TYCO INTERNATIONAL GROUP S.A.
Debt Securities
Underwriting Agreement
June 4, 1998
To the Representatives named
in Schedules I-A, I-B and I-C hereto
of the Underwriters named in
Schedules II-A, II-B and II-C hereto
Ladies and Gentlemen:
Tyco International Group S.A., a Luxembourg company (the "Company"),
proposes to issue and sell to the underwriters named in Schedules II-A, II-B and
II-C hereto (the "Underwriters"), for whom you are acting as representatives
(the "Representatives"), the principal amount of its debt securities identified
in Schedules I-A, I-B and I-C hereto (the "Securities"), to be issued under the
indenture specified in each of Schedules I-A, I-B and I-C 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 each
of Schedules I-A, I-B and I-C (the "Trustee"). The Securities will be
unconditionally guaranteed by Tyco. If the firm or firms listed in Schedules
II-A, II-B and II-C hereto include only the firm or firms listed in Schedules
I-A, I-B and I-C 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 each of Schedules I-A, I-B
and I-C 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 the 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 ("XXXXX").
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 Schedules II-A, II-B
and II-C hereto at the purchase price set forth in Schedules I-A, I-B and I-C
hereto plus accrued interest, if any, from the date specified in Schedules I-A,
I-B and I-C 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 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 each of
Schedules I-A, I-B and I-C 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 and 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
-2-
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 global notes (the "Global Notes") 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 Notes
will be made available for inspection by the Representatives at the office of
X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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, 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
-3-
thereof filed with the Commission pursuant to XXXXX, 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 & Xxxxxxx 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 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, or
any development involving a prospective material adverse change
that is reasonably likely to occur, in or affecting the general
affairs, business,
-4-
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 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
-5-
"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 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;
(l) 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;
(m) 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
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 Securities
and the Guarantees do not and will not
-6-
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 or 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, breeches, 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 the
transactions contemplated by this Agreement or the Indenture,
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;
(n) 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 performance by the Company and Tyco of their respective
obligations hereunder; 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;
(o) 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;
-7-
(p) 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");
(q) 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 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;
(r) 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 xxx 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, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. (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; 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
(s) 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
-8-
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.
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 prices 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
respective best efforts to prevent the
-9-
issuance of any such stop order or notification and, if issued,
to obtain as soon as possible the withdrawal thereof;
(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;
(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
-10-
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;
(m) 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
(n) 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 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
-11-
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;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of a managing director or 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. Xxxxx Xxxxxx, General Counsel for Tyco International
(US), Inc., a subsidiary of the Company ("Tyco US"), shall have
furnished to you a written 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 & Xxxxxxx, 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) Xxxxx Xxxxxx Xxxxxx Loeff Xxxxxx Xxxxxxx, 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) Xxxxxxx, Xxxxxxxx & Xxxxx, 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;
-12-
(j) on the date hereof and on the Closing Date, Coopers &
Xxxxxxx L.L.P. shall have furnished to you letters, dated such
dates, 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, Xxxxxxx & Xxxxxxxx, counsel
to the Underwriters, with respect to the validity of the
Indenture, the Securities and the Guarantees, 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; and
(l) 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.
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 amendments or supplements thereto) or 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
-13-
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 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 each of Schedules I-A, I-B and I-C 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
-14-
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
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 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
Schedules I-A, I-B and I-C hereto, and not joint.
-15-
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
System, 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 Schedules II-A, II-B and II-C 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 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
-16-
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 each of
Schedules I-A, I-B and I-C 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 each of Schedules I-A, I-B and I-C 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 each of Schedules I-A, I-B and I-C hereto.
Notices to the Company and Tyco shall be given to them, if to the Company, at 0,
Xxxxxx Xxxxx Xxxxxx, 0xx Xxxxx, X-0000, Xxxxxxxxxx, Attention: the Managing
Directors; if to Tyco, at The Xxxxxxx Building, 00 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx XX 00, Xxxxxxx, Xxxxxxxxx: Secretary, with a copy to Tyco International
(US), Inc., Xxx Xxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx 00000; 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)
-17-
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, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X. (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 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
-18-
United States dollars with the Judgment Currency and shall take into account any
premium and other costs of exchange.
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/ XXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ XXXX X. XXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
-19-
Accepted: June 4, 1998
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
ABN AMRO INCORPORATED
BEAR, XXXXXXX & CO. INC.
BT ALEX. XXXXX INCORPORATED
CITICORP SECURITIES, INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
FIRST UNION CAPITAL MARKETS CORP.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
PAINEWEBBER INCORPORATED
SCOTIA CAPITAL MARKETS (USA) INC.
UBS SECURITIES LLC
By: X.X. Xxxxxx Securities Inc.
By: /s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
Vice President
-20-
SCHEDULE I-A
Representatives: X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
BT Alex. Xxxxx Incorporated
First Chicago Capital Markets, Inc.
NationsBanc Xxxxxxxxxx Securities LLC
Underwriting Agreement Dated: June 4, 1998
Registration Statement No.: 333-50855 and 000-00000-00
Title of Securities: 6-1/8% Notes due 2001
Aggregate Principal Amount: $750,000,000
Purchase Price: 99.562% plus accrued interest, if any, from June 9, 1998
Price to Public: 99.912% of the principal amount of the Securities, plus accrued
interest, if any, from June 9, 1998 to the Closing Date
Indenture: Indenture dated as of June 9, 1998 among Tyco International Group
S.A., Tyco International Ltd., The Bank of New York, as Trustee as
amended by the Supplemental Indenture No. 1 dated as of June 9, 1998
Maturity: June 15, 2001
Interest Rate: 6-1/8% per annum, accruing from June 9, 1998
Interest Payment Dates: June 15 and December 15, commencing December 15, 1998
Optional Redemption Provisions: None
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: June 9, 1998
Closing Location: New York, New York
Address for Notices to c/o X.X. Xxxxxx Securities Inc.
Underwriters: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-22-
SCHEDULE I-B
Representatives: X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
ABN AMRO Incorporated
Credit Lyonnais Securities (USA) Inc.
First Union Capital Markets Corp.
Scotia Capital Markets (USA) Inc.
Underwriting Agreement Dated: June 4, 1998
Registration Statement No.: 333-50855 and 000-00000-00
Title of Securities: 6-3/8% Notes due 2005
Aggregate Principal Amount: $750,000,000
Purchase Price: 98.966% plus accrued interest, if any, from June 9, 1998
Price to Public: 99.591% of the principal amount of the Securities, plus accrued
interest, if any, from June 9, 1998 to the Closing Date
Indenture: Indenture dated as of June 9, 1998 among Tyco International Group
S.A., Tyco International Ltd., The Bank of New York, as Trustee as
amended by the Supplemental Indenture No. 2 dated as of June 9, 1998
Maturity: June 15, 2005
Interest Rate: 6-3/8% per annum, accruing from June 9, 1998
Interest Payment Dates: June 15 and December 15, commencing December 15, 1998
Optional Redemption Provisions: None
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: June 9, 1998
Closing Location: New York, New York
Address for Notices to c/o X.X. Xxxxxx Securities Inc.
Underwriters: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-24-
SCHEDULE I-C
Representatives: X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Bear, Xxxxxxx & Co. Inc.
Citicorp Securities, Inc.
PaineWebber Incorporated
UBS Securities LLC
Underwriting Agreement Dated: June 4, 1998
Registration Statement No.: 333-50855 and 000-00000-00
Title of Securities: 7% Notes due 2028
Aggregate Principal Amount: $500,000,000
Purchase Price: 98.404% plus accrued interest, if any, from June 9, 1998
Price to Public: 99.279% of the principal amount of the Securities, plus accrued
interest, if any, from June 9, 1998 to the Closing Date
Indenture: Indenture dated as of June 9, 1998 among Tyco International Group
S.A., Tyco International Ltd., The Bank of New York, as Trustee as
amended by the Supplemental Indenture No. 3 dated as of June 9, 1998
Maturity: June 15, 2028
Interest Rate: 7% per annum, accruing from June 9, 1998
Interest Payment Dates: June 15 and December 15, commencing December 15, 1998
Optional Redemption Provisions: The Notes may be redeemed, in whole or in part, at the option of
the Company at any time at a redemption price equal to the greater
of (i) 100% of the principal amount of the Notes, and (ii) as
determined by the Quotation Agent (as defined in the Indenture),
the sum of the present values of the remaining scheduled payments
of principal and interest thereon (not including any portion of
such payments of interest accrued as of the date of redemption)
discounted to the date of redemption on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Redemption Treasury Rate (as defined in the Indenture)
plus 15 basis points plus, in each case, accrued interest thereon
to the date of redemption. The Notes are also subject to redemption
to the extent provided in Article Twelve of the Indenture.
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: June 9, 1998
Closing Location: New York, New York
Address for Notices to c/o X.X. Xxxxxx Securities Inc.
Underwriters: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-26-
SCHEDULE II-A
6-1/8% NOTES DUE 2001:
----------------------
Principal Amount of
Underwriter Securities To Be Purchased
----------- --------------------------
X.X. Xxxxxx Securities Inc.................... $ 238,000,000
Xxxxxx Xxxxxxx & Co. Incorporated............. $ 197,500,000
Xxxxxx Brothers Inc. ......................... $ 88,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated............... $ 88,000,000
Credit Suisse First Boston Corporation........ $ 58,000,000
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation............. $ 58,000,000
BT Alex. Xxxxx Incorporated................... $ 7,500,000
First Chicago Capital Markets, Inc............ $ 7,500,000
NationsBanc Xxxxxxxxxx Securities LLC......... $ 7,500,000
---------------
Total................................ $ 750,000,000
---------------
---------------
SCHEDULE II-B
6-3/8% NOTES DUE 2005:
----------------------
Principal Amount of
Underwriter Securities To Be Purchased
----------- --------------------------
X.X. Xxxxxx Securities Inc..................... $ 233,500,000
Xxxxxx Xxxxxxx & Co. Incorporated.............. $ 194,500,000
Xxxxxx Brothers Inc. .......................... $ 88,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated................ $ 88,000,000
Credit Suisse First Boston Corporation......... $ 58,000,000
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation.............. $ 58,000,000
ABN AMRO Incorporated.......................... $ 7,500,000
Credit Lyonnais Securities (USA) Inc........... $ 7,500,000
First Union Capital Markets Corp............... $ 7,500,000
Scotia Capital Markets (USA) Inc............... $ 7,500,000
-----------------
Total................................. $ 750,000,000
-----------------
-----------------
SCHEDULE II-C
7% NOTES DUE 2028:
------------------
Principal Amount of
Underwriter Securities To Be Purchased
----------- --------------------------
X.X. Xxxxxx Securities Inc..................... $ 156,000,000
Xxxxxx Xxxxxxx & Co. Incorporated.............. $ 130,000,000
Xxxxxx Brothers Inc. .......................... $ 58,500,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated................ $ 58,500,000
Credit Suisse First Boston Corporation......... $ 38,500,000
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation.............. $ 38,500,000
Bear, Xxxxxxx & Co. Inc........................ $ 5,000,000
Citicorp Securities, Inc....................... $ 5,000,000
Xxxxx Xxxxxx Incorporated...................... $ 5,000,000
UBS Securities LLC............................. $ 5,000,000
--------------
Total................................. $ 500,000,000
--------------
--------------
Exhibit A-1
FORM OF OPINION OF THE GENERAL COUNSEL
OF TYCO (US) TO BE DELIVERED
PURSUANT TO SECTION 6(f)
(i) 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.
(ii) 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.
(iii) 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 this Agreement or
the performance by Tyco or the Company of all of the provisions of their
respective obligations hereunder.
(iv) 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.
(v) 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.
(vi) This Agreement has been duly executed and delivered by each of the
Company and Tyco;
(vii) The Securities have been duly executed by the Company.
(viii) The Guarantees have been duly executed by Tyco.
(ix) The Indenture has been duly executed and delivered by each of the
Company and Tyco.
(x) 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 which such counsel need not express an opinion)
or are not material to the holders of the Securities and the Guarantees.
(xi) The execution, delivery, and performance by the Company and Tyco of
this Agreement, the Indenture, 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 this 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 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 any applicable law or statute or any order,
writ, decree, rule or regulation to the knowledge of such counsel (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.
(xii) 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 this 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.
(xiii) The statements in the Prospectus under "Legal Proceedings"
incorporated by reference from
-2-
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.
(xiv) 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).
(xv) 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.
(xvi) 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 this 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 this 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,
-3-
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)
(i) This 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.
(ii) 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 this 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.
(iii) 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 this Agreement, the Guarantees 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.
(iv) 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.
(v) The Indenture has been duly qualified under the Trust Indenture Act.
(vi) The descriptions of documents contained in the Prospectus under
"Description of the Notes", "Description of Debt Securities and the Guarantees",
"Plan of Distribution" and "Underwriting" conform in all material respects to
the terms of the applicable documents.
(vii) 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.
(viii) 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
-1-
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.
(ix) The statements made in the Prospectuses 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 (including documents
incorporated therein by reference), on the effective date thereof or on the date
of this 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
this 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.
-2-
Exhibit A-3
FORM OF OPINION OF THE COMPANY'S LUXEMBOURG
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 6(h)
(i) The Company is a corporation validly organized and existing as a
corporation under the laws of Luxembourg.
(ii) 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 this Agreement, the Indenture and the
Securities.
(iii) 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.
(iv) 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 this Agreement or the performance by the Company of its
obligations thereunder.
(v) This Agreement has been duly authorized, executed and delivered by the
Company.
(vi) The Securities have been duly authorized by the Company.
(vii) The Indenture has been duly authorized by the Company.
(viii) The execution, delivery, and performance by the Company of this
Agreement, the Indenture 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 this
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
-1-
properties or assets.
(ix) 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 this 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.
(x) The statements made in the Prospectus 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.
(xi) The courts of Luxembourg will give effect to: (i) the choice of the
laws of New York to govern this 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 this
Agreement and in 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 this Agreement and in 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).
(xii) 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.
(xiii) Under the circumstances of the sale of the Securities to the
Underwriters in the manner contemplated by the this Agreements 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.
-2-
Exhibit A-4
FORM OF OPINION OF TYCO'S
BERMUDA COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 6(i)
(i) Tyco is a limited liability company validly organized and existing and
in good standing under the laws of Bermuda.
(ii) 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 this Agreement, the Indenture and the Guarantees.
(iii) 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 this Agreement or
the performance by Tyco of its obligations thereunder.
(iv) This Agreement has been duly authorized by Tyco.
(v) The Guarantees have been duly authorized by Tyco.
(vi) The Indenture has been duly authorized by Tyco.
(vii) The execution, delivery, and performance by Tyco of this Agreement,
the Indenture 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 this 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.
(viii) 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 this 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.
-1-
(ix) 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.
(x) The courts of Bermuda will give effect to: (i) the choice of the laws
of New York to govern this 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 this Agreement and
in 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 this Agreement and in 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).
(xi) 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;
(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.
(xiv) Under the circumstances of the sale of the Securities to the
Underwriters in the manner contemplated by this 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.
-2-
