EXHIBIT 1.2
Texas Instruments Incorporated Underwriting Agreement
Standard Provisions (Debt)
____________, 1999
From time to time, Texas Instruments Incorporated, a Delaware corporation,
may enter into one or more underwriting agreements that provide for the sale of
designated securities to the several underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is
herein referred to as this Agreement. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue and sell certain of its debt securities
("the Debt Securities") issuable under an indenture dated as of July 15, 1996
(the "Senior Indenture") between the Company and Citibank, N.A., as trustee
(the "Senior Indenture Trustee"), and an indenture dated as of December 16,
1999 (the "Subordinated Indenture") between the Company and Chase Bank of
Texas, National Association, as trustee (the "Subordinated Indenture Trustee")
(together the "Trustee" and "Indenture"), the applicable indenture of which
shall be identified in the Underwriting Agreement, in one or more offerings on
terms determined at the time of sale. The Debt Securities will have varying
designations, maturities, principal amounts, rates and times of payment of
interest, selling prices, and redemption terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Debt Securities and has filed with, or mailed for filing to, the Commission a
prospectus supplement specifically relating to the Offered Debt Securities
pursuant to Rule 424 under the Securities Act of 1933. The term "Registration
Statement" means the registration statement, including the exhibits thereto, as
amended to the date of the Underwriting Agreement. The term "Basic Prospectus"
means the prospectus included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
or supplements specifically relating to Debt Securities then being offered (the
"Offered Debt Securities"), as filed with, or mailed for filing to, the
Commission pursuant to Rule 424. The term "preliminary prospectus" means a
preliminary prospectus supplement specifically relating to the Offered Debt
Securities
together with the Basic Prospectus. As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall
include in each case the material, if any, incorporated by reference therein.
The term "Underwriters' Securities" means the Offered Debt Securities to
be purchased by the Underwriters herein. The term "Contract Securities" means
the Offered Debt Securities, if any, to be purchased pursuant to the delayed
delivery contracts referred to below.
II.
If the Prospectus provides for sales of Offered Debt Securities pursuant
to delayed delivery contracts, the Company hereby authorizes the Underwriters
to solicit offers to purchase Contract Securities on the terms and subject to
the conditions set forth in the Prospectus pursuant to delayed delivery
contracts substantially in the form of Schedule I attached hereto ("Delayed
Delivery Contracts") but with such changes therein as the Company may authorize
or approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
offered Debt Securities to be purchased by the several Underwriters and the
aggregate principal amount to be purchased by each Underwriter shall be reduced
pro rata in proportion to the principal amount of Offered Debt Securities set
forth opposite each Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
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Payment for the Underwriters' Securities shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the Closing Date.
V.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission and there shall have been
no material adverse change (not in the ordinary course of business) in the
condition of the Company and its subsidiaries, taken as a whole, from that
set forth in or contemplated by the Registration Statement and the
Prospectus; and the Underwriters shall have received, on the Closing Date,
a certificate, dated the Closing Date and signed by an executive officer
of the Company, to the foregoing effect. Such certificate shall also
provide that the representations and warranties of the Company contained
herein are true and correct as of the Closing Date. The officer making
such certificate may rely upon the best of his knowledge as to proceedings
pending or threatened.
(b) The Manager shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Senior Vice President, Secretary and General
Counsel of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware and has full corporate power and authority to own its
properties and conduct its business as presently conducted;
(ii) the Company is duly qualified to transact business and is
in good standing in each other state of the United States, wherein it
owns or leases material property or conducts material business, which
requires such qualification, except to the extent that the
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failure to be so qualified or be in good standing would not have a
material adverse effect on the Company;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company and the Senior Indenture or Subordinated Indenture, as
appropriate, is qualified under the Trust Indenture Act of 1939;
(iv) the Offered Debt Securities have been duly authorized and,
when executed and authenticated in accordance with the Indenture and
when delivered to and paid for by the Underwriters or by
institutional investors, if any, pursuant to Delayed Delivery
Contracts, will be valid and binding obligations of the Company and
will be entitled to the benefits of the Indenture;
(v) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, except as rights to indemnity hereunder may be limited under
applicable law;
(vi) the Offered Debt Securities conform in all material
respects to the description thereof contained in the Prospectus, as
then amended or supplemented, if applicable, under the caption
"Description of Debt Securities";
(vii) the Registration Statement, and any amendments thereto, is
effective under the Securities Act of 1933, and, to the best of such
counsel's knowledge, no proceedings for a stop order are pending or
threatened by the Commission;
(viii) the execution, delivery and performance of the
Underwriting Agreement, the Offered Debt Securities and the Indenture
will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to the
knowledge of such counsel, any agreement or other instrument binding
upon the Company, and no consent, approval or authorization of any
governmental body or agency is required for the performance by the
Company of its obligations under the Underwriting Agreement, the
Offered Debt Securities and the Indenture, except such as are
specified and have been obtained and such as may be required by the
securities or Blue Sky laws of the various states in connection with
the purchase and distribution of the Offered Debt Securities by the
Underwriters;
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(ix) the statements in the Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution", insofar
as they constitute summaries of documents or proceedings referred to
therein, are accurate summaries in all material respects of such
documents and proceedings;
(x) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any contract or other
document that is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described or filed as required;
and
(xi) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Securities Exchange Act of 1934 (except
for financial statements included therein, as to which such counsel
need not express any opinion) and incorporated by reference in the
Registration Statement and Prospectus complied when so filed as to
form in all material respects with such Act and the rules and
regulations thereunder, (2) has no knowledge that (except for the
financial statements contained therein, as to which such counsel need
not express any belief) any part of the Registration Statement
(including the documents incorporated by reference therein) filed
with the Commission pursuant to the Securities Act of 1933 relating
to the Offered Debt Securities, when such part became effective,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus, as amended or supplemented, if
applicable (except for financial statements included therein, as to
which such counsel need not express any opinion), comply as to form
in all material respects with the Securities Act of 1933 and the
rules and regulations thereunder and (4) has no knowledge that
(except for the financial statements contained therein, as to which
such counsel need not express any belief) the Prospectus, as amended
or supplemented, if applicable, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
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make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) The Manager shall have received on the Closing Date an opinion of
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing
Date, to the effect set forth in (iii), (iv), (v), (vii), (ix) (as to
"Description of Debt Securities") and (xi) of (b) above, and further to
the effect that statements in the Prospectus under the caption "Plan of
Distribution", insofar as such statements constitute a summary of the
documents referred to therein, are accurate summaries of the material
provisions of such documents.
It is understood that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. may rely as to all matters
relating to the laws of the State of New York upon the opinion of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇.
With respect to the matters set forth in (b)(xi) above, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq., and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that their belief is based upon
participation by them in the preparation of the Registration Statement
(excluding any documents incorporated by reference therein) and review and
discussion of the contents thereof (including any such incorporated documents),
but is without independent check or verification, except as specified.
(d) The Manager shall have received on the Closing Date a letter
dated the Closing Date, in form and substance satisfactory to the Manager,
from the Company's independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in
the Registration Statement and the Prospectus.
(e) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that, in the Manager's
opinion, indicates an intended or potential downgrading in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act of 1933, that, in the Manager's
judgment, is material and adverse and that makes it, in the Manager's
judgment, impracticable to market the Offered Debt Securities on the
terms, in the manner and substantially at the price contemplated in the
Prospectus.
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(f) There shall not have occurred any change, or any event that is
reasonably likely to cause a change, in the financial condition of the
Company and its subsidiaries, taken as a whole, from that set forth in or
contemplated by the Registration Statement and the Prospectus, that, in
the Manager's judgment, is material and adverse and that makes it, in the
manager's judgment, impracticable to market the Offered Debt Securities on
the terms, in the manner and substantially at the price contemplated in
the Prospectus.
VI.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, three copies of the
Registration Statement, including exhibits and materials, if any,
incorporated by reference therein, and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents filed by the Company with the Commission subsequent to the date
of the Basic Prospectus, pursuant to the Securities Exchange Act of 1934,
which are deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Debt Securities, to furnish the
Manager a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Debt Securities as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered, any
event shall occur or condition shall exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at its own expense, to the Underwriters, either
amendments or supplements to the Prospectus so that the statements in the
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Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(d) To qualify the Offered Debt Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification.
(e) To make generally available to the Company's security holders as
soon as practicable an earning statement covering a twelve month period
beginning after the date of the Underwriting Agreement, which shall
satisfy the provisions of Section 11(a) of the Securities Act of 1933 and
the applicable rules and regulations thereunder; it being intended that
the Company will satisfy the foregoing obligations by making available
copies of its annual report on Form 10-K and its current reports on Form
10-Q.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Offered Debt Securities without the
prior written consent of the Manager.
VII.
The Company represents and warrants to each Underwriter that (i) each
document, if any, filed or to be filed pursuant to the Securities Exchange Act
of 1934 and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with such Act and the rules and
regulations thereunder, (ii) each part of the Registration Statement (including
the documents incorporated by reference therein) filed with the Commission
pursuant to the Securities Act of 1933 relating to the Offered Debt Securities,
when such part became effective, did not contain any untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) each preliminary
prospectus, if any, filed pursuant to Rule 424 under the Securities Act of 1933
complied when so filed in all material respects with such Act and the
applicable rules and regulations thereunder, (iv) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act of 1933 and the
applicable rules and regulations thereunder and
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(v) the Registration Statement and the Prospectus do not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; except that these representations and warranties do not
apply to (a) that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939 of the Trustee under the Indenture, or (b) statements or omissions
in the Registration Statement, any preliminary prospectus or the Prospectus
based upon information furnished to the Company in writing by any Underwriter
expressly for use therein.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities (including the reasonable fees and expenses of counsel in
connection with any governmental or regulatory investigation or proceeding)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any preliminary prospectus or the
Prospectus (if used within the period set forth in paragraph (c) of Article VI
hereof and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished to the Company in writing by any Underwriter expressly for use
therein.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter expressly for use in the Registration Statement,
any preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the
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indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
the Manager in the case of parties indemnified pursuant to the second preceding
paragraph and by the Company in the case of parties indemnified pursuant to the
first preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 10 business days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in this Article VII under the second
or third paragraphs hereof is unavailable in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the
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other from the offering of the Offered Debt Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Offered Debt Securities
shall be deemed to be in the same proportion as the net proceeds from the
offering of such Offered Debt Securities (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions
received by the Underwriters in respect thereof, in each case as set forth in
the table on the cover of the Prospectus. The relative fault of the Company on
the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VII, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Debt Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VII are several, in proportion to the respective principal amounts of
Offered Debt Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VII
and the representations and warranties of the Company in this Agreement shall
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remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors or officers or any
person controlling the Company and (iii) acceptance of and payment for any of
the Offered Debt Securities.
VIII.
This Agreement shall be subject to termination in the Manager's absolute
discretion, by notice given to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of the
Company shall have been suspended on the New York Stock Exchange or in the U.S.
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or a severe deterioration in U.S. financial markets or any other
calamity or crisis that is material and adverse and (b) in the case of any of
the events specified in clauses (a) (i) through (iv), such event singly or
together with any other such event makes it, in the Manager's judgment,
impracticable to market the Offered Debt Securities on the terms, in the manner
and substantially at the price contemplated in the Prospectus. Any such
termination of this Agreement shall be without liability on the part of any
Manager or on the part of the Company except as stated in Article IX.
IX.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Underwriters' Securities that it or they have agreed to
purchase on such date, and the aggregate principal amount of Underwriters'
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Underwriters' Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the principal
amount of Offered Debt Securities set forth opposite their respective names in
the Underwriting Agreement bears to the aggregate principal amount of Offered
Debt Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of
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Underwriters' Securities that any Underwriter has agreed to purchase pursuant
to the Underwriting Agreement be increased pursuant to this Article IX by an
amount in excess of one-ninth of such principal amount of Underwriters'
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Securities and the aggregate principal amount of Underwriters'
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Underwriters' Securities to be purchased on
such date, and arrangements satisfactory to the Underwriters and the Company
for the purchase of such Underwriters' Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company. In any such case either
the Underwriters or the Company shall have the right to postpone the Closing
Date but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the
Offered Debt Securities.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
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Schedule I
DELAYED DELIVERY CONTRACT
_________________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from Texas Instrument
Incorporated, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned the principal amount of its debt securities (the
"Offered Debt Securities") identified herein, as more fully described in the
Company's Prospectus Supplement dated _________________ relating to the Offered
Debt Securities and in the Prospectus dated ________________, 1999. Such
agreement to purchase and sell is made on the further terms and conditions set
forth in this contract. The undersigned does not contemplate selling Offered
Debt Securities prior to making payment therefor.
Receipt of copies of the Prospectus and of the Prospectus Supplement is
hereby acknowledged.
The undersigned will purchase the Offered Debt Securities from the Company
on ____________, 19__, hereinafter referred to as the "Delivery Date".
Payment for the Offered Debt Securities which the undersigned has agreed
to purchase on the Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of ______________________ New York, N.Y., at 10:00 A.M. (New York time) on the
Delivery Date, upon delivery to the undersigned of the Offered Debt Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Offered Debt Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Offered Debt Securities to be made by the
undersigned shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Offered Debt Securities as is to be sold to them. Promptly after
completion of sale and delivery to the Underwriters, the Company will mail or
deliver to the undersigned
at its address set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Company delivered to the Underwriters in
connection therewith.
Failure to take delivery of and make payment for Offered Debt Securities
by any purchaser under any other Delayed Delivery Contract shall not relieve
the undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Yours very truly,
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(Purchaser)
By:
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(Title)
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(Address)
Accepted:
Texas Instruments Incorporated
By_________________________________
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PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
is as follows: (Please print)
Telephone No.
Name (Including Area Code) Department
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