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Exhibit 1.1
HONEYWELL INTERNATIONAL INC.
[TITLE OF SECURITIES]
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 Indenture 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,
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(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,
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(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) 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.
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
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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. Edward Smith, 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,
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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 &
Moore, 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
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(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
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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 & Moore, counsel for the
Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on 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
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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
agrees 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
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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 [INSERT SECTIONS OF PROSPECTUS PROVIDED BY UNDERWRITERS] 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
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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 Agreement 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
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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 [INSERT
MANAGING UNDERWRITER NAME] 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 [INSERT MANAGING UNDERWRITER NAME AND
ADDRESS] (telephone: _________; telecopy: ___________) Attention: ___________;
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 101 Columbia Road, P.O. Box 4000, Morristown, New Jersey
07962 (telephone: 973-455-5109; telecopy: 973-455-5189) Attention: Assistant
Treasurer.
13. Successors. This Agreement will inure to the benefit 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]
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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:__________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
[NAMES OF REPRESENTATIVE UNDERWRITERS]
As Representatives of the Several
Underwriters named in Schedule II
attached hereto.
[NAME OF MANAGING UNDERWRITER]
By:______________________________
Name:
Title:
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SCHEDULE I
Underwriting Agreement dated [DATE]
Registration Statement Nos. _____________
Representatives:
Closing Date, Time and Location:
Sale, Purchase Price and Description of Purchased Debt
Securities:
Title:
Principal amount and currency:
Purchase price:
Interest rate
Interest payment dates:.
Maturity:
Sinking fund provisions:
Bearer or registered:
Other provisions:
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SCHEDULE II
Principal Amount
Underwriter of Purchased Securities
....... $
__________
Total............................ $
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