ANALOG DEVICES, INC. $375,000,000 5.00% Senior Notes Due 2014 UNDERWRITING AGREEMENT
Exhibit 1.1
Execution Copy
ANALOG DEVICES, INC.
$375,000,000 5.00% Senior Notes Due 2014
June 25, 2009
Credit Suisse Securities (USA) LLC,
As Representative of the Several Underwriters,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
As Representative of the Several Underwriters,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. Analog Devices, Inc., a Massachusetts corporation (the “Company”), agrees
with the several Underwriters named in Schedule A hereto (the “Underwriters”) for whom Credit
Suisse Securities (USA) LLC is acting as Representative (the “Representative”) to issue and sell to
the several Underwriters $375,000,000 principal amount of its 5.00% Senior Notes Due 2014 (the
"Securities”). The Securities shall be issued under an indenture, to be dated as of June 30,
2009, as supplemented through the Closing Date (the “Indenture”), between the Company and The Bank
of New York Mellon Trust Company, N.A., as Trustee.
2. Representations and Warranties of the Company. The Company represents and warrants to,
and agrees with, the several Underwriters that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-3 (No.
333-160215), including a related prospectus or prospectuses, covering the registration of
the Securities under the Act, which has become effective. “Registration Statement” at any
particular time means such registration statement in the form then filed with the
Commission, including any amendment thereto, any document incorporated by reference therein
and all 430B Information and all 430C Information with respect to such registration
statement, that in any case has not been superseded or modified. “Registration Statement”
without reference to a time means the Registration Statement as of the Effective Time. For
purposes of this definition, 430B Information shall be considered to be included in the
Registration Statement as of the time specified in Rule 430B.
For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part
of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means 4:00 p.m. (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Time” of the Registration Statement relating to the Securities means the
time of the first contract of sale for the Securities.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Rules” means the rules of the New York Stock Exchange.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering
price, other 430B Information and other final terms of the Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Securities in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
(“▇▇▇▇▇▇▇▇-▇▇▇▇▇”), the Act, the Exchange Act, the Rules and Regulations and the auditing
principles, rules, standards and practices applicable to auditors of “issuers” (as defined
in ▇▇▇▇▇▇▇▇-▇▇▇▇▇) promulgated or approved by the Public Company Accounting Oversight
Board.
“Statutory Prospectus” with reference to any particular time means the prospectus
relating to the Securities that is included in the Registration Statement immediately prior
to that time, including all 430B Information and all 430C Information with respect to the
Registration Statement. For purposes of the foregoing definition, 430B Information shall
be considered to be included in the Statutory Prospectus only as of the actual time that
form of prospectus (including a prospectus supplement) is filed with the Commission
pursuant to Rule 424(b) and not retroactively.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.
(b) Compliance with Securities Act Requirements. (i) (A) At the time the
Registration Statement initially became effective, (B) at the time of each amendment
thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by
post-effective amendment, incorporated report or form of prospectus), (C) at the Effective
Time relating to the Securities and (D) on the Closing Date, the Registration Statement
conformed and will conform in all material respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations and did not and will not include any
untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and (ii) (A) on
its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on
the Closing Date, the Final Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and will
not include any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from any such document based upon written information
furnished to the Company by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information is that described as
such in Section 8(b) hereof.
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(c) Automatic Shelf Registration Statement. (i) Well-Known Seasoned Issuer
Status. (A) At the time of initial filing of the Registration Statement, (B) at
the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), and (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Securities in reliance on the exemption of Rule 163,
the Company was a “well known seasoned issuer” as defined in Rule 405, including
not having been an “ineligible issuer” as defined in Rule 405 by virtue of a waiver
issued by the Commission on May 30, 2008.
(ii) Effectiveness of Automatic Shelf Registration Statement. The
Registration Statement is an “automatic shelf registration statement,” as defined
in Rule 405, that initially became effective within three years of the date of this
Agreement.
(iii) Eligibility to Use Automatic Shelf Registration Form. The Company has
not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to
use of the automatic shelf registration statement form. If at any time when the
Securities remain unsold by the Underwriters the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible
to use the automatic shelf registration statement form, the Company will (i)
promptly notify the Representative, (ii) promptly file a new registration statement
or post-effective amendment on the proper form relating to the Securities, in a
form satisfactory to the Representative, (iii) use its best efforts to cause such
registration statement or post-effective amendment to be declared effective as soon
as practicable, and (iv) promptly notify the Representative of such effectiveness.
The Company will take all other action necessary or appropriate to permit the
public offering and sale of the Securities to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2) notice or for
which the Company has otherwise become ineligible. References herein to the
Registration Statement shall include such new registration statement or
post-effective amendment, as the case may be.
(iv) Filing Fees. The Company has paid or shall pay the required Commission
filing fees relating to the Securities within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r).
(d) Ineligible Issuer Status. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) at the date of this
Agreement, the Company was not and is not an “ineligible issuer,” as defined in Rule 405,
by virtue of a waiver issued by the Commission on May 30, 2009.
(e) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time and the
preliminary prospectus supplement, dated June 25, 2009, including the base prospectus,
dated June 25, 2009, (which is the most recent Statutory Prospectus distributed to
investors generally), and the other information, if any, stated in Schedule B to this
Agreement to be included in the General Disclosure Package, all considered together
(collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use
Issuer Free Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the General Disclosure Package or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative specifically for use therein, it
being
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understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 8(b) hereof.
(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Securities or until any earlier date that the Company notified or notifies the
Representative as described in the next sentence, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information then
contained in the Registration Statement. If at any time prior to or as of the Closing Date
following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event
or development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information then contained in the Registration Statement or as a result
of which such Issuer Free Writing Prospectus, if republished immediately following such
event or development, would include an untrue statement of a material fact or omitted or
would 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, (i) the Company
has promptly notified or will promptly notify the Representative and (ii) the Company has
promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus
to eliminate or correct such conflict, untrue statement or omission.
(g) Due Incorporation and Good Standing of the Company. The Company has been duly
incorporated and is existing and in good standing under the laws of the Commonwealth of
Massachusetts, with corporate power and authority to own its properties and conduct its
business as described in the General Disclosure Package; and the Company is duly qualified
to do business as a foreign corporation and in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not, individually or in
the aggregate, result in a Material Adverse Effect (as defined below).
(h) Subsidiaries. Each subsidiary of the Company has been duly incorporated or
organized, as the case may be, and is existing and in good standing under, the laws of the
jurisdiction of its incorporation or organization, as the case may be, with corporate power
and authority to own its properties and conduct its business as described in the General
Disclosure Package; and each subsidiary of the Company is duly qualified to do business as
a foreign corporation or other applicable entity in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its business
requires such qualification and where such concepts of “due qualification” and “good
standing” exist; all of the issued and outstanding capital stock or other equity interests
of each subsidiary of the Company has been duly authorized and validly issued and is fully
paid and nonassessable (to the extent that such concepts of “due authorization”, “valid
issuance” and being “fully paid and nonassessable” exist in the jurisdiction in which such
subsidiary is incorporated or organized, as the case may be); and the capital stock or
other equity interests of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects, except, in each case in
this clause (h), as would not, individually or in the aggregate, result in a Material
Adverse Effect.
(i) Execution and Delivery of Indenture. The Indenture has been duly authorized by
the Company and has been duly qualified under the Trust Indenture Act; the Securities have
been duly authorized and, when the Securities are delivered and paid for pursuant to this
Agreement on each Closing Date, the Indenture will have been duly executed and delivered by
the Company, such Securities will have been duly executed, authenticated, issued and
delivered, will be consistent with the information in the General Disclosure Package and
will conform to the description of such Securities contained in the Final Prospectus and
the Indenture and such Securities will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and
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similar laws of general applicability relating to or affecting creditors’ rights and
to general equity principles.
(j) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by this Agreement or the
Indenture in connection with the offering, issuance and sale of the Securities by the
Company, except such as have been obtained or made and such as may be required under state
securities laws.
(k) Title to Property. Except as disclosed in the General Disclosure Package, the
Company and its subsidiaries have good and marketable title to all real properties and good
title to all other properties and assets owned by them, in each case free from liens,
charges, encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them and, except as
disclosed in the General Disclosure Package, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases with no terms or
provisions that would materially interfere with the use made or to be made thereof by them,
except, in each case in this clause (k), as would not, individually or in the aggregate,
result in a Material Adverse Effect.
(l) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of the Indenture and this Agreement, and the issuance and sale of
the Securities and compliance with the terms and provisions thereof, will not result in a
breach or violation of any of the terms and provisions of, or constitute a default or a
Debt Repayment Triggering Event (as defined below) under, or result in the imposition of
any lien, charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the charter or by-laws or other organizational documents of
the Company or any of its subsidiaries, (ii) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their properties, or (iii) any agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the properties of the
Company or any of its subsidiaries is subject, except, in the case of clause (i) as it
applies to the Company’s subsidiaries, as would not, individually or in the aggregate,
result in a Material Adverse Effect, and in the case of clauses (ii) and (iii), as would
not, individually or in the aggregate, result in a Material Adverse Effect; a “Debt
Repayment Triggering Event” means any event or condition that gives, or with the giving of
notice or lapse of time would give, the holder of any note, debenture, or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company
or any of its subsidiaries.
(m) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its respective charter or by-laws or other organizational
documents, or in default (or with the giving of notice or lapse of time would be in
default) under any existing obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of
them is a party or by which any of them is bound or to which any of the properties of any
of them is subject, except such defaults that would not, individually or in the aggregate,
result in a material adverse effect on the condition (financial or otherwise), results of
operations, business or properties of the Company and its subsidiaries taken as a whole
(“Material Adverse Effect”).
(n) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(o) Possession of Licenses and Permits. The Company and its subsidiaries possess, and
are in compliance with the terms of, all adequate certificates, authorizations, franchises,
licenses and
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permits (“Licenses”) material to the conduct of the business now conducted or proposed
in the General Disclosure Package to be conducted by them and have not received any notice
of proceedings relating to the revocation or modification of any Licenses that, if
determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(p) Absence of Labor Dispute. No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is imminent, in either
case that would have a Material Adverse Effect.
(q) Possession of Intellectual Property. The Company and its subsidiaries own, possess
or can acquire on reasonable terms sufficient trademarks, trade names, patent rights,
copyrights, domain names, licenses, approvals, trade secrets, inventions, technology,
know-how and other intellectual property and similar rights (collectively, “Intellectual
Property Rights”) material to the conduct of the business now conducted or proposed in the
General Disclosure Package to be conducted by them, and the expected expiration of any such
Intellectual Property Rights would not, individually or in the aggregate, have a Material
Adverse Effect. Except as disclosed in the General Disclosure Package (i) to the Company’s
knowledge, neither the Company nor any of its subsidiaries is infringing the Intellectual
Property Rights of any third parties; (ii) to the Company’s knowledge, no third party is
infringing the Intellectual Property Rights of the Company or any of its subsidiaries;
(iii) there is no pending or threatened action, suit, proceeding or claim by others
challenging the Company’s or any subsidiary’s rights in or to, any of their Intellectual
Property Rights, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; (iv) there is no pending or threatened action, suit, proceeding
or claim by others challenging the validity, enforceability or scope of any such
Intellectual Property Rights, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; and (v) none of the Intellectual Property Rights used
by the Company or its subsidiaries in their businesses as currently conducted or proposed
to be conducted in the General Disclosure Package has been obtained or is being used by the
Company or its subsidiaries in violation of any contractual obligation binding on the
Company or any of its subsidiaries, except in each case covered by clauses (i) — (v) such
as would not, individually or in the aggregate, have a Material Adverse Effect.
(r) Environmental Laws. Except as disclosed in the General Disclosure Package,
neither the Company nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure to hazardous
or toxic substances (collectively, “environmental laws”), owns or operates any real
property contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have a Material Adverse Effect;
and the Company is not aware of any pending investigation relating to environmental laws.
(s) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Description of the Notes”, “Description of Debt
Securities” and “Certain United States Federal Income Tax Considerations to Non-U.S.
Holders”, insofar as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings in all material respects and present the information
required to be shown therein.
(t) Absence of Manipulation. The Company has not taken, directly or indirectly, any
action that is designed to or that has constituted or that would reasonably be expected to
cause or result in
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the stabilization or manipulation of the price of any security of the Company, in each
case for the purpose of facilitating the sale or resale of the Securities.
(u) Internal Controls and Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Except as set forth
in the General Disclosure Package, the Company, its subsidiaries and the Company’s Board of
Directors (the “Board”) are in compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and all applicable Exchange
Rules. The Company maintains a system of internal controls, including, but not limited to,
disclosure controls and procedures, internal controls over accounting matters and financial
reporting, an internal audit function and legal and regulatory compliance controls
(collectively, “Internal Controls”) that comply in all material respects with the
Securities Laws and are sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with U.S. General Accepted Accounting Principles and to maintain accountability
for assets, (iii) access to assets is permitted only in accordance with management’s
general or specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Internal Controls are, or upon consummation of the
offering of the Securities will be, overseen by the Audit Committee (the “Audit Committee”)
of the Board in accordance with Exchange Rules. Since the filing of the Company’s Annual
Report on Form 10-K for the fiscal year ended November 1, 2008, the Company has not
publicly disclosed or reported to the Audit Committee or the Board, and within the next
90 days the Company does not reasonably expect to publicly disclose or report to
the Audit Committee or the Board, a significant deficiency, material weakness, change in
Internal Controls or fraud involving management or other employees who have a significant
role in Internal Controls (each, an “Internal Control Event”), any violation of, or failure
to comply with, the Securities Laws, or any matter which, if determined adversely, would
have a Material Adverse Effect.
(v) Litigation. Except as disclosed in the General Disclosure Package, there are no
pending actions, suits or proceedings (including any inquiries or investigations by any
court or governmental agency or body, domestic or foreign) against or affecting the
Company, any of its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under the Indenture or this Agreement, or which are
otherwise material in the context of the sale of the Securities; and no such actions, suits
or proceedings (including any inquiries or investigations by any court or governmental
agency or body, domestic or foreign) are, to the Company’s knowledge, threatened or
contemplated.
(w) Financial Statements. The financial statements included in the Registration
Statement and the General Disclosure Package present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in the United
States applied on a consistent basis. The schedules included in the Registration Statement
present fairly the information required to be stated therein.
(x) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest audited financial
statements included in the General Disclosure Package (i) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business or properties of the Company and its
subsidiaries, taken as a whole, that is material and adverse (ii) except for a regular
quarterly cash dividend of $0.20 or as otherwise disclosed in or contemplated by the
General Disclosure Package, there has been no dividend or distribution of any
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kind declared, paid or made by the Company on any class of its capital stock and (iii)
except as disclosed in or contemplated by the General Disclosure Package, there has been no
material adverse change in the capital stock, long term indebtedness, or net assets of the
Company and its subsidiaries, taken as a whole.
(y) Investment Company Act. 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 General Disclosure Package, will not be, an “investment company” as
defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(z) Ratings. No “nationally recognized statistical rating organization” as such term
is defined for purposes of Rule 436(g)(2)(i) has imposed (or has informed the Company that
it is considering imposing) any condition (financial or otherwise) on the Company’s
retaining any rating assigned to the Company or any securities of the Company or (ii) has
told the Company that it is considering any of the actions described in Section 7(c)(ii)
hereof.
(aa) Foreign Corrupt Practices Act. Neither the Company nor any of its subsidiaries
nor, to the knowledge of the Company, any director or officer of the Company or any of its
subsidiaries, is aware of or has taken any action, directly or indirectly, that would
result in a violation by any director, officer, agent, employee or affiliate of the Company
or any of its subsidiaries of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the “FCPA”), including, without limitation, making
use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the giving of anything
of value to any “foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political office, in
contravention of the FCPA, and the Company, its subsidiaries and, to the knowledge of the
Company, its directors and officers, have conducted the business of the Company and its
subsidiaries in compliance with the FCPA (other than for any immaterial noncompliance that
would not result in a violation of the FCPA), and the Company and its subsidiaries have
instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
(bb) Money Laundering Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all jurisdictions, and the rules and
regulations thereunder, and, to the Company’s knowledge, any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
Company’s knowledge, threatened.
(cc) OFAC. Neither the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent or employee of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
3. Purchase, Sale and Delivery of Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the several Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 98.976% of the principal amount
thereof, the respective principal amounts
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of Securities set forth opposite the names of the Underwriters in Schedule A hereto plus
accrued interest from June 30, 2009 to the Closing Date (as hereinafter defined).
The Company will deliver the Securities to or as instructed by the Representative for the
accounts of the several Underwriters in a form reasonably acceptable to the Representative against
payment of the purchase price by the Underwriters in Federal (same day) funds by wire transfer to
an account at a bank acceptable to the Representative drawn to the order of Analog Devices, Inc. at
the office of Cravath, Swaine & ▇▇▇▇▇ LLP, at 9:30 a.m., New York time, on June 30, 2009, or at
such other time not later than seven full business days thereafter as the Representative and the
Company determine, such time being herein referred to as the “Closing Date”. For purposes of
Rule 15c6-1 under the Exchange Act, the Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and delivery of all the
Securities sold pursuant to the offering. A copy of the Securities so to be delivered or evidence
of their issuance will be made available for checking at the above office of Cravath, Swaine &
▇▇▇▇▇ LLP at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Filing of Prospectuses. The Company has filed or will file each Statutory
Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule 424(b)
not later than the second business day following the earlier of the date it is first used
or the execution and delivery of this Agreement. The Company has complied and will comply
with Rule 433.
(b) Filing of Amendments; Response to Commission Requests. For so long as a
prospectus relating to the Securities is (or but for the exemption in Rule 172 would be)
required to be delivered under the Act by any Underwriter or dealer) the Company will
promptly advise the Representative of any proposal to amend or supplement the Registration
Statement or any Statutory Prospectus at any time and will offer the Representative a
reasonable opportunity to comment on any such amendment or supplement; and the Company will
also advise the Representative promptly of (i) the filing of any such amendment or
supplement, (ii) any request by the Commission or its staff for any amendment to the
Registration Statement, for any supplement to any Statutory Prospectus or for any
additional information, (iii) the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or the threatening of any proceeding
for that purpose and (iv) the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities in any jurisdiction or the
institution or threatening of any proceedings for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Securities is (or but for the exemption in Rule 172 would be) required to
be delivered under the Act by any Underwriter or dealer, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act, the Company will promptly notify
the Representative of such event and will promptly prepare and file with the Commission and
furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon
request of the Representative, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither the
Representative’s consent to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
9
(d) Rule 158. As soon as practicable, but not later than 16 months, after the date of
this Agreement, the Company will make generally available to its securityholders an
earnings statement covering a period of at least 12 months beginning after the date of this
Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e) Furnishing of Prospectuses. The Company will furnish to the Representative copies
of the Registration Statement, including all exhibits, any Statutory Prospectus, the Final
Prospectus and all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representative reasonably requests. The Company
will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representative designates and will
continue such qualifications in effect so long as required for the distribution; provided
that the Company shall not be required to qualify to transact business or to take any
action that would subject it to general service of process in any such jurisdiction where
it is not currently qualified or where it would be subject to taxation as a foreign
business.
(g) Reporting Requirements. For so long as delivery of a prospectus by an Underwriter
or dealer may be (or but for the exception in Rule 172 would be) required under the Act,
the Company will furnish to the Representative and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year as is required to be filed by the Company with
the Commission; and the Company will furnish to the Representative (i) as soon as
available, a copy of each report and any definitive proxy statement of the Company filed
with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as the Representative may reasonably
request. However, so long as the Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with
the Commission on its Electronic Data Gathering, Analysis and Retrieval system or any
successor system (“▇▇▇▇▇”), it is not required to furnish such reports or statements to the
Underwriters.
(h) Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including but not limited to any
filing fees and other expenses (including fees and disbursements of counsel to the
Underwriters) incurred in connection with qualification of the Securities for sale under
the laws of such jurisdictions as the Representative designates pursuant to Section 5(f)
and the preparation and printing of memoranda relating thereto, any fees charged by
investment rating agencies for the rating of the Securities, costs and expenses relating to
investor presentations or any “road show” in connection with the offering and sale of the
Securities including, without limitation, any travel expenses of the Company’s officers and
employees and any other expenses of the Company, fees and expenses in connection with the
registration of the Securities under the Exchange Act, and expenses incurred in
distributing preliminary prospectuses and the Final Prospectus (including any amendments
and supplements thereto) to the Underwriters and for expenses incurred for preparing,
printing and distributing any Issuer Free Writing Prospectuses to investors or prospective
investors. It is understood, however, that, except as provided in this Section 5 and
Sections 8 and 10, the Underwriters will pay the fees of their counsel.
(i) Use of Proceeds. The Company will use the net proceeds received in connection
with this offering in the manner described in the “Use of Proceeds” section of the General
Disclosure Package and, except as disclosed in the General Disclosure Package, the Company
does not intend to use any of the proceeds from the sale of the Securities hereunder to
repay any outstanding debt owed to any affiliate of any Underwriter.
10
(j) Absence of Manipulation. The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected to cause
or result in, stabilization or manipulation of the price of any securities of the Company
to facilitate the sale or resale of the Securities.
(k) Restriction on Sale of Securities. The Company will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of more than one year
from the date of issue, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of the Representative for
a period beginning on the date hereof and ending on the Closing Date.
6. Free Writing Prospectuses. (a) Issuer Free Writing Prospectuses. The Company represents
and agrees that, unless it obtains the prior consent of the Representative, and each Underwriter
represents and agrees that, unless it obtains the prior consent of the Company and the
Representative, it has not made and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free
writing prospectus consented to by the Company and the Representative is hereinafter referred to as
a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as
defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including timely Commission filing where
required, legending and record keeping.
(b) Term Sheets. The Company will prepare a final term sheet relating to the
Securities, containing only information that describes the final terms of the Securities
and otherwise in a form consented to by the Representative, and will file such final term
sheet within the period required by Rule 433(d)(5)(ii) following the date such final terms
have been established for the offering of the Securities. Any such final term sheet is an
Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this
Agreement. The Company also consents to the use by any Underwriter of a free writing
prospectus that contains only (i)(x) information describing the preliminary terms of the
Securities or their offering or (y) information that describes the final terms of the
Securities or their offering and that is included in the final term sheet of the Company
contemplated in the first sentence of this subsection or (ii) other information that is not
“issuer information,” as defined in Rule 433, it being understood that any such free
writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free
Writing Prospectus for purposes of this Agreement.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Securities on the Closing Date will be subject to the
accuracy of the representations and warranties of the Company herein (as though made on the Closing
Date), to the accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) Accountants’ Comfort Letter. The Representative shall have received letters,
dated, respectively, the date hereof and the Closing Date, of Ernst & Young LLP, confirming
that they are a registered public accounting firm and independent public accountants within
the meaning of the Securities Laws and substantially in the form of Exhibit A hereto
(except that, in any letter dated the Closing Date, the specified date referred to in
Exhibit A hereto shall be a date no more than three days prior to the Closing Date).
(b) Filing of Prospectus. The Final Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop
order
11
suspending the effectiveness of the Registration Statement or of any part thereof
shall have been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Company or any Underwriter, shall be contemplated by the
Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business or properties of the Company and its subsidiaries, taken as a whole,
which, in the judgment of the Representative, is material and adverse and makes it
impractical or inadvisable to market the Securities; (ii) any downgrading in the rating of
any debt securities of the Company by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g)), or any public announcement that any
such organization has under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (iii) any change in U.S. or
international financial, political or economic conditions or currency exchange rates or
exchange controls the effect of which is such as to make it, in the judgment of the
Representative, impractical to market or to enforce contracts for the sale of the
Securities, whether in the primary market or in respect of dealings in the secondary
market; (iv) any suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum or maximum prices for trading on
such exchange; (v) or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (vi) any banking moratorium declared by any
U.S. federal or New York authorities; (vii) any major disruption of settlements of
securities, payment, or clearance services in the United States or any other country where
such securities are listed or (viii) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment of the
Representative, the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency is such as to make it impractical or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities.
(d) Opinion of Counsel for Company. The Representative shall have received an
opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for
the Company, in the form of Exhibit B hereto.
(e) Opinion of Netherlands Counsel for Company. The Representative shall have
received an opinion, dated the Closing Date, of Houben Advocaten, Netherlands counsel for
the Company, in the form of Exhibit C hereto.
(f) Opinion of General Counsel of the Company. The Representative shall have received
an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of the Company, in
the form of Exhibit D hereto.
(g) Opinion of Counsel for Underwriters. The Representative shall have received
from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Representative may require, and
the Company shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) Officer’s Certificate. The Representative shall have received a certificate,
dated the Closing Date, of an executive officer of the Company and a principal financial or
accounting officer of the Company in which such officers shall state that: the
representations and warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date; no stop order suspending
the effectiveness of the Registration Statement has
12
been issued and no proceedings for that purpose have been instituted or, to their
knowledge, are contemplated by the Commission; and, subsequent to the date of the most
recent financial statements in the General Disclosure Package, there has been no material
adverse change, nor any development or event involving a prospective material adverse
change, in the condition (financial or otherwise), results of operations, business,
properties or prospects of the Company and its subsidiaries taken as a whole except as set
forth in the General Disclosure Package or as described in such certificate.
The Company will furnish the Representative with such conformed copies of such opinions,
certificates, letters and documents as the Representative reasonably requests. The Representative
may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder.
8. Indemnification and Contribution. (a) Indemnification of Underwriters. The Company will
indemnify and hold harmless each Underwriter, its partners, members, directors, officers,
employees, agents, affiliates and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”),
against any and all losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state
statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any part of the Registration Statement, any
Statutory Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of
or are based upon the omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse each Indemnified
Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending against any such loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a
party thereto), whether threatened or commenced, and in connection with the enforcement of this
provision with respect to any of the above as such expenses are incurred; provided, however, that
the Company will not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in subsection (b) below.
(b) Indemnification of Company. Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, each of its directors and each of its officers who signs a
Registration Statement and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (each, an “Underwriter Indemnified Party”),
against any losses, claims, damages or liabilities to which such Underwriter Indemnified Party may
become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation
or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any part of the Registration Statement, any Statutory Prospectus, the
Final Prospectus, or any Issuer Free Writing Prospectus, or arise out of or are based upon the
omission or the alleged omission of 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 such untrue statement or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the Company by such
Underwriter through the Representative specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by such Underwriter Indemnified Party in connection with
investigating or defending against any such loss, claim, damage, liability, action, litigation,
investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a
party thereto), whether threatened or commenced, based upon any such untrue statement or omission,
or any such alleged untrue statement or omission as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter
13
consists of the following information in the Final Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the third paragraph under the
caption “Underwriting”, the second sentence in the sixth paragraph under the caption
“Underwriting”, and the information contained in the twelfth and thirteenth paragraphs under the
caption “Underwriting”.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the Underwriters. The
relative fault 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 untrue
statement or omission. The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), 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 which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not
14
guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting obligations and not
joint. The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) 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 in this Section 8(d).
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Securities hereunder on the Closing Date and the aggregate principal amount of
Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Securities that the Underwriters are obligated to
purchase on the Closing Date, the Representative may make arrangements satisfactory to the Company
for the purchase of such Securities by other persons, including any of the Underwriters, but if no
such arrangements are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase the Securities that
such defaulting Underwriters agreed but failed to purchase on the Closing Date. If any Underwriter
or Underwriters so default and the aggregate principal amount of Securities with respect to which
such default or defaults occur exceeds 10% of the total principal amount of Securities that the
Underwriters are obligated to purchase on the Closing Date and arrangements satisfactory to the
Representative and the Company for the purchase of such Securities by other persons are not made
within 36 hours after such default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company, except as provided in Section 10. As used in this
Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results thereof, made by or on
behalf of any Underwriter, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment for the Securities.
If the purchase of the Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 9 hereof or the occurrence
of any event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 7(c) hereof, the
Company will reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the offering of the
Securities, and the respective obligations of the Company and the Underwriters pursuant to Section
8 hereof shall remain in effect. In addition, if any Securities have been purchased hereunder, the
representations and warranties in Section 2 and all obligations under Section 5 shall also remain
in effect.
11. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representative at
Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; provided, however, that any notice to an
Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8, and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for the several Underwriters
in connection with this financing, and any action under this Agreement taken by the Representative
will be binding upon all the Underwriters.
15
14. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
15. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) No Other Relationship. The Representative has been retained solely to act as an
underwriter in connection with the sale of Securities and that no fiduciary, advisory or agency
relationship between the Company and the Representative has been created in respect of any of the
transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether the
Representative has advised or is advising the Company on other matters;
(b) Arms’ Length Negotiations. The price of the Securities set forth in this Agreement was
established by the Company following discussions and arms-length negotiations with the
Representative and the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised that the Representative
and its affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and that the Representative has no obligation to disclose such
interests and transactions to the Company by virtue of any fiduciary, advisory or agency
relationship; and
(d) Waiver. The Company waives, to the fullest extent permitted by law, any claims it may
have against the Representative for breach of fiduciary duty or alleged breach of fiduciary duty
and agrees that the Representative shall have no liability (whether direct or indirect) to the
Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim
on behalf of or in right of the Company, including stockholders, employees or creditors of the
Company.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and
unconditionally waives any objection to the laying of venue of any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby in Federal and state
courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such suit or proceeding in any
such court has been brought in an inconvenient forum.
16
If the foregoing is in accordance with the Representative’s understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company and the several Underwriters in accordance with its terms.
| Very truly yours, | ||||||||||
| ANALOG DEVICES, INC. | ||||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||||||
| Title: | Vice President and Chief Financial Officer |
|||||||||
| The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. |
||||||
| Credit Suisse Securities (USA) LLC | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. | ||||||
| Title: | Managing Director | |||||
| Acting on behalf of itself and as
the Representative of the several Underwriters. |
||||||
17
SCHEDULE A
| Principal | ||||
| Amount of | ||||
| Underwriter | Securities | |||
Credit Suisse Securities (USA) LLC |
$ | 243,750,000 | ||
Banc of America Securities LLC |
75,000,000 | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
56,250,000 | |||
Total |
$ | 375,000,000 | ||
SCHEDULE B
1. General Use Free Writing Prospectuses (included in the General Disclosure Package)
“General Use Issuer Free Writing Prospectus” includes each of the following documents:
1. Pricing term sheet dated June 25, 2009, filed with the Commission pursuant to Rule 433.
2. Other Information Included in the General Disclosure Package
The following information is also included in the General Disclosure Package:
None.