EXHIBIT 5.2
TEXTRON INC.
40 Westminister Drive
Providence, Rhode Island 02903
November 9, 2001
Textron Capital II
Textron Capital III
Textron Inc.
40 Westminister Street
Providence, Rhode Island 02903
Re: Textron Inc.; Textron Capital II; Textron Capital III;
Registration Statement on Form S-3 (Registration No.
333-84599)
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Ladies and Gentlemen:
I am Associate General Counsel and Assistant Secretary of Textron Inc.,
a Delaware corporation (the "Company"). I have acted as counsel to Textron
Capital II and Textron Capital III (each, a "Textron Trust" and, together, the
"Textron Trusts"), each a statutory business trust formed under the laws of the
State of Delaware, and the Company in connection with the Registration Statement
(the "Registration Statement") on Form S-3 (No. 333-84599) filed by the Company
and the Textron Trusts with the Securities and Exchange Commission (the
"Commission") on August 5, 1999 under the Securities Act of 1933, as amended
(the "Securities Act"). The Registration Statement relates to the offering and
sale from time to time pursuant to Rule 415 of the General Rules and Regulations
promulgated under the Securities Act (the "Regulations") of up to an aggregate
offering price of $2,000,000,000 of unsecured senior debt securities of the
Company (the "Senior Debt Securities"), unsecured subordinated debt securities
of the Company (the "Subordinated Debt Securities") and unsecured junior
subordinated debt securities of the Company (the "Junior Subordinated Debt
Securities" and together with the Senior Debt Securities and the Subordinated
Debt Securities, the "Debt Securities"), common stock of the Company, $0.125 par
value per share ("Common Stock"), preferred stock of the Company, no par value
("Preferred Stock"), preferred securities of each of the Textron Trusts (the
"Trust Preferred Securities") and the respective guarantees by the Company for
the benefit of the holders of the Trust Preferred Securities (each a "Trust
Guarantee" and, collectively, the "Trust Guarantees").
The Debt Securities are to be issued under an Indenture (an
"Indenture"), dated as of September 10, 1999 between the Company and The Bank of
New York, as debt trustee.
The Trust Preferred Securities of each Textron Trust are to be issued
pursuant to an Amended and Restated Declaration of Trust of such Textron Trust
(each, a "Declaration" and, collectively, the "Declarations") to be entered into
among the Company, as sponsor and as the issuer of certain debentures to be held
by The Bank of New York, as the institutional trustee, The Bank of New York
(Delaware), as Delaware trustee, and certain other regular trustees named
therein.
Each Trust Guarantee will be made pursuant to a Preferred Securities
Guarantee Agreement, to be executed and delivered by the Company for the benefit
of the holders of the Trust Preferred Securities. The Bank of New York will act
as indenture trustee under each Trust Guarantee (the "Trust Guarantee
Trustee").The Trust Guarantees will relate to the payment of periodic cash
distributions and payments on liquidation, redemption or otherwise with respect
to each of the Trust Preferred Securities.
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of: (i) the Restated
Certificate of Incorporation of the Company, as currently in effect; (ii) the
By-Laws of the Company, as currently in effect; (iii) the Registration Statement
as filed with the Commission; (iv) a specimen certificate representing the
Common Stock (the "Specimen Certificate"); (v) the form of the Preferred
Security Certificate evidencing the Trust Preferred Securities of each of the
Textron Trusts annexed to the form of Declaration of each of the Textron Trusts;
(vi) the form of the Senior Debt Securities included as an exhibit to the
Current Report on Form 8-K filed by the Company on the date hereof; (vii) an
executed copy of the Indenture; (viii) the Statements of Eligibility and
Qualification under the Trust Indenture Act of 1939, as amended, on Form T-1 of
the Bank of New York, as (a) trustee under the Indenture with respect to the
Senior Debt Securities, (b) trustee under the Indenture with respect to the
Subordinated Debt Securities, (c) trustee under the Indenture with respect to
the Junior Subordinated Debt Securities, (d) trustee under the Declaration of
Textron Capital II, (e) trustee under the Declaration of Textron Capital III,
(f) trustee of the Trust Guarantees for the benefit of the holders of Trust
Preferred Securities of Textron Capital II, and (g) trustee of the Trust
Guarantees for the benefit of the holders of Trust Preferred Securities of
Textron Capital III, in each case as such Statements of Eligibility and
Qualification are included as exhibits to the Registration Statement; (ix) the
Amended and Restated Certificates of Trust of each of the Textron Trusts
included as exhibits to the Registration Statement; (x) the form of Amended and
Restated Declaration of each of the Textron Trusts (including the designations
of the terms of the Trust Preferred Securities of such Textron Trust annexed
thereto) included as an exhibit to the Current Report on Form 8-K filed by the
Company on the date hereof; (xi) the form of Preferred Securities Guarantee
Agreement included as an exhibit to the Current Report on Form 8-K filed by the
Company on the date hereof; (xii) pertinent resolutions of the Company's Board
of Directors and committees thereof and (xiii) written actions of delegates of
such committees. I have also examined originals or copies, certified or
otherwise identified to my satisfaction, of such records of the Company and such
agreements, certificates of public officials, certificates of officers or other
representatives of the Company and others, and such other documents,
certificates and records as I have deemed necessary or appropriate as a basis
for the opinions set forth herein.
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In my examination, I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making my examination
of documents executed or to be executed by parties other than the Company and
the Textron Trusts, I have assumed that such parties had or will have the power,
corporate or other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and execution and delivery by such parties of such documents and the
validity and binding effect thereof on such parties. In addition, I have assumed
that the Declaration of Trust and Trust Preferred Securities of each Textron
Trust, the Trust Guarantees and the Senior Debt Securities, when executed, will
be executed in substantially the form reviewed by me and that the terms of the
Offered Debt Securities (as defined below), Offered Trust Preferred Securities
(as defined below) Offered Trust Guarantees (as defined below), Offered Common
Stock (as defined below) and Offered Preferred Stock (as defined below) will
have been established so as not to violate, conflict with or constitute a
default under (i) any agreement or instrument to which the Company or any of the
Textron Trusts or their respective property is subject, (ii) any law, rule, or
regulation to which the Company or any of the Textron Trusts is subject, (iii)
any judicial or administrative order or decree of any governmental authority or
(iv) any consent, approval, license, authorization or validation of, filing,
recording or registration with any governmental authority. I have also assumed
that (i) the stock certificates evidencing Preferred Stock to be issued will be
in a form that complies with, and the terms of such Preferred Stock, as
applicable will be duly established in accordance with, the Delaware General
Corporation Law (the "DGCL") and (ii) the stock certificate evidencing any
Common Stock issued will conform to the specimen certificate examined by me and
any Common Stock and Preferred Stock will be duly executed and delivered. As to
any facts material to the opinions expressed herein which I have not
independently established or verified, I have relied upon oral or written
statements and representations of officers and other representatives of the
Company, the Textron Trusts and others.
I am admitted to the bar in the States of New York and Rhode Island,
and I express no opinion as to the laws of any jurisdiction other than such
States and the General Corporation Law of the State of Delaware. I am not
admitted to the practice of law in the State of Delaware. Based upon and subject
to the foregoing and the other qualifications set forth herein, it is my opinion
that:
1. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), has become
effective under the Securities Act; (ii) an appropriate prospectus
supplement with respect to the Offered Debt Securities has been
prepared, delivered and filed in compliance with the Securities Act and
the applicable Regulations; (iii) the Board of Directors, including any
appropriate committee appointed thereby and any delegate appointed by
such committee, and appropriate officers of the Company have taken all
necessary corporate action to approve the issuance and terms of the
Offered Debt Securities and related matters; (iv) the terms of the
Offered Debt Securities and of their issuance and sale have been
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established in accordance with the Indenture so as not to violate,
conflict with or constitute a default under any applicable law, the
Restated Certificate of Incorporation of the Company or the By-Laws of
the Company or result in a default under or breach of any agreement or
instrument biding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company; (v) the Offered Debt Securities
have been duly executed and authenticated and issued in accordance with
the Indenture and in the manner and for the consideration contemplated
in the Registration Statement or any prospectus supplement relating
thereto; (vi) the certificates representing the Offered Debt Securities
have been established in accordance with the Indenture and duly
executed and delivered by the proper officers of the Company to the
purchasers thereof against payment of the agreed-upon consideration
therefor in the manner contemplated in the Registration Statement or
any prospectus supplement relating thereto, and (vii) if the Offered
Debt Securities are to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to the
Offered Debt Securities has been duly authorized, executed and
delivered by the Company and the other parties thereto, (1) the Offered
Debt Securities will be valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in
effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and (2) if the Offered
Debt Securities are convertible into Offered Common Stock (as defined
below), the Offered Common Stock issuable upon conversion of the
Offered Debt Securities will be duly authorized, validly issued, fully
paid and nonassessable, assuming the issuance of the Offered Common
Stock upon conversion of the Offered Debt Securities has been
authorized by all necessary corporate action, that the Offered Debt
Securities have been converted in accordance with the terms of the
Indenture and that the certificate evidencing such shares of Offered
Common Stock are duly executed and delivered. In rendering the opinion
set forth in clause (2) of this paragraph 1, I have assumed that, at
the time of issuance of any Offered Common Stock upon conversion of the
Offered Debt Securities, the Restated Certificate of Incorporation, the
By-Laws, the Indenture and the DGCL shall not have been amended so as
to affect the validity of such issuance.
2. With respect to the Trust Guarantees (the "Offered Trust Guarantees"),
when (i) the Registration Statement, as finally amended (including all
necessary post-effective amendments), has become effective under the
Securities Act; (ii) the Board of Directors, including any appropriate
committee appointed thereby and any delegate appointed by such
committee, and appropriate officers of the Company have taken all
necessary corporate action to approve the issuance and terms of the
Offered Trust Guarantees and related matters; (iii) an appropriate
prospectus supplement with respect to the applicable Trust Preferred
Securities and Offered Trust Guarantees has been prepared, delivered
and filed in compliance with the Securities Act and the applicable
Regulations; (iv) the Declaration and the Preferred Securities
Guarantee Agreement of the applicable Textron Trust have been duly
executed and delivered by the parties thereto; (v) the terms of the
applicable Trust Preferred Securities have
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been established in accordance with the terms of the Declaration of the
applicable Textron Trust; (vi) the Trust Preferred Securities have been
issued, executed and authenticated in accordance with the Declaration
of the applicable Textron Trust and have been issued, sold, delivered
and paid for in compliance with applicable federal and state laws and
in the manner and for the consideration contemplated in the
Registration Statement or any prospectus supplement relating thereto;
(vii) the terms of the Offered Trust Guarantees and of their issuance
and sale have been established in accordance with the terms of the
Declaration of the applicable Textron Trust so as not to violate,
conflict with or constitute a default under any applicable law, the
Restated Certificate of Incorporation of the Company or the By-Laws of
the Company or result in a default under or breach of any agreement or
instrument biding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company; and (vii) if the Trust Preferred
Securities are to be sold pursuant to a firm commitment underwritten
offering, the underwriting agreement with respect to the Trust
Preferred Securities has been duly authorized, executed and delivered
by the applicable Textron Trust, the Company and the other parties
thereto, the Offered Trust Guarantees, when duly executed and delivered
by the parties thereto, will be valid and binding agreements of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that (a) enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar
laws now or hereafter in effect relating to creditors' rights generally
and general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity) and (b) rights to
indemnify and contribution thereunder may be limited by applicable law
or the public policy underlying such law.
3. With respect to the shares of any series of the Common Stock (the
"Offered Common Stock"), when (i) the Registration Statement, as
finally amended (including all necessary post-effective amendments),
has become effective under the Securities Act; (ii) an appropriate
prospectus supplement with respect to the Offered Common Stock has been
prepared, delivered and filed in compliance with the Securities Act and
the applicable Regulations; (iii) the Board of Directors, including any
appropriate committee appointed thereby and any delegate appointed by
such committee, and appropriate officers of the Company have taken all
necessary corporate action to approve the issuance of the Offered
Common Stock and related matters; (iv) the terms of the Offered Common
Stock and of their issuance and sale have been established by all
necessary corporate action in conformity with the Restated Certificate
of Incorporation and By-Laws of the Company so as not to violate any
applicable law or result in a default under or breach of any agreement
or instrument biding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company; (v) if the Offered Common Stock
is to be sold pursuant to a firm commitment underwritten offering, the
underwriting agreement with respect to the Offered Common Stock has
been duly authorized, executed and delivered by the Company and the
other parties thereto; (vi) the Offered Common Stock have been issued,
sold and delivered in compliance with applicable federal and state laws
and in the manner and for the consideration contemplated in the
Registration Statement or any prospectus supplement relating thereto;
and (vii) the certificates representing
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the shares of Offered Common Stock have been duly executed and
delivered by the proper officers of the Company to the purchasers
thereof against payment of the agreed-upon consideration therefor in
the manner contemplated in the Registration Statement or any prospectus
supplement relating thereto, the shares of the Offered Common Stock,
when issued and sold in accordance with the applicable underwriting
agreement or any other duly authorized, executed and delivered
applicable purchase agreement, will be duly executed, validly issued,
fully paid and non-assessable, provided that the consideration therefor
is not less than the par value thereof.
4. With respect to the shares of any series of the Preferred Stock (the
"Offered Preferred Stock"), when (i) the Registration Statement, as
finally amended (including all necessary post-effective amendments),
has become effective under the Securities Act; (ii) an appropriate
prospectus supplement with respect to the shares of Offered Preferred
Stock has been prepared, delivered and filed in compliance with the
Securities Act and the applicable Regulations; (iii) the Board of
Directors, including any appropriate committee appointed thereby and
any delegate appointed by such committee, and appropriate officers of
the Company have taken all necessary corporate action to approve the
issuance and terms of the Offered Preferred Stock and related matters;
(iv) the terms of the Offered Preferred Stock and of their issuance and
sale have been established by all necessary corporate action in
conformity with the Restated Certificate of Incorporation, including
the certificate of designation relating to the Offered Preferred Stock
(the "Certificate of Designation"), and the By-Laws of the Company so
as not to violate any applicable law or result in a default under or
breach of any agreement or instrument biding upon the Company and so as
to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; (v) the filing
of the Certificate of Designation with the Secretary of State of the
State of Delaware has duly occurred; (vi) if the Offered Preferred
Stock is to be sold pursuant to a firm commitment underwritten
offering, the underwriting agreement with respect to the Offered
Preferred Stock has been duly authorized, executed and delivered by the
Company and the other parties thereto; (vii) the Offered Preferred
Stock have been issued, sold and delivered in compliance with
applicable federal and state laws and in the manner and for the
consideration contemplated in the Registration Statement or any
prospectus supplement relating thereto; and (viii) the certificates
representing the shares of the Offered Preferred Stock have been duly
executed and delivered by the proper officers of the Company to the
purchasers thereof against payment of the agreed-upon consideration
therefor in the manner contemplated in the Registration Statement or
any prospectus supplement relating thereto, (1) the shares of the
Offered Preferred Stock, when issued and sold in accordance with the
applicable underwriting agreement or any other duly authorized,
executed and delivered applicable purchase agreement, will be duly
executed, validly issued, fully paid and non-assessable, provided that
the consideration therefor is not less than the amount determined by
the Board of Directors; and (2) if the shares of the Offered Preferred
Stock are convertible into Offered Common Stock, the Offered Common
Stock issuable upon conversion of the Offered Preferred Stock will be
duly authorized, validly issued, fully paid and nonassessable, assuming
the issuance of the Offered Common Stock upon conversion of the
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Offered Preferred Stock has been authorized by all necessary corporate
action, that the Offered Preferred Stock has been converted in
accordance with the terms of the Certificate of Designation and that
the certificate evidencing such shares of Offered Common Stock are duly
executed and delivered. In rendering the opinion set forth in clause
(2) of this paragraph 4, I have assumed that, at the time of issuance
of any Offered Common Stock upon conversion of the Offered Preferred
Stock, the Restated Certificate of Incorporation, the By-Laws, the
Certificate of Designation and the DGCL shall not have been amended so
as to affect the validity of such issuance.
I hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. I also consent to the reference to me
under the caption "Legal Opinions" in the Registration Statement. In giving such
consent, I do not thereby admit that I am included in the category of persons
whose consent is required under Section 7 of the Securities Act or the
Regulations.
Very truly yours,
/s/ Michael D. Cahn
Associate General Counsel and
Assistant Secretary
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