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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) October 29, 1996
1-5482
(Commission File Number)
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TYCO INTERNATIONAL LTD.
(Exact name of registrant as specified in its charter)
Massachusetts 04-2297459
(State of Incorporation) (IRS Employer
Identification Number)
One Tyco Park, Exeter, New Hampshire 03833
(Address of registrant's principal executive office)
603-778-9700
(Registrant's telephone number)
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<PAGE>
ITEM 5. Other Events
Under the terms and subject to the conditions contained in an
Underwriting Agreement (the "Underwriting Agreement"), dated October 29, 1996,
Tyco International Ltd. (the "Company") has agreed to sell to J.P. Morgan
Securities Inc. $300,000,000 of 6.5% Notes due 2001 (the "Notes"). The Notes
will be offered for purchase pursuant to a Supplement to the Company's
Prospectus dated March 20, 1996.
The foregoing description is qualified in its entirety by reference
to the full text of the Underwriting Agreement which is appended hereto as
Exhibit 1 and is incorporated herein by reference.
The Form of Note to be used in connection with the sale of the Notes
is attached hereto as Exhibit 4.
The consent of Coopers & Lybrand L.L.P. to the incorporation by
reference in the Company's registration statement on Form S-3 relating to the
Notes (File no. 333-1063) of certain reports is attached hereto as Exhibit 23.
ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits.
Exhibit Number Title
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1 Underwriting Agreement, dated October 29, 1996,
between Tyco International Ltd. and J.P. Morgan
Securities Inc.
4 Form of Note
23 Consent of Coopers & Lybrand L.L.P.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
Mark H. Swartz
Vice President - Chief Financial Officer
Date: October 29, 1996
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Exhibit Index
Exhibit Number Title Page
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1 Underwriting Agreement, dated October 29,
1996, between Tyco International Ltd. and J.P.
Morgan Securities Inc.
4 Form of Note
23 Consent of Coopers & Lybrand L.L.P.
TYCO INTERNATIONAL LTD.
Debt Securities
Underwriting Agreement
October 29, 1996
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs and Mesdames:
Tyco International Ltd., a Massachusetts corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule II
hereto (the "Under writers"), 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") between the Company and the Trustee
identified in such Schedule (the "Trustee"). 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 has 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 "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed with, or proposes
to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. 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 is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement
<PAGE>
specifically relating to the Securities in the form first used to confirm sales
of the Securities is hereinafter referred to as the "Prospectus". 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 under the Exchange Act to the extent that it is superseded in whole
or in part by any document subsequently filed by the Company pursuant to the
Securities Act or the Exchange Act.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities 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.
2. The Company understands that the several Underwriters intend (i)
to make a public offering of their respective portions of the Securities and
(ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order by wire transfer of immediately available funds 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
thereafter, as the Representatives and the Company may agree in writing). Such
payment will be made upon delivery to, or to the Representatives for the
respective accounts of, such Underwriters of the Securities registered in such
names and in such denominations as the Representatives shall request not less
than two full Business Days prior to the date of delivery, with any transfer
taxes payable in connection with transfer to the Underwriters duly paid by the
Company. As used herein, the term "Business Day" means any day other than a day
on which banks are
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permitted or required to be closed in New York City. The time and date of such
payment and delivery with respect to the Securities are referred to herein as
the Closing Date. The certificates for the Securities will be made available for
inspection and packaging by the Representatives by 1:00 P.M. on the Business Day
prior to the Closing Date at such place in New York City as the Representatives
and the Company shall agree.
4. The Company represents and warrants to each Underwriter that:
(a) 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, threatened by the Commission; and the Registration Statement
and Prospectus (as amended or supplemented if the Company 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 did not and will not, as of the applicable effective date and the date
the Company's Annual Report on Form 10-K for its fiscal year ended June
30, 1996 was filed with the Commission 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; except 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 in
writing by such Underwriter through the Representatives expressly for use
therein;
(b) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, and none of such documents contained
an untrue statement of a material fact or omitted to state a material fact
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, when
such documents are filed with the
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Commission will conform in all material respects to the requirements of
the Exchange Act, as applicable, and will not contain an 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;
(c) the financial statements, and the related notes thereto,
incorporated by reference in the Registration Statement and the Prospectus
present fairly, in all material respects, the consolidated financial
position of the Company 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 generally accepted
accounting principles applied on a consistent basis, except as otherwise
disclosed therein, and the supporting schedules incorporated by reference
in the Registration Statement present fairly the information required to
be stated therein and the pro forma financial information, and the related
notes thereto, if any, included or incorporated by reference in the
Registration Statement and the Prospectus have been prepared in accordance
with the applicable requirements of the Securities Act and the Exchange
Act in all material respects;
(d) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development as a result of which a
material adverse change is reasonably likely to occur, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and except as set forth or contemplated in
the Prospectus neither the Company nor any of its subsidiaries has entered
into any transaction or agreement (whether or not in the ordinary course
of business) material to the Company and its subsidiaries taken as a
whole;
(e) the Company is a corporation validly organized and existing and
in good standing under the laws of the Commonwealth of Massachusetts, 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;
(f) each of the Company's subsidiaries listed on Schedule III hereto
(the "Subsidiaries") is a corporation validly organized and existing as a
corporation under the laws of its jurisdiction of incorporation, with
power and authority
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(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 on the Company and its subsidiaries taken as a whole; and all the
outstanding shares of capital stock of 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 foreign subsidiaries, for directors' qualifying shares) are owned by
the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and delivered
by the Company and constitutes the valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, moratorium and other similar laws affecting enforceability of
creditors' rights generally and general principles of equity and except as
rights to indemnity and contribution hereunder may be limited by
applicable law;
(h) the Securities have been duly authorized and when duly
authenticated by the Trustee pursuant to the Indenture and issued and
delivered pursuant to this Agreement, will have been duly executed, issued
and delivered and will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, moratorium and other similar laws affecting enforceability of
creditors' rights generally and general principles of equity and 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 enforceable against the Company in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, moratorium and other similar laws
affecting enforceability of creditors' rights generally and general
principles of equity; 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;
(i) neither the Company nor any of its Subsidiaries is, or, based
upon presently existing circumstances, with the giving of notice or lapse
of time or both would be, in violation of or in default under, its
restated articles of organization, certificate of incorporation or other
similar charter document or by-laws or any indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by
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which it or any of them or any of their respective properties is bound,
except for violations and defaults which individually and in the aggregate
are not material to the Company and its subsidiaries taken as a whole or
to the holders of the Securities; the issue and sale of the Securities and
the performance by the Company of all of the provisions of its obligations
under the Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound or to which any of the property or assets
of the Company or any of its Subsidiaries is subject, nor will any such
action result in any violation of the provisions of the Restated Articles
of Organization or the By-Laws of the Company or any applicable law or
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, 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 to be obtained by the
Company in connection with the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, 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 by the Underwriters; and
(j) other than as disclosed in or contemplated by the Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
Subsidiaries is or may be a party or to which any property or assets of
the Company or any of its Subsidiaries is or may be the subject which, if
determined adversely to the Company or such Subsidiaries, could
individually or in the aggregate reasonably be expected to have a material
adverse effect on the business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole and, to the best of the Company's knowledge,
no such proceedings are pending or threatened against the Company 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, indentures, mortgages, loan agreements, notes, leases or
other documents to which the Company or any Subsidiary is a party or by
which any of them may be bound or to which any property or assets of the
Company 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 other than those
so filed or described as required.
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5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus in a form approved by the Representatives
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;
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, 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 (f) below, to each
of the Underwriters as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by
reference therein as the Representatives may reasonably request;
(c) during the period mentioned in paragraph (f) below, before
filing any amendment or supplement to the Registration Statement or
Prospectus, to furnish to the Representatives a copy of any proposed
amendment or supplement to the Registration Statement or the Prospectus,
for review, and not to file any such proposed amendment or supplement to
which the Representatives reasonably and timely object;
(d) to file promptly, subject to the provisions of paragraph (c)
above, all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the period
mentioned in paragraph (f) below;
(e) during the period mentioned in paragraph (f) below, to advise
the Representatives 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 effective ness of the Registration Statement
or the initiation or threatening of any proceeding for that purpose known
to the Company, and (iv) of the receipt by the Company of any notification
with respect to any suspension of the qualification of the Securities for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its 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;
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(f) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to
be delivered in connection with sales of the Securities 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, to the Underwriters and to the
dealers (whose names and addresses the Representatives will furnish to the
Company) to which Securities may have been sold by the Representatives 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;
(g) to endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution of
the Securities; provided that the Company shall not be required to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified or file a general consent to service of process in any
jurisdiction;
(h) to make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter
of the Company occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder;
(i) so long as the Securities are outstanding, to furnish to the
Representatives copies of all reports or other communications (financial
or other) furnished to holders of Securities, and copies of any reports
and financial statements furnished to or filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(j) 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 which are substantially similar to the
Securities without prior written consent of the Representatives; and
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(k) to pay 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,
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 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 on any stock
exchange, (v) related to any filing with the National Association of
Securities Dealers, Inc., (vi) in connection with the printing (including
out-of-pocket 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
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 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 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 shall have complied with all
agreements and all conditions on its 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 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 the
reasonable satisfaction of the Representatives;
(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 intended or potential
downgrading or (ii) any review or possible change that does not indicate
an improvement, in the rating
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accorded any securities of or guaranteed by the Company 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 adverse change, or
any development as a result of which a material adverse change is
reasonably likely to occur, in or affecting the business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
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 on the terms and in the manner contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of the Company satisfactory to
the Representatives 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 change, or any development as a result of which a
material adverse change is reasonably likely to occur, in or affecting the
business, prospects, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole from that set forth or contemplated in the Registration Statement.
(f) M. Brian Moroze, General Counsel for the Company, shall have
furnished to the Representatives a written opinion, dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that:
(i) the Company is a corporation validly organized and
existing as a corporation in good standing under the laws of the
Commonwealth of Massachusetts.
(ii) the Company has the requisite power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Prospectus as then amended
or supplemented;
(iii) the Company is duly qualified as a foreign corporation
to transact business and is in good standing under the laws of each
other jurisdiction in which such qualification is required except
where the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
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(iv) each of the Company's Subsidiaries is a corporation
validly organized and existing under the laws of its jurisdiction of
incorporation, has the requisite 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 such
qualification is required except where the failure to be so
qualified and be in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; and all
of the issued shares of capital stock of each Subsidiary have been
duly authorized and validly issued, are fully paid and
non-assessable, and (except for non-material liens that have arisen
in the ordinary course of business) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities
or claims;
(v) other than as disclosed in or contemplated by the
Prospectus, there are no legal or governmental proceedings pending
or, to the best of such counsel's knowledge, threatened to which the
Company or any of its Subsidiaries is or may be a party or to which
any property of the Company or its Subsidiaries is or may be the
subject which, if determined adversely to the Company or such
Subsidiaries, could individually or in the aggregate reasonably be
expected to have a material adverse effect on the business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole;
(vi) to the best of such counsel's knowledge, no legal or
governmental proceedings are pending or threatened against the
Company or any of its Subsidiaries which are required to be
disclosed in the Registration Statement or the Prospectus; other
than those disclosed therein;
(vii) to the best of such counsel's knowledge there are no
contracts, indentures, mortgages, loan agreements, notes, leases or
other documents to which the Company or any Subsidiary is a party or
by which any of them may be bound 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; other than those so
filed or described as required;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy,
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insolvency, moratorium and other similar laws affecting
enforceability of creditors' rights generally and general principles
of equity and except as rights to indemnity and contribution
hereunder may be limited by applicable law;
(ix) the Securities have been duly authorized and executed by
the Company and, when duly authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will
constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium and other similar laws affecting enforceability of
creditors' rights generally and general principles of equity and
entitled to the benefits provided by the Indenture;
(x) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
instrument of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, moratorium and other similar
laws affecting enforceability of creditors' rights generally and
general principles of equity; and the Indenture has been duly
qualified under the Trust Indenture Act;
(xi) neither the Company nor any of its Subsidiaries is, or,
based upon presently existing circumstances with the giving of
notice or lapse of time or both would be, in violation of or in
default under, their respective restated articles of organization,
certificate of incorporation or other similar charter document or
by-laws or any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument known to
such counsel to which the Company or any of its Subsidiaries is a
party or by which it or any of them or any of their respective
properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company
and its subsidiaries taken as a whole or to the holders of the
Securities;
(xii) the execution and delivery of this Agreement and the
Indenture and the consummation of the transaction contemplated
thereby, including the issue and sale of the Securities and the
performance by the Company of its obligations under the Securities,
the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default under, any contract, indenture, mortgage, deed
of trust, loan agreement, note, lease or other material
12
<PAGE>
agreement or instrument known to such counsel to which the Company
or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Subsidiaries is subject, nor
will any such action result in any violation of the provisions of
the Restated Articles of Organization or the By-Laws of the Company
or any applicable law or administrative regulation (other than state
securities or Blue Sky laws or regulations, as to which counsel need
express no opinion) or administrative or court decrees entered
against or applicable to the Company or any Subsidiary. In rendering
the opinion expressed in this paragraph (xii), as to violations of
any applicable law or administrative regulation such counsel may
assume that none of the Registration Statement, the Prospectus, or
any preliminary prospectus contains any untrue statement of a
material fact or omits to state a material fact required to be
stated therein (in the case of the Prospectus or a preliminary
prospectus, in light of the circumstances under which they were
made) not misleading;
(xiii) no consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is legally required to be obtained by the Company in
connection with the issue and sale of the Securities or the
consummation of the other transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, orders, registrations or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act and as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by
the Underwriters;
(xiv) (A) the descriptions of documents contained in the
Prospectus under "Description of the Notes", "Description of Debt
Securities", "Plan of Distribution" and "Underwriting" conform in
all material respects to the terms of the applicable documents and
(B) the statements in the Prospectus under "Legal Proceedings"
incorporated by reference from Item 3 of Part I of the Company's
Annual Report on Form 10-K for the year ended June 30, 1996 and in
the Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present in all material respects the
information called for with respect to such legal matters, documents
or proceedings; and
(xv) (A) the Registration Statement and any amendment thereto
and the Prospectus and any supplement thereto comply as to form in
all material respects with the requirements of the Securities Act
and the Trust Indenture Act; and (B) each document incorporated by
reference in the
13
<PAGE>
Registration Statement and the Prospectus, when filed with the
Commission under the Exchange Act, complied as to form in all
material respects with the requirements of the Exchange Act (except
that such counsel need express no opinion as to financial
statements, the notes thereto and related schedules and other
financial, numerical, statistical or accounting data included in or
omitted from any of the documents referred to in this paragraph (xv)
or as to Form T-1).
Such counsel shall also state that, although such counsel has
not undertaken to determine independently the accuracy and
completeness of the statements contained in the Registration
Statement, the Prospectus or any supplements or amendments thereto,
such counsel has obtained information as a result of discussions and
meetings with officers and other representatives of the Company and
its subsidiaries and discussions with representatives of the
independent public accountants of the Company, in connection with
the preparation of the Registration Statement and the Prospectus and
the examination of other information and documents requested by such
counsel. Although such counsel has not undertaken to determine
independently, and, therefore, such counsel does not assume
responsibility, explicitly or implicitly, for the accuracy or
completeness of the statements contained in the Registration
Statement or the Prospectus or any amendments or supplements
thereto, and such counsel cannot provide assurance that its
procedures described in this sentence would necessarily reveal
matters of significance with respect to the following comments,
during the course of the above-described procedures, nothing has
come to such counsel's attention that has caused such counsel to
believe that the Registration Statement or any amendment thereto
(including the documents incorporated by reference therein to the
extent not superseded), on the effective date thereof, on the date
the Company's Annual Report on Form 10-K for its fiscal year ended
June 30, 1996 was filed with the Commission or on the date of this
Agreement, 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 that the
Prospectus or any supplement thereto (including documents
incorporated therein by reference), on the date of this Agreement or
on the date of such opinion, contains an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
In rendering such opinions such counsel may state that such counsel
(A) has examined and relied upon (and, as applicable, assumed the
genuineness or the conformity to the originals of) originals, photocopies
and conformed copies of all
14
<PAGE>
such records of the Company and its subsidiaries, and all such agreements
and certificates of public officials, and such other documents as such
counsel has deemed relevant and necessary as a basis for the opinion of
such counsel; (B) as to various questions of fact material to such
counsel's opinion, has relied, without investigation or verification, upon
statements, representations and certificates of officers of the Company
and its Subsidiaries and certificates of public officials; (C) has assumed
that this Agreement and the Indenture have been duly executed and
delivered by each party other than the Company, and that this Agreement
and the Indenture constitute the legal, valid and binding agreements of
each such party, enforceable against each such party in accordance with
their respective terms; (D) has assumed, without independent check or
verification, that each other such party to this Agreement and the
Indenture, respectively, is organized and validly existing and in good
standing under the laws of the jurisdiction of its organization with the
corporate or other organizational power and authority to perform its
obligations thereunder; and (E) does not express an opinion concerning the
laws of any jurisdiction other than the laws of the Commonwealth of
Massachusetts and the State of New York and the Federal laws of the United
States of America.
(g) Kramer, Levin, Naftalis & Frankel, counsel for the Company,
shall have furnished to the Representatives their written opinion, dated
the Closing Date, in form and substance satisfactory to the
Representatives, to the effect set forth in (ix), (x), (xiv) (insofar as
it relates to the statements in the Prospectus under the captions
"Description of the Notes", "Description of Debt Securities",
"Underwriting" and "Plan of Distribution") and clause (A) of the first
paragraph of (xv) in (f) above. Such counsel shall also state that,
although such counsel has not undertaken to determine independently the
accuracy and completeness of the statements contained in the Registration
Statement, the Prospectus or any supplements or amendments thereto, such
counsel has obtained information as a result of discussions and meetings
with officers and other representatives of the Company and its
subsidiaries, and discussions with representatives of the independent
public accountants of the Company, in connection with the preparation of
the Registration Statement, the Prospectus and any amendments and
supplements thereto (it being understood, however, that such counsel has
not participated in the preparation of the documents incorporated by
reference therein), and the examination of other information and documents
deemed relevant by such counsel (including review and discussion of the
documents incorporated by reference therein). Such counsel shall further
state that, although such counsel has not undertaken to determine
independently, and, therefore, such counsel does not assume
responsibility, explicitly or implicitly, for the accuracy and
completeness of the statements contained in the Registration Statement,
the Prospectus or any supplements or amendments thereto, and such counsel
cannot provide assurance that its procedures described in the preceding
sentence would necessarily reveal matters of significance with respect to
the following comments,
15
<PAGE>
during the course of the above-described procedures, nothing has come to
such counsel's attention that has caused such counsel to believe that the
Registration Statement or any amendment thereto (including documents
incorporated therein by reference), on the effective date thereof, on the
date the Company's Annual Report on Form 10-K for its fiscal year ended
June 30, 1996 was filed with the Commission or on the date of this
Agreement, 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 that the Prospectus or any
supplement thereto (including documents incorporated therein by
reference), on the date of this Agreement or on the date of such opinion,
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(h) on the Closing Date, Coopers & Lybrand L.L.P. shall have
furnished to the Representatives a letter, dated such date, 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
certain financial information contained in the Registration Statement and
the Prospectus;
(i) the Representatives shall have received on and as of the Closing
Date an opinion of Davis Polk & Wardwell, counsel to the Underwriters,
with respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received (other than from the Underwriters) such papers and information as
they may reasonably request to enable them to pass upon such matters; and
(j) 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 agrees 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 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
16
<PAGE>
statements therein not misleading, or caused by any misrepresentation or breach
of warranty by the Company under Section 4 of this Agreement, 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
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, its directors, its officers who sign the Registration
Statement and each person who controls the Company 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 to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
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
17
<PAGE>
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,
its directors, its officers who sign the Registration Statement and such control
persons of the Company shall be designated in writing by the Company. In any
action or proceeding in which separate counsel is retained on behalf of an
Indemnified Person, the Indemnifying Person shall have the right to employ
separate counsel in, and to participate in the defense of, such action or
proceeding, provided that the fees and expenses of such counsel shall be at the
expense of the Indemnifying Person. 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 in writing an Indemnifying Person to reimburse the
Indemnified Person for the reasonable fees and expenses of counsel that have
actually been incurred 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 90 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 Party 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 Party 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 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 (other than by its terms) is unavailable to an
Indemnified Person 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 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
18
<PAGE>
Company on the one hand and the Underwriters on the other in connection with the
statements, omissions, misrepresentations or breaches that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Securities (i.e. net
of underwriting discounts and commissions but before deducting expenses)
received by the Company and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company 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 or the misrepresentation
or the breach relates to information supplied by the Company 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 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 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 I hereto, and not joint.
The indemnity and contribution agreements contained in this Section
7 are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement according to its terms, (ii) any investigation
made by or on behalf of any
19
<PAGE>
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its officers or directors or any other person controlling the Company
and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, 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 any of the New York Stock Exchange, the American Stock Exchange and
the Nasdaq National Market, (ii) trading of any securities of or guaranteed by
the Company 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-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter 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 the Representatives and the Company for the
purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Representatives 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
20
<PAGE>
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 to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees 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 Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, 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 the
Representatives on behalf of the Underwriters, and any such action taken by the
Representatives 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 shall be given to it at Tyco International
Ltd., One Tyco Park, Exeter, New Hampshire 03833; Attention: Barbara S. Miller,
Vice President, Treasurer.
21
<PAGE>
13. 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 LTD.
By _________________________
Barbara S. Miller
Vice President, Treasurer
Accepted: October 29, 1996
J.P. MORGAN SECURITIES INC.
By _________________________
T. Kelley Millet
Managing Director
22
<PAGE>
SCHEDULE I
Representatives: J.P. Morgan Securities Inc.
Underwriting Agreement dated: October 29, 1996
Registration Statement No.: 333-1063
Title of Securities: 6 1/2% Notes due 2001
Aggregate principal amount: $300,000,000
Purchase Price: 98.879% plus accrued interest, if any, from
November 1, 1996
Price to Public: 99.479% of the principal amount of the
Securities, plus accrued interest, if any, from
November 1, 1996 to the Closing Date
Indenture: Indenture dated as of April 30, 1992 between
the Company and First Trust of New York,
National Association (as successor to
BankAmerica National Trust Company) as Trustee,
as amended by the First Supplemental Indenture
dated as of April 30, 1992 and the Second
Supplemental Indenture dated as of March 8,
1993
Maturity: November 1, 2001
Interest Rate: 6 1/2% per annum, accruing from
November 1, 1996
Interest Payment Dates: May 1 and November 1, commencing May 1, 1997
Optional Redemption Provisions: None
Sinking Fund Provisions: None
Other Provisions: None
I-1
<PAGE>
Closing Date and
Time of Delivery: November 1, 1996
Closing Location: New York, New York
Address for Notices
to Underwriters: c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
I-2
<PAGE>
SCHEDULE II
Principal Amount
of Securities
Underwriter To Be Purchased
----------- ---------------
J.P. Morgan Securities Inc............................ $300,000,000
<PAGE>
SCHEDULE III
TYCO INTERNATIONAL LTD.
Allied Tube & Conduit Corporation
Atcor, Inc.
Grinnell Corporation
Kendall International, Inc.
Ludlow Corporation
Mueller Co.
Mueller Holdings Corp.
Simplex Technologies, Inc.
Water Holdings Corp.
FORM OF NOTE EXHIBIT 4
FACE OF NOTE
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in definitive
registered form, this Note may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another Depositary or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary.
No. ___________ $________________
CUSIP: ____________
TYCO INTERNATIONAL LTD.
_____% Note due ____
TYCO INTERNATIONAL LTD., a Massachusetts corporation (the "Issuer"),
for value received, hereby promises to pay to CEDE & CO. or registered assigns,
at the office or agency of the Issuer in the Borough of Manhattan, The City of
New York the principal sum of ______________________Dollars on
_________________, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually on _________ and __________ of
each year, commencing ________________, on said principal sum at said office or
agency, in like coin or currency, at the rate per annum specified in the title
of this Note, from the ___________________ or the ________, as the case may be,
next preceding the date of this Note to which interest has been paid, unless the
date hereof is a date to which interest has been paid, in which case from the
date of this Note, or unless no interest has been paid or duly provided for on
this Note, in which case from _________________, until payment of said principal
sum has been
<PAGE>
made or duly provided for; provided, that payment of interest may be made at the
option of the Issuer by check mailed to the address of the person entitled
thereto as such address shall appear on the Security register. Notwithstanding
the foregoing, if the date hereof is after the _____________ day of
________________ or ___________, as the case may be, and before the following
______________ or ___________________, as the case may be, this Note shall bear
interest from such _______________ or ______________; provided, that if the
Issuer shall default in the payment of interest due on such _______________ or
_______________, then this Note shall bear interest from the next preceding
_________________ or _____________, to which interest has been paid or, if no
interest has been paid on this Note, from ______________. The interest so
payable on any _________________ or _______________ will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this Note is registered at the close of business on
the __________________ or _________________, as the case may be, next preceding
such ______________ or _____________.
Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, TYCO INTERNATIONAL LTD. has caused this
instrument to be signed in the original or by facsimile by its duly authorized
officers and has caused an original or facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
Dated:_______________
TYCO INTERNATIONAL LTD.
By:_______________________
By:_______________________
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<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By:_______________________
Authorized Signatory
<PAGE>
REVERSE OF NOTE
TYCO INTERNATIONAL LTD.
_____% Note due ____
This Note is one of a duly authorized issue of notes of the Issuer
(hereinafter called the "Notes") of a series designated as the _____% Notes due
____ of the Issuer, limited in aggregate principal amount to $_________, all
issued or to be issued under and pursuant to an indenture dated as of April 30,
1992, as amended and supplemented by a First Supplemental Indenture dated as of
April 30, 1992 and a Second Supplemental Indenture dated as of March 8, 1993 (as
so amended and supplemented, the "Indenture"), duly executed and delivered by
the Issuer to First Trust of New York, National Association (as successor to
BankAmerica National Trust Company), as Trustee (herein called the "Trustee"),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Issuer and the Holders of the
Notes. Other debentures, notes, bonds or other evidences of indebtedness
(together with the Notes, hereinafter called the "Securities") may be issued
under the Indenture in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary from the Notes and each other, as in the
Indenture provided.
In case an Event of Default with respect to the Notes, as defined in
the Indenture, shall have occurred and be continuing, the principal hereof may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditons provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding (as defined
in the Indenture) of all series to be affected (voting as one class), evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each such series; provided, that no
such supplemental indenture shall (i) extend the final maturity of any Security,
or reduce the principal amount thereof or any premium thereon, or reduce the
rate or extend the time of payment of any interest thereon, or impair or affect
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<PAGE>
the right of any Holder to institute suit for the payment thereof, without the
consent of the Holder of each Security so affected, or (ii) reduce the aforesaid
percentage of Securities, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holder of each Security
affected. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Securities of any series, prior to
any declaration accelerating the maturity of such Securities, the Holders of a
majority in aggregate principal amount Outstanding of the Securities of such
series (or, in the case of certain defaults or Events of Default, all or certain
series of the Securities) may on behalf of the Holders of all the Securities of
such series (or all or certain series of the Securities, as the case may be)
waive any such past default or Event of Default and its consequences. The
preceding sentence shall not, however, apply to a default in the payment of the
principal of or premium, if any, or interest on any of the Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note in
the manner, at the respective times, at the rate and in the coin or currency
herein prescribed.
The Notes may not be redeemed prior to maturity.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any multiple of $1,000 at the office or agency of
the Issuer in the Borough of Manhattan, The City of New York, and in the manner
and subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture. This Note may also be surrendered
for exchange at the aforesaid office or agency for Notes in other authorized
denominations in an equal aggregate principal amount. No service charge shall be
made for any registration of transfer or any exchange of the Notes, except that
the Issuer may require payment of any tax or other governmental charge imposed
in connection therewith.
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The Issuer, the Trustee and any authorized agent of the Issuer or
the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and,
subject to the provisions on the face hereof, interest hereon, and for all other
purposes, and neither the Issuer nor the Trustee nor any authorized agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of
the Issuer in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, or any past, present or future shareholder,
officer or director, as such, of the Issuer or of any successor corporation,
either directly or through the Issuer or any successor corporation, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
The terms of the Securities include those stated in the Indenture
and those made a part of the Indenture by reference to the Trust Indenture Act
of 1939, as amended. The Securities are subject to all such terms and the
Holders are referred to the Indenture and such Act for a statement of such
terms. All capitalized terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the Indenture.
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<PAGE>
ABBREVATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-................Custodian..................
(Cust) (Minor)
Under Uniform Gifts to Minors Act...........................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
______________________________________!
______________________________________!
______________________________________!
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:___________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without alteration
or enlargement or any change whatsoever.
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EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
on Form S-3 (File no. 333-1063) of Tyco International Ltd. of our reports dated
July 25, 1996 on our audit of the consolidated financial statements and
financial statement schedule of Tyco International Ltd. as of June 30, 1996 and
1995 and for each of the three years in the period ended June 30, 1996 which
reports are included in the Form 10-K for the fiscal year ended June 30, 1996.
We also consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
October 29, 1996
