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Exhibit 1.1
TEXTRON CAPITAL _
UNDERWRITING AGREEMENT
________ _, ____
[Name of Underwriters]
Dear Sirs:
Textron Capital _________, a Delaware business trust (the "Trust"),
proposes, upon the terms and conditions set forth herein, to issue and sell
__________ of its ____% Trust Preferred Securities (the "Preferred Securities")
to the several Underwriters named in Schedule I hereto (the "Underwriters").
The Preferred Securities will be guaranteed by Textron Inc., a Delaware
corporation ("Textron"), as described in the Prospectus (as defined below). The
Trust will use the proceeds from the sale of the Preferred Securities to
purchase from Textron $___________ aggregate principal amount of its ____%
___________________ due _____ __, ____ (the "Junior Subordinated Debentures") to
be issued under the Indenture (the "Base Indenture") dated as of _______ __,
____ between Textron and The Bank of New York, as Trustee (the "Indenture
Trustee").
Each of the Trust and Textron wish to confirm as follows their
agreement with you (the "Representatives") and the several Underwriters
on whose behalf you are acting in connection with the several purchases
of the Preferred Securities by the Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Trust and
Textron have prepared and filed with the Securities and
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Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration
statement on Form S-3 under the Act (the "registration statement"),
including a prospectus relating to the Preferred Securities, the Junior
Subordinated Debentures and the guarantee (the "Guarantee") of the
Preferred Securities by Textron. The term "Registration Statement" as
used in this Agreement means the registration statement (including all
financial schedules and exhibits), as supplemented or amended prior to
the execution of this Agreement. The term "Base Prospectus" as used in
this Agreement means the prospectus included in the Registration
Statement. The term "Prospectus" means the Base Prospectus together
with the prospectus supplement or supplements specifically relating to
the Preferred Securities as filed with or promptly hereafter filed with
the Commission pursuant to Rule 424(b) under the Act. The term
"Prepricing Prospectus" as used in this Agreement means the prospectus
supplement subject to completion specifically relating to the Preferred
Securities together with the Base Prospectus as such prospectus shall
have been amended from time to time prior to the date of such prospectus
supplement and filed with the Commission pursuant to Rule 424(b) under
the Act. Any reference in this Agreement to the registration statement,
the Registration Statement, any Prepricing 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 Act, as of
the date of the registration statement, the Registration Statement, such
Prepricing Prospectus or the Prospectus, as the case may be, and any
reference to any amendment or supplement to the registration statement,
the Registration Statement, any Prepricing Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after such
date under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") which, upon filing, are incorporated by reference
therein, as required by paragraph (b) of Item 12 of Form S-3. As used
herein, the term "Incorporated Documents" means the documents which at
the time are incorporated by reference in the registration statement,
the Registration Statement, any Prepricing Prospectus, the Prospectus,
or any amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Trust hereby
agrees, subject to all the terms and conditions set forth herein, to
issue and sell to each Underwriter and, upon the basis of the
representations, warranties and agreements of the Trust and Textron
herein contained and subject to all the terms and conditions set forth
herein, each Underwriter agrees, severally and not jointly, to purchase
from the Trust, at a purchase price of $__ per Preferred Security (the
"Purchase Price"), the number of Preferred Securities set forth opposite
the name of such Underwriter in Schedule I hereto (or such number of
Preferred Securities increased as set forth in Section 10 hereof).
In consideration of such purchases on the Closing Date, the
proceeds of which will be used to purchase Junior Subordinated
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Debentures, Textron shall pay to the Underwriters as compensation, on
the Closing Date $.____ per Preferred Security, provided, however, that
such compensation shall be $.__ per Preferred Security for each sale of
______ or more Preferred Securities to a single purchaser. The
Underwriters shall inform Textron in writing on the Closing Date of the
number of Preferred Securities so sold.
Each of the Trust and Textron hereby agree, during the period
beginning on the date of this Agreement and continuing to and including
the date that is 60 days after the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any preferred securities, any
preferred stock or any other securities (including any backup
undertakings for such preferred stock or other securities) of Textron or
preferred securities of the Trust, in each case that are substantially
similar to the Preferred Securities, or any securities convertible into
or exchangeable for the Preferred Securities or such substantially
similar securities of either the Trust or Textron, without the prior
written consent of ________________.
3. TERMS OF PUBLIC OFFERING. The Trust and Textron have
been advised by you that the Underwriters propose to make a public
offering of their respective portions of the Preferred Securities as
soon after this Agreement has become effective as in your judgment is
advisable and initially to offer the Preferred Securities upon the terms
set forth in the Prospectus.
4. DELIVERY OF THE PREFERRED SECURITIES AND PAYMENT
THEREFOR. Delivery to the Underwriters of and payment for the Preferred
Securities shall be made at the office of Skadden, Arps, Slate, Xxxxxxx
& Xxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx at 10:00 A.M., New York
City time, on ________ _, ____ (the "Closing Date"). The place of
closing for the Preferred Securities and the Closing Date may be varied
by agreement among you, the Trust and Textron.
The Preferred Securities shall be delivered to you for the
accounts of the several Underwriters against payment of the Purchase
Price therefor by certified or official bank check or checks payable in
New York Clearing House (next day) funds to the order of the Trust and
registered in the name of CEDE & Co., as nominee for The Depositary
Trust Company. The Preferred Securities to be delivered to the
Underwriters shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time,
on the business day next preceding the Closing Date.
5. AGREEMENTS OF THE TRUST AND TEXTRON. Each of the Trust
and Textron jointly and severally agree with the several Underwriters as
follows:
(a) The Trust and Textron will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any
request by the Commission for amendment of or a supplement to
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the Registration Statement, any Prepricing Prospectus or the Prospectus or
for additional information; (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Preferred
Securities and the Guarantee for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iii) within the
period of time referred to in paragraph (e) below, of any change in the
condition (financial or other), business, prospects, properties, net
worth or results of operations of the Trust or of Textron and Textron's
subsidiaries taken as a whole, or of the happening of any event, which
makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue or
which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or
the regulations thereunder to be stated therein or necessary in order to
make the statements therein not misleading, or of the necessity to amend
or supplement the Prospectus (as then amended or supplemented) to comply
with the Act or any other law. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, the Trust and Textron will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(b) The Trust and Textron will make available for review by
each Representative a signed copy of the registration statement as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits to the registration
statement, and a copy of the exhibits to the Incorporated Documents and
furnish to you, without charge (i) such number of conformed copies of
the registration statement as originally filed and of each amendment
thereto, including exhibits, as you may reasonably request and (ii) such
number of copies of the Declaration (as hereinafter defined), the
Guarantee, the Indenture and the Incorporated Documents, without
exhibits, as you may reasonably request.
(c) Neither the Trust nor Textron will file any amendment to
the Registration Statement or make any amendment or supplement to the
Prospectus or, prior to the end of the period of time referred to in the
first sentence in subsection (e) below, file any document which, upon
filing becomes an Incorporated Document, of which you shall not
previously have been advised or to which, after you shall have received
a copy of the document proposed to be filed, you shall reasonably
object.
(d) Prior to the execution and delivery of this Agreement,
the Trust and Textron have delivered to you, without charge, in such
quantities as you have requested, copies of each Prepricing Prospectus.
Each of the Trust and Textron consent to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Preferred Securities and the Guarantee are
offered by the several
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Underwriters and by dealers prior to the date of the Prospectus, of each
Prepricing Prospectus so furnished by the Trust and Textron.
(e) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period
as in the judgment of the Representatives a prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or
dealer, the Trust and Textron will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
request. Each of the Trust and Textron consent to the use of the
Prospectus (and of any amendment or supplement thereto) in accordance
with the provisions of the Act and with the securities or Blue Sky laws
of the jurisdictions in which the Preferred Securities and the Guarantee
are offered by the several Underwriters and by all dealers to whom
Preferred Securities may be sold, both in connection with the offering
and sale of the Preferred Securities and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer. If during such
period of time any event shall occur that in the judgment of the Trust
and Textron or in the judgment of the Representatives is required to be
set forth in the Prospectus (as then amended or supplemented) or should
be set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary to supplement or amend the Prospectus (or to file
under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other law,
the Trust and Textron will forthwith prepare and, subject to the
provisions of paragraph (c) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and
will expeditiously furnish to the Underwriters and dealers a reasonable
number of copies thereof.
(f) Each of the Trust and Textron will cooperate with you and
with counsel for the Underwriters in connection with the registration or
qualification of the Preferred Securities and the Guarantee for offering
and sale by the several Underwriters and by dealers under the securities
or Blue Sky laws of such jurisdictions as you may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification;
provided that in no event shall the Trust or Textron be obligated to
qualify to do business in any jurisdiction where they are not now so
qualified or to take any action which would subject them to service of
process in suits in any jurisdiction where they are not now so subject.
(g) The Trust and Textron will make generally available to
the Trust's security holders consolidated earnings statements, which
need not be audited, covering a twelve-month period commencing after the
effective date of the Registration Statement and ending not later than
15 months thereafter, as soon as practicable after the end of such
period, which consolidated
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earnings statements shall satisfy the provisions of Section ll(a) of the Act.
(h) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than
pursuant to the second paragraph of Section 10 hereof or by notice given
by you terminating this Agreement pursuant to Section 10 or Section 11
hereof) or if this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Trust or Textron to
comply with the terms or fulfill any of the conditions of this
Agreement, Textron agrees to reimburse the Representatives for all
reasonable out-of-pocket expenses (including fees and expenses of
counsel for the Underwriters) incurred by you in connection herewith.
(i) The Trust will apply the net proceeds from the sale of
the Preferred Securities, and Textron will apply the net proceeds from
the sale of the Junior Subordinated Debentures, substantially in
accordance with the description set forth in the Prospectus.
(j) The Trust and Textron will timely file the Prospectus
pursuant to Rule 424(b) under the Act and will advise you of the time
and manner of such filing.
6. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND TEXTRON.
Each of the Trust and Textron jointly and severally represent and
warrant to each Underwriter that:
(a) The Trust and Textron and the transactions contemplated
by this Agreement meet the requirements for using Form S-3 under the
Act. The registration statement in the form in which it became
effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the Prospectus complied or
will comply in all material respects with the provisions of the Act and
will not at any such times contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of
the Prospectus in light of the circumstances under which they are made),
except that this representation and warranty does not apply to
statements in or omissions from the registration statement or the
Prospectus made in reliance upon and in conformity with (i) information
relating to any Underwriter furnished to the Trust or Textron in writing
by or on behalf of any Underwriter through you expressly for use
therein, or (ii) the Indenture Trustee's, the Institutional Trustee's or
the Guarantee Trustee's Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The terms "Institutional Trustee" and "Guarantee Trustee" shall have the
meanings given to them in the Prospectus.
(b) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such
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document was filed, when such amendment was filed), conformed in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder, any further Incorporated Documents so filed
will, when they are filed, conform in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder; no such document when it was filed (or, if an amendment with
respect to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and no such further document, when
it is filed, will contain an untrue statement of a material fact or will
omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The execution and delivery of, and the performance by the
Trust of its obligations under, this Agreement have been duly authorized
by the Trust, and this Agreement has been duly executed and delivered by
the Trust. The execution and delivery of, and the performance by
Textron of its obligations under this Agreement, the Trust's Amended and
Restated Declaration of Trust (the "Declaration"), the Guarantee, the
Indenture and the Junior Subordinated Debentures have been duly
authorized by Textron, and this Agreement has been duly executed and
delivered by Textron.
(d) The Preferred Securities to be issued will be duly
authorized by the Declaration and, when executed in accordance with the
terms of the Declaration and delivered to you against payment therefor
in accordance with the terms hereof, will have been validly issued and
(subject to the terms of the Declaration) will represent fully paid and
nonassessable undivided beneficial interests in the assets of the Trust,
not subject to any preemptive or similar rights and will conform to the
description thereof in the Registration Statement and the Prospectus.
Holders of Preferred Securities will be entitled to the same limitation
of liability extended to stockholders of private corporations for profit
under the General Corporation Law of the State of Delaware. The Common
Securities (as defined in the Prospectus) to be issued to Textron will
be authorized by the Declaration and, when executed in accordance with
the terms of the Declaration and delivered to Textron against payment
therefor as described in the Registration Statement and the Prospectus,
will represent validly issued undivided beneficial interests in the
assets of the Trust.
(e) Each of the Declaration and the Guarantee have been duly
authorized by Textron and upon execution and delivery thereof by
Textron, and assuming due authorization, execution and delivery thereof
by the trustees (the "Trustees") of the Trust, the Declaration will, as
of the Closing Date, be a valid and legally binding obligation of
Textron and the Regular Trustees, enforceable against Textron and the
Regular Trustees in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy,
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insolvency or other similar laws affecting creditors' rights generally and
by general principles of equity and will conform to the description thereof
in the Registration Statement and the Prospectus. As of the Closing Date, the
Guarantee will have been duly executed and delivered by Textron and will be a
valid and legally binding obligation of Textron, enforceable against
Textron in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights and by general principles of equity and will conform
to the description thereof in the Registration Statement and Prospectus.
(f) The Indenture has been duly authorized and, upon
execution and delivery thereof by Textron, and assuming due execution
and delivery by the Indenture Trustee, will be, as of the Closing Date,
a valid and legally binding agreement of Textron, enforceable against
Textron in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and by general principles of equity, has
been duly qualified under the 1939 Act and will conform to the
description thereof in the Registration Statement and the Prospectus.
(g) The Junior Subordinated Debentures have been duly
authorized and, when executed by Textron, authenticated by the Indenture
Trustee and issued in accordance with the Indenture and delivered to the
Trust against payment therefor as described in the Registration
Statement and the Prospectus, will constitute valid and legally binding
obligations of Textron entitled to the benefits of the Indenture and
enforceable against Textron in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity, and the Junior Subordinated
Debentures will conform to the description thereof in the Registration
Statement and the Prospectus.
(h) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust
Act, is a "grantor trust" for Federal income tax purposes under existing
law in effect on the date hereof and on the Closing Date, has the
business trust power and authority to conduct its business as presently
conducted and as described in the Registration Statement and the
Prospectus, and is not required to be authorized to do business in any
other jurisdiction.
(i) Textron is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or
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qualification, except where the failure so to register or qualify does not
have a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of Textron and its subsidiaries
taken as a whole.
(j) Each of [Insert name of Subsidiaries] (collectively, the
"Significant Subsidiaries") is a corporation duly organized, validly existing
and in good standing in the jurisdiction of its incorporation, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of Textron and its subsidiaries
taken as a whole. Except as disclosed in the Registration Statement and the
Prospectus, Textron owns of record, directly or indirectly, all of the
outstanding shares of capital stock of each of the Significant Subsidiaries free
and clear of any lien, adverse claim, security interest, equity or other
encumbrance.
(k) The execution and delivery of this Agreement by the Trust
and Textron and the performance by the Trust and Textron of their
obligations hereunder, the execution and delivery by Textron of, and the
performance by Textron of its obligations under, the Declaration, the
Guarantee and the Indenture, the issuance and sale of the Preferred
Securities by the Trust, the extension of the Guarantee, the issuance
and sale of the Junior Subordinated Debentures by Textron and the
consummation of the transactions contemplated by this Agreement will not
contravene any provision of applicable law or the Declaration of the
Trust or the certificate of incorporation or by-laws of Textron or any
other agreement or instrument binding upon the Trust or Textron or any
of Textron's Significant Subsidiaries or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Trust, Textron or such Significant Subsidiaries, except such
contraventions as would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Trust or of
Textron and its subsidiaries taken as a whole and no consent, approval
or authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Trust and Textron
of their obligations under this Agreement, the performance by Textron of
its obligations under the Declaration, the Guarantee or the Indenture,
the consummation of the transactions contemplated hereby, the issuance
and sale of the Preferred Securities, the extension of the Guarantee or
the
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issuance and sale of the Junior Subordinated Debentures, except
such as are required pursuant to state securities or Blue Sky Laws.
(l) The statements under the caption "Legal Proceedings" in
Textron's Annual Report on Form 10-K insofar as they describe statements
of law or legal conclusions are accurate and present fairly the
information required to be shown.
(m) Neither the Trust nor Textron is, or after giving effect
to the consummation of the transaction contemplated hereby, will be, and
neither the Trust nor Textron is directly or indirectly controlled by,
or acting on behalf of any person which is, an investment company within
the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
(n) Each of the Trust and Textron have complied with all
provisions of Florida Statutes, Sec. 517.075, relating to issuers doing
business with Cuba.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Each of the Trust
and Textron jointly and severally agree to indemnify and hold harmless
each of you and each other Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus or in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or arising out of or based upon 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, liabilities
or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made
therein or omitted therefrom in reliance upon and in conformity with
information relating to such Underwriter furnished in writing to the
Trust and Textron by or on behalf of any Underwriter through you
expressly for use in connection therewith; provided, however, that the
indemnification contained in this paragraph (a) with respect to any
Prepricing Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) on
account of any such loss, claim, damage, liability or expense arising
from the sale of the Preferred Securities by such Underwriter to any
person if a copy of the Prospectus shall not have been delivered or sent
to such person within the time required by the Act and the regulations
thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such
Prepricing Prospectus was corrected in the Prospectus, provided that the
Trust and Textron have delivered the Prospectus to the several
Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be
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in addition to any liability which the Trust and Textron may otherwise
have.
(b) If any action, suit or proceeding shall be brought
against any Underwriter or any person controlling any Underwriter in
respect of which indemnity may be sought against the Trust and Textron,
such Underwriter or such controlling person shall promptly notify the
Trust and Textron and the Trust and Textron shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses. Such Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the Trust and Textron have agreed in
writing to pay such fees and expenses, (ii) either the Trust or Textron
have failed to assume the defense and employ counsel, or (iii) the named
parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and
the Trust or Textron and such Underwriter or such controlling person
shall have been advised by its counsel that representation of such
indemnified party and the Trust or Textron by the same counsel would be
inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them
(in which case the Trust and Textron shall not have the right to assume
the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood, however,
that the Trust and Textron shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel) at any time for all such Underwriters and
controlling persons not having actual or potential differing interests
with you or among themselves, which firm shall be designated in writing
by Xxxxx Xxxxxx Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. Neither the Trust nor Textron shall be
liable for any settlement of any such action, suit or proceeding
effected without their written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, each of the Trust and Textron jointly and
severally agree to indemnify and hold harmless any Underwriter, to the
extent provided in the preceding paragraph, and any such controlling
person from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Trust, the Trustees, Textron's
directors, Textron's officers who sign the Registration Statement, and
any person who controls the Trust or Textron within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, to the
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same extent as the foregoing indemnity from the Trust and Textron to each
Underwriter, but only with respect to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or supplement
thereto. If any action, suit or proceeding shall be brought against the
Trust or Textron, any of the Trustees, Textron's directors, any such
officer of Textron, or any such controlling person, based on the
Registration Statement, the Prospectus or any Prepricing Prospectus, or
any amendment or supplement thereto, and in respect of which indemnity
may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to the Trust and
Textron by paragraph (b) above (except that if the Trust and Textron
shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such
counsel shall be at such Underwriter's expense), and the Trust, the
Trustees, Textron, Textron's directors, any such officer of Textron, and
any such controlling person, shall have the rights and duties given to
the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters
may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof
in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Trust and Textron on the
one hand and the Underwriters on the other hand from the offering of the
Preferred 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 Trust and Textron on
the one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Trust and Textron
on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Trust bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus.
The relative fault of the Trust and Textron on the one hand and 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 Trust and Textron on the one
hand or by
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13
the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Trust, Textron and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section
7 were determined by a 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,
liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 7,
no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price of the Preferred Securities
underwritten by it and distributed to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 7
are several in proportion to the number of Preferred Securities set
forth opposite their names in Schedule I hereto (or such number of
Preferred Securities increased as set forth in Section 10 hereof) and
not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or 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 action, suit or
proceeding.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 7 and the representations and
warranties of the Trust and Textron set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Trust, the Trustees, Textron, Textron's
directors or officers or any person controlling the Trust, (ii)
acceptance of any Preferred Securities and payment therefore hereunder
and (iii) any termination of this Agreement. A successor to any
Underwriter or
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14
any person controlling any Underwriter, or to the Trust, the Trustees,
Textron, Textron's directors or officers, or any person controlling
the Trust, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Preferred Securities
hereunder are subject to the following conditions:
(a) All filings, if any, required by Rule 424 under the Act
shall have been timely made; no stop order suspending the effectiveness
of the registration statement shall have been issued and no proceeding
for that purpose shall have been instituted and not withdrawn or, to the
knowledge of the Trust, Textron or any Underwriter, threatened by the
Commission, and any request of the Commission for additional information
(to be included in the registration statement or the prospectus or
otherwise) shall have been complied with or withdrawn to your
satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Trust,
or of Textron and its subsidiaries taken as a whole not contemplated by
the Prospectus, which in your opinion, as Representatives of the several
Underwriters, would materially adversely affect the market for the
Preferred Securities.
(c) You shall have received on the Closing Date, an opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel for Textron and
the Trust, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act and has the business trust power and authority to
conduct its business as presently conducted and as described in the
Registration Statement and the Prospectus and is not required to be
authorized to do business in New York;
(ii) This Agreement has been duly authorized, executed and
delivered by Textron and the Trust;
(iii) Assuming due authorization, execution and delivery of
the Declaration by the Regular Trustees, the Declaration and the
Guarantee have each been duly authorized, executed and delivered by
Textron and the Declaration is a valid and legally binding agreement of
Textron and the Trustees, and the Guarantee is a valid and binding
agreement of Textron, in each case enforceable against Textron and, in
the case of the Declaration, the Trustees, in accordance with its terms,
except as enforcement
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15
thereof may be limited by bankruptcy, insolvency or other similar laws
affecting creditors' rights generally and by general principles of
equity (regardless of whether enforceability is considered in a proceeding
at law or in equity);
(iv) The Common Securities have been duly authorized for
issuance and when issued, delivered and paid for as set forth in the
Registration Statement, will represent validly issued, undivided
beneficial interests in the assets of the Trust. The issuance of the
Common Securities is not subject to preemptive or other similar rights
under the Delaware Business Trust Act or the Declaration.
(v) The Preferred Securities have been duly authorized
for issuance and, subject to the qualification set forth below, when
issued, executed, delivered and paid for in accordance with this
Agreement, will represent validly issued, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust; the holders
of the Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware. Such counsel may state, however, that the holders of
Preferred Securities may be obligated, pursuant to the Declaration, to
(i) provide indemnity and/or security in connection with and pay taxes
or governmental charges arising from transfers of Preferred Securities
and the issuance of replacement Preferred Securities, and (ii) provide
security and indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under the
Declaration. The issuance of the Preferred Securities is not subject to
preemptive or other similar rights under the Delaware Act or the
Declaration.
(vi) The execution and delivery of this Agreement by the
Trust and the performance by the Trust of its obligations hereunder, the
issuance and sale of the Preferred Securities by the Trust and the
consummation of the other transactions contemplated by this Agreement
will not violate any provision of Applicable Law or the Declaration or,
to the knowledge of such counsel, any agreement or instrument binding
upon the Trust as set forth in a schedule to the opinion or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Trust as set forth in a schedule to the
opinion, except such contraventions as would not, individually or in the
aggregate, have a material adverse effect on the condition (financial
and other), business, properties, net worth or results of operations of
the Trust and no Governmental Approval is required for the performance
by the Trust of its obligations under this Agreement, the consummation
of the transactions contemplated hereby or the issuance of the Preferred
Securities, except such as are required pursuant to state securities or
Blue Sky laws;
(vii) To the knowledge of such counsel based on inquiry of
responsible officers of the Trust and review of letters
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16
of counsel to the Trust obtained in connection with preparation of financial
statements, there are no legal or governmental proceedings pending or
threatened against the Trust or to which the Trust or any of its
property is subject, that are required to be described in the
Registration Statement or the Prospectus that are not described as
required and there are no agreements, contracts, indentures, leases or
other instruments of the Trust that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that are not described or filed as required
by the Act;
(viii) The statements in the Registration Statement and
Prospectus under the captions "Textron Capital ___", "Risk Factors",
"Description of Preferred Securities", "Description of Trust Preferred
Securities", "Description of Junior Subordinated Debentures", "Effect of
Obligations Under the Junior Subordinated Debentures and the
Guarantees", "Description of Debt Securities" and "Description of Trust
Guarantees" insofar as they describe legal documents or refer to
statements of law or legal conclusions, are accurate and present fairly
the information required to be shown;
(ix) Neither the Trust nor Textron is required to be
registered under the Investment Company Act of 1940, as amended.
(x) No Governmental Approval is required in connection
with the performance by Textron of its obligations under this Agreement,
the consummation of the transactions contemplated hereby or the issuance
and sale of the Junior Subordinated Debt Securities, or the Guarantees,
except that such counsel need not express any opinion in this paragraph
with respect to state securities (blue sky) laws.
(xi) The Registration Statement, as of its effective date,
and the Prospectus, as of its date, appeared on their face to be
appropriately responsive in all material respects to the requirements of
the Act and the Rules and Regulations, except that in each case we
express no opinion as to the financial statements, schedules and other
financial and statistical data included therein or excluded therefrom or
the exhibits to the Registration Statement, including the Form T-1, and
we do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
the Prospectus except for those made under the captions listed in
paragraph (viii) above and paragraph (d)(3) below in the Prospectus
insofar as they relate to provisions of documents therein described.
Such counsel has been orally advised by the Commission that
the Indenture has been qualified under the Trust Indenture Act and the
Registration Statement was declared effective under the Act and, such
counsel has been advised by the Commission that no stop order suspending
the effectiveness of the Registration Statement has been issued and, to
the best of such counsel's knowledge, no
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17
proceedings for that purpose have been instituted or are pending or
threatened by the Commission. Such counsel shall also state the date
on which the Prospectus was filed pursuant to Rule 424(b) under the Act.
In addition, such counsel shall state that it has participated
in conferences with officers and representatives of the Company and the
Trust, and representatives of the independent accountants of the Company
at which the contents of the Registration Statement and the Prospectus
and related matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus and have made no independent check or
verification thereof except for those made under the captions listed in
paragraph (viii) above and paragraph (d)(3) below in the Prospectus
insofar as they relate to provisions of documents therein described, on
the basis of the foregoing, no facts have come to such counsel's
attention that have led such counsel to believe that the Registration
Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date and as of
the date hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, except that such counsel need not
express any opinion or belief with respect to the financial statements,
schedules and other financial and statistical data included therein or
excluded therefrom or the exhibits to the Registration Statement,
including the Form T-1.
For purposes of the foregoing opinion, such counsel may state
that (a) "Applicable Law" shall mean only the laws of the United States,
the Delaware Trust Act and those other laws of the State of Delaware and
the State of New York which, in our experience, are normally applicable
to transactions of the type contemplated by the Underwriting Agreement
(but without our having made any special investigation as to the
applicability of any specific law, rule or regulation except as
specified herein), and (b) "Governmental Approval" shall mean any
consent, approval, license, authorization or validation of, or filing,
recording or registration with, any governmental authority pursuant to
Applicable Law.
(d) You shall have received on the Closing Date, an
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx, special tax counsel to
the Company and the Trust, dated the Closing Date and addressed to you,
as Representatives of the several Underwriters, to the effect that:
(1) The Trust will be classified as a grantor trust and
not as an association taxable as a corporation. Accordingly,
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18
for United States federal income tax purposes, each holder of Preferred
Securities will generally be considered the owner of an undivided interest
in the Junior Subordinated Debt Securities, and each holder will be required to
include in its gross income any original issue discount accrued with
respect to its allocable share of those Subordinated Debt Securities.
(2) The Junior Subordinated Debt Securities will be
classified for United States federal income tax purposes as indebtedness
of the Company.
(3) Although the discussion set forth in the Prospectus
under the heading "UNITED STATES TAXATION" does not purport to discuss
all possible United States federal income tax consequences of the
purchase, ownership and disposition of Preferred Securities, in our
opinion such discussion constitutes, in all material respects, a fair
and accurate summary of the United States federal income tax
consequences of the purchase, ownership and disposition of Preferred
Securities under current law.
(e) You shall have received on the Closing Date, an opinion of Xxxxxxx
X. Xxxx, Associate General Counsel and Assistant Secretary for Textron, dated
the Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) Textron is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification; except where the failure so to register
or qualify does not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of Textron and its subsidiaries taken as a whole;
(ii) Each of the Significant Subsidiaries is a corporation
duly organized and validly existing in good standing under the laws of
the jurisdiction of its organization, with full corporate power and
authority to own, lease, and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification; except
where the failure so to register or qualify does not have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of Textron and its
subsidiaries taken as a whole;
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19
(iii) The Indenture has been duly authorized, executed
and delivered by Textron and is a valid and legally binding agreement of
Textron enforceable against Textron in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and by rights of
acceleration and the availability of remedies may be limited by
equitable principles of general applicability, and has been duly
qualified under the 1939 Act;
(iv) The Junior Subordinated Debt Securities have been
duly authorized by the Company and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the purchasers thereof, will be valid and binding
obligations of the Company enforceable in accordance with their terms
and will be entitled to the benefits of the Indenture, except as (1)
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and (2) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(v) The execution, delivery and performance of this
Agreement, the Declaration, the Guarantee and the Indenture and the
performance by Textron of its obligations hereunder and thereunder, the
extension of the Guarantee, the issuance and sale of the Junior
Subordinated Debentures by Textron and the consummation of the other
transactions contemplated by this Agreement will not contravene any
provision of applicable law (except as rights to indemnity and
contribution under this Agreement may be limited by applicable law) or
the certificate of incorporation or by-laws of Textron or, to the
knowledge of such counsel after due inquiry, any agreement or instrument
binding upon Textron or its Significant Subsidiaries or any judgement,
order or decree of any governmental body, agency or court having
jurisdiction over its subsidiaries, except such contraventions as would
not, individually or in the aggregate, have a material adverse effect on
the condition (financial and other), business, properties, net worth or
results of operations of Textron and its subsidiaries taken as a whole
and (assuming compliance with applicable state securities and Blue Sky
laws) no consent, approval authorization or order of, or qualification
with, any governmental body or agency is required for the performance by
Textron of its obligations under this Agreement, except such as are
specified and have been obtained;
(vi) The statements in Textron's Annual Report on Form
10-K under the caption "Legal Proceedings" insofar as they describe
legal documents or refer to statements of law or legal conclusions, are
accurate and present fairly the information required to be shown and, to
the knowledge of such counsel, there are no agreements, contracts,
indentures, leases or other instruments (other than those relating to
the Trust) that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration
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20
Statement or any Incorporated Document that are not described or filed
as required by the Act or the Exchange Act;
(vii) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements
and the notes thereto and the schedules and other financial and
statistical data included therein, as to which such counsel need not
express any opinion) comply as to form in all material respects with the
requirements of the Act; and each of the Incorporated Documents (except
for the financial statements and the notes thereto and the schedules and
other financial and statistical data included therein, as to which
counsel need not express any opinion) complies as to form in all
material respects with the Exchange Act and the rules and regulations of
the Commission thereunder;
(viii) Although counsel has not undertaken,except as
otherwise indicated in his opinion, to determine independently, and does
not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has participated
in the preparation of the Registration Statement and the Prospectus,
including the contents of all Incorporated Documents, and including
review and discussion of the contents thereof, and nothing has come to
the attention of such counsel that has caused them to believe that the
Registration Statement (including the Incorporated Documents) at the
time the Registration Statement became effective, or the Prospectus, as
of its date and as of the Closing Date, contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that any amendment or supplement to the Prospectus, as of
its date and as of the Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such
counsel need express no opinion with respect to the financial statements
and the notes thereto and the schedules and other financial and
statistical data included in the Registration Statement or the
Prospectus or any Incorporated Document).
In rendering the opinion as aforesaid, counsel may rely upon
an opinion or opinions, each dated the Closing Date, of other counsel
retained by Textron as to laws of any jurisdiction other than the United
States or the State of New York or the General Corporation Law of the
State of Delaware, provided that (1) each such local counsel is
acceptable to the Representatives, (2) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and
substance satisfactory to them and their counsel, and (3) counsel shall
state in their opinion that they believe that they and the Underwriters
are justified in relying thereon. In rendering the opinions, each
counsel may also rely as to matters of
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21
fact on certificates of responsible officers of Textron and public officials.
(f) You shall have received on the Closing Date an opinion of
counsel for the Underwriters, dated the Closing Date and addressed to
you with respect to the matters referred to in clauses (ii) and (viii)
(but only as to captions 3, 4, 5, 7 and 8 and "Underwriting" and "Plan
of Distribution") of the foregoing paragraph (c), clauses (iii), (iv),
(vii) (but only as to the Registration Statement and Prospectus) and
(viii) of the foregoing paragraph (e) and such other related matters as
you may reasonably request.
(g) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof
and the Closing Date from Ernst & Young LLP, independent certified
public accountants, substantially in the forms heretofore approved by
you.
(h) (i) There shall not have been any material increase in
the short-term or long-term debt of the Trust or of Textron and its
consolidated subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); (ii) there shall not have been, since
the respective dates as of which information is given in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement
thereto), any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of
operations of the Trust or of Textron and its subsidiaries taken as a
whole; (ii) neither the Trust nor Textron and its subsidiaries shall
have any liabilities or obligations, direct or contingent (whether or
not in the ordinary course of business), that are material to the Trust
or to Textron and its subsidiaries, taken as a whole other than those
reflected in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); and (iv) all the representations and
warranties of the Trust and Textron contained in this Agreement shall be
true and correct on and as of the date hereof and on and as of the
Closing Date as if made on and as of the Closing Date, and you shall
have received a certificate, dated the Closing Date and signed by the
Regular Trustees of the Trust in the case of the Trust and by the
Executive Vice President and Chief Financial Officer and Executive Vice
President and Treasurer of Textron (or such other officers as are
acceptable to you) in the case of Textron, to the effect set forth in
this Section 8(g) and in Section 8(i) hereof.
(i) There shall not have been any announcement by any
"nationally recognized statistical rating organization", as defined for
purposes of Rule 436(g) under the Act, that (i) it is downgrading its
rating assigned to the Preferred Securities of the Trust or the rating
assigned to the preferred stock or long term
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debt of Textron, or (ii) it is reviewing any of such ratings with a view
to possible downgrading, or with negative implications, or direction not
determined.
(j) The Trust and Textron shall have, at or prior to the
Closing Date, performed or complied in all material respects with any of
their respective agreements herein contained and required to be
performed or complied with by them hereunder at or prior to the Closing
Date.
(k) Prior to the Closing Date, the Preferred Securities shall
have been approved for listing, subject to notice of issuance, on the
New York Stock Exchange.
(l) Each of the Trust and Textron shall have furnished or
caused to be furnished to you such further certificates and documents
customary for transactions similar to those contemplated herein as you
shall have reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Trust
or Textron and delivered to you, as Representatives of the Underwriters,
or to counsel for the Underwriters, shall be deemed a representation and
warranty by the Trust and Textron to each Underwriter as to the
statements made therein.
The several obligations of the Underwriters to purchase
Additional Preferred Securities hereunder are subject to the delivery to
you on the Option Closing Date of such documents as you may reasonably
request with respect to the good standing of the Trust and Textron, to
due authorization and issuance of the Additional Preferred Securities,
the Guarantee and the Junior Subordinated Debentures and other matters
related to the issuance of the Additional Preferred Securities.
9. EXPENSES. Textron agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by
the Trust and Textron of their obligations hereunder: (i) the
preparation, printing (or reproduction), and filing with the Commission
of the registration statement (including financial statements and
exhibits thereto), each Prepricing Prospectus, the Prospectus, each
amendment or supplement to any of them, this Agreement, the Indenture,
the Guarantee and the Statement of Eligibility and Qualification of the
Indenture Trustee, the Institutional Trustee and the Guarantee Trustee;
(ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies
of the registration statement, each Prepricing Prospectus, the
Prospectus, the Incorporated Documents, and all amendments or
supplements to any of them, as may be reasonably requested for use
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23
in connection with the offering and sale of the Preferred Securities; (iii)
the preparation, printing (or reproduction), execution and delivery of
the Preferred Securities, the Indenture, the Junior Subordinated
Debentures and the Guarantee and the preparation, printing,
authentication, issuance and delivery of the Preferred Securities,
including any stamp taxes in connection with the original issuance of
the Preferred Securities; (iv) the printing (or reproduction) and
delivery of this Agreement, the preliminary and supplemental Blue Sky
Memoranda and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Preferred
Securities; (v) the registration of the Preferred Securities under the
Exchange Act and the listing of the Preferred Securities on the New York
Stock Exchange; (vi) the registration or qualification of the Preferred
Securities and the Guarantee for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 5(g) hereof
(including the reasonable fees, expenses and disbursements of counsel
for the Underwriters relating to the preparation, printing (or
reproduction), and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the fees and
expenses of the Indenture Trustee, the Institutional Trustee, the
Guarantee Trustee and the Trustees; (viii) the fees and expenses
associated with obtaining ratings for the Preferred Securities from
nationally recognized statistical rating organizations; (ix) the
transportation and other expenses incurred by or on behalf of
representatives of the Trust and Textron in connection with
presentations to prospective purchasers of the Preferred Securities; and
(x) the fees and expenses of the accountants and counsel (including
local and special counsel) for the Trust and Textron.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
Until such time as this Agreement shall have become effective, it may be
terminated by the Trust and Textron, by notifying you, or by you, as
Representatives of the several Underwriters, by notifying the Trust and
Textron.
If any one or more of the Underwriters shall fail or refuse to
purchase Preferred Securities which it or they are obligated to purchase
hereunder on the Closing Date and the number of Preferred Securities
which such defaulting Underwriter or Underwriters are obligated but fail
or refuse to purchase is not more than one-tenth of the aggregate number
of the Preferred Securities then to be purchased, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the
number set forth opposite its name in Schedule I hereto bears to the
aggregate number of Preferred Securities set forth opposite the names of
all non-defaulting Underwriters or in such other proportion as you may
specify in accordance with Section of the Master Agreement Among
Underwriters of ________________, to purchase the Preferred Securities
which such defaulting Underwriter or Underwriters are obligated, but
failed or refused, to purchase.
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If any Underwriter or Underwriters shall fail or refuse to purchase
Preferred Securities and the aggregate number of Preferred Securities
with respect to which such default occurs is more than one-tenth of the
aggregate number of the Preferred Securities then to be purchased and
arrangements satisfactory to you and to the Trust and Textron for the purchase
of such Preferred Securities by one or more non-defaulting Underwriters or
other party or parties approved by you and the Trust are not made within 36
hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Trust or Textron. In any such
case which does not result in termination of this Agreement, either you or
the Trust and Textron 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 the Prospectus or 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 such default of any such Underwriter under
this Agreement. The term "Underwriter" as used in this Agreement
includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Trust
and Textron, purchases Preferred Securities which a defaulting
Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be
subject to termination in your absolute discretion, without liability on
the part of any Underwriter to the Trust or Textron by notice to the
Trust and Textron, if prior to the Closing Date: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking
activities in New York or Rhode Island shall have been declared by
either federal or state authorities, or (iii) there shall have occurred
any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Preferred
Securities on the terms set forth on the cover page of the Prospectus or
to enforce contracts for the resale of the Preferred Securities by the
Underwriters. Notice of such termination may be given to the Trust and
Textron by telegram, telecopy or telephone and shall be subsequently
confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The
statements set forth in the last paragraph on the cover page, the
stabilization legend on the inside cover page, and the statements in the
first and third paragraphs under the caption "Underwriting"
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25
in any Prepricing Prospectus and in the Prospectus, constitute the only
information furnished by or on behalf of the Underwriters through you as
such information is referred to in Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Trust or Textron, at the office of
the Trust and Textron at 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000,
Attention: Executive Vice President and Associate General Counsel; or (ii) if to
you, as Representatives of the several Underwriters, care of _______________,
Attention: ____________ _____________________.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Trust, the Trustees, Textron, Textron's
directors and officers, and the other controlling persons referred to in
Section 7 hereof and their respective successors and assigns, to the
extent provided herein, and no other person shall acquire or have any
right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this
Agreement shall include a purchaser from any Underwriter of any of the
Preferred Securities in his status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed within the
State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least
one counterpart hereof shall have been executed and delivered on behalf
of each party hereto.
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26
Please confirm that the foregoing correctly sets forth the
agreement among the Trust, Textron and the several Underwriters.
Very truly yours,
TEXTRON CAPITAL _____
By
________________________
___________________, solely as Trustee
and not in his individual capacity
TEXTRON INC.
By
_________________________
Name: ___________________
Title: _____________________________
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
By __________________________
By
__________________________
Name: __________________________
Title: __________________________
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27
SCHEDULE I
TEXTRON CAPITAL _____
Number
of Preferred
Underwriter Securities
----------- ------------
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28
Number
of Preferred
Underwriter Securities
----------- ------------
------------
Total.....
------------
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