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EXHIBIT 1.1
TyCom Ltd.
Common Shares, par value $0.25 per share
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Underwriting Agreement
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July 26, 2000
Goldman, Sachs & Co.,
Salomon Smith Barney Inc., and
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
TyCom Ltd., a Bermuda company (the "Company"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") an aggregate of 54,375,000 Common
Shares, par value $0.25 per share ("Stock") of the Company and subject to the
terms and conditions stated herein and at the election of the Underwriters, to
issue and sell to the Underwriters an aggregate of up to 8,125,000 additional
shares of Stock. The 54,375,000 shares to be sold by the Company are herein
called the "Firm Shares" and the 8,125,000 additional shares to be sold by the
Company are herein called the "Optional Shares". The Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the "Shares".
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-32134) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered to you, and, excluding exhibits thereto, to
you for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no
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proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the Initial Registration Statement at the time
it was declared effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant to
Rule 424(b) under the Act, is hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. or Salomon Smith Barney Inc. expressly for use
therein;
(iii) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of its date as to
the Prospectus and any amendment or supplement thereto, 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 not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. or Salomon Smith Barney Inc.
expressly therein;
(iv) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus, that would
have resulted in a material adverse change or any development involving a
prospective material adverse change, in the financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"); and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the share
capital, short-term debt or long-term debt of the Company or any of its
subsidiaries or any Material Adverse Effect, otherwise than as set forth or
contemplated in the Prospectus;
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(v) The Company has been duly incorporated and is validly existing as
an exempted company under the laws of Bermuda, with the necessary legal
power and authority to lease and own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification,
except where any such failure to be so qualified or in good standing would
not result in a Material Adverse Effect; and each subsidiary of the Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation in each case,
except where any such failure to be so qualified or in good standing would
not result in a Material Adverse Effect;
(vi) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued capital shares of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description of the Stock contained in the Prospectus;
and all of the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; the holders of issued and outstanding
capital shares of the Company are not entitled to preemptive or other
rights to acquire the Shares; there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or options to
purchase from the Company, or obligations of the Company to issue, Stock or
any other class of capital shares of the Company (except as set forth in
the Prospectus under "Description of Share Capital" and "Principal
Shareholders"); and except for the permission of the Bermuda Monetary
Authority which has been obtained and will continue to apply for so long as
the Stock is listed on the New York Stock Exchange there are no
restrictions on subsequent transfers of the Shares under the laws of
Bermuda and of the United States;
(vii) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
(viii) All consents, approvals, authorizations, orders, registrations,
clearances and qualifications of or with any court or governmental agency
or body or any stock exchange authorities (each hereinafter referred to as
a "Governmental Agency") having jurisdiction over the Company, or any of
its subsidiaries or any of its properties (hereinafter referred to as
"Governmental Authorizations") required for the execution and delivery by
the Company of this Agreement to be duly and validly authorized have been
obtained or made and are in full force and effect;
(ix) All dividends and other distributions declared and payable on
the shares of capital stock of the Company may under the current laws and
regulations of Bermuda be paid in United States dollars that may be freely
transferred out of Bermuda, and all such dividends and other distributions
will not be subject to withholding or other taxes under the laws and
regulations of Bermuda and are otherwise free and clear of any other tax,
withholding or deduction in Bermuda and without the necessity of obtaining
any Governmental Authorization in Bermuda;
(x) The issue and sale of the Shares to be sold by the Company
hereunder, the compliance by the Company with all of the provisions of this
Agreement and the
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consummation of the transactions herein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other 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 legally bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject (except for such
breaches, violations or defaults that would not have a Material Adverse
Effect), nor will such action result in (i) any violation of the provisions
of the Bye-laws or Memorandum of Association of the Company or (ii) any
violation of any statute or any order, rule or regulation of any
Governmental Agency having jurisdiction over the Company or any of its
subsidiaries or any of their properties (except for such violations that
would not have a Material Adverse Effect); and no consent, approval,
authorization, order, registration or qualification of or with any such
Governmental Agency is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement, except (A) the registration under the Act of the Shares, (B)
such Governmental Authorizations as have been duly obtained and are in full
force and effect and copies of which have been furnished to you and (C)
such Governmental Authorizations as may be required under state securities
or Blue Sky laws or any laws of jurisdictions outside Bermuda and the
United States in connection with the purchase and distribution of the
Shares by or for the account of the Underwriters;
(xi) Neither the Company nor any of its Significant Subsidiaries (as
such term is defined in Rule 1.02(w) of Regulation S-X) is (i) in violation
of its Bye-laws or Memorandum of Association (nor are any of the Company's
other subsidiaries in such violation, except such violations as would not
result in a Material Adverse Effect) or (ii) in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement lease or other
agreement or instrument to which it is a party or by which it or any of its
properties is legally bound (except for such defaults that would not result
in a Material Adverse Effect);
(xii) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to any Bermuda taxing authority in connection
with the sale and delivery by the Company of the Shares to or for the
respective accounts of the Underwriters or the execution and delivery of
this Agreement;
(xiii) Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(xiv) The statements set forth in the Prospectus under the caption
"Description of Share Capital", insofar as they purport to constitute a
summary of the terms of the Stock, under the caption "Tax Considerations",
under the caption "Regulation", under the caption "Underwriting", under the
caption "Relationship with Tyco After the Offering and Certain
Transactions" and under the caption "Principal Shareholders", insofar as
they purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair;
(xv) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if
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determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate, be reasonably expected to result in a
Material Adverse Effect; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by any Governmental Agency
or threatened by others;
(xvi) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(xvii) Other than as disclosed in the Prospectus, the Company and each
of its subsidiaries have all licenses, franchises, permits, authorizations,
approvals and orders and other concessions of and from all Governmental
Agencies that are necessary to own or lease their properties and conduct
their businesses as described in the Prospectus, except where the failure
to have such licenses, franchises, permits, authorizations, approvals or
orders would not have a Material Adverse Effect, and neither the Company
nor any such subsidiary has received any notice of proceedings relating to
the revocation or modification of any such license, franchise, permit,
authorization, approval and order or concession;
(xviii) The Company is not a Passive Foreign Investment Company (a
"PFIC") within the meaning of Section 1296 of the United States Internal
Revenue Code of 1986, as amended (the "Code"), and is not likely to become
a PFIC;
(xix) The consolidated historical financial statements and schedules
of the Company and its consolidated subsidiaries included in the Prospectus
and the Registration Statement (including the financial statements and
schedules of Telecommunicaciones Marinas, S.A., AT&T Submarine Systems,
Inc. and the unaudited pro forma financial data) present fairly in all
material respects the financial condition, results of operations and cash
flows of the Company as of the dates and for the periods indicated, comply
as to form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting principles
in the U.S. applied on a consistent basis ("U.S. GAAP") throughout the
periods involved (except as otherwise noted therein). The summary
financial data set forth under the caption "Summary Consolidated Financial
Data" and the selected financial data set forth under the caption "Selected
Consolidated Financial Data" in the Prospectus and Registration Statement
fairly present in all material respects, on the basis stated in the
Prospectus and the Registration Statement, the information included
therein;
(xx) No strike, work stoppage or slow-down by employees of the
Company or any of its subsidiaries exists or, to the knowledge of the
Company, is threatened, and the Company is not aware of any existing or
threatened strikes, work stoppages or slow-downs by the employees of any of
its or its subsidiaries' principal suppliers, contractors or customers that
could reasonably be expected to result in a Material Adverse Effect;
(xxi) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force and
effect; the Company and its subsidiaries are in compliance with the terms
of such policies and instruments in all material respects; and there are no
claims by the Company or any of its subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; neither the Company nor any
such subsidiary has been refused any insurance coverage
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sought or applied for; and neither the Company nor any such subsidiary has
any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a material adverse effect on the current or
future consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries;
(xxii) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with U.S. GAAP and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences;
(xxiii) None of the Company or any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or other
person acting on behalf of the Company or any of its subsidiaries, has (i)
used any corporate funds of the Company or any of its subsidiaries for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity, or (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee
from corporate funds of the Company or any of its subsidiaries;
(xxiv) No violation of, or liabilities or obligations pursuant to, any
applicable laws, statutes, ordinances, codes, orders, judgments, licenses,
permits, authorizations, rules, regulations or governmental requirements,
including without limitation common law, relating to protection of human
health and safety, hazardous or toxic substances or wastes, pollutants or
contaminants ("Hazardous Substances"), or the environment, and no
conditions relating to Hazardous Substances, human health and safety or the
environment, exist that could reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect;
(xxv) PriceWaterhouseCoopers, who have certified certain financial
statements of the Company and its subsidiaries, PriceWaterhouseCoopers LLP,
who have certified certain financial statements of AT&T Submarine Systems,
Inc. and BDO Audiberia Auditores, S.L, who have certified certain financial
statements of Telecommunicaciones Marinas, S.A., are each independent
public accountants as required by the Act and the rules and regulations of
the Commission thereunder;
(xxvi) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all 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 and trade names necessary to carry
on the business now operated by them, and neither the Company nor any of
its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing which,
singly or in the aggregate could reasonably be expected to result in a
Material Adverse Effect; and
(xxvii) All licenses issued by the Federal Communications Commission or
any equivalent authority of [Bermuda or the United Kingdom] (collectively,
the "Communications Licenses") required for the operation of the business
of the Company and its subsidiaries are in full force and effect and there
are no pending modifications, amendments or revocation proceedings which
would adversely affect the operations of
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the Company and its subsidiaries. All fees due and payable to governmental
authorities pursuant to the rules governing Communications Licenses held by
the Company and its subsidiaries the nonpayment of which, with the giving
of notice or the lapse of time or both, would constitute grounds for
revocation thereof have been timely paid. Each of the Company and its
subsidiaries is in compliance in all material respects with the terms of
the Communications Licenses, as applicable, and there is no condition,
event or occurrence existing, nor is there any proceeding being conducted
of which the Company has received notice, nor, to the Company's knowledge,
is there any proceeding threatened, by any governmental authority, which
would cause the termination, suspension, cancellation or nonrenewal of any
of the Communications Licenses, or the imposition of any penalty or fine by
any regulatory authority. No registrations, filings, applications, notices,
transfers, consents, approvals, audits, qualifications, waivers or other
action of any kind is required by virtue of the execution and delivery of
this Agreement, or of the consummation of the transactions contemplated
hereby or thereby, other than as previously obtained (a) to avoid the loss
of any such license, permit, consent, concession or other authorization or
any asset, property or right pursuant to the terms thereof, or the
violation or breach of any applicable law thereto, or (b) to enable the
Company or any of its subsidiaries to hold and enjoy the same after each
Time of Delivery (as defined in Section 4 hereof) in the conduct of its
business as conducted prior to such Time of Delivery.
(b) Tyco International Ltd., a Bermuda company ("Tyco International"),
represents and warrants to, and agrees with, each of the Underwriters that:
(i) All Governmental Authorizations required for the execution and
delivery by Tyco International of this Agreement have been obtained; and
Tyco International has full right, power and authority to enter into this
Agreement;
(ii) The compliance by Tyco International with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which Tyco International is a party or by which
Tyco International is legally bound, or to which any of the property or
assets of Tyco International is subject (except for such breaches,
violations or defaults that would not have a Material Adverse Effect), nor
will such action result in (i) any violation of the provisions of the Bye-
laws or Memorandum of Association of Tyco International or (ii) any
violation of any statute or any order, rule or regulation of any
Governmental Agency having jurisdiction over Tyco International or the
property of Tyco International (except for such violations that would not
have a Material Adverse Effect);
(iii) Tyco International has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(iv) Tyco International has no reason to believe that the
representations and warranties of the Company contained in this Section 1
are not true and correct, is familiar with the Registration Statement and
has no knowledge of any material fact, condition or information not
disclosed in the Prospectus or any supplement thereto which has resulted in
a Material Adverse Effect or may reasonably be expected to result in a
Material Adverse Effect; and
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(v) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by Tyco International
expressly for use therein, such Preliminary Prospectus and the Registration
Statement did, and the Prospectus and any further amendments or supplements
to the Registration Statement and the Prospectus, when they become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder and will not 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
not misleading.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company at
a purchase price per Share of $......................, the number of Firm Shares
set forth opposite the name of such Underwriter in Column A of Schedule I hereto
and (b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per Share set forth in clause (a) of this Section 2, that portion of the number
of Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Column B of Schedule I
hereto and the denominator of which is the maximum number of Optional Shares
that all of the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase in
whole or in part at their election up to 6,500,000 Optional Shares, at the
purchase price per Share set forth in the paragraph above, for the sole purpose
of covering sales of shares in excess of the number of Firm Shares. Any such
election to purchase Optional Shares may be exercised only by written notice
from you to the Company, given within a period of 30 calendar days after the
date of this Agreement and setting forth the aggregate number of Optional Shares
to be purchased and the date on which such Optional Shares are to be issued and
delivered, as determined by you but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. and Salomon Smith Barney Inc. may request upon at
least forty-eight hours' notice to the Company prior to a Time of Delivery (as
defined below) (the "Notification Time"), shall be delivered by or on behalf of
the Company to Goldman, Sachs & Co. through the facilities of The Depository
Trust Company ("DTC") for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by wire transfer of
same-day funds to the account specified by the Company to Goldman, Sachs & Co.
and Salomon Smith Barney Inc. at least forty-eight hours in advance. The
Company will cause the certificates representing the Shares to be made available
for checking at least twenty-four hours prior to the Time of
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Delivery (as defined below) with respect thereto at the office of DTC or its
designated custodian It is understood and agreed by the parties hereto that no
delivery or transfer of Shares to be purchased and sold hereunder at a Time of
Delivery (as defined below) shall be effective until and unless payment therefor
has been made pursuant hereto and each of DTC and the Company shall have
furnished or caused to be furnished to Goldman, Sachs & Co. and Salomon Smith
Barney Inc., on behalf of the Underwriters at such Time of Delivery certificates
and other evidence reasonably satisfactory to Goldman, Sachs & Co. and Salomon
Smith Barney Inc. of the execution in favor of the Underwriters of the book-
entry transfer of Shares to the respective custodians for DTC.
(b) The time and date of such delivery and payment shall be, with
respect to the Firm Shares, 9:30 a.m., New York City time, on .............,
2000 or such other time and date as Goldman, Sachs & Co., Salomon Smith Barney
Inc. and the Company may agree upon in writing, and, with respect to the
Optional Shares, 9:30 a.m., New York City time, on the date specified by
Goldman, Sachs & Co. and Salomon Smith Barney Inc. in the written notice given
by Goldman, Sachs & Co. and Salomon Smith Barney Inc. of the Underwriters'
election to purchase such Optional Shares, or such other time and date as
Goldman, Sachs & Co., Salomon Smith Barney Inc. and the Company may agree upon
in writing. Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(c) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross-
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(q) hereof, will be delivered at the offices
of Cleary, Gottlieb, Steen & Hamilton, One Liberty Plaza, New York, New York
10006 (the "Closing Location"), and the Shares will be delivered as specified in
Section (b) above, all at such Time of Delivery. A meeting will be held at the
Closing Location at 4:00 p.m., New York City time, on the New York Business Day
next preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following
the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Act; to
make no further amendment or any supplement to the Registration
Statement or Prospectus prior to the last Time of Delivery which shall
be disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish you copies thereof; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or prospectus, of the suspension
of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration
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Statement or Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(iii) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as you may reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus in order to comply with the Act, to
notify you and upon your request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(iv) To make generally available to its security holders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(v) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company that
are substantially similar to the Stock, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to any employee benefit or stock option
plan described in the Prospectus, without your prior written consent;
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(vi) To furnish to its shareholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet
and statements of income, shareholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by independent
public accountants and prepared in conformity with U.S. GAAP) and, as
soon as practicable after the end of each of the first three quarters
of each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), to make available to its
shareholders consolidated summary financial information of the Company
and its subsidiaries for such quarter in reasonable detail prepared in
accordance with U.S. GAAP;
(vii) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to shareholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any securities exchange on which any class of securities
of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you
may from time to time reasonably request (such financial statements to
be on a consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission);
(viii) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(ix) Not to (and to cause its subsidiaries not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company or
facilitate the sale or resale or the Shares;
(x) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange and, by way of
secondary listing, on the Bermuda Stock Exchange;
(xi) To file with the Commission such information on Form 10-Q or
Form 10-K as may be required by Rule 463 under the Act; and
(xii) If the Company elects to rely upon Rule 462(b), to file a
Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, 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 Act.
(b) Tyco International agrees with each of the Underwriters:
(i) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company that
are substantially similar to the Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to any employee benefit or stock option
plan described in the Prospectus), without your prior written consent;
and
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(ii) Not to (and to cause its affiliates (as such term is defined
in Rule 1.02(b) of Regulation S-X) not to) take, directly or
indirectly, any action which is designed to or which constitutes or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale or the Shares.
6. The Company covenants and agrees with the several Underwriters that (a)
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's and Tyco International's respective
counsel (including local and special counsel) and accountants in connection with
the registration of the Shares under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers (including postage, air freight charges and charges for
counting and packaging except as provided in Section 5(iii)); (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the Blue
Sky Memorandum, closing documents (including compilations thereof requested by
the Company or Tyco International) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(a)(ii) hereof, including the fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on the New York and Bermuda Stock
Exchanges; (v) the filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, securing any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Shares; and (vi) to Goldman, Sachs & Co. and Salomon Smith Barney Inc., for
the account of the several Underwriters, $ in lieu of reimbursement of
expenses, including, inter alia, the transportation and other expenses incurred
by or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Shares, and all other costs and expenses incident
to the performance by the Company or Tyco International of their respective
obligations hereunder; and (b) the Company will pay or cause to be paid: (i) all
expenses and taxes arising as a result of the sale and delivery outside of
Bermuda of the Shares by the Underwriters, including, in any such case, any
Bermuda income, capital gains, withholding, transfer or other tax asserted
against an Underwriter by reason of the purchase and sale of a Share pursuant to
this Agreement; (ii) the fees and expenses of the Authorized Agent (as defined
in Section 14 hereof); (iii) the cost of preparing stock certificates; (iv) the
cost and charges of any transfer agent or registrar; and (v) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 6.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of Tyco International herein are, at and as of such Time of
Delivery, true and correct, the condition that each of the Company and Tyco
International shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
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thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Cleary, Gottlieb, Steen & Hamilton, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated such
Time of Delivery, with respect to such matters as you may reasonably
request, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(c) Davis Polk & Wardwell, counsel for the Company shall have furnished
to you their written opinion, dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) This Agreement has been duly executed and delivered by each of
the Company and Tyco International;
(ii) Under the laws of the State of New York relating to submission
to jurisdiction, each of the Company and Tyco International has validly
and irrevocably submitted to the jurisdiction of the Federal and state
courts in the Borough of Manhattan in the City of New York in
connection with this Agreement, has validly and irrevocably waived any
objection to the venue of any action, suit or proceeding in any such
court brought pursuant to this Agreement and has validly and
irrevocably appointed the Authorized Agent as its authorized agent for
the purpose described in Section 14 of this Agreement and service of
process effected on such agent in the manner set forth in Section 14
hereof will be effective to confer valid personal jurisdiction over the
Company, the Selling Stockholder or Tyco International, as the case may
be;
(iii) No Governmental Authorization of the United States or the
State of New York is required for the issue and sale of the Shares or
the consummation by the Company or Tyco International of the
transactions contemplated by this Agreement, except the registration
under the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(iv) The statements set forth in the Prospectus under the caption
"Tax Considerations--United States Federal Income Tax Considerations",
under the caption "Underwriting", under the caption "Relationship with
Tyco After the Offering and Certain Transactions" and under the caption
"Principal Shareholders", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(v) The Company is not an "investment company", as such term is
defined in the Investment Company Act;
(vi) Except as set forth in the Prospectus, such counsel knows of
no outstanding options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company;
(vii) Except as set forth in the Prospectus, to the knowledge of
such counsel, no person or entity has any right, not effectively
satisfied or waived, to
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require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to register such securities pursuant
to the Registration Statement or pursuant to any other registration
statement filed by the Company under the Act, other than in connection
with any registration statement on Form S-8 under the Act; and
(viii) Although such counsel has not itself checked the accuracy,
completeness or fairness of, or otherwise verified, the information
furnished with respect to other matters in the Registration Statement
or the Prospectus (except for those referred to in the opinion in
subsection (iv) of this Section 7(c)), such counsel has generally
reviewed and discussed with your representatives, and with certain
officers and employees of, and counsel and independent public
accountants for, the Company the information furnished, whether or not
subject to check and verification by such counsel on the basis of such
consideration, review and discussion, but without independent check or
verification except as stated above, nothing has come to such counsel's
attention that causes it be believe that (i) the Registration Statement
and Prospectus (except for the financial statements and related
schedules and other financial data included therein, as to which such
counsel need express no belief) do not comply as to form in all
material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder, (ii)(x)
the Registration Statement and Prospectus included therein (except for
the financial statements and related schedules therein, as to which
such counsel need express no belief) at the time the Registration
Statement became effective 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 (y) the
Prospectus (except as stated) as of its date and as of the Time of
Delivery 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; or (iii) such counsel do not know of
any amendment to the Registration Statement required to be filed or of
any contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not filed or
described as required.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the federal laws of
the United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware;
(d) Appleby Spurling & Kempe, Bermuda counsel for the Company, shall
have furnished to you their written opinion, dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as an exempted company in good standing under the laws of Bermuda, with
the necessary legal power and authority to lease and own its properties
and conduct its business as described in the Prospectus;
(ii) The Company has an authorized share capital as set forth in the
Prospectus, and all of the issued Stock of the Company (including the
Shares being delivered at such Time of Delivery) have been duly and
validly authorized and issued and are fully paid and non-assessable;
the holders of issued shares of
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Stock are not entitled to preemptive or other rights to acquire the
Shares to be purchased from the Company; the Shares are freely issuable
by the Company to or for the account of the several Underwriters in the
manner contemplated herein; there are no restrictions on subsequent
transfers of the Shares; and the Shares conform to the description of
the Stock contained in the Prospectus;
(iii) All Governmental Authorizations of any Governmental Agency in
Bermuda required for the Shares to be duly and validly authorized and
issued have been obtained or made and are in full force and effect;
(iv) Each subsidiary of the Company organized under the laws of
Bermuda has been duly incorporated and is validly existing as an
exempted company in good standing under the laws of Bermuda except
where the failure to be so organized or in good standing would not
result in a Material Adverse Effect; and all of the issued capital
shares of each such subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, are registered in the
name of the Company or another subsidiary of the Company;
(v) This Agreement has been duly authorized, executed and
delivered by the Company;
(vi) No Governmental Authorization of or with any Governmental
Agency in Bermuda is required in Bermuda for the issue and sale of the
Shares by the Company or the consummation by the Company of the
transactions contemplated by this Agreement, except for the permission
of the Bermuda Monetary Authority which has been duly obtained and is
in full force and effect;
(vii) The statements in the Prospectus under "Description of Share
Capital", "Tax Considerations--Bermuda Tax Considerations" and "Service
of Process and Enforcement of Liabilities" to the extent such
statements relate to matters of law or regulation in Bermuda or to the
provisions of documents therein described which are governed by Bermuda
law, are true and accurate in all material respects, and nothing has
been omitted from such statements which would make the same misleading
in any material respect;
(viii) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to Bermuda or to any political
subdivision or taxing authority thereof or therein in connection with
the sale and delivery by the Company of the Shares to or for the
respective accounts of the Underwriters;
(ix) Insofar as matters of Bermuda law are concerned, the
Registration Statement and the filing of the Registration Statement
with the Commission have been duly authorized by and on behalf of the
Company; and the Registration Statement has been duly executed pursuant
to such authorization by and on behalf of the Company;
(x) The Company's agreement to the choice of law provisions set
forth in Section 14 hereof will be recognized by the courts of Bermuda;
the Company can sue and be sued in its own name under the laws of
Bermuda; the irrevocable submission of the Company to the exclusive
jurisdiction of a New York Court, the waiver by the Company of any
objection to the venue of a proceeding of a New York Court and the
agreement of the Company that this Agreement shall be governed by and
construed in accordance with the laws of the State of New York are
legal, valid and binding; service of process effected in the manner set
forth in
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Section 14 hereof will be effective, insofar as the law of Bermuda is
concerned, to confer valid personal jurisdiction over the Company; and
judgment obtained in a New York Court arising out of or in relation to
the obligations of the Company under this Agreement would be
enforceable against the Company in the courts of Bermuda.
(xi) The Company is not entitled to any immunity in Bermuda on the
basis of sovereignty or otherwise in respect of its obligations under
this Agreement and could not successfully interpose any such immunity
as a defense to any suit or action brought or maintained in respect of
its obligations under this Agreement; and the waiver by the Company of
immunity to jurisdiction and immunity to pre-judgment attachment, post-
judgment attachment and execution in any suit, action or proceeding
against it arising out of or based on this Agreement is a valid and
binding obligation of the Company under Bermuda law;
(xii) The indemnification and contribution provisions set forth in
Section 8 hereof do not contravene the public policy or laws of
Bermuda; and
(xiii) All dividends and other distributions declared and payable
on the capital shares of the Company may under the current laws and
regulations of Bermuda be paid in U.S. dollars, and all such dividends
and other distributions will not be subject to withholding or other
taxes under the laws and regulations of Bermuda and are otherwise free
and clear of any other tax, withholding or deduction in Bermuda and
without the necessity of obtaining any Governmental Authorization in
Bermuda.
In giving such opinion, such counsel may state that with respect to all
matters of United States federal and New York law they have relied upon the
opinions of United States counsel for the Company delivered pursuant to
paragraph (c) of this Section 7;
(e) Byron S. Kalogerou, General Counsel of the Company, shall have
furnished to you his written opinion, dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each jurisdiction, outside of Bermuda, in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to be so qualified or in good
standing would not result in a Material Adverse Effect (such counsel
being entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such counsel
shall state that he believes that both you and he are justified in
relying upon such opinions and certificates);
(ii) Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, except where any such failure would
not result in a Material Adverse Effect, and all of the issued shares
of capital stock of each such subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and (except
for directors' qualifying shares) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims, except those that would not result in a Material Adverse Effect
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the
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Company or its subsidiaries, provided that such counsel shall state
that he believes that both you and he are justified in relying upon
such opinions and certificates);
(iii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the
subject which might reasonably be expected to result in a Material
Adverse Effect; and, to the best of such counsel's knowledge, no such
proceedings are threatened;
(iv) The issue and sale of the Shares being delivered at such
Time of Delivery and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
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 legally bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, except any
such breach, violation or default as would not result in a Material
Adverse Effect, nor will such action result in any violation of the
provisions of the Bye-laws or Memorandum of Association of the Company
or any statute or any order, rule or regulation known to such counsel
of any Governmental Agency having jurisdiction over the Company or any
of its subsidiaries or any of their properties except such violations
of statues, orders, rules or regulations as would not have a Material
Adverse Effect;
(v) Neither the Company nor any of its subsidiaries is in
violation of its Bye-laws or Memorandum of Association or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound
(except for such defaults that would not have a Material Adverse
Effect).
In giving such opinion, such counsel may state that with respect to all
matters of United States federal and New York law he has relied upon the
opinions of United States counsel for the Company delivered pursuant to
paragraph (c) of this Section 7 and that with respect to all matters of
Bermuda law he has relied upon the opinions of Bermuda counsel for the
Company delivered pursuant to paragraph (d) of this Section 7;
(f) Harris, Wiltshire & Grannis LLP, regulatory counsel for the
Company, shall have furnished to you their written opinion, dated such Time
of Delivery, in form and substance satisfactory to you.
(g) Appleby Spurling & Kempe, Bermuda counsel for Tyco International,
shall have furnished to you their written opinion with respect to Tyco
International, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) This Agreement has been duly executed and delivered by or on
behalf of Tyco International and the compliance by Tyco International
with all of the provisions of this Agreement and the consummation by
Tyco International of the transactions herein contemplated will not
conflict with or result in a breach or violation of any terms or
provisions of, or constitute a default under, any statute,
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indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which Tyco International is a
party or by which Tyco International is bound, or to which any of the
property or assets of Tyco International is subject, nor will such
action result in any violation of the provisions of the Bye-laws or
Memorandum of Association of Tyco International or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over Tyco International or the property of
Tyco International;
(ii) No Governmental Authorization of or with any Governmental
Agency in Bermuda is required for the consummation by Tyco
International of the transactions contemplated by this Agreement;
(iii) Tyco International's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized by the
courts of Bermuda; Tyco International can sue and be sued in its own
name under the laws of Bermuda; the irrevocable submission of Tyco
International to the exclusive jurisdiction of a New York Court, the
waiver by Tyco International of any objection to the venue of a
proceeding of a New York court and the agreement of Tyco International
that this agreement of Tyco International shall be governed by and
construed in accordance with the laws of the State of New York are
legal, valid and binding; service of process effected in the manner set
forth in Section 14 hereof will be effective, insofar as the law of
Bermuda is concerned, to confer valid personal jurisdiction over Tyco
International; and judgment obtained in a New York court arising out of
or in relation to the obligations of Tyco International under this
Agreement would be enforceable against Tyco International in the courts
of Bermuda; and
(iv) Tyco International is not entitled to any immunity on the
basis of sovereignty or otherwise in respect of its obligations under
this Agreement and could not successfully interpose any such immunity
as a defense to any suit or action brought or maintained in respect of
its obligations under this Agreement; and the waiver by Tyco
International of immunity to jurisdiction (including the waiver of
sovereign immunity to which Tyco International may become entitled
subsequent to the date of this Agreement) and immunity to pre-judgment
attachment, post-judgment attachment and execution in any suit, action
or proceeding against it arising out of or based on this Agreement is a
valid and binding obligation of Tyco International under Bermuda law.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside Bermuda;
(i) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any post-
effective amendment to the Registration Statement filed subsequent to the date
of this Agreement and also at each Time of Delivery, PriceWaterhouseCoopers
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a draft of the
form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(j) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any post-
effective amendment to the Registration Statement filed subsequent to the date
of this Agreement and also at each Time of
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Delivery, PriceWaterhouseCoopers LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto (the executed
copy of the letter delivered prior to the execution of this Agreement is
attached as Annex III(a) hereto and a draft of the form of letter to be
delivered on the effective date of any post-effective amendment to the
Registration Statement and as of each Time of Delivery is attached as Annex
III(b) hereto);
(k) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been any
change in the share capital, short-term debt or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(l) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded debt securities or preferred stock of either the Company or
Tyco International by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the debt securities or preferred stock of
either the Company or Tyco International;
(m) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or the Bermuda Stock Exchange; (ii) a
suspension or material limitation in trading in securities of the Company or
Tyco International on the New York Stock Exchange or the Bermuda Stock Exchange;
(iii) a general moratorium on commercial banking activities in New York, London
or Bermuda declared by the relevant authorities; (iv) a change or development
involving a prospective change in Bermuda taxation affecting the Company, the
Shares or the transfer thereof or the imposition of exchange controls by the
United States or Bermuda; or (v) the outbreak or escalation of hostilities
involving the United States, the United Kingdom or Bermuda or the declaration by
the United States, the United Kingdom or Bermuda of a national emergency or war,
if the effect of any such event specified in this clause (v) in the judgment of
the representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus or (vi)
the occurrence of any material adverse change in the existing financial,
political or economic conditions in the United States, the United Kingdom or
Bermuda or elsewhere which, in the judgment of the representatives would
materially and adversely affect the financial markets or the market for the
Shares and other equity securities;
(n) The Shares to be sold by the Company at such Time of Delivery shall
have been duly listed, subject to notice of issuance, on the New York Stock
Exchange;
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<PAGE>
(o) The Company shall have obtained and delivered to the Underwriters
executed copies of an agreement from each of the individuals identified on Annex
IV(a) hereto, to the effect set forth in Section 5(b) hereof in form and
substance satisfactory to you;
(p) The Company shall have complied with the provisions of Section
5(a)(iii) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(q) Each of the Company and Tyco International shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and of Tyco International, respectively, satisfactory to you as
to the accuracy of the representations and warranties of the Company and Tyco
International, respectively, herein at and as of such Time of Delivery, as to
the performance by the Company and Tyco International of all of their respective
obligations hereunder to be performed at or prior to such Time of Delivery, and
as to such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a), (k), (l) and (n) of this Section 7, and as to such
other matters as you may reasonably request.
8. (a) The Company and Tyco International, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment 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, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and Tyco International shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. or Salomon Smith Barney Inc. expressly for use
therein.
(b) Each Underwriter will indemnify and hold harmless the Company and Tyco
International against any losses, claims, damages or liabilities to which the
Company or Tyco International may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment 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 such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Goldman, Sachs & Co. or Salomon Smith Barney Inc. expressly
for use therein; and will reimburse the Company and Tyco International for any
legal or other expenses reasonably incurred by the Company or Tyco International
in connection with investigating or defending any such action or claim as such
expenses are incurred.
20
<PAGE>
(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 an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
hereunder to the extent it is not materially prejudiced as a result thereof and,
in any event, shall not relieve it from any liability which it may have
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, which in the case of the
Underwriters shall be selected jointly by both Goldman, Sachs & Co. and Salomon
Smith Barney Inc. and in the case of the Company and Tyco International shall be
selected by Tyco International (and which shall not, except with the consent of
the indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and Tyco International on the one hand and the Underwriters on
the other from the offering of the Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and Tyco International on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and Tyco International on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares purchased
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or Tyco International on the
21
<PAGE>
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and Tyco International, and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and Tyco International under this
Section 8 shall be in addition to any liability which the Company and Tyco
International may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his or her
consent, is named in the Registration Statement as about to become a director of
the Company) and to each person, if any, who controls the Company or Tyco
International within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after
such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to you
to purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section 9 with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
of the Shares to be purchased at such Time of Delivery, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the number
of Shares which such Underwriter agreed to
22
<PAGE>
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all of the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or Tyco International, except for the
expenses to be borne by the Company, Tyco International and the Underwriters as
provided in Sections 6 and 11 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, Tyco International, and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or Tyco International, or any officer or director
or controlling person of the Company, or any officer or director or controlling
person of Tyco International, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor Tyco International shall then be under any liability to
any Underwriter except as provided in Sections 6 and 8 hereof; but, if for any
other reason any Shares are not delivered by or on behalf of the Company as
provided herein, Tyco International will reimburse the Underwriters through you
for all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company and Tyco International shall then be under no further liability
to any Underwriter in respect of the Shares not so delivered except as provided
in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. or Salomon Smith Barney Inc. on
behalf of you as the representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of [Goldman, Sachs
& Co., One Liberty Plaza, Seventh Floor, New York, New York 10006, Attention:
Registration Department]; if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; if to Tyco International shall be
delivered or sent by mail, telex or facsimile transmission to The Zurich Centre,
Second Floor Pembrok HM08, Bermuda, Attention Chief, Corporate Counsel, Fax
441-295-9645; provided, however, that any
23
<PAGE>
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and Tyco International, and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company, Tyco International, or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company or Tyco International brought by any
Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. Each of the
Company and Tyco International irrevocably waives any immunity to jurisdiction
to which it may otherwise be entitled or become entitled (including sovereign
immunity, immunity to pre-judgment attachment, post-judgment attachment and
execution) in any legal suit, action or proceeding against it arising out of or
based on this Agreement or the transactions contemplated hereby which is
instituted in any New York Court or in any competent court in Bermuda. The
Company has appointed Puglisi Associates, New York, New York, and Tyco
International has appointed CT Corporation, New York, New York, each as its
respective authorized agent (the "Authorized Agent") upon whom process may be
served in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York Court
by any Underwriter or by any person who controls any Underwriter, expressly
consents to the jurisdiction of any such court in respect of any such action,
and waives any other requirements of or objections to personal jurisdiction with
respect thereto. Such appointment shall be irrevocable. Each of the Company
and Tyco International represents and warrants that the Authorized Agent has
agreed to act as such agent for service of process and agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company and Tyco International, as the case may be.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company or Tyco International, as the case
may be, will indemnify each Underwriter against any loss incurred by such
Underwriter as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
an Underwriter is able to purchase United States dollars with the amount of the
judgment currency actually received by such Underwriter. The foregoing
indemnity shall constitute a separate and independent obligation of the Company
and Tyco International and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "rate of
24
<PAGE>
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of or conversion into United States dollars.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
25
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and for each of the representatives plus one
for each counsel and the Custodian, of any counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and Tyco International. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company, and Tyco International for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
TyCom Ltd.
By:
------------------------------------
Name:
Title:
Tyco International Ltd.
By:
------------------------------------
Name:
Title:
26
<PAGE>
Accepted as of the date hereof at New York, New York,
...............:
Goldman, Sachs & Co.
By:
---------------------------------------
(Goldman, Sachs & Co.)
Salomon Smith Barney Inc.
By:
---------------------------------------
Name:
Title:
Merrill Lynch, Pierce, Fenner & Smith
By:
-----------------------------------
Name:
Title:
On behalf of each of the Underwriters
27
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
Column A Column B
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------------------------------------------------------------------- --------------- -----------------
<S> <C> <C>
Goldman, Sachs & Co....................................................
Salomon Smith Barney Inc...............................................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...........................................................
Bear, Stearns & Co.....................................................
Credit Suisse First Boston Corporation.................................
Donaldson, Lufkin & Jenrette Securities Corporation....................
Lehman Brothers Inc....................................................
J.P. Morgan Securities Inc.............................................
Morgan Stanley & Co. Incorporated......................................
Banc of America Securities LLC.........................................
Chase Securities Inc...................................................
Deutsche Bank Securities Inc...........................................
UBS Warburg LLC........................................................
Total..............................................
</TABLE>
28
