EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of
February 12, 2001 by and among Tyco International Group S.A., a Luxembourg
company (the "Company"), Tyco International Ltd., a Bermuda company and the sole
shareholder of the Company ("Tyco" and, together with the Company, the
"Companies") and Credit Suisse First Boston Corporation (the "Initial
Purchaser"), pursuant to the Purchase Agreement, dated February 7, 2001 (the
"Purchase Agreement"), among the Companies and the Initial Purchaser. In order
to induce the Initial Purchaser to enter into the Purchase Agreement, the
Companies have agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
The Companies agree with the Initial Purchaser, (i) for its benefit as
Initial Purchaser and (ii) for the benefit of the beneficial owners (including
the Initial Purchaser) from time to time of the Zero Coupon Convertible
Debentures due February 12, 2021 (the "Securities") and the beneficial owners
from time to time of the Underlying Common Shares (as defined herein) issued
upon conversion of the Securities or in payment of the purchase price of a
purchase of Securities by the Company on February 12, 2003 (each of the
foregoing a "Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without
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definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate." With respect to any specified person, an "affiliate," as
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defined in Rule 144, of such person.
"Applicable Conversion Price." The Applicable Conversion Price as of any
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date of determination means the Applicable Principal Amount per $1,000 principal
amount at maturity of Securities as of such date of determination divided by the
Conversion Rate in effect as of such date of determination or, if no Securities
are then outstanding, the Conversion Rate that would be in effect were the
Securities then outstanding.
"Applicable Principal Amount." Applicable Principal Amount as of any
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date of determination, with respect to each $1,000 principal amount at maturity
of Securities means the sum of the initial issue price of such Securities
($741.65) plus accrued original issue
discount with respect to such Security through such date of determination or, if
no Securities are then outstanding, such sum calculated as if such Securities
were then outstanding.
"Business Day." Each Monday, Tuesday, Wednesday, Thursday and Friday
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that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"Common Shares." The Common Shares, $0.20 par value, of Tyco and any
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other shares of capital stock as may constitute "Common Shares" for purposes of
the Indenture, including the Underlying Common Shares.
"Companies." Companies shall have the meaning set forth in the preamble
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to this Agreement.
"Conversion Rate." Conversion Rate shall have the meaning assigned to
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such term in the Indenture.
"Damages Accrual Period." See Section 2(e) hereof.
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"Damages Payment Date." Each February 12 and August 12 in the case of
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Securities and the Underlying Common Shares.
"Deferral Notice." See Section 3(i) hereof.
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"Deferral Period." See Section 3(i) hereof.
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"Effectiveness Deadline Date." See Section 2(a) hereof.
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"Effectiveness Period." The period of two years from the later of the
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(a) Issue Date or (b) the last date of original issuance of the Securities, or
such shorter period ending on the date that all Registrable Securities have
ceased to be Registrable Securities.
"Event." See Section 2(e) hereof.
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"Event Termination Date." See Section 2(e) hereof.
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"Event Date." See Section 2(e) hereof.
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"Exchange Act." The Securities Exchange Act of 1934, as amended, and the
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rules and regulations of the SEC promulgated thereunder.
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"Filing Deadline Date." See Section 2(a) hereof.
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"Holder." See the second paragraph of this Agreement.
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"Indenture." The Indenture dated as of the date hereof between the
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Company, Tyco, as guarantor, and State Street Bank and Trust Company, as
trustee, pursuant to which the Securities are being issued.
"Initial Purchaser." Credit Suisse First Boston Corporation.
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"Initial Shelf Registration Statement." See Section 2(a) hereof.
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"Issue Date." means February 12, 2001.
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"Liquidated Damages Amount." See Section 2(e) hereof.
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"Losses." See Section 6 hereof.
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"Material Event." See Section 3(i) hereof.
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"Notice and Questionnaire." A written notice delivered to the Company
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containing substantially the information called for by the Selling Security
Holder Notice and Questionnaire attached as Annex A to the Offering Circular of
the Company dated February 7, 2001 relating to the Securities.
"Notice Holder." On any date, any Holder that has delivered a Notice and
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Questionnaire to the Company on or prior to such date.
"Prospectus." The prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 415 promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.
"Purchase Agreement." See the first paragraph of this Agreement.
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"Record Holder." With respect to any Damages Payment Date relating to
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any Securities or Underlying Common Shares as to which any Liquidated Damages
Amount has accrued, the registered Holder of such Security or Underlying Common
Shares, as the case
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may be, the first day of the month of the next succeeding Damages Payment Date,
or when the Event is cured, the registered Holder on the date of such cure.
"Registrable Securities." The Securities and the Underlying Common
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Shares, until such securities have been converted or exchanged, and, at all
times subsequent to any such conversion or exchange, any securities into or for
which such securities have been converted or exchanged, and any security issued
with respect thereto upon any stock dividend, split or similar event until, in
the case of any such security, the earliest of (i) its effective registration
under the Securities Act and resale in accordance with the Registration
Statement covering it, (ii) expiration of the holding period that would be
applicable thereto under Rule 144(k) were it not held by an Affiliate of the
Company or (iii) its sale to the public pursuant to Rule 144.
"Registration Expenses." See Section 5 hereof.
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"Registration Statement." Any joint registration statement of the
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Companies that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all materials incorporated by reference or explicitly deemed
to be incorporated by reference in such registration statement.
"Restricted Securities." As this term is defined in Rule 144.
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"Rule 144." Rule 144 under the Securities Act, as such Rule may be
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amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Rule 144A." Rule 144A under the Securities Act, as such Rule may be
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amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC." The Securities and Exchange Commission.
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"Securities." The Zero Coupon Convertible Debentures due February 12,
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2021 of the Company to be purchased pursuant to the Purchase Agreement.
"Securities Act." The Securities Act of 1933, as amended, and the rules
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and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement." See Section 2(a) hereof.
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"Subsequent Shelf Registration Statement." See Section 2(b) hereof.
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"TIA." The Trust Indenture Act of 1939, as amended.
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"Trustee." State Street Bank and Trust Company (or any successor
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entity), the Trustee under the Indenture.
"Underlying Common Shares." The Common Shares into which the Securities
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are convertible or issued upon any such conversion or in payment of the purchase
price of a purchase of the Securities by the Company on February 12, 2003.
Section 2. Shelf Registration. (a) The Companies shall prepare and
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file, or cause to be prepared and filed, with the SEC, as soon as practicable
but in any event by the date (the "Filing Deadline Date") ninety (90) days after
the Issue Date, a Registration Statement for an offering to be made on a delayed
or continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration Statement") registering the resale from time to time by Holders
thereof of all of the Registrable Securities (the "Initial Shelf Registration
Statement"). The Initial Shelf Registration Statement shall be on Form S-3 or
another appropriate form permitting registration of such Registrable Securities
for resale by such Holders in accordance with the methods of distribution
elected by the Holders and set forth in the Initial Shelf Registration
Statement; provided, that in no event will such method(s) of distribution take
the form of an underwritten offering of the Registrable Securities without the
prior agreement of the Companies. The Companies shall use reasonable efforts to
cause the Initial Shelf Registration Statement to be declared effective under
the Securities Act as promptly as is practicable, but in any event by the date
(the "Effectiveness Deadline Date") that is two hundred and ten (210) days after
the Issue Date, and to keep the Initial Shelf Registration Statement (or any
Subsequent Shelf Registration Statement) continuously effective under the
Securities Act until the expiration of the Effectiveness Period. At the time
the Initial Shelf Registration Statement is declared effective, each Holder that
became a Notice Holder on or prior to the date ten (10) Business Days prior to
such time of effectiveness shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related Prospectus in such a manner
as to permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law. None of the securityholders of
either of the Companies (other than the Holders of Registrable Securities) shall
have the right to include any of the securities of any of the Companies in the
Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effective ness Period, the Companies shall use all reasonable efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within thirty (30) days of such cessation of
effectiveness amend the Shelf Registration Statement in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an
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additional Shelf Registration Statement covering all of the securities that as
of the date of such filing are Registrable Securities (a "Subsequent Shelf
Registration Statement"). If a Subsequent Shelf Registration Statement is filed,
the Companies shall use all reasonable efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as is practicable after
such filing and to keep such Registration Statement (or subsequent Shelf
Registration Statement) continuously effective until the end of the
Effectiveness Period.
(c) The Companies shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Companies for such Shelf Registration
Statement, if required by the Securities Act or, to the extent to which the
Companies do not reasonably object, as reason ably requested by the Initial
Purchaser or by the Trustee on behalf of the registered Holders.
(d) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell Registrable Securities pursuant to a Shelf Registration Statement
and related Prospectus, it will do so only in accordance with this Section 2(d)
and Section 3(i). Each Holder of Registrable Securities wishing to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus agrees to deliver a Notice and Questionnaire to the Company at least
five (5) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration Statement. From and after the date the
Initial Shelf Registration Statement is declared effective, the Companies shall,
as promptly as is practicable after the date a Notice and Questionnaire is
delivered, (i) if required by applicable law, file with the SEC a post-effective
amendment to the Shelf Registration Statement or prepare and, if required by
applicable law, file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file any other
document required by the SEC so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Registrable Securities in
accordance with applicable law and, if the Companies shall file a post-effective
amendment to the Shelf Registration Statement, use reasonable efforts to cause
such post-effective amendment to be declared effective under the Securities Act
as promptly as is practicable; (ii) provide such Holder copies of any documents
filed pursuant to Section 2(d)(i); and (iii) notify such Holder as promptly as
practicable after the effectiveness under the Securities Act of any post-
effective amendment filed pursuant to Section 2(d)(i); provided, that if such
Notice and Questionnaire is delivered during a Deferral Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and shall
take the actions set forth in clauses (i), (ii) and (iii) above upon expiration
of the Deferral Period in accordance with Section 3(i), provided, further, that
if under applicable law the Companies have more than one option as to the type
or manner of making any such filing, as set forth in an opinion of nationally-
recognized counsel experienced in such matters delivered by the Holder to the
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Companies, they will make the required filing or filings in the manner or of a
type that is reasonably expected to result in the earliest availability of the
Prospectus for effecting resales of Registrable Securities. Notwithstanding
anything contained herein to the contrary, the Companies shall be under no
obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Registration Statement or related Prospectus; provided,
however, that any Holder that becomes a Notice Holder pursuant to the provisions
of Section 2(d) of this Agreement (whether or not such Holder was a Notice
Holder at the time the Registration Statement was initially declared effective)
shall be named as a selling securityholder in the Registration Statement or
related Prospectus subject to and in accordance with the requirements of this
Section 2(d).
(e) The parties hereto agree that the Holders of the Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
Statement has not been filed on or prior to the Filing Deadline Date, (ii) the
Initial Shelf Registration Statement has not been declared effective under the
Securities Act on or prior to the Effectiveness Deadline Date, or (iii) the
aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(i) hereof (each of the
events of a type described in any of the foregoing clauses (i) through (iii) are
individually referred to herein as an "Event," and the Filing Deadline Date in
the case of clause (i), the Effectiveness Deadline Date in the case of clause
(ii), and the date on which the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted by Section 3(i) hereof in the case
of clause (iii), being referred to herein as an "Event Date"). Events shall be
deemed to continue until the "Event Termination Date," which shall be the
following dates with respect to the respective types of Events: the date the
Initial Shelf Registration Statement is filed in the case of an Event of the
type described in clause (i), the date the Initial Shelf Registration Statement
is declared effective under the Securities Act in the case of an Event of the
type described in clause (ii), termination of the Deferral Period that caused
the limit on the aggregate duration of Deferral Periods in a period set forth in
Section 3(i) to be exceeded in the case of the commencement of an Event of the
type described in clause (iii).
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have occurred
and are continuing (a "Damages Accrual Period"), the Companies agree, jointly
and severally, to pay, as liquidated damages and not as a penalty, an amount
(the "Liquidated Damages Amount"), payable on the Damages Payment Dates to
Record Holders of then outstanding Securities that are Registrable Securities
and of then outstanding shares of Underlying Common Shares issued upon
conversion of, or in payment of the purchase price of, Securities that are
Registrable Securities, as the case may be, accruing, for each portion of such
Damages Accrual Period beginning on and including a Damages Payment Date (or, in
respect of the
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first time that the Liquidation Damages Amount is to be paid to Holders on a
Damages Payment Date as a result of the occurrence of any particular Event, from
the Event Date) and ending on, but excluding the first to occur of (A) the date
of the end of the Damages Accrual Period or (B) the next Damages Payment Date,
at a rate per annum equal to one-quarter of one percent (0.25%) for the first
90-day period from the Event Date, and thereafter at a rate per annum equal to
one-half of one percent (0.5%) of the aggregate Applicable Principal Amount of
such Securities and the aggregate Applicable Conversion Price of such shares of
Underlying Common Shares, as the case may be, in each case determined as of the
Business Day immediately preceding the next Damages Payment Date; provided, that
any Liquidated Damages Amount accrued with respect to any Security or portion
thereof called for redemption on a redemption date or converted into Underlying
Common Shares on a conversion date prior to the Damages Payment Date, shall, in
any such event, be paid instead to the Holder who submitted such Security or
portion thereof for redemption or conversion on the applicable redemption date
or conversion date, as the case may be, on such date (or promptly following the
conversion date, in the case of conversion). Notwithstanding the foregoing, no
Liquidated Damages Amounts shall accrue as to any Registrable Security from and
after the earlier of (x) the date such security is no longer a Registrable
Security and (y) expiration of the Effectiveness Period. The rate of accrual of
the Liquidated Damages Amount with respect to any period shall not exceed the
rate provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events. Following the cure of all Events requiring the payment by the
Companies of Liquidated Damages Amounts to the Holders of Registrable Securities
pursuant to this Section, the accrual of Liquidated Damages Amounts will cease
(without in any way limiting the effect of any subsequent Event requiring the
payment of the Liquidated Damages Amount by the Companies).
The Trustee shall be entitled, on behalf of Holders of Securities or
Underlying Common Shares, to seek any available remedy for the enforcement of
this Agreement, including for the payment of any Liquidated Damages Amount.
Notwithstanding the foregoing, the parties agree that the sole monetary damages
payable for a violation of the terms of this Agreement with respect to which
liquidated damages are expressly provided shall be such liquidated damages.
Nothing shall preclude a Notice Holder or Holder of Registrable Securities from
pursuing or obtaining specific performance or other equitable relief with
respect to this Agreement.
All of the respective obligations of the Companies set forth in this
Section 2(e) that are outstanding with respect to any Registrable Security at
the time such security ceases to be a Registrable Security shall survive until
such time as all such obligations with respect to such security have been
satisfied in full (notwithstanding termination of this Agreement pursuant to
Section 8(j)).
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The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
Section 3. Registration Procedures. In connection with the
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registration obligations of the Companies under Section 2 hereof:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, the Companies shall furnish to
the Initial Purchaser copies of all such documents proposed to be filed and use
reasonable efforts to reflect in each such document when so filed with the SEC
such comments as the Initial Purchaser reason ably shall propose within two (2)
Business Days of the delivery of such copies to the Initial Purchaser.
(b) The Companies shall (i) prepare and file with the SEC such amendments
and post-effective amendments to each Registration Statement as may be necessary
to keep such Registration Statement continuously effective for the applicable
period specified in Section 1(a); (ii) cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and (iii) use all reasonable efforts to comply with the
provisions of the Securities Act applicable to them with respect to the
disposition of all securities covered by such Registration Statement during the
Effectiveness Period in accordance with the intended methods of disposition by
the sellers thereof set forth in such Registration Statement as so amended or
such Prospectus as so supplemented.
(c) As promptly as practicable, the Company shall give notice to the
Notice Holders (which notice shall be in a manner appropriate under the
circumstances, which may or may not be the manner of notice described in
Sections 8(b)(w) or (x) hereof) and the Initial Purchaser (i) when any
Prospectus, Prospectus supplement, Registration Statement or post-effective
amendment to a Registration Statement has been filed with the SEC and, with
respect to a Registration Statement or any post-effective amendment, when the
same has been declared effective, (ii) of any request, following the
effectiveness of the Initial Shelf Registration Statement under the Securities
Act, by the SEC or any other federal or state governmental authority for
amendments or supplements to any Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by either of the Companies
of any notification with respect to the suspen-
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sion of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) of the occurrence of (but
not the nature of or details concerning) a Material Event (provided, however,
that no notice by the Companies shall be required pursuant to this clause (v) in
the event that the Companies either promptly file or cause to be filed a
Prospectus supplement to update the Prospectus or a Form 8-K or other
appropriate Exchange Act report that is incorporated by reference into the
Registration Statement, which, in either case, contains the requisite
information with respect to such Material Event that results in such
Registration Statement no longer containing any untrue statement of material
fact or omitting to state a material fact necessary to make the statements
contained therein not misleading) and (vi) of the determination by the Companies
that a post-effective amendment to a Registration Statement will be filed with
the SEC, which notice may, at the discretion of the Companies (or as required
pursuant to Section 3(i)), state that it constitutes a Deferral Notice, in which
event the provisions of Section 3(i) shall apply.
(d) The Companies shall use reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case at the earliest possible moment.
(e) If reasonably requested by the Initial Purchaser or any Notice
Holder, the Companies shall as promptly as reasonably practicable incorporate in
a Prospectus supplement or post-effective amendment to a Registration Statement
such information as the Initial Purchaser or such Notice Holder shall, on the
basis of an opinion of nationally-recognized counsel experienced in such
matters, determine to be required to be included therein by applicable law and
make any required filings of such Prospectus supplement or such post-effective
amendment; provided, that the Companies shall not be required to take any
actions under this Section 3(e) that are not, in the reasonable opinion of
counsel for the Companies, in compliance with applicable law.
(f) As promptly as reasonably practicable, the Company shall furnish to
each Notice Holder and the Initial Purchaser, upon their request and without
charge, at least one (1) conformed copy of the Registration Statement and any
amendment thereto, including financial statements, but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing to the Company by such Notice Holder or
the Initial Purchaser, as the case may be).
(g) During the Effectiveness Period, the Company shall deliver to each
Notice Holder in connection with any sale of Registrable Securities pursuant to
a Registration
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Statement, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Notice Holder may reasonably
request; and the Companies hereby consent (except during such periods that a
Deferral Notice is outstanding and has not been revoked) to the use of such
Prospectus or each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto in the manner set forth
therein.
(h) Prior to any public offering of the Registrable Securities pursuant
to the Shelf Registration Statement, the Companies shall (i) use all reasonable
efforts to register or qualify or cooperate with the Notice Holders in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests by written notice to the Company
(which request may be included in the Notice and Questionnaire); and (ii) prior
to any public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use all reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period in connection with such Notice Holder's offer and sale of
Registrable Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities in the manner set forth in the relevant Registration Statement and
the related Prospectus; provided, that neither of the Companies will be required
to (i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Agreement or (ii) take any action that would subject it to general service of
process in suits or to taxation in any such jurisdiction where it is not then so
subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact (a "Material Event") as a result of which any Registration Statement
shall 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 not misleading, or any Prospectus shall 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 light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence
of any pending corporate development with respect to either of the Companies
that, in the discretion of the Companies, makes it appropriate to suspend the
availability of the Shelf Registration Statement and the related Prospectus, (i)
in the case of clause (B) above, subject to the next sentence, the Companies
shall as
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promptly as practicable prepare and file a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document that would
be incorporated by reference into such Registration Statement and Prospectus so
that such Registration Statement does not 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 not misleading, and such Prospectus
does not 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 light of the circumstances under which they were made, not
misleading, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective amendment
to a Registration Statement, subject to the next sentence, use all reasonable
efforts to cause it to be declared effective as promptly as is reasonably
practicable, and (ii) the Company shall give notice to the Notice Holders that
the availability of the Shelf Registration Statement is suspended (a "Deferral
Notice") and, upon receipt of any Deferral Notice, each Notice Holder agrees not
to sell any Registrable Securities pursuant to the Registration Statement until
such Notice Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus. The Companies will use all reasonable efforts
to ensure that the use of the Prospectus may be resumed (x) in the case of
clause (A) above, as promptly as is practicable, (y) in the case of clause (B)
above, as soon as, in the sole judgment of the Companies, public disclosure of
such Material Event would not be prejudicial to or contrary to the interests of
either of the Companies or, if necessary to avoid unreasonable burden or
expense, as soon as reasonably practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the discretion of the Companies, such
suspension is no longer appropriate. The period during which the availability of
the Registration Statement and any Prospectus is suspended (the "Deferral
Period") shall, without the Companies incurring any obligation to pay liquidated
damages pursuant to Section 2(e), not exceed forty-five (45) days in any three
(3) month period or one hundred and twenty (120) days in any twelve (12) month
period.
(j) If reasonably requested by written notice to the Company in
connection with a disposition of Registrable Securities pursuant to a
Registration Statement, the Companies shall make reasonably available for
inspection during normal business hours by a representative for the Notice
Holders of such Registrable Securities and any broker-dealers, attorneys and
accountants retained by such Notice Holders, all relevant financial and other
records, pertinent corporate documents and properties of the Companies and their
subsidiaries, and cause the appropriate executive officers, directors and
designated employees of the Companies and their subsidiaries to make reasonably
available for inspection during normal business hours all relevant information
reasonably requested by such representative for the
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Notice Holders or any such broker-dealers, attorneys or accountants in
connection with such disposition, in each case as is customary for similar "due
diligence" examinations; provided, however, that such persons shall first agree
in writing with the Companies that any information that is reasonably and in
good faith designated by the Companies in writing as confidential at the time
of delivery of such information shall be kept confidential by such persons and
shall be used solely for the purposes of exercising rights under this Agreement,
unless (i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing
of any Registration Statement or the use of any Prospectus referred to in this
Agreement), (iii) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person from a
source other than the Companies and such source is not bound by a
confidentiality agreement; and provided further, that the foregoing inspection
and information gathering shall, to the greatest extent possible, be coordinated
on behalf of all the Notice Holders and the other parties entitled thereto by
the counsel referred to in Section 5.
(k) The Companies shall comply with all applicable rules and regulations
of the SEC and Tyco shall make generally available to its securityholders
earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) commencing on the first day of Tyco's first fiscal quarter
commencing after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(l) The Companies shall cooperate with each Notice Holder to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities sold pursuant to a Registration Statement, and cause such Registrable
Securities to be in such denominations as are permitted by the Indenture and
registered in such names as such Notice Holder may request in writing at least
two Business Days prior to any sale of such Registrable Securities.
(m) The Companies shall provide a CUSIP number for all Registrable
Securities covered by each Registration Statement not later than the effective
date of such Registration Statement and provide the Trustee for the Securities
and the transfer agent for the Common Shares with printed certificates for the
Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company.
13
(n) The Companies shall make a reasonable effort to provide such
information as is required for any filings required to be made with the National
Association of Securities Dealers, Inc.
(o) Upon (i) the filing of the Initial Shelf Registration Statement and
(ii) the effectiveness of the Initial Shelf Registration Statement, the
Companies shall announce the same, in each case by release to Reuters Economic
Services and Bloomberg Business News.
(p) The Companies shall enter into such customary agreements and take all
such other reasonable necessary actions in connection therewith (including those
reasonably requested by the Holders of a majority of the Registrable Securities
being sold) in order to expedite or facilitate disposition of such Registrable
Securities; and
(q) The Companies shall cause the Indenture to be qualified under the TIA
not later than the effective date of any Registration Statement; and in
connection therewith, cooperate with the Trustee to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA and execute, and use all reasonable efforts to cause
the Trustee to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to enable
the Indenture to be so qualified in a timely manner.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition
--------------------
of the Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire as required pursuant to
Section 2(d) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence.
Each Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Registrable Securities
as may be required to be disclosed in the Registration Statement under
applicable law or pursuant to SEC comments or as the Companies may reasonably
request. Each Holder further agrees, following termination of the Effectiveness
Period, to notify the Company within 10 business days of request, of the amount
of Registrable Securities sold pursuant to the Registration Statement and, in
the absence of a response, the Companies may assume that all of the Holder's
Registrable Securities were so sold.
Section 5. Registration Expenses. The Companies shall bear all fees
---------------------
and expenses incurred in connection with the performance by the Companies of
their respective
14
obligations under Sections 2 and 3 of this Agreement whether or not any of the
Registration Statements are declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the counsel specified
in the next sentence in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as the Notice
Holders of a majority of the Registrable Securities being sold pursuant to a
Registration Statement may designate)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company), (iii)
duplication expenses relating to copies of any Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) fees and disbursements of
counsel for the Companies in connection with the Shelf Registration Statement,
and (v) reasonable fees and disbursements of the Trustee and its counsel and of
the registrar and transfer agent for the Common Shares. In addition, the
Companies shall bear or reimburse the Notice Holders for the fees and
disbursements of one firm of legal counsel for the Holders (which shall not
exceed $20,000 in the aggregate), which shall, upon the written consent of the
Initial Purchaser (which shall not be unreason ably withheld), be a nationally
recognized law firm experienced in securities law matters designated by the
Companies. In addition, each of the Companies shall pay its internal expenses
(including, without limitation, all salaries and expenses of officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange on which similar securities
of the Companies are then listed and the fees and expenses of any person,
including special experts, retained by the Companies.
Section 6. Indemnification; Contribution. (a) The Companies agree,
-----------------------------
jointly and severally, to indemnify and hold harmless the Initial Purchaser and
each Holder of Registrable Securities and each person, if any, who controls the
Initial Purchaser or any Holder of Registrable Securities within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact included
in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in
15
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against 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 (subject to Section 6(d)
below) any such settlement is effected with the prior written consent of the
Companies; and
(iii) subject to Section 6(c) below, against any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel),
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 (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Companies by
or on behalf of the Initial Purchaser, such Holder of Registrable Securities
(which also acknowledges the indemnity provisions herein) or any person, if any,
who controls the Initial Purchaser or any such Holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto), or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); provided, further, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense (1) arising from an offer or sale
of Registrable Securities occurring during a Deferral Period, if the Notice
Holder received a Deferral Notice, or (2) if the Holder fails to deliver at or
prior to the written confirmation of sale, the most recent Prospectus, as
amended or supplemented, and such Prospectus, as amended or supplemented, would
have corrected such untrue statement or omission or alleged untrue statement or
omission of a material fact.
(b) In connection with any Shelf Registration in which a Holder,
including, without limitation, the Initial Purchaser, of Registrable Securities
is participating, in furnishing information relating to such Holder of
Registrable Securities to the Companies in writing expressly for use in such
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto, the Holders of such Registrable Securities
agree, severally and not jointly, to indemnify and hold harmless the Initial
Purchaser and each person,
16
if any, who controls the Initial Purchaser within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act and the Companies,
and each person, if any, who controls either of the Companies within the meaning
of either such Section, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Companies by or on behalf of such Holder of
Registrable Securities (which also acknowledges the indemnity provisions herein)
or any person, if any, who controls any such Holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. The indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party 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 party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party 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 party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Initial Purchaser, Holders of Registrable
Securities, and all persons, if any, who control the Initial Purchaser or
Holders of Registrable Securities within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (b) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the
Companies, their respective directors, and each person, if any, who controls
either of the Companies within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Initial Purchaser, Holders of Registrable
17
Securities, and control persons of the Initial Purchaser and Holders of
Registrable Securities, such firm shall be designated in writing by the Initial
Purchaser. In the case of any such separate firm for the Companies, and such
directors, officers and control persons of either of the Companies, such firm
shall be designated in writing by the Companies. The indemnifying party 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 party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party 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 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 6 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified
18
party on the other hand in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative fault of the Companies on the one hand and the Holders of
the Registrable Securities or the Initial Purchaser on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Companies or by the
Holder of the Registrable Securities or the Initial Purchaser and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 6(e). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 6(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party 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 or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, neither the Holder of
any Registrable Securities nor the Initial Purchaser, shall be required to
indemnify or contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such Holder of Registrable
Securities or by the Initial Purchaser, as the case may be, and distributed to
the public were offered to the public exceeds the amount of any damages that
such Holder of Registrable Securities or the 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.
For purposes of this Section 6(e), each person, if any, who controls the
Initial Purchaser or any Holder of Registrable Securities within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Initial Purchaser or such Holder, and
each person, if any, who controls either of the
19
Companies within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Companies.
Section 7. Information Requirements. Tyco covenants that, if at any
------------------------
time before the end of the Effectiveness Period Tyco is not subject to the
reporting requirements of the Exchange Act, it will cooperate with any Holder of
Registrable Securities and take such further reasonable action as any Holder of
Registrable Securities may reasonably request in writing (including, without
limitation, making such reasonable representations as any such Holder may
reasonably request), all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 and Rule 144A
under the Securities Act and customarily taken in connection with sales pursuant
to such exemptions. Upon the written request to Tyco of any Holder of
Registrable Securities, Tyco shall deliver to such Holder a written statement as
to whether it has complied with such filing requirements, unless such a
statement has been included in Tyco's most recent report required to be filed
and filed pursuant to Section 13 or Section 15(d) of Exchange Act.
Notwithstanding the foregoing, nothing herein shall be deemed to require either
of the Companies to register any of its securities under any section of the
Exchange Act.
Section 8. Miscellaneous; No Conflicting Agreements. Neither of the
----------------------------------------
Companies is, as of the date hereof, a party to, nor shall either of the
Companies, on or after the date of this Agreement, enter into, any agreement
with respect to its securities that conflicts with the rights granted to the
Holders of Registrable Securities in this Agreement. Each of the Companies
represents and warrants that the rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
respective holders of the securities of such Companies under any other
agreements.
(a) Amendments and Waivers. The provisions of this Agreement, including
----------------------
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Companies have obtained the written consent of Holders of a
majority of the then outstanding Underlying Common Shares constituting
Registrable Securities (with Holders of the Securities deemed to be the Holders,
for purposes of this Section, of the number of outstanding shares of Underlying
Common Shares into which such Securities are or would be convertible or
exchangeable as of the date on which such consent is requested).
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement;
20
provided, that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Each Holder of Registrable Securities outstanding at the
time of any such amendment, modification, supplement, waiver or consent or
thereafter shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 8(b), whether or not any
notice, writing or marking indicating such amendment, modification, supplement,
waiver or consent appears on the Registrable Securities or is delivered to such
Holder.
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall (except with respect to the notice described in
Section 3(c)) be made in writing by hand delivery, by telecopier, by courier
guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(w) if to a Holder of Registrable Securities that is not a Notice Holder,
at the address for such Holder then appearing in the Registrar (as defined in
the Indenture);
(x) if to a Notice Holder, at the most current address given by such
Holder to the Company in a Notice and Questionnaire or any amendment thereto;
21
(y) if to the Company, to:
Tyco International Group S.A.
0 Xxxxxx Xxxxx Xxxxxx
0/xx/ Xxxxx
X-0000 Xxxxxxxxxx
Attention: Managing Director
Telecopy No.: 000-000-000
if to Tyco, to:
Tyco International Ltd.
The Zurich Centre, Second Floor
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: Chief Corporate Counsel
Telecopy No.: 000-000-0000
with a copy, in each case, to:
Tyco International (US) Inc.
0 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Corporate Counsel
Telecopy No.: 000-000-0000
and
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Telecopy No.: 000-000-0000
and
(z) if to the Initial Purchaser, to:
22
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transactions Advisory Group
Telecopy No.: 000-000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(c) Approval of Holders. Whenever the consent or approval of Holders of
-------------------
a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Companies or their affiliates (as such term
is defined in Rule 405 under the Securities Act) (other than the Initial
Purchaser or subsequent Holders of Registrable Securities if such subsequent
Holders are deemed to be such affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(d) Successors and Assigns. Any person who purchases any Registrable
----------------------
Securities from the Initial Purchaser shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchaser. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities.
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially
23
the same result as that contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Companies with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Companies with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights.
(j) Termination. This Agreement and the obligations of the parties
-----------
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
24
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
TYCO INTERNATIONAL GROUP S.A.
By:
_____________________________
Name:
Title:
TYCO INTERNATIONAL LTD.
By:
_____________________________
Name:
Title:
Accepted as of the date
first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:______________________________________________________
Authorized Signatory
