities
(or to certain other Debt Securities issued at par which are treated as having
been issued at a discount for United States federal income tax purposes) will be
described in a prospectus supplement.
FORM AND EXCHANGE OF DEBT SECURITIES
All Debt Securities will be fully registered and will be in either book-entry
form or in definitive form.
Debt Securities issued in book-entry form will be issued in the form of one or
more fully registered global securities (each, a "Global Security") that will be
deposited with The Depository Trust Company, New York, New York ("DTC") or its
nominee. This means that we will not issue certificates to each holder. Each
Global Security will be issued to DTC who will keep a computerized record of its
participants (for example, your broker) whose clients have purchased Debt
Securities. The participant will then keep a record of its clients who purchased
the Debt Securities. Unless it is exchanged in whole or in part for a
certificate, a Global Security may not be transferred; except that DTC, its
nominees, and their successors may transfer a Global Security as a whole to one
another.
Beneficial interests in Global Securities will be shown on, and transfers of
Global Securities will be made only through, records maintained by DTC and its
participants. If you are not a participant in DTC, you may beneficially own Debt
Securities held by DTC only through a participant.
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and laws
may impair the ability to transfer beneficial interests in a Global Security.
DTC has provided us the following information: DTC is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the United States
Federal Reserve System, a "clearing corporation" within the meaning of the
5
<PAGE> 7
New York Uniform Commercial Code and a "clearing agency" registered under the
provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants deposit with it. DTC also records the
settlement among participants of securities transactions, such as transfers and
pledges, in deposited securities through computerized records for participants'
accounts. This eliminates the need to exchange certificates. Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as securities
brokers and dealers, banks and trust companies that work through a participant.
The rules that apply to DTC and its participants are on file with the SEC.
DTC is owned by a number of its participants and by the New York Stock Exchange,
Inc., the American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc.
We will wire principal and interest payments to DTC's nominee. We and the
Trustee will treat DTC's nominee as the owner of the Global Securities for all
purposes. Accordingly, we, the Trustee and any paying agent will have no direct
responsibility or liability to pay amounts due on the Global Securities to
owners of beneficial interests in the Global Securities.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit participants' accounts on the payment date according to
their respective holdings of beneficial interests in the Global Securities as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to participants whose accounts are credited with
Debt Securities on a record date, by using an omnibus proxy. Payments by
participants to owners of beneficial interests in the Global Securities, and
voting by participants, will be governed by the customary practices between the
participants and owners of beneficial interests, as is the case with Debt
Securities held for the account of customers registered in "street name."
However, payments will be the responsibility of the participants and not of DTC,
the Trustee or us.
So long as DTC or its nominee is the registered owner of a Global Security, DTC
or that nominee, as the case may be, will be considered the sole owner or holder
of the Debt Securities represented by that Global Security for all purposes
under the Indenture. Except as set forth in the next paragraph, owners of
beneficial interests in a Global Security (1) will not be entitled to have the
Debt Securities represented by that Global Security registered in their names,
(2) will not receive or be entitled to receive physical delivery of the Debt
Securities in definitive form, and (3) will not be considered the owners or
holders of the Debt Securities under the Indenture. We will issue Debt
Securities of any series then represented by Global Securities in definitive
form in exchange for those Global Securities if:
- - DTC notifies us that it is unwilling or unable to continue as depositary or if
DTC ceases to be a clearing agency registered under applicable law and a
successor depositary is not appointed by us within 90 days; or
- - we determine not to require all of the Debt Securities of a series to be
represented by a Global Security.
If we issue Debt Securities in definitive form in exchange for a Global
Security, an owner of a beneficial interest in the Global Security will be
entitled to have Debt Securities equal in principal amount to the beneficial
interest registered in its name and will be entitled to physical delivery of
those Debt Securities in definitive form. Debt
6
<PAGE> 8
Securities issued in definitive form will, except as set forth in the applicable
prospectus supplement, be issued in denominations of $1,000 and any multiple of
$1,000 in excess thereof and will be issued in registered form only, without
coupons.
CERTAIN RESTRICTIONS
The restrictions summarized in this Section will apply to all Debt Securities
unless the applicable prospectus supplement indicates otherwise. Certain terms
used in the following description of these restrictions are defined under the
caption "Certain Definitions" at the end of this Section. The following
description is not complete. The full text of these restrictions is included in
the Indenture.
Limitations on Liens
The Debt Securities will not be secured. If we or one of our Restricted
Subsidiaries incur debt secured by an interest in any Principal Property or any
shares of capital stock or debt of a Restricted Subsidiary and the total
principal amount of our secured debt (with certain exceptions, including those
listed in the next paragraph) would exceed 5% of Consolidated Net Worth, we are
required to secure the then outstanding Debt Securities equally and ratably with
(or prior to) our other secured debt.
The Indenture permits us and our Restricted Subsidiaries to create certain liens
without securing the Debt Securities. (Section 5.11) Among the permitted liens
are:
- - purchase money mortgages, including conditional sales and other title
retention agreements;
- - liens securing certain construction and improvement loans;
- - existing liens on newly acquired property;
- - liens in connection with government contracts;
- - liens securing indebtedness of a Restricted Subsidiary outstanding at the time
it became a Subsidiary;
- - certain liens in favor of an instrumentality of the United States or any State
or any political subdivision thereof to secure indebtedness incurred to
finance the acquisition, construction or improvement of the property subject
to the lien; and
- - refinancings of certain permitted liens.
Limitations on Sale and Leaseback Transactions
We and our Restricted Subsidiaries may not sell or transfer any Principal
Property with the intention of entering into a lease of such facility for a term
of more than three years, unless:
- - such property has not been in full operation for more than 120 days prior to
such sale or transfer;
- - the Attributable Debt in respect of all such sale and leaseback transactions
involving Principal Properties does not exceed 5% of Consolidated Net Worth;
- - we apply the net proceeds of the sale to the redemption of Debt Securities or
the reduction of other Funded Debt in an aggregate principal amount (or the
portion of the principal as would have been payable if such Debt Securities
had been accelerated to such date) equal to such net proceeds; or
- - we apply the net proceeds of the sale to the purchase of properties,
facilities or equipment to be used for operating purposes. (Section 5.10)
Consolidation, Merger or Sale of Assets
We may not consolidate or merge with or into any other corporation, or sell or
transfer all or substantially all of our
7
<PAGE> 9
property and assets to any other corporation:
- - unless the surviving or successor corporation assumes our obligations under
the Indenture and is not in default under the Indenture immediately after the
consummation of the transaction; or
- - if, upon the consummation of the transaction any of our property would be
subject to any mortgage or other lien (an "additional lien," which excludes
previously existing liens and certain liens permitted by Section 5.11) unless,
(1) prior to the consummation of the transaction the Debt Securities are
secured by a lien ranking prior to such additional lien or (2) the Debt
Securities outstanding immediately after the transaction are equally and
ratably secured with (or prior to) any and all obligations, indebtedness and
claims secured by the additional lien. (Section 12.01)
If we sell or transfer substantially all of our assets and the purchaser assumes
our obligations under the Indenture, we will be discharged from all obligations
under the Indenture and the Debt Securities. (Section 12.02)
Certain Definitions
The following terms are defined in Section 1.01 of the Indenture.
"Attributable Debt" means, at the time of the determination, the present value
(discounted at the lease's implicit rate of interest) of the lessee's obligation
for "net rental payments" during the remaining term of the lease (including any
period the lease has been, or may, at the option of the lessor, be extended).
The term "net rental payments" means the sum of the rental and other payments
required to be paid during the remaining term under any lease, not including,
however, any amounts (whether or not designated as rental or additional rental)
on account of maintenance and repairs, insurance, taxes, assessments, water
rates or similar charges or any amounts contingent upon the amount of sales,
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges.
"Consolidated Net Worth" means the stockholders' equity of Harris Corporation
and its consolidated Subsidiaries, as shown on our audited consolidated balance
sheet in our latest annual report to stockholders.
"Funded Debt" means all indebtedness issued, incurred, assumed or guaranteed by
us or one of our Restricted Subsidiaries, or for the payment of which we or one
of our Restricted Subsidiaries is otherwise primarily or secondarily liable,
maturing by its terms more than one year from its date of creation or renewable
or refundable at the option of the obligor to a date more than one year from its
date of creation.
"Principal Property" means any manufacturing plant located within the United
States of America (other than its territories or possessions) and owned or
leased by Harris Corporation or any Subsidiary except any such plant that, in
the opinion of our Board of Directors, is not of material importance to the
business conducted by Harris Corporation and our Subsidiaries, taken as a whole.
"Restricted Subsidiary" means any of our Subsidiaries that owns or leases a
Principal Property. As noted above, the definition of Principal Property does
not include foreign facilities.
"Subsidiary" means any corporation of which Harris Corporation, or Harris
Corporation and one or more Subsidiaries, directly or indirectly own at the time
(1) more than 50% of the outstanding capital stock having under ordinary
circumstances (not dependent upon the happening of a contingency) voting power
in the election of members of the board of directors, managers or trustees of
such corpora-
8
<PAGE> 10
tion, and (2) securities having at such time voting power to elect at least a
majority of the members of the board of directors, managers or trustees of such
corporation.
EVENTS OF DEFAULT
"Event of Default" means, with respect to any series of Debt Securities, any of
the following:
- - failure to pay interest that continues for a period of 30 days after payment
is due;
- - failure to make any principal or premium payment when due;
- - failure to comply with any of our other agreements contained in the Indenture
or in the Debt Securities for 90 days after notice to us of such failure from
the Trustee (or to us and the Trustee from the holders of at least 25% of the
outstanding Debt Securities affected thereby);
- - certain events of bankruptcy, insolvency or reorganization of Harris
Corporation; and
- - an event of default within the meaning of another mortgage, indenture or debt
instrument that results in indebtedness of Harris Corporation (other than the
Debt Securities) becoming declared due and payable prior to maturity, if such
acceleration is not rescinded within 10 days after notice to us from the
Trustee (or to us and the Trustee from the holders of at least 25% of the
outstanding Debt Securities). (Section 7.01)
In general, the Trustee is required to give notice of a default with respect to
a series of Debt Securities to the holders of that series. The Trustee may
withhold notice of any default (except a default in payment of principal of,
premium, if any, or interest on any Debt Security) if the Trustee determines it
is in the best interest of the holders of that series to do so. (Section 7.01
and Section 7.07)
An Event of Default for a particular series of Debt Securities does not
necessarily constitute an Event of Default for other series of Debt Securities.
If there is a continuing Event of Default, then the Trustee or the holders of at
least 25% of each then outstanding series of Debt Securities affected by the
Event of Default (voting as a single class) may require us to repay the
principal and accrued interest on the affected series immediately. Subject to
certain conditions, the requirement to pay with respect to a series of Debt
Securities may be annulled, and past defaults may be waived (except a continuing
default in payment of principal of or premium, if any, or interest on Debt
Securities), by the holders of a majority in principal amount of that series. If
an Event of Default applies to all outstanding Debt Securities, then the holders
of the Debt Securities will be treated as a single class without regard to
whether there are several outstanding series. (Section 7.01 and Section 7.06)
Prior to an Event of Default the Trustee is required to perform only the
specific duties stated in the Indenture, and after an Event of Default, must
exercise the same degree of care as a prudent individual would exercise or use
under the circumstances in the conduct of his or her own affairs. (Section 8.01)
The Trustee may refuse to enforce the Indenture or the Debt Securities unless it
first receives satisfactory security or indemnity. Subject to certain
limitations specified in the Indenture, the holders of a majority in principal
amount of the Debt Securities of an affected series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee. (Section 8.02 and Section 7.06)
9
<PAGE> 11
SATISFACTION AND DISCHARGE OF INDENTURE
We will be discharged from certain of our obligations relating to the
outstanding Debt Securities of a series if we deposit with the Trustee money or
U.S. Government Obligations sufficient for payment of all principal and interest
on those Debt Securities, when due. However, our obligation to pay the principal
of and interest on those Debt Securities will continue.
We may discharge obligations as described in the preceding paragraph only if,
among other things, we have received an opinion of counsel stating that holders
of Debt Securities of the relevant series (1) will not recognize income, gain or
loss for federal income tax purposes as a result of the deposit and discharge,
and (2) will be subject to federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if the deposit and
discharge had not occurred. (Article Four)
MODIFICATION
Under the Indenture, subject to certain exceptions, our rights and obligations
and the rights of the holders of a series of Debt Securities may be changed with
the consent of the holders of at least 66 2/3% in aggregate principal amount of
the outstanding Debt Securities of that series. However, no changes to the terms
of payment of principal or interest, the premium, if any, payable upon
redemption, the amount to be paid upon an acceleration of maturity upon an Event
of Default or reducing the percentage required for changes, is effective against
any holder without its consent. (Section 11.02)
REPORTS TO TRUSTEE
We are required to provide the Trustee with an officers' certificate each fiscal
year stating that we reviewed our activities during the preceding fiscal year
and that, to the best of the knowledge of the certifying officers, we are in
compliance with the requirements of the Indenture and that no default exists or
identifying the known defaults. (Section 5.13)
REGARDING THE TRUSTEE
We maintain ordinary banking relationships and credit facilities with a number
of banks, including the Trustee, The Chase Manhattan Bank.
PLAN OF DISTRIBUTION
We may sell Debt Securities through underwriters, dealers or agents or directly
to purchasers.
BY UNDERWRITERS
If underwriters are used in the sale, the Debt Securities will be acquired by
the underwriters for their own account. The underwriters may resell the Debt
Securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the Debt Securities will be
subject to certain conditions. Any initial public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers may be changed
from time to time.
BY AGENTS
We may designate dealers, acting as our agents, to offer and sell Debt
Securities upon certain terms and conditions.
10
<PAGE> 12
DIRECT SALES
We may sell Debt Securities directly, without the use of underwriters, dealers
or agents.
GENERAL INFORMATION
Underwriters, dealers and agents that participate in the distribution of the
Debt Securities may be underwriters as defined in the Securities Act of 1933,
and any discounts or commissions received by them from us and any profit on the
resale of the offered securities by them may be treated as underwriting
discounts and commissions under the Securities Act. We will identify any
underwriters or agents and describe their compensation from us in a supplement
to this prospectus.
We may have agreements with the underwriters, dealers and agents to indemnify
them against certain civil liabilities, including liabilities under the
Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our subsidiaries in the ordinary course of their businesses.
LEGAL MATTERS
The validity of the offered Debt Securities will be passed upon for us by Sidley
& Austin, Chicago, Illinois. Certain legal matters relating to the offered Debt
Securities will be passed upon for the underwriters by Brown & Wood LLP, New
York, New York. Certain matters will be passed upon for us by Scott T. Mikuen,
our Finance Counsel and Assistant Secretary.
EXPERTS
The consolidated financial statements and schedule of Harris Corporation and
subsidiaries appearing in Harris Corporation's Annual Report on Form 10-K for
the year ended July 3, 1998, have been audited by Ernst & Young LLP, independent
certified public accountants, as set forth in their report included therein and
incorporated herein by reference. Such consolidated financial statements and
schedule are incorporated herein by reference in reliance upon such report given
upon the authority of such firm as experts in accounting and auditing.
11
<PAGE> 13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the Debt
Securities, other than underwriting discounts and agency fees or commissions,
are set forth in the following table. All amounts except the Securities and
Exchange Commission registration fee are estimated.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $139,000
Printing and engraving expenses............................. 21,000
Accountants' fees and expenses.............................. 5,000
Legal fees and expenses..................................... 75,000
Fees and expenses of Trustee................................ 18,000
Rating agency fees.......................................... 170,000
Miscellaneous............................................... 25,000
--------
Total....................................................... $453,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") permits a Delaware
corporation to indemnify any person who was, or is threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that the person is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding, if the person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the corporation's best interests,
and, for criminal proceedings, had no reasonable cause to believe his or her
conduct was unlawful. A Delaware corporation may indemnify any person in an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the person is
adjudged to be liable to the corporation in the performance of his or her duty.
Where a present or former director or officer has been successful on the merits
or otherwise in the defense of any action referred to in this paragraph, the
corporation must indemnify him or her against the expenses which he or she
actually and reasonably incurred in connection therewith.
The Registrant's By-Laws provide for indemnification of (among others) the
Registrant's current and former directors and officers to the extent, and
according to the procedures and requirements, set forth in the DGCL. The
Registrant's By-Laws also provide that (a) the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to the relevant
action, suit or proceeding, (b) if such a quorum is not obtainable (or, even if
obtainable, at the direction of that quorum), by independent legal counsel
selected by the Board of Directors or (c) the shareholders, may authorize
indemnification upon a determination that the person to be indemnified acted in
good faith and is fairly and reasonably entitled to be indemnified in view of
all the circumstances.
II-1
<PAGE> 14
As permitted by the DGCL, the Registrant's Restated Certificate of Incorporation
provides that its directors will not be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (a) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (c) under section 174 of the DGCL, which concerns unlawful payment of
dividends, stock purchases or redemptions, or (d) for any transaction from which
the director derived an improper benefit.
While the Restated Certificate of Incorporation provides directors with
protection from awards for monetary damages for breaches of their duty of care,
it does not eliminate that duty. Accordingly, the Restated Certificate of
Incorporation will have no effect on the availability of equitable remedies such
as an injunction or rescission based on a director's breach of his or her duty
of care. The provisions described in the preceding paragraph apply to an officer
of the Registrant only if he or she is a director of the Registrant and is
acting in his or her capacity as a director, and do not apply to officers of the
Registrant who are not directors.
As permitted by the DGCL, the Registrant maintains officers' and directors'
liability insurance which insures against claims and liabilities (with stated
exceptions) that officers and directors of the Registrant may incur in such
capacities. In addition, the Registrant has entered into indemnification
agreements with each of the directors and executive officers pursuant to which
each director and executive officer is entitled to be indemnified to the full
extent allowable under Delaware law.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <S>
1 Form of Underwriting Agreement.
4 Indenture, dated as of May 1, 1996, between the Registrant
and The Chase Manhattan Bank (successor to Chemical Bank),
as Trustee, is hereby incorporated by reference to Exhibit 4
to the Registrant's Registration Statement on Form S-3,
Registration No. 333-03111.
5 Opinion of Sidley & Austin.
12 Statement re computation of ratios of earnings to fixed
charges.
23.1 Consent of Sidley & Austin (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility of Trustee.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the
Debt Securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
II-2
<PAGE> 15
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) under the Act if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the Debt Securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions referred to in Item 15 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 16
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, HARRIS CORPORATION
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF MELBOURNE, STATE OF FLORIDA, ON THIS 28TH DAY OF
OCTOBER, 1998.
HARRIS CORPORATION
By: /s/ BRYAN R. ROUB
--------------------------------------
Bryan R. Roub
Senior Vice President -
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ PHILLIP W. FARMER Chairman of the Board, October 28, 1998
- --------------------------------------- President and Chief Executive
Phillip W. Farmer Officer (Principal Executive
Officer)
/s/ BRYAN R. ROUB Senior Vice President - Chief October 28, 1998
- --------------------------------------- Financial Officer (Principal
Bryan R. Roub Financial Officer)
/s/ ROBERT W. FAY Vice President - Controller October 28, 1998
- --------------------------------------- (Principal Accounting Officer)
Robert W. Fay
/s/ ROBERT CIZIK Director October 28, 1998
- ---------------------------------------
Robert Cizik
/s/ LESTER E. COLEMAN Director October 28, 1998
- ---------------------------------------
Lester E. Coleman
/s/ ALFRED C. DECRANE, JR. Director October 28, 1998
- ---------------------------------------
Alfred C. DeCrane, Jr.
/s/ RALPH D. DENUNZIO Director October 28, 1998
- ---------------------------------------
Ralph D. DeNunzio
/s/ JOSEPH L. DIONNE Director October 28, 1998
- ---------------------------------------
Joseph L. Dionne
/s/ JOHN T. HARTLEY Director October 28, 1998
- ---------------------------------------
John T. Hartley
/s/ KAREN KATEN Director October 28, 1998
- ---------------------------------------
Karen Katen
/s/ ALEXANDER B. TROWBRIDGE Director October 28, 1998
- ---------------------------------------
Alexander B. Trowbridge
</TABLE>
II-4
<PAGE> 17
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <S> <C>
1 Form of Underwriting Agreement.
4 Indenture, dated as of May 1, 1996, between the Registrant
and The Chase Manhattan Bank (successor to Chemical Bank),
as Trustee, is hereby incorporated by reference to Exhibit 4
to the Registrant's Registration Statement on Form S-3,
Registration No. 333-03111.
5 Opinion of Sidley & Austin.
12 Statement re computation of ratios of earnings to fixed
charges.
23.1 Consent of Sidley & Austin (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility of Trustee.
</TABLE>
<PAGE> 1
Exhibit 1
FORM OF UNDERWRITING AGREEMENT
_________, 1998
Harris Corporation
1025 W. NASA Boulevard
Melbourne, Florida 32919
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Harris
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
$______ aggregate initial offering price of ____% Debentures due _______ (the
"Debt Securities" or the "Offered Securities"). The Debt Securities will be
issued pursuant to the provisions of an Indenture dated as of May 1, 1996 (the
"Indenture") between the Company and The Chase Manhattan Bank (successor to
Chemical Bank), as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of Debt
Securities set forth below opposite their names at a purchase price of ____% of
the principal amount of Debt Securities:
Principal Amount of
Name Debt Securities
---- ---------------
[Morgan Stanley Dean Witter & Co.]
Total ================
$
----------
The Underwriters will pay for the Offered Securities upon delivery
thereof at the offices of Brown & Wood LLP, One World Trade Center, New York,
New York 10048 at 10:00 a.m. (New York time) on __________, or at such other
time, not later than 5:00 p.m. (New York time) on _________, as shall be
designated by the Manager. The time and date of such payment and delivery are
hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated ________ and the Prospectus Supplement dated _________, including the
following:
<PAGE> 2
Term of Debt Securities
Maturity Date: _______
Interest Rate _______
[Redemption Provisions: The Debt Securities will be redeemable as a
whole or in part, at the option of the Company at any time on or after
_________ at a redemption price equal to the greater of (i) 100% of the
principal amount of the Debt Securities to be redeemed and (ii) the sum
of the present values of the Remaining Scheduled Payments thereon
discounted to the redemption date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate
plus __ basis points, plus in either case accrued interest on the
principal amount being redeemed to the date of redemption. The Debt
Securities will also be redeemable at the option of the Holders thereof
on _________ at 100% of their principal amount plus accrued interest.]
Interest Payment Dates: _________ and
_________commencing
_________
(Interest accrues from
_________
Form and Denomination: Global Certificate of $_______.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities, which has been declared effective. The Company has filed with,
or transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically related to the Offered Securities pursuant to Rule 424
under the Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Base
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Base Prospectus together with the Prospectus
Supplement. As used herein, the terms "Base Prospectus" and "Prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents that are deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Base Prospectus by
the Company with the Commission pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with each of the Underwriters that:
a. The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
2
<PAGE> 3
b. (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not 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 not
misleading, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any Underwriter
through the Manager expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Trustee.
c. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
d. Lanier Worldwide, Inc., a Delaware corporation ("Lanier"), is the
only significant subsidiary, as defined in Rule 405 of Regulation C of the
Commission, of the Company. Lanier has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
e. This Agreement has been duly authorized, executed and delivered by
the Company.
f. The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
3
<PAGE> 4
g. The Offered 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 in accordance with the terms of
this Agreement, will be entitled to the benefits of the Indenture, and will be
valid and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration, if any, and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
h. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Indenture and the
Offered Securities will not contravene any provision of applicable law or the
Restated Certificate of Incorporation or By-laws of the Company or any agreement
or other instrument enforceable against the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under
this Agreement, the Indenture and the Offered Securities, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Offered Securities.
i. There has not occurred any material adverse change, or any
development known to the officers of the Company which the Company presently and
reasonably believes will involve a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
j. There are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
k. The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
l. The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
m. Each of the Company and Lanier has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to the
extent that the
4
<PAGE> 5
failure to obtain or file would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
2. PUBLIC OFFERING. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. PURCHASE AND DELIVERY. Except as otherwise provided in this Section
3, payment for the Offered Securities shall be made on the Closing Date by wire
transfer in immediately available funds to the account so specified in writing
to the Underwriters at least two full business days prior to the Closing Date,
upon delivery to the Manager for the respective accounts of the several
Underwriters of the Offered Securities, registered in such names and in such
denominations as the Manager shall request in writing not less than two full
business days prior to the date of delivery, with any transfer taxes payable in
connection with the transfer of the Offered Securities to the Underwriters duly
paid.
4. CONDITIONS TO CLOSING. The several obligations of the Underwriters
hereunder are subject to the following conditions:
a. Subsequent to the execution and delivery of this Agreement and prior
to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall
any notice have been given to the Company of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations, of the
Company and its subsidiaries, taken as a whole, from that set forth in
the Prospectus, that, in the judgment of the Manager, is material and
adverse and that makes it, in the judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus; and
(iii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be,
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (B) suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market, (C) declaration of a
general moratorium on commercial banking activities in New York by
either Federal or New York State authorities or (D) any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the
5
<PAGE> 6
judgment of the Manager, is material and adverse and, in the case of
any of the events described in clauses (iii)(A) through (D), such
event, singly or together with any other such event, makes it, in the
judgment of the Manager, impracticable to market the Offered Securities
on the terms and in the manner contemplated in the Prospectus.
b. The Manager shall have received on the Closing Date a certificate,
dated the Closing Date and signed on behalf of the Company by an executive
officer of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the Company
has complied with all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
c. The Manager shall have received on the Closing Date an opinion of
Sidley & Austin, counsel for the Company, dated the Closing Date, to the
effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in [each
jurisdiction listed on an exhibit to such opinion] [list the U.S.
states];
(ii) Lanier has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in [each
jurisdiction listed on an exhibit to such opinion] [List the U.S.
states];
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Offered 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 in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration, if any, and the availability
of equitable remedies may be limited by equitable principles of general
applicability;
6
<PAGE> 7
(v) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Offered Securities will not contravene any
provision of applicable law or the Restated Certificate of
Incorporation or By-laws of the Company or the agreements and documents
listed as material contracts under Item 14 of the Company's Annual
Report on Form 10-K for the fiscal year ended July 3, 1998, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture and the
Offered Securities, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and
sale of the Offered Securities;
(vi) the statements in the Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution," as such
statements constitute summaries of the legal matters or documents
referred to therein, fairly present the information called for with
respect to such legal matters and documents and fairly summarize the
matters referred to therein;
(vii) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference
as exhibits to the Registration Statement that are not described, filed
or incorporated as required;
(viii) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(ix) (1) each document, if any, incorporated by reference in
the Prospectus, as amended or supplemented (except for financial
statements and notes thereto and schedules and other financial or
statistical data included or incorporated by reference therein as to
which such counsel need not express any opinion), complied as to form
when filed with the Commission in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (2) the Prospectus, as amended or supplemented (except for
financial statements and notes thereto and schedules and other
financial or statistical data included or incorporated by reference
therein as to which such counsel need not express any opinion),
complies as to form in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder
and (3) nothing has come to such counsel's attention which causes them
to believe that the Prospectus (except for
7
<PAGE> 8
financial statements and notes thereto and schedules and other
financial or statistical data included or incorporated by reference
therein as to which such counsel need not express any belief) as of the
date such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(x) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability; and
(xi) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act or proceedings therefor initiated
or threatened by the Commission.
d. The Manager shall have received on the Closing Date an opinion of
Scott T. Mikuen, Finance Counsel of the Company, dated the Closing Date, to the
effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ii) Lanier has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) to the best of such counsel's knowledge after due
investigation, each of the Company and Lanier has all necessary
consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all
federal, state, local and other
8
<PAGE> 9
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus, as amended or supplemented, except to the
extent that the failure to obtain or file would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(iv) to the best of such counsel's knowledge, the execution
and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement, the Indenture and the Offered
Securities will not contravene any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiary;
(v) the statements (1) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (2) in "Item 1 - Legal Proceedings" of
Part II of the Company's quarterly reports on Form 10-Q, if any, filed
since such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein; and
(vi) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference
as exhibits to the Registration Statement that are not described, filed
or incorporated as required.
e. The Manager shall have received on the Closing Date an opinion of
Brown & Wood LLP, special counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in subparagraph (iii), (iv), (vi) (but only as
to the statements in the Prospectus under "Description of Debt Securities" and
"Plan of Distribution") and (ix) (2) and (3) of paragraph (c) above.
With respect to the subparagraph (ix) of paragraph (c) above, Sidley &
Austin may state that their opinions and belief are based upon their
participation with officers and representatives of the Company, including its
independent public accountants and representatives of the Underwriters in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto, not including documents incorporated therein by reference,
and their review of the documents incorporated by reference, but are without
independent check or verification, except as specified. With respect to clauses
(2) and (3) of subparagraph (ix) of paragraph (c) above, Brown & Wood LLP may
state that their opinion and belief are based upon their participation in the
preparation of the Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
9
<PAGE> 10
discussion of the contents thereof (including documents incorporated therein
by reference), but are without independent check or verification, except as
specified.
f. The Manager shall have received on the Closing Date a letter, dated
the Closing Date, in form and substance satisfactory to the Manager, from the
Company's independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
5. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants as follows:
a. To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and to deliver to each other
Underwriter a conformed copy of the Registration Statement (without exhibits
thereto) and, during the period mentioned in paragraph (c) below, as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as the
Manager may reasonably request.
b. Before amending or supplementing the Registration Statement (other
than the filing of documents incorporated by reference therein) or the
Prospectus with respect to the Offered Securities, to furnish to the Manager a
copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably objects.
c. If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters, and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered Securities
may have been sold by the Manager on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply
with law.
d. To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to maintain such qualification for as long as the Manager
shall reasonably request.
e. To make generally available to its security holders and to the
Manager as soon as practicable an earning statement covering a twelve month
period beginning on the first day of the first full fiscal quarter after the
date of this Agreement, which earning statement shall satisfy the
10
<PAGE> 11
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder. If such fiscal quarter is the last
fiscal quarter of the Company's fiscal year, such earning statement shall be
made available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
f. During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company substantially similar to the Offered
Securities (other than (i) the Offered Securities and (ii) commercial paper
issued in the ordinary course of business), without the prior written consent of
the Manager.
g. Whether or not any sale of Offered Securities is consummated, to pay
all expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Offered Securities, (iii) the
reasonable fees and disbursements of the Company's counsel and accountants and
of the Trustee and its counsel, (iv) the qualification of the Offered Securities
under securities or Blue Sky laws in accordance with the provisions of Section
5(d), including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda, (v) the printing and
delivery to the Underwriters in quantities as hereinabove stated of copies of
the Prospectus and any amendments or supplements thereto, (vi) any fees charged
by rating agencies for the rating of the Offered Securities, and (vii) the fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc.
6. INDEMNIFICATION AND CONTRIBUTION. a. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Manager
expressly for use therein.
b. Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act of Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through the Manager expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
11
<PAGE> 12
c. In case any proceedings (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceedings
and shall pay the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings 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 such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager, in the case
of parties indemnified pursuant to paragraph (a) above, and by the Company, in
the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party 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 judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
d. To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, 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 hand from the offering of the Offered 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
12
<PAGE> 13
hand 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 hand in connection with the
offering of the Offered Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Offered Securities. The relative
fault of the Company on the one hand and of the Underwriters on the other hand
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. The Underwriters' respective obligations to contribute pursuant to
this Section 6 are several in proportion to the respective principal amounts
of Offered Securities they have purchased hereunder, and not joint.
e. The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 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 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 claims. Notwithstanding the
provisions of this Section 6, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public 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 remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
7. TERMINATION. This Agreement shall be subject to termination, by
notice given by the Manager to the Company if (a) 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 or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either 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 crises
that, in the judgment of the Manager, is material and adverse and (b) in the
case of any of the events specified in clauses (a)(i) through (iv), such event,
singly or together with any such event, makes
13
<PAGE> 14
it, in the judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase the Offered Securities that it
has or they have agreed to purchase hereunder on such date, and the aggregate
amount of Offered Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more that one-tenth of the
aggregate amount of the Offered Securities to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
amount of Offered Securities set forth opposite their respective names in this
Agreement bears to the aggregate amount of Offered Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions
as the Manager may specify, to purchase the Offered Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the amount of Offered Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an amount in excess of one-ninth of such
amount of Offered Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities and the aggregate amount of the Offered Securities
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Offered Securities to be purchased on such date, and
arrangement satisfactory to the Manager and the Company for the purchase of such
Offered Securities are not made within 36 hours after default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company. In any such case either the Manager or the Company shall have
the right to postpone the Closing Date but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriter in connection with this Agreement or the
offering of the Offered Securities.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective indemnity
and contribution agreements and the representations, warranties and other
statements of the Company, its officers and the Underwriters set forth in this
Agreement will remain in full force and effect, regardless of any termination of
this Agreement, 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 6 and delivery of and payment for the Offered Securities.
14
<PAGE> 15
10. SUCCESSORS. This Agreement will enure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 6, and no
other person will have any right or obligation hereunder.
11. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
15
<PAGE> 16
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY DEAN WITTER & CO.]
By: _______________________________
Name:
Title:
Accepted
HARRIS CORPORATION
By:___________________
Name:
Title:
16
<PAGE> 1
Exhibit 5
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
ONE FIRST NATIONAL PLAZA
DALLAS CHICAGO, ILLINOIS 60603 WASHINGTON, D.C.
------ TELEPHONE 312 853 7000 ------
LOS ANGELES FACSIMILE 312 853 7036 LONDON
------ ------
NEW YORK FOUNDED 1866 SINGAPORE
------
TOKYO
WRITER'S DIRECT NUMBER
October 28, 1998
Board of Directors
Harris Corporation
1025 West NASA Boulevard
Melbourne, Florida 32919
Re: Registration Statement on Form S-3
----------------------------------
Dear Ladies and Gentlemen:
We are counsel to Harris Corporation, a Delaware corporation (the
"Company"), and have represented the Company with respect to the Registration
Statement on Form S-3 (the "Registration Statement") filed by the Company with
the Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended (the "Securities Act"), relating to the offer and sale of up to
$500,000,000 aggregate offering price of the Company's debt securities (the
"Debt Securities"). Unless otherwise specified in the applicable prospectus
supplement, the Debt Securities will be issued under an Indenture (the
"Indenture"), dated as of May 1, 1996, between the Company and The Chase
Manhattan Bank (successor to Chemical Bank), as trustee (the "Trustee").
In rendering this opinion letter, we have examined and relied upon
copies of the Indenture and the Registration Statement. We have also examined
originals, or copies of originals, of such agreements, documents, certificates
and statements of government officials and other instruments, and have examined
such questions of law and have satisfied ourselves as to such matters of fact,
as we have considered relevant and necessary as a basis for this opinion letter.
We have assumed the authenticity of all documents submitted to us as originals,
the genuineness of all signatures, the legal capacity of all natural persons and
the conformity with the original documents of any copies thereof submitted to us
for examination.
Based on the foregoing, and subject to the qualifications and
limitations hereinafter set forth, we are of the opinion that:
1. The Company is duly incorporated and validly existing under
the laws of the State of Delaware.
<PAGE> 2
SIDLEY & AUSTIN CHICAGO
Board of Directors
October 28, 1998
Page 2
2. The Company has the corporate power and authority to
execute and deliver the Indenture and has the corporate power and
authority to authorize and sell the Debt Securities.
3. Each series of Debt Securities will be legally issued and
binding obligations of the Company (except to the extent enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by the effect of general principles of
equity, regardless of whether enforceability is considered in a
proceeding in equity or at law) when (i) the Registration Statement, as
finally amended (including any necessary post-effective amendments),
shall have become effective under the Securities Act and any necessary
supplemental indenture to the Indenture shall have been qualified under
the Trust Indenture Act of 1939, as amended, and duly executed and
delivered by the Company and the Trustee; (ii) a prospectus supplement
with respect to such series of Debt Securities shall have been filed
with the SEC pursuant to Rule 424 under the Securities Act; (iii) the
Company shall have taken appropriate corporate action authorizing the
issuance and sale of such series of Debt Securities as contemplated by
the resolutions heretofore adopted by the Board of Directors of the
Company and the Indenture; and (iv) such series of Debt Securities
shall have been duly executed and authenticated as provided in the
Indenture and shall have been delivered to purchasers thereof against
payment of the agreed consideration therefor.
For the purposes of this opinion letter, we have assumed that there
will be no change in the laws currently applicable to the Company and that such
laws will be the only laws applicable to the Company.
We do not find it necessary for the purposes of this opinion letter to
cover, and accordingly we express no opinion as to, the application of the
securities or "Blue Sky" laws of the various states to the sale of the Debt
Securities.
This opinion letter is limited to the Delaware General Corporation Law
and the Securities Act.
We hereby consent to the filing of this opinion letter as Exhibit 5 to
the Registration Statement and to all references to our firm in the Registration
Statement or the Prospectus included therein.
Very truly yours,
Sidley & Austin
<PAGE> 1
EXHIBIT 12
Harris Corporation and Subsidiaries
Computation of Ratios of Earnings to Fixed Charges
(Millions of Dollars, Except Ratios)
<TABLE>
<CAPTION>
Year Ended
---------------------------------------------------------------------------
July 3, June 27, June 30, June 30, June 30,
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
EARNINGS:
<S> <C> <C> <C> <C> <C>
Net Income ...................................... $ 133.0 $ 207.5 $ 178.4 $ 154.5 $ 121.9
Plus: Income Taxes .............................. 67.0 104.5 96.0 83.1 71.6
Fixed Charges ........................... 102.9 87.6 80.4 82.8 76.0
Amortization of Capitalized
Interest ........................... 2.0 1.6 1.2 1.2 1.2
Less: Interest Capitalized During
the Period ......................... (7.5) (9.0) (1.5) -- (0.3)
--------- --------- --------- --------- ---------
$ 297.4 $ 392.2 $ 354.5 $ 321.6 $ 270.4
========= ========= ========= ========= =========
FIXED CHARGES:
Interest expense ................................ $ 73.2 $ 59.9 $ 62.5 $ 65.4 $ 58.3
Plus: Capitalized Interest ...................... 7.5 9.0 1.5 -- 0.3
Portion of Rents Deemed
Representative of the
Interest Factor .................... 22.2 18.7 16.4 17.4 17.4
--------- --------- --------- --------- ---------
$ 102.9 $ 87.6 $ 80.4 $ 82.8 $ 76.0
========= ========= ========= ========= =========
Ratio of Earnings to
Fixed Charges ............................... 2.89 4.48 4.41 3.88 3.56
========= ========= ========= ========= =========
</TABLE>
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in
this Registration Statement and related Prospectus of Harris Corporation for
the registration of $500,000,000 of Debt Securities and to the incorporation
by reference therein of our report dated July 29, 1998, with respect to the
consolidated financial statements and schedule of Harris Corporation and
subsidiaries included in its Annual Report on Form 10-K for the year ended July
3, 1998, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Orlando, Florida
October 28, 1998
<PAGE> 1
Exhibit 24
HARRIS CORPORATION
THE UNDERSIGNED, an officer or director of Harris Corporation, a
Delaware corporation (the "Company"), which anticipates filing with the
Securities and Exchange Commission, Washington, D.C., under the provisions of
the Securities Act of 1933, as amended, a Registration Statement, including
pre-effective and post-effective amendments thereto, on Form S-3 or other
appropriate form for the purpose of registering a public offering of up to
$500,000,000 aggregate offering price of securities having maturities of more
than nine months from the date of issue, does hereby constitute and appoint B.
R. Roub, R. W. Fay, D. S. Wasserman, R. L. Ballantyne and S. T. Mikuen, and any
one of them, with full power of substitution and resubstitution, as attorneys or
attorney to sign for him or her and in his or her name the Registration
Statement and any and all amendments and exhibits thereto, and any and all
applications or other documents to be filed with the Securities and Exchange
Commission pertaining to the Registration Statement or registration contemplated
thereby, with full power and authority to do and perform any and all acts and
things whatsoever required or necessary to be done and effect such registrations
as fully to all intents and purposes as he or she could do if personally
present, hereby ratifying and approving the acts of said attorneys, and any of
them and any such substitute.
EXECUTED at Melbourne, Florida, this 23rd day of October, 1998.
/s/ P. W. Farmer
- ----------------------------
P. W. Farmer
/s/ Robert Cizik
- -----------------------------
Robert Cizik
/s/ Lester E. Coleman
- -----------------------------
Lester E. Coleman
/s/ Alfred C. DeCrane, Jr.
- -----------------------------
Alfred C. DeCrane, Jr.
/s/ Ralph D. DeNunzio
- -----------------------------
Ralph D. DeNunzio
/s/ Joseph L. Dionne
- -----------------------------
Joseph L. Dionne
/s/ John T. Hartley
- -----------------------------
John T. Hartley
/s/ Karen Katen
- -----------------------------
Karen Katen
/s/ Alexander B. Trowbridge
- -----------------------------
Alexander B. Trowbridge
<PAGE> 1
Exhibit 25
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
HARRIS CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 34-0276860
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1025 WEST NASA BOULEVARD 32919
MELBOURNE, FLORIDA (Zip Code)
(Address of principal executive offices)
--------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE> 3
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 28th day of October, 1998.
THE CHASE MANHATTAN BANK
By /s/ Francine Springer
---------------------------
F. Springer
Assistant Vice President
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1998, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ...................................... $ 12,546
Interest-bearing balances .............................. 6,610
Securities:
Held to maturity securities ................................. 2,014
Available for sale securities ............................... 46,342
Federal funds sold and securities purchased under
agreements to resell ................................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income $129,281
Less: Allowance for loan and lease losses 2,796
Less: Allocated transfer risk reserve ... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................. 126,485
Trading Assets .............................................. 58,015
Premises and fixed assets (including capitalized
leases) ................................................ 3,001
Other real estate owned ..................................... 260
Investments in unconsolidated subsidiaries and
associated companies ................................... 255
Customers' liability to this bank on acceptances
outstanding ............................................ 1,245
Intangible assets ........................................... 1,492
Other assets ................................................ 16,408
--------
TOTAL ASSETS ................................................ $302,162
========
</TABLE>
- 3 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices .................................... $ 99,347
Noninterest-bearing .............................$41,566
Interest-bearing ................................ 57,781
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's ................................. 80,602
Noninterest-bearing .............................$ 4,109
Interest-bearing .................................76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ......................................... 37,760
Demand notes issued to the U.S. Treasury .................... 1,000
Trading liabilities ......................................... 42,941
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .......... 4,162
With a remaining maturity of more than one year
through three years ............................. 213
With a remaining maturity of more than three years ..... 106
Bank's liability on acceptances executed and outstanding .... 1,245
Subordinated notes and debentures ........................... 5,408
Other liabilities ........................................... 11,796
TOTAL LIABILITIES ........................................... 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............... 0
Common stock ................................................ 1,211
Surplus (exclude all surplus related to preferred stock) ... 10,441
Undivided profits and capital reserves ...................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ............................ (2)
Cumulative foreign currency translation adjustments ......... 16
TOTAL EQUITY CAPITAL ........................................ 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................ $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-4
