Morgan Stanley
& Co. Incorporated
1585 Broadway
New York, New York 10036
Citigroup
Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Harris
Corporation, a Delaware corporation (the “ Company
”), proposes to issue and sell to the several Underwriters
named in Schedule I hereto (the “ Underwriters
”) $350,000,000 aggregate principal amount of its 6.375%
Notes due 2019 (the “ Securities ”) to be issued
pursuant to the provisions of an Indenture dated as of
September 3, 2003 (the “ Indenture ”)
between the Company and The Bank of New York Mellon Trust Company,
N.A., as successor to The Bank of New York, as Trustee (the “
Trustee ”).
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement on Form S-3
(file number 333-159688), including a related base prospectus (the
“ Base Prospectus ”), to be used in connection
with the public offering and sale of the Securities. Such
registration statement, as amended, including the financial
statements, exhibits and schedules thereto, at each time of
effectiveness under the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (collectively, the
“ Securities Act ”), including any required
information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act
or the Securities and Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (collectively, the
“ Exchange Act ”), is hereinafter referred to as
the “ Registration Statement .”
Any preliminary
prospectus supplement to the Base Prospectus that describes the
Securities and the offering thereof and is used prior to filing of
the Prospectus is called, together with the Base Prospectus a
“ preliminary prospectus .” The term “
Prospectus ” shall mean the final prospectus
supplement relating to the Securities, together with the Base
Prospectus, that is first filed pursuant to Rule 424(b) after the
date and time that this Agreement is executed and delivered by the
parties hereto (the “ Execution Time ”). Any
reference herein to the Registration Statement, the Base
Prospectus, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act; the terms “ supplement ” and
“ amendment ” or “ amend ” as
used in this Agreement with respect to any preliminary prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such preliminary prospectus
or
Prospectus, as
the case may be, under the Exchange Act, and incorporated by
reference in such preliminary prospectus or Prospectus, as the case
may be; and the terms “ supplement ” and “
amendment ” or “ amend ” as used in
this Agreement with respect to the Registration Statement shall be
deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement. All
references in this Agreement to the Registration Statement, a
preliminary prospectus, the Prospectus, or any amendments or
supplements to any of the foregoing, shall include any copy thereof
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“ EDGAR
”).
The term “
Disclosure Package ” shall mean (i) the Base
Prospectus, including any preliminary prospectus supplement, as
amended or supplemented, (ii) the issuer free writing
prospectuses as defined in Rule 433 of the Securities Act
(each, an “ Issuer Free Writing Prospectus ”),
if any, identified in Schedule II hereto, (iii) any other
free writing prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure
Package and (iv) the Final Term Sheet (as defined in
Section 6(h)), attached hereto as Exhibit A.
1.
Representations and Warranties . The Company represents and
warrants to and agrees with each of the Underwriters
that:
(a) The
Company meets the requirements for use of Form S-3 under the
Securities Act, and, upon its filing with the Commission, the
Registration Statement became effective; no stop order suspending
the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus and Disclosure
Package complied or will comply when so filed in all material
respects with the Exchange Act, (ii) the Registration
Statement, as of each effective date, did 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
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 paragraph
do not apply to (A) statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein or
(B) 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.
2
(c) As of
2:00pm (Eastern time) on the date of this Agreement (the “
Applicable Time ”), (i) the Disclosure Package and
(ii) each electronic road show, when taken together as a whole
with the Disclosure Package, did not contain any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use
therein.
(d) Neither
any Issuer Free Writing Prospectus nor the Final Term Sheet, as of
its issue date and at all subsequent times through the completion
of the offering or until any earlier date that the Company notified
or notifies you as described in the next sentence, did, does and
will include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement, any preliminary prospectus or the Prospectus, including
any document incorporated by reference therein that has not been
superseded or modified. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information
contained in the Registration Statement, any preliminary prospectus
or the Prospectus the Company has promptly notified or will
promptly notify you and has promptly amended or supplemented or
will promptly amend or supplement, at its own expense, such Issuer
Free Writing Prospectus to eliminate or correct such conflict. The
foregoing two sentences do not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly
for use therein.
(e) (i) At
the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Securities Act (whether
such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus), (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) of the Securities Act) made any offer relating
to the Securities in reliance on the exemption of Rule 163 of
the Securities Act, and (iv) at the Execution Time (with such
date being used as the determination date for purposes of this
clause (iv)), the Company was and is a “well-known seasoned
issuer” as defined in Rule 405 of the Securities Act.
The Registration Statement is an “automatic shelf
registration statement”, as defined in Rule 405 of the
Securities Act, the Company has not received from the Commission
any notice pursuant to Rule 401(g)(2) of the Securities Act
objecting to use of the automatic shelf registration statement form
and the Company has not otherwise ceased to be eligible to use the
automatic shelf registration statement form.
(f) (i) At
the earliest time after the filing of the Registration Statement
relating to the Securities that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2) of the Securities Act) and (ii) as of
the
3
Execution Time
(with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible
Issuer (as defined in Rule 405 of the Securities Act), without
taking account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that
the Company be considered an Ineligible Issuer.
(g) The
Company has not distributed and will not distribute, prior to the
later of the Closing Date (as defined in Section 4) and the
completion of the Underwriters’ distribution of the
Securities, any offering material in connection with the offering
and sale of the Securities other than a preliminary prospectus, the
Prospectus, any Issuer Free Writing Prospectus reviewed and
consented to by you and included in Schedule II hereto or the
Registration Statement.
(h) The
Company has been duly incorporated, is validly existing as a
corporation in good standing or has active status under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Disclosure Package and the Prospectus and is duly
qualified to transact business and is in good standing or has
active status 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 or have active status would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(i) Each
significant subsidiary, as defined in Rule 405 of
Regulation C of the Commission, of the Company has been duly
incorporated, is validly existing as a corporation in good standing
or has active status under the laws of its jurisdiction of
organization, has the corporate power and authority to own its
property and to conduct its business as described in the Disclosure
Package and the Prospectus and is duly qualified to transact
business and is in good standing or has active status 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
or have active status would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(j) This
Agreement has been duly authorized, executed and delivered by the
Company.
(k) The
Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by, and is a valid
and binding agreement of, the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and
equitable principles of general applicability.
(l) The
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will be valid and binding
obligations of the Company, enforceable in accordance with
their
4
terms, subject
to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of
general applicability, and will be entitled to the benefits of the
Indenture.
(m) The
execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Indenture
and the Securities will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company
or any agreement or other instrument binding upon 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 or the 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
Securities.
(n) There has
not occurred any material adverse change, or any development
involving 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 Disclosure Package and the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of
this Agreement).
(o) Other
than as described in the Disclosure Package and the Prospectus;
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, 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 which the Company
has reason to believe would have a material adverse effect on the
Company and its subsidiaries, taken as a whole, or on the power or
ability of the Company to perform its obligations under this
Agreement, the Indenture or the Securities or to consummate the
transactions contemplated by the Disclosure Package and the
Prospectus.
(p) Any
preliminary prospectus or Prospectus filed pursuant to
Rule 424 under the Securities Act, complied or will comply
when so filed in all material respects with the Securities
Act.
(q) The
Company is not, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as
described in the Disclosure Package and the Prospectus will not be,
required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as
amended.
(r) The
Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“ Environmental Laws
”), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance
5
with
Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(s) There are
no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in
the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(t) None of
the Company and its subsidiaries or, to the knowledge of the
Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any
subsidiary has (A) within the past five years violated or is
in violation of any provision of the Foreign Corrupt Practices Act
of 1977 or (B) (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity, (ii) made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds or (iii) made any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment, except in the case of clauses (B)(i), (B)(ii) and
(B)(iii), which would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(u) The
operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by any
governmental agency (collectively, the “ Money Laundering
Laws ”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(v) Neither
the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“ OFAC ”); and
the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such
proceeds, to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(w) There is
and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such,
to comply with any provision of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in
6
connection
therewith, including Section 402 relating to loans and
Sections 302 and 906 relating to certifications.
(x) The
Company and its subsidiaries maintain “disclosure controls
and procedures” as defined in Rule 13a-15(e) under the
Exchange Act); such disclosure controls and procedures are
effective.
(y) The
Company maintains (i) effective “internal control over
financial reporting” as defined in Rule 13a-15(f) under
the Exchange Act, and (ii) a system of internal accounting
controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with
management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(z) Except as
disclosed in the Disclosure Package and the Prospectus, or in any
document incorporated by reference therein, since the end of the
Company’s most recent audited fiscal year, there has been
(i) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and
(ii) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting.
2.
Agreements to Sell and Purchase . The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the
basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees, severally and
not jointly, to purchase from the Company the respective principal
amounts of Securities set forth in Schedule I hereto opposite
its name at 99.041% of their principal amount plus accrued
interest, if any, from June 9, 2009 to the date of payment and
delivery.
The Company hereby
agrees that, without the prior written consent of Morgan Stanley
& Co. Incorporated and Citigroup Global Markets Inc., on behalf
of the Underwriters, it will not during the period beginning on the
date hereof and continuing to and including the Closing Date,
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase or otherwise
acquire debt securities of the Company substantially similar to the
Securities (other than (i) the Securities and
(ii) commercial paper issued in the ordinary course of
business).
3. Terms
of Public Offering . The Company is advised by you that the
Underwriters propose to make a public offering of their respective
portions of the Securities as soon after this Agreement has been
entered into as in your judgment is advisable. The Company is
further advised by you that the Securities are to be offered to the
public initially at 99.691% of their principal amount (the “
Public Offering Price ”)
7
plus accrued
interest, if any, from June 9, 2009 to the date of payment and
delivery and to certain dealers selected by you at a price that
represents a concession not in excess of 0.4% of their principal
amount.
4.
Payment and Delivery . Payment for the Securities shall be
made to the Company in Federal or other funds immediately available
in New York City at 10:00 a.m., New York City time, on
June 9, 2009, or at such other time on the same or such other
date, not later than June 14, 2009, as shall be designated in
writing by you. The time and date of such payment are hereinafter
referred to as the “ Closing Date .”
Payment for the
Securities shall be made against delivery to you on the Closing
Date for the respective accounts of the several Underwriters of the
Securities registered in such names and in such denominations as
you shall request in writing not less than one full business day
prior to the Closing Date, with any transfer taxes payable in
connection with the transfer of the Securities to the Underwriters
duly paid.
5.
Conditions to the Underwriters’ Obligations . The
obligations of the Company to sell the Securities to the
Underwriters and the several obligations of the Underwriters to
purchase and pay for the Securities 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 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 the Company or any of the
Company’s securities, or in the rating outlook for the
Company, 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
Disclosure Package and the Prospectus, exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement
that, in your judgment, is material and adverse and that makes it,
in your judgment, impracticable or inadvisable to market, sell or
deliver the Securities on the terms and in the manner contemplated
in the Disclosure Package and the Prospectus;
(iii) the Company
shall have filed the Prospectus with the Commission (including the
information required by Rule 430B under the Securities Act) in
the manner and within the time period required by Rule 424(b) under
the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement containing
the information required by such Rule 430B,
8
and such
post-effective amendment shall have become effective; the Final
Term Sheet, and any other material required to be filed by the
Company pursuant to Rule 433(d) under the Securities Act, shall
have been filed with the Commission within the applicable time
periods prescribed for such filings under such Rule 433;
and
(iv) no stop order
suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in
effect and no proceedings for such purpose shall have been
instituted or threatened by the Commission, and the Company has not
received from the Commission any notice pursuant to
Rule 401(g)(2) of the Securities Act objecting to use of the
automatic shelf registration statement form.
(b) The
Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(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 hereunder on or before the Closing
Date.
The officer
signing and delivering such certificate may rely upon his or her
knowledge as to proceedings threatened.
(c) The
Underwriters shall have received on the Closing Date an opinion of
Holland & Knight LLP, outside counsel for the Company, dated
the Closing Date, to the effect set forth in Exhibit B-1 and an
opinion of Scott T. Mikuen, Vice President-Associate General
Counsel and Secretary, of the Company, to the effect set forth in
Exhibit B-2. Such opinions shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
(d) The
Underwriters shall have received on the Closing Date such opinion
or opinions of Cravath, Swaine & Moore LLP, counsel for the
Underwriters, dated the Closing Date with respect to the issuance
and sale of the Securities, the Registration Statement, the
Disclosure Package, the Prospectus and other related matters as the
Underwriters may reasonably require.
(e) The
Underwriters shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance reasonably
satisfactory to the Underwriters, from Ernst & Young,
independent public accountants for the Company, 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
Registration Statement, the Disclosure Package and the Prospectus;
provided that the letter delivered on the Closing Date shall
use a “cut-off date” not earlier than the date
hereof.
9
6.
Covenants of the Company . In further consideration of the
agreements of the Underwriters herein contained, the Company
covenants with each Underwriter as follows:
(a) To
furnish to you in New York City, without charge, prior to
10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period
mentioned in Section 6(c) below, as many copies of the Prospectus,
any documents incorporated therein by reference and any supplements
and amendments thereto as you may reasonably request.
(b) Prior to
completion of the distribution of the Securities (as determined by
the Underwriters), before amending or supplementing the
Registration Statement, the Disclosure Package or the Prospectus,
to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b)
under the Securities Act any prospectus required to be filed
pursuant to such Rule.
|
