BOSTON SCIENTIFIC CORPORATION Debt Securities UNDERWRITING AGREEMENT-BASIC PROVISIONS
EXHIBIT 1.1
BOSTON SCIENTIFIC CORPORATION
Debt Securities
Debt Securities
UNDERWRITING AGREEMENT-BASIC PROVISIONS
December 10, 2009
To: The Underwriters named in the within-mentioned Terms Agreement
Ladies and Gentlemen:
Boston Scientific Corporation (the “Company”) proposes to issue and sell its Debt Securities
having an aggregate initial public offering price or purchase price of up to U.S. $2,000,000,000 or
the equivalent thereof in foreign currencies or currency units (the “Securities”). The Securities
will be issued under an indenture dated as of June 1, 2006 between the Company and The Bank of New
York Mellon Trust Company, N.A. (as successor to JPMorgan Chase Bank, N.A.), as trustee (the
“Trustee”), as supplemented from time to time by supplemental indentures and/or modified from time
to time by resolutions of the Board of Directors of the Company as provided in Section 301 of such
indenture (such indenture as so supplemented and/or modified being hereinafter referred to as the
“Indenture”).
Whenever the Company determines to make an offering of Securities, it will enter into an
agreement substantially in the form of Exhibit A hereto (a “Terms Agreement”) providing for the
sale of such Securities to, and the purchase and offering thereof by, the underwriter or
underwriters named therein (each an “Underwriter” and, collectively, the “Underwriters” or “you,”
which terms shall include the underwriter or underwriters named therein whether acting alone in the
resale of the Securities or as members of an underwriting syndicate). The Terms Agreement relating
to each offering of Securities shall specify the principal amount of Securities to be issued and
their terms not otherwise specified in the Indenture, the name or names of the Underwriters
participating in such offering (subject to substitution as provided in Section 10 hereof) and the
principal amount of Securities which each severally agrees to purchase, the name or names of the
Underwriters acting as manager or co-managers in connection with such offering, if any (each a
“Representative” and, collectively, the “Representatives,” which term shall include each
Underwriter in the event that there shall be no manager or co-managers), the price at which the
Securities are to be purchased by the Underwriters from the Company, the initial public offering
price, any delayed delivery arrangements and the time and place of delivery and payment. Each
offering of Securities will be governed by this Agreement, as supplemented by the applicable Terms
Agreement, and this Agreement and such Terms Agreement shall inure to the benefit of and be binding
upon each Underwriter participating in the offering of such Securities.
1. Representations and Warranties. The Company represents and warrants to you that as
of the date hereof, as of the Applicable Time and as of the Closing Time (each as hereinafter
defined) under such Terms Agreement (in each case, the “Representation Date”) as set forth below.
Certain terms used in this Section 1 are defined in paragraph (C) hereof.
A. If the offering of the Securities is a Delayed Offering (as specified in the relevant
Terms Agreement), paragraph (i) below is applicable and, if the offering of the Securities is
a Non-Delayed Offering (as so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3 under the
Securities Act of 1933, as amended (the “1933 Act”) and the rules and regulations
promulgated thereunder (the “Regulations”), and has filed with the Securities
and Exchange Commission (the “Commission”) a registration statement (File No.
333-163621) on such Form, including a Basic Prospectus, for registration under the
1933 Act of the offering and sale of the Securities. The Company may have filed one
or more amendments thereto, and may have used a Preliminary Prospectus, each of
which has previously been furnished to you. Such registration statement, as
amended, including the financial statements, exhibits and schedules thereto, at each
time of effectiveness under the 1933 Act, including any required information deemed
to be a part thereof at the time of effectiveness pursuant to Rule 430B under the
1933 Act or the Securities Exchange Act of 1934, as amended (the “1934 Act”), is
called the “Registration Statement.” Such Registration Statement, as so amended,
has become effective. The offering of the Securities is a Delayed Offering and,
although the Basic Prospectus may not include all the information with respect to
the Securities and the offering thereof required by the 1933 Act and the rules
thereunder to be included in the Final Prospectus, the Basic Prospectus included all
such information required by the 1933 Act and the rules thereunder to be included
therein as of the Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b) a Final Prospectus relating to the Securities and
the offering thereof. The Final Prospectus shall only contain information in the
Disclosure Package (as hereinafter defined) and the Final Term Sheet (as hereinafter
defined), except to the extent the Representatives shall agree to any additional
information.
(ii) The Company meets the requirements for the use of Form S-3 under the 1933
Act and has filed with the Commission a registration statement (File No. 333-163621)
on such Form, including a Basic Prospectus, for registration under the 1933 Act of
the offering and sale of the Securities. The Company may have filed one or more
amendments thereto, and including a Preliminary Prospectus, each of which has
previously been furnished to you. Such registration statement, as amended,
including the financial statements, exhibits and schedules thereto, at each time of
effectiveness under the 1933 Act, including any required information deemed to be a
part thereof at the time of effectiveness pursuant to Rule 430B under the 1933 Act
or the 1934 Act, is called the “Registration Statement.” The Company will next file
with the Commission either (x) a Final Prospectus relating to the Securities in
accordance with Rules 430B and 424(b), or (y) prior to the effectiveness of such
Registration Statement, an amendment to such Registration Statement, including the
form of Final Prospectus. In the case of clause (x), the Company has included in
such Registration Statement, as amended at the Effective Date, all information
(other than Rule 430B Information) required by the 1933 Act and the rules thereunder
to be included in the Final Prospectus with respect to the Securities and the
offering thereof. The Final Prospectus shall only contain information in the
Disclosure Package (as hereinafter defined) and the Final Term Sheet (as hereinafter
defined), except to the extent the Representatives shall agree to any additional
information.
B. On the Effective Date, the Registration Statement did, at the Applicable Time the
Preliminary Prospectus did, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and at the Closing Time, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable requirements of the 1933
Act, the 1934 Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”), and the respective rules thereunder; on the Effective Date, the Registration Statement
did not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein not
misleading; the Indenture complies in all material respects
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with the requirements of the Trust Indenture Act and the rules thereunder; and, the
Final Prospectus, will not, on the date such Final Prospectus is first issued and at the
Closing Time, include any 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, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto); it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter consists of the
information in Annex C to the Terms Agreement.
C. The term “Disclosure Package” shall mean (i) the Basic Prospectus, including any
preliminary prospectus supplement, as amended or supplemented prior to the Applicable Time,
(ii) the issuer free writing prospectuses as defined in Rule 433 of the 1933 Act (each, an
“Issuer Free Writing Prospectus”), if any, identified in Annex A to the Terms Agreement,
(iii) any other free writing prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure Package and (iv) the Final Term Sheet,
which shall be identified in Annex B to the Terms Agreement. As of the Applicable Time, the
Disclosure Package did not, and at the Closing Time will not, contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to the
information contained in or omitted from the Disclosure Package in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the Disclosure Package;
it being understood and agreed that the only such information furnished by or on behalf of
any Underwriter consists of the information in Annex C to the Terms Agreement.
D. The terms which follow, when used in this Agreement, shall have the meanings
indicated. The term “the Effective Date” shall mean each date that the Registration
Statement and any post-effective amendment or amendments thereto became or become effective.
“Applicable Time” shall mean the date and time on the date of execution of the Terms
Agreement (as set forth in the Terms Agreement), which the Company has informed the
Underwriters as the time when sales of the Securities may be first made by the Underwriters
in the offering. “Basic Prospectus” shall mean the prospectus referred to in paragraph
(A)(i) above contained in the Registration Statement at the Effective Date including, in the
case of a Non-Delayed Offering, any Preliminary Prospectus. “Preliminary Prospectus” shall
mean any preliminary prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof including the Basic Prospectus and is used prior to
filing of the Final Prospectus. “Final Prospectus” shall mean the final prospectus
supplement relating to the Securities that is filed pursuant to Rule 424(b) after the
Applicable Time, together with the Basic Prospectus or, if, in the case of a Non-Delayed
Offering, no filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Disclosure Package or the
Final Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the 1934 Act on or
before the Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Prospectus, the Disclosure Package or the Final
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Prospectus, as the case may be; and any reference herein to the terms “amend”,
“amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Disclosure Package or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the 1934 Act after the Effective Date
or the issue date of the Basic Prospectus, any Preliminary Prospectus, the Disclosure Package
or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference;
provided that no such document filed after the Applicable Time shall be deemed
incorporated into the Disclosure Package. A “Non-Delayed Offering” shall mean an offering of
securities which is intended to commence promptly after the effective date of the
Registration Statement, with the result that, pursuant to Rules 415 and 430B, all information
(other than Rule 430B Information) with respect to the securities so offered must be included
in such Registration Statement at the effective date thereof. A “Delayed Offering” shall
mean an offering of securities pursuant to Rule 415 which does not commence promptly after
the effective date of the Registration Statement, with the result that only information
required pursuant to Rule 415 need be included in such Registration Statement at the
effective date thereof with respect to the securities so offered. Whether an offering of the
Securities is a Non-Delayed Offering or a Delayed Offering shall be set forth in the relevant
Terms Agreement.
E. (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the 1934 Act or form of prospectus), (iii) at the time the Company
or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)
of the 0000 Xxx) made any offer relating to the Securities in reliance on the exemption of
Rule 163 of the 1933 Act, and (iv) at the Applicable Time (with such date being used as the
determination date for purposes of this clause (iv)), the Company was, is and will be a
“well-known seasoned issuer” as defined in Rule 405 of the 1933 Act. The Registration
Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the 1933
Act, that initially became effective within three years of the date hereof, and the Company
has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act
objecting to use of the automatic shelf registration statement form and the Company has not
otherwise ceased to be eligible to use the automatic shelf registration statement form. No
order suspending the effectiveness of the Registration Statement has been issued by the
Commission and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act
against the Company or related to the offering of the Securities has been initiated or, to
the Company’s knowledge, threatened by the Commission.
F. (i) At the earliest time after the filing of the Registration Statement relating to
the Securities that the Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2)) of the 1933 Act and (ii) as of the Applicable Time,
the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of the 1933 Act),
without taking account of any determination by the Commission pursuant to Rule 405 of the
1933 Act that it is not necessary that the Company be considered an Ineligible Issuer.
G. Neither any Issuer Free Writing Prospectus nor the Final Term Sheet, as of its issue
date and at all subsequent times through the completion of the offering of the Securities or
until any earlier date that the Company notified or notifies the Representatives as described
in the next sentence, did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement,
including any document incorporated by reference therein that has not been superseded or
modified. If at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict
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with the information contained in the Registration Statement, the Company has promptly
notified or will promptly notify the Representatives and has promptly amended or supplemented
or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict. The foregoing two sentences do not apply to statements
in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such Annex C to the
Terms Agreement.
H. The Company has not distributed and will not distribute, prior to the later of the
Closing Time and the completion of the Underwriters’ distribution of the Securities, any
offering material in connection with the offering and sale of the Securities other than the
Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus reviewed and
consented to by the Representatives and included in Annex A to the Terms Agreement or the
Registration Statement.
I. The consolidated financial statements included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Final Prospectus present fairly in all
material respects the consolidated financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the results of their operations for the periods
specified; said financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods involved, except as
indicated therein; the supporting schedules included or incorporated by reference in the
Registration Statement, if any, present fairly the information required to be stated therein;
and if pro forma financial statements are included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Final Prospectus, the assumptions used
in preparing the pro forma financial statements included therein provide a reasonable basis
for presenting the significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
J. The documents incorporated by reference in the Final Prospectus and the Disclosure
Package, at the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the rules and
regulations thereunder, and, when read together and with the other information in the Final
Prospectus, the Disclosure Package and the Registration Statement, at each Representation
Date, did not 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.
K. Since the respective dates as of which information is given in the Registration
Statement, the Disclosure Package and the Final Prospectus, except as may otherwise be stated
therein or contemplated thereby, (i) there has been no material adverse change in the
condition (financial or other), earnings, results of operations, business or properties of
the Company and its subsidiaries, considered as one enterprise, whether or not arising from
transactions in the ordinary course of business and (ii) there have been no material
transactions entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business.
L. The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware with corporate power and authority to
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own, lease and operate its properties and conduct its business as now being conducted
and as described in the Registration Statement, the Disclosure Package and the Final
Prospectus; and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business, except where
the failure to so qualify would not have a material adverse effect on the condition
(financial or other), earnings, results of operations, business or properties of the Company
and its subsidiaries, considered as one enterprise (a “Material Adverse Effect”).
M. Schedule I hereto sets forth each domestic and foreign subsidiary of the Company
which is a “significant subsidiary” within the meaning of Rule 1-02 of Regulation S-X of the
1933 Act (each, a “Material Subsidiary” and collectively, the “Material Subsidiaries”). Each
Material Subsidiary of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement, the Disclosure Package and the Final
Prospectus and is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where the failure to
be in good standing or to so qualify would not have a Material Adverse Effect, and, except as
otherwise disclosed in the Registration Statement, the Disclosure Package or the Final
Prospectus, all of the issued and outstanding capital stock of each such Material Subsidiary
has been duly authorized and validly issued, is fully paid and non-assessable and is owned by
the Company (except for directors’ qualifying shares and shares held by individuals for the
purpose of satisfying the legal requirements of the jurisdiction of incorporation), directly
or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
N. Neither the Company nor any of its subsidiaries is in violation of its or any of
their charters or bylaws, or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it or any of them is a party or by which
it or any of them or their properties may be bound where any such violation or default would
have a Material Adverse Effect; and the execution of this Agreement, the execution and
delivery of the Indenture and the applicable Terms Agreement (including this Agreement as
incorporated by reference therein), the filing of the Registration Statement and the
consummation of the transactions contemplated herein and therein (including the issuance,
authentication, sale and delivery of the Securities) have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be bound or to which any
of the property or assets of the Company or any of its subsidiaries is subject where any such
conflict, breach, default, creation or imposition would have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the charter or bylaws of the
Company or, to the best of its knowledge, any law, administrative regulation or
administrative or court decree (except for such violations of any law, administrative
regulation or administrative or court decree that would not have a Material Adverse Effect
and would not have a material adverse effect on the Company’s ability to consummate the
transactions contemplated by this Agreement), and no consent, approval, authorization or
order of any court or governmental authority or agency is required for the consummation by
the Company of the transactions contemplated by this Agreement, (including the issuance,
authentication, sale and delivery of the Securities in
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accordance with the terms and conditions of the Indenture) except such as may be
required under the 1933 Act or the rules and regulations promulgated thereunder (the
“Regulations”), the Trust Indenture Act or state securities or “blue sky” laws.
O. The Company and its Material Subsidiaries possess adequate certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except such certificates, authorities
or permits which are not material to such conduct of their business, and neither the Company
nor any of its Material Subsidiaries has, to the knowledge of the Company, received any
notice of proceedings relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
P. Except as set forth in the Registration Statement or the Disclosure Package and the
Final Prospectus, there is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its subsidiaries that might
reasonably be expected to result in a Material Adverse Effect, or that might reasonably be
expected to materially and adversely affect the consummation of this Agreement and the
applicable Terms Agreement.
Q. There are no contracts or documents of the Company or any of its subsidiaries which
are required to be filed as exhibits to the Registration Statement (including the documents
incorporated by reference therein) by the 1933 Act or the Regulations which have not been so
filed.
R. The Company has full right, power and authority to execute and deliver this
Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”) and
to perform its obligations hereunder and thereunder.
S. The Indenture has been duly and validly authorized, when executed and delivered by
the Company and, assuming due execution and delivery by the Trustee, constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting
creditors’ rights generally and subject to the applicability of general principles of equity,
and has been duly qualified under the Trust Indenture Act.
T. The Securities have been duly authorized for issuance and sale pursuant to this
Agreement and the applicable Terms Agreement (or will have been so authorized prior to each
issuance of Securities) and, when executed and authenticated in accordance with the
provisions of the Indenture and the Resolutions of the Board of Directors of the Company or a
Pricing Committee thereof, and delivered to and paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the Company enforceable in accordance with
their terms (subject, as to enforcement of remedies, to applicable bankruptcy, fraudulent
transfer, reorganization, insolvency, moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to principles relating to the availability of
equitable remedies to the extent that adequate remedies at law may exist) and will be
entitled to the benefits of the Indenture, which will be substantially in the form heretofore
delivered to you; and the Securities and the Indenture will conform when executed and
delivered in all material respects to all statements relating thereto contained in the
Disclosure Package and the Final Prospectus.
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U. Except as disclosed in the Registration Statement or the Disclosure Package and the
Final Prospectus, and except as where such failure would not have a Material Adverse Effect,
the Company and its subsidiaries own, possess, license or have the right to use the patents,
patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names and other rights or interests in items of
intellectual property as are necessary for the operation and conduct of the businesses now
operated by them (the “patent and proprietary rights”); and except as disclosed in the
Registration Statement or the Disclosure Package and the Final Prospectus, the Company has no
knowledge of any infringement of or conflict with asserted rights of others with respect to
any patent and proprietary rights which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect, and, except as
disclosed in the Registration Statement or the Disclosure Package and the Final Prospectus,
the Company has no knowledge that any person or entity is infringing or otherwise violating
any of the Company’s patents, trademarks, servicemarks or copyrights in a manner that could
materially affect the use thereof by the Company or any of its subsidiaries and which
infringement would have a Material Adverse Effect.
V. No labor disturbance by the employees of the Company or any subsidiary exists or, to
the knowledge of the Company, is imminent which might reasonably be expected to have a
Material Adverse Effect.
W. The Company is not, and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Disclosure Package
and the Final Prospectus, will not be an “investment company” or an entity “controlled” by an
“investment company” as such terms are defined in the Investment Company Act of 1940, as
amended.
X. Except as described in the Registration Statement or the Disclosure Package and the
Final Prospectus and except as could not reasonably be expected to have a Material Adverse
Effect, to the knowledge of the Company, the properties, assets and operations of each of the
Company and its subsidiaries are in compliance with all applicable federal, state, local and
foreign laws (including, without limitation, common law), rules and regulations, orders,
decrees, judgments, permits and licenses relating to worker health and safety, and to the
protection and clean-up of the natural environment and to the protection or preservation of
natural resources, including, without limitation, those relating to the processing,
manufacturing, generation, handling, disposal, transportation or release of hazardous
materials (collectively, “Environmental Laws”). With respect to such properties, assets and
operations, there are no events, conditions, circumstances, activities, practices, incidents,
actions or plans of the Company or any of its subsidiaries of which the Company is aware that
may interfere with or prevent compliance or continued compliance with applicable
Environmental Laws or otherwise result in liability to the Company or any of its subsidiaries
pursuant to applicable Environmental Law in a manner that could reasonably be expected to
have a Material Adverse Affect. Except as described in the Registration Statement or the
Disclosure Package and the Final Prospectus and except as could not reasonably be expected to
have a Material Adverse Effect, (A) to the Company’s knowledge, none of the Company or any of
its subsidiaries is the subject of any federal, state, local or foreign investigation
pursuant to Environmental Laws, (B) none of the Company or any of its subsidiaries has
received any written notice or claim pursuant to Environmental Laws and (C) there are no
pending, or, to the knowledge of the Company, threatened actions, suits or proceedings
against the Company, any of its subsidiaries or its properties, assets or operations, in
connection with any Environmental Laws. The term “hazardous materials” shall mean those
substances that are regulated by or pursuant to any applicable Environmental Laws.
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Y. This Agreement has been duly authorized, executed and delivered by the Company.
Z. No holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
AA. The Company is, to its knowledge, in compliance in all material respects with the
applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 that are effective and the rules and
regulations of the Commission that have been adopted and are effective thereunder.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with an offering of Securities shall be deemed a
representation and warranty by the Company, as to the matters covered thereby, to each Underwriter.
2. Purchase and Sale. The several commitments of the Underwriters to purchase
securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
A. Payment of the purchase price for, and delivery of, any Securities to be purchased by
the Underwriters shall be made at the place set forth in the applicable Terms Agreement, or
at such other place as shall be agreed upon by the Representatives and the Company, on the
second business day (unless postponed in accordance with the provisions of Section 10)
following the date of the applicable Terms Agreement or such other time as shall be agreed
upon by the Representatives and the Company (each such time and date being referred to as a
“Closing Time”). Except as indicated in the applicable Terms Agreement, payment shall be
made to the Company by wire transfer in same-day funds against delivery of the Securities to
be purchased by the Representatives for the respective accounts of the Underwriters. Such
Securities shall be in such denominations and registered in such names as the Representatives
may request in writing at least two business days prior to the applicable Closing Time or
shall be in global or bearer form as permitted by the Indenture. Such Securities, which may
be in temporary form, will be made available for examination and packaging by the
Representatives on or before the first business day prior to the Closing Time.
B. If authorized by the applicable Terms Agreement, the Underwriters named therein may
solicit offers to purchase Securities from the Company pursuant to delayed delivery contracts
(“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto, with such
changes therein as the Company may approve.
C. As compensation for arranging Delayed Delivery Contracts, the Company will pay to the
Representatives at Closing Time, for the accounts of the Underwriters, a fee equal to that
percentage of the principal amount of Securities for which Delayed Delivery Contracts are
made at Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery
Contracts are to be with institutional investors of the types which will be set forth in the
applicable prospectus supplement included in the Final Prospectus. If applicable, at Closing
Time the Company will enter into Delayed Delivery Contracts (for not less than the minimum
principal amount of Securities per Delayed Delivery Contract specified in the applicable
Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by
the Company as provided below, but not for an aggregate principal amount of Securities in
excess of that specified in the applicable Terms Agreement. The Underwriters will not have
any responsibility for the validity or performance of Delayed Delivery Contracts.
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D. The Representatives are to submit to the Company, at least two business days prior to
Closing Time, the names of any institutional investors with which it is proposed that the
Company will enter into Delayed Delivery Contracts and the principal amount of Securities to
be purchased by each of them, and the Company will advise the Representatives, at least one
business day prior to Closing Time, of the names of the institutions with which the making of
Delayed Delivery Contracts is approved by the Company and the principal amount of Securities
to be covered by each such Delayed Delivery Contract.
E. The principal amount of Securities agreed to be purchased by the respective
Underwriters pursuant to the applicable Terms Agreement shall be reduced by the principal
amount of Securities covered by Delayed Delivery Contracts, as to each Underwriter as set
forth in a written notice delivered by the Representatives to the Company; provided, however,
that the total principal amount of Securities to be purchased by all Underwriters shall be
the total amount of Securities covered by the applicable Terms Agreement, less the principal
amount of Securities covered by Delayed Delivery Contracts.
F. The Company acknowledges and agrees that the purchase and sale of the Securities
pursuant to this Agreement and the Terms Agreement hereunder, including the determination of
the public offering price of the Securities and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company, on the one hand, and the several
Underwriters, on the other hand.
3. Covenants of the Company. The Company covenants with each Underwriter as follows:
A. The Company will use commercially reasonable efforts to cause the Registration
Statement, if not effective at the Applicable Time, and any amendment thereto, to become
effective. Immediately following the execution of each Terms Agreement, the Company will
prepare a final prospectus supplement to be included in the Final Prospectus setting forth
the principal amount of Securities covered thereby and their terms not otherwise specified in
the Indenture, the names of the Underwriters and the principal amount of Securities which
each severally has agreed to purchase, the names of the Representatives, the price at which
the Securities are to be purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the Representatives and the Company reasonably
deem necessary in connection with the offering of the Securities. Following the completion
of the offering, the Company will promptly transmit copies of the Final Prospectus to the
Commission for filing pursuant to Rule 424 of the Regulations.
B. If at any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the
Company, to further amend or supplement the Disclosure Package or the Final Prospectus in
order that the Disclosure Package or the Final Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of circumstances existing at the time it is
delivered to a purchaser or if it shall be necessary, in the opinion of either such counsel,
at any such time to amend or supplement the Registration Statement, the Disclosure Package or
the Final Prospectus in order to comply with the requirements of the 1933 Act or the
Regulations, the Company will promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the Registration Statement
and the Disclosure Package comply with such requirements.
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C. With respect to each sale of Securities, the Company will make generally available to
its security holders and to the Representatives as soon as practicable earnings statements of
the Company that will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 of
the Regulations.
D. From the date of a Terms Agreement, and for so long as a prospectus is required by
the 1933 Act to be delivered in connection with the sale of Securities covered by such Terms
Agreement, the Company will give the Representatives notice of its intention to file any
documents amending or supplementing the Registration Statement, the Disclosure Package or the
Final Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise, and will
furnish them with copies of any such proposed amendment or supplement or other documents
proposed to be filed a reasonable time in advance of filing and will provide the
Representatives the opportunity to review and comment on such documents.
E. From the date of a Terms Agreement, and for so long as a prospectus is required by
the 1933 Act to be delivered in connection with the sale of Securities covered by such Terms
Agreement, the Company will notify the Representatives immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of any supplement to the Final
Prospectus or any document to be filed pursuant to the 1934 Act which will be incorporated by
reference into the Final Prospectus, (iii) of the receipt of any comments from the Commission
with respect to the Registration Statement, the Disclosure Package, the Final Prospectus or
any prospectus supplement related thereto, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the Disclosure
Package or the Final Prospectus or for additional information relating to the offering of the
Securities, (v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings for that
purpose and (vi) the commencement or threat of any Section 8A proceeding against the Company
in connection with the Securities. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the lifting
thereof as soon as practicable.
F. The Company will deliver to the Representatives a conformed copy of the Registration
Statement, any documents incorporated by reference therein (unless such documents are
available on the “XXXXX” website), and each amendment thereto for each of the Underwriters.
So long as delivery of a prospectus by an Underwriter or dealer may be required by the 1933
Act, the Company will deliver to the Representatives as many copies of any Preliminary
Prospectus and the Final Prospectus and any supplement thereto as the Representatives may
reasonably request.
G. The Company will arrange for the qualification of the Securities for offering and
sale under the laws of such jurisdictions as the Representatives, after consultation with the
Company, may collectively designate and will maintain such qualifications in effect so long
as required for the distribution of the Securities, provided, however, that
the Company shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
H. The Company, during the period when the Final Prospectus is required to be delivered
under the 1933 Act, will file promptly all documents required to be filed with the Commission
pursuant to Section 13 or 14 of the 1934 Act.
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I. Between the date of any Terms Agreement and the Closing Time the Company will not,
without the prior consent of the Representatives, offer or sell, or enter into any agreement
to sell, any debt securities of the Company with a maturity of more than one year, including
additional Securities.
J. The Company and the Representatives will prepare a final term sheet containing only
a description of the Securities, in a form agreed between the Company and the
Representatives, and the Company will file such term sheet pursuant to Rule 433(d) under the
1933 Act within the time required by such rule (such term sheet, the “Final Term Sheet”).
K. The Company represents that it has not made, and agrees that, unless it obtains the
prior written consent of the Representatives, and each Representative represents that it has
not made, and agrees that, unless it obtains the prior written consent of the Company, it
will not make, any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405 of the 0000 Xxx) required to be filed with the Commission or retained by
the Company under Rule 433 of the 1933 Act; provided that the prior written consent of the
Company and the Representatives hereto shall be deemed to have been given in respect of the
Free Writing Prospectuses included in Annex A to the Terms Agreement. Any such free writing
prospectus consented to by the Company and the Representatives is hereinafter referred to as
a “Permitted Free Writing Prospectus”. The Company agrees that (i) it has treated and will
treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements
of Rules 164 and 433 of the 1933 Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
The Company consents to the use by any Underwriter of a free writing prospectus that (a) is
not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only
(i) information describing the preliminary terms of the Securities or their offering, (ii)
information permitted by Rule 134 under the 1933 Act or (iii) information that describes the
final terms of the Securities or their offering and that is included in the Final Term Sheet
of the Company contemplated in Section 3(J).
L. The Company agrees to pay the required Commission filing fees relating to the
Securities within the time required by Rule 456(b)(1) of the 1933 Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act.
4. Conditions of Underwriters’ Obligations. The obligations of the Underwriters to
purchase Securities pursuant to any Terms Agreement are subject to the accuracy of the
representations and warranties on the part of the Company herein contained as of the Applicable
Time and Closing Time, to the accuracy of the statements of the Company’s officers made in any
certificate furnished pursuant to the provisions hereof, to the performance by the Company of all
of its covenants and other obligations hereunder and to the following further conditions:
A. If the Registration Statement has not become effective prior to the Applicable Time,
unless the Representatives agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 p.m. New York City time, on the date of
determination of the public offering price, if such determination occurred at or prior to
3:00 p.m. New York City time on such date or (ii) 12:00 Noon on the business day following
the day on which the public offering price was determined, if such determination occurred
after 3:00 p.m. New York City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time period required by Rule
424(b). The Company will (i) prepare the Rule 462(b)
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Registration Statement, if necessary, in a form approved by the Underwriters and file
such Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b)
under the 1933 Act by 10:00 a.m. New York City time on the business day immediately following
the date of determination of the public offering price of the Securities and, at the time of
filing, either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the 1933 Act.
B. At the applicable Closing Time (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings thereof or
initiated or threatened by the Commission, (ii) there shall not have been since the execution
of such Terms Agreement any decrease in the ratings of any of the Company’s debt securities
by any “nationally recognized statistical rating organization” (as defined for purpose of
Rule 436(g) under the 0000 Xxx) or any notice given of any intended or potential decrease in
any such rating or of a possible change in any such rating that does not indicate the
direction of the possible change and (iii) there shall not have come to the attention of the
Representatives any facts that would cause them reasonably to believe that the Disclosure
Package or the Final Prospectus, at the time it was required to be delivered to a purchaser
of the Securities, contained an untrue statement of a material fact or omitted 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.
C. At the applicable Closing Time you shall have received:
1. The favorable opinion, dated as of the Closing Time, of Shearman & Sterling
LLP, counsel of the Company, substantially in the form set forth in Exhibit C.
2. The favorable opinion, dated as of the Closing Time, of Xxxxxxxx X. Xxxxx,
Assistant General Counsel of the Company, substantially in the form set forth in
Exhibit D.
3. The favorable opinion or opinions, dated as of the applicable Closing Time,
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, with respect to the
issuance and sale of the Securities, the Indenture, the Registration Statement, the
Final Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as they
may reasonably request for the purpose of enabling them to pass upon such matters.
D. At the applicable Closing Time there shall not have been, since the Applicable Time
or since the date and time of which information is given in the Disclosure Package, any
material adverse change in the condition (financial or otherwise), earnings, results of
operations, business or properties of the Company and its subsidiaries considered as one
enterprise, whether or not arising from transactions in the ordinary course of business,
except as set forth or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto), and the Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman of the Board, the Chief
Executive Officer, the President, the principal financial officer or the principal accounting
officer of the Company, dated as of such Closing Time, to the effect that:
1. the representations and warranties of the Company in this Agreement are true
and correct in all material respects on and as of the Closing Time with the same
effect as if made at the Closing Time and the Company has complied with all the
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agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Time;
2. no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or, to the
Company’s knowledge, threatened; and
3. since the date of the most recent financial statements or financial data
included or incorporated by reference in the Disclosure Package or the Final
Prospectus (exclusive of any supplement thereto), there has been no material adverse
change in the condition (financial or other), earnings, results of operations,
business or properties of the Company and its subsidiaries, considered as one
enterprise, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any supplement thereto).
You shall have received from Ernst & Young LLP or other independent certified public
accountants acceptable to the Representatives a letter or letters, dated the date of the applicable
Terms Agreement and as of the applicable Closing Time, in form and substance satisfactory to the
Representatives, containing statements and information of the type customarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and
certified financial information contained or incorporated by reference in the Disclosure Package
and the Final Prospectus; provided that such letters shall use a “cut-off” date no more than five
business days prior to the respective dates of such letters.
E. At the applicable Closing Time counsel for the Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of any of the representations and warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as herein contemplated shall be
in all material respects satisfactory in form and substance to the Representatives and counsel for
the Underwriters.
If any condition specified in this Section shall not have been fulfilled when and as required
to be fulfilled, the applicable Terms Agreement may be terminated by the Representatives by notice
to the Company at any time at or prior to the applicable Closing Time, and such termination shall
be without liability of any party to any other party except as provided in Section 5.
5. Payment of Expenses. The Company will pay all reasonable and necessary
expenses incident to the performance of its obligations under this Agreement and each Terms
Agreement, including (a) the preparing, printing or other production and filing of the
Registration Statement (as originally filed) and all amendments thereto, (b) the preparation,
issuance and delivery of the Securities to the Underwriters, (c) the reasonable fees and
disbursements of the Company’s counsel and accountants and of the Trustee and its counsel,
(d) the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(G), including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey, (e) the printing or other production and delivery to the
Underwriters in quantities as hereinabove stated of copies of the Preliminary Prospectus, any
Issuer Free Writing Prospectus and the Final Prospectus and any amendments or supplements
thereto, (f) the production and delivery to the Underwriters of copies of the Indenture and
any Blue Sky Survey reasonably requested by the Representatives, (g) the fees of rating
agencies, (h) the fees and expenses, if any, incurred in connection with the listing of
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the Securities on any securities exchange, and (i) the fees and expenses, if any,
incurred in connection with any filing with, and clearance of the offering by, FINRA and (y)
the reasonable fees and expenses of counsel for the Underwriters in connection therewith.
If a Terms Agreement is terminated by the Representatives in accordance with the provisions of
Section 4 or Sections 9(i) and 9(iv), or if the sale of any Securities provided for herein or in
any Terms Agreement is not consummated because any condition to the obligations of the Underwriters
set forth herein is not satisfied by the Company or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any provision hereof, the
Company shall reimburse the Underwriters named in such Terms Agreement for all of their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the
Underwriters, that shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
6. Indemnification.
A. The Company agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20(a) of
the 1934 Act, against any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to reasonable attorneys’ fees and any and all expenses
reasonably and necessarily incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement
for the registration of the Securities, as originally filed or any amendment thereof, or arise out
of or are based upon the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any related Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Disclosure Package or the Final Prospectus, or
in any supplement thereto or amendment thereof, or arise out of or are based upon the omission or
alleged omission to state therein 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; provided, however, that the Company will not be liable in any such case to the extent,
but only to the extent, that any such loss, liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information furnished to the Company
by or on behalf of any Underwriter through the Representatives expressly for use therein; it being
understood and agreed that the only such information furnished by any Underwriter consists of the
information described in Annex C to the Terms Agreement. This indemnity will be in addition to any
liability which the Company may otherwise have, including under this Agreement.
B. Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless the
Company, each of the directors of the Company, each of the officers of the Company who shall have
signed the Registration Statement, and each other person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but not limited to
reasonable attorneys’ fees and any and all expenses reasonably and necessarily incurred in
investigating, preparing or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or litigation) to which they or
any of them may become subject under the 1933 Act, the 1934 Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of a
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material fact contained in the Registration Statement for the registration of the Securities,
as originally filed or any amendment thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue
statement of a material fact contained in any related Preliminary Prospectus, any Issuer Free
Writing Prospectus, the Disclosure Package or the Final Prospectus, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged omission to state
therein 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, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or expense arises out
of or is based upon any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Underwriter as set forth in Annex C to the Terms Agreement. It
being understood and agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement. This indemnity will be in addition to
any liability which any Underwriter may otherwise have, including under this Agreement.
C. Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it may have under this
Section 6). In case any such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding
the foregoing, the indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall have been authorized
in writing by one of the indemnifying parties in connection with the defense of such action, (ii)
the indemnifying parties shall not have employed counsel reasonably satisfactory to the indemnified
parties to have charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different from or additional
to those available to one or all of the indemnifying parties (in which case the indemnifying
parties shall not have the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne by the indemnifying
parties. Anything in this subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld. No indemnifying party shall,
without the written consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have been a party and
indemnification could have been sought hereunder by such indemnified party, unless such settlement
(x) includes an unconditional release of such indemnified party, in form and substance reasonably
satisfactory to such indemnified party, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any 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 6B effected without its
written consent if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such
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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.
7. Contribution. In order to provide for contribution in circumstances in which the
indemnification provided for in Section 6 is for any reason held to be unavailable from any
indemnifying party or is insufficient to hold harmless a party indemnified thereunder, then the
indemnifying parties shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any contribution received by the
Company from persons, other than the Underwriters, who may also be liable for contributions,
including persons who control the Company within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act, officers of the Company who signed the Registration Statement and
directors of the Company) as incurred to which the Company and one or more of the Underwriters may
be subject, in such proportions as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Securities or, if such allocation is not
permitted by applicable law or indemnification is not available as a result of the indemnifying
party not having received notice as provided in Section 6 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also the relative fault
of the Company and the Underwriters in connection with the statements or omissions which 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 the Underwriters shall be deemed
to be in the same proportion as (x) the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters, respectively, in each case as
set forth in the table on the cover page of the Final Prospectus. The relative fault of the
Company and of the Underwriters 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 or the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7, in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to the securities
purchased by such Underwriter hereunder. Notwithstanding the provisions of this Section 7 and the
preceding sentence, no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act shall
have the same rights to contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, each
officer of the Company who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject in each case to clauses
(i) and (ii) of this Section 7. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties, notify each party or parties
from whom contribution may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any obligation it or they
may have under this Section 7 or otherwise. The obligation of the Underwriters to contribute
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pursuant to this Section 7 shall be several in proportion to their respective underwriting
obligations and not joint.
8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties, indemnities and agreements contained in this Agreement or any Term
Agreement, or contained in certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect regardless of any termination of the applicable Terms
Agreement (including this Agreement as incorporated by reference therein), or any investigation
made by or on behalf of any Underwriter, controlling person or the Company, and shall survive
delivery of, and payment for, any Securities to the Underwriters.
9. Termination. The Representatives may terminate the applicable Terms Agreement
(including this Agreement, as incorporated by reference therein), immediately upon notice to the
Company, at any time at or prior to the applicable Closing Time (i) if there has been, since the
date of such Terms Agreement or since the respective dates as of which information is given in the
Disclosure Package or the Final Prospectus, any material adverse change in the condition,
(financial or otherwise), earnings, results of operations, business or properties of the Company
and its subsidiaries considered as one enterprise, whether or not from transactions arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or escalation of
hostilities or other calamity or crisis or change in general domestic or international economic,
political or financial conditions either within or outside of the United States the effect of which
is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to
proceed with the offering, sale or delivery of the Securities, or (iii) if trading in any
Securities of the Company has been suspended by the Commission or any securities exchange or in the
over-the-counter market, or if trading generally on the American Stock Exchange, the New York Stock
Exchange or in the over-the-counter market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been required, by either
of said exchanges or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal or New York authorities or (iv) there shall
have been since the execution of such Terms Agreement any decrease in the ratings of any of the
Company’s debt securities by any “nationally recognized statistical rating organization” (as
defined for purpose of Rule 436(g) under the 0000 Xxx) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
10. Default. If one or more of the Underwriters shall fail at the applicable Closing
Time to purchase the Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the “Defaulted Securities”), then the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or
any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth. If, however, during such 24
hours you shall not have completed such arrangements for the purchase of all of the Defaulted
Securities, then:
A. if the aggregate principal amount of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations under the
applicable Terms Agreement (including this Agreement as incorporated by reference therein)
bear to the underwriting obligations of all such non-defaulting Underwriters, unless
otherwise agreed, or
B. if the aggregate principal amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased pursuant to such Terms
Agreement,
-18-
such Terms Agreement (including this Agreement as incorporated by reference therein)
shall terminate, without any liability on the part of any non-defaulting Underwriter or the
Company.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under the applicable Terms Agreement or
this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth in this Section
which does not result in termination of the applicable Terms Agreement, either the Representatives
or the Company shall have the right to postpone the applicable Closing Time for a period not
exceeding seven days in order that any required changes in the Registration Statement or the Final
Prospectus or in any other documents or arrangements may be effected.
11. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to you as provided in the
applicable Terms Agreement. Notices to the Company shall be directed to it at Boston Scientific
Corporation, Xxx Xxxxxx Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 (fax: 000-000-0000);
Attention of the Chief Financial Officer with a copy to the Assistant General Counsel.
12. Parties. The applicable Terms Agreement and this Agreement shall inure to the
benefit of and be binding upon the Underwriters and the Company, and their respective successors
and the officers and directors and any controlling persons referred to in Section 6 hereof.
Nothing expressed or mentioned in the applicable Terms Agreement or this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the parties hereto or
thereto and their respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of the applicable Terms Agreement or this Agreement or
any provision therein or herein contained. The applicable Terms Agreement and this Agreement and
all conditions and provisions thereof and hereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
13. Authority of the Representatives. Any action by the Underwriters hereunder may be
taken by the Representatives on behalf of the Underwriters, and any such action taken by the
Representatives shall be binding upon the Underwriters.
14. Governing Law. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
15. Amendments or Waivers. No amendment or waiver of any provision of this Agreement,
nor any consent or approval to any departure therefrom, shall in any event be effective unless the
same shall be in writing and signed by the parties hereto.
16. Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
17. Headings. The headings herein are included for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
-19-
| Very truly yours, BOSTON SCIENTIFIC CORPORATION |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President, Treasurer | |||
-20-
SCHEDULE I
MATERIAL SUBSIDIARIES
Boston Scientific Limited
Scimed Life Systems, Inc.
Boston Scientific International Holding Limited
BSC International Holding Limited
Boston Scientific International B.V.
Boston Scientific Japan K.K.
Cardiac Pacemakers, Inc.
Boston Scientific Clonmel Limited
Guidant Group B.V.
Guidant Corporation
Guidant Puerto Rico B.V.
Boston Scientific Xxxxx Corporation
Target Therapeutics, Inc.
Guidant Sales Corporation
Scimed Life Systems, Inc.
Boston Scientific International Holding Limited
BSC International Holding Limited
Boston Scientific International B.V.
Boston Scientific Japan K.K.
Cardiac Pacemakers, Inc.
Boston Scientific Clonmel Limited
Guidant Group B.V.
Guidant Corporation
Guidant Puerto Rico B.V.
Boston Scientific Xxxxx Corporation
Target Therapeutics, Inc.
Guidant Sales Corporation
EXHIBIT A
BOSTON SCIENTIFIC CORPORATION
Debt Securities
Debt Securities
FORM OF TERMS AGREEMENT
Dated: ,
| To: | Boston Scientific Corporation Xxx Xxxxxx Xxxxxxxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000-0000 |
Ladies and Gentlemen:
We understand that Boston Scientific Corporation, a Delaware corporation (the “Company”),
proposes to issue and sell its Debt Securities having an aggregate initial public offering price or
purchase price of $___(as described in more detail below, the “Securities”). Subject to the
terms and conditions set forth herein or incorporated by reference herein, the underwriter(s) named
below (the “Underwriter(s)”) hereby offer(s) to purchase such Securities.
The Securities to be purchased by the Underwriter(s), which are to be issued under an
Indenture dated as of June 1, 2006, between the Company and The Bank of New York Mellon Trust
Company, N.A. (as successor to JPMorgan Chase Bank, N.A.), as Trustee, as supplemented from time to
time by supplemental indentures and/or modified from time to time by resolutions of the Board of
Directors of the Company or a Pricing Committee thereof as provided in Section 301 of such
Indenture, shall have the following terms:
Principal Amount: |
||
Date of maturity: |
||
Interest rate:
|
% | |
Interest payment dates: |
||
Public offering price: |
||
Purchase price: |
||
Redemption provisions: |
||
Form of Securities: |
||
Delayed Delivery Contracts: |
||
Aggregate Underwriting Discount: |
% |
A-1
Purchase Price to be paid
by Underwriters: |
||
Closing date and location:
|
December 14, 2009 (T+2) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
|
Representatives:
|
Banc of America Securities LLC, Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc. |
|
Applicable Time:
|
[ ][a/p]m Eastern Time on the date hereof. |
All of the provisions contained in the document entitled “Boston Scientific Corporation Debt
Securities, Underwriting Agreement-Basic Provisions,” dated as of ___, 2009, a copy of
which is attached hereto as Annex A, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as therein defined. Each
Underwriter severally agrees, subject to the terms and provisions of this Terms Agreement,
including the terms and provisions incorporated by reference herein, to purchase the principal
amount of Securities set forth opposite its name.
| Name | Principal Amount | |||
Total |
||||
Any notice by the Company to the Underwriter(s) pursuant to this Terms Agreement shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication addressed to: .
Please accept this offer by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
A-2
| Acting on behalf of themselves and as the Representatives of the several Underwriters |
||||||
| BANC OF AMERICA SECURITIES LLC | ||||||
| By: | ||||||
Title: |
||||||
| DEUTSCHE BANK SECURITIES INC. | ||||||
| By: | ||||||
Title: |
||||||
| By: | ||||||
Title: |
||||||
| X.X. XXXXXX SECURITIES INC. | ||||||
| By: | ||||||
Title: |
||||||
Accepted:
BOSTON SCIENTIFIC CORPORATION
By: |
||||
Title: |
A-3
Annex A — Issuer Free Writing Prospectuses
A-4
Annex B — Final Term Sheet
A-5
Annex C — Information Furnished by the Representatives
| • | the names of the Underwriters on the cover page of the Preliminary Prospectus and the Final Prospectus. | |
| • | the following information under the caption “Underwriting” in the Preliminary Prospectus and the Final Prospectus: |
| o | the names of the Underwriters and their respective allocations | ||
| o | the second sentence of the fourth paragraph | ||
| o | the first paragraph under the sub-heading “Commissions and Discounts” | ||
| o | the third and fourth sentences under the sub-heading “New Issue of Notes” | ||
| o | the two paragraphs under the sub-heading “Price Stabilization and Short Positions” |
A-6
EXHIBIT B
BOSTON SCIENTIFIC CORPORATION
Debt Securities
Debt Securities
DELAYED DELIVERY CONTRACT
__, ______
Boston Scientific Corporation
c/o [Name and address of Representatives]
c/o [Name and address of Representatives]
Attention:
Ladies and Gentlemen:
The undersigned hereby agree to purchase from Boston Scientific Corporation (the “Company”),
and the Company agrees to sell to the undersigned on
___, ___ (the “Delivery Date”),
principal amount of the Company’s Debt Securities due
___, ___ (the “Securities”),
offered by the Company’s Basic Prospectus dated ___, as supplemented by its Final Prospectus dated
___, ___, receipt of which is hereby acknowledged, at a purchase price of ___% of the
principal amount thereof, plus accrued interest from ___, to the Delivery Date, and on the further
terms and conditions set forth in the contract.
Payment for the Securities which the undersigned has agreed to purchase on the Delivery Date
shall be made to the Company or by wire transfer in same day funds, on the Delivery Date, upon
delivery to the undersigned at the office of [name and address of Representatives], of the
Securities to be purchased by the undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for Securities on the
Delivery Date shall be subject only to the conditions that (1) the purchase of Securities to be
made by the undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or before ___,
___, shall have sold to the Underwriters of the Securities (the “Underwriters”) such principal
amount of the Securities as is to be sold to them pursuant to the Terms Agreement dated
___, ___ between the Company and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for Securities shall not be affected by the failure of any purchaser
to take delivery of and make payment for Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to you that its investment in the Securities is
not, as of the date hereof, prohibited under the laws of any jurisdiction to which the undersigned
is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the Company that all
necessary corporate action for the due execution and delivery of this contract and the payment for
and purchase of the Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution, delivery, payment or
purchase,
B-1
and that, upon acceptance hereof by the Company and mailing or delivery of a copy as provided
below, this contract will constitute a valid and binding agreement of the undersigned in accordance
with its terms.
| [Name of Purchaser] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Accepted: BOSTON SCIENTIFIC CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
B-2
EXHIBIT C
FORM OF OPINION OF SHEARMAN & STERLING LLP
(i) the statements in the Basic Prospectus under the caption “Description of the Debt
Securities” and the statements in the Disclosure Package and the Final Prospectus under the caption
“Description of the Notes”, insofar as such statements constitute summaries of documents referred
to therein, fairly summarize in all material respects the documents referred to therein;
(ii) the statements in the Disclosure Package and the Final Prospectus under the caption
“Material U.S. Federal Income Tax Consequences”, insofar as such statements constitute summaries of
legal matters referred to therein, fairly summarize in all material respects the legal matters
referred to therein;
(iii) assuming that the Indenture has been duly authorized, executed and delivered by the
Company and the Trustee, the Indenture is a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as enforcement thereof may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally (including without limitation all laws relating to fraudulent
transfers), and except as enforcement thereof is subject to the effect of general principles of
equity, including without limitation concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at law);
(iv) assuming that the Securities have been duly authorized and executed by the Company, when
the Securities have been authenticated by the Trustee in accordance with the Indenture and
delivered and paid for as provided by the Underwriting Agreement (which for purposes of this
opinion includes the Terms Agreement), the Securities will be the legal, valid and binding
obligations of the Company enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, except as enforcement thereof may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally (including without limitation all laws relating to fraudulent transfers), and
except as enforcement thereof is subject to the effect of general principles of equity, including
without limitation concepts of materiality, reasonableness, good faith and fair dealing (regardless
of whether considered in a proceeding in equity or at law);
(v) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended;
(vi) to the best knowledge of such counsel, no authorization, approval or other action by,
and no notice to or filing with, any United States federal or New York governmental authority or
regulatory body is required for the due execution, delivery or performance by the Company of the
Underwriting Agreement, except as have been obtained and are in full force and effect under the
Securities Act or the Trust Indenture Act or as may be required under the securities or blue sky
laws of any jurisdiction in the United States in connection with the offer and sale of the
Securities;
(vii) the execution and delivery of the Underwriting Agreement, the Terms Agreement, the
Indenture or the Securities do not, and the performance by the Company of its obligations
thereunder will not, result in a violation of any Generally Applicable Law ; and
(viii) the Company is not required to register as an investment company under the Investment
Company Act of 1940, as amended.
C-1
In addition, such opinion shall also contain a statement that such counsel has participated in
discussions concerning preparation of the Registration Statement, the Disclosure Package and the
Final Prospectus with certain officers and employees of the Company, with its auditors and with
your representatives and counsel. In such counsel’s opinion, each of the Registration Statement,
the Disclosure Package and the Final Prospectus (other than the financial statements and other
financial data contained therein or omitted therefrom and the Trustee’s Statement of Eligibility on
Form T-1, as to which it shall express no opinion) appears on its face to be appropriately
responsive in all material respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder.
Such counsel shall also state that, subject to the limitations set forth therein, on the basis
of the information it gained in the course of performing the services referred to therein, no facts
came to its attention which caused it to believe that (i) the Registration Statement (other than
the financial statements and other financial data contained therein or omitted therefrom and the
Trustee’s Statement of Eligibility on Form T-1, as to which it has not been requested to comment),
as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, or (ii) the Disclosure Package, at the Applicable Time, and the Final Prospectus, (as
of its date or the date hereof), (other than the financial statements and other financial data
contained therein or omitted therefrom, as to which we have not been requested to comment),
contained or contains an untrue statement of a material fact or omitted or omits 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.
C-2
EXHIBIT D
FORM OF OPINION OF XXXXXXXX X. XXXXX
(i) the Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware;
(ii) the Company has corporate power and authority to own its properties and to conduct its
business as now being conducted and as described in the Disclosure Package and the Final
Prospectus;
(iii) the Company is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the failure
so to qualify or to be in good standing would not have a Material Adverse Effect;
(iv) each Material Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own its properties and conduct its business as now being conducted and as
described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business
as a foreign corporation and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not have a Material Adverse
Effect;
(v) except as otherwise described in the Registration Statement or the Disclosure Package and
the Final Prospectus, all of the issued and outstanding capital stock of the Company and each
Material Subsidiary has been duly authorized and validly issued, are fully paid and non-assessable
and, to the best of my knowledge, all of the issued and outstanding capital stock of each Material
Subsidiary are owned by the Company (except for directors’ qualifying shares and shares held by
individuals for the purpose of satisfying the legal requirements of the jurisdiction of
incorporation), directly or through subsidiaries, free and clear of any security interests, claims,
liens or encumbrances;
(vi) neither the execution and delivery of the Indenture, the issue and sale of the
Securities, nor the consummation of any other of the transactions contemplated in the Underwriting
Agreement nor the fulfillment of the terms of the Underwriting Agreement (which for purposes of
this opinion includes the Terms Agreement) will conflict with, result in a breach of, violate or
constitute a default under, the charter or by-laws of the Company or the terms of any indenture or
other material agreement or instrument known to me and to which the Company or any of the Company’s
subsidiaries is a party or may be bound (except for such conflicts, breaches, violations or
defaults that would not have a Material Adverse Effect), or any material judgment, decree, order
statute, rule or regulation known to me to be applicable to the Company or any of the Company’s
subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of the Company’s subsidiaries (except for such
conflicts, breaches, violations or defaults that would not have a Material Adverse Effect);
(vii) to my knowledge (A) there are no pending or threatened legal or governmental
proceedings required to be described in or incorporated into the documents constituting Disclosure
Package and the Final Prospectus which are not described as required and (B) there is no franchise,
contract or other document of a character required to be described in or incorporated into the
Registration Statement or the Disclosure Package and the Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and to my knowledge, the statements included
or incorporated in the Disclosure Package and
3
the Final Prospectus describing any legal proceedings or material contracts or agreements
relating to the Company fairly summarize such matters in all material respects;
(viii) the descriptions in the Registration Statement, the Disclosure Package and the Final
Prospectus of statutes, contracts and other documents are accurate and fairly present the
information required to be shown in all material respects;
(ix) the Underwriting Agreement has been duly authorized, executed and delivered by the
Company;
(x) the Indenture has been duly authorized, executed and delivered by the Company; and
(xi) the Securities have been duly authorized and executed by the Company; and
As Deputy General Counsel, I have reviewed, and lawyers under my supervision have participated
in the preparation of, the Registration Statement, the Disclosure Package and the Final Prospectus,
and I and lawyers under my supervision have participated in the preparation of, the documents
incorporated by reference therein. In examining the Registration Statement, the Disclosure Package
and the Final Prospectus, I have necessarily assumed the correctness and completeness of the
statements made or included therein by the Company. However, in the course of performing my duties
as Assistant General Counsel of the Company, I and lawyers under my supervision have participated
in conferences with officers and representatives of and accountants for the Company with respect to
the matters contained in the Registration Statement, the Disclosure Package and the Final
Prospectus, and no facts have come to my attention which would lead me to believe that either (i)
the Registration Statement (except for the financial statements and schedules and other financial
or statistical data included or incorporated by reference therein and the Statement of Eligibility
of the Trustee on Form T-1, as to which I express no opinion), at Effective Date, or any amendment
thereof made prior to the date hereof as of the date of such amendment, contained an untrue
statement of a material fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) the Disclosure Package, (as of the
Applicable Time), or the Final Prospectus, (as of its date and as of the date hereof), (except for
the financial statements and schedules and other financial or statistical data included or
incorporated by reference therein, as to which I express no opinion), contained or contains an
untrue statement of a material fact or omitted or omits to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading.
4
BOSTON SCIENTIFIC CORPORATION
Debt Securities
Debt Securities
TERMS AGREEMENT
Dated: December 10, 2009
| To: | Boston Scientific Corporation Xxx Xxxxxx Xxxxxxxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000-0000 |
Ladies and Gentlemen:
We understand that Boston Scientific Corporation, a Delaware corporation (the “Company”),
proposes to issue and sell its Debt Securities having an aggregate initial public offering price or
purchase price of $2,000,000,000 (as described in more detail below, the “Securities”). Subject to
the terms and conditions set forth herein or incorporated by reference herein, the underwriter(s)
named below (the “Underwriter(s)”) hereby offer(s) to purchase such Securities.
The Securities to be purchased by the Underwriter(s), which are to be issued under an
Indenture dated as of June 1, 2006, between the Company and The Bank of New York Mellon Trust
Company, N.A. (as successor to JPMorgan Chase Bank, N.A.), as Trustee, as supplemented from time to
time by supplemental indentures and/or modified from time to time by resolutions of the Board of
Directors of the Company or a Pricing Committee thereof as provided in Section 301 of such
Indenture, shall have the following terms:
Principal Amount:
|
$850,000,000 of 4.500% notes due 2015 (the “2015 Notes”) | |
| $850,000,000 of 6.000% notes due 2020 (the “2020 Notes”) | ||
| $300,000,000 of 7.375% notes due 2040 (the “2040 Notes”) | ||
Date of maturity:
|
January 15, 2015 for the 2015 Notes | |
| January 15, 2020 for the 2020 Notes | ||
| January 15, 2040 for the 2040 Notes | ||
Interest rate:
|
4.500% for the 2015 notes | |
| 6.000% for the 2020 notes | ||
| 7.375% for the 2040 notes | ||
Interest payment dates:
|
January 15 and July 15 of each year, beginning July 15, 2010 | |
Public offering price:
|
99.694% of principal amount of the 2015 notes | |
| 99.031% of principal amount of the 2020 notes | ||
| 99.879% of principal amount of the 2040 notes | ||
Purchase price:
|
98.944% of principal amount of the 2015 notes | |
| 98.156% of principal amount of the 2020 notes | ||
| 98.879% of principal amount of the 2040 notes | ||
Redemption provisions:
|
As described in the Prospectus Supplement dated December 10, 2009 |
5
Form of Securities:
|
Book-Entry | |
Delayed Delivery Contracts:
|
N/A | |
Aggregate Underwriting
|
0.750% for the 2015 notes | |
Discount:
|
0.875% for the 2020 notes | |
| 1.000% for the 2040 notes | ||
Purchase Price to be paid
|
$841,024,000 for the 2015 notes | |
by Underwriters:
|
$834,326,000 for the 2020 notes | |
| $296,637,000 for the 2040 notes | ||
Closing date and location:
|
December 14, 2009 (T+2) | |
| Xxxxxxx Xxxxxxx & Xxxxxxxx LLP | ||
| 000 Xxxxxxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
Representatives:
|
Banc of America Securities LLC, Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc. | |
Applicable Time:
|
4:45 p.m. Eastern Time on the date hereof. |
All of the provisions contained in the document entitled “Boston Scientific Corporation Debt
Securities, Underwriting Agreement-Basic Provisions,” dated as of December 10, 2009, a copy of
which is attached hereto as Annex A, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as therein defined. Each
Underwriter severally agrees, subject to the terms and provisions of this Terms Agreement,
including the terms and provisions incorporated by reference herein, to purchase the principal
amount of Securities set forth opposite its name.
| Principal | ||||||||||||
| Amount of | Principal Amount | Principal Amount | ||||||||||
| 4.500% notes | of 6.000% notes | of 7.375% notes | ||||||||||
| Name | due 2015 | due 2020 | due 0000 | |||||||||
Xxxx xx Xxxxxxx Securities LLC
|
$ | 170,000,000 | $ | 170,000,000 | $ | 60,000,000 | ||||||
Deutsche Bank Securities Inc.
|
$ | 170,000,000 | $ | 170,000,000 | $ | 60,000,000 | ||||||
X.X. Xxxxxx Securities Inc.
|
$ | 170,000,000 | $ | 170,000,000 | $ | 60,000,000 | ||||||
Barclays Capital Inc.
|
$ | 68,000,000 | $ | 68,000,000 | $ | 24,000,000 | ||||||
BNP Paribas Securities Corp.
|
$ | 59,500,000 | $ | 59,500,000 | $ | 21,000,000 | ||||||
RBS Securities Inc.
|
$ | 59,500,000 | $ | 59,500,000 | $ | 21,000,000 | ||||||
Daiwa Securities America Inc.
|
$ | 21,250,000 | $ | 21,250,000 | $ | 7,500,000 | ||||||
Mitsubishi UFJ Securities (USA), Inc.
|
$ | 21,250,000 | $ | 21,250,000 | $ | 7,500,000 | ||||||
Mizuho Securities USA Inc.
|
$ | 21,250,000 | $ | 21,250,000 | $ | 7,500,000 | ||||||
Xxxxx Fargo Securities, LLC
|
$ | 21,250,000 | $ | 21,250,000 | $ | 7,500,000 | ||||||
BBVA Securities Inc.
|
$ | 12,750,000 | $ | 12,750,000 | $ | 4,500,000 | ||||||
BNY Mellon Capital Markets, LLC
|
$ | 12,750,000 | $ | 12,750,000 | $ | 4,500,000 | ||||||
RBC Capital Markets Corporation
|
$ | 12,750,000 | $ | 12,750,000 | $ | 4,500,000 | ||||||
Scotia Capital Inc.
|
$ | 12,750,000 | $ | 12,750,000 | $ | 4,500,000 | ||||||
6
| Principal | ||||||||||||
| Amount of | Principal Amount | Principal Amount | ||||||||||
| 4.500% notes | of 6.000% notes | of 7.375% notes | ||||||||||
| Name | due 2015 | due 2020 | due 2040 | |||||||||
ING Financial Markets LLC
|
$ | 8,500,000 | $ | 8,500,000 | $ | 3,000,000 | ||||||
Allied Irish Banks, p.l.c
|
$ | 4,250,000 | $ | 4,250,000 | $ | 1,500,000 | ||||||
Standard Chartered Bank
|
$ | 4,250,000 | $ | 4,250,000 | $ | 1,500,000 | ||||||
Total
|
$ | 850,000,000 | $ | 850,000,000 | $ | 300,000,000 | ||||||
Any notice by the Company to the Underwriter(s) pursuant to this Terms Agreement shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication addressed to:
Banc of America Securities LLC, General Counsel’s office, c/o Xxxx Xxxxx, Bank of America Tower,
Xxx Xxxxxx Xxxx, Xxx Xxxx XX 00000, Tel: 000-000-0000, Fax: 000-000-0000
Deutsche
Bank Securities Inc., Legal Department, c/o Xxxxx Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Tel: 000-000-0000, Fax: 000-000-0000
X.X. Xxxxxx Securities Inc., Transaction Execution Group, c/o Xxxxx Xxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Tel: 000-000-0000, Fax: 000-000-0000
X.X. Xxxxxx Securities Inc., Transaction Execution Group, c/o Xxxxx Xxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Tel: 000-000-0000, Fax: 000-000-0000
Please accept this offer by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
7
| Acting on behalf of themselves and as the Representatives of the several Underwriters |
||||
|
BANC OF AMERICA SECURITIES LLC |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| DEUTSCHE BANK SECURITIES INC. |
||||
| By: | /s/ Marc Fratepietro | |||
| Name: | Marc Fratepietro | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxx X. XxXxxx | |||
| Name: | Xxxx X. XxXxxx | |||
| Title: | Director | |||
| X.X. XXXXXX SECURITIES INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Executive Director | |||
| Accepted: BOSTON SCIENTIFIC CORPORATION |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President, Treasurer | |||
Annex A — Issuer Free Writing Prospectuses
The Final Term Sheet, attached to Annex B hereof
Annex B — Final Term Sheet
Filed Pursuant to Rule 433 under the Securities Act of 1933
Registration Statement No. 333-163621
Issuer Free Writing Prospectus, dated December 10, 0000
Registration Statement No. 333-163621
Issuer Free Writing Prospectus, dated December 10, 0000
Xxxxxx Xxxxxxxxxx Corporation
$2,000,000,000
Senior Notes Offering
Senior Notes Offering
Terms and Conditions — 5, 10 and 30 Year Fixed Rate Notes
| 5-Year | 10-Year | 30-Year | ||||
Issuer
|
Boston Scientific Corporation | Boston Scientific Corporation | Boston Scientific Corporation | |||
Note Type
|
Senior Notes | Senior Notes | Senior Notes | |||
Form of Offering
|
SEC Registered | SEC Registered | SEC Registered | |||
Ratings 1
|
Ba1 (stable outlook) Xxxxx’x | Ba1 (stable outlook) Xxxxx’x | Ba1 (stable outlook) Xxxxx’x | |||
| BBB- (stable outlook) S&P | BBB- (stable outlook) S&P | BBB- (stable outlook) S&P | ||||
| BB+ (positive outlook) Fitch | BB+ (positive outlook) Fitch | BB+ (positive outlook) Fitch | ||||
Principal Amount
|
$850,000,000 | $850,000,000 | $300,000,000 | |||
Trade Date
|
December 10, 2009 | December 10, 2009 | December 10, 2009 | |||
Settlement Date (T + 2)
|
December 14, 2009 | December 14, 2009 | December 14, 2009 | |||
Maturity Date
|
January 15, 2015 | January 15, 2020 | January 15, 2040 | |||
Coupon
|
4.500% per annum | 6.000% per annum | 7.375% per annum | |||
Yield
|
4.567% per annum | 6.129% per annum | 7.384% per annum | |||
Price to Public 2
|
99.694% | 99.031% | 99.879% | |||
Spread
|
Plus 237.5bps | Plus 262.5bps | Plus 287.5bps | |||
Benchmark Treasury
|
2.125% UST due November 30, 2014 | 3.375% UST due November 15, 2019 | 4.500% UST due August 15, 2039 | |||
Benchmark Yield
|
2.192% | 3.504% | 4.509% | |||
Net Proceeds to Company
(before expenses)
|
$847,399,000 | $841,763,500 | $299,637,000 | |||
Coupon Dates
|
Semi-annually on January 15 and July 15 | Semi-annually on January 15 and July 15 | Semi-annually on January 15 and July 15 | |||
First Coupon Date
|
July 15, 2010 | July 15, 2010 | July 15, 2010 | |||
Optional Redemption
|
The greater of: | The greater of: | The greater of: | |||
| •100% of the principal amount of the notes to be redeemed, or | •100% of the principal amount of the notes to be redeemed, or | •100% of the principal amount of the notes to be redeemed, or | ||||
| •as determined by a Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest thereon (not including any portion of such payments of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate plus 35 basis points plus accrued and unpaid interest on the notes to the redemption date. | •as determined by a Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest thereon (not including any portion of such payments of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate plus 40 basis points plus accrued and unpaid interest on the notes to the redemption date. | •as determined by a Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest thereon (not including any portion of such payments of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate plus 45 basis points plus accrued and unpaid interest on the notes to the redemption date. | ||||
Day Count Basis
|
30/360 | 30/360 | 30/360 | |||
Minimum Denominations
|
US$2,000 and integral multiples of | US$2,000 and integral multiples of | US$2,000 and integral multiples of | |||
| US$1,000 in excess of such amount | US$1,000 in excess of such amount | US$1,000 in excess of such amount | ||||
CUSIP / ISIN
|
101137 AJ6 / US101137AJ68 | 101137 AK3 / US101137AK32 | 101137 AL1 / US101137AL15 | |||
Joint Bookrunners
|
Banc of America Securities LLC | Banc of America Securities LLC | Banc of America Securities LLC | |||
| Deutsche Bank Securities Inc. | Deutsche Bank Securities Inc. | Deutsche Bank Securities Inc. | ||||
| X.X. Xxxxxx Securities Inc. | X.X. Xxxxxx Securities Inc. | X.X. Xxxxxx Securities Inc. | ||||
| Barclays Capital Inc. | Barclays Capital Inc. | Barclays Capital Inc. | ||||
| BNP Paribas Securities Corp. | BNP Paribas Securities Corp. | BNP Paribas Securities Corp. | ||||
| RBS Securities Inc. | RBS Securities Inc. | RBS Securities Inc. | ||||
Co-Managers
|
Daiwa Securities America Inc. | Daiwa Securities America Inc. | Daiwa Securities America Inc. | |||
| Mitsubishi UFJ Securities (USA), Inc. | Mitsubishi UFJ Securities (USA), Inc. | Mitsubishi UFJ Securities (USA), Inc. | ||||
| 5-Year | 10-Year | 30-Year | ||||
| Mizuho Securities USA Inc. | Mizuho Securities USA Inc. | Mizuho Securities USA Inc. | ||||
| Xxxxx Fargo Securities, LLC | Xxxxx Fargo Securities, LLC | Xxxxx Fargo Securities, LLC | ||||
| BBVA Securities Inc. | BBVA Securities Inc. | BBVA Securities Inc. | ||||
| BNY Mellon Capital Markets, LLC | BNY Mellon Capital Markets, LLC | BNY Mellon Capital Markets, LLC | ||||
| RBC Capital Markets Corporation | RBC Capital Markets Corporation | RBC Capital Markets Corporation | ||||
| Scotia Capital Inc. | Scotia Capital Inc. | Scotia Capital Inc. | ||||
| ING Financial Markets LLC | ING Financial Markets LLC | ING Financial Markets LLC | ||||
| Allied Irish Banks, p.l.c | Allied Irish Banks, p.l.c | Allied Irish Banks, p.l.c | ||||
| Standard Chartered Bank | Standard Chartered Bank | Standard Chartered Bank | ||||
Notes:
| 1 | A securities rating is not a recommendation to buy, sell or hold securities and
may be subject to revision or withdrawal at any time. |
|
| 2 | Plus accrued interest, if any, from December 14, 2009. |
The Company plans to use the net proceeds of this offering for general corporate purposes,
including prepaying a portion of its bank term loan due in April 2011. The Company expects to
record a pre-tax charge, not previously anticipated, of approximately $30 million (approximately
$19 million after tax, or $0.01 per share) in the fourth quarter associated with the prepayment.
As a result of this offering, the Company’s pro forma consolidated ratio of earnings to fixed
charges for the nine months ended September 30, 2009 may decrease by more than ten percent.
Because more than 5% of the proceeds of this offering, not including underwriting
compensation, may be received by affiliates of the underwriters in this offering,
this offering is being conducted in compliance with NASD Rule 2720, as administered
by the Financial Industry Regulatory Authority. Pursuant to NASD Rule 2720, the
appointment of a qualified independent underwriter is not necessary in connection
with this offering, as the offering is of debt securities that are investment grade
rated.
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE SEC
FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS THE
ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND
THIS OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING XXXXX ON THE SEC
WEB SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY DEALER
PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS IF YOU
REQUEST IT BY CALLING BANC OF AMERICA SECURITIES LLC TOLL-FREE AT 1-800-294-1322,
DEUTSCHE BANK SECURITIES INC. TOLL-FREE AT 1-800-503-4611 OR X.X. XXXXXX SECURITIES
INC. COLLECT AT 000-000-0000.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE
AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG
OR ANOTHER EMAIL SYSTEM.
Annex C — Information Furnished by the Representatives
| • | the names of the Underwriters on the cover page of the Preliminary Prospectus and the Final Prospectus. | |
| • | the following information under the caption “Underwriting” in the Preliminary Prospectus and the Final Prospectus: |
| o | the names of the Underwriters and their respective allocations | ||
| o | the second sentence of the fourth paragraph | ||
| o | the first paragraph under the sub-heading “Commissions and Discounts” | ||
| o | the third and fourth sentences under the sub-heading “New Issue of Notes” | ||
| o | the two paragraphs under the sub-heading “Price Stabilization and Short Positions” |
