Exhibit 1.3
TYCO INTERNATIONAL GROUP S.A.
$400,000,000 of 6 1/8% Notes due 2009
Underwriting Agreement
January 7, 1999
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Tyco International Group S.A., a Luxembourg company (the "COMPANY"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), the principal amount of its debt securities identified in
Schedule I hereto (the "SECURITIES"), to be issued under the indenture specified
in Schedule I hereto (the "INDENTURE") among the Company, Tyco International
Ltd., a Bermuda company and the sole shareholder of the Company ("TYCO"), and
the Trustee identified in Schedule I (the "TRUSTEE"). The Securities will be
unconditionally guaranteed by Tyco. If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "UNDERWRITERS" and "REPRESENTATIVES", as used herein shall each be deemed
to refer to such firm or firms.
The Company and Tyco have prepared and filed with the Securities and
Exchange Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "DEBT SECURITIES") to be issued
from time to time by the Company and guarantees to be issued by Tyco (the
"GUARANTEES" and, together with the Debt Securities, the "SHELF SECURITIES").
The Company and Tyco also have filed with, or propose to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities and the Guarantees. The registration
statement, as amended to the date of this Agreement, is hereinafter referred to
as the "REGISTRATION STATEMENT" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities and the
Guarantees is hereinafter referred to as the "BASIC PROSPECTUS". The Basic
Prospectus as supplemented by the prospectus supplement specifically relating to
the Securities and the Guarantees in the form first used to confirm sales of the
Securities is hereinafter referred to as the "PROSPECTUS". If the Company and
Tyco have filed an abbreviated registration statement pursuant to Rule 462(b)
under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any
reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"PRELIMINARY PROSPECTUS") previously filed with the Commission pursuant to Rule
424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "EXCHANGE ACT") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein;
provided, however, that documents incorporated by reference shall not be deemed
to include any document filed by the Company or Tyco under the Exchange Act to
the extent that it is superseded in whole or in part by any document
subsequently filed by the Company or Tyco pursuant to the Securities Act or the
Exchange Act. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus and the Prospectus, or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("XXXXX").
The Company and Tyco hereby agree with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities and Tyco agrees
to issue the Guarantees to the several Underwriters as hereinafter provided, and
each Underwriter, on the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective principal amount of
Securities set forth opposite such Underwriter's name in Schedule II hereto at
the purchase price set forth in Schedule I hereto plus accrued interest, if any,
from the date specified in Schedule I hereto to the date of payment and
delivery.
2. The Company and Tyco understand that the several Underwriters intend
(i) to make a public offering of their respective portions of the Securities and
the Guarantees and (ii) initially to offer the Securities and the Guarantees
upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives no later than noon on the Business Day prior to the Closing Date
(as defined below), on the date and at the time and place set forth in Schedule
I hereto (or at such other time and place on the same or such other date, not
later than the fifth Business Day (as defined below) thereafter, as you, the
Company may agree in writing). As used herein, the term "BUSINESS DAY" means any
day other than a day on which banks are permitted or required to be
-2-
closed in New York City. The time and date of such payment and delivery with
respect to the Securities are referred to herein as the "CLOSING DATE".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of one or more global notes (the "GLOBAL NOTES")
representing the Securities, with any transfer taxes payable in connection with
the transfer to the Underwriters of the Securities duly paid by the Company. The
Global Notes will be made available for inspection by the Representatives at the
office of X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
not later than 1:00 P.M., New York City time, on the Business Day prior to the
Closing Date.
4. The Company and Tyco, jointly and severally, represent and warrant
to each Underwriter that:
(a) the Company and Tyco meet the requirements for use of the Form S-3
under the Securities Act in respect of the registration of the Securities and
the Guarantees, the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company or Tyco, threatened by
the Commission and any request on the part of the Commission for additional
information has been complied with; and the Registration Statement and
Prospectus (as amended or supplemented if the Company and Tyco shall have
furnished any amendments or supplements thereto) comply, or will comply, as the
case may be, in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "TRUST INDENTURE ACT"), and do not and
will not, as of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the date of the Prospectus and any amendment
or supplement thereto, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus and any amendment or
supplement thereto, in the light of the circumstances under which they were
made) not misleading, and the Prospectus, as amended or supplemented at the
Closing Date, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing representations and warranties shall not
apply to (i) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee, and (ii) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company or Tyco in
writing by such Underwriter through the Representatives expressly for use
therein; each preliminary prospectus and the Prospectus, including any amendment
or supplement thereto, delivered to the Underwriters for use in connection with
the offering contemplated hereby were identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T of the Securities Act;
-3-
(b) the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(c) PricewaterhouseCoopers and each of the other accounting firms who
certified the financial statements and supporting schedules included or
incorporated by reference in the Registration Statement are independent public
accountants required by the Securities Act;
(d) the financial statements, and the related schedules and notes
thereto, included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of Tyco and
its consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the periods
specified; said financial statements have been prepared in conformity with
United States generally accepted accounting principles ("GAAP") applied on a
consistent basis, except as otherwise disclosed therein, and the supporting
schedules included or incorporated by reference in the Registration Statement
present fairly in accordance with GAAP the information required to be stated
therein; the pro forma financial information, and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable requirements of
the Securities Act and the Exchange Act, as applicable, and is based upon good
faith estimates and assumptions believed by Tyco to be reasonable; and the
selected financial data included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with that
of the audited financial statements included or incorporated by reference in the
Registration Statement;
(e) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt (on a consolidated basis) of Tyco, or any
material adverse change that is reasonably likely to occur, or any development
involving a prospective material adverse change, in or affecting the general
affairs, business, prospects, management, financial position, shareholders'
equity or results of operations of Tyco and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business (a "MATERIAL ADVERSE
EFFECT"), otherwise than as set forth or contemplated in the Prospectus; and
except as set forth or contemplated in the Prospectus, neither Tyco nor any of
its subsidiaries has entered into any transaction or agreement (whether or not
in the ordinary course of
-4-
business) material to Tyco and its subsidiaries, taken as a whole;
(f) the Company is a corporation duly and validly organized and
existing under the laws of Luxembourg, with power and authority (corporate and
other) to own, lease and operate its properties and conduct its business as
described in the Prospectus, and is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of each other
jurisdiction in which the nature of its business or its ownership or leasing of
its properties requires qualification, except where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(g) Tyco is a limited liability company duly and validly organized and
existing and in good standing under the laws of Bermuda, with power and
authority (corporate and other) to own, lease and operate its properties and
conduct its business as described in the Prospectus, and is duly qualified as a
foreign corporation to transact business and is in good standing under the laws
of each other jurisdiction in which the nature of its business or the ownership
or leasing of its properties requires qualification, except where the failure to
be so qualified or in good standing would not have a Material Adverse Effect;
(h) each of the Company's subsidiaries listed on Schedule III hereto is
a "significant subsidiary" (as such term is defined in Rule 1-02 of Regulation
S-X under the Securities Act), is duly and validly organized and existing as a
corporation under the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus, is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of each jurisdiction in
which the nature of its business or its ownership or leasing of its properties
requires qualification, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect; and, except as otherwise
disclosed in the Registration Statement, all the outstanding shares of capital
stock of the Company and each subsidiary of the Company have been duly
authorized and validly issued, are fully-paid and non-assessable, and (except as
indicated on Schedule III for non-material liens that have arisen in the
ordinary course of business and, in the case of non-United States subsidiaries,
for directors' qualifying shares) are owned by the Company, as the case may be,
directly or indirectly, free and clear of all liens, encumbrances, security
interests and claims;
(i) Tyco had as of the date indicated in the Prospectus a duly
authorized and outstanding capitalization as set forth in the Prospectus in the
column entitled "Actual"; except as disclosed in the Prospectus, there are no
holders of securities (debt or equity) of Tyco or any of its subsidiaries, or
holders of rights, warrants or options to obtain securities of Tyco or any of
its subsidiaries who have the right to request the Company or Tyco to register
securities held by them under the Securities Act other than holders who have
elected not to exercise their rights or whose securities have been so registered
or as set forth in Section 1.06(c) of the Agreement and Plan of Merger, dated as
of May 25, 1998, among Tyco, TII Acquisition Corp. and United States Surgical
Corporation;
(j) this Agreement has been duly authorized, executed and delivered by
each of the Company and Tyco;
(k) the Securities have been duly authorized and when duly
authenticated by the
-5-
Trustee pursuant to the Indenture and issued and delivered pursuant to this
Agreement, will have been duly executed, issued and delivered and will
constitute valid and binding obligations of the Company entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding instrument of the
Company; the Indenture has been duly qualified under the Trust Indenture Act;
and the Securities and the Indenture will conform in all material respects to
the descriptions thereof in the Prospectus;
(l) the Guarantees have been duly authorized and when the Securities
have been duly authenticated by the Trustee pursuant to the Indenture and issued
and delivered pursuant to this Agreement, will have been duly executed, issued
and delivered and will constitute valid and binding obligations of Tyco entitled
to the benefits provided by the Indenture; the Indenture has been duly
authorized, executed and delivered by Tyco and constitutes a valid and binding
instrument of Tyco; and the Guarantees will conform in all material respects to
the descriptions thereof in the Prospectus;
(m) neither Tyco nor any of its subsidiaries is, or, with the giving of
notice or lapse of time or both would be, in violation of or in default under,
its memorandum of association, articles of organization, certificate of
incorporation or other similar charter document (each a "CHARTER") or by-laws or
any indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which Tyco or any of its subsidiaries is a party or
by which it or any of them or any of their respective properties is bound or
subject, except for violations and defaults which individually and in the
aggregate would not result in a Material Adverse Effect, or are not material to
the holders of the Securities and the Guarantees; the execution, delivery and
performance of this Agreement, the Indenture, the Securities and the Guarantees
by the Company and Tyco, as the case may be, the consummation of the
transactions contemplated herein, therein and in the Prospectus (including the
issuance and sale of the Securities and the Guarantees and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds") and the compliance by the Company and Tyco of
their respective obligations under this Agreement, the Indenture, the Securities
and the Guarantees do not and will not conflict with or result in a breach of
any of the terms or provisions of or with the giving of notice or lapse of time
or both constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon the property or assets of Tyco or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which Tyco or any of its
subsidiaries is a party or by which Tyco or any of its subsidiaries is bound or
to which any of the property or assets of Tyco or any of its subsidiaries is
subject, except for such conflicts, breaches, defaults, liens, charges or
encumbrances that would not result in a Material Adverse Effect, nor will any
such action result in any violation of the provisions of the Charter or the
by-laws of Tyco or any of its subsidiaries or any applicable law or statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over Tyco, or any of its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities and the issue of the
Guarantees or the consummation by the Company or
-6-
Tyco of the transactions contemplated by this Agreement or the Indenture, except
such consents, approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act, the Trust
Indenture Act and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities and the
Guarantees by the Underwriters;
(n) other than as disclosed in or contemplated by the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company or Tyco, threatened to which Tyco or
any of its subsidiaries is or may be a party or to which any property or assets
of Tyco or any of its subsidiaries is or may be the subject which, if determined
adversely to Tyco or any of its subsidiaries, could individually or in the
aggregate have, or reasonably be expected to have, a Material Adverse Effect or
which could be reasonably expected to materially and adversely affect the
consummation of the transactions contemplated by this Agreement or the
performance by the Company and Tyco of their respective obligations hereunder or
thereunder; and no such proceedings are pending or, to the best of the Company's
and Tyco's knowledge, threatened against Tyco or any of its subsidiaries which
are required to be disclosed in the Registration Statement or the Prospectus,
other than those disclosed therein; and there are no contracts, mortgages, loan
agreements, notes, leases or other documents to which Tyco or any of its
subsidiaries is a party or by which any of them may be bound or to which any
property or assets of Tyco or any of its subsidiaries is subject that are
required to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which are not filed
or described as required;
(o) except as disclosed in the Prospectus, no labor dispute with the
employees of Tyco or any of its subsidiaries exists or, to the knowledge of the
Company or Tyco, is threatened, which could reasonably be expected to result in
a Material Adverse Effect;
(p) neither the Company nor Tyco is, and upon the issuance and sale of
the Securities and the issuance of the Guarantees as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
be, an "investment company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT");
(q) neither the Company nor Tyco or, to the best of the Company's and
Tyco's knowledge, any officer, director, employee agent or shareholder thereof,
in each case acting on behalf of the Company or Tyco, as the case may be, has
done any act or authorized, directed or participated in any act, in violation of
any provision of the Foreign Corrupt Practices Act of 1977, as amended,
applicable to such entity or person for which civil or criminal liability or
penalties, as the case may be, could currently be imposed on the Company or
Tyco;
(r) the choice of law provisions set forth in this Agreement are legal,
valid and binding under the laws of Luxembourg and Bermuda, respectively, and
will be recognized and given effect to by the courts of Luxembourg and Bermuda,
respectively, (unless a court determined that doing so would be contrary to
public policy in Luxembourg and Bermuda, respectively,); each of the Company and
Tyco has the legal capacity to xxx and be sued in its own name under the laws of
Luxembourg and Bermuda, respectively; each of the Company and Tyco has, under
the laws of Luxembourg and Bermuda, respectively,
-7-
the power to submit, and has irrevocably submitted, to the jurisdiction of the
New York courts and has validly and irrevocably appointed CT Corporation System,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. (and any successor entity) as
its authorized agent for the service of process pursuant to this Agreement; the
irrevocable submission of the Company and Tyco to the jurisdiction of the New
York courts and the waiver by the Company and Tyco of any immunity and any
objection to the venue of the proceeding in a New York court, included in this
Agreement, are legal, valid and binding under the laws of Luxembourg and
Bermuda, respectively; neither the Company nor Tyco or any of their respective
assets is entitled to immunity (or any similar defense) from suit, execution,
attachment or other legal process in Luxembourg and Bermuda, respectively; this
Agreement is in proper legal form under the laws of Luxembourg and Bermuda,
respectively, for the enforcement thereof against the Company and Tyco,
respectively, and nothing in Luxembourg and Bermuda law, respectively, prevents
suit upon this Agreement in the courts of Luxembourg and Bermuda, respectively;
and it is not necessary (a) in order to enable the Underwriters to exercise or
enforce their rights under this Agreement in Luxembourg and Bermuda,
respectively, or (b) by reason of the entry into and/or the performance of this
Agreement, that any of the Underwriters should be licensed, qualified,
authorized or entitled to do business in Luxembourg and Bermuda, respectively;
and
(s) in any proceedings in Luxembourg and Bermuda, respectively, or
elsewhere in connection with this Agreement, the Company and Tyco will not be
entitled to claim for themselves or any of their respective assets or
property immunity from suit, execution, attachment or other legal process.
Any certificate signed by any officer of the Company or Tyco
delivered to the Underwriters or to counsel for the Underwriters pursuant to
this Agreement shall be deemed a representation and warranty by the Company
or Tyco, as the case may be, to each Underwriter as to the matters covered
thereby.
5. The Company and Tyco, jointly and severally, covenant and agree with
each of the several Underwriters as follows:
(a) to file the Prospectus in a form approved by you pursuant to
Rule 424 under the Securities Act not later than the Commission's close of
business on the second Business Day following the date of determination of
the offering price of the Securities or, if applicable, such earlier time as
may be required by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Company and Tyco, a signed copy of the
Registration Statement (as originally filed) and each amendment thereto, in
each case including exhibits and documents incorporated by reference therein
and, during the period mentioned in paragraph (g) below, to furnish each of
the Underwriters as many copies of any preliminary prospectus and the
Prospectus (including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request;
(c) from the date hereof and prior to the Closing Date, to furnish
you a copy of any proposed amendment or supplement to the Registration
Statement or the Prospectus, for your review, and not to file any such
proposed amendment or supplement to which you reasonably and timely object;
(d) to file promptly, subject to the provisions of paragraph (c)
above, all reports
-8-
and any definitive proxy or information statements required to be filed by Tyco
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act during the period mentioned in paragraph (g) below;
(e) during the period mentioned in paragraph (g) below, to advise
you promptly, and to confirm such advice in writing, (i) when any amendment
to the Registration Statement shall have become effective, (ii) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
initiation or threatening of any proceeding for that purpose known to the
Company or Tyco, and (iv) of the receipt by the Company or Tyco of any
notification with respect to any suspension of the qualification of the
Securities and the Guarantees for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to use
their best efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain as soon as possible the withdrawal
thereof;
(f) the Company and Tyco will comply with the Securities Act and the
Exchange Act so as to permit the completion of the distribution of the
Securities and the Guarantees contemplated in this Agreement and in the
Prospectus;
(g) if, during such period after the first date of the public
offering of the Securities and the Guarantees as in the opinion of counsel
for the Underwriters a prospectus relating to the Securities and the
Guarantees is required by law to be delivered in connection with sales of the
Securities and the Guarantees by an Underwriter or dealer, any event shall
occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the
Company and Tyco, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Securities may have been
sold by you on behalf of the Underwriters and to any other dealers upon
request, such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law;
(h) to endeavor to qualify the Securities and the Guarantees for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to continue such qualification in effect so
long as reasonably required for distribution of the Securities and the
Guarantees; provided that neither the Company nor Tyco shall be required to
file a general consent to service of process or qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or as a
dealer in securities in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not so subject;
(i) to use the net proceeds received by the Company from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Prospectus under
-9-
"Use of Proceeds";
(j) to make generally available to their security holders and to you
as soon as practicable an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of Tyco occurring after the
"effective date" (as defined in Rule 158) of the Registration Statement;
(k) so long as the Securities and the Guarantees are outstanding, to
furnish to you copies of all reports or other communications (financial or
other) furnished to holders of Securities and the Guarantees, and copies of
any reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
(l) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of or
guaranteed by the Company or Tyco which are substantially similar to the
Securities or the Guarantees without prior written consent of the
Representatives; and
(m)whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid
all costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities and the Guarantees, including
any expenses of the Trustee, (ii) incident to the preparation, printing and
filing under the Securities Act of the Registration Statement, the Prospectus
and any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection with the
registration or qualification and determination of eligibility for investment
of the Securities and the Guarantees under the laws of such jurisdictions as
the Underwriters may designate, including reasonable fees of counsel for the
Underwriters and their disbursements, (iv) in connection with the listing of
the Securities and the Guarantees on any stock exchange, (v) related to any
filing with the National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication
costs) and delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to the Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided and (vii) payable to rating agencies in connection with the rating
of the Securities, it being understood that the Company and Tyco shall not be
responsible for the fees and expenses of counsel to the Underwriters except
as explicitly set forth herein.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company and Tyco
contained herein are true and correct on and as of the Closing Date as if
made on and as of the Closing Date, and the Company and Tyco shall have
complied with all agreements and all conditions on their part to be performed
or satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule
-10-
424 within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your satisfaction;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any downgrading, (ii) any intended or
potential downgrading or (iii) any review or possible change that does not
indicate an improvement, in the rating accorded any securities of or
guaranteed by the Company or Tyco by any "nationally recognized statistical
rating organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(d) since the respective dates as of which information is given in
the Prospectus there shall not have been any material change in the capital
stock or long-term debt of Tyco or any of its subsidiaries, or any Material
Adverse Effect otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities and the Guarantees on the terms and in the manner
contemplated in the Prospectus; and neither Tyco nor any of its subsidiaries
has sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order to decree, otherwise than as et forth or
contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of each of the Company and Tyco
with specific knowledge about each of the Company's and Tyco's financial
matters, satisfactory to you to the effect set forth in subsections (a)
through (c) of this Section and to the further effect that there has not
occurred any Material Adverse Effect;
(f) Xxxx X. Xxxxxxx, Chief Corporate Counsel of Tyco, shall have
furnished to you a written opinion, dated the Closing Date, in form and
substance satisfactory to you, to the effect set forth in Exhibit A-1 hereto;
(g) Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel for the Company and
Tyco, shall have furnished to you their written opinion, dated the Closing
Date, in form and substance satisfactory to you, to the effect set forth in
Exhibit A-2 hereto;
(h) Beghin Nothar Xxxxxx Loeff Xxxxxx Xxxxxxx, Luxembourg counsel
for the Company, shall have furnished to you their written opinion, dated the
Closing Date, in form and substance satisfactory to you, to the effect set
forth in Exhibit A-3 hereto;
(i) Xxxxxxx, Xxxxxxxx & Xxxxx, Bermuda counsel for Tyco, shall have
furnished to you their written opinion, dated the Closing Date, in form and
substance satisfactory to you, to the effect set forth in Exhibit A-4 hereto;
(j) on the Closing Date, PricewaterhouseCoopers shall have furnished
to you letters, dated such date, in form and substance satisfactory to you,
containing statements
-11-
and information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus;
(k) you shall have received on and as of the Closing Date an opinion
of Xxxxx Xxxx & Xxxxxxxx, counsel to the Underwriters, with respect to the
validity of the Indenture, the Registration Statement, the Prospectus and
other related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters; and
(l) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and documents as
the Representatives shall reasonably request.
7. The Company and Tyco, jointly and severally, agree to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including without limitation the reasonable legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
or the Prospectus (as amended or supplemented if the Company or Tyco shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company or Tyco
in writing by such Underwriter through the Representatives expressly for use
therein; provided that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter (or
to the benefit of any person controlling such Underwriter) from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities if such untrue statement or omission or alleged untrue statement
or omission made in such preliminary prospectus is eliminated or remedied in
the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) and, if required by law, a
copy of the Prospectus (as so amended or supplemented) shall not have been
furnished to such person at or prior to the written confirmation of the sale
of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, Tyco and their respective directors and officers who
sign the Registration Statement and each person who controls the Company or Tyco
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company and
Tyco to each Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company and Tyco in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto,
-12-
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "INDEMNIFIED PERSON") shall promptly
notify the person against whom such indemnity may be sought (the "INDEMNIFYING
PERSON") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by the
first of the named Representatives on Schedule I hereto and any such separate
firm for the Company, Tyco and their respective directors and officers who sign
the Registration Statement and such control persons of the Company and Tyco
shall be designated in writing by the Company and Tyco. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement unless the Indemnifying Person in
good faith shall be contesting the reasonableness of such fees and expenses (but
only to the extent so contested) or the entitlement of the Indemnified Person to
indemnification under the terms of this Section 7. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified
-13-
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Tyco on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and Tyco on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and Tyco on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Securities and Guarantees (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and Tyco and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities and Guarantees. The relative fault of the Company and Tyco on the one
hand and the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and Tyco or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, Tyco 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter 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. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of
-14-
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective principal
amount of the Securities set forth opposite their names in Schedule II hereto,
and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and Tyco set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, Tyco, their respective officers or directors or any other person
controlling the Company or Tyco and (iii) acceptance of and payment for any of
the Securities and the Guarantees.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given
to the Company or Tyco, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended
or materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the Nasdaq National Market, the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of or guaranteed by
the Company or Tyco shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity
or crisis that, in the judgment of the Representatives, is material and
adverse and which, in the judgment of the Representatives, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities which it or they have agreed to
purchase under this Agreement, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the Securities, the other Underwriters shall be obligated
severally in the proportions that the principal amount of Securities set
forth opposite their respective names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-tenth of such
principal amount of Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter
-15-
or Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to you, the Company and Tyco for the purchase of
such Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter,
the Company or Tyco. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company or
Tyco to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or Tyco shall be unable to
perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Company and Tyco agree to
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably
incurred by such Underwriters in connection with this Agreement or the
offering of the Securities and the Guarantees.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, Tyco, the Underwriters and any Indemnified Persons referred to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
other person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to
be a successor or assign by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. 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 given at the address
set forth in Schedule I hereto. Notices to the Company and Tyco shall be
given to them, if the Company, at 0, xxxxxx Xxxxx Xxxxxx, 0xx Xxxxx, X-0000,
Xxxxxxxxxx, Attention: the Managing Directors; if to Tyco, at The Xxxxxxx
Building, 00 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx XX 00, Xxxxxxx, Xxxxxxxxx:
Secretary, with a copy to Tyco International (US), Inc., Xxx Xxxx Xxxx,
Xxxxxx, Xxx Xxxxxxxxx 00000; Attention: General Counsel.
13. Each of the Company and Tyco (i) agrees that any legal suit,
action or proceeding brought by any party to enforce any rights under or with
respect to this Agreement or any other document or the transactions
contemplated hereby or thereby may be instituted in any state or federal
court in The City of New York, State of New York,
-16-
U.S.A., (ii) irrevocably waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding, (iii) irrevocably waives to the fullest extent
permitted by law any claim that and agrees not to claim or plead in any court
that any such action, suit or proceeding brought in such court has been brought
in an inconvenient forum and (iv) irrevocably submits to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding or for
recognition and enforcement of any judgment in respect thereof.
Each of the Company and Tyco hereby irrevocably and unconditionally
designates and appoints CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X. (and any successor entity) as its authorized agent to receive and
forward on its behalf service of any and all process which may be served in any
such suit, action or proceeding in any such court and agrees that service of
process upon CT Corporation shall be deemed in every respect effective service
of process upon it in any such suit, action or proceeding and shall be taken and
held to be valid personal service upon it. Said designation and appointment
shall be irrevocable. Nothing in this Section 13 shall affect the right of the
Underwriters, their affiliates or any indemnified party to serve process in any
manner permitted by law or limit the right of the Underwriters, their affiliates
or any indemnified party to bring proceedings against the Company or Tyco in the
courts of any jurisdiction or jurisdictions. Each of the Company and Tyco
further agrees to take any and all action, including the execution and filing of
any and all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation in full force and effect so long
as the Securities and the Guarantees are outstanding but in no event for a
period longer than five years from the date of this Agreement. Each of the
Company and Tyco hereby irrevocably and unconditionally authorizes and directs
CT Corporation to accept such service on its behalf. If for any reason CT
Corporation ceases to be available to act as such, each of the Company and Tyco
agrees to designate a new agent in New York City on the terms and for the
purposes of this provision reasonably satisfactory to the Underwriters.
To the extent that either the Company or Tyco has or hereafter may
acquire any immunity from jurisdiction of any court (including, without
limitation, any court in the United States, the State of New York, Luxembourg,
Bermuda or any political subdivision thereof) or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property or
assets, this Agreement, or any other documents or actions to enforce judgments
in respect of any thereof, it hereby irrevocably waives such immunity, and any
defense based on such immunity, in respect of its obligations under the
above-referenced documents and the transactions contemplated thereby, to the
extent permitted by law.
14. If pursuant to a judgment or order being made or registered
against the Company or Tyco, any payment under or in connection with this
Agreement to an Underwriter is made or satisfied in a currency (the "JUDGMENT
CURRENCY") other than in United States dollars then, to the extent that the
payment (when converted into United States dollars at the rate of exchange on
the date of payment or, if it is not practicable for such Underwriter to
purchase United States dollars with the Judgment Currency on the
-17-
date of payment, at the rate of exchange as soon thereafter as it is practicable
for it to do so) actually received by such Underwriter falls short of the amount
due under the terms of this Agreement, the Company or Tyco shall, to the extent
permitted by law, as a separate and independent obligation, indemnify and hold
harmless such Underwriter against the amount of such short fall and such
indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. For the purpose of this Section, "rate of
exchange" means the rate at which the Underwriter is able on the relevant date
to purchase United States dollars with the Judgment Currency and shall take into
account any premium and other costs of exchange.
15. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and the
same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
the conflicts of laws provisions thereof.
Very truly yours,
TYCO INTERNATIONAL GROUP S.A.
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Corporate Counsel
-18-
Accepted: January 7, 1999
X.X. XXXXXX SECURITIES INC.
ABN AMRO INCORPORATED
BT ALEX. XXXXX INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
FIRST UNION CAPITAL MARKETS, A DIVISION OF
WHEAT FIRST SECURITIES, INC.
HSBC SECURITIES, INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXX XXXXX BARNEY INC.
as Representatives to the several Underwriters
named in Schedule II hereto
By: X.X. Xxxxxx Securities Inc.
By: /s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
Vice President
-19-
SCHEDULE I
Representatives: X.X. Xxxxxx Securities Inc.
ABN AMRO Incorporated
BT Alex. Xxxxx Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
First Union Capital Markets, a division of
Wheat First Securities, Inc.
HSBC Securities, Inc.
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxx Xxxxx Barney Inc.
Underwriting Agreement Dated: January 7, 1999
Registration Statement No.: 333-50855 and 000-00000-00 and the related
Rule 462 Registration Statement
Title of Securities: 6 1/8% Notes due 2009
Aggregate Principal Amount: $400,000,000
Purchase Price: 98.408% of the principal amount of the Securities, plus
accrued interest, if any, from January 12, 1999
Price to Public: 99.058% of the principal amount of the Securities, plus
accrued interest, if any, from January 12, 1999
Indenture: Indenture dated as of June 9, 1998 among the Company,
Tyco International Ltd. and The Bank of New York, as
Trustee, as supplemented by a Supplemental Indenture No.
7 among the Company, Tyco International Ltd. and the
Trustee
Final Maturity: January 15, 2009
Interest Rate: 6 1/8% per annum, accruing from January 12, 1999.
Interest Payment Dates: January 15 and July 15 , commencing July 15, 1999
Redemption: The Securities will be redeemable by the Company as set
forth in the Prospectus Supplement dated January 7, 1999
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: January 12, 1999
Closing Location: New York, New York
Address for Notices to Underwriters: c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE II
Principal Amount of
Securities To Be
Underwriter Purchased
----------- -------------------
X.X. Xxxxxx Securities Inc. ............................... $220,000,000
ABN AMRO Incorporated ..................................... 20,000,000
BT Alex. Xxxxx Incorporated ............................... 20,000,000
Chase Securities Inc. ..................................... 20,000,000
Credit Suisse First Boston Corporation .................... 20,000,000
First Union Capital Markets, a division of
Wheat First Securities, Inc. ........................... 20,000,000
HSBC Securities, Inc. ..................................... 20,000,000
NationsBanc Xxxxxxxxxx Securities LLC ..................... 20,000,000
Xxxxxxx Xxxxx Barney Inc. ................................. 20,000,000
Commerzbank Capital Markets Corporation ................... 4,000,000
Credit Lyonnais Securities (USA) Inc. ..................... 4,000,000
First Chicago Capital Markets, Inc. ....................... 4,000,000
McDonald Investments Inc. ................................. 4,000,000
Scotia Capital Markets (USA) Inc. ......................... 4,000,000
-------------------
Total ................................................ $400,000,000
-------------------
-------------------
