EXHIBIT 1.2(b)
TEXTRON INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
Dated: September 15, 1999
From time to time, Textron Inc., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein
by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein
as therein defined.
I.
The Company proposes to issue from time to time (i) senior debt
securities (the "Senior Securities") to be issued pursuant to the
provisions of the Indenture, dated as of September 10, 1999, between the
Company and The Bank of New York, as Trustee, (the "Trustee") as the same
may be from time to time amended or supplemented (the "Indenture"); (ii)
subordinated debt securities (the "Subordinated Securities") to be issued
pursuant to the provisions of the Indenture, and (iii) junior subordinated
securities (the "Junior Subordinated Securities") to be issued pursuant to
the provisions of the Indenture. The term "Securities" means the Senior
Securities, the Subordinated Securities and the Junior Subordinated
Securities. The Securities will have varying designations, maturities,
rates and times of payment of interest, selling prices and redemption
terms.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement including a prospectus relating
to the Securities on Form S-3 (No. 333-84599) and has filed with, or mailed
for filing to, the Commission a prospectus supplement specifically relating
to the Securities offered pursuant to Rule 424 (the "Offered Securities")
under the Securities Act of 1933, as amended (the "Securities Act"). The
term "Registration Statement" means the registration statement as amended
to the date of the Underwriting Agreement. The term "Basic Prospectus"
means the prospectus included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Offered Securities, as filed with,
or mailed for filing to, the Commission pursuant to Rule 424. The term
"preliminary prospectus" means any preliminary form of the Prospectus filed
with the Commission pursuant to Rule 424. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the material, if any, incorporated
by reference therein.
The term "Underwriters' Securities" means the Offered Securities
to be purchased by the Underwriters herein. The term "Contract Securities"
means the Offered Securities, if any, to be purchased pursuant to the
delayed delivery contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company hereby authorizes the
Underwriters to solicit offers to purchase Contract Securities on the terms
and subject to the conditions set forth in the Prospectus pursuant to
delayed delivery contracts substantially in the form of Schedule I attached
hereto ("Delayed Delivery Contracts") but with such changes therein as the
Company may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors approved by the Company and of the types set forth
in the Prospectus. On the Closing Date (as hereinafter defined), the
Company will pay the Managers as compensation, for the accounts of the
Underwriters, the fee set forth in the Underwriting Agreement in respect of
the principal amount of Contract Securities. The Underwriters will not have
any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the Contract Securities shall be deducted
from the Offered Securities to be purchased by the several Underwriters and
the aggregate principal amount of Offered Securities to be purchased by
each Underwriter shall be reduced pro rata in proportion to the principal
amount of Offered Securities set forth opposite each Underwriter's name in
the Underwriting Agreement, except to the extent that the Managers
determine that such reduction shall be otherwise and so advise the Company.
III.
The Company is advised by the Managers that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in
the Managers' judgment is advisable. The terms of the public offering of
the Underwriters' Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by wire
transfer of immediately available funds to an account designated by the
Company, upon delivery to the Managers for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Managers shall request in writing
not less than two full business days prior to the date of delivery. The
time and date of such payment and delivery with respect to the
Underwriters' Securities are herein referred to as the Closing Date.
V.
The several obligations of the Underwriters hereunder are subject
to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the
Commission and there shall have been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken
as a whole, from that set forth in the Prospectus; and the
Managers shall have received, on the Closing Date, a certificate,
dated the Closing Date and signed by an executive officer of the
Company, to the foregoing effect. Such certificate will also
provide that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date. The officer making such certificate may rely upon the best
of his knowledge as to proceedings pending or threatened;
(ii) 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 any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(iii) there shall not have occurred any change in the
condition, financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus, that, in the judgment of
the Managers, is material and adverse and that makes it, in the
judgment of the Managers, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Managers shall have received on the Closing Date an
opinion of counsel for the Company identified in Exhibit A hereto, dated
the Closing Date, to the effect set forth in Exhibit A.
(c) The Managers shall have received on the Closing Date an
opinion of counsel for the Underwriters identified in Exhibit B hereto,
dated the Closing Date, to the effect set forth in Exhibit B.
(d) The Managers shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Managers,
from Ernst & Young, independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Managers, without charge, four signed copies of
the Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Managers may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents filed by the Company with the Commission subsequent to the date
of the Basic Prospectus, pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), which are deemed to be incorporated by
reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Securities, to furnish the
Managers a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities, as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense, to
the Underwriters, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law.
(d) To qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Managers shall
reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Managers may designate.
(e) To make generally available to the Company's security holders
as soon as practicable an earnings statement covering a twelve-month period
beginning after the date of the Underwriting Agreement, which shall satisfy
the provisions of Section 11(a) of the Securities Act and the applicable
rules and regulations thereunder.
(f) The Company will, whether or not any sale of the Offered
Securities is consummated, pay all expenses incident to the performance of
its obligations under this Agreement, including the fees and disbursements
of its accountants and counsel, the cost of printing and delivery of the
Registration Statement, any preliminary prospectus, the Prospectus, all
amendments thereof and supplements thereto, the Indenture, this Agreement
and all other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Offered Securities, the fees and
disbursements, including fees of counsel, incurred in connection with the
qualification of the Offered Securities for sale and determination of
eligibility for investment of the Offered Securities under the securities
or Blue Sky laws of each such jurisdiction as the Agents may reasonably
designate, the fees and disbursements of the Trustee and the fees of any
agency that rates the Offered Securities, the cost of providing any CUSIP
or other identification for the notes, and the fees and expenses of any
depository for the Offered Securities.
(g) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Offered Securities, without the prior
written consent of the Managers.
VII.
The Company represents and warrants to each Underwriter that:
(a) As of the date hereof, when any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Prospectus is filed with the Commission and at the date
of delivery by the Company of the Offered Securities sold hereunder (the
"Closing Date"), (i) the Registration Statement, as amended as of any such
time, and the Prospectus as supplemented as of any such time, and the
Indenture will comply in all material respects with the applicable
requirements of the Securities Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the Exchange Act and the respective
rules thereunder and (ii) neither the Registration Statement, as amended as
of any such time, nor the Prospectus as supplemented as of any such time,
will contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; provided that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of such Manager
specifically for use in connection with the preparation of the Registration
Statement and the Prospectus.
(b) There has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(c) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly authorized
by the Company, and this Agreement has been duly executed and delivered by
the Company.
(d) The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company
enforceable in accordance with its 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.
(e) The Offered Securities have been duly authorized and, when
executed by the Company, authenticated by the Trustee and issued in
accordance with the Indenture and delivered pursuant to the provisions of
this Agreement against payment therefor as described in the Registration
Statement and the Prospectus, will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforceability 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 except as rights of acceleration and
the availability of equitable remedies may be limited by equitable
principles of general applicability and except further as enforcement
thereof may be limited by (x) requirements that a claim with respect to any
Offered Securities denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (y) governmental authority to limit, delay or
prohibit the making of payments outside the United States.
(f) The Company 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
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 the Company and
its subsidiaries taken as a whole.
(g) Each of Xxxx Helicopter Textron Inc., Textron Financial
Corporation, Textron Automotive Company Inc. and The Cessna Aircraft
Company (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 the Company and its subsidiaries taken as a whole.
Except as disclosed in the Registration Statement and the Prospectus, the
Company 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.
(h) The execution and delivery of this Agreement and the Indenture
by the Company and the consummation of the transactions contemplated herein
and therein will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any other
agreement or instrument binding upon the Company or any of the Company's
Significant Subsidiaries or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company 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 Company 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 Company
of its obligations under this Agreement or the Indenture, and the
consummation of the transactions contemplated hereby, except such as are
required pursuant to state securities or Blue Sky Laws.
(i) The statements under the captions "Description of Debt
Securities", Description of the Notes", "Underwriting" and "Plan of
Distribution" in the Prospectus insofar as they constitute a summary of
this Agreement, the Indenture and the Notes, fairly present the information
called for by Form S-3 with respect to such documents.
(j) The statements included under the caption "Legal Proceedings"
in the Company's Annual Report on Form 10-K insofar as they describe
statements of law or legal conclusions are accurate and fairly present the
information required to be shown therein as of the date of filing of such
report with the Commission.
VIII.
The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
caused by any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any preliminary prospectus or
the Prospectus (if used within the period set forth in paragraph (c) of
Article VI hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission
based upon information furnished in writing to the Company by any
Underwriter expressly for use therein.
Each Underwriter agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement
and any person controlling the Company to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
information relating to such Underwriter furnished in writing by such
Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such person
(the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or relating
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that all such fees and expenses shall
be reimbursed as they are incurred. Such firm shall be designated in
writing by the Managers in the case of parties indemnified pursuant to the
second preceding paragraph and by the Company in the case of parties
indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement
of any proceeding in respect of which any indemnified party is a party
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matters
of such proceeding.
If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under the second or third paragraphs
hereof or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other in connection with the
offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters
in respect thereof. The relative fault of the Company on the one hand and
of the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Article VIII were determined
by pro rata allocation or by any other method of allocation which does not
take account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Article VIII, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered
Securities underwritten and distributed to the public by such Underwriter
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Article VIII are several, in
proportion to the respective principal amounts of Offered Securities
purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this
Article VIII and the representations and warranties of the Company in this
Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by any
Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors or officers or
any person controlling the Company and (iii) acceptance of and payment for
any of the Offered Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Managers, by notice given to the Company, if (a) after
the execution and delivery of the Underwriting Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange,
the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal
or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis that, in the judgment of the Managers, is material
and adverse and (b) in the case of any of the events specified in clauses
(a)(i) through (iv), such event, singly or together with any other such
event, makes it, in the judgment of the Managers, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase the Offered Securities which it or they have
agreed to purchase hereunder, and the aggregate principal amount of the
Offered Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Offered Securities, the other
Underwriters shall be obligated severally in the proportions which the
amounts of the Offered Securities set forth opposite their names in the
Underwriting Agreement bear to the aggregate principal amount of the
Offered Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase
the Offered Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase; provided that in no event shall
the principal amount of the Offered Securities which any Underwriter has
agreed to purchase hereunder be increased pursuant to this Article IX by an
amount in excess of one-ninth of such principal amount of the Offered
Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase the Offered Securities which it or they agreed to purchase
hereunder and the aggregate principal amount of the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is more than one-tenth of the aggregate principal
amount of the Offered Securities, and arrangements satisfactory to you and
the Company for the purchase of such Offered Securities are not made within
36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or of the Company.
In any such case either the Managers or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph or any such termination
shall not relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
X.
If this Agreement shall be terminated by the Underwriters or any
of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement,
with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred
by such Underwriters in connection with the Offered Securities.
This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
SCHEDULE I
DELAYED DELIVERY CONTRACT
[insert date]
Dear Sirs:
The undersigned hereby agrees to purchase from Textron Inc., a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned $ principal amount of the Company's [state title of issue] (the
"Securities"), offered by the Company's Prospectus dated ___________,
______ and Prospectus Supplement dated ____________, _____, receipt of
copies of which are hereby acknowledged, at a purchase price of
_____________ of the principal amount thereof plus accrued interest and on
the further terms and conditions set forth in this contract. The
undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
Delivery Date Principal Amount Plus Accrued Interest From:
------------- ---------------- ---------------------------
_________________ $_________________ _________________
_________________ $_________________ _________________
_________________ $_________________ _________________
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company by wire
transfer of immediately available funds to an account designated by the
Company at 10:00 A.M. (New York time) on the Delivery Date, upon delivery
to the undersigned of the Securities to be purchased by the undersigned on
the Delivery Date, in such denominations and registered in such names as
the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the
undersigned shall not at the time of delivery be prohibited under the laws
of the jurisdiction to which the undersigned is subject and (2) the Company
shall have sold, and delivery shall have taken place to the underwriters
(the "Underwriters") named in the Prospectus Supplement referred to above
of, such part of the Securities as is to be sold to them. Promptly after
completion of sale and delivery to the Underwriters, the Company will mail
or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one
of the counterparts hereof to the undersigned at its address set forth
below. This will become a binding contract, as of the date first above
written, between the Company and the undersigned when such counterpart is
so mailed or delivered.
This contract shall be governed by and construed in accordance
with the laws of the State of New York.
Yours very truly,
-----------------------------
(Purchaser)
By:
------------------------------
------------------------------
(Title)
------------------------------
(Address)
Accepted:
TEXTRON INC.
By:
------------------------
Title:
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please Print).
Name Telephone No. Department
(Including Area Code)
_________________ _________________ _________________
_________________ _________________ _________________
_________________ _________________ _________________
_________________ _________________ _________________
_________________ _________________ _________________
EXHIBIT A
OPINION OF ASSOCIATE GENERAL COUNSEL OF THE COMPANY
The opinion of Associate General Counsel of the Company,
to be delivered pursuant to Article V, paragraph (b) of the document
entitled Textron Inc. Underwriting Agreement Standard Provisions (Debt)
shall be to the effect that:
(a) the Company 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 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 the Company and its subsidiaries taken as
a whole,
(b) Each of Xxxx Helicopter Textron Inc., Textron
Financial Corporation, Textron Automotive Company Inc. and The
Cessna Aircraft Company (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 the Company and
its subsidiaries taken as a whole,
(c) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company enforceable against the Company in accordance with its
terms, except as (1) the 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, and has been duly qualified
under the Trust Indenture Act,
(d) the Offered 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 Underwriters in accordance with the Underwriting Agreement
or by institutional investors, if any, pursuant to Delayed
Delivery Contracts, will constitute valid and legally binding
obligations of the Company enforceable against the Company 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,
(e) the execution and delivery of, and the performance by
the Company of its obligations under, the Underwriting Agreement
have been duly authorized by the Company and the Underwriting
Agreement has been duly executed and delivered by the Company,
(f) the execution and delivery of, and the performance by
the Company of its obligations under, the Delayed Delivery
Contracts, if any, have been duly authorized by the Company and
the Delayed Delivery Contracts, if any, have been duly executed
and delivered by the Company, and are valid and binding agreements
of the Company enforceable in accordance with their respective
terms, 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,
(g) the execution and delivery of the Underwriting
Agreement and the Indenture by the Company and the consummation of
the transactions contemplated therein will not contravene any
provision of applicable law (except as rights to indemnity and
contribution under the Underwriting Agreement may be limited by
applicable law) or the certificate of incorporation or by-laws of
the Company or to such counsel's knowledge after due inquiry, any
other agreement or instrument binding upon the Company or any of
the Company's Significant Subsidiaries or any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company 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 Company 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 Company of its obligations under the
Underwriting Agreement or the Indenture, and the consummation of
the transactions contemplated thereby, except such as are required
pursuant to state securities or Blue Sky Laws,
(h) the statements in the Prospectus under "Description
of Debt Securities", "Description of the Notes", "Plan of
Distribution" and "Underwriting", insofar as such statements
constitute a summary of the Underwriting Agreement, the Indenture
and the Offered Securities, fairly present the information called
for by Form S-3 under the Securities Act with respect to such
documents,
(i) the statements included under the caption "Legal
Proceedings" in the Company's Annual Report on Form 10-K, insofar
as they describe statements of law or legal conclusions are
accurate and fairly present the information required to be shown,
as of the date of filing of such report with the Commission, and
(j) such counsel (1) is of the opinion that each document
filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus (except as to financial statements contained
therein and the notes thereto and the schedules and the other
financial and statistical data included therein, as to which such
counsel need not express any opinion) complied when so filed as to
form in all material respects with the Exchange Act and the rules
and regulations thereunder, (2) has no reason to believe that
(except for the financial statements contained therein and the
notes thereto and the schedules and other financial and
statistical data included therein, as to which such counsel need
not express any belief) any part of the registration statement
(including the documents incorporated by reference therein), filed
with the Commission pursuant to the Securities Act relating to the
Securities, when such part became effective, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus, as amended or supplemented,
if applicable, (except as to (x) financial statements contained
therein 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 and (y) the information, if
any, set forth in the Prospectus under the caption "United States
Income Tax Considerations" as to which such counsel need not
express any opinion) comply as to form in all material respects
with the Securities Act and the rules and regulations thereunder
and (4) has no reason to believe that (except for (x) the
financial statements contained therein and the notes thereto and
the schedules and other financial and statistical data included
therein, as to which counsel need not express any belief and (y)
the information, if any, set forth in the Prospectus under the
caption "United States Income Tax Considerations" as to which such
counsel need not express any belief) the Registration Statement
and the Prospectus on the date of the Underwriting Agreement did
not, and the Prospectus, as amended or supplemented, if
applicable, on the Closing Date does not, contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that such counsel may state that his opinion and belief
is based upon his participation in the preparation of the
Registration Statement and the Prospectus and any amendment and
supplements thereto (including the documents incorporated by
reference therein) and review and discussion of the contents
thereof (including the documents incorporated by reference
therein), but is without independent check or verification except
as specified.
Terms capitalized herein and not otherwise defined shall
have the meanings assigned to them in the Textron Inc.
Underwriting Agreement Standard Provisions (Debt). In rendering
such opinion, such counsel may rely as to matters of fact, to the
extent he deems proper, on certificates of responsible officers of
the Company and public officials.
EXHIBIT B
FORM OF OPINION OF COUNSEL FOR THE UNDERWRITERS
The opinion of ______________, counsel for the
Underwriters, to be delivered pursuant to Article V, paragraph (c) of the
document entitled Textron Inc. Underwriting Agreement Standard Provisions
(Debt) shall be to the effect that:
(a) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company enforceable in accordance with its terms, except as
(1) the 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, and has been duly qualified
under the Trust Indenture Act,
(b) the Offered Securities, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters or by
institutional investors, if any, pursuant to Delayed Delivery
Contracts, 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) the 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,
(c) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company,
(d) the Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company and are
valid and binding agreements of the Company enforceable in
accordance with their respective terms, except as (1) the
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,
(e) the statements in the Prospectus under "Description
of Debt Securities", "Description of the Notes", "Plan of
Distribution" and "Underwriting", insofar as such statements
constitute a summary of the Underwriting Agreement, the Indenture
and the Offered Securities, fairly present the information called
for by Form S-3 under the Securities Act with respect to such
documents, and
(f) such counsel (1) is of the opinion that the
Registration Statement and Prospectus, as amended or supplemented,
if applicable (except as to financial statements contained
therein, as to which such counsel need not express any opinion),
comply as to form in all material respects with the Securities Act
and the applicable rules and regulations thereunder and (2)
believes that (except for the financial statements contained
therein, as to which such counsel need not express any belief) the
Registration Statement and the Prospectus on the date of the
Underwriting Agreement did not, and the Prospectus, as amended or
supplemented, if applicable, on the Closing Date does not, contain
any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided that such counsel may state that their
opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and
any amendments and supplements thereto (other than the documents
incorporated by reference therein) and review and discussion of
the contents thereof (including the documents incorporated by
reference therein), but is without independent check or
verification except as specified.
Terms capitalized herein and not otherwise defined shall
have the meanings assigned to them in the Textron Inc. Underwriting
Agreement Standard Provisions (Debt).