EXHIBIT 1.1
EXECUTION COPY
BOSTON SCIENTIFIC CORPORATION
Debt Securities
UNDERWRITING AGREEMENT-BASIC PROVISIONS
June 22, 2004
To: The Underwriters named in the within-mentioned Terms Agreement
Dear Sirs:
Boston Scientific Corporation (the "Company") proposes to issue and sell
its Debt Securities having an aggregate initial public offering price or
purchase price of up to U.S. $600,000,000 or the equivalent thereof in foreign
currencies or currency units (the "Securities"). The Securities will be issued
under an indenture dated as of June 25, 2004 between the Company and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as trustee (the
"Trustee"), as supplemented from time to time by supplemental indentures and/or
modified from time to time by resolutions of the Board of Directors of the
Company as provided in Section 301 of such indenture (such indenture as so
supplemented and/or modified being hereinafter referred to as the "Indenture").
Whenever the Company determines to make an offering of Securities, it will
enter into an agreement substantially in the form of Exhibit A hereto (a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, the underwriter or underwriters named therein (each an
"Underwriter" and, collectively, the "Underwriters" or "you," which terms shall
include the underwriter or underwriters named therein whether acting alone in
the resale of the Securities or as members of an underwriting syndicate). The
Terms Agreement relating to each offering of Securities shall specify the
principal amount of Securities to be issued and their terms not otherwise
specified in the Indenture, the name or names of the Underwriters participating
in such offering (subject to substitution as provided in Section 10 hereof) and
the principal amount of Securities which each severally agrees to purchase, the
name or names of the Underwriters acting as manager or co-managers in connection
with such offering, if any (each a "Representative" and, collectively, the
"Representatives," which term shall include each Underwriter in the event that
there shall be no manager or co-managers), the price at which the Securities are
to be purchased by the Underwriters from the Company, the initial public
offering price, any delayed delivery arrangements and the time and place of
delivery and payment. Each offering of Securities will be governed by this
Agreement, as supplemented by the applicable Terms Agreement, and this Agreement
and such Terms Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of such Securities.
1. Representations and Warranties. The Company represents and
warrants to you that as of the date hereof, as of the date of the applicable
Terms Agreement and as of the
Closing Time (as hereinafter defined) under such Terms Agreement (in each case,
the "Representation Date") as set forth below. Certain terms used in this
Section 1 are defined in paragraph (C) hereof.
A. If the offering of the Securities is a Delayed Offering (as
specified in the relevant Terms Agreement), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "1933 Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a Registration
Statement (File No. 333-64887) on such Form, including a Basic Prospectus, for
registration under the 1933 Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, and may have used a
Preliminary Prospectus, each of which has previously been furnished to you. Such
Registration Statement, as so amended, has become effective. The offering of the
Securities is a Delayed Offering and, although the Basic Prospectus may not
include all the information with respect to the Securities and the offering
thereof required by the 1933 Act and the rules thereunder to be included in the
Final Prospectus, the Basic Prospectus included all such information required by
the 1933 Act and the rules thereunder to be included therein as of the Effective
Date. The Company will next file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a Final Prospectus to the Basic Prospectus included in such
Registration Statement relating to the Securities and the offering thereof. As
filed, such Final Prospectus shall include all required information with respect
to the Securities and the offering thereof and, except to the extent the
Representatives shall agree to a modification, shall be in all substantive
respects in the form furnished to you for your review prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that contained in
the Basic Prospectus and any Preliminary Prospectus) as the Company has advised
you, prior to the Execution Time, will be included or made therein.
(ii) The Company meets the requirements for the use of Form S-3
under the 1933 Act and has filed with the Commission a Registration Statement
(File No. 333-64887) on such Form, including a Basic Prospectus, for
registration under the 1933 Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, including a Preliminary
Prospectus, each of which has previously been furnished to you. The Company will
next file with the Commission either (x) a Final Prospectus relating to the
Securities in accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to
the effectiveness of such Registration Statement, an amendment to such
Registration Statement, including the form of Final Prospectus. In the case of
clause (x), the Company has included in such Registration Statement, as amended
at the Effective Date, all information (other than Rule 430A Information)
required by the 1933 Act and the rules thereunder to be included in the Final
Prospectus with respect to the Securities and the offering thereof. As filed,
such Final Prospectus or such amendment and form of Final Prospectus shall
contain all Rule 430A Information, together with all other such required
information, with respect to the Securities and the offering thereof and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you for your
review prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain
2
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made therein.
B. On the Effective Date, the Registration Statement did, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and at the Closing Time, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable requirements
of the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the respective rules thereunder; on the Effective Date, the
Registration Statement did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; at the Closing Time, the
Indenture will comply in all material respects with the requirements of the
Trust Indenture Act and the rules thereunder; and, the Final Prospectus, will
not, on the date of any filing pursuant to Rule 424(b) and at the Closing Time,
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement thereto).
C. The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date and
time that the applicable Terms Agreement (including this Agreement as
incorporated by reference therein) is executed and delivered by the parties
thereto. "Basic Prospectus" shall mean the prospectus referred to in paragraph
(A)(i) above contained in the Registration Statement at the Effective Date
including, in the case of a Non-Delayed Offering, any Preliminary Prospectus.
"Preliminary Prospectus" shall mean any preliminary prospectus supplement to the
Basic Prospectus which describes the Securities and the offering thereof
including the Basic Prospectus and is used prior to filing of the Final
Prospectus. "Final Prospectus" shall mean the final prospectus supplement
relating to the Securities that is filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall mean
the form of final prospectus relating to the Securities, including the Basic
Prospectus, included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to in
paragraph (A)(i) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Time (as hereinafter defined), shall also mean such Registration
Statement as so amended. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to
3
such rules or regulation under the 1933 Act. "Rule 430A Information" means
information with respect to the Securities and the offering thereof permitted to
be omitted from the Registration Statement when it becomes effective pursuant to
Rule 430A. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the 1934 Act on or before the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the 1934 Act after the Effective Date
of the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. A "Non-Delayed Offering" shall mean an
offering of securities which is intended to commence promptly after the
effective date of the Registration Statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A Information) with
respect to the securities so offered must be included in such Registration
Statement at the effective date thereof. A "Delayed Offering" shall mean an
offering of securities pursuant to Rule 415 which does not commence promptly
after the effective date of the Registration Statement, with the result that
only information required pursuant to Rule 415 need be included in such
Registration Statement at the effective date thereof with respect to the
securities so offered. Whether an offering of the Securities is a Non-Delayed
Offering or a Delayed Offering shall be set forth in the relevant Terms
Agreement.
D. The consolidated financial statements included or incorporated
by reference in the Registration Statement and the Final Prospectus present
fairly in all material respects the consolidated financial position of the
Company and its consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as indicated
therein; the supporting schedules included or incorporated by reference in the
Registration Statement, if any, present fairly the information required to be
stated therein; and if pro forma financial statements are included or
incorporated by reference in the Registration Statement and the Final
Prospectus, the assumptions used in preparing the pro forma financial statements
included therein provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those assumptions,
and the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
E. The documents incorporated by reference in the Final
Prospectus, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations thereunder, and, when read together and
with the other information in the Final Prospectus and the Registration
Statement, at each Representation Date, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
4
F. Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, except as may otherwise be
stated therein or contemplated thereby, (i) there has been no material adverse
change in the condition (financial or other), earnings, results of operations,
business or properties of the Company and its subsidiaries, considered as one
enterprise, whether or not arising from transactions in the ordinary course of
business and (ii) there have been no material transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course of
business.
G. The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and
conduct its business as now being conducted and as described in the Final
Prospectus; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition (financial or other),
earnings, results of operations, business or properties of the Company and its
subsidiaries, considered as one enterprise (a "Material Adverse Effect").
H. Schedule I hereto sets forth each domestic and foreign
subsidiary of the Company which is a "significant subsidiary" within the meaning
of Rule 1-02 of Regulation S-X of the 1933 Act (collectively, "Material
Subsidiaries"). Each Material Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and authority
to own, lease and operate its properties and conduct its business as described
in the Final Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to be in good
standing or to so qualify would not have a Material Adverse Effect, and, except
as otherwise disclosed in the Registration Statement or the Final Prospectus,
all of the issued and outstanding capital stock of each such subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company (except for directors' qualifying shares and shares held by
individuals for the purpose of satisfying the legal requirements of the
jurisdiction of incorporation), directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
I. Neither the Company nor any of its subsidiaries is in
violation of its or any of their charters or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which it or any of them is a party or by which it or any of them or their
properties may be bound where any such violation or default would have a
Material Adverse Effect; and the execution of this Agreement, the execution and
delivery of the Indenture and the applicable Terms Agreement (including this
Agreement as incorporated by reference therein), the filing of the Registration
Statement and the consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
5
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject where any such conflict,
breach, default, creation or imposition would have a Material Adverse Effect,
nor will such action result in any violation of the provisions of the charter or
by-laws of the Company or, to the best of its knowledge, any law, administrative
regulation or administrative or court decree (except for such violations that
would not have a Material Adverse Effect), and no consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by the Company of the transactions contemplated by
this Agreement, except such as may be required under the 1933 Act or the rules
and regulations promulgated thereunder (the "Regulations"), the Trust Indenture
Act or state securities or "blue sky" laws.
J. The Company and its Material Subsidiaries possess adequate
certificates, authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, except such certificates, authorities or permits which are not
material to such conduct of their business, and neither the Company nor any of
its Material Subsidiaries has, to the knowledge of the Company, received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
K. Except as set forth in the Registration Statement or Final
Prospectus, there is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its subsidiaries that might reasonably be expected to result in a Material
Adverse Effect, or that might reasonably be expected to materially and adversely
affect the consummation of this Agreement and the applicable Terms Agreement.
L. There are no contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to the Registration
Statement (including the documents incorporated by reference therein) by the
1933 Act or the Regulations which have not been so filed.
M. The Company has full right, power and authority to execute and
deliver this Agreement, the Securities and the Indenture (collectively, the
"Transaction Documents") and to perform its obligations hereunder and
thereunder.
N. The Indenture has been duly and validly authorized by the
Company and, when executed and delivered by the Company and, assuming due
execution and delivery by the Trustee, will be a valid and binding agreement of
the Company, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and subject to the applicability of general
principles of equity, and has been duly qualified under the Trust Indenture Act.
O. The Securities have been duly authorized for issuance and sale
pursuant to this Agreement and the applicable Terms Agreement (or will have been
so authorized prior to each issuance of Securities) and, when executed and
authenticated in accordance with the
6
provisions of the Indenture and the Resolutions of a Pricing Committee of the
Company dated as of June 22, 2004 and delivered to and paid for by the
purchasers thereof, will constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms (subject, as to enforcement
of remedies, to applicable bankruptcy, fraudulent transfer, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally from
time to time in effect and to principles relating to the availability of
equitable remedies to the extent that adequate remedies at law may exist) and
will be entitled to the benefits of the Indenture, which will be substantially
in the form heretofore delivered to you; and the Securities and the Indenture
will conform when executed and delivered in all material respects to all
statements relating thereto contained in the Final Prospectus.
P. Except as disclosed in the Registration Statement or the Final
Prospectus, and except as where such failure would not have a Material Adverse
Effect, the Company and its subsidiaries own, possess, license or have the right
to use the patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names and other rights or interests in items of intellectual property as
are necessary for the operation and conduct of the businesses now operated by
them (the "patent and proprietary rights"); and except as disclosed in the
Registration Statement or the Final Prospectus, the Company has no knowledge of
any infringement of or conflict with asserted rights of others with respect to
any patent and proprietary rights which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect, and, except as disclosed in the Registration Statement or the
Final Prospectus, the Company has no knowledge that any person or entity is
infringing or otherwise violating any of the Company's patents, trademarks,
servicemarks or copyrights in a manner that could materially affect the use
thereof by the Company or any of its subsidiaries and which infringement would
have a Material Adverse Effect.
Q. No labor disturbance by the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent which might
reasonably be expected to have a Material Adverse Effect.
R. The Company is not, and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectus, will not be an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
S. Except as described in the Registration Statement or the Final
Prospectus and except as could not reasonably be expected to have a Material
Adverse Effect, to the knowledge of the Company, the properties, assets and
operations of each of the Company and its subsidiaries are in compliance with
all applicable federal, state, local and foreign laws (including, without
limitation, common law), rules and regulations, orders, decrees, judgments,
permits and licenses relating to worker health and safety, and to the protection
and clean-up of the natural environment and to the protection or preservation of
natural resources, including, without limitation, those relating to the
processing, manufacturing, generation, handling, disposal, transportation or
release of hazardous materials (collectively, "Environmental Laws"). With
respect to such properties, assets and operations, there are no events,
conditions,
7
circumstances, activities, practices, incidents, actions or plans of the Company
or any of its subsidiaries of which the Company is aware that may interfere with
or prevent compliance or continued compliance with applicable Environmental Laws
or otherwise result in liability to the Company or any of its subsidiaries
pursuant to applicable Environmental Law in a manner that could reasonably be
expected to have a Material Adverse Affect. Except as described in the
Registration Statement or the Final Prospectus and except as could not
reasonably be expected to have a Material Adverse Effect, (A) to the Company's
knowledge, none of the Company or any of its subsidiaries is the subject of any
federal, state, local or foreign investigation pursuant to Environmental Laws,
(B) none of the Company or any of its subsidiaries has received any written
notice or claim pursuant to Environmental Laws and (C) there are no pending, or,
to the knowledge of the Company, threatened actions, suits or proceedings
against the Company, any of its subsidiaries or its properties, assets or
operations, in connection with any Environmental Laws. The term "hazardous
materials" shall mean those substances that are regulated by or pursuant to any
applicable Environmental Laws.
T. This Agreement has been duly authorized, executed and
delivered by the Company.
U. The Company's authorized equity capitalization as of March 31,
2004 is as set forth in the Final Prospectus.
V. No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
W. The Company is, to its knowledge, in compliance in all
material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of
2002 that are effective and the rules and regulations of the Commission that
have been adopted and are effective thereunder (collectively, the
"Xxxxxxxx-Xxxxx Act").
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with an offering
of Securities shall be deemed a representation and warranty by the Company, as
to the matters covered thereby, to each Underwriter.
2. Purchase and Sale. The several commitments of the Underwriters
to purchase securities pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Securities to be
purchased by the Underwriters shall be made at the place set forth in the
applicable Terms Agreement, or at such other place as shall be agreed upon by
the Representatives and the Company, on the third business day (unless postponed
in accordance with the provisions of Section 10) following the date of the
applicable Terms Agreement or such other time as shall be agreed upon by the
Representatives and the Company (each such time and date being referred to as a
"Closing Time"). Except as indicated in the applicable Terms Agreement, payment
shall be made to the Company by wire transfer in same-day funds against delivery
of the Securities to be purchased
8
by the Representatives for the respective accounts of the Underwriters. Such
Securities shall be in such denominations and registered in such names as the
Representatives may request in writing at least two business days prior to the
applicable Closing Time or shall be in global or bearer form as permitted by the
Indenture. Such Securities, which may be in temporary form, will be made
available for examination and packaging by the Representatives on or before the
first business day prior to Closing Time.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Exhibit B hereto, with such changes therein as the Company may approve.
As compensation for arranging Delayed Delivery Contracts, the Company will
pay to the Representatives at Closing Time, for the accounts of the
Underwriters, a fee equal to that percentage of the principal amount of
Securities for which Delayed Delivery Contracts are made at Closing Time as is
specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are
to be with institutional investors of the types which will be set forth in the
applicable prospectus supplement included in the Final Prospectus. If
applicable, at Closing Time the Company will enter into Delayed Delivery
Contracts (for not less than the minimum principal amount of Securities per
Delayed Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Company
as provided below, but not for an aggregate principal amount of Securities in
excess of that specified in the applicable Terms Agreement. The Underwriters
will not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
The Representatives are to submit to the Company, at least two business
days prior to Closing Time, the names of any institutional investors with which
it is proposed that the Company will enter into Delayed Delivery Contracts and
the principal amount of Securities to be purchased by each of them, and the
Company will advise the Representatives, at least one business day prior to
Closing Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the principal amount of
Securities to be covered by each such Delayed Delivery Contract.
The principal amount of Securities agreed to be purchased by the
respective Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the principal amount of Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by
the Representatives to the Company; provided, however, that the total principal
amount of Securities to be purchased by all Underwriters shall be the total
amount of Securities covered by the applicable Terms Agreement, less the
principal amount of Securities covered by Delayed Delivery Contracts.
3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
A. The Company will use commercially reasonable efforts to cause
the Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Immediately following the execution of
each Terms Agreement, the Company
9
will prepare a final prospectus supplement to be included in the Final
Prospectus setting forth the principal amount of Securities covered thereby and
their terms not otherwise specified in the Indenture, the names of the
Underwriters and the principal amount of Securities which each severally has
agreed to purchase, the names of the Representatives, the price at which the
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, the selling concession and reallowance, if any, any
delayed delivery arrangements, and such other information as the Representatives
and the Company reasonably deem necessary in connection with the offering of the
Securities. Following the completion of the offering, the Company will promptly
transmit copies of the Final Prospectus to the Commission for filing pursuant to
Rule 424 of the Regulations.
B. If at any time when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities any event shall occur
or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to further amend or
supplement the Final Prospectus in order that the Final Prospectus will not
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser or if it shall
be necessary, in the opinion of either such counsel, at any such time to amend
or supplement the Registration Statement or the Final Prospectus in order to
comply with the requirements of the 1933 Act or the Regulations, the Company
will promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements.
C. With respect to each sale of Securities, the Company will make
generally available to its security holders and to the Representatives as soon
as practicable earnings statements of the Company that will satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the Regulations.
D. From the date of a Terms Agreement, and for so long as a
prospectus is required by the 1933 Act to be delivered in connection with the
sale of Securities covered by such Terms Agreement, the Company will give the
Representatives notice of its intention to file any amendment to the
Registration Statement or any amendment or supplement to the Final Prospectus,
whether pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish
them with copies of any such proposed amendment or supplement or other documents
proposed to be filed a reasonable time in advance of filing and will provide the
Representatives the opportunity to review and comment on such documents.
E. From the date of a Terms Agreement, and for so long as a
prospectus is required by the 1933 Act to be delivered in connection with the
sale of Securities covered by such Terms Agreement, the Company will notify the
Representatives immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of any supplement to the
Final Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference into the Final Prospectus, (iii) of the receipt of
any comments from the Commission with respect to the Registration Statement, the
Final Prospectus or any prospectus supplement related thereto, (iv) of any
request by the Commission for any amendment to the Registration
10
Statement or any amendment or supplement to the Final Prospectus or for
additional information relating to the offering of the Securities, and (v) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof as soon as practicable.
F. The Company will deliver to the Representatives a conformed
copy of the Registration Statement, any documents incorporated by reference
therein and each amendment thereto for each of the Underwriters. So long as
delivery of a prospectus by an Underwriter or dealer may be required by the 1933
Act, the Company will deliver to the Representatives as many copies of any
Preliminary Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request.
G. The Company will arrange for the qualification of the
Securities for offering and sale under the laws of such jurisdictions as the
Representatives, after consultation with the Company, may collectively designate
and will maintain such qualifications in effect so long as required for the
distribution of the Securities.
H. The Company, during the period when the Final Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act.
I. Between the date of any Terms Agreement and the Closing Time
the Company will not, without the prior consent of the Representatives, offer or
sell, or enter into any agreement to sell, any debt securities of the Company
with a maturity of more than one year, including additional Securities.
4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Securities pursuant to any Terms Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained as of the Execution Time and Closing Time, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of all of its covenants and other obligations hereunder and to the following
further conditions:
A. If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i) 6:00
p.m. New York City time, on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 p.m. New York City
time on such date or (ii) 12:00 Noon on the business day following the day on
which the public offering price was determined, if such determination occurred
after 3:00 p.m. New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the
Final Prospectus, and any such supplement, shall have been filed in the manner
and within the time period required by Rule 424(b). The Company will (i) prepare
the Rule 462(b) Registration Statement, if necessary, in a form approved by the
Underwriters and file such Rule 462(b) Registration Statement with the
Commission in
11
compliance with Rule 462(b) under the 1933 Act by 10:00 a.m. New York City time
on the business day immediately following the date of determination of the
public offering price of the Securities and, at the time of filing, either pay
to the Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the 1933 Act.
B. At the applicable Closing Time (i) no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings thereof or initiated or threatened by the Commission,
(ii) there shall not have been since the execution of such Terms Agreement any
decrease in the ratings of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purpose
of Rule 436(g) under the 0000 Xxx) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change and (iii) there
shall not have come to the attention of the Representatives any facts that would
cause them reasonably to believe that the Final Prospectus, at the time it was
required to be delivered to a purchaser of the Securities, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
C. At the applicable Closing Time you shall have received:
1. The favorable opinion, dated as of the Closing Time, of
Shearman & Sterling LLP, counsel of the Company, substantially in the form set
forth in Exhibit C.
2. The favorable opinion, dated as of the Closing Time, of
Xxxxxxxx X. Xxxxx, Assistant General Counsel of the Company, substantially in
the form set forth in Exhibit D.
3. The favorable opinion or opinions, dated as of the
applicable Closing Time, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement, the Final Prospectus and other related
matters as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
D. At the applicable Closing Time there shall not have been,
since the date of the applicable Terms Agreement or since the date as of which
information is given in the Final Prospectus, any material adverse change in the
condition (financial or otherwise), earnings, results of operations, business or
properties of the Company and its subsidiaries considered as one enterprise,
whether or not arising from transactions in the ordinary course of business,
except as set forth or contemplated in the Final Prospectus (exclusive of any
supplement thereto), and the Company shall have furnished to the Representatives
a certificate of the Company, signed by the Chairman of the Board, the Chief
Executive Officer, the President, the principal financial officer or the
principal accounting officer of the Company, dated as of such Closing Time, to
the effect that:
12
1. the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as of the
Closing Time with the same effect as if made on the Closing Time and the Company
has complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Time;
2. no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened; and
3. since the date of the most recent financial statements
or financial data included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, results of operations, business
or properties of the Company and its subsidiaries, considered as one enterprise,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
You shall have received from Ernst & Young LLP or other independent
certified public accountants acceptable to the Representatives a letter or
letters, dated the date of the applicable Terms Agreement and as of the
applicable Closing Time, in form and substance satisfactory to the
Representatives, containing statements and information of the type customarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certified financial information contained or
incorporated by reference in the Final Prospectus; provided that such letters
shall use a "cut-off" date no more than three business days prior to the
respective dates of such letters.
E. At the applicable Closing Time counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be in all material respects
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 5.
5. Payment of Expenses. The Company will pay all reasonable and
necessary expenses incident to the performance of its obligations under this
Agreement and each Terms Agreement, including (a) the preparing, printing or
other production and filing of the Registration Statement (as originally filed)
and all amendments thereto, (b) the preparation, issuance and delivery of the
Securities to the Underwriters, (c) the reasonable fees and disbursements of the
Company's counsel and accountants and of the Trustee and its counsel, (d)
13
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(g), including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky Survey and Legal Investment
Survey, (e) the printing or other production and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Preliminary Prospectus and the
Final Prospectus and any amendments or supplements thereto, (f) the production
and delivery to the Underwriters of copies of the Indenture and any Blue Sky
Survey and Legal Investment Survey, reasonably requested by the Representatives,
(g) the fees of rating agencies, (h) the fees and expenses, if any, incurred in
connection with the listing of the Securities on any securities exchange, and
(i) the fees, if any, of the National Association of Securities Dealers, Inc. in
connection with the review of the offering and including the reasonable fees and
expenses of counsel for the Underwriters in connection therewith.
If a Terms Agreement is terminated by the Representatives in accordance
with the provisions of Section 4 or Sections 9(i) and 9(iv), or if the sale of
any Securities provided for herein or in any Terms Agreement is not consummated
because any condition to the obligations of the Underwriters set forth herein is
not satisfied by the Company or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any
provision hereof, the Company shall reimburse the Underwriters named in such
Terms Agreement for all of their reasonable out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters, that
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
6. Indemnification.
A. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to reasonable attorneys' fees and any and
all expenses reasonably and necessarily incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the 1933 Act, the 1934 Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities, as originally filed or any amendment thereof, or any related
Preliminary Prospectus or the Final Prospectus, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company will not be liable in any such case to the extent, but only to the
extent, that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives expressly for use therein; it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in the Terms Agreement and provided further that
with respect to any such untrue statement in or omission from the
14
Preliminary Prospectus, the indemnity agreement contained in this paragraph (A)
shall not inure to the benefit of any Underwriter to the extent that the sale to
the person asserting any such loss, claim, damage or liability was an initial
resale by the Underwriter and any such loss, claim, damage or liability of or
with respect to the Underwriter results from the fact that both (i) a copy of
the Final Prospectus (excluding any documents incorporated by reference therein)
was not sent or given to such person at or prior to the written confirmation of
the sale of such Securities to such person and (ii) the untrue statement in or
omission from such Preliminary Prospectus was corrected in the Final Prospectus
unless, in either case, such failure to deliver the Final Prospectus was a
result of non-compliance by the Company with the provisions of Section 4 hereof.
This indemnity will be in addition to any liability which the Company may
otherwise have, including under this Agreement.
B. Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to reasonable attorneys' fees and any and all
expenses reasonably and necessarily incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation) to which they or any of them may become subject under the 1933 Act,
the 1934 Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Securities, as originally
filed or any amendment thereof, or any related Preliminary Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Underwriter through
the Representatives expressly for use therein; it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in the Terms Agreement. This indemnity will be in
addition to any liability which any Underwriter may otherwise have, including
under this Agreement.
C. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 6). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its
15
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel reasonably satisfactory to
the indemnified parties to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld. No
indemnifying party shall, without the written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnification
could have been sought hereunder by such indemnified party, unless such
settlement (x) includes an unconditional release of such indemnified party, in
form and substance reasonably satisfactory to such indemnified party, from all
liability on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
D. If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6A effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
7. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 is for any
reason held to be unavailable from any indemnifying party or is insufficient to
hold harmless a party indemnified thereunder, then the indemnifying parties
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contributions, including persons who control the Company within the meaning
of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, officers of the
Company who signed the Registration Statement and directors of the Company) as
incurred to which the Company and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the Securities
or, if such allocation is not permitted by applicable law or indemnification is
not available as a result of the indemnifying party not having received notice
16
as provided in Section 6 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company and the Underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Underwriters shall be deemed to be in the same proportion
as (x) the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Final Prospectus. The relative fault of the Company and of the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this Section
7, in no case shall any Underwriter be liable or responsible for any amount in
excess of the underwriting discount applicable to the securities purchased by
such Underwriter hereunder. Notwithstanding the provisions of this Section 7 and
the preceding sentence, (i) no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this Section 7. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties,
notify each party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 7 or otherwise. The obligation of the Underwriters to
contribute pursuant to this Section 7 shall be several in proportion to their
respective underwriting obligations and not joint.
8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties, indemnities and agreements contained
in this Agreement or any Term Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect regardless of any termination of the applicable Terms
Agreement (including this Agreement as incorporated by reference therein), or
any investigation made by or on
17
behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of, and payment for, any Securities to the
Underwriters.
9. Termination. The Representatives may terminate the applicable
Terms Agreement (including this Agreement, as incorporated by reference
therein), immediately upon notice to the Company, at any time at or prior to the
applicable Closing Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the
Final Prospectus, any material adverse change in the condition, (financial or
otherwise), earnings, results of operations, business or properties of the
Company and its subsidiaries considered as one enterprise, whether or not from
transactions arising in the ordinary course of business, or (ii) if there has
occurred any outbreak or escalation of hostilities or other calamity or crisis
or change in general domestic or international economic, political or financial
conditions either within or outside of the United States the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities, or
(iii) if trading in any Securities of the Company has been suspended by the
Commission or any securities exchange or in the over-the-counter market, or if
trading generally on the American Stock Exchange, the New York Stock Exchange or
in the over-the-counter market has been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either Federal or New York authorities or (iv) there shall have been since the
execution of such Terms Agreement any decrease in the ratings of any of the
Company's debt securities by any "nationally recognized statistical rating
organization" (as defined for purpose of Rule 436(g) under the 0000 Xxx) or any
notice given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of the
possible change.
10. Default. If one or more of the Underwriters shall fail at the
applicable Closing Time to purchase the Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, during such 24 hours you shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then:
A. if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations under the applicable Terms Agreement
(including this Agreement as incorporated by reference therein) bear to the
underwriting obligations of all such non-defaulting Underwriters, unless
otherwise agreed, or
B. if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be purchased
pursuant to such Terms Agreement, such Terms Agreement (including this Agreement
as incorporated by reference
18
therein) shall terminate, without any liability on the part of any
non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
the applicable Terms Agreement or this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section which does not result in termination of the applicable Terms
Agreement, either the Representatives or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order that any required changes in the Registration Statement or the Final
Prospectus or in any other documents or arrangements may be effected.
11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you as provided in the applicable Terms
Agreement. Notices to the Company shall be directed to it at Boston Scientific
Corporation, Xxx Xxxxxx Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000,
attention of the Chief Financial Officer with a copy to the General Counsel.
12. Parties. The applicable Terms Agreement and this Agreement
shall inure to the benefit of and be binding upon the Underwriters and the
Company, and their respective successors and the officers and directors and any
controlling persons referred to in Section 6 hereof. Nothing expressed or
mentioned in the applicable Terms Agreement or this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto or thereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of the applicable Terms Agreement or this Agreement or any
provision therein or herein contained. The applicable Terms Agreement and this
Agreement and all conditions and provisions thereof and hereof are intended to
be for the sole and exclusive benefit of the parties and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
13. Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by the Representatives on behalf of the
Underwriters, and any such action taken by the Representatives shall be binding
upon the Underwriters.
14. Governing Law. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
15. Amendments or Waivers. No amendment or waiver of any provision
of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
19
16. Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
20
Very truly yours,
BOSTON SCIENTIFIC CORPORATION
By /s/ Xxxxxxxx X. Best
---------------------------------------------
Name: Xxxxxxxx X. Best
Title: Senior Vice President - Finance
and Administration and Chief Financial
Officer
21
SCHEDULE I
MATERIAL SUBSIDIARIES
SCIMED Life Systems, Inc.
Boston Scientific Japan K.K.
Boston Scientific International B.V.
Xxxxxxxxx (Europe) GmbH
Boston Scientific Limited
EXHIBIT A
BOSTON SCIENTIFIC CORPORATION
Debt Securities
FORM OF TERMS AGREEMENT
Dated:_________, _____
To: Boston Scientific Corporation
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Dear Sirs:
We understand that Boston Scientific Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell its Debt Securities
having an aggregate initial public offering price or purchase price of $____ (as
described in more detail below, the "Securities"). Subject to the terms and
conditions set forth herein or incorporated by reference herein, the
underwriter(s) named below (the "Underwriter(s)") hereby offer(s) to purchase
such Securities.
The Securities to be purchased by the Underwriter(s), which are to
be issued under an Indenture dated as of ________ between the Company and
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee, as
supplemented from time to time by supplemental indentures and/or modified from
time to time by resolutions of the Board of Directors of the Company as provided
in Section 301 of such Indenture, shall have the following terms:
Principal Amount:
Date of maturity:
Interest rate:
Interest payment dates:
Public offering price:
Purchase price:
Redemption provisions:
Form of Securities:
Delayed Delivery Contracts:
Underwriting Discount: %
Closing date and location:
Representatives:
All of the provisions contained in the document entitled "Boston
Scientific Corporation Debt Securities, Underwriting Agreement-Basic
Provisions," dated as of ____________ __, 2004, a copy of which is attached
hereto as Annex A, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein. Terms defined in such document are
used herein as therein defined. Each Underwriter severally agrees, subject to
the terms and provisions of this Terms Agreement, including the terms and
provisions incorporated by reference herein, to purchase the principal amount of
Securities set forth opposite its name.
Name Principal Amount
----------------
Total ================
Any notice by the Company to the Underwriter(s) pursuant to this
Terms Agreement shall be in writing and shall be deemed to have been duly given
if mailed or transmitted by any standard form of telecommunication addressed to:
___________________________.
The Company acknowledges that the statements set forth in the last
paragraph of the cover page and in the ________________ paragraph[s] under the
caption "Underwriting" in the Final Prospectus constitute the only information
furnished in writing by or on behalf of any Underwriter expressly for use in the
Registration Statement relating to the Securities as originally filed or in any
amendment thereof, any related Preliminary Prospectus or the Final Prospectus or
in any amendment thereof or supplement thereto, as the case may be.
Please accept this offer by signing a copy of this Terms Agreement
in the space set forth below and returning the signed copy to us.
Acting on behalf of themselves and as
the Representatives of the several Underwriters
By________________________________
2
Accepted:
BOSTON SCIENTIFIC CORPORATION
By________________________________
3
EXHIBIT B
BOSTON SCIENTIFIC CORPORATION
Debt Securities
DELAYED DELIVERY CONTRACT
____________ ____, ________
Boston Scientific Corporation
c/o [Name and address of Representatives]
Attention:
Dear Sirs:
The undersigned hereby agree to purchase from Boston Scientific
Corporation (the "Company"), and the Company agrees to sell to the undersigned
on __________ __, ____ (the "Delivery Date"), principal amount of the Company's
Debt Securities due ___________ __, ____ (the "Securities"), offered by the
Company's Basic Prospectus dated ____, as supplemented by its Final Prospectus
dated ___________ __, ____, receipt of which is hereby acknowledged, at a
purchase price of ____% of the principal amount thereof, plus accrued interest
from ____, to the Delivery Date, and on the further terms and conditions set
forth in the contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or by wire transfer
in same day funds, on the Delivery Date, upon delivery to the undersigned at the
office of [name and address of Representatives], of the Securities to be
purchased by the undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject and (2) the Company, on or before
___________ __, ____, shall have sold to the Underwriters of the Securities (the
"Underwriters") such principal amount of the Securities as is to be sold to them
pursuant to the Terms Agreement dated ___________ __, ____ between the Company
and the Underwriters. The obligation of the undersigned to take delivery of and
make payment for Securities shall not be affected by the failure of any
purchaser to take delivery of and make payment for Securities pursuant to other
contracts similar to this contract. The undersigned represents and warrants to
you that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Securities has
been taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
[Name of Purchaser]
By___________________________
Accepted:
Boston Scientific Corporation
By______________________
2
EXHIBIT C
FORM OF OPINION OF SHEARMAN & STERLING LLP
(i) the statements in the Basic Prospectus under the caption
"Description of the Debt Securities" and the statements in the Final Prospectus
under the caption "Description of the Notes", insofar as such statements
constitute summaries of documents referred to therein, fairly summarize in all
material respects the documents referred to therein;
(ii) assuming that the Indenture has been duly authorized, executed and
delivered by the Company and the Trustee, the Indenture is a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including without limitation all laws relating to
fraudulent transfers), and except as enforcement thereof is subject to the
effect of general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
enforcement is considered in a proceeding in equity or in law);
(iii) assuming that the Notes have been duly authorized and executed by
the Company, when authenticated by the Trustee in accordance with the Indenture
and delivered and paid for as provided by the Underwriting Agreement, the Notes
will be the legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally (including without limitation
all laws relating to fraudulent transfers), and except as enforcement thereof is
subject to the effect of general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether enforcement is considered in a proceeding in equity or in
law);
(iv) the Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended;
(v) to the best knowledge of such counsel, no authorization, approval or
other action by, and no notice to or filing with, any United States federal or
New York governmental authority or regulatory body is required for the
consummation of the transactions contemplated by the Underwriting Agreement,
except as have been obtained and are in full force and effect under the
Securities Act or as may be required under the securities or blue sky laws of
any jurisdiction in the United States in connection with the offer and sale of
the Notes;
(vi) the execution and delivery of the Underwriting Agreement, the
Indenture or the Notes do not, and the performance by the Company of its
obligations thereunder will not, result in a violation of any Generally
Applicable Law ; and
(vii) the Company is not required to register as an investment company
under the Investment Company Act of 1940, as amended.
3
In addition, such opinion shall also contain a statement that such counsel
has participated in discussions concerning preparation of the Registration
Statement and the Final Prospectus with certain officers and employees of the
Company, with its auditors and with your representatives and counsel. In such
counsel's opinion, each of the Registration Statement and the Final Prospectus
(other than the financial statements and other financial or statistical data
contained therein or omitted therefrom and the Trustee's Statement of
Eligibility on Form T-1, as to which it shall express no opinion) appears on its
face to be appropriately responsive in all material respects to the requirements
of the Securities Act and the applicable rules and regulations of the Commission
thereunder.
Such counsel shall also state that, subject to the limitations set forth
therein, on the basis of the information it gained in the course of performing
the services referred to therein, no facts came to its attention which gave it
reason to believe that (i) the Registration Statement (other than the financial
statements and other financial or statistical data contained therein or omitted
therefrom and the Trustee's Statement of Eligibility on Form T-1, as to which it
has not been requested to comment), as of the date on which the Report on Form
10-K of the Company for the year ended December 31, 2003 was filed or the date
of the Final Prospectus, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) the Final Prospectus (other
than the financial statements and other financial or statistical data contained
therein or omitted therefrom, as to which we have not been requested to
comment), as of the date of the Final Prospectus or the date hereof, contained
or contains an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
4
EXHIBIT D
FORM OF OPINION OF XXXXXXXX X. XXXXX
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware;
(ii) the Company has corporate power and authority to own its properties
and to conduct its business as now being conducted and as described in the Final
Prospectus;
(iii) the Company is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not have a Material Adverse Effect;
(iv) each Material Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own its properties and
conduct its business as now being conducted and as described in the Final
Prospectus, and is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not have a Material Adverse Effect;
(v) except as otherwise described in the Registration Statement or the
Final Prospectus, all of the issued and outstanding capital stock of the Company
and each Material Subsidiary has been duly authorized and validly issued, are
fully paid and non-assessable and, to the best of my knowledge, all of the
issued and outstanding capital stock of each Material Subsidiary are owned by
the Company (except for directors' qualifying shares and shares held by
individuals for the purpose of satisfying the legal requirements of the
jurisdiction of incorporation), directly or through subsidiaries, free and clear
of any security interests, claims, liens or encumbrances;
(vi) neither the execution and delivery of the Indenture, the issue and
sale of the Notes, nor the consummation of any other of the transactions
contemplated in the Underwriting Agreement nor the fulfillment of the terms of
the Underwriting Agreement will conflict with, result in a breach of, violate or
constitute a default under, the charter or by-laws of the Company or the terms
of any indenture or other material agreement or instrument known to me and to
which the Company or any of the Company's subsidiaries is a party or may be
bound (except for such conflicts, breaches, violations or defaults that would
not have a Material Adverse Effect), or any material judgment, decree, order
statute, rule or regulation known to me to be applicable to the Company or any
of the Company's subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the Company or
any of the Company's subsidiaries (except for such conflicts, breaches,
violations or defaults that would not have a Material Adverse Effect);
(vii) to my knowledge (A) there are no pending or threatened legal or
governmental proceedings required to be described in the Final Prospectus which
are not
5
described as required and (B) there is no franchise, contract or other document
of a character required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not described or filed as
required; and to my knowledge, the statements included or incorporated in the
Final Prospectus describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such matters in all material
respects;
(viii) the descriptions in the Registration Statement and the Final
Prospectus of statutes, contracts and other documents are accurate and fairly
present the information required to be shown in all material respects;
(ix) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(x) the Indenture has been duly authorized, executed and delivered by
the Company; and
(xi) the Notes have been duly authorized and executed by the Company.
As Assistant General Counsel, I have reviewed, and lawyers under my
supervision have participated in the preparation of, the Registration Statement
and the Final Prospectus, and I and lawyers under my supervision have
participated in the preparation of, the documents incorporated by reference
therein. In examining the Registration Statement and the Final Prospectus, I
have necessarily assumed the correctness and completeness of the statements made
or included therein by the Company. However, in the course of performing my
duties as Assistant General Counsel of the Company, I and lawyers under my
supervision have participated in conferences with officers and representatives
of and accountants for the Company with respect to the matters contained in the
Registration Statement and the Final Prospectus, and no facts have come to my
attention which would lead me to believe that either (i) the Registration
Statement (except for the financial statements and schedules and other financial
or statistical data included or incorporated by reference therein and the
Statement of Eligibility of the Trustee on Form T-1, as to which I express no
opinion), at the time it became effective, or any amendment thereof made prior
to the date hereof as of the date of such amendment, contained an untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
(ii) the Final Prospectus (except for the financial statements and schedules and
other financial or statistical data included or incorporated by reference
therein, as to which I express no opinion), as of its date and as of the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
6
