TYCO INTERNATIONAL GROUP S.A.
$750,000,000 of 6 1/4% Dealer remarketable securitiesSM
("▇▇▇.▇▇") due 2013
Underwriting Agreement
June 4, 1998
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Tyco International Group S.A., a Luxembourg company (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") among the Company, Tyco International
Ltd., a Bermuda company and the sole shareholder of the Company ("Tyco") and the
Trustee identified in Schedule I (the "Trustee"). The Securities will be
unconditionally guaranteed by Tyco. If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives", as used herein shall each be deemed
to refer to such firm or firms.
The Company and Tyco have prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "Debt Securities") to be issued
from time to time by the Company and guarantees to be issued by Tyco (the
"Guarantees" and, together with the Debt Securities, the "Shelf Securities").
The Company and Tyco also have filed with, or propose to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities and the Guarantees. The registration
statement, as amended to the date of this Agreement, is hereinafter referred to
as the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities and the
Guarantees is hereinafter referred to as the "Basic Prospectus". The Basic
Prospectus as supplemented by the prospectus supplement specifically relating to
the Securities and the Guarantees in the form first used to confirm sales of the
Securities is hereinafter referred to as the "Prospectus". If the Company and
Tyco have filed an abbreviated registration statement pursuant to Rule
462(b) under the Securities Act (the "Rule 462 Registration Statement"), then
any reference herein to the term "Registration Statement" shall be deemed to
include such Rule 462 Registration Statement. Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein;
provided, however, that documents incorporated by reference shall not be deemed
to include any document filed by the Company or Tyco under the Exchange Act to
the extent that it is superseded in whole or in part by any document
subsequently filed by the Company or Tyco pursuant to the Securities Act or the
Exchange Act. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus and the Prospectus, or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("▇▇▇▇▇").
The Company and Tyco hereby agree with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities and Tyco
agrees to issue the Guarantees to the several Underwriters as hereinafter
provided, and each Underwriter, on the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase, severally and not jointly, from the Company the respective
principal amount of Securities set forth opposite such Underwriter's name in
Schedule II hereto at the purchase price set forth in Schedule I hereto plus
accrued interest, if any, from the date specified in Schedule I hereto to the
date of payment and delivery.
2. The Company and Tyco understand that the several Underwriters
intend (i) to make a public offering of their respective portions of the
Securities and the Guarantees and (ii) initially to offer the Securities and the
Guarantees upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives no later
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than noon on the Business Day prior to the Closing Date (as defined below), on
the date and at the time and place set forth in Schedule I hereto (or at such
other time and place on the same or such other date, not later than the fifth
Business Day (as defined below) thereafter, as you, the Company may agree in
writing). As used herein, the term "Business Day" means any day other than a day
on which banks are permitted or required to be closed in New York City. The time
and date of such payment and delivery with respect to the Securities are
referred to herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of one or more global notes (the "Global Note")
representing the Securities, with any transfer taxes payable in connection with
the transfer to the Underwriters of the Securities duly paid by the Company. The
Global Note will be made available for inspection by the Representatives at the
office of ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
not later than 1:00 P.M., New York City time, on the Business Day prior to the
Closing Date.
4. The Company and Tyco, jointly and severally, represent and warrant
to each Underwriter that:
(a) the Company and Tyco meet the requirements for use of the
Form S-3 under the Securities Act in respect of the registration of the
Securities and the Guarantees, the Registration Statement has been
declared effective by the Commission under the Securities Act; no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Company or Tyco, threatened by the Commission
and any request on the part of the Commission for additional
information has been complied with; and the Registration Statement and
Prospectus (as amended or supplemented if the Company and Tyco shall
have furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Trust Indenture Act"), and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus
and any amendment or supplement thereto, in the light of the
circumstances under which they were made) not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided,
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however, that the foregoing representations and warranties shall not
apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee, and (ii) statements or omissions in
the Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter furnished to
the Company or Tyco in writing by such Underwriter through the
Representatives expressly for use therein; each preliminary prospectus
and the Prospectus, including any amendment or supplement thereto,
delivered to the Underwriters for use in connection with the offering
contemplated hereby were identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to
the extent permitted by Regulation S-T of the Securities Act;
(b) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and none of such
documents contained an 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, in the light of the circumstances under
which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(c) Coopers & ▇▇▇▇▇▇▇ L.L.P. who certified the financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement are independent public
accountants required by the Securities Act;
(d) the financial statements, and the related schedules and
notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of Tyco and its consolidated
subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the
periods specified; said financial statements have been prepared in
conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis, except as otherwise disclosed
therein, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein; the pro
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forma financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as applicable,
and is based upon good faith estimates and assumptions believed by Tyco
to be reasonable; and the selected financial data included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included or incorporated by reference in the Registration
Statement;
(e) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt (on a
consolidated basis) of Tyco, or any material adverse change that is
reasonably likely to occur, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, shareholders' equity or
results of operations of Tyco and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated in the Prospectus,
neither Tyco nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to Tyco and its subsidiaries, taken as a whole;
(f) the Company is a corporation duly and validly organized
and existing under the laws of Luxembourg, with power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Prospectus, and is duly
qualified as a foreign corporation to transact business and is in good
standing under the laws of each other jurisdiction in which the nature
of its business or its ownership or leasing of its properties requires
qualification, except where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(g) Tyco is a limited liability company duly and validly
organized and existing and in good standing under the laws of Bermuda,
with power and authority (corporate and other) to own, lease and
operate its properties and conduct its business as described in the
Prospectus, and is duly qualified as a foreign corporation to transact
business and is in good standing under the laws of each other
jurisdiction in which the nature of its business or the ownership or
leasing of its properties requires qualification, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect;
(h) each of the Company's subsidiaries listed on Schedule III
hereto is a "significant subsidiary" (as such term is defined in Rule
1-02 of Regulation S-X
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under the Securities Act), is duly and validly organized and existing
as a corporation under the laws of its jurisdiction of incorporation,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, is duly
qualified as a foreign corporation to transact business and is in good
standing under the laws of each jurisdiction in which the nature of its
business or its ownership or leasing of its properties requires
qualification, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect; and, except as
otherwise disclosed in the Registration Statement, all the outstanding
shares of capital stock of the Company and each subsidiary of the
Company have been duly authorized and validly issued, are fully-paid
and non-assessable, and (except as indicated on Schedule III for
non-material liens that have arisen in the ordinary course of business
and, in the case of non-United States subsidiaries, for directors'
qualifying shares) are owned by the Company, as the case may be,
directly or indirectly, free and clear of all liens, encumbrances,
security interests and claims;
(i) Tyco had as of the date indicated in the Prospectus a duly
authorized and outstanding capitalization as set forth in the
Prospectus in the column entitled "Actual"; except as disclosed in the
Prospectus, there are no holders of securities (debt or equity) of Tyco
or any of its subsidiaries, or holders of rights, warrants or options
to obtain securities of Tyco or any of its subsidiaries who have the
right to request the Company or Tyco to register securities held by
them under the Securities Act other than holders who have elected not
to exercise their rights or whose securities have been so registered;
(j) this Agreement has been duly authorized, executed and
delivered by each of the Company and Tyco;
(k) the remarketing agreement between the Company, Tyco and
▇.▇. ▇▇▇▇▇▇ Securities Inc., as remarketing dealer with respect to the
Securities (the "Remarketing Agreement") has been duly authorized,
executed and delivered by each of the Company and Tyco;
(l) the Securities have been duly authorized and when duly
authenticated by the Trustee pursuant to the Indenture and issued and
delivered pursuant to this Agreement, will have been duly executed,
issued and delivered and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding instrument of the Company;
the Indenture has been duly qualified under the Trust Indenture Act;
and the Securities and the Indenture will conform in all material
respects to the descriptions thereof in the Prospectus;
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(m) the Guarantees have been duly authorized and when the
Securities have been duly authenticated by the Trustee pursuant to the
Indenture and issued and delivered pursuant to this Agreement, will
have been duly executed, issued and delivered and will constitute valid
and binding obligations of Tyco entitled to the benefits provided by
the Indenture; the Indenture has been duly authorized, executed and
delivered by Tyco and constitutes a valid and binding instrument of
Tyco; and the Guarantees will conform in all material respects to the
descriptions thereof in the Prospectus;
(n) neither Tyco nor any of its subsidiaries is, or, with the
giving of notice or lapse of time or both would be, in violation of or
in default under, its memorandum of association, articles of
organization, certificate of incorporation or other similar charter
document (each a "Charter") or by-laws or any indenture, mortgage, deed
of trust, loan agreement, note, lease or other agreement or instrument
to which Tyco or any of its subsidiaries is a party or by which it or
any of them or any of their respective properties is bound or subject,
except for violations and defaults which individually and in the
aggregate would not result in a Material Adverse Effect, or are not
material to the holders of the Securities and the Guarantees; the
execution, delivery and performance of this Agreement, the Indenture,
the Remarketing Agreement, the Securities and the Guarantees by the
Company and Tyco, as the case may be, the consummation of the
transactions contemplated herein, therein and in the Prospectus
(including the issuance and sale of the Securities and the Guarantees
and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds") and
the compliance by the Company and Tyco of their respective obligations
under this Agreement, the Indenture, the Remarketing Agreement, the
Securities and the Guarantees do not and will not conflict with or
result in a breach of any of the terms or provisions of or with the
giving of notice or lapse of time or both constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon the property or assets of Tyco or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which Tyco or
any of its subsidiaries is a party or by which Tyco or any of its
subsidiaries is bound or to which any of the property or assets of Tyco
or any of its subsidiaries is subject, except for such conflicts,
breaches, defaults, liens, charges or encumbrances that would not
result in a Material Adverse Effect, nor will any such action result in
any violation of the provisions of the Charter or the by-laws of Tyco
or any of its subsidiaries or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over Tyco, or any of its subsidiaries or any of
their respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities and the issue of the Guarantees or the consummation by the
Company or Tyco of
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the transactions contemplated by this Agreement, the Indenture or the
Remarketing Agreement, except such consents, approvals, authorizations,
orders, licenses, registrations or qualifications as have been obtained
under the Securities Act, the Trust Indenture Act and as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities and the Guarantees by the
Underwriters;
(o) other than as disclosed in or contemplated by the
Prospectus, there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the Company or
Tyco, threatened to which Tyco or any of its subsidiaries is or may be
a party or to which any property or assets of Tyco or any of its
subsidiaries is or may be the subject which, if determined adversely to
Tyco or any of its subsidiaries, could individually or in the aggregate
have, or reasonably be expected to have, a Material Adverse Effect or
which could be reasonably expected to materially and adversely affect
the consummation of the transactions contemplated by this Agreement or
the Remarketing Agreement or the performance by the Company and Tyco of
their respective obligations hereunder or thereunder; and no such
proceedings are pending or, to the best of the Company's and Tyco's
knowledge, threatened against Tyco or any of its subsidiaries which are
required to be disclosed in the Registration Statement or the
Prospectus, other than those disclosed therein; and there are no
contracts, mortgages, loan agreements, notes, leases or other documents
to which Tyco or any of its subsidiaries is a party or by which any of
them may be bound or to which any property or assets of Tyco or any of
its subsidiaries is subject that are required to be filed as an exhibit
to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required;
(p) except as disclosed in the Prospectus, no labor dispute
with the employees of Tyco or any of its subsidiaries exists or, to the
knowledge of the Company or Tyco, is threatened, which could reasonably
be expected to result in a Material Adverse Effect;
(q) neither the Company nor Tyco is, and upon the issuance and
sale of the Securities and the issuance of the Guarantees as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(r) neither the Company nor Tyco or, to the best of the
Company's and Tyco's knowledge, any officer, director, employee agent
or shareholder thereof, in each case acting on behalf of the Company or
Tyco, as the case may be, has done
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any act or authorized, directed or participated in any act, in
violation of any provision of the Foreign Corrupt Practices Act of
1977, as amended, applicable to such entity or person for which civil
or criminal liability or penalties, as the case may be, could currently
be imposed on the Company or Tyco;
(s) the choice of law provisions set forth in this Agreement
are legal, valid and binding under the laws of Luxembourg and Bermuda,
respectively, and will be recognized and given effect to by the courts
of Luxembourg and Bermuda, respectively, (unless a court determined
that doing so would be contrary to public policy in Luxembourg and
Bermuda, respectively,); each of the Company and Tyco has the legal
capacity to ▇▇▇ and be sued in its own name under the laws of
Luxembourg and Bermuda, respectively; each of the Company and Tyco has,
under the laws of Luxembourg and Bermuda, respectively, the power to
submit, and has irrevocably submitted, to the jurisdiction of the New
York courts and has validly and irrevocably appointed CT Corporation
System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (and any
successor entity) as its authorized agent for the service of process
pursuant to this Agreement; the irrevocable submission of the Company
and Tyco to the jurisdiction of the New York courts and the waiver by
the Company and Tyco of any immunity and any objection to the venue of
the proceeding in a New York court, included in this Agreement, are
legal, valid and binding under the laws of Luxembourg and Bermuda,
respectively; neither the Company nor Tyco or any of their respective
assets is entitled to immunity (or any similar defense) from suit,
execution, attachment or other legal process in Luxembourg and Bermuda,
respectively; this Agreement is in proper legal form under the laws of
Luxembourg and Bermuda, respectively, for the enforcement thereof
against the Company and Tyco, respectively, and nothing in Luxembourg
and Bermuda law, respectively, prevents suit upon this Agreement in the
courts of Luxembourg and Bermuda, respectively; and it is not necessary
(a) in order to enable the Underwriters to exercise or enforce their
rights under this Agreement in Luxembourg and Bermuda, respectively, or
(b) by reason of the entry into and/or the performance of this
Agreement, that any of the Underwriters should be licensed, qualified,
authorized or entitled to do business in Luxembourg and Bermuda,
respectively; and
(t) in any proceedings in Luxembourg and Bermuda,
respectively, or elsewhere in connection with this Agreement, the
Company and Tyco will not be entitled to claim for themselves or any of
their respective assets or property immunity from suit, execution,
attachment or other legal process.
Any certificate signed by any officer of the Company or Tyco delivered
to the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or Tyco, as the case may be, to each
Underwriter as to the matters covered thereby.
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5. The Company and Tyco, jointly and severally, covenant and agree
with each of the several Underwriters as follows:
(a) to file the Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities or, if
applicable, such earlier time as may be required by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Company and Tyco, a signed copy of
the Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (g)
below, to furnish each of the Underwriters as many copies of any
preliminary prospectus and the Prospectus (including all amendments and
supplements thereto) and documents incorporated by reference therein as
you may reasonably request;
(c) from the date hereof and prior to the Closing Date, to
furnish you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
and timely object;
(d) to file promptly, subject to the provisions of paragraph
(c) above, all reports and any definitive proxy or information
statements required to be filed by Tyco with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the period
mentioned in paragraph (f) below;
(e) during the period mentioned in paragraph (g) below, to
advise you promptly, and to confirm such advice in writing, (i) when
any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the initiation or threatening of any
proceeding for that purpose known to the Company or Tyco, and (iv) of
the receipt by the Company or Tyco of any notification with respect to
any suspension of the qualification of the Securities and the
Guarantees for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use their best
efforts to prevent the issuance of any such stop order or notification
and, if issued, to obtain as soon as possible the withdrawal thereof;
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(f) the Company and Tyco will comply with the Securities Act
and the Exchange Act so as to permit the completion of the distribution
of the Securities and the Guarantees contemplated in this Agreement and
in the Prospectus;
(g) if, during such period after the first date of the public
offering of the Securities and the Guarantees as in the opinion of
counsel for the Underwriters a prospectus relating to the Securities
and the Guarantees is required by law to be delivered in connection
with sales of the Securities and the Guarantees by an Underwriter or
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Company and Tyco, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with law;
(h) to endeavor to qualify the Securities and the Guarantees
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Securities and the Guarantees; provided that neither the Company
nor Tyco shall be required to file a general consent to service of
process or qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or as a dealer in securities in any
jurisdiction in which it is not so qualified or subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not so subject;
(i) to use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Prospectus under "Use of Proceeds";
(j) to make generally available to their security holders and
to you as soon as practicable an earnings statement which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of Tyco occurring
after the "effective date" (as defined in Rule 158) of the Registration
Statement;
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(k) so long as the Securities and the Guarantees are
outstanding, to furnish to you copies of all reports or other
communications (financial or other) furnished to holders of Securities
and the Guarantees, and copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange;
(l) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company or Tyco which are
substantially similar to the Securities or the Guarantees without prior
written consent of the Representatives; and
(m) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities and
the Guarantees, including any expenses of the Trustee, (ii) incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities and the Guarantees under the laws of such jurisdictions as
the Underwriters may designate, including reasonable fees of counsel
for the Underwriters and their disbursements, (iv) in connection with
the listing of the Securities and the Guarantees on any stock exchange,
(v) related to any filing with the National Association of Securities
Dealers, Inc., (vi) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the
Indenture, the Preliminary and Supplemental Blue Sky Memoranda and any
Legal Investment Survey and the furnishing to the Underwriters and
dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided and (vii) payable to
rating agencies in connection with the rating of the Securities, it
being understood that the Company and Tyco shall not be responsible for
the fees and expenses of counsel to the Underwriters except as
explicitly set forth herein.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company and Tyco
contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date and the Company and Tyco shall
have complied with
-12-
all agreements and all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; 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 all requests for
additional information on the part of the Commission shall have been
complied with to your satisfaction;
(c) 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
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company or Tyco
by any "nationally recognized statistical rating organization", as such
term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material change
in the capital stock or long-term debt of Tyco or any of its
subsidiaries, or any Material Adverse Effect otherwise than as set
forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities
and the Guarantees on the terms and in the manner contemplated in the
Prospectus; and neither Tyco nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order to decree, otherwise
than as et forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of each of the
Company and Tyco with specific knowledge about each of the Company's
and Tyco's financial matters, satisfactory to you to the effect set
forth in subsections (a) through (c) of this Section and to the further
effect that there has not occurred any Material Adverse Effect;
(f) M. ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel for Tyco International
(US), Inc., a subsidiary of the Company ("Tyco US"), shall have
furnished to you a written
-13-
opinion, dated the Closing Date, in form and substance satisfactory to
you, to the effect set forth in Exhibit A-1 hereto;
(g) Kramer, Levin, Naftalis & ▇▇▇▇▇▇▇, counsel for the Company
and Tyco, shall have furnished to you their written opinion, dated the
Closing Date, in form and substance satisfactory to you, to the effect
set forth in Exhibit A-2 hereto;
(h) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Loeff ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Luxembourg
counsel for the Company, shall have furnished to you their written
opinion, dated the Closing Date, in form and substance satisfactory to
you, to the effect set forth in Exhibit A-3 hereto;
(i) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Bermuda counsel for Tyco, shall
have furnished to you their written opinion, dated the Closing Date, in
form and substance satisfactory to you, to the effect set forth in
Exhibit A-4 hereto;
(j) on the date hereof and on the Closing Date, Coopers &
▇▇▇▇▇▇▇ L.L.P. shall have furnished to you letters, dated such date, in
form and substance satisfactory to you, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus;
(k) you shall have received on and as of the Closing Date an
opinion of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the
Underwriters, with respect to the validity of the Indenture, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(l) you shall have received on and as of the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Underwriters, with
respect to the validity of the Securities and the Guarantees, the
conformity of the Securities to the description thereof and other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(m) on or prior to the Closing Date, the Company and Tyco
shall have executed and delivered the Remarketing Agreement in a form
acceptable to ▇.▇. ▇▇▇▇▇▇ Securities Inc., as remarketing dealer
thereunder; and
(n) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
-14-
7. The Company and Tyco, jointly and severally, agree to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including without limitation the reasonable legal fees
and other expenses incurred in connection with any suit, action or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company or Tyco shall have furnished any
preliminary prospectus, 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 untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company or Tyco in
writing by such Underwriter through the Representatives expressly for use
therein; provided that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, Tyco and their respective directors and officers who
sign the Registration Statement and each person who controls the Company or Tyco
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company and
Tyco to each Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company and Tyco in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom
-15-
such indemnity may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person 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 Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person 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 Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by the first of the named Representatives on
Schedule I hereto and any such separate firm for the Company, Tyco and their
respective directors and officers who sign the Registration Statement and such
control persons of the Company and Tyco shall be designated in writing by the
Company and Tyco. The Indemnifying Person 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
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person 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 45 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement unless the Indemnifying Person in good faith shall be contesting the
reasonableness of such fees and expenses (but only to the extent so contested)
or the entitlement of the Indemnified Person to indemnification under the terms
of this Section 7. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
-16-
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 and Tyco on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and Tyco on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and Tyco on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Securities and Guarantees (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and Tyco and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities and Guarantees. The relative fault of the Company and Tyco on the one
hand and 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 and Tyco 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, Tyco and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person 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
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
-17-
to contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and Tyco set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, Tyco, their respective officers or directors or any other person
controlling the Company or Tyco and (iii) acceptance of and payment for any of
the Securities and the Guarantees.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company or Tyco, if 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, the Nasdaq National Market, the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of or guaranteed by the Company or Tyco
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of 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
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the 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
-18-
amount of Securities that any Underwriter has agreed to purchase pursuant to
Section 1 be increased pursuant to this Section 9 by an amount in excess of
one-tenth of such principal amount of Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Securities and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased, and arrangements
satisfactory to you, the Company and Tyco for the purchase of such Securities
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
Tyco. In any such case either you 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.
10. 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 or Tyco to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company or Tyco shall be unable to perform its obligations
under this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company and Tyco agree to 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 expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of the Securities and the Guarantees.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, Tyco, the Underwriters and any Indemnified Persons referred to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Securities from any Underwriter shall be deemed to be a successor or assign
by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
I hereto. Notices to the Company and Tyco shall be given to them, if the
-19-
Company, at ▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Attention:
the Managing Directors; if to Tyco, at The ▇▇▇▇▇▇▇ Building, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Secretary, with a copy to Tyco
International (US), Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention:
General Counsel.
13. Each of the Company and Tyco (i) agrees that any legal suit,
action or proceeding brought by any party to enforce any rights under or with
respect to this Agreement or any other document or the transactions contemplated
hereby or thereby may be instituted in any state or federal court in The City of
New York, State of New York, U.S.A., (ii) irrevocably waives to the fullest
extent permitted by law any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding, (iii) irrevocably waives
to the fullest extent permitted by law any claim that and agrees not to claim or
plead in any court that any such action, suit or proceeding brought in such
court has been brought in an inconvenient forum and (iv) irrevocably submits to
the non-exclusive jurisdiction of any such court in any such suit, action or
proceeding or for recognition and enforcement of any judgment in respect
thereof.
Each of the Company and Tyco hereby irrevocably and unconditionally
designates and appoints CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇.▇.▇. (and any successor entity) as its authorized agent to receive and
forward on its behalf service of any and all process which may be served in any
such suit, action or proceeding in any such court and agrees that service of
process upon CT Corporation shall be deemed in every respect effective service
of process upon it in any such suit, action or proceeding and shall be taken and
held to be valid personal service upon it. Said designation and appointment
shall be irrevocable. Nothing in this Section 13 shall affect the right of the
Underwriters, their affiliates or any indemnified party to serve process in any
manner permitted by law or limit the right of the Underwriters, their affiliates
or any indemnified party to bring proceedings against the Company or Tyco in the
courts of any jurisdiction or jurisdictions. Each of the Company and Tyco
further agrees to take any and all action, including the execution and filing of
any and all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation in full force and effect so long
as the Securities and the Guarantees are outstanding but in no event for a
period longer than five years from the date of this Agreement. Each of the
Company and Tyco hereby irrevocably and unconditionally authorizes and directs
CT Corporation to accept such service on its behalf. If for any reason CT
Corporation ceases to be available to act as such, each of the Company and Tyco
agrees to designate a new agent in New York City on the terms and for the
purposes of this provision reasonably satisfactory to the Underwriters.
To the extent that either the Company or Tyco has or hereafter may
acquire any immunity from jurisdiction of any court (including, without
limitation, any court in the United States, the State of New York, Luxembourg,
Bermuda or any political subdivision thereof) or from any legal process (whether
through service of notice, attachment prior to
-20-
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property or assets, this Agreement, or any other documents or
actions to enforce judgments in respect of any thereof, it hereby irrevocably
waives such immunity, and any defense based on such immunity, in respect of its
obligations under the above-referenced documents and the transactions
contemplated thereby, to the extent permitted by law.
14. If pursuant to a judgment or order being made or registered
against the Company or Tyco, any payment under or in connection with this
Agreement to an Underwriter is made or satisfied in a currency (the "Judgment
Currency") other than in United States dollars then, to the extent that the
payment (when converted into United States dollars at the rate of exchange on
the date of payment or, if it is not practicable for such Underwriter to
purchase United States dollars with the Judgment Currency on the date of
payment, at the rate of exchange as soon thereafter as it is practicable for it
to do so) actually received by such Underwriter falls short of the amount due
under the terms of this Agreement, the Company or Tyco shall, to the extent
permitted by law, as a separate and independent obligation, indemnify and hold
harmless such Underwriter against the amount of such short fall and such
indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. For the purpose of this Section, "rate of
exchange" means the rate at which the Underwriter is able on the relevant date
to purchase United States dollars with the Judgment Currency and shall take into
account any premium and other costs of exchange.
-21-
15. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
TYCO INTERNATIONAL GROUP S.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
Accepted: June 4, 1998
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
SCHEDULE I
Representatives: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
Underwriting Agreement June 4, 1998
Dated:
Registration Statement 333-50855 and ▇▇▇-▇▇▇▇▇-▇▇
No.:
Title of Securities: 6 1/4% Dealer remarketable securities
("Drs.") due ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Principal $750,000,000
Amount:
Purchase Price: 98.903% of the principal amount of the
Drs., plus accrued interest, if any,
from June 9, 1998
Price to Public: 99.503% of the principal amount of the
Drs., plus accrued interest, if any,
from June 9, 1998
Indenture: Indenture dated as of June __, 1998
among the Company, Tyco International
Ltd., The Bank of New York, as Trustee
Final Maturity: May 15, 2013
Interest Rate: 6 1/4% per annum, accruing from June 9,
1998, until the Remarketing Date.
Thereafter, if the Drs. remain
outstanding, they will bear interest
at the Interest Rate to Maturity
determined in accordance with the
procedures described in the Prospectus
Supplement dated June 5, 1998 (the
"Prospectus Supplement") to the
Prospectus dated May 1, 1998.
Interest Payment Dates: June 15 and December 15, commencing
December 15, 1998
Remarketing/Mandatory The Drs. are subject to mandatory
Repurchase tender on June 15,
Provisions: 2003 (the "Remarketing Date"). If
▇.▇. ▇▇▇▇▇▇ Securities Inc., as
remarketing dealer (the "Remarketing
Dealer"), has elected to remarket the
Drs. as described in the Prospectus
Supplement, the Drs. will be subject
to mandatory tender to the Remarketing
Dealer at 100% of the principal amount
thereof for remarketing on the
Remarketing Date. If the Remarketing
Dealer elects not to remarket the Drs.
on the Remarketing Date, the Company
will be required to purchase on the
Remarketing Date any Drs. that have
not been purchased by the Remarketing
Dealer at 100% of the principal amount
thereof plus accrued interest, if any.
Redemption: The Drs. will be redeemable by the
Company on and after the Remarketing
Date as set forth in the Prospectus
Supplement.
Sinking Fund Provisions: None
Remarketing Agreement: The Company, Tyco and ▇.▇. ▇▇▇▇▇▇
Securities Inc., as remarketing dealer
(the "Remarketing Dealer") shall
execute and deliver a remarketing
agreement on or prior to the Closing
Date. In consideration therefor, the
Remarketing Dealer shall make a
payment to the Company on the Closing
Date equal to 2.905% of the principal
amount of the Drs.
Other Provisions: As set forth in the Prospectus
Supplement
Closing Date and Time of June 9, 1998
Delivery:
Closing Location: New York, New York
Address for Notices to c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
Underwriters: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-2-
SCHEDULE II
Principal Amount of
SecuritiesTo Be
Underwriter Purchased
----------- -------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc................................. $ 238,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.......................... 197,000,000
▇▇▇▇▇▇ Brothers Inc. ...................................... 88,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated......................................... 88,000,000
Credit Suisse First Boston 58,000,000
Corporation ...............................................
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation........................................... 58,000,000
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇............................. 7,500,000
BNY Capital Markets, Inc................................... 7,500,000
CommerzBank Capital Markets Corporation................... 7,500,000
Total................................................. $750,000,000
------------
------------
Exhibit A-1
FORM OF OPINION OF THE GENERAL COUNSEL
OF TYCO (US) TO BE DELIVERED
PURSUANT TO SECTION 6(f)
1. Each of Tyco and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to be
so qualified or in good standing would not have a Material Adverse Effect.
2. Each significant subsidiary of Tyco (as such term is defined in
Rule 1-02 of Regulation S-X under the Securities Act) (each, a "Significant
Subsidiary" and together with all of Tyco's other subsidiaries, the
"Subsidiaries") is a corporation validly organized and existing under the laws
of its jurisdiction of incorporation, has the requisite power and authority
(corporate and other) to own, lease and operate its properties and conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing under the laws of each
other jurisdiction in which such qualification is required except where the
failure to be so qualified and be in good standing would not have a Material
Adverse Effect; and all of the issued shares of capital stock of each Subsidiary
have been duly authorized and validly issued, are fully paid and non-assessable,
and (except for non-material liens that have arisen in the ordinary course of
business and, in the case of non-United States subsidiaries, for directors'
qualifying shares) are owned directly or indirectly by Tyco or the Company, as
the case may be, directly or indirectly, free and clear of all liens,
encumbrances, equities or claims.
3. To the best of such counsel's knowledge, other than as disclosed
in or contemplated by the Prospectus, there are no legal or governmental
proceedings pending or threatened to which Tyco or any of its Subsidiaries is or
may be a party or to which any property of Tyco or any of its Subsidiaries is or
may be the subject which, if determined adversely to Tyco or such subsidiaries,
could individually or in the aggregate reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated in the Underwriting
Agreement or the Remarketing Agreement or the performance by Tyco or the Company
of all of the provisions of their respective obligations hereunder or
thereunder.
4. To the best of such counsel's knowledge, no legal or governmental
proceedings are pending or threatened against Tyco or any of its Subsidiaries
which are required to be disclosed in the Registration Statement or the
Prospectus; other than those disclosed therein.
5. To the best of such counsel's knowledge there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
documents to which Tyco or the Company is a party or by which any of them may be
bound that are required to be described in the Registration Statement or the
Prospectus or required to be filed as an exhibit to the Registration Statement,
other than those described or filed or incorporated by reference as an exhibit
as required.
6. The Underwriting Agreement has been duly executed and delivered by
each of the Company and Tyco.
7. The Securities have been duly executed by the Company.
8. The Guarantees have been duly executed by Tyco.
9. The Indenture has been duly executed and delivered by each of the
Company and Tyco.
10. The Remarketing Agreement has been duly executed and delivered by
each of the Company and Tyco.
11. Neither Tyco nor any of its Subsidiaries is, or, based upon
presently existing circumstances with the giving of notice or lapse of time or
both would be, in violation of or in default under, their respective Charters or
by-laws or any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument known to such counsel to which Tyco
or any of its Subsidiaries is a party or by which it or any of them or any of
their respective properties is bound, except for violations and defaults which
individually and in the aggregate would not result in a Material Adverse Effect
(other than with respect to Tyco's Memorandum of Association and Bye-Laws and
the Company's Articles of Association, as to such which counsel need not express
an opinion) or are not material to the holders of the Securities and the
Guarantees.
12. The execution, delivery, and performance by the Company and Tyco
of the Underwriting Agreement, the Indenture, the Remarketing Agreement, the
Securities and the Guarantees, as applicable, and the consummation of the
transactions contemplated hereby, thereby and in the Registration Statement
(including the issue and sale of the Securities and the Guarantees and the use
of proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds") and the compliance by the Company and Tyco with
their respective obligations under the Underwriting Agreement and the
Remarketing Agreement do not and will not, whether with or without the giving of
notice or the lapse of time or both, conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge, or encumbrance upon the property or
assets of the
2
Company or any Subsidiary pursuant to, any contract, indenture, mortgage, deed
of trust, loan agreement, note, lease or other material agreement or instrument
known to such counsel to which Tyco or any of its Subsidiaries is a party or is
bound or to which any of their respective properties or assets is subject
(except for such conflicts, breaches, defaults or liens, charges or encumbrances
that would not have a Material Adverse Effect), nor will any such action result
in any violation of the provisions of the Charter or the by-laws of any
subsidiary of Tyco (other than the Company) or, to the knowledge of such
counsel, any applicable law or statute or any order, writ, decree, rule or
regulation (other than state securities or Blue Sky laws or regulations, as to
which counsel need express no opinion) of any court or governmental agency or
body having jurisdiction over Tyco or any of its Subsidiaries or any of their
respective properties or assets.
13. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States, the State of New York or the Commonwealth of Massachusetts is legally
required to be obtained by the Company or Tyco in connection with the
authorization, execution and delivery of the Underwriting Agreement, the
Remarketing Agreement and the Indenture or the consummation of the transactions
contemplated hereby and thereby (including the issuance and sale of the
Securities and the issuance of the Guarantees), except such consents, approvals,
authorizations, orders, registrations or qualifications as have been obtained
under the Securities Act and the Trust Indenture Act and as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities and the distribution of the Guarantees by the
Underwriters.
14. The statements in the Prospectus under "Legal Proceedings"
incorporated by reference from Item 3 of Part I of Tyco's Transition Report on
Form 10-K for the nine months ended September 30, 1997 and in the Registration
Statement in Item 15, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly present in
all material respects the information called for with respect to such legal
matters, documents or proceedings.
15. Each document incorporated by reference in the Registration
Statement and the Prospectus, when filed with the Commission under the Exchange
Act, complied as to form in all material respects with the requirements of the
Exchange Act (except that such counsel need express no opinion as to financial
statements, the notes thereto and related schedules and other financial,
numerical or accounting data included in or omitted from any of the documents
referred to in this paragraph (xv) or as to Form T-1).
16. To the best of such counsel's knowledge, no holders of securities
of Tyco or any of its Subsidiaries have rights to the registration of such
securities or other securities as a result of the filing by the Company and the
Guarantees of the Registration Statement or the offering contemplated thereby.
3
17. Neither the Company nor Tyco is an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
1940 Act.
Although such counsel has not undertaken to determine independently the
accuracy and completeness of the statements contained in the Registration
Statement, the Prospectus or any supplements or amendments thereto, such counsel
has obtained information as a result of discussions and meetings with officers
and other representatives of the Company and Tyco and discussions with
representatives of the independent public accountants of the Company and Tyco,
in connection with the preparation of the Registration Statement and the
Prospectus and the examination of other information and documents requested by
such counsel. Although such counsel has not undertaken to determine
independently, and, therefore, such counsel does not assume responsibility,
explicitly or implicitly, for the accuracy or completeness of the statements
contained in the Registration Statement or the Prospectus or any amendments or
supplements thereto, and such counsel cannot provide assurance that its
procedures described in this sentence would necessarily reveal matters of
significance with respect to the following comments, during the course of the
above-described procedures, nothing has come to such counsel's attention that
has caused such counsel to believe that the Registration Statement or any
amendment thereto (including the documents incorporated by reference therein),
on the effective date thereof or on the date of the Underwriting Agreement,
contained an 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 or that the Prospectus or any supplement thereto (including
documents incorporated therein by reference), on the date of the Underwriting
Agreement or on the date of such opinion, contained an 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, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
not express a view with respect to financial statements, notes thereto and
related schedules and other financial or accounting data included in the
Registration Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, Tyco and public officials.
Such opinion shall not state that it is to be governed or qualified by, or that
it is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991). Such opinion may state that
such counsel expresses no opinion concerning any laws other than the laws of the
Commonwealth of Massachusetts and the State of New York and the Federal laws of
the United States of America.
4
Exhibit A-2
FORM OF OPINION OF THE COMPANY'S AND TYCO'S
UNITED STATES COUNSEL TO
BE DELIVERED PURSUANT TO SECTION 6(g)
1. The Underwriting Agreement constitutes the valid and binding
agreement of the Company and Tyco enforceable against the Company and Tyco in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, moratorium and other similar laws affecting
enforceability of creditors' rights generally and general principles of equity
and except as rights to indemnity and contribution hereunder may be limited by
applicable law.
2. When the Securities have been duly authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, the
Securities will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
and other similar laws affecting enforceability of creditors' rights generally
and general principles of equity and entitled to the benefits provided by the
Indenture.
3. When the Securities have been duly authenticated in accordance
with the terms of the Indenture and issued and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, the
Guarantees will have been duly executed, issued and delivered and will
constitute valid and binding obligations of Tyco entitled to the benefits
provided by the Indenture and enforceable against Tyco in accordance with their
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, moratorium and other similar laws affecting enforceability of
creditors' rights generally and general principles of equity.
4. The Indenture constitutes a valid and binding instrument of each
of the Company and Tyco enforceable against each of the Company and Tyco in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, moratorium and other similar laws affecting
enforceability of creditors' rights generally and general principles of equity;
and the Indenture has been duly qualified under the Trust Indenture Act.
5. The Indenture has been duly qualified under the Trust Indenture
Act.
6. The Remarketing Agreement constitutes a valid and binding
instrument of each of the Company and Tyco enforceable against the Company and
Tyco in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy,
insolvency, moratorium and other similar laws affecting enforceability of
creditors' rights generally and general principles of equity.
7. The descriptions of documents contained in the Prospectus under
"Description of the Drs.", "Description of Debt Securities and the Guarantees",
"Plan of Distribution" and "Underwriting" conform in all material respects to
the terms of the applicable documents.
8. The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment and supplement
to the Registration Statement and the Prospectus comply as to form in all
material respects with the requirements of the Securities Act and the Trust
Indenture Act.
9. The Registration Statement has been declared effective under the
Securities Act; any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule 424(b);
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act, and no proceedings for that purpose have been instituted or are pending or,
to such counsel's knowledge, threatened by the Commission.
10. The statements made in the Prospectus Supplement under "Certain
United States Federal Income and Luxembourg Tax Consequences" to the extent that
they are statements of United States federal laws or legal conclusions
thereunder, have been reviewed by us and fairly present the information
disclosed therein in all material respects.
Although such counsel has not undertaken to determine independently the
accuracy and completeness of the statements contained in the Registration
Statement, the Prospectus or any supplements or amendments thereto, such counsel
has obtained information as a result of discussions and meetings with officers
and other representatives of the Company and Tyco and discussions with
representatives of the independent public accountants of the Company and Tyco,
in connection with the preparation of the Registration Statement, the Prospectus
and any amendments and supplements thereto, and the examination of other
information and documents deemed relevant by such counsel. Although such counsel
has not undertaken to determine independently, and, therefore, such counsel does
not assume responsibility, explicitly or implicitly, for the accuracy and
completeness of the statements contained in the Registration Statement, the
Prospectus or any supplements or amendments thereto, and such counsel cannot
provide assurance that its procedures described in the preceding sentence would
necessarily reveal matters of significance with respect to the following
comments, during the course of the above-described procedures, nothing has come
to such counsel's attention that has caused such counsel to believe that the
Registration Statement or any amendment thereto
2
(including documents incorporated therein by reference), on the effective date
thereof, or on the date of the Underwriting Agreement, contained an 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, or
that the Prospectus or any supplement thereto (including documents incorporated
therein by reference), on the date of the Underwriting Agreement or on the date
of such opinion, contained an 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, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need not express a view
with respect to financial statements, notes thereto and related schedules and
other financial or accounting data included in the Registration Statement or the
Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, Tyco and public officials.
Such opinion shall not state that it is to be governed or qualified by, or that
it is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991). Such opinion may state that
such counsel expresses no opinion concerning any laws other than the laws of the
State of New York and the Federal laws of the United States of America and that
as to various matters relating to the authorization, execution and delivery of
this Agreement, the Indenture, the Securities and the Guarantees, such counsel
has relied upon the opinions of the General Counsel of Tyco (US), Luxembourg
counsel to the Company and Bermuda counsel to Tyco.
3
Exhibit A-3
FORM OF OPINION OF THE COMPANY'S LUXEMBOURG
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 6(h)
1. The Company is a corporation validly organized and existing as a
corporation under the laws of Luxembourg.
2. The Company has the requisite power and authority (corporate and
other) to own, lease and operate its properties and to conduct its business as
described in the Prospectus as then amended or supplemented and to enter into
and perform its obligations under the Underwriting Agreement, the Indenture, the
Remarketing Agreement and the Securities.
3. All of the issued shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and non-assessable, and
(except for non-material liens that have arisen in the ordinary course of
business and for directors' qualifying shares) are owned directly or indirectly
by Tyco, free and clear of all liens, encumbrances, equities or claims.
4. To the best of such counsel's knowledge, other than as disclosed
in or contemplated by the Prospectus, there are no legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any
of its subsidiaries is or may be the subject, before or brought by any court or
governmental agency or body in Luxembourg which, if determined adversely to the
Company or such subsidiaries, could individually or in the aggregate reasonably
be expected to have a material adverse effect on the business, prospects,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, or which could reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated in the Underwriting Agreement or the Remarketing Agreement or the
performance by the Company of its obligations thereunder.
5. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
6. The Securities have been duly authorized by the Company.
7. The Indenture has been duly authorized by the Company.
8. The Remarketing Agreement has been duly authorized by the Company.
9. The execution, delivery, and performance by the Company of the
Underwriting Agreement, the Indenture, the Remarketing Agreement and the
Securities, and the consummation of the transactions contemplated hereby,
thereby and in the Registration Statement (including the issue and sale of the
Securities and the use of proceeds from the sale of the Securities as described
in the Prospectus under the caption "Use of Proceeds") and the compliance by the
Company with its obligations under the Underwriting Agreement and the
Remarketing Agreement do not and will not, whether with or without the giving of
notice or the lapse of time or both, result in any violation of the provisions
of the Charter of the Company or any applicable law or statute or any order,
writ, decree, rule or regulation of Luxembourg or of any court or governmental
agency or body in Luxembourg having jurisdiction over the Company or any of its
properties or assets.
10. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body in Luxembourg
is legally required to be obtained by the Company in connection with the
authorization, execution and delivery of the Underwriting Agreement, the
Remarketing Agreement and the Indenture or the consummation of the transactions
contemplated hereby and thereby (including the issuance and sale of the
Securities) except such consents, approvals, authorizations, orders,
registrations or qualifications as have been obtained.
11. The statements made in the Prospectus Supplement under "Certain
United States Federal Income and Luxembourg Tax Consequences" to the extent that
they are statements of Luxembourg law or legal conclusions thereunder, have been
reviewed by us and fairly present the information disclosed therein in all
material respects.
12. The courts of Luxembourg will give effect to: (i) the choice of
the laws of New York to govern the Underwriting Agreement, the Remarketing
Agreement and the Indenture which stipulate New York as the choice of law
assuming such choice is valid under the laws of the state of New York; (ii) the
submission to the jurisdiction of the federal and state courts in The City of
New York, State of New York by the Company in the Underwriting Agreement, the
Remarketing Agreement and the Indenture which contain such submission to
jurisdiction clause, assuming such submission is valid under the laws of the
state of New York; (iii) the appointment by the Company of CT Corporation System
as an agent for service of process in the Underwriting Agreement, the
Remarketing Agreement and the Indenture; and (iv) the waiver of any objection to
the venue of any action in any such court (including the waiver and agreement
not to claim any objection that the proceeding has been in an inconvenient
forum).
13. A final and conclusive judgment of a court of the United States
under which a sum of money is payable may be the subject of enforcement
proceedings in the [Supreme Court] of Luxembourg by action for the debt
evidenced by the foreign court's judgment.
2
14. Under the circumstances of the sale of the Securities to the
Underwriters in the manner contemplated by the Underwriting Agreement and the
resale of the Securities by the Underwriters, no ad valorem stamp duties or
similar taxes are payable in Luxembourg.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). Such opinion may state that such counsel
expresses no opinion concerning any laws other than the laws of Luxembourg.
3
Exhibit A-4
FORM OF OPINION OF TYCO'S
BERMUDA COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 6(i)
1. Tyco is a limited liability company validly organized and existing
and in good standing under the laws of Bermuda.
2. Tyco has the requisite power and authority (corporate and other)
to own, lease and operate its properties and to conduct its business as
described in, the Prospectus as then amended or supplemented and to enter into
and perform its obligations under the Underwriting Agreement, the Indenture, the
Remarketing Agreement and the Guarantees.
3. To the best of such counsel's knowledge, other than as disclosed
in or contemplated by the Prospectus, there are no legal or governmental
proceedings pending or threatened to which Tyco or any of its subsidiaries is or
may be a party or to which any property of Tyco or any of its subsidiaries is or
may be the subject, before or brought by any court or governmental agency or
body in Bermuda which, if determined adversely to Tyco or such subsidiaries,
could individually or in the aggregate reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated in the Underwriting
Agreement or the Remarketing Agreement or the performance by Tyco of its
obligations thereunder.
4. The Underwriting Agreement has been duly authorized by Tyco.
5. The Guarantees have been duly authorized by Tyco.
6. The Indenture has been duly authorized by Tyco.
7. The Remarketing Agreement has been duly authorized by Tyco.
8. The execution, delivery, and performance by Tyco of the
Underwriting Agreement, the Indenture, the Remarketing Agreement and the
Guarantees, and the consummation of the transactions contemplated hereby,
thereby and in the Registration Statement (including the issuance of the
Guarantees) and the compliance by Tyco with its obligations under the
Underwriting Agreement and the Remarketing Agreement do not and will not,
whether with or without the giving of notice or the lapse of time or both,
result in any violation of the provisions of the Charter or the bye-laws of Tyco
or any applicable law or statute or any order, writ, decree, rule or regulation
of Bermuda or of
any court or governmental agency or body in Bermuda having jurisdiction over
Tyco or any of its properties or assets.
9. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body in Bermuda is
legally required to be obtained by Tyco in connection with the authorization,
execution and delivery of the Underwriting Agreement, the Remarketing Agreement
and the Indenture or the consummation of the other transactions contemplated
hereby and thereby (including the issuance of the Guarantees), except for the
BMA permission which has been obtained and the filing of the Prospectus pursuant
to Section 26(1) of The Companies Act, 1981 which has been made.
10. The information in the Registration Statement under the first
paragraph of Item 15, insofar as such information constitutes a summary of the
legal matters, documents or proceedings under the laws of Bermuda referred to
therein, fairly presents the information with respect to such legal matters,
documents or proceedings.
11. The courts of Bermuda will give effect to: (i) the choice of the
laws of New York to govern the Underwriting Agreement, the Remarketing Agreement
and the Indenture which stipulate New York as the choice of law assuming such
choice is valid under the laws of the state of New York; (ii) the submission to
the jurisdiction of the federal and state courts in The City of New York, State
of New York by Tyco in the Underwriting Agreement, the Remarketing Agreement and
the Indenture which contain such submission to jurisdiction clause, assuming
such submission is valid under the laws of the state of New York; (iii) the
appointment by Tyco of CT Corporation System as an agent for service of process
contained in the Underwriting Agreement, the Remarketing Agreement and the
Indenture which contain such an appointment clause; and (iv) the waiver of any
objection to the venue of any action in any such court (including the waiver and
agreement not to claim any objection that the proceeding has been in an
inconvenient forum).
12. A final and conclusive judgment of a court of the United States
under which a sum of money is payable (not being a sum payable in respect of
taxes or other charges of a like nature, in respect of a fine of other penalty,
or in respect of Multiple Damages as defined in The Protection of Trading
Interest Act, 1981) may be the subject of enforcement proceedings in the Supreme
Court of Bermuda under the Common Law Doctrine of Obligation by action for the
debt evidenced by the foreign court's judgment. A final opinion as to the
availability of this remedy should be sought when the facts surrounding the
United States court's judgment are known, but, on general principles, one would
expect such proceedings to be successful provided that:
(a) the court which gave the judgment was competent to hear the action
in accordance with Private International Law Principles as applied in
Bermuda;
2
(b) the judgment is not contrary to public policy in Bermuda, has not
been obtained by fraud, or in proceedings contrary to natural justice
and is not based on an error in Bermuda law; and
(c) enforcement of such a judgment against assets in Bermuda may
involve the conversion of the judgment into Bermuda dollars, but the
Bermuda Monetary Authority's policy is to give the consents necessary
to enable recovery in the currency of the obligation.
13. Under the circumstances of the sale of the Securities to the
Underwriters in the manner contemplated by the Underwriting Agreement and the
resale of the Securities by the Underwriters, no ad valorem stamp duties or
similar taxes are payable in Bermuda.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of Tyco and public officials. Such opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). Such opinion may state that such counsel
expresses no opinion concerning any laws other than the laws of Bermuda.
3
