Exhibit 1.2
TYCO INTERNATIONAL GROUP S.A.
$500,000,000 Floating Rate Notes due 2003
$600,000,000 4.950% Notes due 2003
$700,000,000 5.800% Notes due 2006
Underwriting Agreement
July 24, 2001
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Tyco International Group S.A., a Luxembourg company (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") among the Company, Tyco International
Ltd., a Bermuda company and the sole shareholder of the Company ("Tyco"), and
the Trustee identified in Schedule I (the "Trustee"). The Securities will be
unconditionally guaranteed by Tyco. If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives", as used herein shall each be deemed
to refer to such firm or firms.
The Company and Tyco have prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain securities, including 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 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 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 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 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 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"). This Agreement, the Indenture, the Securities, the Guarantees and
each other agreement or document delivered or related hereto or thereto are
sometimes hereinafter referred to as the "Transaction Documents."
The Company and Tyco hereby agree with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities and Tyco agrees
to issue the Guarantees to the several Underwriters as hereinafter provided, and
each Underwriter, on the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective principal amount of
Securities set forth opposite such Underwriter's name in Schedule II hereto at
the purchase price set forth in Schedule I hereto plus accrued interest, if any,
from the date specified in Schedule I hereto to the date of payment and
delivery.
2. The Company and Tyco understand that the several Underwriters intend
(i) to make a public offering of their respective portions of the Securities and
the Guarantees and (ii) initially to offer the Securities and the Guarantees
upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives no later than noon on the Business Day (as defined below) prior
to the Closing Date (as defined below), on the date and at the time and place
set forth in Schedule I hereto (or at such other time and place on the same or
such other date, not later than the fifth Business Day 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 time and date of such payment and delivery with respect to
the Securities are referred to herein as the "Closing Date".
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Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of one or more global notes (the "Global 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
offices of Milbank, Tweed, Xxxxxx & XxXxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, not later than 4:00 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 as follows:
(a) REGISTRATION STATEMENT. 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 of 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 by such Underwriter through the Representatives
expressly for use therein; each Prospectus, including any amendment or
supplement thereto, delivered to the Underwriters for use in connection with the
offering contemplated hereby were identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T of the Securities Act.
(b) INCORPORATED DOCUMENTS. 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
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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) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement are independent public accountants with
respect to the company whose financial statements are the subject of such
certification within the meaning of Regulation S-X under the Securities Act.
(d) FINANCIAL STATEMENTS OF TYCO. 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) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no change
with respect to the Company or Tyco that would result in a Material Adverse
Effect (as defined below) to the Company or Tyco, respectively, and (B) there
have been no transactions entered into by Tyco or any of its subsidiaries, other
than those in the ordinary course of business, which are material with respect
to Tyco and its subsidiaries as a whole. For purposes of this Agreement,
"Material Adverse Effect" with respect to an entity means a material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the entity and its consolidated subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business.
(f) GOOD STANDING OF THE COMPANY. The Company has been duly
incorporated and is validly existing under the laws of Luxembourg and has
corporate power and authority to own, lease or operate its properties and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement and each other
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Transaction Document to which it is a party or by which it is bound; and the
Company is duly qualified to transact business in each other jurisdiction in
which such qualification is required, whether by reason of the conduct of its
business or its ownership or leasing of property, except to the extent where the
failure to be so qualified would not result in a Material Adverse Effect to the
Company and its subsidiaries, considered as one enterprise.
(g) GOOD STANDING OF TYCO. Tyco has been duly incorporated, is
validly existing and is in good standing under the laws of Bermuda and has
corporate power and authority to own, lease or operate its properties and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement and each other Transaction Document
to which it is a party or by which it is bound; and Tyco is duly qualified to
transact business in each other jurisdiction in which such qualification is
required, whether by reason of the conduct of its business or its ownership or
leasing of property, except to the extent where the failure to be so qualified
would not result in a Material Adverse Effect to Tyco and its subsidiaries,
considered as one enterprise.
(h) SIGNIFICANT SUBSIDIARIES. Each of Tyco's subsidiaries that 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
company under the laws of its jurisdiction of incorporation or organization,
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
company to transact business and is in good standing (to the extent such concept
exists in the applicable jurisdiction) 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 each subsidiary of Tyco have been duly authorized and validly issued,
are fully-paid and non-assessable, and are owned by Tyco, directly or
indirectly, free and clear of all liens, encumbrances, security interests and
claims, 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, if any, and except where the failure to own such shares,
directly or indirectly, free and clear of all liens, encumbrances, security
interests and claims would not have a Material Adverse Effect.
(i) CAPITALIZATION OF TYCO. 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 "Tyco Actual" under the caption
"Capitalization of Tyco" (except for subsequent issuances pursuant to
reservations, agreements, employee benefit plans referred to in the Prospectus
or pursuant to the exercise of any convertible securities or options referred to
in the Prospectus); 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) AUTHORIZATION OF THIS AGREEMENT. This Agreement has been duly
authorized, executed and delivered by each of the Company and Tyco.
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(k) AUTHORIZATION OF THE SECURITIES. The Securities have been duly
authorized by the Company and when duly authenticated by the Trustee and
executed and delivered in accordance with the Indenture and paid for by the
Underwriters in accordance with this Agreement, will be duly and validly
executed, issued and delivered and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture.
(l) AUTHORIZATION OF THE GUARANTEES. The Guarantees have been duly
authorized by Tyco and when the Guarantees and the Securities have been duly
authenticated by the Trustee and executed and delivered in accordance with the
Indenture and paid for by the Underwriters in accordance with this Agreement,
the Guarantees will have been duly and validly executed, issued and delivered
and will constitute valid and binding obligations of Tyco entitled to the
benefits provided by the Indenture.
(m) DESCRIPTION OF THE SECURITIES, THE GUARANTEES AND THE INDENTURE.
As of the Closing Date, the Securities, the Guarantees and the Indenture will
conform in all material respects to the respective statements relating thereto
contained in the Prospectus.
(n) AUTHORIZATION OF INDENTURE. The Indenture has been duly
authorized by each of the Company and Tyco and, when duly executed and delivered
by the Company, Tyco and the Trustee, will constitute a valid and binding
agreement of each of the Company and Tyco, enforceable against each of the
Company and Tyco in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(o) ABSENCE OF DEFAULTS AND CONFLICTS. The execution, delivery and
performance of this Agreement and each of the other Transaction Documents and
any other agreement or instrument entered into or issued or to be entered into
or issued by the Company or Tyco in connection with the transactions
contemplated hereby or thereby or in the Prospectus and the consummation of the
transactions contemplated herein 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 compliance by each of the Company and Tyco with its respective
obligations hereunder has been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or constitute a
default or a Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
Tyco or any of its subsidiaries pursuant to, any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which Tyco
or any of its subsidiaries is a party or by which any of them may be bound, or
to which any of the property or assets of Tyco or any of its subsidiaries is
subject, except for such conflicts, breaches or defaults or liens, charges or
encumbrances that, singly or in the aggregate, are not reasonably likely to
result in a Material Adverse Effect on Tyco and its subsidiaries, considered as
one enterprise, or on the Company and its subsidiaries, considered as one
enterprise, nor will such action result in any violation of the provisions of
the
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memorandum of association or bye-laws of Tyco or any of its subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over Tyco or any of its subsidiaries or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase, redemption, conversion or repayment of all or a portion of such
indebtedness by Tyco or any of its subsidiaries.
(p) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree ("Approvals") of, any court or governmental authority or agency is
necessary or required for the performance by either the Company or Tyco of its
respective obligations hereunder, in connection with the offering, issuance or
sale of the Securities or the Guarantees hereunder or the consummation of the
transactions contemplated by this Agreement or any other Transaction Document to
which the Company or Tyco is a party or by which the Company or Tyco is bound,
except such Approvals that will have been obtained, given or made as of the
Closing Date.
(q) INVESTMENT COMPANY ACT. Neither the Company nor Tyco is, and
after giving effect to the issuance of the Securities, to the other transactions
contemplated in the Prospectus and to the application of the net proceeds
therefrom as described in the Prospectus will be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(r) FOREIGN CORRUPT PRACTICES ACT. Neither the Company nor Tyco nor,
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.
(s) NO FOREIGN EXCHANGE CONTROLS. Except as disclosed in the
Prospectus, under current laws and regulations of Luxembourg and any political
subdivision thereof, all principal, premium, if any, interest and other payments
due or made on the Securities may be paid by the Company to the holder thereof
in United States dollars or Luxembourg Francs that may be converted into foreign
currency and freely transferred out of Luxembourg and all such payments made to
holders thereof who are non-residents of Luxembourg will not be subject to
income, withholding or other taxes under laws and regulations of Luxembourg or
any political subdivision or taxing authority thereof or therein and will
otherwise be free and clear of any other tax, duty, withholding or deduction in
Luxembourg or any political subdivision or taxing authority thereof or therein
and without the necessity of obtaining any governmental authorization in
Luxembourg or any political subdivision or taxing authority thereof or therein.
(t) CHOICE OF LAW. 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
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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 sue 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 to the
jurisdiction of the New York courts; the irrevocable submission of the Company
and Tyco to the jurisdiction of the New York courts and the waiver by the
Company and Tyco of any immunity and any objection to the venue of the
proceeding in a New York court, included in this Agreement, are legal, valid and
binding under the laws of Luxembourg and Bermuda, respectively; neither the
Company nor Tyco or any of their respective assets is entitled to immunity (or
any similar defense) from suit, execution, attachment or other legal process in
Luxembourg and Bermuda, respectively; this Agreement is in proper legal form
under the laws of Luxembourg and Bermuda, respectively, for the enforcement
thereof against the Company and Tyco, respectively, and nothing in Luxembourg
and Bermuda law, respectively, prevents suit upon this Agreement in the courts
of Luxembourg and Bermuda, respectively; and it is not necessary (a) in order to
enable the Underwriters to exercise or enforce their rights under this Agreement
in Luxembourg and Bermuda, respectively, or (b) by reason of the entry into
and/or the performance of this Agreement, that any of the Underwriters should be
licensed, qualified, authorized or entitled to do business in Luxembourg and
Bermuda, respectively.
5. The Company and Tyco, jointly and severally, covenant and agree with
each of the several Underwriters as follows:
(a) The Company and Tyco shall file the Prospectus in a form
approved by you pursuant to Rule 424(b) under the Securities Act not later than
the Commission's close of business on the second Business Day following the date
of determination of the offering price of the Securities or, if applicable, such
earlier time as may be required by Rule 424(b).
(b) The Company and Tyco shall 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, shall furnish
each of the Underwriters as many copies of 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, the Company
and Tyco shall furnish you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and shall not file
any such proposed amendment or supplement to which you reasonably and timely
object.
(d) Tyco shall 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
(g) below.
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(e) During the period mentioned in paragraph (g) below, the Company
and Tyco shall advise you promptly, and shall 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 the
initiation or threatening of any proceeding for that purpose known to the
Company or Tyco and (iv) of the receipt by the Company or Tyco of any
notification with respect to any suspension of the qualification of the
Securities and the Guarantees for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to use their
best efforts to prevent the issuance of any such stop order or notification and,
if issued, to obtain as soon as possible the withdrawal thereof.
(f) The Company and Tyco shall 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, the Company and Tyco shall
forthwith 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) The Company and Tyco shall 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) The Company shall 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) Tyco shall make generally available to its security holders and
to you as soon as practicable an earnings statement which shall satisfy the
provisions of Section 11(a) of
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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,
the Company shall furnish to you, upon request, copies of all reports or other
communications (financial or other) furnished to holders of Securities and the
Guarantees, and copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange.
(1) During the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, the Company and Tyco
shall not 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; provided, that the foregoing restrictions shall not apply to
any borrowings by the Company under its commercial paper program.
(m) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company and Tyco shall pay
or cause to be paid all reasonable and customary costs and expenses incident to
the performance of their respective 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 and the 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) related to any filing with the
National Association of Securities Dealers, Inc., (v) 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 (vi) 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(b) within the applicable time period prescribed for such
filing by the rules and regulations
10
under the Securities Act; no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to your satisfaction;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any downgrading, (ii) any intended or
potential downgrading or (iii) any review or possible change that does not
indicate an improvement in the rating accorded any securities of or guaranteed
by the Company or Tyco by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(d) since the respective dates as of which information is given in
the Prospectus there shall not have been any material change in the capital
stock or long-term debt of Tyco or any of its subsidiaries, or any Material
Adverse Effect otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities and the Guarantees on the terms and in the manner contemplated
in the Prospectus; and neither Tyco nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
(e) at the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company or Tyco, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of an officer of the
Company and a certificate of an officer of Tyco, in each case dated as of the
Closing Date, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 4 hereof are true and
correct with the same force and effect as though expressly made at and as of the
Closing Date, (iii) no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose have
been instituted or are pending before or threatened by the Commission and (iv)
the Company or Tyco, as the case may be, has complied with all agreements and
satisfied all conditions set forth herein on its part to be performed or
satisfied at or prior to the Closing Date;
(f) the Representatives shall have received the favorable opinion,
dated such Closing Date, of Xxxx X. Xxxxxxx, Executive Vice President and Chief
Corporate Counsel of Tyco, substantially to the effect set forth in Exhibit A
hereto.
(g) the Representatives shall have received the favorable opinion,
dated the Closing Date, of Xxxxxx, Xxxxxx & Xxxxxxxxx, special U.S. counsel for
the Company and Tyco, substantially to the effect set forth in Exhibit B hereto;
11
(h) the Representatives shall have received the favorable opinion,
dated the Closing Date, of Xxxxxx & Xxxxxx en association avec Xxxxx & Xxxxx,
special Luxembourg counsel for the Company, substantially to the effect set
forth in Exhibit C hereto;
(i) the Representatives shall have received the favorable opinion,
dated the Closing Date, of Xxxxxxx Xxxxxxxx & Xxxxx, special Bermuda counsel for
Tyco, substantially to the effect set forth in Exhibit D hereto;
(j) on the Closing Date, the Representatives shall have received a
letter, dated the Closing Date, from PricewaterhouseCoopers with respect to the
financial information included or incorporated by reference in the Registration
Statement and the Prospectus pertaining to the Company and Tyco, in form and
substance satisfactory to the Representatives, containing statements and
information of the type ordinarily included in accountants' "comfort letters" in
transactions similar to the transaction contemplated hereby 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 Xxxxxxx, Xxxxx, Xxxxxx & XxXxxx LLP, counsel to the Underwriters, with
respect to the validity of the Indenture, the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters; 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 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 by such Underwriter through the Representatives expressly for use
therein.
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 either of the
Company or Tyco within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company and Tyco to each Underwriter, but only with reference to
12
information relating to such Underwriter furnished to the Company and Tyco by
such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus or any amendment or supplement thereto.
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 Schedule I hereto and any such separate
firm for the Company, Tyco and their respective directors and officers who sign
the Registration Statement and such control persons of the Company and Tyco
shall be designated in writing by the Company and Tyco. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement unless the Indemnifying Person in
good faith shall be contesting the reasonableness of such fees and expenses (but
only to the extent so contested) or the entitlement of the Indemnified Person to
indemnification under the terms of this Section 7. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
13
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 and the Guarantees 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
Schedule II hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity.
14
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and Tyco set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, Tyco, their respective officers or directors or any other person
controlling the Company or Tyco and (iii) acceptance of and payment for any of
the Securities and the Guarantees.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company or Tyco, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the Nasdaq National Market, the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of or guaranteed by the Company or Tyco
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities and the
Guarantees on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Securities that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-tenth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to you, the Company and Tyco for the purchase of
such Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter,
the Company or Tyco. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
15
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 any material terms or to fulfill any of the material conditions of
this Agreement, or if for any reason the Company or Tyco shall be unable to
perform its obligations under this Agreement, 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 customary 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.
Any action by the Underwriters hereunder may be taken by you jointly or
by the first of the named Representatives set forth in Schedule I hereto alone
on behalf of the Underwriters, and any such action taken by you jointly or by
the first of the named Representatives set forth in Schedule I hereto alone
shall be binding upon the Underwriters. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given at the address set forth in Schedule I hereto.
Notices to the Company and Tyco shall be given as follows: if to the Company, to
0, xxxxxx Xxxxx Xxxxxx, Xxxxxx Xxxxx, X-0000 Xxxxxxxxxx, Facsimile No.: (352)
464-350, Attn: Managing Director; and if to Tyco, to The Zurich Centre, Second
Floor, 00 Xxxxx Xxx Xxxx, Xxxxxxxx XX 00 Xxxxxxx, Facsimile No.: (000) 000-0000,
Attention: Chief Corporate Counsel; with a copy, in either case, to Tyco
International (US) Inc., One Tyco Park, Exeter, New Hampshire 03833, Facsimile
No.: (000) 000-0000, Attn: Chief Corporate Counsel.
12. 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.
The Company and Tyco hereby submit to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Company and Tyco irrevocably appoint CT
Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized
agent in the Borough of Manhattan in The City of New York upon which process may
be served in any such suit or proceeding, and agrees that service of process
upon such agent, and written notice of said service to the Company or Tyco, as
applicable, by the person serving the same to the address provided in Section
12, shall be deemed in every respect effective service of process upon the
Company or Tyco, as applicable, in any such suit or proceeding. The Company and
Tyco further agree to take any and all action as may be necessary to maintain
such designation and appointment of such agent in full force and effect for a
period of seven years from the date of this Agreement.
16
The obligation of the Company or Tyco in respect of any sum due to one
or more of the Underwriters shall, notwithstanding any judgment in a currency
other than United States dollars, not be discharged until the first business
day, following receipt by such Underwriter or Underwriters of any sum adjudged
to be so due in such other currency, on which (and only to the extent that) the
Underwriter or Underwriters may in accordance with normal banking procedures
purchase United States dollars with such other currency; if the United States
dollars so purchased are less than the sum originally due to such Underwriter or
Underwriters hereunder, the Company and Tyco agree, as a separate obligation and
notwithstanding any such judgment, to indemnify such Underwriter or Underwriters
against such loss. If the United States dollars so purchased are greater than
the sum originally due to such Underwriter or Underwriters hereunder, such
Underwriter or Underwriters agree to pay to the Company or Tyco an amount equal
to the excess of the dollars so purchased over the sum originally due to such
Underwriter or Underwriters hereunder.
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
fullest extent permitted by law.
13. 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.
17
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company or Tyco one of the counterparts
hereof, whereupon it will become a binding agreement between the Company, Tyco
and the Underwriters in accordance with its terms.
Very truly yours,
TYCO INTERNATIONAL GROUP S.A.
By:_______________________________
Name: Xxxxxxxxxxxx Xxxxxxx
Title: Managing Director
TYCO INTERNATIONAL LTD.
By:_______________________________
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted: July 24, 2001
XXXXXXX LYNCH, XXXXXX, XXXXXX
& XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.,
as Representatives of the several Underwriters
named in Schedule II hereto
By: XXXXXXX XXXXX, XXXXXX, XXXXXX
& XXXXX INCORPORATED
By:____________________________
Name:
Title:
18
SCHEDULE I
Representatives: X.X. Xxxxxx Securities Inc. and Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated
Underwriting Agreement Dated: July 24, 2001
Registration Statement No.: 333-44100, 333-44100-01, 333-65722 and
000-00000-00
Terms of Floating Rate Notes due 2003:
Title of Securities Floating Rate Notes due 2003 (the "2003
Floating Rate Notes" and, together with the
2006 Notes and the 2003 Fixed Rate Notes, the
"Securities") bearing interest at a floating rate
equal to three-month LIBOR plus 0.45%
Aggregate Principal Amount: $500,000,000
Purchase Price: 99.650% of the principal amount of the 2003 Floating
Rate Notes, plus accrued interest, if any, from July
30, 2001
Price to Public: 100.000% of the principal amount of the 2003 Floating
Rate Notes, plus accrued interest, if any, from July
30, 2001
Indenture: Indenture dated as of June 9, 1998 among the Company,
Tyco and The Bank of New York, as Trustee, as
supplemented by a Supplemental Indenture No. 17 among
the Company, Tyco and the Trustee
Final Maturity: July 30, 2003
Interest Payment Dates: January 30, April 30, July 30 and October 30,
commencing October 30, 2001
Redemption: Not redeemable prior to maturity except upon certain
changes in withholding taxes described in "Description
of the Notes and the Guarantees - Redemption Upon
Changes in Withholding Taxes" in the Prospectus
19
Sinking Fund Provisions: None
Other Provisions: None
Terms of 4.950% Notes due 2003:
Title of Securities: 4.950% Notes due 2003 (the "2003 Fixed Rate Notes")
Aggregate Principal Amount: $600,000,000
Purchase Price: 99.637% of the principal amount of the 2003 Fixed Rate
Notes, plus accrued interest, if any, from July 30, 2001
Price to Public: 99.987% of the principal amount of the 2003 Fixed Rate
Notes, plus accrued interest, if any, from July 30, 2001
Indenture: Indenture dated as of June 9, 1998 among the Company,
Tyco and The Bank of New York, as Trustee, as
supplemented by a Supplemental Indenture No. 18 among
the Company, Tyco and the Trustee
Final Maturity: August 1, 2003
Interest Rate: 4.950% per annum, accruing from July 30, 2001.
Interest Payment Dates: February 1 and August 1, commencing February 1, 2002
Redemption: Not redeemable prior to maturity except upon certain
changes in withholding taxes described in "Description
of the Notes and the Guarantees - Redemption Upon
Changes in Withholding Taxes" in the Prospectus
Sinking Fund Provisions: None
Other Provisions: None
Terms of 5.800% Notes due 2006:
20
Title of Securities: 5.800% Notes due 2006 (the "2006 Notes")
Aggregate Principal Amount: $700,000,000
Purchase Price: 99.190% of the principal amount of the 2006 Notes, plus
accrued interest, if any, from July 30, 2001
Price to Public: 99.790% of the principal amount of the 2006 Notes, plus
accrued interest, if any, from July 30, 2001
Indenture: Indenture dated as of June 9, 1998 among the Company,
Tyco and The Bank of New York, as Trustee, as
supplemented by a Supplemental Indenture No. 19 among
the Company, Tyco and the Trustee
Final Maturity: August 1, 2006
Interest Rate: 5.800% per annum, accruing from July 30, 2001.
Interest Payment Dates: February 1 and August 1, commencing February 1, 2002
Redemption: Not redeemable prior to maturity except upon certain
changes in withholding taxes described in "Description
of the Notes and the Guarantees - Redemption Upon
Changes in Withholding Taxes" in the Prospectus
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: July 30, 2001 at 9:00 a.m. (New York time)
Closing Location The offices of Milbank, Tweed, Xxxxxx & XxXxxx LLP, Xxx
Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Address for Notices to Underwriters: c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
21
SCHEDULE II
Principal Amount Principal Amount
of 2003 Floating of 2003 Fixed Principal Amount
Rate Notes Rate Notes of 2006 Notes
Underwriter to be purchased to be purchased to be purchased
----------- --------------- --------------- ---------------
X.X. Xxxxxx Securities Inc. $200,000,000 $240,000,000 $280,000,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated 200,000,000 240,000,000 280,000,000
Banc of America Securities LLC 12,500,000 15,000,000 17,500,000
Bear, Xxxxxxx & Co. Inc. 12,500,000 15,000,000 17,500,000
Commerzbank Capital Markets Corp. 12,500,000 15,000,000 17,500,000
Credit Suisse First Boston Corporation 12,500,000 15,000,000 17,500,000
First Union Securities, Inc. 12,500,000 15,000,000 17,500,000
HSBC Securities (USA) Inc. 12,500,000 15,000,000 17,500,000
Xxxxxx Brothers Inc. 12,500,000 15,000,000 17,500,000
Xxxxxxx Xxxxx Xxxxxx Inc. 12,500,000 15,000,000 17,500,000
------------ ------------ ------------
Total $500,000,000 $600,000,000 $700,000,000
============ ============ ============
22
