Exhibit 1
HONEYWELL INTERNATIONAL INC.
7.50% Notes Due March 1, 2010
UNDERWRITING AGREEMENT
New York, New York
To the Representatives named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Honeywell International Inc., a Delaware corporation
(the "Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting
as representatives (the "Representatives"), the aggregate principal
amount set forth in Schedule II hereto of its debt securities
identified on Schedule I hereto (the "Purchased Securities"), to be
issued under an indenture dated as of October 1, 1985, as supplemented
by the First SupplementaL Identure thereto dated as of February 1, 1991
and the Second Supplemental Indenture dated as of November 1, 1997,
each between the Company and The Chase Manhattan Bank, as
Trustee (the "Trustee") (as so supplemented, the "Indenture").
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company presently meets, and has met at all times
since the initial filing referred to below,the requirements for use
of Form S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") one or more
registration statements on such Form (the file number or file numbers of
which are set forth in Schedule I hereto), which have become effective,
for the registration under the Act of the Purchased Securities. Such
registration statement or registration statements, as amended at the date
of the Agreement, meet the requirements set forth in Rule 415(a)(1)(x)
under the Act and comply in all other material respects with said Rule.
The Company proposes to file with the Commission pursuant to Rule 424 under
the Act a supplement to the form of prospectus included in the most
recent such registration statement relating to the Purchased Securities
and the plan of distribution thereof and has previously advised you of
all further information (financial and other) with respect to the Company
to be set forth therein. Such registration statement or registration
statements, including the exhibits thereto, as amended at the date of this
Agreement, is (or, if more than one, are collectively) hereinafter called
the "Registration Statement"; such prospectus in the form in which it appears
in the Registration Statement is hereinafter called the "Basic Prospectus";
and such supplemented form of prospectus, in the form in which it shall be
first filed with the Commission pursuant to Rule 424 (including the
Basic Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has heretofore
been filed pursuant to Rule 424 is hereinafter called the "Preliminary Final
Prospectus." Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934 (the "Exchange Act") on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 under the Act, when, prior to the Closing Date
(as hereinafter defined), 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 Final
Prospectus is filed with the Commission and at the Closing Date,
(i) the Registration Statement, as amended as of any such time,
the Final Prospectus, as amended or supplemented as of any such time
and the Indenture will comply in all material respects with the applicable
requirements of the Act, the Exchange Act, and the Trust Indenture Act
of 1939 (the "Trust Indenture Act") and the respective rules thereunder
and
(ii) neither the Registration Statement, as amended as of any such
time, nor the Final Prospectus, as amended or 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, however,
that the Company makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) of the Trustee
under the Trust Indenture Act or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in the Registration
Statement or the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of Purchased Securities set forth
opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Purchased Securities shall be made at the office, on the date and at the time
specified in Schedule I hereto (or such later date not later than five business
days after such specified date as the Representatives shall designate),
which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein called the "Closing Date").
Delivery of a global certificate (the "Global Note") representing the
Purchased Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to
or upon the order of the Company by wire transfer of same-day funds. The Global
Note to be delivered to the Representatives shall be deposited with and
registered in the name of Cede & Co., as nominee of the Depository Trust
Company ("DTC"). The interests of the owners of the Notes will be
represented by book entries on the records of DTC and participating members
thereof. Notes in definitive form shall be available only under limited
circumstances.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Purchased
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or supplement
to which you reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus to be mailed to the Commission for filing
pursuant to Rule 424 by first class, certified or registered mail or will
cause the Final Prospectus to be filed with the Commission pursuant to said
Rule. The Company will promptly advise the Representatives
(i) when the Final Prospectus shall have been mailed to the
Commission for filing or filed with the Commission pursuant to Rule 424;
(ii) when any amendment to the Registration Statement relating to the
Purchased Securities shall have become effective,
(iii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and
(v) of the receipt by the Company of any notification with respect to
the suspension or the qualification of the Purchased Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a Prospectus relating to the Purchased
Securities is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
(i) prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance and
(ii) supply any supplemented prospectus to you in such quantities
as you may reasonably request.
(c) The Company will make generally available to its securities
holders and to the Representatives as soon as practicable, but not later than
45 days after the end of the 12-month period beginning at the end of the
current fiscal quarter of the Company, an earnings statement (which need
not be audited) of the Company and its subsidiaries, covering such 12-month
period, which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) Subject to the provisions of Section 4A(b), the Company will
arrange for the qualification of the Purchased Securities for sale under the
laws of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Purchased Securities and will arrange for the
determination of the legality of the Purchased Securities for purchase by
institutional investors.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer, sell or contract
to sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any debt securities or warrants covered by the Registration
Statement or any other registration statement filed under the Act.
▇▇. ▇▇▇▇▇▇▇▇▇▇ Listing. The Company confirms that it has made or
caused to be made on its behalf an application for the Securities to be
listed on the Luxembourg Stock Exchange (the "Exchange"). The Company will
endeavor promptly to obtain such listing and for such purpose the Company
agrees to deliver to the Exchange copies of the Preliminary Final Prospectus
and the Final Prospectus and such other documents, information and undertakings
as may be required for the purpose of obtaining and maintaining such listing.
The Company shall use its best efforts to maintain the listing of the Purchased
Securities on the Exchange for so long as any Purchased Securities are
outstanding, unless otherwise agreed to by the Representatives.
Each Underwriter, severally and not jointly, represents
and agrees:
(a) that:
(i) it has not offered or sold and will not offer or sell any
Purchased Securities to persons in the United Kingdom prior to the expiry
of the period of six months from the issue date of the Purchased
Securities except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purpose of their business or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(ii) it has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the
issue of the Purchased Securities to a person who is of a kind described
in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom
such document may otherwise lawfully be issued or passed on;
(iii) it has complied and will comply with all applicable provisions of
the Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in
relation to any Purchased Securities in, from or otherwise involving the
United Kingdom; and
(iv) it will not offer or sell any Purchased Securities directly or
indirectly in Japan or to, or for the benefit of any Japanese person or to
others, for re-offering or re-sale directly or indirectly in Japan or
to an Japanese person except under circumstances which will result in
compliance with all applicable laws, regulations and guidelines
promulgated by the relevant governmental and regulatory authorities in effect
at the relevant time. For purposes of this paragraph, "Japanese person"
shall mean any person resident in Japan, including any corporation or
other entity organized under the laws of Japan.
(b) Except for registration under the Securities Act of 1933, as
amended, and qualification of the Purchased Securities for offer and sale,
and the determination of their eligibility for investment, under the
applicable securities laws of such jurisdictions within the United States
as the Representatives may designate in writing to the Company, that no
action has been or will be taken by such Underwriter or by the Company
that would permit the offer or sale of the Purchased Securities or any
interest therein or possession or distribution of the Preliminary Final
Prospectus or the Final Prospectus or any amendment thereto or any other
offering material relating to the Purchased Securities in any jurisdiction
where action for that purpose is required. Without prejudice to paragraph
(a) above, such Underwriter has not and will not directly or indirectly
offer, sell or deliver any Purchased Securities or distribute the
Preliminary Final Prospectus, the Final Prospectus or any other offering
material relating to the Purchased Securities in or from any jurisdiction
except under circumstances that will result in compliance with the
applicable laws and regulations thereof and will not impose any
obligations on the Company, except as provided herein. Subject as provided
above, each Underwriter shall, if required by applicable law, furnish to
each person to whom it offers, sells or delivers the Purchased Securities
a copy of the Final Prospectus. No Underwriter is authorized to give any
information or to make any representation not contained in the Final
Prospectus, or prior to the preparation of the Final Prospectus, the
Preliminary Final Prospectus, in connection with the offer and sale of the
Purchased Securities.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Purchased Securities shall
be subject to the accuracy of the representations and warranties on the part
of the Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to
the Closing Date (including the filing of any document incorporated by
reference therein) and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and
to the following additional conditions:
(a) No stop order suspending in whole or in part the effectiveness
of the Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or mailed for
filing with the Commission not later than 5:30 P.M., New York City time,
on the business day following the date hereof.
(b) The Company shall have furnished to the Representatives the
opinion of its General Counsel, or of J. ▇▇▇▇▇▇ ▇▇▇▇▇, Esq., Assistant
General Counsel, Corporate and Finance, of the Company, or such other counsel
to the Company reasonably acceptable to the Representatives, dated the Closing
Date, to the effect that:
(i) each of the Company and each subsidiary of the Company that
is a "significant subsidiary" as defined in Rule 405 of Regulation C
promulgated under the Act (each a "Significant Subsidiary" and
collectively the "Significant Subsidiaries") has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of the jurisdiction in which it is chartered or organized with full corporate
power and authority to own its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or leases
material properties or conducts material business;
(ii) all the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the Significant
Subsidiaries (except for directors' qualifying shares) are owned by the
Company either directly or through wholly-owned subsidiaries free and
clear of any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims, liens or
encumbrances;
(iii) the Company's authorized equity capitalization is as set forth
in the Final Prospectus; the Purchased Securities conform to the
description thereof contained in the Final Prospectus; and, if the
Purchased Securities are to be listed on the New York Stock Exchange,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Purchased Securities with the New York Stock
Exchange and such counsel has no reason to believe that the Purchased
Securities will not be authorized for listing, subject to official notice
of issuance and evidence of satisfactory distribution;
(iv) the Indenture has been duly authorized, executed and delivered;
the Indenture has been duly qualified under the Trust Indenture Act; the
Indenture constitutes a valid and legally binding instrument enforceable
against the Company in accordance with its terms, except that such
enforcement may be subject to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally
and general principles of equity from time to time in effect; and the
Purchased Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this Agreement,
will constitute valid and legally binding obligations of the Company entitled
to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not described or filed as
required; and the statements included or incorporated in the Final
Prospectus describing any legal proceedings or material contracts or
agreements relating to the Company and its subsidiaries fairly summarize
the matters therein described;
(vi) the Registration Statement and any amendments thereto have
become effective under the Act; the Final Prospectus has been filed in
the manner and within the time period required by Rule 424; to the best
knowledge of such counsel, no stop order suspending in whole or in
part the effectiveness of the Registration Statement, as amended, has been
issued, no proceedings for that purpose have been instituted or threatened,
and the Registration Statement, the Final Prospectus and each amendment
thereof or supplement thereto as of their respective effective or issue dates
(other than the financial statements and other financial information
contained therein as to which such counsel need express no opinion) comply
as to form in all material respects with the applicable requirements of the
Act and the Exchange Act, and the respective rules thereunder; and such
counsel has no reason to believe that each registration statement included
in the Registration Statement, or any amendment thereof, at the time it
became effective and at the date of this Agreement, contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or supplemented,
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(vii) this agreement has been duly authorized, executed and delivered
by the Company;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained under the
Act and such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of Purchased Securities by
the Underwriters and such other approvals (specified in such opinion) as have
been obtained;
(ix) neither the issue and sale of the Purchased Securities, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation of, or constitute a default under the certificate of incorporation
or by-laws of the Company or the terms of any indenture or other agreement or
instrument known to such counsel to which the Company or any of its
Significant Subsidiaries is a party or bound, or any order of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its Significant Subsidiaries;
and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdictions other than the
States of Delaware and New York or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent deemed proper,
on certificates of responsible officers of the Company and public officials.
(c) The Representatives shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Purchased Securities, the
Indenture, the Registration Statement, the Final Prospectus and other related
matters as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company signed by the Chief Financial Officer, the Treasurer,
any Assistant Treasurer or the Controller of the Company, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending in whole or in part the effectiveness of
the Registration Statement, as amended, has been issued and no proceedings
for that purpose have been instituted or, to their knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Final Prospectus, there has been no material adverse change in the
condition (financial or other), earnings, business or properties of
the Company and its Significant Subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP and Deloitte &
Touche LLP shall have furnished to the Representatives letters (which may refer
to letters previously delivered to one or more of the Representatives), dated as
of the Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder, that the response to Item 10 of the Registration
Statement is correct insofar as it relates to them and stating in effect that:
(i) in their opinion the audited financial statements, including
financial statement schedules, if any, incorporated in the Registration
Statement and the Final Prospectus audited by them comply as to form in
all material respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and regulations with
respect to registration statements on Form S-3;
(ii) as indicated in their reports, they have made reviews in accordance
with standards established by the American Institute of Certified Public
Accountants of any unaudited interim consolidated data incorporated in
the Registration Statement and the Final Prospectus;
(iii) on the basis of certain specified procedures (but not an audit in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter consisting of a reading of the minutes of the meetings
of the stockholders, directors and the retirement plans and audit committees
of the Company through a specified date not more than five business days
prior to the date of delivery of such letter; a reading of any unaudited
interim consolidated financial data of the Company incorporated in the
Registration Statement and the Final Prospectus and the latest consolidated
financial data made available by the Company; and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries, nothing came to their
attention which caused them to believe that:
(1) any unaudited interim financial data included or
incorporated in the Registration Statement and the Final
Prospectus do not comply in all material respects with the
applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the published rules and regulations
thereunder or are not stated on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and
the Final Prospectus; or
(2) with respect to the period subsequent to the date of
the most recent financial statements incorporated in the
Registration Statement and the Final Prospectus, there were
any changes, at a specified date not more than five business
days prior to the date of the letter, in the long-term debt
of the Company and its subsidiaries or capital stock of the
Company or decreases in the shareholders' equity of the
Company and its subsidiaries as compared with the amounts
shown on the most recent consolidated balance sheet included
or incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most
recent financial statements incorporated in the Registration
Statement and the Final Prospectus to such specified date,
if such information is available for such period, there were
any decreases, as compared with the corresponding period in
the preceding year, in net sales, in income from continuing
operations before taxes on income, income from continuing
operations, net income, earnings applicable to common stock
or earnings per share of common stock, of the Company and
its consolidated subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives;
and
(3) the letter shall also state that they have carried out
certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by
reference in the Registration Statement and the Final
Prospectus and which are specified by the Representatives,
and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall not
have been
(i) any change or decrease specified in the letter or letters referred
to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change,
in or affecting the business or properties of the Company and its Significant
Subsidiaries the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or the delivery of the Purchased Securities as contemplated by the
Registration Statement and the Final Prospectus.
(g) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the rating of any of the Company's debt securities by
any "nationally reorganized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents as
the Representatives may reasonably request. If any of the conditions specified
in this Section 5 shall not have been fulfilled in all material respects when
and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be delivered
at the office of Cravath, Swaine & ▇▇▇▇▇, counsel for the Underwriters, at
Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the Closing Date.
6. Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Purchased
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Final Prospectus and the Final Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to
the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among Underwriters,
this Agreement, the Indenture, the blue sky and legal investment memoranda
and any other documents in connection with the offering, purchase, sale and
delivery of the Purchased Securities;
(iii) all expenses in connection with the qualification of the Purchased
Securities for offering and sale under state securities laws as provided
in Section 4(e) hereof, including the fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection
with the blue sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the
Purchased Securities;
(v) the filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Purchased Securities;
(vi) the cost of preparing the Purchased Securities;
(vii) the fees and expenses of the Trustee and any agent of the Trustee,
and the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Purchased Securities; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
this Section.
It is understood, however, that, except as provided in this Section,
Section 7 and Section 8 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Purchased Securities by them, and any advertising expenses
connected with any offers they may make.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Purchased Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Purchased Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or State statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement included in the Registration
Statement for the registration of the Purchased Securities as originally filed
or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and grees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that
(i) the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
use therein, and
(ii) such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) to the extent that
any such loss, claim, damage or liability of such Underwriter results from
the fact that such Underwriter sold Purchased Securities to a person to
whom there was not sent or given a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the
sale of such Purchased Securities to such person in any case where such
delivery is required by the Act if the Company has previously furnished
copies thereof to such Underwriter. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, officers, employees and agents,
each of its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter,but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for use in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the second sentence of the last paragraph on
the cover page, and in the sentences related to concessions and reallowances
in the fourth paragraph, the fifth paragraph and the sixth paragraph under the
heading "Underwriting" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished by or on behalf of the
several Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of such action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party will
not relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election to
so assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more
than one separate counsel, approved by the Representatives in the case of
paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason held
by a court to be unavailable on grounds of policy or otherwise, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending the same) to which the Company and
one or more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage
that the underwriting discount bears to the sum of such discount and the
purchase price of the Purchased Securities specified in Schedule I hereto and
the Company is responsible for the balance; provided, however, that (y) in no
case shall any Underwriter (except as may be provided in any agreement among
Underwriters relating to the offering of the Purchased Securities) be
responsible for any amount in excess of the underwriting discount applicable to
the Purchased Securities purchased by such Underwriter hereunder and (z) 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. For purposes of this Section
8, each person who controls an Underwriter within the meaning of either the Act
or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to
clause (z) of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify
such party or parties from whom contribution may be sought of the commencement
thereof, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Purchased Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Purchased Securities set forth opposite their names in Schedule II hereto
bears to the aggregate amount of Purchased Securities set forth opposite the
names of all the remaining Underwriters) the Purchased Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Purchased
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Purchased Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Purchased Securities, and if such nondefaulting Underwriters do not purchase
all the Purchased Securities, this Agreement will terminate without liability
to any nondefaulting Underwriter or the Company. In the event of a default by
any Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Areement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives by notice given to the Company
prior to delivery of and payment for the Purchased Securities if prior to
such time
(i) trading in the Company's Common Stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange,
(ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or
(iii) there shall have occurred any outbreak or material escalation of
major hostilities in which the United States is involved, or a declaration
of war by the Congress of the United States, or other substantial
national or international calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the Purchased Securities as
contemplated by the Final Prospectus.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Purchased Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Authority of Representatives; Notice. In all dealings hereunder,
you shall act on behalf of each of the Underwriters, and the parties hereto
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made by you jointly or by ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. on behalf of you as the Representatives.
All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or
telecopied and confirmed to them, at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telephone: (▇▇▇) ▇▇▇-▇▇▇▇; telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇) Attention: General Counsel's Office; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(telephone: ▇▇▇-▇▇▇-▇▇▇▇; telecopy: 973-455-5189) Attention:
Assistant Treasurer.
13. Successors. This Agreement will inure to theb enefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have rights or obligations hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York, without regard to the
choice of laws provisions thereof.
[SIGNATURES ON NEXT PAGE]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
HONEYWELL INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
As Representatives of the Several
Underwriters named in Schedule II
attached hereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Director
SCHEDULE I
Underwriting Agreement dated February 24, 2000
Registration Statement Nos. 33-64245 and 333-86157
Representatives:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Closing Date, Time and Location: March 1, 2000, 11:00 a.m.,
at the offices of Cravath, Swaine & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Sale, Purchase Price and Description of Purchased Debt
Securities:
Title: 7.50% Notes Due March 1, 2010
Principal amount and currency: U.S. $1,000,000,000
Purchase price: 99.203% of principal amount, plus
accrued interest, if any, from March 1, 2000
Interest rate: 7.50%
Interest payment dates: Semiannually on March 1 and
September 1, commencing September 1, 2000, to registered
holders at the close of business on the February 15 or
August 15 that precedes the date on which interest will be
paid.
Maturity: March 1, 2010
Sinking fund provisions: None
Bearer or registered: Registered book-entry form in
denominations of $1,000 and any integral multiple of $1,000.
Other provisions: As set forth in the Prospectus
Supplement dated February 24, 2000
Tax Redemption
The Notes may be redeemed as a whole, at the Company's option at
any time prior to maturity, upon the giving of a notice of redemption as
described below, if the Company determines that, as a result of any change in
or amendment to the laws (or any regulations or rulings promulgated
thereunder) of the United States or of any political subdivision or
taxing authority thereof or therein, or any change in official position
regarding the application or interpretation of such laws, regulations or
rulings, which change or amendment becomes effective on or after February
24, 2000, the Company has or will become obligated to pay additional amounts
as described under ' -- Payment of Additional Amounts' below with respect to
the Notes for reasons outside its control and after taking reasonable
measures to avoid such obligation. The Notes will be redeemed at a redemption
price equal to 100% of the principal amount thereof, together with accrued
interest to the date fixed for redemption. Prior to the giving of any notice of
redemption pursuant to this paragraph, the Company will deliver to the Trustee:
(a) a certificate stating that the Company is entitled to effect such
redemption and setting forth a statement of facts showing that the
conditions precedent to its right to so redeem have occurred, and
(b) an opinion of independent counsel satisfactory to the Trustee to
the effect that the Company has or will become obligated to pay such
additional amounts for the reasons described above;
provided that no such notice of redemption shall be given earlier than 60
days prior to the earliest date on which the Company would be obligated to
pay such additional amounts if a payment in respect of the Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption, which date and the applicable
redemption price will be specified in the notice.
Payment of Additional Amounts
The Company will, subject to certain exceptions and limitations set
forth below, pay such additional amounts to the beneficial owner of any
Note who is a United States alien as may be necessary in order that every
net payment of principal of and interest on such Note and any other amounts
payable on such Note, after withholding for or on account of any present or
future tax, assessment or governmental charge imposed upon or as a result of
such payment by the United States (or any political subdivision or taxing
authority thereof or therein), will not be less than the amount provided for
in such Note to be then due and payable. The Company will not, however, be
required to make any such payment of additional amounts to any beneficial owner
for or on account of:
(a) any such tax, assessment or other governmental charge that would
not have been so imposed but for the existence of any present or former
connection between such beneficial owner (or between a fiduciary, settlor,
beneficiary, member or shareholder of such beneficial owner, if such
beneficial owner is an estate, a trust, a partnership or a corporation)
and the United States and its possessions, including, without limitation,
such beneficial owner (or such fiduciary, settlor, beneficiary, member
or shareholder) being or having been a citizen or resident thereof or
being or having been engaged in a trade or business or present therein or
having, or having had, a permanent establishment therein;
(b) any estate, inheritance, gift, sales, transfer or personal property
tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by reason
of such beneficial owner's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation that accumulates earnings to avoid
United States federal income tax;
(d) any tax, assessment or other governmental charge that is payable
otherwise than by withholding from payments on or in respect of any Note;
(e) any tax, assessment or other governmental charge that would not
have been imposed but for the failure to comply with certification,
information or other reporting requirements concerning the nationality,
residence or identity of the beneficial owner of such Note, if such
compliance is required by statute or by regulation of the United States
or of any political subdivision or taxing authority thereof or therein
as a precondition to relief or exemption from such tax, assessment or
other governmental charge;
(f) any tax, assessment or other governmental charge imposed by reason
of such beneficial owner's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power of
all classes of the Company's stock entitled to vote or as a controlled
foreign corporation that is related directly or indirectly to the
Company through stock ownership; or
(g) any combination of clauses (a) through (f) above.
Such additional amounts shall also not be paid with respect to any payment on a
Note to a United States alien who is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision there
of) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to such additional amounts
had such beneficiary, settlor, member or beneficial owner, as the case may be,
held its interest in the Note directly. The term "United States alien" means
any person that is, for United States federal income tax purposes, a foreign
corporation, a nonresident alien individual, a nonresident alien fiduciary of
a foreign estate or trust, or a foreign partnership to the extent that one or
more of its members is a foreign corporation, a nonresident alien individual or
a nonresident alien fiduciary of a foreign estate or trust.
SCHEDULE II
Principal Amount
Underwriter of Purchased Securities
----------- ------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc $410,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 410,000,000
Banc of America Securities LLC 45,000,000
Barclays Bank PLC 45,000,000
Chase Securities Inc. 45,000,000
Deutsche Bank Securities Inc. 45,000,000
________________
Total $1,000,000,000
