Exhibit 4.3
TYCO INTERNATIONAL GROUP S.A.
Debt Securities
Purchase Agreement
August 26, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇, Sachs & Co.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
The ▇▇▇▇▇▇▇▇ Capital Group, ▇.▇.
▇▇▇▇▇▇▇▇ & Partners, L.P.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Tyco International Group S.A., a Luxembourg company (the "Company"),
proposes to issue and sell to the initial purchasers named in Schedules II-A,
II-B, II-C and II-D hereto (the "Initial Purchasers" which term shall also
include any initial purchaser substituted as herein provided), for whom you are
acting as representatives (the "Representatives"), the principal
amount of its debt securities identified in Schedules I-A, I-B, I-C and I-D
hereto (the "Securities"), to be issued under the Indenture, dated as of June 9,
1998, as supplemented by Supplemental Indenture ▇▇. ▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇, Supplemental Indenture No. 11 and Supplemental Indenture No. 12, thereto
(as so supplemented, the "Indenture"), in each case, among the Company, Tyco
International Ltd., a Bermuda company and the sole shareholder of the Company
("Tyco"), and The Bank of New York, as trustee (the "Trustee"). The Securities
will be unconditionally guaranteed by Tyco (the "Guarantees"). If the firm or
firms listed in Schedules II-A, II-B, II-C and II-D hereto include only the firm
or firms listed in Schedules I-A, I-B, I-C and I-D hereto, then the terms
"Initial Purchasers" and "Representatives", as used herein shall each be deemed
to refer to such firm or firms.
The Company and Tyco understand that the Initial Purchasers propose to
make an offering of the Securities and the Guarantees on the terms and in the
manner set forth herein and agrees that the Initial Purchasers may resell,
subject to the conditions set forth herein, all or a portion of the Securities
and the Guarantees to purchasers ("Subsequent Purchasers") at any time after the
date of this Agreement. The Securities and Guarantees are to be offered and sold
through the Initial Purchasers without being registered under the Securities Act
of 1933, as amended, and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder (collectively the "Securities
Act"), in reliance upon exemptions therefrom. Pursuant to the terms of the
Securities, the Guarantees and the Indenture, investors that acquire Securities
and the Guarantees may only resell or otherwise transfer such Securities if such
Securities are hereafter registered under the Securities Act or if an exemption
from the registration requirements of the Securities Act is available (including
the exemption afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation
S") of the rules and regulations promulgated under the Securities Act by the
Commission).
The Company and Tyco have prepared and will deliver to the Initial
Purchasers, on the date hereof, copies of a final offering memorandum dated
August 26, 1999 (the "Final Offering Memorandum"), used or to be used by the
Initial Purchasers in connection with their solicitation of purchases of, or
offering of, the Securities and Guarantees. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (whether the Final Offering Memorandum, or any amendment or
supplement to such document), which has been prepared and delivered by the
Company to the Initial Purchasers in connection with their solicitation of
purchases of, or offering of, the Securities and Guarantees.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 as amended, and the rules and regulations of
the
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Commission thereunder (the "Exchange Act") which is incorporated by reference in
the Offering Memorandum.
The holders of the Securities and the Guarantees Identified Schedule
I-C will be entitled to the benefits of the registration rights agreement (the
"Registration Rights Agreement"), to be dated as of the Closing Date (as defined
below) between the Company, Tyco and the Initial Purchasers, pursuant to which
the Company and Tyco will agree to file, as soon as practicable after the
Closing Date but in any event within 90 days of the Closing Date, a registration
statement with the Commission registering the Exchange Securities (as defined in
the Registration Rights Agreement) under the Securities Act.
The Company and Tyco hereby agree with the Initial Purchasers as
follows:
1. The Company agrees to issue and sell the Securities and Tyco agrees
to issue the Guarantees to the several Initial Purchasers as hereinafter
provided, and each Initial Purchaser, 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 and Guarantees set forth opposite such Initial
Purchaser's name in Schedules II-A, II-B, II-C and II-D hereto at the purchase
price set forth in Schedules I-A, I-B, I-C and I-D hereto plus accrued interest,
if any, from the date specified in Schedules I-A, I-B, I-C and I-D hereto to the
date of payment and delivery.
2. The Company and Tyco understand that the several Initial Purchasers
intend (i) to make an 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 Offering Memorandum.
3. Payment for the Securities and the Guarantees 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), at 9:00 A.M. on August 31, 1999 at the offices
of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ (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 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 and the Guarantees shall be made against
delivery to the nominee of The Depository Trust Company for the respective
accounts of the several Initial Purchasers of global notes (the "Global Notes")
representing the Securities and the Guarantees, with any transfer taxes payable
in connection with the transfer to the Initial Purchasers of the Securities and
the Guarantees duly paid by the Company. The Global Notes will be made available
for inspection by the Representatives at the office of ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, not later than 1:00 P.M., New York City time, on the Business
Day prior to the Closing Date.
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4. The Company and Tyco, jointly and severally, represent and warrant
to each Initial Purchaser that:
(a) the Company has not, directly or indirectly, solicited any
offer to buy or offered to sell, and will not, directly or indirectly,
solicit any offer to buy or offer to sell, in the United States or to
any United States citizen or resident, any security which is or would
be integrated with the sale of the Securities and the Guarantees in a
manner that would require the Securities or the Guarantees to be
registered under the Securities Act;
(b) the Final Offering Memorandum does not, and at the Closing
Date will not, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, that this representation, warranty and
agreement shall not apply to statements in or omissions from the Final
Offering Memorandum made in reliance upon and in conformity with
information furnished to the Company and Tyco in writing by any initial
purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Final Offering
Memorandum;
(c) the documents incorporated by reference in the Offering
Memorandum, or portions thereof, to the extent only a portion of a
document is incorporated by reference in the Offering Memorandum, 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 Offering Memorandum 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;
(d) PricewaterhouseCoopers, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P. (Houston),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (Philadelphia) and Deloitte & Touche LLP who
certified the financial statements and supporting schedules included or
incorporated by reference in the Offering Memorandum are independent
public accountants required by the Securities Act;
(e) the financial statements, and the related schedules and
notes thereto, included or incorporated by reference in the Offering
Memorandum present fairly the consolidated financial position of Tyco
and its consolidated subsidiaries as of the
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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
Offering Memorandum 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 Offering Memorandum 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 Offering Memorandum 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 Offering Memorandum; no pro forma financial
statements would be required under the Securities Act to be included in
the Offering Memorandum (which have not been incorporated by reference)
if the offering of the Securities was being made in a public offering
pursuant to a registration statement under the Securities Act;
(f) since the respective dates as of which information is
given in the Offering Memorandum, 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, 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 Offering Memorandum;
and except as set forth or contemplated in the Offering Memorandum,
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;
(g) 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 Offering Memorandum, 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;
(h) 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
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(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Offering Memorandum, 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;
(i) 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 Offering Memorandum, 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
Offering Memorandum, 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;
(j) Tyco had as of the date indicated in the Offering
Memorandum a duly authorized and outstanding capitalization as set
forth in the Offering Memorandum in the column entitled "Actual" under
the caption "Capitalization"; except as disclosed in the Offering
Memorandum, 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;
(k) this Agreement has been duly authorized, executed and
delivered by each of the Company and Tyco;
(l) the Securities have been duly authorized and when duly
authenticated by the Trustee pursuant to the Indenture and issued and
delivered pursuant to this Agreement, will have been duly executed,
issued and delivered and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding instrument of the Company;
the Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended
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(the "Trust Indenture Act"); the Registration Rights Agreement has been
duly authorized, executed and delivered and will constitute a valid and
binding agreement of the Company; and the Registration Rights
Agreement, the Securities, the Guarantees, and the Indenture will
conform in all material respects to the descriptions thereof in the
Offering Memorandum;
(m) the Guarantees have been duly authorized and when the
Securities have been duly authenticated by the Trustee pursuant to the
Indenture and issued and delivered pursuant to this Agreement, will
have been duly executed, issued and delivered and will constitute valid
and binding obligations of Tyco entitled to the benefits provided by
the Indenture; the Indenture has been duly authorized, executed and
delivered by Tyco and constitutes a valid and binding instrument of
Tyco; and the Guarantees will conform in all material respects to the
descriptions thereof in the Offering Memorandum;
(n) neither Tyco nor any of its subsidiaries is, or, with the
giving of notice or lapse of time or both would be, in violation of or
in default under, its memorandum of association, articles of
organization, certificate of incorporation or other similar charter
document (each a "Charter") or by-laws or any indenture, mortgage, deed
of trust, loan agreement, note, lease or other agreement or instrument
to which Tyco or any of its subsidiaries is a party or by which it or
any of them or any of their respective properties is bound or subject,
except for violations and defaults which individually and in the
aggregate would not result in a Material Adverse Effect, or are not
material to the holders of the Securities and the Guarantees; the
execution, delivery and performance of this Agreement, the Registration
Rights 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 Offering
Memorandum (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 Offering Memorandum under the caption "Use of
Proceeds") and the compliance by the Company and Tyco of their
respective obligations under this Agreement, the Registration Rights
Agreement, the Indenture, the Securities and the Guarantees do not and
will not conflict with or result in a breach of any of the terms or
provisions of or with the giving of notice or lapse of time or both
conflict with or constitute a breach of, or default or a Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon the property or assets of Tyco
or any of its subsidiaries pursuant to, any indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument to
which Tyco or any of its subsidiaries is a party or by which Tyco or
any of its subsidiaries is bound or to which any of the property or
assets of Tyco or any of its subsidiaries is subject, except for such
conflicts, breaches, defaults, liens, charges or encumbrances that
would not result in a Material Adverse Effect, nor will any such action
result in any violation of the provisions of the Charter or the by-laws
of Tyco or any of its subsidiaries or any applicable law or statute or
any order, rule or regulation of any court or governmental
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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, the Registration Rights Agreement or the Indenture, except
such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been or will be 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 Guarantees by the Initial
Purchasers. 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 or repayment of all or
a portion of such indebtedness by the Company or Tyco;
(o) other than as disclosed in or contemplated by the Offering
Memorandum, 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 Offering
Memorandum, 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 described in the
Offering Memorandum which are not described as required;
(p) except as disclosed in the Offering Memorandum, no labor
dispute with the employees of Tyco or any of its subsidiaries exists
or, to the knowledge of the Company or Tyco, is threatened, which could
reasonably be expected to result in a Material Adverse Effect;
(q) neither the Company nor Tyco is, and upon the issuance and
sale of the Securities and the issuance of the Guarantees as herein
contemplated and the application of the net proceeds therefrom as
described in the Offering Memorandum will be, an "investment company"
or an entity "controlled" by an "investment
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company" as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(r) the Securities and the Guarantees are eligible for resale
pursuant to Rule 144A ("Rule 144A") of the rules and regulations
promulgated under the Securities Act and will not be, at the Closing
Date, of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act, or quoted in a
U.S. automated interdealer quotation system;
(s) none of the Company, Tyco, any of their respective
affiliates, as such term is defined in Rule 501(b) under the Securities
Act ("Affiliates"), or any person acting on its or any of their behalf
(other than the Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage, in connection with the
offering of the Securities and the Guarantees, in any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act, or in any manner involving a public offering
of the Securities within the meaning of Section 4(2) of the Securities
Act;
(t) subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 5, it is not
necessary in connection with the offer, sale and delivery of the
Securities and the Guarantees to the Initial Purchasers and to each
Subsequent Purchaser in the manner contemplated by this Agreement and
the Offering Memorandum to register the Securities and the Guarantees
under the Securities Act or to qualify the Indenture under the Trust
Indenture Act;
(u) with respect to those Securities and Guarantees sold in
reliance on Regulation S ("Regulation S") of the rules and regulations
promulgated under the Securities Act by the Commission, (A) none of the
Company, Tyco, any of their respective Affiliates or any person acting
on their behalf (other than the Initial Purchasers, as to whom the
Company makes no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S and (B)
each of the Company, Tyco, any of their respective Affiliates and any
person acting on their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has complied and will comply
with the offering restrictions requirement of Regulation S;
(v) all disclosure regarding year 2000 compliance and the Euro
conversion that is required to be described under the Securities Act
and the Securities Act Regulations (including disclosures required by
Staff Legal Bulletin ▇▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇-▇▇▇▇ (July 29, 1998) and
SEC Release No. 33-7609 (November 9, 1998)) has been included in the
Offering Memorandum or incorporated by reference therein. Neither the
Company, Tyco, nor any of their subsidiaries will incur significant
operating expenses or costs to ensure that their information systems
will be year 2000 compliant or to adjust their operating and
information systems to the
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conversion to a single currency in Europe, other than as disclosed in
the Offering Memorandum;
(w) 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;
(x) the choice of law provisions set forth in this Agreement
and the Registration Rights Agreement are legal, valid and binding
under the laws of Luxembourg and Bermuda, respectively, and will be
recognized and given effect to by the courts of Luxembourg and Bermuda,
respectively, (unless a court determined that doing so would be
contrary to public policy in Luxembourg and Bermuda, respectively,);
each of the Company and Tyco has the legal capacity to ▇▇▇ and be sued
in its own name under the laws of Luxembourg and Bermuda, respectively;
each of the Company and Tyco has, under the laws of Luxembourg and
Bermuda, respectively, the power to submit, and has irrevocably
submitted, to the jurisdiction of the New York courts and has validly
and irrevocably appointed CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (and any successor entity), as its
authorized agent for the service of process pursuant to this Agreement
and the Registration Rights 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
or the Registration Rights 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 and the Registration Rights Agreement are 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 or the Registration Rights Agreement in the courts of
Luxembourg and Bermuda, respectively; it is not necessary (a) in order
to enable the Initial Purchasers to exercise or enforce their rights
under this Agreement or the Registration Rights Agreement in Luxembourg
and Bermuda, respectively, or (b) by reason of the entry into and/or
the performance of this Agreement and the Registration Rights
Agreement, that any of the Initial Purchasers should be licensed,
qualified, authorized or entitled to do business in Luxembourg and
Bermuda, respectively; and
(y) in any proceedings in Luxembourg and Bermuda,
respectively, or elsewhere in connection with this Agreement, the
Company and Tyco will not be
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entitled to claim for themselves or any of their respective assets or
property immunity from suit, execution, attachment or other legal
process.
Any certificate signed by any officer of the Company or Tyco delivered
to the Initial Purchasers or to counsel for the Initial Purchasers shall be
deemed a representation and warranty by the Company or Tyco, as the case may be,
to each Initial Purchaser as to the matters covered thereby.
5. Each of the Initial Purchasers, severally, represents and warrants
to, and agrees with, the Company that it (i) is a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act (a "Qualified
Institutional Buyer") or an "accredited investor" within the meaning of Rule
501(a) under the Securities Act (an "Accredited Investor"); (ii) is not
acquiring the Securities with a view to any distribution thereof that would
violate the Securities Act; (iii) has not and will not solicit offers for, or
offer or sell, Securities by means of any general solicitation or general
advertising within the meaning of Rule 502(c) under Regulation D under the
Securities Act; (iv) will offer and sell the Securities only to (A)
institutional investors that are reasonably believed by it to qualify as
Accredited Investors, (B) institutional investors that are reasonably believed
by it to qualify as Qualified Institutional Buyers or (C) non-U.S. persons in
offshore transactions in reliance upon Regulation S under the Securities Act;
and (v) will otherwise act in accordance with the terms and conditions set forth
in this Agreement and in the Offering Memorandum in connection with the
placement of the Securities contemplated hereby.
6. The Company and Tyco, jointly and severally, covenant and agree with
each of the several Initial Purchasers as follows:
(a) to furnish each of the Initial Purchasers as many
copies of the Offering Memorandum (including all amendments
and supplements thereto) and documents incorporated by
reference therein as you may reasonably request
(b) from the date hereof and prior to the Closing
Date, to furnish you a copy of any proposed amendment or
supplement to the Offering Memorandum, for your review, and
not to effect any such proposed amendment or supplement to
which you reasonably and timely object;
(c) to file promptly, subject to the provisions of
paragraph (b) 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 (d)
below;
(d) 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 Offering
Memorandum;
(e) if, during such period after the first date of
the offering of the Securities and the Guarantees as in the
opinion of counsel for the Initial Purchasers an offering
-11-
memorandum 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 Initial Purchaser or
dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Offering Memorandum in
order to make the statements therein, in the light of the
circumstances when the Offering Memorandum is delivered to a
purchaser, not misleading, or if it is necessary to amend or
supplement the Offering Memorandum to comply with law,
forthwith to prepare and furnish, at the expense of the
Company and Tyco, to the Initial Purchasers 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
Initial Purchasers and to any other dealers upon request, such
amendments or supplements to the Offering Memorandum as may be
necessary so that the statements in the Offering Memorandum as
so amended or supplemented will not, in the light of the
circumstances when the Offering Memorandum is delivered to a
purchaser, be misleading or so that the Offering Memorandum
will comply with law;
(f) 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;
(g) 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 Offering Memorandum under "Use of
Proceeds";
(h) 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 date of the Offering Memorandum;
(i) so long as the Securities and the Guarantees are
outstanding, to furnish to you copies of all reports or other
communications (financial or other) furnished to holders of
Securities and the Guarantees and copies of any reports and
financial statements furnished to or filed with the Commission
or any national securities exchange;
(j) each of the Company and Tyco agrees that they
will not and will cause their respective affiliates not to
make any offer or sale of securities of the Company of any
class if, as a result of the doctrine of "integration"
referred to in Rule 502 under the Securities Act, such offer
or sale could be deemed to render invalid (for the
-12-
purpose of (i) the sale of the Securities and the Guarantees
by the Company to the Initial Purchasers, (ii) the resale of
the Securities and the Guarantees by the Initial Purchasers to
Subsequent Purchasers or (iii) the resale of the Securities
and the Guarantees by such Subsequent Purchasers to others)
the exemption from the registration requirements of the
Securities Act provided by Section 4(2) thereof or by Rule
144A or by Regulation S thereunder or otherwise;
(k) the Company agrees that, in order to render the
Securities eligible for resale pursuant to Rule 144A under the
Securities Act, while any of the Securities remain
outstanding, it will make available, upon request, to any
holder of Securities or prospective purchasers of Securities
the information specified in Rule 144A(d)(4), unless the
Company furnishes information to the Commission pursuant to
Section 13 or 15(d) of the Exchange Act (such information,
whether made available to holders or prospective purchasers or
furnished to the Commission, is hereinafter referred to as
"Additional Information");
(l) until the expiration of two years after the
original issuance of the Securities and the Guarantees, the
Company and Tyco will not, and will cause their respective
"affiliates" (as such term is defined in Rule 144(a)(1) under
the Securities Act) not to, resell any Securities and
Guarantees which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the Securities Act) that
have been reacquired by any of them and shall immediately upon
any purchase of any such Securities and Guarantees submit such
Securities and Guarantees to the Trustee for cancellation;
(m) The Company shall take all reasonable action
necessary to enable Standard & Poor's Corporation ("S&P") and
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") to provide their
respective credit ratings of the Securities.
(n) The Company will use all reasonable efforts in
cooperation with the Initial Purchasers to permit the
Securities and the Guarantees to be eligible for clearance and
settlement through DTC.
(o) Each certificate for a Security will bear the
legend contained in "Notices to Investors" in the Offering
Memorandum for the time period and upon the other terms stated
in the Offering Memorandum.
(p) 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
(q) 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
-13-
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, filing and distribution
of the Offering Memorandum (including 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 Initial
Purchasers may designate, including reasonable fees of counsel
for the Initial Purchasers 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 Registration Rights Agreement,
the Preliminary and Supplemental Blue Sky Memoranda and any
Legal Investment Survey and the furnishing to the Initial
Purchasers and dealers of copies of the Offering Memorandum,
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 Initial Purchasers except as explicitly set forth
herein.
7. The several obligations of the Initial Purchasers 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) 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;
(c) since the respective dates as of which
information is given in the Offering Memorandum 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 Offering Memorandum, 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 Offering Memorandum;
-14-
(d) 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;
(e) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Corporate Counsel and
Executive Vice President of Tyco, 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;
(f) ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP 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;
(g) Beghin ▇▇▇▇▇▇ Loeff ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Luxembourg
counsel for the Company, shall have furnished to you their
written opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect set forth in Exhibit A-3
hereto;
(h) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, 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;
(i) on the date hereof and on the Closing Date,
PricewaterhouseCoopers 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 initial
purchasers with respect to the financial statements and
certain financial information contained in the Offering
Memorandum;
(j) you shall have received on and as of the Closing
Date an opinion of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel to the Initial Purchasers, with respect to the
validity of the Indenture, the Securities and the Guarantees,
the Offering Memorandum 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;
(k) the Company and Tyco shall have duly authorized,
executed and delivered the Registration Rights Agreement and
the Indenture to the Initial Purchasers in a form and
substance satisfactory to the Representative and counsel to
the Initial Purchasers; 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.
-15-
8. (A) The Company and Tyco, jointly and severally, agree to indemnify
and hold harmless each Initial Purchaser and each person, if any, who controls
any Initial Purchaser within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against (i) any and all losses,
claims, damages, liabilities and expense (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 Offering Memorandum
(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, (ii) any and all loss,
liability, claim, damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that any such settlement is
effected with the written consent of the Company; and (iii) any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel chosen
by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clauses (i) or
(ii) above; 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 Initial Purchaser furnished to the Company or Tyco in writing by any Initial
Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use therein.
(b) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company, Tyco and their respective directors and
officers and each person who controls the Company or Tyco within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and Tyco to each Initial
Purchaser, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Offering Memorandum in reliance upon
and in conformity with written information furnished to the Company or Tyco by
any Initial Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Offering
Memorandum.
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. In the case of the parties indemnified pursuant to Section
8(A) above, counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇
▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 8(B) above,
counsel to the indemnified parties shall be selected by the Company. The
Indemnifying Person shall pay the fees and expenses of
-16-
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 Initial Purchasers and such control
persons of Initial Purchasers shall be designated in writing by the first of the
named Representatives on each of Schedules I-A and I-B hereto and any such
separate firm for the Company, Tyco and their respective directors and officers
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 8. 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.
If the indemnification provided for in the first and second paragraphs
of this Section 8 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages, liabilities or expenses 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
Initial Purchasers 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,
-17-
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 Initial Purchasers on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and Tyco on the one hand and the
Initial Purchasers on the other hand 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 Initial Purchasers 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 Initial Purchasers 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 Initial Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, Tyco and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
PRO RATA allocation (even if the Initial Purchasers 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 8, in no event shall an Initial
Purchaser be required to contribute any amount in excess of the amount by which
the total price at which the Securities purchased by it exceeds the amount of
any damages that such Initial Purchaser 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 Initial
Purchasers' obligations to contribute pursuant to this Section 8 are several in
proportion to the respective principal amount of the Securities set forth
opposite their names in Schedules I-A, I-B, I-C and I-D hereto, and not joint.
The remedies provided for in this Section 8 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 8
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 Initial Purchaser or any person controlling any Initial Purchaser or by
or on behalf of the Company, Tyco, their respective officers or directors or any
-18-
other person controlling the Company or Tyco and (iii) acceptance of and payment
for any of the Securities and the Guarantees.
9. 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, (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 Offering Memorandum or (vi) the occurrence
of any material adverse change in the existing financial, political or economic
conditions in the United States, Luxembourg, Bermuda or elsewhere which, in the
judgment of the Representatives would materially and adversely affect the
financial markets or the market for the Securities or the Company's and Tyco's
other debt securities.
If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 11 hereof, and provided further that Sections 4 and 8 shall
survive such termination and remain in full force and effect.
10. If, on the Closing Date, any one or more of the Initial Purchasers
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 Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities, the other Initial Purchasers 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, II-C and II-D hereto
bears to the aggregate principal amount of Securities set forth opposite the
names of all such non-defaulting Initial Purchasers, or in such other
proportions as the Representatives may specify, to purchase the Securities which
such defaulting Initial Purchaser or Initial Purchasers agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the principal
amount of Securities that any Initial Purchaser 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 Initial Purchaser. If, on the Closing Date, any Initial Purchaser or
Initial Purchasers 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
-19-
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
Initial Purchaser, 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
Offering Memorandum or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting Initial
Purchaser from liability in respect of any default of such Initial Purchaser
under this Agreement.
11. If this Agreement shall be terminated by the Initial Purchasers, 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 Initial Purchasers'
obligations cannot be fulfilled, the Company and Tyco agree to reimburse the
Initial Purchasers or such Initial Purchasers 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
Initial Purchasers in connection with this Agreement or the offering of the
Securities and the Guarantees.
12. This Agreement shall inure to the benefit of and be binding upon
the Company, Tyco, the Initial Purchasers 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 Initial Purchaser shall be deemed to be a successor or
assign by reason merely of such purchase.
13. Any action by the Initial Purchasers 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, I-C and I-D hereto alone on behalf of the Initial
Purchasers, 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, I-C and I-D
hereto alone shall be binding upon the Initial Purchasers. 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 Initial Purchasers shall be given at the address set forth in
each of Schedules I-A, I-B, I-C and I-D hereto. Notices to the Company and Tyco
shall be given to them, if to the Company, at ▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Attention: the Managing Directors; if to Tyco, at The
▇▇▇▇▇▇▇ Building, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇: Secretary, with a copy in either case c/oTyco International (US),
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: General Counsel.
14. 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
-20-
the laying of venue of any such suit, action or proceeding, (iii) irrevocably
waives to the fullest extent permitted by law any claim that and agrees not to
claim or plead in any court that any such action, suit or proceeding brought in
such court has been brought in an inconvenient forum and (iv) irrevocably
submits to the non-exclusive jurisdiction of any such court in any such suit,
action or proceeding or for recognition and enforcement of any judgment in
respect thereof.
Each of the Company and Tyco hereby irrevocably and
unconditionally designates and appoints CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (and any successor entity), as its authorized
agent to receive and forward on its behalf service of any and all process which
may be served in any such suit, action or proceeding in any such court and
agrees that service of process upon CT Corporation shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and shall be taken and held to be valid personal service upon it.
Said designation and appointment shall be irrevocable. Nothing in this Section
13 shall affect the right of the Initial Purchasers, their affiliates or any
indemnified party to serve process in any manner permitted by law or limit the
right of the Initial Purchasers, 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 Initial Purchasers.
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.
15. 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 Initial Purchaser 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 Initial Purchaser 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 Initial Purchaser falls short
-21-
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 Initial Purchaser 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 Initial Purchaser is
able on the relevant date to purchase United States dollars with the Judgment
Currency and shall take into account any premium and other costs of exchange.
-22-
16. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
TYCO INTERNATIONAL GROUP S.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
& Chief Financial Officer
-23-
Accepted: August 26, 1999
CONFIRMED AND ACCEPTED,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇, Sachs & Co.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
The ▇▇▇▇▇▇▇▇ Capital Group, ▇.▇.
▇▇▇▇▇▇▇▇ & Partners, L.P.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Authorized Signatory
For itself and the other Initial Purchasers
named in Schedules hereto.
-24-
SCHEDULE I-A
Representatives: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation
▇▇▇▇▇▇▇, Sachs & Co.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇ Capital Group, ▇.▇.
▇▇▇▇▇▇▇▇ & Partners, L.P.
Purchase Agreement Dated: August 26, 1999
Title of Securities: Floating Rate Notes Due 2000
Aggregate Principal Amount: $500,000,000
Purchase Price: 99.8753%
Price to Public: 99.9753%
Indenture: Indenture, dated as of June 9, 1998, as
supplemented by Supplemental Indenture No. 9
thereto, dated as of August 31, 1999, among
Tyco International Group S.A., Tyco
International Ltd. and The Bank of New York,
as trustee.
Maturity: September 5, 2000
First Payment Date: December 5, 1999
Interest Rate: The per annum rate of interest for each
floating rate interest period will be (1)
LIBOR on the second London business day
preceding the interest reset date for such
floating rate interest period, referred to
as the interest determination date, plus (2)
.60%. The Company will determine LIBOR for
each floating rate interest period in
accordance with the following provisions:
o On each interest determination
date, the Company will ascertain
the offered rate for three-month
-25-
deposits in U.S. dollars in the
London interbank market, which
appears on the Telerate Page
3750 as of 11:00 a.m. (London
time) on such interest
determination date.
o If such rate does not appear on
the Telerate Page 3750, or the
Telerate Page 3750 is
unavailable, the Company will
request four major banks in the
London interbank market,
referred to as the reference
banks to provide the Company
with their offered quotation,
expressed as a rate per annum
for three-month deposits in U.S.
dollars to leading banks in the
London interbank market, in a
principal amount equal to an
amount of not less than $1
million that is representative
for a single transaction in such
market at such time, at
approximately 11:00 a.m. (London
time) on the interest
determination date. If at least
two such quotations are
provided, LIBOR in respect of
that interest determination date
will be the arithmetic mean of
such quotations.
If less than two of the reference banks
provide the Company with such offered
quotations, LIBOR in respect of that
interest determination date will be the
arithmetic mean of the rates quoted by three
major banks in The City of New York selected
by the Company at approximately 11:00 a.m.,
New York City time, on that interest
determination date for three-month loans in
U.S. dollars to leading European banks, in a
principal amount equal to an amount of not
less than $1 million that is representative
for a single transaction in such market at
such time; provided, however, that if the
banks the Company so selected are not
quoting as mentioned in this sentence, LIBOR
will be LIBOR in effect on such interest
determination date.
Interest Payment Dates: March 5, June 5, September 5, and December 5
Optional Redemption Provisions: REDEMPTION UPON CHANGES IN WITHHOLDING
TAXES. The Notes may be redeemed, as a whole
but not in part, at the election of the
Company, upon not less than 30 nor more than
60 days notice (which notice shall be
irrevocable), at a redemption price equal to
100% of the principal amount thereof,
together with accrued interest, if any, to
the
-26-
redemption date and Additional Amounts (as
defined in Section 12.2), if any, if as a
result of any amendment to, or change in,
the laws or regulations of Luxembourg or
Bermuda or any political subdivision or
taxing authority thereof or therein having
power to tax (a "Taxing Authority"), or any
change in the application or official
interpretation of such laws or regulations
which amendment or change is announced and
becomes effective after the date the Notes
are issued, the Company or Tyco has become
or will become obligated to pay Additional
Amounts, on the next date on which any
amount would be payable with respect to the
Notes, and such obligation cannot be avoided
by the use of reasonable measures available
to the Company or Tyco, as the case may be;
PROVIDED, HOWEVER, that (a) no such notice
of redemption may be given earlier than 60
days prior to the earliest date on which the
Company or Tyco, as the case may be, would
be obligated to pay such Additional Amounts,
and (b) at the time such notice of
redemption is given, such obligation to pay
such Additional Amounts remains in effect.
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: August 31, 1999
Closing Location: New York, New York
Address for Notices to
Initial Purchasers: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
-27-
SCHEDULE I-B
Representatives: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation
▇▇▇▇▇▇▇, Sachs & Co.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇ Capital Group, ▇.▇.
▇▇▇▇▇▇▇▇ & Partners, L.P.
Purchase Agreement Dated: August 26, 1999
Title of Securities: Floating Rate Notes Due 2001
Aggregate Principal Amount: $500,000,000
Purchase Price: 99.8064%
Price to Public: 99.9564%
Indenture: Indenture, dated as of June 9, 1998, as
supplemented by Supplemental Indenture No.
10 thereto, dated as of August 31, 1999,
among Tyco International Group S.A., Tyco
International Ltd. and The Bank of New York,
as trustee.
Maturity: March 5, 2001
First Payment Date: December 5, 1999
Interest Rate: The per annum rate of interest for each
floating rate interest period will be (1)
LIBOR on the second London business day
preceding the interest reset date for such
floating rate interest period, referred to
as the interest determination date, plus (2)
.70%. The Company will determine LIBOR for
each floating rate interest period in
accordance with the following provisions:
-28-
o On each interest determination
date, the Company will ascertain
the offered rate for three-month
deposits in U.S. dollars in the
London interbank market, which
appears on the Telerate Page
3750 as of 11:00 a.m. (London
time) on such interest
determination date.
o If such rate does not appear on
the Telerate Page 3750, or the
Telerate Page 3750 is
unavailable, the Company will
request four major banks in the
London interbank market,
referred to as the reference
banks to provide the Company
with their offered quotation,
expressed as a rate per annum
for three-month deposits in U.S.
dollars to leading banks in the
London interbank market, in a
principal amount equal to an
amount of not less than $1
million that is representative
for a single transaction in such
market at such time, at
approximately 11:00 a.m. (London
time) on the interest
determination date. If at least
two such quotations are
provided, LIBOR in respect of
that interest determination date
will be the arithmetic mean of
such quotations.
If less than two of the reference banks
provide the Company with such offered
quotations, LIBOR in respect of that
interest determination date will be the
arithmetic mean of the rates quoted by three
major banks in The City of New York selected
by the Company at approximately 11:00 a.m.,
New York City time, on that interest
determination date for three-month loans in
U.S. dollars to leading European banks, in a
principal amount equal to an amount of not
less than $1 million that is representative
for a single transaction in such market at
such time; provided, however, that if the
banks the Company so selected are not
quoting as mentioned in this sentence, LIBOR
will be LIBOR in effect on such interest
determination date.
Interest Payment Dates: March 5, June 5, September 5, and December 5
Optional Redemption Provisions: REDEMPTION UPON CHANGES IN WITHHOLDING
TAXES. The Notes may be redeemed, as a whole
but not in part, at the election of the
Company, upon not less than 30 nor more than
60 days notice (which notice shall be
irrevocable), at
-29-
a redemption price equal to 100% of the
principal amount thereof, together with
accrued interest, if any, to the redemption
date and Additional Amounts (as defined in
Section 12.2), if any, if as a result of any
amendment to, or change in, the laws or
regulations of Luxembourg or Bermuda or any
political subdivision or taxing authority
thereof or therein having power to tax (a
"Taxing Authority"), or any change in the
application or official interpretation of
such laws or regulations which amendment or
change is announced and becomes effective
after the date the Notes are issued, the
Company or Tyco has become or will become
obligated to pay Additional Amounts, on the
next date on which any amount would be
payable with respect to the Notes, and such
obligation cannot be avoided by the use of
reasonable measures available to the Company
or Tyco, as the case may be; PROVIDED,
HOWEVER, that (a) no such notice of
redemption may be given earlier than 60 days
prior to the earliest date on which the
Company or Tyco, as the case may be, would
be obligated to pay such Additional Amounts,
and (b) at the time such notice of
redemption is given, such obligation to pay
such Additional Amounts remains in effect.
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: August 31, 1999
Closing Location: New York, New York
Address for Notices to
Initial Purchasers: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
-30-
SCHEDULE I-C
Representatives: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation
▇▇▇▇▇▇▇, Sachs & Co.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇ Capital Group, ▇.▇.
▇▇▇▇▇▇▇▇ & Partners, L.P.
Purchase Agreement Dated: August 26, 1999
Title of Securities: 6.875% Notes Due 2002
Aggregate Principal Amount: $1,000,000,000
Purchase Price: 99.198%
Price to Public: 99.648%
Indenture: Indenture, dated as of June 9, 1998, as
supplemented by Supplemental Indenture No.
11 thereto, dated as of August 31, 1999,
among Tyco International Group S.A., Tyco
International Ltd. and The Bank of New York,
as trustee.
Maturity: September 5, 2002
First Payment Date: ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ Rate: 6.875%
Interest Payment Dates: March 5 and September 5
-31-
Optional Redemption Provisions: OPTIONAL REDEMPTION. The Notes are
redeemable, 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 such Notes,
and (ii) as determined by the Quotation
Agent, the sum of the present values of the
remaining scheduled payments of principal
and interest thereon (not including any
portion of such payment 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 plus 12.5 basis
points plus, in each case, accrued interest
thereon to the date of redemption.
REDEMPTION UPON CHANGES IN WITHHOLDING
TAXES. The Notes may be redeemed, as a whole
but not in part, at the election of the
Company, upon not less than 30 nor more than
60 days notice (which notice shall be
irrevocable), at a redemption price equal to
100% of the principal amount thereof,
together with accrued interest, if any, to
the redemption date and Additional Amounts
(as defined in Section 12.2), if any, if as
a result of any amendment to, or change in,
the laws or regulations of Luxembourg or
Bermuda or any political subdivision or
taxing authority thereof or therein having
power to tax (a "Taxing Authority"), or any
change in the application or official
interpretation of such laws or regulations
which amendment or change is announced and
becomes effective after the date the Notes
are issued, the Company or Tyco has become
or will become obligated to pay Additional
Amounts, on the next date on which any
amount would be payable with respect to the
Notes, and such obligation cannot be avoided
by the use of reasonable measures available
to the Company or Tyco, as the case may be;
PROVIDED, HOWEVER, that (a) no such notice
of redemption may be given earlier than 60
days prior to the earliest date on which the
Company or Tyco, as the case may be, would
be obligated to pay such Additional Amounts,
and (b) at the time such notice of
redemption is given, such obligation to pay
such Additional Amounts remains in effect.
Sinking Fund Provisions: None
-32-
Other Provisions: None
Closing Date and Time of Delivery: August 31, 1999
Closing Location: New York, New York
Address for Notices to
Initial Purchasers: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
-33-
SCHEDULE I-D
Representatives: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Purchase Agreement Dated: August 26, 1999
Title of Securities: 0.57% % Yen Notes Due 2000
Aggregate Principal Amount: (Y) 10,000,000,000
Purchase Price: 99.9%
Price to Public: 100 %
Indenture: Indenture, dated as of June 9, 1998, as
supplemented by Supplemental Indenture No.
12 thereto, dated as of August 31, 1999,
among Tyco International Group S.A., Tyco
International Ltd. and The Bank of New York,
as trustee.
Maturity: September 5, 2000
First Payment Date: September 5, 2000
Interest Rate: 0.57 %
Interest Payment Date: September 5, 2000
Optional Redemption Provisions: REDEMPTION UPON CHANGES IN WITHHOLDING
TAXES. The Notes may be redeemed, as a whole
but not in part, at the election of the
Company, upon not less than 30 nor more than
60 days notice (which notice shall be
irrevocable), at a redemption price equal to
100% of the principal amount thereof,
together with accrued interest, if any, to
the redemption date and Additional Amounts
(as defined in Section 12.2), if any, if as
a result of any amendment to, or change in,
the laws or regulations of Luxembourg or
Bermuda or any political subdivision or
taxing authority thereof or therein having
power to tax (a "Taxing Authority"), or any
change in the application or official
interpretation of such laws or regulations
which amendment or change is announced and
becomes
-34-
effective after the date the Notes are
issued, the Company or Tyco has become or
will become obligated to pay Additional
Amounts, on the next date on which any
amount would be payable with respect to the
Notes, and such obligation cannot be avoided
by the use of reasonable measures available
to the Company or Tyco, as the case may be;
PROVIDED, HOWEVER, that (a) no such notice
of redemption may be given earlier than 60
days prior to the earliest date on which the
Company or Tyco, as the case may be, would
be obligated to pay such Additional Amounts,
and (b) at the time such notice of
redemption is given, such obligation to pay
such Additional Amounts remains in effect.
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: August 31, 1999
Closing Location: New York, New York
Address for Notices to
Initial Purchasers: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
-35-
SCHEDULE II-A
FLOATING RATE NOTES DUE 2000:
Principal Amount of
Initial Purchaser Securities to be Purchased
----------------- --------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇...............
Incorporated $ 275,625,000
▇▇▇▇▇▇ Brothers Inc................................. $ 30,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.......................... $ 30,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated................... $ 30,000,000
Banc of America Securities LLC...................... $ 14,375,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc............................. $ 14,375,000
Chase Securities Inc................................ $ 14,375,000
Commerzbank Capital Markets Corporation............. $ 14,375,000
Credit Suisse First Boston Corporation.............. $ 14,375,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation. $ 14,375,000
▇▇▇▇▇▇▇, Sachs & Co................................. $ 14,375,000
SBC Warburg Dillon Read LLC......................... $ 14,375,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc............................ $ 14,375,000
▇▇▇▇▇▇▇▇ & Partners, L.P............................ $ 2,500,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P..................... $ 2,500,000
Total...................................... $ 500,000,000
===========
-36-
SCHEDULE II-B
6.875% NOTES DUE 2002:
Principal Amount of
Initial Purchaser Securities to be Purchased
----------------- --------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇...................
Incorporated $ 275,625,000
▇▇▇▇▇▇ Brothers Inc..................................... $ 30,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.............................. $ 30,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated....................... $ 30,000,000
Banc of America Securities LLC.......................... $ 14,375,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc................................. $ 14,375,000
Chase Securities Inc.................................... $ 14,375,000
Commerzbank Capital Markets Corporation................. $ 14,375,000
Credit Suisse First Boston Corporation.................. $ 14,375,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation..... $ 14,375,000
▇▇▇▇▇▇▇, Sachs & Co..................................... $ 14,375,000
SBC Warburg Dillon Read LLC............................. $ 14,375,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc................................ $ 14,375,000
▇▇▇▇▇▇▇▇ & Partners, L.P................................ $ 2,500,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P......................... $ 2,500,000
Total.......................................... $ 500,000,000
===========
-37-
SCHEDULE II-C
Principal Amount of
Initial Purchaser Securities to be Purchased
----------------- --------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇...................
Incorporated $ 551,250,000
▇▇▇▇▇▇ Brothers Inc..................................... $ 60,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.............................. $ 60,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated....................... $ 60,000,000
Banc of America Securities LLC.......................... $ 28,750,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc................................. $ 28,750,000
Chase Securities Inc.................................... $ 28,750,000
Commerzbank Capital Markets Corporation................. $ 28,750,000
Credit Suisse First Boston Corporation.................. $ 180,000,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation..... $ 28,750,000
▇▇▇▇▇▇▇, Sachs & Co..................................... $ 28,750,000
SBC Warburg Dillon Read LLC............................. $ 28,750,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc................................ $ 28,750,000
▇▇▇▇▇▇▇▇ & Partners, L.P................................ $ 5,000,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P......................... $ 5,000,000
Total.......................................... $ 1,000,000,000
=============
-38-
SCHEDULE II-D
Principal Amount of
Initial Purchaser Securities to be Purchased
----------------- --------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇...................
Incorporated Yen $10,000,000,000
-39-
