Exhibit 4.4
TYCO INTERNATIONAL GROUP S.A.
Debt Securities
Purchase Agreement
October 28, 1998
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION,
as Representatives of the Initial Purchasers
c/x Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Tyco International Group S.A., a Luxembourg company (the "Company"),
proposes to issue and sell to the initial purchasers named in Schedules II-A and
II-B hereto (the "Initial Purchasers"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedules I-A and I-B hereto (the "Securities"), to be
issued under the Indenture, dated as of June 9, 1998, as supplemented by
Supplemental Indenture No. 5 and Supplemental Indenture No. 6 thereto (as so
supplemented, the "Indenture"), in each case, among the Company, Tyco
International Ltd., a Bermuda company and the sole shareholder of the Company
("Tyco"), and The Bank of New York, as trustee (the "Trustee"). The Securities
will be unconditionally guaranteed by Tyco. If the firm or firms listed in
Schedules II-A and II-B hereto include only the firm or firms listed in
Schedules I-A and I-B hereto, then the terms "Initial Purchasers" and
"Representatives", as used herein shall each be deemed to refer to such firm or
firms.
The Company and Tyco understand that the Initial Purchasers propose to
make an offering of the Securities on the terms and in the manner set forth
herein and agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to purchasers
("Subsequent Purchasers") at any time after the date of this Agreement.
The Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
thereunder (collectively the "Securities Act"), in reliance upon exemptions
therefrom.
The Company and Tyco have prepared and will deliver to the Initial
Purchasers, on the date hereof, copies of a final offering memorandum dated
October 28, 1998 (the "Final Offering Memorandum"), used or to be used by the
Initial Purchasers in connection with their solicitation of purchases of, or
offering of, the Securities. "Offering Memorandum" means, with respect to any
date or time referred to in this Agreement, the most recent offering memorandum
(whether the Final Offering Memorandum, or any amendment or supplement to such
document), which has been prepared and delivered by the Company to the Initial
Purchasers in connection with their solicitation of purchases of, or offering
of, the Securities.
The holders of the Securities will be entitled to the benefits of the
registration rights agreement (the "Registration Rights Agreement"), to be dated
as of the Closing Date (as defined below) between the Company and the Initial
Purchasers, pursuant to which the Company will agree to file, as soon as
practicable after the Closing Date but in any event within 90 days of the
Closing Date, a registration statement with the Commission registering the
Exchange Securities (as defined in the Registration Rights Agreement) under the
Securities Act.
The Company and Tyco hereby agree with the Initial Purchasers as
follows:
1. The Company agrees to issue and sell the Securities and Tyco
agrees to issue the Guarantees to the several Initial Purchasers as hereinafter
provided, and each Initial Purchaser, on the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase, severally and not jointly, from the Company the respective
principal amount of Securities set forth opposite such Initial Purchaser's name
in Schedules II-A and II-B hereto at the purchase price set forth in Schedules
I-A and I-B hereto plus accrued interest, if any, from the date specified in
Schedules I-A and I-B hereto to the date of payment and delivery.
2. The Company and Tyco understand that the several Initial
Purchasers intend (i) to make an offering of their respective portions of the
Securities and the Guarantees and (ii) initially to offer the Securities and the
Guarantees upon the terms set forth in the Offering Memorandum.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives no later than noon on the Business Day prior to the Closing Date
(as defined below), at 9:00 A.M. on November 2, 1998 at the offices of Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx (or at
such other time and place on the same or such other date, not later than the
fifth Business Day (as defined below) thereafter, as you and the Company may
agree in writing). As used herein, the term "Business Day" means any day other
than a day on which banks are permitted or required to be closed in New York
City. The time and date of such payment and delivery with respect to the
Securities are referred to herein as the "Closing Date".
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Payment for the Securities shall be made against delivery to the nominee of
The Depository Trust Company for the respective accounts of the several Initial
Purchasers of global notes (the "Global Notes") representing the Securities,
with any transfer taxes payable in connection with the transfer to the Initial
Purchasers of the Securities duly paid by the Company. The Global Notes will be
made available for inspection by the Representatives at the office of Xxxxxx
Brothers Inc., 3 World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
not later than 1:00 P.M., New York City time, on the Business Day prior to the
Closing Date.
4. The Company and Tyco, jointly and severally, represent and warrant
to each Initial Purchaser that:
(a) the Company has not, directly or indirectly, solicited any
offer to buy or offered to sell, and will not, directly or indirectly,
solicit any offer to buy or offer to sell, in the United States or to
any United States citizen or resident, any security which is or would
be integrated with the sale of the Securities in a manner that would
require the Securities to be registered under the Securities Act;
(b) the Final Offering Memorandum does not, and at the Closing
Date will not, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, that this representation, warranty and
agreement shall not apply to statements in or omissions from the Final
Offering Memorandum made in reliance upon and in conformity with
information furnished to the Company in writing by the Initial
Purchasers expressly for use in the Final Offering Memorandum;
(c) the documents incorporated by reference in the Offering
Memorandum, or portions thereof, to the extent only a portion of a
document is incorporated by reference in the Offering Memorandum, when
they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the
Securities Act or the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder (collectively,
the "Exchange Act"), as applicable, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Offering Memorandum or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
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(d) PricewaterhouseCoopers L.L.P. and Deloitte & Touche L.L.P.
who certified the financial statements and supporting schedules
included or incorporated by reference in the Offering Memorandum are
independent public accountants required by the Securities Act;
(e) the financial statements, and the related schedules and notes
thereto, included or incorporated by reference in the Offering
Memorandum present fairly the consolidated financial position of Tyco
and its consolidated subsidiaries as of the dates indicated and the
results of their operations and the changes in their consolidated cash
flows for the periods specified (except that such financial statements,
schedules and notes do not reflect the acquisition by Tyco of United
States Surgical Corporation, which was acquired on October 1, 1998);
said financial statements have been prepared in conformity with United
States generally accepted accounting principles ("GAAP") applied on a
consistent basis, except as otherwise disclosed therein, and the
supporting schedules included or incorporated by reference in the
Offering Memorandum present fairly in accordance with GAAP the
information required to be stated therein; the pro forma financial
information, and the related notes thereto, included or incorporated by
reference in the Offering Memorandum has been prepared in accordance
with the applicable requirements of the Securities Act and the Exchange
Act, as applicable, and is based upon good faith estimates and
assumptions believed by Tyco to be reasonable; and the selected
financial data included in the Offering Memorandum present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included or incorporated
by reference in the Offering Memorandum;
(f) since the respective dates as of which information is given
in the Offering Memorandum, there has not been any change in the
capital stock or long-term debt (on a consolidated basis) of Tyco, or
any material adverse change, or any development involving a prospective
material adverse change that is reasonably likely to occur, in or
affecting the general affairs, business, prospects, management,
financial position, shareholders' equity or results of operations of
Tyco and its subsidiaries, taken as a whole, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"),
otherwise than as set forth or contemplated in the Offering Memorandum;
and except as set forth or contemplated in the Offering Memorandum,
neither Tyco nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to Tyco and its subsidiaries, taken as a whole;
(g) the Company is a corporation duly and validly organized and
existing under the laws of Luxembourg, with power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Offering Memorandum, and is
duly qualified as a foreign corporation to transact business and is in
good standing under the laws of each other jurisdiction in which the
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nature of its business or its ownership or leasing of its properties
requires qualification, except where the failure to be so qualified or
in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(h) Tyco is a limited liability company duly and validly
organized and existing and in good standing under the laws of Bermuda,
with power and authority (corporate and other) to own, lease and
operate its properties and conduct its business as described in the
Offering Memorandum, and is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of each other
jurisdiction in which the nature of its business or the ownership or
leasing of its properties requires qualification, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect;
(i) each of the Company's subsidiaries listed on Schedule III
hereto is a "significant subsidiary" (as such term is defined in Rule
1-02 of Regulation S-X under the Securities Act), is duly and validly
organized and existing as a corporation under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Offering Memorandum, is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of each
jurisdiction in which the nature of its business or its ownership or
leasing of its properties requires qualification, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect; and, except as otherwise disclosed in the
Offering Memorandum, all the outstanding shares of capital stock of the
Company and each subsidiary of the Company have been duly authorized
and validly issued, are fully-paid and non-assessable, and (except as
indicated on Schedule III for non-material liens that have arisen in
the ordinary course of business and, in the case of non-United States
subsidiaries, for directors' qualifying shares) are owned by the
Company, as the case may be, directly or indirectly, free and clear of
all liens, encumbrances, security interests and claims;
(j) Tyco had as of the date indicated in the Offering Memorandum
a duly authorized and outstanding capitalization as set forth in the
Offering Memorandum in the column entitled "Actual" under the caption
"Capitalization"; except as disclosed in the Offering Memorandum, there
are no holders of securities (debt or equity) of Tyco or any of its
subsidiaries, or holders of rights, warrants or options to obtain
securities of Tyco or any of its subsidiaries who have the right to
request the Company or Tyco to register securities held by them under
the Securities Act other than holders who have elected not to exercise
their rights or whose securities have been so registered;
(k) this Agreement has been duly authorized, executed and
delivered by each of the Company and Tyco;
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(l) the Securities have been duly authorized and when duly
authenticated by the Trustee pursuant to the Indenture and issued and
delivered pursuant to this Agreement, will have been duly executed,
issued and delivered and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding instrument of the Company;
the Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"); the Registration Rights
Agreement has been duly authorized, executed and delivered and will
constitute a valid and binding agreement of the Company; and the
Registration Rights Agreement, the Securities and the Indenture will
conform in all material respects to the descriptions thereof in the
Offering Memorandum;
(m) the Guarantees have been duly authorized and when the
Securities have been duly authenticated by the Trustee pursuant to the
Indenture and issued and delivered pursuant to this Agreement, will
have been duly executed, issued and delivered and will constitute valid
and binding obligations of Tyco entitled to the benefits provided by
the Indenture; the Indenture has been duly authorized, executed and
delivered by Tyco and constitutes a valid and binding instrument of
Tyco; and the Guarantees will conform in all material respects to the
descriptions thereof in the Offering Memorandum;
(n) neither Tyco nor any of its subsidiaries is, or, with the
giving of notice or lapse of time or both would be, in violation of or
in default under, its memorandum of association, articles of
organization, certificate of incorporation or other similar charter
document (each a "Charter") or by-laws or any indenture, mortgage, deed
of trust, loan agreement, note, lease or other agreement or instrument
to which Tyco or any of its subsidiaries is a party or by which it or
any of them or any of their respective properties is bound or subject,
except for violations and defaults which individually and in the
aggregate would not result in a Material Adverse Effect, or are not
material to the holders of the Securities and the Guarantees; the
execution, delivery and performance of this Agreement, the Registration
Rights Agreement, the Indenture, the Securities and the Guarantees by
the Company and Tyco, as the case may be, the consummation of the
transactions contemplated herein, therein and in the Offering
Memorandum (including the issuance and sale of the Securities and the
Guarantees and the use of the proceeds from the sale of the Securities
as described in the Offering Memorandum under the caption "Use of
Proceeds") and the compliance by the Company and Tyco of their
respective obligations under this Agreement, the Registration Rights
Agreement, the Indenture, the Securities and the Guarantees do not and
will not conflict with or result in a breach of any of the terms or
provisions of or with the giving of notice or lapse of time or both
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon the property or assets of Tyco or
any of its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to
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which Tyco or any of its subsidiaries is a party or by which Tyco or
any of its subsidiaries is bound or to which any of the property or
assets of Tyco or any of its subsidiaries is subject, except for such
conflicts, breaches, defaults, liens, charges or encumbrances that
would not result in a Material Adverse Effect, nor will any such action
result in any violation of the provisions of the Charter or the by-laws
of Tyco or any of its subsidiaries or any applicable law or statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over Tyco or any of its subsidiaries or any of
their respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities and the issue of the Guarantees or the consummation by the
Company or Tyco of the transactions contemplated by this Agreement, the
Registration Rights Agreement or the Indenture, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been or will be obtained under the Securities
Act and the Trust Indenture Act and as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities and the Guarantees by the Initial
Purchasers;
(o) other than as disclosed in or contemplated by the Offering
Memorandum, there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the Company or
Tyco, threatened to which Tyco or any of its subsidiaries is or may be
a party or to which any property or assets of Tyco or any of its
subsidiaries is or may be the subject which, if determined adversely to
Tyco or any of its subsidiaries, could individually or in the aggregate
have, or reasonably be expected to have, a Material Adverse Effect or
which could be reasonably expected to materially and adversely affect
the consummation of the transactions contemplated by this Agreement or
the performance by the Company and Tyco of their respective obligations
hereunder; and no such proceedings are pending or, to the best of the
Company's and Tyco's knowledge, threatened against Tyco or any of its
subsidiaries which are required to be disclosed in the Offering
Memorandum, other than those disclosed therein; and there are no
contracts, mortgages, loan agreements, notes, leases or other documents
to which Tyco or any of its subsidiaries is a party or by which any of
them may be bound or to which any property or assets of Tyco or any of
its subsidiaries is subject that are required to be described in the
Offering Memorandum which are not described as required;
(p) except as disclosed in the Offering Memorandum, no labor
dispute with the employees of Tyco or any of its subsidiaries exists
or, to the knowledge of the Company or Tyco, is threatened, which could
reasonably be expected to result in a Material Adverse Effect;
(q) neither the Company nor Tyco is, and upon the issuance and
sale of the Securities and the issuance of the Guarantees as herein
contemplated and the application of the net proceeds therefrom as
described in the Offering Memorandum
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will be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(r) the Securities are eligible for resale pursuant to Rule 144A
("Rule 144A") of the rules and regulations promulgated under the
Securities Act and will not be, at the Closing Date, of the same class
as securities listed on a national securities exchange registered under
Section 6 of the Exchange Act, or quoted in a U.S. automated
interdealer quotation system;
(s) none of the Company, Tyco, its affiliates, as such term is
defined in Rule 501(b) under the Securities Act ("Affiliates"), or any
person acting on its or any of their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) has engaged
or will engage, in connection with the offering of the Securities, in
any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, or in any manner
involving a public offering of the Securities within the meaning of
Section 4(2) of the Securities Act;
(t) subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 5, it is not
necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers and to each Subsequent Purchaser
in the manner contemplated by this Agreement and the Offering
Memorandum to register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act;
(u) with respect to those Securities sold in reliance on
Regulation S ("Regulation S") of the rules and regulations promulgated
under the Securities Act by the Commission, (A) none of the Company,
Tyco or any person acting on their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) has engaged
or will engage in any directed selling efforts within the meaning of
Regulation S and (B) each of the Company and Tyco and any person acting
on their behalf (other than the Initial Purchasers, as to whom the
Company makes no representation) has complied and will comply with the
offering restrictions requirement of Regulation S;
(v) the Company has been advised by the National Association of
Securities Dealers, Inc. PORTAL Market that the Securities will be
designated PORTAL eligible securities in accordance with the rules and
regulations of the National Association of Securities Dealers, Inc.;
(w) neither the Company nor Tyco or, to the best of the Company's
and Tyco's knowledge, any officer, director, employee agent or
shareholder thereof, in each case acting on behalf of the Company or
Tyco, as the case may be, has done any act or authorized, directed or
participated in any act, in violation of any provision of the Foreign
Corrupt Practices Act of 1977, as amended, applicable to such entity or
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person for which civil or criminal liability or penalties, as the case
may be, could currently be imposed on the Company or Tyco;
(x) the choice of law provisions set forth in this Agreement and
the Registration Rights Agreement are legal, valid and binding under
the laws of Luxembourg and Bermuda, respectively, and will be
recognized and given effect to by the courts of Luxembourg and Bermuda,
respectively, (unless a court determined that doing so would be
contrary to public policy in Luxembourg and Bermuda, respectively,);
each of the Company and Tyco has the legal capacity to xxx and be sued
in its own name under the laws of Luxembourg and Bermuda, respectively;
each of the Company and Tyco has, under the laws of Luxembourg and
Bermuda, respectively, the power to submit, and has irrevocably
submitted, to the jurisdiction of the New York courts and has validly
and irrevocably appointed CT Corporation System, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X. (and any successor entity), as its
authorized agent for the service of process pursuant to this Agreement
and the Registration Rights Agreement; the irrevocable submission of
the Company and Tyco to the jurisdiction of the New York courts and the
waiver by the Company and Tyco of any immunity and any objection to the
venue of the proceeding in a New York court, included in this Agreement
or the Registration Rights Agreement, are legal, valid and binding
under the laws of Luxembourg and Bermuda, respectively; neither the
Company nor Tyco or any of their respective assets is entitled to
immunity (or any similar defense) from suit, execution, attachment or
other legal process in Luxembourg and Bermuda, respectively; this
Agreement and the Registration Rights Agreement are in proper legal
form under the laws of Luxembourg and Bermuda, respectively, for the
enforcement thereof against the Company and Tyco, respectively, and
nothing in Luxembourg and Bermuda law, respectively, prevents suit upon
this Agreement or the Registration Rights Agreement in the courts of
Luxembourg and Bermuda, respectively; it is not necessary (a) in order
to enable the Initial Purchasers to exercise or enforce their rights
under this Agreement or the Registration Rights Agreement in Luxembourg
and Bermuda, respectively, or (b) by reason of the entry into and/or
the performance of this Agreement and the Registration Rights
Agreement, that any of the Initial Purchasers should be licensed,
qualified, authorized or entitled to do business in Luxembourg and
Bermuda, respectively; and
(y) in any proceedings in Luxembourg and Bermuda, respectively,
or elsewhere in connection with this Agreement, the Company and Tyco
will not be entitled to claim for themselves or any of their respective
assets or property immunity from suit, execution, attachment or other
legal process.
Any certificate signed by any officer of the Company or Tyco delivered
to the Initial Purchasers or to counsel for the Initial Purchasers shall be
deemed a representation and warranty by the Company or Tyco, as the case may be,
to each Initial Purchaser as to the matters covered thereby.
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5. Each of the Initial Purchasers represents and warrants to, and
agrees with, the Company that it (i) is a "qualified institutional buyer" within
the meaning of Rule 144A under the Securities Act (a "Qualified Institutional
Buyer") or an "accredited investor" within the meaning of Rule 501(a) under the
Securities Act (an "Accredited Investor"); (ii) is not acquiring the Securities
with a view to any distribution thereof that would violate the Securities Act;
(iii) has not and will not solicit offers for, or offer or sell, Securities by
means of any general solicitation or general advertising within the meaning of
Rule 502(c) under Regulation D under the Securities Act; (iv) will offer and
sell the Securities only to (A) institutional investors that are reasonably
believed by it to qualify as Accredited Investors, (B) institutional investors
that are reasonably believed by it to qualify as Qualified Institutional Buyers
or (C) non-U.S. persons in offshore transactions in reliance upon Regulation S
under the Securities Act; and (v) will otherwise act in accordance with the
terms and conditions set forth in this Agreement and in the Offering Memorandum
in connection with the placement of the Securities contemplated hereby.
6. The Company and Tyco, jointly and severally, covenant and agree
with each of the several Initial Purchasers as follows:
(a) to furnish each of the Initial Purchasers as many copies of
the Offering Memorandum (including all amendments and supplements
thereto) and documents incorporated by reference therein as you may
reasonably request
(b) from the date hereof and prior to the Closing Date, to
furnish you a copy of any proposed amendment or supplement to the
Offering Memorandum, for your review, and not to effect any such
proposed amendment or supplement to which you reasonably and timely
object;
(c) to file promptly, subject to the provisions of paragraph (b)
above, all reports and any definitive proxy or information statements
required to be filed by Tyco with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act during the period
mentioned in paragraph (d) below;
(d) the Company and Tyco will comply with the Securities Act and
the Exchange Act so as to permit the completion of the distribution of
the Securities and the Guarantees contemplated in this Agreement and in
the Offering Memorandum;
(e) if, during such period after the first date of the offering
of the Securities and the Guarantees as in the opinion of counsel for
the Initial Purchasers an offering memorandum relating to the
Securities and the Guarantees is required by law to be delivered in
connection with sales of the Securities and the Guarantees by an
Initial Purchaser or dealer, any event shall occur as a result of which
it is necessary to amend or supplement the Offering Memorandum in order
to make the statements therein, in the light of the circumstances when
the Offering Memorandum is delivered to a purchaser, not misleading, or
if it is necessary to amend or supplement the Offering Memorandum to
comply with law, forthwith to prepare and furnish, at the expense of
the Company and Tyco, to the Initial Purchasers and to the dealers
(whose names and
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addresses you will furnish to the Company) to which Securities may have
been sold by you on behalf of the Initial Purchasers and to any other
dealers upon request, such amendments or supplements to the Offering
Memorandum as may be necessary so that the statements in the Offering
Memorandum as so amended or supplemented will not, in the light of the
circumstances when the Offering Memorandum is delivered to a purchaser,
be misleading or so that the Offering Memorandum will comply with law;
(f) to endeavor to qualify the Securities and the Guarantees for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Securities and the Guarantees; PROVIDED that neither the Company
nor Tyco shall be required to file a general consent to service of
process or qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or as a dealer in securities in any
jurisdiction in which it is not so qualified or subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not so subject;
(g) to use the net proceeds received by the Company from the sale
of the Securities pursuant to this Agreement in the manner specified in
the Offering Memorandum under "Use of Proceeds";
(h) to make generally available to their security holders and to
you as soon as practicable an earnings statement which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of Tyco occurring
after the date of the Offering Memorandum;
(i) so long as the Securities and the Guarantees are outstanding,
to furnish to you copies of all reports or other communications
(financial or other) furnished to holders of Securities and the
Guarantees and copies of any reports and financial statements furnished
to or filed with the Commission or any national securities exchange;
(j) the Company agrees that it will not and will cause its
affiliates not to make any offer or sale of securities of the Company
of any class if, as a result of the doctrine of "integration" referred
to in Rule 502 under the Securities Act, such offer or sale could be
deemed to render invalid (for the purpose of (i) the sale of the
Securities by the Company to the Initial Purchasers, (ii) the resale of
the Securities by the Initial Purchasers to Subsequent Purchasers or
(iii) the resale of the Securities by such Subsequent Purchasers to
others) the exemption from the registration requirements of the
Securities Act provided by Section 4(2) thereof or by Rule 144A or by
Regulation S thereunder or otherwise;
(k) the Company agrees that, in order to render the Securities
eligible for resale pursuant to Rule 144A under the Securities Act,
while any of the Securities
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remain outstanding, it will make available, upon request, to any holder
of Securities or prospective purchasers of Securities the information
specified in Rule 144A(d)(4), unless the Company furnishes information
to the Commission pursuant to Section 13 or 15(d) of the Exchange Act
(such information, whether made available to holders or prospective
purchasers or furnished to the Commission, is hereinafter referred to
as "Additional Information");
(l) until the expiration of two years after the original issuance
of the Securities, the Company will not, and will cause its
"affiliates" (as such term is defined in Rule 144(a)(1) under the
Securities Act) not to, resell any Securities which are "restricted
securities" (as such term is defined under Rule 144(a)(3) under the
Securities Act) that have been reacquired by any of them and shall
immediately upon any purchase of any such Securities submit such
Securities to the Trustee for cancellation;
(m) The Company shall take all reasonable action necessary to
enable Standard & Poor's Corporation ("S&P") and Xxxxx'x Investors
Service, Inc. ("Moody's") to provide their respective credit ratings of
the Securities.
(n) The Company will use all reasonable efforts in cooperation
with the Initial Purchasers to permit the Securities to be eligible for
clearance and settlement through DTC.
(o) Each certificate for a Security will bear the legend
contained in "Notices to Investors" in the Offering Memorandum for the
time period and upon the other terms stated in the Offering Memorandum.
(p) during the period beginning on the date hereof and continuing
to and including the Business Day following the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of or guaranteed by the Company or Tyco which are
substantially similar to the Securities or the Guarantees without prior
written consent of the Representatives; and
(q) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities and
the Guarantees, including any expenses of the Trustee, (ii) incident to
the preparation, printing, filing and distribution of the Offering
Memorandum (including all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities and the Guarantees under the laws of such jurisdictions as
the Initial Purchasers may designate, including reasonable fees of
counsel for the Initial Purchasers and their disbursements, (iv) in
connection with the listing of the
-12-
Securities and the Guarantees on any stock exchange, (v) related to any
filing with the National Association of Securities Dealers, Inc., (vi)
in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture, the
Registration Rights Agreement, the Preliminary and Supplemental Blue
Sky Memoranda and any Legal Investment Survey and the furnishing to the
Initial Purchasers and dealers of copies of the Offering Memorandum,
including mailing and shipping, as herein provided and (vii) payable to
rating agencies in connection with the rating of the Securities, it
being understood that the Company and Tyco shall not be responsible for
the fees and expenses of counsel to the Initial Purchasers except as
explicitly set forth herein.
7. The several obligations of the Initial Purchasers hereunder shall
be subject to the following conditions:
(a) the representations and warranties of the Company and Tyco
contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date and the Company and Tyco shall
have complied with all agreements and all conditions on their part to
be performed or satisfied hereunder at or prior to the Closing Date;
(b) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company or Tyco
by any "nationally recognized statistical rating organization", as such
term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(c) since the respective dates as of which information is given
in the Offering Memorandum there shall not have been any material
change in the capital stock or long-term debt of Tyco or any of its
subsidiaries, or any Material Adverse Effect otherwise than as set
forth or contemplated in the Offering Memorandum, the effect of which
in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities and the Guarantees on the terms and in the manner
contemplated in the Offering Memorandum;
(d) the Representatives shall have received on and as of the
Closing Date a certificate of a managing director or an executive
officer of each of the Company and Tyco with specific knowledge about
each of the Company's and Tyco's financial matters, satisfactory to you
to the effect set forth in subsections (a) through (c) of this Section
and to the further effect that there has not occurred any Material
Adverse Effect;
-13-
(e) Xxxx Xxxxxxx, Chief Corporate Counsel and Executive Vice
President of Tyco, shall have furnished to you a written opinion, dated
the Closing Date, in form and substance satisfactory to you, to the
effect set forth in Exhibit A-1 hereto;
(f) Kramer, Levin, Naftalis & Xxxxxxx, counsel for the Company
and Tyco, shall have furnished to you their written opinion, dated the
Closing Date, in form and substance satisfactory to you, to the effect
set forth in Exhibit A-2 hereto;
(g) Beghin Nothar Xxxxxx Loeff Xxxxxx Xxxxxxx, Luxembourg counsel
for the Company, shall have furnished to you their written opinion,
dated the Closing Date, in form and substance satisfactory to you, to
the effect set forth in Exhibit A-3 hereto;
(h) Xxxxxxx, Xxxxxxxx & Xxxxx, Bermuda counsel for Tyco, shall
have furnished to you their written opinion, dated the Closing Date, in
form and substance satisfactory to you, to the effect set forth in
Exhibit A-4 hereto;
(i) on the date hereof and on the Closing Date,
PricewaterhouseCoopers L.L.P. and Deloitte & Touche L.L.P. shall have
furnished to you letters, dated such dates, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants "comfort letters" to initial
purchasers with respect to the financial statements and certain
financial information contained in the Offering Memorandum;
(j) you shall have received on and as of the Closing Date an
opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel to the
Initial Purchasers, with respect to the validity of the Indenture, the
Securities and the Guarantees, the Offering Memorandum and other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters; and
(k) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
8. The Company and Tyco, jointly and severally, agree to indemnify
and hold harmless each Initial Purchaser and each person, if any, who controls
any Initial Purchaser within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including without limitation the reasonable
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Offering Memorandum (as
amended or supplemented if the Company or Tyco shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement
-14-
or omission made in reliance upon and in conformity with information relating to
any Initial Purchaser furnished to the Company or Tyco in writing by such
Initial Purchaser through the Representatives expressly for use therein.
Each Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company, Tyco and their respective directors and officers
and each person who controls the Company or Tyco within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company and Tyco to each Initial Purchaser,
but only with reference to information relating to such Initial Purchaser
furnished to the Company and Tyco in writing by such Initial Purchaser through
the Representatives expressly for use in the Offering Memorandum, any amendment
or supplement thereto, or any preliminary offering memorandum.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Initial
Purchasers and such control persons of Initial Purchasers shall be designated in
writing by the first of the named Representatives on each of Schedules I-A and
I-B hereto and any such separate firm for the Company, Tyco and their respective
directors and officers and such control persons of the Company and Tyco shall be
designated in writing by the Company and Tyco. The Indemnifying Person shall not
be liable for any settlement of any
-15-
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement unless the Indemnifying Person in good faith shall be contesting the
reasonableness of such fees and expenses (but only to the extent so contested)
or the entitlement of the Indemnified Person to indemnification under the terms
of this Section 8. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 8 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Tyco on the one hand and the Initial
Purchasers on the other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
Tyco on the one hand and the Initial Purchasers on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and Tyco on the one hand and the
Initial Purchasers on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Securities and
Guarantees (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and Tyco and the total underwriting discounts
and the commissions received by the Initial Purchasers bear to the aggregate
public offering price of the Securities and Guarantees. The relative fault of
the Company and Tyco on the one hand and the Initial Purchasers on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company and Tyco
or by the Initial Purchasers and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, Tyco and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
PRO RATA allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other
-16-
expenses reasonably incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, in no event shall an Initial Purchaser be required
to contribute any amount in excess of the amount by which the total price at
which the Securities purchased by it exceeds the amount of any damages that such
Initial Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Initial Purchasers' obligations
to contribute pursuant to this Section 8 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedules I-A and I-B hereto, and not joint.
The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 8
and the representations and warranties of the Company and Tyco set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Initial Purchaser or any person controlling any Initial Purchaser or by
or on behalf of the Company, Tyco, their respective officers or directors or any
other person controlling the Company or Tyco and (iii) acceptance of and payment
for any of the Securities and the Guarantees.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company or Tyco, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the Nasdaq National Market System, the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of or guaranteed by the Company
or Tyco shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Offering Memorandum.
10. If, on the Closing Date, any one or more of the Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase under this Agreement, and the aggregate principal amount of Securities
which such defaulting Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities, the other Initial Purchasers shall be obligated
severally in the proportions that the principal amount of Securities set forth
-17-
opposite their respective names in Schedules II-A and II-B hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Initial Purchasers, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
on such date; PROVIDED that in no event shall the principal amount of Securities
that any Initial Purchaser has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of one-tenth of such
principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date, any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Securities and the aggregate principal amount
of Securities with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of Securities to be purchased, and
arrangements satisfactory to you, the Company and Tyco for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser,
the Company or Tyco. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Offering Memorandum or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement.
11. If this Agreement shall be terminated by the Initial Purchasers,
or any of them, because of any failure or refusal on the part of the Company or
Tyco to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or Tyco shall be unable to perform
its obligations under this Agreement or any condition of the Initial Purchasers'
obligations cannot be fulfilled, the Company and Tyco agree to reimburse the
Initial Purchasers or such Initial Purchasers as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Initial Purchasers in connection with this Agreement or the offering of the
Securities and the Guarantees.
12. This Agreement shall inure to the benefit of and be binding upon
the Company, Tyco, the Initial Purchasers and any Indemnified Persons referred
to herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Securities from any Initial Purchaser shall be deemed to be a successor or
assign by reason merely of such purchase.
13. Any action by the Initial Purchasers hereunder may be taken by you
jointly or by the first of the named Representatives set forth in each of
Schedules I-A and I-B hereto alone on behalf of the Initial Purchasers, and any
such action taken by you jointly or by the first of the named Representatives
set forth in each of Schedules I-A and I-B hereto alone shall be binding upon
the Initial Purchasers. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Initial Purchasers
shall be given at the address set forth in each of Schedules I-A and I-B hereto.
Notices to the Company and Tyco shall be given to them,
-18-
if to the Company, at 0, Xxxxxx Xxxxx Xxxxxx, 0xx Xxxxx, X-0000, Xxxxxxxxxx,
Attention: the Managing Directors; if to Tyco, at The Xxxxxxx Building, 00
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx XX 00, Xxxxxxx, Xxxxxxxxx: Secretary, with a
copy c/oTyco International (US), Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; Attention: General Counsel.
14. Each of the Company and Tyco (i) agrees that any legal suit,
action or proceeding brought by any party to enforce any rights under or with
respect to this Agreement or any other document or the transactions contemplated
hereby or thereby may be instituted in any state or federal court in The City of
New York, State of New York, U.S.A., (ii) irrevocably waives to the fullest
extent permitted by law any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding, (iii) irrevocably waives
to the fullest extent permitted by law any claim that and agrees not to claim or
plead in any court that any such action, suit or proceeding brought in such
court has been brought in an inconvenient forum and (iv) irrevocably submits to
the non-exclusive jurisdiction of any such court in any such suit, action or
proceeding or for recognition and enforcement of any judgment in respect
thereof.
Each of the Company and Tyco hereby irrevocably and unconditionally
designates and appoints CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X. (and any successor entity), as its authorized agent to receive and
forward on its behalf service of any and all process which may be served in any
such suit, action or proceeding in any such court and agrees that service of
process upon CT Corporation shall be deemed in every respect effective service
of process upon it in any such suit, action or proceeding and shall be taken and
held to be valid personal service upon it. Said designation and appointment
shall be irrevocable. Nothing in this Section 13 shall affect the right of the
Initial Purchasers, their affiliates or any indemnified party to serve process
in any manner permitted by law or limit the right of the Initial Purchasers,
their affiliates or any indemnified party to bring proceedings against the
Company or Tyco in the courts of any jurisdiction or jurisdictions. Each of the
Company and Tyco further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment of CT Corporation in full
force and effect so long as the Securities and the Guarantees are outstanding
but in no event for a period longer than five years from the date of this
Agreement. Each of the Company and Tyco hereby irrevocably and unconditionally
authorizes and directs CT Corporation to accept such service on its behalf. If
for any reason CT Corporation ceases to be available to act as such, each of the
Company and Tyco agrees to designate a new agent in New York City on the terms
and for the purposes of this provision reasonably satisfactory to the Initial
Purchasers.
To the extent that either the Company or Tyco has or hereafter may
acquire any immunity from jurisdiction of any court (including, without
limitation, any court in the United States, the State of New York, Luxembourg,
Bermuda or any political subdivision thereof) or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property or
assets, this Agreement, or any other documents or actions to enforce judgments
in respect of any thereof, it hereby irrevocably waives such immunity,
-19-
and any defense based on such immunity, in respect of its obligations under the
above-referenced documents and the transactions contemplated thereby, to the
extent permitted by law.
15. If pursuant to a judgment or order being made or registered
against the Company or Tyco, any payment under or in connection with this
Agreement to an Initial Purchaser is made or satisfied in a currency (the
"Judgment Currency") other than in United States dollars then, to the extent
that the payment (when converted into United States dollars at the rate of
exchange on the date of payment or, if it is not practicable for such Initial
Purchaser to purchase United States dollars with the Judgment Currency on the
date of payment, at the rate of exchange as soon thereafter as it is practicable
for it to do so) actually received by such Initial Purchaser falls short of the
amount due under the terms of this Agreement, the Company or Tyco shall, to the
extent permitted by law, as a separate and independent obligation, indemnify and
hold harmless such Initial Purchaser against the amount of such short fall and
such indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. For the purpose of this Section, "rate of
exchange" means the rate at which the Initial Purchaser is able on the relevant
date to purchase United States dollars with the Judgment Currency and shall take
into account any premium and other costs of exchange.
-20-
16. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
TYCO INTERNATIONAL GROUP S.A.
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
Accepted: October __, 1998
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: Xxxxxx Brothers Inc.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name Xxxxx X. Xxxxx
Title: Managing Director
-21-
SCHEDULE I-A
Representatives: Xxxxxx Brothers Inc.
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Purchase Agreement Dated: October 28, 1998
Title of Securities: 5.875% Notes due 2004
Aggregate Principal Amount: $400,000,000
Purchase Price: 99.334%
Price to Public: 99.959%
Indenture: Indenture, dated as of June 9, 1998, as supplemented by
Supplemental Indenture No. 5 thereto, dated as of November 2,
1998, among Tyco International Group S.A., Tyco International
Ltd. and The Bank of New York, as trustee.
Maturity: November 1, 2004
Interest Rate: 5.875%
Interest Payment Dates: November 1 and May 1
Optional Redemption Provisions: The Notes may be redeemed, in whole or in part, at the option of
the Company at any time at a redemption price equal to the
greater of (i) 100% of the principal amount of the Notes, and
(ii) as determined by the Quotation Agent (as defined in the
Indenture), the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not
including any portion of such payments of interest accrued as of
the date of redemption) discounted to the date of redemption on
a semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at the Adjusted Redemption Treasury Rate (as
defined in the Indenture) plus 15 basis points plus, in each
case, accrued interest thereon to the date of redemption.
TheNotes are also subject to redemption to the extent provided
in Article Twelve of the Indenture.
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: November 2, 1998
Closing Location: New York, New York
Address for Notices to Initial Purchasers: Xxxxxx Brothers Inc., 3 World Financial Center,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
-23-
SCHEDULE I-B
Representatives: Xxxxxx Brothers Inc.
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Purchase Agreement Dated: October 28, 1998
Title of Securities: 6.125% Notes due 2008
Aggregate Principal Amount: $400,000,000
Purchase Price: 98.599%
Price to Public: 99.249%
Indenture: Indenture, dated as of June 9, 1998, as supplemented by
Supplemental Indenture No. 6 thereto, dated as of November 2,
1998, among Tyco International Group S.A., Tyco International
Ltd. and The Bank of New York, as trustee.
Maturity: November 1, 2008
Interest Rate: 6.125%
Interest Payment Dates: November 1 and May 1
Optional Redemption Provisions: The Notes may be redeemed, in whole or in part, at the option of
the Company at any time at a redemption price equal to the
greater of (i) 100% of the principal amount of the Notes, and
(ii) as determined by the Quotation Agent (as defined in the
Indenture), the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not
including any portion of such payments of interest accrued as of
the date of redemption) discounted to the date of redemption on
a semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at the Adjusted Redemption Treasury Rate (as
defined in the Indenture) plus 25 basis points plus, in each
case, accrued interest thereon to the date of redemption.
TheNotes are also subject to redemption to the extent provided
in Article Twelve of the Indenture.
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: November 2, 1998
Closing Location: New York, New York
Address for Notices to Initial Purchasers: Xxxxxx Brothers Inc., 3 World Financial Center,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
-25-
SCHEDULE II-A
5.875% NOTES DUE 2004:
PRINCIPAL AMOUNT OF
INITIAL PURCHASER SECURITIES TO BE PURCHASED
----------------- --------------------------
Xxxxxx Brothers Inc. ................................... $160,000,000
X.X. Xxxxxx Securities Inc.............................. $120,000,000
Credit Suisse First Boston Corporation.................. $ 60,000,000
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation................................. $ 60,000,000
------------
Total.......................................... $400,000,000
------------
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SCHEDULE II-B
6.125% NOTES DUE 2008:
Principal Amount of
INITIAL PURCHASER SECURITIES TO BE PURCHASED
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Xxxxxx Brothers Inc. ................................... $160,000,000
X.X. Xxxxxx Securities Inc.............................. $120,000,000
Credit Suisse First Boston Corporation.................. $ 60,000,000
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation................................. $ 60,000,000
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Total.......................................... $400,000,000
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