EXHIBIT 1.1
BOSTON SCIENTIFIC CORPORATION
Debt Securities
UNDERWRITING AGREEMENT-BASIC PROVISIONS
March 5, 1998
To: The Underwriters named in the within-mentioned Terms Agreement
Dear Sirs:
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.$500,000,000 or the equivalent thereof in foreign
currencies or currency units (the "Securities"), in one or more offerings on
terms to be determined at the time of sale. The Securities will be issued under
an indenture dated as of September 1, 1997 between the Company and The Chase
Manhattan Bank, 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
(the "Underwriters" or "you," which terms shall include the underwriter or
underwriters named therein whether acting alone in the sale of 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 (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.
I. Representations and Warranties. The Company represents and warrants
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to you that as of the date hereof, as of the date of the applicable Terms
Agreement and as of the Closing Time (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 Exhibit A hereto), 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.
1. The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "1933 Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement (File
No. 333-37255) 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 Final
Prospectus, each of which has previously been furnished to you. 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 includes 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)(2) or (5) a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the offering thereof. As
filed, such final prospectus supplement shall include all required information
with respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you for your review a
reasonable time prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, a reasonable time prior to the
Execution Time, will be included or made therein.
2. 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. 333-37255) 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, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The Company will
next file with the Commission either (x) a final prospectus supplement relating
to the Securities in accordance with Rules 430A and 424(b)(1) or (4), or (y)
prior to the effectiveness of such registration statement, an amendment to such
registration statement, including the form of final prospectus supplement. 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 430A
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. As
filed, such final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information, together with all
other such required information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in writing to
a modification, shall be in all substantive respects in the form furnished to
you for your review a reasonable time prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company has advised you,
a reasonable time prior to the Execution Time, will be included or made therein.
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B. On the Effective Date, the Registration Statement did or will,
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 Securities Exchange Act of 1934, as amended (the "l934
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 or will 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; on the
Effective Date and at the Closing Time, the Indenture did or will comply in all
material respects with the requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and at the Closing Time, the Final Prospectus (together
with any supplement thereto) will not, 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).
C. 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. "Execution Time" shall mean the date and time that
the applicable Terms Agreement (including this Agreement as incorporated by
reference therein) is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a) above
contained in the Registration Statement at the Effective Date including, in the
case of a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and is used
prior to filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that is first filed pursuant to
Rule 424(b) after the Execution 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. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution Time (or, if not effective
at the Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto becomes effective prior to the
Closing Time (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule 430A.
"Rule 415",
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"Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or regulation
under the 1933 Act. "Rule 430A Information" means information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus 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 Final Prospectus or the Final 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
Final Prospectus 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 of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. A "Non-Delayed Offering" shall mean an
offering of securities which is intended to commence promptly after the
effective date of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A 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 a 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 the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Exhibit A hereto.
D. The consolidated financial statements included or incorporated in
the Registration Statement and the Final Prospectus present fairly 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; and the supporting schedules
included or incorporated in the Registration Statement present fairly the
information required to be stated therein; and if pro forma financial statements
are included in the Registration Statement and Prospectus; the assumptions used
in preparing the pro forma financial statements included in the Registration
Statement and the Final Prospectus 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.
E. The documents incorporated by reference in the Final Prospectus,
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, at the time the Registration Statement and
any amendments thereto became or become effective and at each Representation
Date, did not and will not contain an untrue statement of a material fact or
omit to
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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.
F. Since the respective dates as of which information is given in the
Registration Statement 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.
G. 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 own, lease and operate its properties and
conduct its business as now being conducted and as described in 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").
H. Schedule I hereto sets forth all domestic and foreign subsidiaries
of the Company which individually or on a consolidated basis are material to the
operations of the Company and its subsidiaries and the conduct of their
respective businesses (collectively, "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 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 so qualify would not have a Material Adverse Effect,
and all of the issued and outstanding capital stock of each such subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
I. Neither the Company nor any of its subsidiaries is in violation of
its or any of their charters 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 have been
duly authorized by all necessary corporate action and will not
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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 by-laws of the Company or,
to the best of its knowledge, any law, administrative regulation or
administrative or court decree, 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,
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.
J. 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 subsidiaries has 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. No consent, approval,
authorization or order of, or filing with, any person or governmental agency or
body of any Court is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions of this Agreement)
in connection with the issuance and sale of the Securities by the Company,
except such as have been obtained and made under the Act and the Trust Indenture
Act and such as may be required under state securities laws.
K. Except as set forth in 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 result in
any Material Adverse Effect, or might materially and adversely affect the
consummation of this Agreement and the applicable Terms Agreement, and 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 by the 1933 Act
or the Regulations which have not been so filed.
L. The Indenture has been duly and validly authorized, executed and
delivered by the Company and, assuming due execution and delivery by the
Trustee, is 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.
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M. 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 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 conform in all material respects to all
statements relating thereto contained in the Final Prospectus.
N. The Company and its subsidiaries own, possess or license 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
Company's 1934 Act filings incorporated by reference in the Registration
Statement, neither the Company nor any of its subsidiaries has any knowledge of
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 neither the Company nor any subsidiary is aware 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.
O. No labor disturbance by the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent which might
be expected to have a Material Adverse Effect.
P. 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 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.
Q. Except as described in 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
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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 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.
R. This Agreement has been duly authorized, executed and delivered by
the Company.
S. The Company's authorized equity capitalization is as set forth in
the Final Prospectus.
T. No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
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
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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.
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 third 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
to the Representatives for the respective accounts of the Underwriters of the
Securities to be purchased by them. 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
Closing Time.
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.
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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. 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.
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.
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.
3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
A. The Company will use reasonable commercial efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Immediately following the execution of
each Terms Agreement, the Company will prepare a 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. 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 Final Prospectus in order that 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 or the Final Prospectus in order to
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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 comply with such requirements.
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 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 amendment to the Registration Statement or
any amendment or supplement to 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 not file any such proposed
amendment or supplement to which any of the Representatives reasonably objects;
provided, however, that, notwithstanding any such objection, the Company will
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file any amendment to the Registration Statement that counsel to the Company
reasonably believes is required pursuant to the 1933 Act or the 1934 Act.
E. From the date of a Terms Agreement, and for so long as a
prospectus is required 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 Registration Statement or Final Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement, the Final Prospectus or any prospectus supplement, (iv) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Final Prospectus or for additional information,
and (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. 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 at the earliest possible moment.
F. The Company will deliver to the Representatives and counsel for
the underwriters as many signed and conformed copies of the Registration
Statement (as originally filed), any documents incorporated by reference therein
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by reference in the
Final Prospectus) as the Representatives may reasonably request and will also
deliver to the Representatives a conformed copy of the Registration Statement,
any documents incorporated by reference therein and each amendment thereto for
each of the Underwriters. So long as delivery of a prospectus by an Underwriter
or dealer may be required
10
by the 1933 Act, the Company will deliver to the Representative as many copies
of any Preliminary Final 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, will maintain such qualifications in effect so long as required for
the distribution of the Securities and will arrange for the determination of the
legality of the Securities for purchase by institutional investors.
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.
I. Between the date of any Terms Agreement and the termination of any
trading restrictions or the Closing Time, whichever is later, with respect to
the Securities covered thereby, 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.
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 Execution 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 Execution Time, unless the Representatives agree in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00 PM New
York City time, on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 PM 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
PM 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).
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
11
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 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 date hereof, of Shearman &
Sterling, counsel of the Company, in form and substance satisfactory to the
Representatives, to the effect that:
a) the Company's authorized equity capitalization is as set forth in
the Final Prospectus; and the Indenture conforms and the Notes
will conform in all material respects to the descriptions thereof
in the Prospectus;
b) the Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its 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 not
exist); and the Notes are in the form contemplated by the
Indenture, have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to
and paid for by the purchasers thereof, will constitute legal,
valid and binding obligations of the Company entitled to the
benefits of the Indenture and 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 not exist);
c) the Registration Statement and any amendments thereto have become
effective under the Act; to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued, and no proceedings for
that purpose have been instituted or threatened; the Registration
Statement, the Prospectus, each document
12
incorporated by reference into the Registration Statement and the
Prospectus and each amendment thereof or supplement thereto as of
their respective effective or issue dates (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) complied as to form in all material respects
with the applicable requirements of the Act, the Rules and
Regulations, the Exchange Act, the Trust Indenture Act and the
respective rules and regulations thereunder; the descriptions in
the Registration Statement and the Prospectus of statutes, legal
and governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown;
it being understood that such counsel need express no opinion as
to the financial statements or other financial data contained in
the Registration Statement or the Final Prospectus;
d) this Agreement has been duly authorized, executed and delivered by
the Company;
e) to the best knowledge of such counsel, no consent, approval,
authorization, order registration, filing, qualification, license
or permit of or with any court or any public, governmental or
regulatory agency or body is required to be obtained by the
Company for the consummation of the transactions contemplated
herein or except (A) such as have been obtained under the Act and
(B) such as may be required under the "blue sky" laws of any
jurisdiction in connection with the purchase and distribution of
the Notes by the Underwriters as contemplated by this Agreement
and such other approvals (specified in such opinion) as have been
obtained;
f) neither the execution and delivery of the Indenture, the issue and
sale of the Notes, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof 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 agreement or instrument
known to such counsel and to which the Company, any subsidiary or
any of the Company's other subsidiaries is a party or may be
bound, or any judgment, decree order, statute, rule or regulations
known to such counsel to be applicable to the Company, any
subsidiary or any of the Company 's other subsidiaries of any
court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company, any subsidiary
or any of the Company's other subsidiaries;
13
g) no consent, approval, authorization, order registration, filing,
qualification, license or permit of or with any court or any
public, governmental or regulatory agency or body is required to
be obtained by the Company for the consummation of the
transactions contemplated herein, except (A) such as have been
obtained under the 1933 Act and (B) such as may be required under
the "blue sky" laws of any jurisdiction in connection with the
purchase and distribution of the Notes by the Underwriters as
contemplated by this Agreement and such other approvals (specified
in such opinion) as have been obtained;
h) to the best knowledge of such counsel, no holders of securities of
the Company have rights to the registration of such securities
under the Registration Statement; and
i) In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and
representatives of the Company, representatives of the independent
public accountants for the Company and the Agents at which the
contents of the Prospectus and related matters were discussed and,
no facts have come to the attention of such counsel which would
lead such counsel to believe that either the Registration
Statement at the time it became effective (including the
information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A(b) or Rule 434, if
applicable), or any amendment thereof made prior to the Closing
Date as of the date of such amendment and as of the Closing Date,
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 that the Final
Prospectus as of its date (or any amendment thereof or supplement
thereto made prior to the Closing Date as of the date of such
amendment or supplement) and as of the Closing Date contained or
contains an untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief or opinion
with respect to the financial statements and schedules and other
financial or statistical data included or incorporated by
reference therein).
2. The favorable opinion, dated as of the date hereof, of Xxxx
Xxxxxxx, General Counsel of the Company, in form and substance satisfactory to
the Agents, to the effect that:
14
a) the Company and each of its material subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to
own its properties and conduct its business as now being conducted
and as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification
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;
b) all outstanding shares of capital stock of the Company and each
Material Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares of
capital stock of such subsidiaries are owned by the Company either
directly or through wholly-owned subsidiaries free and clear of
any perfected security interest and, to the knowledge of such
person, any other security interests, claims, liens or
encumbrances; and
c) neither the execution and delivery of the Indenture, the issue and
sale of the Notes, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof 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 such person and to which the Company, any
subsidiary or any of the Company's other subsidiaries is a party
or may be bound, or any material judgment, decree, order statute,
rule or regulations known to such person to be applicable to the
Company, any subsidiary or any of the Company's other subsidiaries
of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company, any
subsidiary or any of the Company's other subsidiaries.
d) (A) there is no litigation or governmental or other action, suit,
proceeding or investigation before any court or by any public,
regulatory or governmental agency or body pending, or to the best
of such counsel's knowledge, threatened against, or involving the
Company, its subsidiaries or any of the Company's other
subsidiaries, of a character required to be disclosed in the
Registration Statement which is not disclosed in the Prospectus,
and (B) to the knowledge of such person, there is no franchise,
contract or other document of a character required to be described
15
in the Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and to the
knowledge of such person, the statements included or incorporated
in the Final Prospectus describing any legal proceedings or
material contracts or agreements relating to the Company fairly
summarize such matters;
e) The descriptions in the Registration Statement and the Prospectus
of statutes, legal and governmental proceedings and contracts and
other documents are accurate and fairly present the information
required to be shown; it being understood that such counsel need
express no opinion as to the financial statements or other
financial or statistical data contained in the Registration
Statement or the Prospectus;
f) this Agreement has been duly authorized, executed and delivered by
the Company;
In addition, such opinion shall also contain a statement that such
counsel has, or Company attorneys under his supervision have, participated in
conferences with officers and representatives of the Company, representatives of
the independent public accountants for the Company and the Agents at which the
contents of the Final Prospectus and related matters were discussed and, no
facts have come to the attention of such counsel which would lead such counsel
to believe that either the Registration Statement at the time it became
effective (including the information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A(b) or Rule 434, if
applicable), or any amendment thereof made prior to the Closing Date as of the
date of such amendment and as of the Closing Date, 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 that the
Prospectus as of its date (or any amendment thereof or supplement thereto made
prior to the Closing Date as of the date of such amendment or supplement) and as
of the Closing Date contained or contains an untrue statement of a material fact
or omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no belief or opinion with respect to the financial statements and
schedules and other financial or statistical data included or incorporated by
reference therein).
3. The favorable opinion or opinions, dated as of the applicable
Closing Time, of Xxxxx Xxxxxxxxxx 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.
16
D. At the applicable Closing Time there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, 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 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 the signer of such certificate has carefully
examined the Registration Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and 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 Date
with the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Date;
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 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 Final Prospectus (exclusive of any supplement thereto).
E. You shall have received from Ernst & Young 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, confirming that they are independent accountants within the
meaning of the 1933 Act, the Regulations, the 1934 Act and the applicable
published rules and regulations thereunder and stating in effect that:
1. in their opinion, the audited consolidated financial statements
and financial statement schedules included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them in their opinion
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act, the Regulations, the 1934 Act and the applicable
published rules and regulations thereunder;
17
2. they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No. 71, Interim
Financial Information, on any unaudited financial statements included in the
Registration Statement;
3. on the basis of a reading of the latest unaudited consolidated
financial statements made available by the Company and its subsidiaries;
carrying out certain procedures specified by the Representatives and performed
by Ernst & Young (but not an examination in accordance with generally accepted
auditing standards), which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter, a reading of the minutes
of the meetings of the stockholders, directors and executive committee of the
Company and the subsidiaries; and inquiries of certain officials and other
employees of the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial statements included
or incorporated in the Final Prospectus, nothing came to their attention which
caused them to believe that:
a) any unaudited financial data included or incorporated in the
Registration Statement and the Final Prospectus do not comply as to
form in all material respects with applicable accounting
requirements of the 1933 Act and the 1934 Act and with the
published rules and regulations of the Commission with respect to
financial data included or incorporated in quarterly reports on
Form 10-Q under the 1934 Act; or said unaudited consolidated
financial data are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited consolidated financial statements included
or incorporated in the Registration Statement and the Final
Prospectus;
b) (A) at the date of the latest available interim financial data, and
as of a specified date not more than five business days prior to
the date of such opinion, there have been any changes in the
capital stock (including preferred stock, common stock and paid-in-
capital, but excluding common stock held in treasury) or any
increases in the consolidated long-term debt of the Company and its
consolidated subsidiaries as compared with the amounts shown on the
latest available consolidated balance sheet included or
incorporated in the Registration Statement or the Final Prospectus,
except in each case for increases or decreases which the
Registration Statement or the Final Prospectus discloses have
occurred or will occur and (B) at a date specified not more than
five business days prior to the date of the letter, there have been
any changes in the capital stock (including preferred stock,
18
common stock and paid-in-capital, but excluding common stock held
in treasury), or any increases in the consolidated long-term debt,
of the Company and its consolidated subsidiaries as compared with
the amounts shown on the latest available consolidated balance
sheet, except in each case for increases or decreases which the
Registration Statement or the Final Prospectus discloses have
occurred or will occur and (C) for the period ended on the date of
the latest available interim financial data, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated net revenues or in total or per
share amounts of net income available to common shareholders of the
Company and its consolidated subsidiaries, except in each case for
decreases which the Registration Statement or the Final Prospectus
discloses have occurred or will occur;
c) for the period from the date of the latest available financial
statements to a specified date not more than five business days
prior to the date of the letter, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated net sales, net operating income, in the ratio of
earnings to fixed charges, in net revenues of the Company and its
consolidated subsidiaries, except for decreases which the
Registration Statement or the Final Prospectus discloses have
occurred or will occur; or
d) the amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the
Final Prospectus do not agree with the amounts set forth in the
unaudited financial statements for the same periods or were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements included
or incorporated in the Registration Statement and the Final
Prospectus;
4. they have compared specified dollar amounts (or percentages derived
from such dollar amounts) and other financial information contained in the
Registration Statement and the Final Prospectus (in each case to the extent that
such dollar amounts, percentages and other financial information are derived
from the general accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or are derived
directly from such records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
19
5. if pro forma financial statements are included or incorporated in
the Registration Statement or the Final Prospectus, on the basis of a reading
of the unaudited pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the Company and the
acquired company who have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to believe that
the pro forma financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such statements.
References to the Registration Statement and the Final Prospectus in
this paragraph (e) are to such documents as amended and supplemented at the date
of the letter.
F. 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 in all material respects 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, and the production of this Agreement and each Terms
Agreement, (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 and Legal Investment Survey, (e) the printing
or other production and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Registration Statement (as originally filed)
and any amendments thereto, and of the Preliminary Final 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 and Legal Investment Survey, (g) the fees of rating agencies, (h) the
fees and expenses, if any, incurred in connection with the listing of the
Securities on any securities exchange, and (i) the fees, if any, of the National
Association of Securities Dealers,
20
Inc. in connection with the review of the offering and including 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 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 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 any related
Preliminary Final Prospectus 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 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 as such in the Terms
Agreement. This indemnity agreement 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
21
or litigation), jointly or severally, 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 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 any related
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, 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, 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 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 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 reasonable and necessary 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.
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
22
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, (i) no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and (ii) 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
23
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. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
provided, however, that such consent was not unreasonably withheld. The
-------- -------
obligation of the Underwriters to contribute 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 or controlling person,
or by or on behalf of 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
Registration Statement, 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 the effect of which on the financial markets of the United States is
such as to make it, in the reasonable judgment of the Representatives,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in the Common Stock of the Company has been
suspended by the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
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. In the event
of any such termination, (x) the covenants set forth in Section 3 with
24
respect to any offering of Securities purchased from the Company pursuant to the
applicable Terms Agreement and (y) the covenant set forth in Section 3(c), the
provisions of Section 5, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7, and the provisions of Sections 8
and 13 shall remain in effect.
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, 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, 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,
attention of the Chief Financial Officer with a copy to the 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. 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
25
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.
26
13. Governing Law. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
-------------
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
BOSTON SCIENTIFIC CORPORATION
By /s/ Xxxxxxxx X. Best
------------------------------------
Name: Xxxxxxxx X. Best
Title: Senior Vice President -
Finance & Administration
and Chief Financial Officer
27
SCHEDULE I
BSC International Corporation
SCIMED Life Systems, Inc.
Boston Scientific Ireland Limited
Boston Scientific Japan K.K.
Boston Scientific International B.V.
28
EXHIBIT A
BOSTON SCIENTIFIC CORPORATION
Debt Securities
TERMS AGREEMENT
Dated:_________, 199_
To: Boston Scientific Corporation
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Dear Sirs:
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 September 1, 1997 between the Company and
The Chase Manhattan Bank, 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 as provided in Section 301 of such Indenture,
shall have the following terms:
Date of maturity:
Interest rates:
Interest payment dates:
Public offering price:
Purchase price:
Redemption provisions:
Type of Offering: [Delayed Offering of Non-Delayed Offering]
Form of Securities: [Book Entry] [Certified]
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery date:
Minimum contract:
Maximum aggregate principal amount:
Fee: %
Closing date and location:
Payment Information:
Manager or Co-Managers:
Current ratings:
All of the provisions contained in the document entitled "Boston
Scientific Corporation Debt Securities, Underwriting Agreement-Basic
Provisions," dated as of ____________ __, 199_, 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:
___________________________.
The Company acknowledges that [the statements set forth in the last
paragraph of the cover page and in the ________________ paragraph[s] under the
caption "Underwriting"] in the Final Prospectus constitute the only information
furnished in writing by or on behalf of any Underwriter expressly for use in the
Registration Statement relating to the Securities as originally filed or in any
amendment thereof, any related Preliminary Final Prospectus or the Final
Prospectus or in any amendment thereof or supplement thereto, as the case may
be.
2
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.
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
Acting on behalf of themselves and
as the Representatives of the several
Underwriters
By XXXXXX BROTHERS INC.
By___________________________
Accepted:
BOSTON SCIENTIFIC CORPORATION
By_________________________
3
EXHIBIT B
BOSTON SCIENTIFIC CORPORATION
Debt Securities
DELAYED DELIVERY CONTRACT
___________ __, 199_
Boston Scientific Corporation
c/o [Name and address of Representatives]
Attention:
Dear Sirs:
The undersigned hereby agree to purchase from Boston Scientific
Corporation (the "Company"), and the Company agrees to sell to the undersigned
on __________ __, 199_ (the "Delivery Date"), principal amount of the Company's
Debt Securities due ___________ __, 199_ (the "Securities"), offered by the
Company's Prospectus dated 199_, as supplemented by its Prospectus Supplement
dated ___________ __, 199_, receipt of which is hereby acknowledged, at a
purchase price of ____% of the principal amount thereof, plus accrued interest
from 199_, 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 ___________ __, 199_,
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 ___________ __, 199_ 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, 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___________________________
Accepted:
Boston Scientific Corporation
By_________________________
2
