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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC. 20549
----------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 2, 1998
0-16979
(Commission File Number)
----------------------
TYCO INTERNATIONAL LTD.
(Exact name of registrant as specified in its charter)
Bermuda Not Applicable
(Jurisdiction of Incorporation) (IRS Employer
Identification Number)
The Gibbons Building
10 Queen Street, Suite 301
Hamilton, HM 11, Bermuda
(Address of registrant's principal executive office)
441-292-8674*
(Registrant's telephone number)
----------------------
* The Executive Offices of the Registrant's principal United States subsidiary,
Tyco International (US) Inc., are located at One Tyco Park, Exeter, New
Hampshire 03833. The telephone number there is (603) 778-9700.
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ITEM 5. Other Events
Under the terms and subject to the conditions contained in the
United States purchase agreement (the "U.S. Purchase Agreement"), dated March
2, 1998, Tyco International Ltd. (the "Company") has agreed to sell to
Merrill Lynch, Pierce, Fenner & Smith Incorporated. Credit Suisse First
Boston Corporation, Lehman Brothers Inc. and J.P. Morgan Securities Inc. (the
"U.S. Underwriters") 17,600,000 common shares, par value $.20 per share
("Common Shares") (not including an over-allotment option). Concurrently with
such sale and under the terms of the international purchase agreement of even
date therewith (the "International Purchase Agreement, and together with the
U.S. Purchase Agreement, the "Underwriting Agreements"), the Company has
agreed to sell to Merrill Lynch International, Credit Suisse First Boston
(Europe) Limited, Lehman Brothers International (Europe) and J.P. Morgan
Securities Ltd. (the "International Managers") 4,400,000 Common Shares (not
including an over-allotment option). The Common Shares are being offered to
the public by the U.S. Underwriters in the United States and Canada, and by
the International Managers outside of the United States and Canada, at an
initial price of $50.75 Common Share.
The foregoing description is qualified in its entirety by reference
to the full text of the Purchase Agreements which are appended hereto as
Exhibits 1.1 and 1.2 and are incorporated herein by reference.
ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits.
Exhibit Number Title
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1.1 Purchase Agreement, dated March 2, 1998, between Tyco International
Ltd. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Credit
Suisse First Boston Corporation, Lehman Brothers Inc. and J.P.
Morgan Securities Inc.
1.2 Purchase Agreement, dated March 2, 1998. between Tyco International
Ltd. and Merrill Lynch International. Credit Suisse First Boston
(Europe) Limited, Lehman Brothers International (Europe) and J.P+.
Morgan Securities Ltd.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
--------------------------------
Mark H. Swartz
Executive Vice President - Chief
Financial Officer
Date: March 6, 1998
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Exhibit Index
Exhibit Number Title Page
-------------- ----- ----
1.1 Purchase Agreement, dated March 2, 1998, between Tyco
International Ltd. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Credit Suisse First Boston
Corporation, Lehman Brothers Inc. and J.P. Morgan
Securities Inc.
1.2 Purchase Agreement, dated March 2, 1998, between Tyco
International Ltd. and Merrill Lynch International,
Credit Suisse First Boston (Europe) Limited, Lehman
Brothers International (Europe) and J.P. Morgan
Securities Ltd.
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EXHIBIT 99.1
=============================================================================
TYCO INTERNATIONAL LTD.
(a Bermuda company)
17,600,000 Common Shares
U.S. PURCHASE AGREEMENT
Dated: March 2, 1998
=============================================================================
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Table of Contents
U.S. PURCHASE AGREEMENT......................................................1
SECTION 1. Representations and Warranties.................................4
(a) Representations and Warranties by the Company........................4
(i) Compliance with Registration Requirements..........................4
(ii) Incorporated Documents............................................5
(iii) Independent Accountants..........................................5
(iv) Financial Statements..............................................5
(v) No Material Adverse Change in Business.............................5
(vi) Good Standing of the Company......................................6
(vii) Good Standing of Subsidiaries....................................6
(viii) Capitalization..................................................6
(ix) Authorization of Agreement........................................7
(x) Authorization and Description of Securities........................7
(xi) Absence of Defaults and Conflicts.................................7
(xii) Absence of Labor Dispute.........................................8
(xiii) Absence of Proceedings..........................................8
(xiv) Accuracy of Exhibits.............................................8
(xv) Absence of Further Requirements...................................8
(xvi) Investment Company Act...........................................9
(xvii) Foreign Corrupt Practices Act...................................9
(xviii) Choice of Law..................................................9
(xix) Immunity.........................................................9
(b) Officer's Certificates..............................................10
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing...............10
(a) Initial Securities..................................................10
(b) Option Securities...................................................10
(c) Payment.............................................................10
(d) Denominations; Registration.........................................11
SECTION 3. Covenants of the Company......................................11
(a) Compliance with Securities Regulations and Commission Requests......11
(b) Filing of Amendments................................................12
(c) Delivery of Registration Statements.................................12
(d) Delivery of Prospectuses............................................12
(e) Continued Compliance with Securities Laws...........................12
(f) Blue Sky Qualifications.............................................13
(g) Rule 158............................................................13
(h) Use of Proceeds.....................................................13
(i) Listing.............................................................13
(j) Restriction on Sale of Securities...................................13
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(k) Reporting Requirements..............................................14
SECTION 4. Payment of Expenses...........................................14
(a) Expenses............................................................14
(b) Termination of Agreement............................................14
SECTION 5. Conditions of U.S. Underwriters' Obligations..................15
(a) Effectiveness of Registration Statement.............................15
(b) Opinion of General Counsel of Company...............................15
(c) Opinion of United States Counsel for Company........................15
(d) Opinion of Bermuda Counsel for Company..............................15
(e) Opinion of English Counsel for Company..............................15
(f) Opinion of Counsel for U.S. Underwriters............................16
(g) Officers' Certificate...............................................16
(h) Accountant's Comfort Letter.........................................16
(i) Bring-down Comfort Letter...........................................16
(j) Approval of Listing.................................................16
(k) Lock-up Agreements..................................................17
(l) Indemnification Agreement...........................................17
(m) Certificate of Chief Financial Officer..............................17
(n) Purchase of Initial International Securities........................17
(o) Conditions to Purchase of U.S. Option Securities....................17
(i) Officers' Certificate.............................................17
(ii) Opinion of General Counsel of Company............................17
(iii) Opinion of United States Counsel for Company....................17
(iv) Opinion of Bermuda Counsel for the Company.......................17
(v) Opinion of English Counsel for Company............................18
(vi) Opinion of Counsel for U.S. Underwriters.........................18
(vii) Bring-down Comfort Letter.......................................18
(p) Additional Documents................................................18
(q) Termination of Agreement............................................18
SECTION 6. Indemnification...............................................18
(a) Indemnification of U.S. Underwriters................................18
(b) Indemnification of Company, Directors and Officers..................20
(c) Actions against Parties; Notification...............................20
(d) Settlement without Consent if Failure to Reimburse..................20
SECTION 7. Contribution..................................................21
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery ...........................................22
SECTION 9. Termination of Agreement......................................22
(a) Termination; General................................................22
(b) Liabilities.........................................................23
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SECTION 10. Default by One or More of the U.S. Underwriters..............23
SECTION 11. Notices......................................................22
SECTION 12. Parties......................................................24
SECTION 13. GOVERNING LAW AND TIME.......................................24
SECTION 14. Consent to Jurisdiction and Service of Process...............24
SECTION 15. Judgment Currency............................................25
SECTION 16. Effect of Headings...........................................25
SCHEDULES
Schedule A - List of Underwriters...................................Sch A-1
Schedule B - Pricing Information....................................Sch B-1
Schedule C - List of Persons subject to Lock-up.....................Sch C-1
EXHIBITS
Exhibit A-1 - Form of Opinion of General Counsel of Tyco (US).........A-1-1
Exhibit A-2 - Form of Opinion of Company's United States Counsel......A-2-1
Exhibit A-3 - Form of Opinion of Company's Bermuda Counsel............A-3-1
Exhibit A-4 - Form of Opinion of Company's English Counsel............A-4-1
Exhibit B - Form of Lock-up Letter......................................B-1
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TYCO INTERNATIONAL LTD.
(a Bermuda company)
17,600,000 Common Shares
(Par Value U.S. $.20 Per Share)
U.S. PURCHASE AGREEMENT
March 2, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Tyco International Ltd., a Bermuda company (the "Company"), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Credit Suisse First Boston Corporation, Lehman
Brothers Inc. and J.P. Morgan Securities Inc. (collectively, the "U.S.
Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof) with respect to the issue and sale by
the Company and the purchase by the U.S. Underwriters, acting severally and not
jointly, of the respective numbers of Common Shares, par value U.S. $.20 per
share, of the Company ("Common Shares") set forth in Schedule A hereto, and with
respect to the grant by the Company to the U.S. Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase all
or any part of 2,640,000 additional Common Shares to cover over-allotments, if
any. The aforesaid 17,600,000 Common Shares (the "Initial U.S. Securities") to
be purchased by the U.S. Underwriters and all or any part of the 2,640,000
Common Shares subject to the option described in Section 2(b) hereof (the "U.S.
Option Securities") are hereinafter called, collectively, the "U.S. Securities."
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It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of 4,400,000 Common
Shares (the "Initial International Securities") through arrangements with
Merrill Lynch International, Credit Suisse First Boston (Europe) Limited, Lehman
Brothers International (Europe) and J.P. Morgan Securities Ltd. outside the
United States and Canada (the "International Managers") and the grant by the
Company to the International Managers, acting severally and not jointly, of an
option to purchase all or any part of the International Managers' pro rata
portion of up to 660,000 additional Common Shares solely to cover
overallotments, if any (the "International Option Securities"). The Initial
International Securities and the International Option Securities are hereinafter
called the "International Securities." It is understood that the Company is not
obligated to sell and the U.S. Underwriters are not obligated to purchase, any
Initial U.S. Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters," the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities," the U.S. Securities and the International Securities are
hereinafter collectively called the "Securities" and the U.S. Option Securities
and the International Option Securities are hereinafter collectively called the
"Option Securities."
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the U.S. Underwriters propose to make a
public offering of the U.S. Securities as soon as the U.S. Underwriters deem
advisable after this Agreement has been executed and delivered.
The Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-43333) covering the registration of the Securities under the United States
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Such
registration statement (as amended, if applicable) has been declared effective
by the Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the 1933 Act Regulations or any preliminary prospectus supplement
specifically relating to the Securities filed with the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations being hereinafter called a "Preliminary
Prospectus"). The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein
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referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. Such registration statement and any post effective amendment thereto
and the prospectus constituting a part thereof, and each prospectus supplement
relating to the offering of Securities (the "Prospectus Supplement"), including
all documents incorporated therein by reference, and including the Rule 430A
Information and the Rule 434 Information, as applicable, as from time to time
amended or supplemented pursuant to the 1933 Act, the United States Securities
Exchange Act of 1934, as amended (the "1934 Act") or otherwise, are collectively
referred to herein as the "Registration Statement" and the "Prospectus,"
respectively; provided that a Prospectus Supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of Securities to
which it relates. Any registration statement filed pursuant to Rule 462(b) of
the 1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. Promptly after execution and
delivery of this Agreement, the Company will either (i) prepare and file a
prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the
1933 Act Regulations and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933
Act Regulations or (ii) if the Company has elected to rely upon Rule 434 ("Rule
434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two forms
of prospectus supplement are to be used in connection with the offering and sale
of the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus Supplement") and one relating to the International Securities (the
"Form of International Prospectus Supplement"). The Form of International
Prospectus Supplement is identical to the Form of U.S. Prospectus Supplement,
except for the front cover and back cover pages and the information under the
caption "Underwriting." The final Form of U.S. Prospectus Supplement and the
final Form of International Prospectus Supplement, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, and including the prospectus constituting a part of the Registration
Statement, in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the "U.S.
Prospectus" and the "International Prospectus," respectively, and collectively,
the "Prospectuses." If Rule 434 is relied on, the terms "U.S. Prospectus" and
"International Prospectus" shall refer to the preliminary U.S. Prospectus dated
February 20, 1998 and preliminary International Prospectus dated February 20,
1998, respectively, each together with the applicable Term Sheet and all
references in this Agreement to the date of such Prospectuses shall mean the
date of the applicable Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus, the Form of U.S. Prospectus Supplement, the Form of International
Prospectus Supplement or any Term Sheet or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included," "stated," "disclosed" or
"referred to" in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus Supplement and Form of International
Prospectus Supplement) or the Prospectuses (or other references of like import)
shall be deemed to mean and include all such financial statements and
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schedules and other information which is incorporated by reference in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus Supplement and Form of International Prospectus Supplement) or the
Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectuses, as the
case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company.
The Company represents and warrants to each U.S. Underwriter as of the
date hereof, as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b), hereof and agrees
with each U.S. Underwriter, as follows:
(i) Compliance with Registration Requirements.
The Company meets the requirements for use of Form S-3 under the
1933 Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any U.S. Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither of the Prospectuses nor any amendments or
supplements thereto, at the time the Prospectuses or any amendments or
supplements thereto were issued and at the Closing Time (and, if any U.S.
Option Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the U.S. Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
U.S. Underwriter expressly for use in the Registration Statement or the
U.S. Prospectus.
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Each preliminary prospectus and the prospectuses filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the Underwriters
for use in connection with this offering were identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectuses, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectuses, at the time the
Registration Statement became effective, at the time the Prospectuses were
issued and at the Closing Time (and, if any U.S. Option Securities are
purchased, at the Date of Delivery), did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, shareholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; except as otherwise
stated in the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles in
the United States ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectuses present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been
no material adverse change in the condition, financial or otherwise,
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary
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course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends on the Common Shares in amounts per share that are
consistent with past practice, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
share capital.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of Bermuda with power and authority (corporate and
other) under such laws to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and to enter into
and perform its obligations under this Agreement and the International
Purchase Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Company (as such term is defined in Rule 1-02 of Regulation S-X)
(each a "Significant Subsidiary" and all of the Company's subsidiaries are
collectively hereinafter referred to as the "Subsidiaries") has been duly
organized and is validly existing as a corporation under the laws of its
jurisdiction of incorporation, has corporate power and authority to own
its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to be so
qualified or in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement, all
of the issued and outstanding capital stock of each such Significant
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and (except for non-material liens that have arisen in the
ordinary course of business and in the case of non-U.S. subsidiaries, for
directors' qualifying shares) is owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security interests
and claims.
(viii) Capitalization. The Company has authorized, issued and
outstanding share capital as set forth in the Prospectuses under the
caption "Capitalization" (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred to in the
Prospectuses). The issued and outstanding share capital of the Company has
been duly authorized and validly issued and is fully paid and
non-assessable; none of the outstanding share capital of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company. Except as disclosed in the Prospectuses,
there are no holders of securities (debt or equity) of the Company or any
of its Subsidiaries, or holders of rights (including, without limitation,
preemptive rights), warrants or options to obtain
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securities of the Company or its Subsidiaries who have the right to
request the Company or any of its Subsidiaries to register securities held
by them under the 1933 Act other than holders who have elected not to
exercise their rights or whose securities have been so registered. All of
the Registrable Securities (other than Registrable Securities constituting
or issued or issuable upon exercise of Warrants) under the Registration
Rights Agreement, dated as of July 7, 1992 among Kendall International
Inc. (whose obligations have been assumed by the Company) and the
stockholders and other parties named therein (the "Kendall Registration
Rights Agreement") are freely tradeable under the United States federal
securities laws (including pursuant to Rule 144 of the 1933 Act
Regulations, without regard to the volume limitations thereunder).
(ix) Authorization of Agreement. This Agreement and the
International Purchase Agreement have been duly authorized, executed and
delivered by the Company.
(x) Authorization and Description of Securities. The Securities to
be purchased by the U.S. Underwriters and the International Managers from
the Company have been duly authorized for issuance and sale to the U.S.
Underwriters pursuant to this Agreement and to the International Managers
pursuant to the International Purchase Agreement, respectively, and, when
issued and delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against payment of the
consideration set forth herein and in the International Purchase
Agreement, respectively, will be validly issued, fully paid and
non-assessable; the Common Shares conform to all statements relating
thereto contained in the Prospectuses and such description conforms to the
rights set forth in the instruments defining the same; and the issuance of
the Securities is not subject to the preemptive or other similar rights of
any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company nor any
of its Subsidiaries is in violation of its memorandum of association or
bye-laws (with respect to the Company, the "Memorandum of Association" and
the "Bye-laws," respectively) (or equivalent charter documents) or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property
or assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the International Purchase Agreement and
the consummation of the transactions contemplated in this Agreement, the
International Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectuses
under the caption "Use of Proceeds") and compliance by the Company with
its obligations under this Agreement and the International Purchase
Agreement have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute
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a breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary pursuant to,
the Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the Memorandum of Association or Bye-laws (or equivalent
charter documents) of the Company or any subsidiary or any law, statute,
rule, regulation, judgment, order, writ or decree applicable to the
Company or of any government, government instrumentality or court, U.S. or
non-U.S., having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(xii) Absence of Labor Dispute. Except as disclosed in the
Prospectuses, no labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, which
could reasonably be expected to result in a Material Adverse Effect.
(xiii) Absence of Proceedings. Except as disclosed in the
Prospectuses, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, U.S. or non-U.S., now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any Subsidiary, which is
required to be disclosed in the Registration Statement, or which could
reasonably be expected to result in a Material Adverse Effect, or which
could reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement and the
International Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectuses or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities under this Agreement and the International Purchase
Agreement or the consummation of the transactions contemplated by this
Agreement and the International Purchase Agreement, except such as have
been already obtained or as may be required under the 1933 Act or the 1933
Act Regulations or non-U.S. or state securities or blue sky laws.
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(xvi) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectuses
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the United States
Investment Company Act of 1940, as amended (the "1940 Act").
(xvii) Foreign Corrupt Practices Act. Neither the Company nor, to
the best of the Company's knowledge, any officer, director, employee agent
or shareholder thereof, in each case acting on behalf of the Company, has
done any act or authorized, directed or participated in any act, in
violation of any provision of the United States Foreign Corrupt Practices
Act of 1977, as amended, applicable to such entity or person for which
civil or criminal liability or penalties, as the case may be, could
currently be imposed on the Company.
(xviii) Choice of Law. The choice of law provisions set forth in
each of this Agreement and the International Purchase Agreement are legal,
valid and binding under the laws of Bermuda and will be recognized and
given effect to by the courts of Bermuda (unless a court determined that
doing so would be contrary to public policy in Bermuda); the Company has
the legal capacity to sue and be sued in its own name under the laws of
Bermuda; the Company has, under the laws of Bermuda, the power to submit,
and has irrevocably submitted, to the jurisdiction of the New York courts
and has validly and irrevocably appointed CT Corporation System, 1633
Broadway, New York, New York 10019, U.S.A. (and any successor entity) as
its authorized agent for the service of process pursuant to this Agreement
and the International Purchase Agreement; the irrevocable submission of
the Company to the jurisdiction of the New York courts and the waiver by
the Company of any immunity and any objection to the venue of the
proceeding in a New York court, included in this Agreement and the
International Purchase Agreement, are legal, valid and binding under the
laws of Bermuda. Neither the Company nor any of its respective assets is
entitled to immunity (or any similar defense) from suit, execution,
attachment or other legal process in Bermuda. Each of this Agreement and
the International Purchase Agreement is in proper legal form under the
laws of Bermuda for the enforcement thereof against the Company, and
nothing in Bermuda law prevents suit upon this Agreement and the
International Purchase Agreement in the courts of Bermuda. It is not
necessary (a) in order to enable the U.S. Underwriters to exercise or
enforce their rights under this Agreement or the International Purchase
Agreement in Bermuda, or (b) by reason of the entry into and/or the
performance of this Agreement or the International Purchase Agreement,
that any of the U.S. Underwriters should be licensed, qualified,
authorized or entitled to do business in Bermuda.
(xix) Immunity. In any proceedings in Bermuda or elsewhere in
connection with either this Agreement or the International Purchase
Agreement, the Company will not be entitled to claim for itself or any of
its assets or property immunity from suit, execution, attachment or other
legal process.
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(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries delivered to the Global Coordinator, the U.S.
Underwriters or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each U.S. Underwriter, severally and not jointly, and
each U.S. Underwriter, severally and not jointly, agrees to purchase from the
Company, at the price per share set forth in Schedule B, the number of Initial
U.S. Securities set forth in Schedule A opposite the name of such U.S.
Underwriter, plus any additional number of Initial U.S. Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the U.S. Underwriters,
severally and not jointly, to purchase up to an additional 2,640,000 Common
Shares at the price per share set forth in Schedule B, less an amount per share
equal to any dividends or distributions declared by the Company and payable on
the Initial U.S. Securities but not payable on the U.S. Option Securities (for
purposes of this agreement, dividends declared by the Company subsequent to the
Closing Time that are payable on Common Shares held as of a record date that is
subsequent to a Date of Delivery are payable on the U.S. Option Securities). The
option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial U.S. Securities upon notice by the Global
Coordinator to the Company setting forth the number of U.S. Option Securities as
to which the several U.S. Underwriters are then exercising the option and the
time and date of payment and delivery for such U.S. Option Securities. Any such
time and date of delivery for the U.S. Option Securities (a "Date of Delivery")
shall be determined by the Global Coordinator, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined, or later than April 10, 1998. If the
option is exercised as to all or any portion of the U.S. Option Securities, each
of the U.S. Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of U.S. Option Securities then being purchased
which the number of Initial U.S. Securities set forth in Schedule A opposite the
name of such U.S. Underwriter bears to the total number of Initial U.S.
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Fried,
Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New York 10004,
U.S.A., or at such other place as shall be agreed upon by the Global Coordinator
and the Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after
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the date hereof (unless postponed in accordance with the provisions of Section
10), or such other time not later than ten business days after such date as
shall be agreed upon by the Global Coordinator and the Company (such time and
date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company, which Date of Delivery shall
not be later than April 10, 1998.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the respective accounts of the U.S. Underwriters of certificates for the U.S.
Securities to be purchased by them. It is understood that each U.S. Underwriter
has authorized Merrill Lynch, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial U.S. Securities and
the U.S. Option Securities, if any, which it has agreed to purchase. Merrill
Lynch, individually and not as representative of the U.S. Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Initial
U.S. Securities or the U.S. Option Securities, if any, to be purchased by any
U.S. Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such U.S. Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Underwriters may request
in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Underwriters in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order
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preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Global Coordinator with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Global Coordinator or counsel for the U.S.
Underwriters shall reasonably and timely object in writing.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the U.S. Underwriters and counsel for the U.S. Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts. The copies of the Registration Statement and each amendment thereto
furnished to the U.S. Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus as
such U.S. Underwriter reasonably requested, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each U.S. Underwriter, without charge, during the period when the
U.S. Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the U.S. Prospectus (as amended or supplemented) as
such U.S. Underwriter may reasonably request. The U.S. Prospectus and any
amendments or supplements thereto furnished to the U.S. Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, the International Purchase Agreement and in
the Prospectuses. If at any time when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel
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for the U.S. Underwriters or for the Company, to amend the Registration
Statement or amend or supplement any Prospectus in order that the Prospectuses
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish to the
U.S. Underwriters such number of copies of such amendment or supplement as the
U.S. Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the U.S. Underwriters, to qualify the Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions
(U.S. and non-U.S.) as the Global Coordinator may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectuses
under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect the listing
of the Securities on the New York Stock Exchange. The Company shall file an
application for listing of the Securities on the London and Bermuda Stock
Exchanges as soon as practicable and use its best efforts to list the Securities
on the London and Bermuda Stock Exchanges not later than one year after the
Closing Time.
(j) Restriction on Sale of Securities. During a period of 60 days from the
date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
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otherwise transfer or dispose of any Common Shares or any securities convertible
into or exercisable or exchangeable for Common Shares or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Common Shares, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Shares or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder or under the International Purchase
Agreement, (B) any Common Shares issued by the Company upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof
and referred to in the Prospectuses or (C) any Common Shares issued or options
to purchase Common Shares granted pursuant to employee benefit plans of the
Company pursuant to the terms thereof as in effect on the date hereof.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company agrees to pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters, any Intersyndicate Agreement and
such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the U.S. Underwriters
and the International Managers, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectuses and any amendments or supplements thereto, (vii)
the preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (viii) the fees and expenses of any
transfer agent or registrar for the Securities and (ix) the fees and expenses
incurred in connection with the listing of the Securities on the New York Stock
Exchange, the London Stock Exchange and the Bermuda Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the U.S.
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the U.S. Underwriters for all of their
out-of-pocket expenses, including
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the reasonable fees and disbursements of Fried, Frank, Harris, Shriver &
Jacobson as counsel for the U.S. Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The obligations
of the several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of General Counsel of Tyco (US). At Closing Time, the U.S.
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of M. Brian Moroze, Esq., General Counsel of Tyco International (US) Inc.,
a subsidiary of the Company ("Tyco (US)"), in form and substance satisfactory to
counsel for the U.S. Underwriters, to the effect set forth in Exhibit A-1 hereto
and to such further effect as counsel to the U.S. Underwriters may reasonably
request.
(c) Opinion of United States Counsel for Company. At Closing Time, the
U.S. Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Kramer, Levin, Naftalis & Frankel, United States counsel for the
Company, in form and substance satisfactory to counsel for the U.S.
Underwriters, to the effect set forth in Exhibit A-2 hereto and to such further
effect as counsel to the U.S. Underwriters may reasonably request.
(d) Opinion of Bermuda Counsel for Company. At the Closing Time, the U.S.
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Appleby, Spurling & Kempe, Bermuda counsel for the Company, in form and
substance satisfactory to counsel for the U.S. Underwriters, to the effect set
forth in Exhibit A-3 hereto and to such further effect as counsel to the U.S.
Underwriters may reasonably request.
(e) Opinion of English Counsel for Company. At the Closing Time, the U.S.
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Allen & Overy, special legal advisors in England for the Company, in
form and substance satisfactory to counsel for the U.S. Underwriters, to the
effect set forth in Exhibit A-4 hereto and to such further effect as counsel to
the U.S. Underwriters may reasonably request.
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(f) Opinion of Counsel for U.S. Underwriters. At Closing Time, the U.S.
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Fried, Frank, Harris, Shriver & Jacobson, counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for each
of the other U.S. Underwriters, with respect to the matters set forth in clause
(iii) of Exhibit A-1 hereto and in clauses (i) and (ii) of Exhibit A-2 hereto
and in clauses (i) and (iv) of Exhibit A-3. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the U.S. Underwriters (and, as to all matters governed by the
laws of Bermuda, on the opinion of the Company's Bermuda counsel referred to in
subsection (d) of this Section). Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(g) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the U.S. Underwriters shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the U.S. Underwriters shall have received from Coopers & Lybrand a
letter dated such date, in form and substance satisfactory to the U.S.
Underwriters, together with signed or reproduced copies of such letter for each
of the other U.S. Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectuses.
(i) Bring-down Comfort Letter. At Closing Time, the U.S. Underwriters
shall have received from Coopers & Lybrand a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (h) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(j) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to official
notice of issuance.
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(k) Lock-up Agreements. At the date of this Agreement, the U.S.
Underwriters shall have received an agreement substantially in the form of
Exhibit B hereto signed by the persons listed on Schedule C hereto.
(l) Indemnification Agreement. The Company shall have executed the
indemnification agreement with the Underwriters dated as of even date herewith
and such agreement shall be in full force and effect and represent a binding and
enforceable agreement of the Company.
(m) Certificate of Chief Financial Officer. At the Closing Time, if
requested by the U.S. Underwriters, you shall have received a certificate of the
Chief Financial Officer of the Company as to certain agreed upon accounting
matters.
(n) Purchase of Initial International Securities. Contemporaneously with
the purchase by the U.S. Underwriters of the Initial U.S. Securities under this
Agreement, the International Managers shall have purchased the Initial
International Securities under the International Purchase Agreement.
(o) Conditions to Purchase of U.S. Option Securities. In the event that
the U.S. Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the U.S. Option Securities, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any subsidiary of the Company hereunder
shall be true and correct as of each Date of Delivery and, at the relevant Date
of Delivery, the U.S. Underwriters shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming that
the certificate delivered at the Closing Time pursuant to Section 5(g)
hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of General Counsel of Tyco (U.S.). The favorable
opinion of M. Brian Moroze, Esq., General Counsel of Tyco (U.S.), in form
and substance satisfactory to counsel for the U.S. Underwriters, dated
such Date of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(iii) Opinion of United States Counsel for Company. The favorable
opinion of Kramer, Levin, Naftalis & Frankel, United States counsel for
the Company, in form and substance satisfactory to counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to the U.S. Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof.
(iv) Opinion of Bermuda Counsel for the Company. The favorable
opinion of Appleby, Spurling & Kempe, Bermuda counsel to the Company, in
form and substance satisfactory to counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to
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the U.S. Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required in Section 5(d)
hereof.
(v) Opinion of English Counsel for Company. The favorable opinion of
Allen & Overy, special legal advisors in England for the Company, in form
and substance satisfactory to counsel for the U.S. Underwriters, dated
such Date of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required in Section 5(e) hereof.
(vi) Opinion of Counsel for U.S. Underwriters. The favorable opinion
of Fried, Frank, Harris, Shriver & Jacobson, counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to the U.S. Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(f) hereof.
(vii) Bring-down Comfort Letter. A letter from Coopers & Lybrand, in
form and substance satisfactory to the U.S. Underwriters and dated such
Date of Delivery, substantially in the same form and substance as the
letter furnished to the U.S. Underwriters pursuant to Section 5(i) hereof,
except that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to such Date of
Delivery.
(p) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the U.S. Underwriters shall have been furnished with such documents
and opinions as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the U.S.
Underwriters and counsel for the U.S. Underwriters.
(q) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of U.S. Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several U.S. Underwriters to purchase the relevant Option
Securities, may be terminated by the U.S. Underwriters by notice to the Company
at any time at or prior to Closing Time or such Date of Delivery, as the case
may be, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. The Company agrees to indemnify
and hold harmless each U.S. Underwriter and each person, if any, who controls
any U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act as follows:
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(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the U.S. Prospectus
(or any amendment or supplement thereto); provided, further, that the Company
will not be liable to any U.S. Underwriter or any person controlling such U.S.
Underwriter with respect to any such untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus to
the extent that the Company shall sustain the burden of proving that any such
loss, liability, claim, damage or expense resulted from the fact that such U.S.
Underwriter, in contravention of a requirement of this Agreement or applicable
law, sold securities to a person to whom such U.S. Underwriter failed to send or
give, at or prior to the written confirmation of the sale of such Securities, a
copy of the U.S. Prospectus (as amended or supplemented) if the Company has
previously furnished copies thereof (sufficiently in advance of the Closing Date
to allow for distribution of the U.S. Prospectus in a timely manner) to the U.S.
Underwriter and the loss, liability, claim, damage or expense of such U.S.
Underwriter resulted solely from an untrue statement or omission or alleged
untrue statement or omission of a
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<PAGE>
material fact contained in or omitted from such preliminary prospectus which was
corrected in the U.S. Prospectus.
(b) Indemnification of Company, Directors and Officers. Each U.S.
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary U.S. prospectus or
the U.S. Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company by such U.S.
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the U.S. Prospectus (or any amendment
or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability 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 on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and
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<PAGE>
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 65 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 45 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
or 6(b)(ii) effected without its consent if such indemnifying party (i)
reimburses such indemnified party in accordance with such request to the extent
it considers such request to be reasonable and (ii) provides written notice to
the indemnified party setting forth in reasonable detail its basis for disputing
the unpaid balance, in each case prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the U.S. Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the U.S.
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the U.S.
Underwriters on the other hand in connection with the offering of the U.S.
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
The relative fault of the Company on the one hand and the U.S.
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
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<PAGE>
The Company and the U.S. Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the U.S. 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 Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of any 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 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any U.S. Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The U.S. Underwriters may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the U.S. Prospectus, any
material adverse change in the condition, financial or otherwise, earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if
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<PAGE>
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the U.S. Underwriters, impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the New York Stock Exchange, the London
Stock Exchange or the Bermuda Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either United
States Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the U.S. Underwriters shall have the
right, but not the obligation, within 24 hours thereafter, to make arrangements
for one or more of the non-defaulting U.S. Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the U.S. Underwriters shall not have completed such
arrangements within such 24-hour period, then this Agreement shall terminate
without liability on the part of any non-defaulting U.S. Underwriters.
No action taken pursuant to this Section shall relieve any defaulting U.S.
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the U.S. Underwriters or the Company shall have the right
to postpone the Closing Time or a Date of Delivery for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or the Prospectuses or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Underwriters at North Tower, World
Financial Center, New York, New York 10281-1201, U.S.A., attention of Raymond
Wong, Esq.; and notices to the Company shall be directed to it at The Gibbons
Building, 10 Queen Street, Suite 301, Hamilton HM11, Bermuda, attention of John
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<PAGE>
D. Campbell, the Secretary, with a copy to Tyco (US), One Tyco Park, Exeter, New
Hampshire 03833, U.S.A., attention of M. Brian Moroze, Esq.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the U.S. Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the U.S.
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the U.S. Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any U.S.
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Consent to Jurisdiction and Service of Process. The Company
agrees that any legal suit, action or proceeding brought by any party to enforce
any rights under or with respect to this Agreement and the International
Purchase Agreement or any other document or the transactions contemplated hereby
or thereby may be instituted in any state or federal court in The City of New
York, State of New York, U.S.A., irrevocably waives to the fullest extent
permitted by law any objection which it may now or hereafter have to the laying
of venue of any such suit, action or proceeding, irrevocably waives to the
fullest extent permitted by law any claim that and agrees not to claim or plead
in any court that any such action, suit or proceeding brought in such court has
been brought in an inconvenient forum and irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding or for recognition and enforcement of any judgment in respect
thereof.
The Company hereby irrevocably and unconditionally designates and appoints
CT Corporation System, 1633 Broadway, New York, New York 10019, U.S.A. (and any
successor entity) as the Company's authorized agent to receive and forward on
its behalf service of any and all process which may be served in any such suit,
action or proceeding in any such court and agrees that service of process upon
CT Corporation shall be deemed in every respect effective service of process
upon the Company in any such suit, action or proceeding and shall be taken and
held to be valid personal service upon the Company. Said designation and
appointment shall be irrevocable. Nothing in this Section 14 shall affect the
right of the U.S. Underwriters, their affiliates or any indemnified party to
serve process in any manner permitted by law or limit the right of the U.S.
Underwriters, their affiliates or any indemnified party to bring proceedings
against the Company in the courts of any jurisdiction or jurisdictions. The
Company further agrees to take any and all action, including the execution and
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment
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<PAGE>
of CT Corporation in full force and effect so long as the Common Shares are
outstanding but in no event for a period longer than five years from the date of
this Agreement. The Company hereby irrevocably and unconditionally authorizes
and directs CT Corporation to accept such service on its behalf. If for any
reason CT Corporation ceases to be available to act as such, the Company agrees
to designate a new agent in New York City on the terms and for the purposes of
this provision reasonably satisfactory to the U.S. Underwriters.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court (including, without limitation, any court in the
United States, the State of New York, Bermuda or any political subdivision
thereof) or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property or assets, this Agreement, the
International Purchase Agreement or any other documents or actions to enforce
judgments in respect of any thereof, the Company hereby irrevocably waives such
immunity, and any defense based on such immunity, in respect of its obligations
under the above-referenced documents and the transactions contemplated thereby,
to the extent permitted by law.
SECTION 15. Judgment Currency. If pursuant to a judgment or order being
made or registered against the Company, any payment under or in connection with
this Agreement to a U.S. Underwriter is made or satisfied in a currency (the
"Judgment Currency") other than in United States dollars then, to the extent
that the payment (when converted into United States dollars at the rate of
exchange on the date of payment or, if it is not practicable for such U.S.
Underwriter to purchase United States dollars with the Judgment Currency on the
date of payment, at the rate of exchange as soon thereafter as it is practicable
for it to do so) actually received by such U.S. Underwriter falls short of the
amount due under the terms of this Agreement, the Company shall, to the extent
permitted by law, as a separate and independent obligation, indemnify and hold
harmless such U.S. Underwriter against the amount of such short fall and such
indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. For the purpose of this Section, "rate of
exchange" means the rate at which the U.S. Underwriter is able on the relevant
date to purchase United States dollars with the Judgment Currency and shall take
into account any premium and other costs of exchange.
SECTION 16. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
TYCO INTERNATIONAL LTD.
By _________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By________________________________________
Authorized Signatory
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<PAGE>
SCHEDULE A
Number of
Initial U.S.
Name of U.S. Underwriter Securities
------------------------ ----------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.................................... 4,400,000
Credit Suisse First Boston Corporation...................... 4,400,000
Lehman Brothers Inc......................................... 4,400,000
J.P. Morgan Securities Inc.................................. 4,400,000
Total....................................................... 17,600,000
==========
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<PAGE>
SCHEDULE B
TYCO INTERNATIONAL LTD.
17,600,000 Common Shares
(Par Value U.S. $.20 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be U.S.$50.75.
2. The purchase price per share for the U.S. Securities to be paid
by the several U.S. Underwriters shall be U.S.$49.35, being an amount equal to
the initial public offering price set forth above less U.S.$1.40 per share;
provided that the purchase price per share for any U.S. Option Securities
purchased upon the exercise of the over-allotment option described in Section
2(b) shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial U.S. Securities
but not payable on the U.S. Option Securities (for purposes of this agreement,
dividends declared by the Company subsequent to the Closing Time that are
payable on Common Shares held as of a record date that is subsequent to a Date
of Delivery are payable on the U.S. Option Securities).
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<PAGE>
SCHEDULE C
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP
L. Dennis Kozlowski
Jerry R. Boggess
David P. Brownell
Robert P. Mead
Richard J. Meelia
Barbara S. Miller
Mark H. Swartz
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<PAGE>
EXHIBIT 99.2
================================================================================
TYCO INTERNATIONAL LTD.
(a Bermuda company)
4,400,000 of Common Shares
INTERNATIONAL PURCHASE AGREEMENT
Dated: March 2, 1998
================================================================================
<PAGE>
Table of Contents
INTERNATIONAL PURCHASE AGREEMENT.............................................1
SECTION 1. Representations and Warranties.................................4
(a) Representations and Warranties by the Company........................4
(i) Compliance with Registration Requirements..........................4
(ii) Incorporated Documents............................................5
(iii) Independent Accountants..........................................5
(iv) Financial Statements..............................................5
(v) No Material Adverse Change in Business.............................5
(vi) Good Standing of the Company......................................6
(vii) Good Standing of Subsidiaries....................................6
(viii) Capitalization..................................................6
(ix) Authorization of Agreement........................................7
(x) Authorization and Description of Securities........................7
(xi) Absence of Defaults and Conflicts.................................7
(xii) Absence of Labor Dispute.........................................8
(xiii) Absence of Proceedings..........................................8
(xiv) Accuracy of Exhibits.............................................8
(xv) Absence of Further Requirements...................................8
(xvi) Investment Company Act...........................................8
(xvii) Foreign Corrupt Practices Act...................................9
(xviii) Choice of Law..................................................9
(xix) Immunity.........................................................9
(b) Officer's Certificates...............................................9
SECTION 2. Sale and Delivery to International Managers; Closing..........10
(a) Initial Securities..................................................10
(b) Option Securities...................................................10
(c) Payment.............................................................10
(d) Denominations; Registration.........................................11
SECTION 3. Covenants of the Company......................................11
(a) Compliance with Securities Regulations and Commission Requests......11
(b) Filing of Amendments................................................12
(c) Delivery of Registration Statements.................................12
(d) Delivery of Prospectuses............................................12
(e) Continued Compliance with Securities Laws...........................12
(f) Blue Sky Qualifications.............................................13
(g) Rule 158............................................................13
(h) Use of Proceeds.....................................................13
(i) Listing.............................................................13
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<PAGE>
(j) Restriction on Sale of Securities...................................14
(k) Reporting Requirements..............................................14
SECTION 4. Payment of Expenses...........................................14
(a) Expenses............................................................14
(b) Termination of Agreement............................................15
SECTION 5. Conditions of International Managers' Obligations.............15
(a) Effectiveness of Registration Statement.............................15
(b) Opinion of General Counsel of Tyco (US).............................15
(c) Opinion of United States Counsel for Company........................15
(d) Opinion of Bermuda Counsel for Company..............................15
(e) Opinion of English Counsel for Company..............................16
(f) Opinion of Counsel for International Managers.......................16
(g) Officers' Certificate...............................................16
(h) Accountant's Comfort Letter.........................................16
(i) Bring-down Comfort Letter...........................................16
(j) Approval of Listing.................................................17
(k) Lock-up Agreements..................................................17
(l) Indemnification Agreement...........................................17
(m) Certificate of Chief Financial Officer..............................17
(n) Purchase of Initial U.S. Securities.................................17
(o) Conditions to Purchase of International Option Securities...........17
(i) Officers' Certificate.............................................17
(ii) Opinion of General Counsel of Tyco (US)..........................17
(iii) Opinion of United States Counsel for Company....................17
(iv) Opinion of Bermuda Counsel for the Company.......................18
(v) Opinion of English Counsel for Company............................18
(vi) Opinion of Counsel for International Managers....................18
(vii) Bring-down Comfort Letter.......................................18
(p) Additional Documents................................................18
(q) Termination of Agreement............................................18
SECTION 6. Indemnification...............................................19
(a) Indemnification of International Managers...........................19
(b) Indemnification of Company, Directors and Officers..................19
(c) Actions against Parties; Notification...............................20
(d) Settlement without Consent if Failure to Reimburse..................21
SECTION 7. Contribution..................................................21
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery ...................................................22
SECTION 9. Termination of Agreement......................................23
(a) Termination; General................................................23
(b) Liabilities.........................................................23
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SECTION 10. Default by One or More of the International Managers.........23
SECTION 11. Notices......................................................24
SECTION 12. Parties......................................................24
SECTION 13. GOVERNING LAW AND TIME.......................................24
SECTION 14. Consent to Jurisdiction and Service of Process...............24
SECTION 15. Judgment Currency............................................25
SECTION 16. Effect of Headings...........................................25
SCHEDULES
Schedule A - List of Underwriters...................................Sch A-1
Schedule B - Pricing Information....................................Sch B-1
Schedule C - List of Persons subject to Lock-up.....................Sch C-1
EXHIBITS
Exhibit A-1 - Form of Opinion of General Counsel of Tyco (US).........A-1-1
Exhibit A-2 - Form of Opinion of Company's United States Counsel......A-2-1
Exhibit A-3 - Form of Opinion of Company's Bermuda Counsel............A-3-1
Exhibit A-4 - Form of Opinion of Company's English Counsel............A-4-1
Exhibit B - Form of Lock-up Letter......................................B-1
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<PAGE>
TYCO INTERNATIONAL LTD.
(a Bermuda company)
4,400,000 of Common Shares
(Par Value U.S. $.20 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
March 2, 1998
MERRILL LYNCH INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
LEHMAN BROTHERS INTERNATIONAL (EUROPE)
J.P. MORGAN SECURITIES LTD.
c/o Merrill Lynch International
20 Farringdon Road
London EC1M
England
Ladies and Gentlemen:
Tyco International Ltd., a Bermuda company (the "Company"), confirms its
agreement with Merrill Lynch International ("Merrill Lynch"), Credit Suisse
First Boston (Europe) Limited, Lehman Brothers International (Europe) and J.P.
Morgan Ltd. (collectively, the "International Managers", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof) with respect to the issue and sale by the Company and the purchase by
the International Managers, acting severally and not jointly, of the respective
numbers of Common Shares, par value U.S. $.20 per share, of the Company ("Common
Shares") set forth in Schedule A hereto, and with respect to the grant by the
Company to the International Managers, acting severally and not jointly, of the
option described in Section 2(b) hereof to purchase all or any part of 660,000
additional Common Shares to cover over-allotments, if any. The aforesaid
4,400,000 Common Shares (the "Initial International Securities") to be purchased
by the International Managers and all or any part of the 660,000 Common Shares
subject to the option described in Section 2(b) hereof (the "International
Option Securities") are hereinafter called, collectively, the "International
Securities."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an
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aggregate of 17,600,000 Common Shares (the "Initial U.S. Securities") through
arrangements with Merrill Lynch, Pierce, Fenner & Smith Incorporated, Credit
Suisse First Boston Corporation, Lehman Brothers Inc. and J.P. Morgan Securities
Inc. in the United States and Canada (the "U.S. Underwriters") and the grant by
the Company to the U.S. Underwriters, acting severally and not jointly, of an
option to purchase all or any part of the U.S. Underwriters' pro rata portion of
up to 2,640,000 additional Common Shares solely to cover overallotments, if any
(the "U.S. Option Securities"). The Initial U.S. Securities and the U.S. Option
Securities are hereinafter called the "U.S. Securities." It is understood that
the Company is not obligated to sell and the International Managers are not
obligated to purchase, any Initial International Securities unless all of the
Initial U.S. Securities are contemporaneously purchased by the U.S.
Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters," the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities," the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities" and the International Option
Securities and the U.S. Option Securities are hereinafter collectively called
the "Option Securities."
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the International
Managers deem advisable after this Agreement has been executed and delivered.
The Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-43333) covering the registration of the Securities under the United States
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Such
registration statement (as amended, if applicable) has been declared effective
by the Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the 1933 Act Regulations or any preliminary prospectus supplement
specifically relating to the Securities filed with the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations being hereinafter called a "Preliminary
Prospectus"). The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term
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<PAGE>
"Registration Statement" shall include the Rule 462(b) Registration Statement.
Such registration statement and any post effective amendment thereto and the
prospectus constituting a part thereof, and each prospectus supplement relating
to the offering of Securities (the "Prospectus Supplement"), including all
documents incorporated therein by reference, and including the Rule 430A
Information and the Rule 434 Information, as applicable, as from time to time
amended or supplemented pursuant to the 1933 Act, the United States Securities
Exchange Act of 1934, as amended (the "1934 Act") or otherwise, are collectively
referred to herein as the "Registration Statement" and the "Prospectus,"
respectively; provided that a Prospectus Supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of Securities to
which it relates. Any registration statement filed pursuant to Rule 462(b) of
the 1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. Promptly after execution and
delivery of this Agreement, the Company will either (i) prepare and file a
prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the
1933 Act Regulations and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933
Act Regulations or (ii) if the Company has elected to rely upon Rule 434 ("Rule
434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two forms
of prospectus supplement are to be used in connection with the offering and sale
of the Securities: one relating to the International Securities (the "Form of
International Prospectus Supplement") and one relating to the U.S. Securities
(the "Form of U.S. Prospectus Supplement"). The Form of International Prospectus
Supplement is identical to the Form of U.S. Prospectus Supplement, except for
the front cover and back cover pages and the information under the caption
"Underwriting." The final Form of International Prospectus Supplement and the
final Form of U.S. Prospectus Supplement, including the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, and
including the prospectus constituting a part of the Registration Statement, in
the forms first furnished to the Underwriters for use in connection with the
offering of the Securities are herein called the "International Prospectus" and
the "U.S. Prospectus," respectively, and collectively, the "Prospectuses." If
Rule 434 is relied on, the terms "International Prospectus" and "U.S.
Prospectus" shall refer to the preliminary International Prospectus dated
February 20, 1998 and preliminary U.S. Prospectus dated February 20, 1998,
respectively, each together with the applicable Term Sheet and all references in
this Agreement to the date of such Prospectuses shall mean the date of the
applicable Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectuses, the Form
of International Prospectus Supplement, the Form of U.S. Prospectus Supplement
or any Term Sheet or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included," "stated," "disclosed" or
"referred to" in the Registration Statement, any preliminary prospectus
(including the Form of International Prospectus Supplement and Form of U.S.
Prospectus Supplement) or the Prospectuses (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information which is incorporated by reference in the Registration
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<PAGE>
Statement, any preliminary prospectus (including the Form of International
Prospectus Supplement and Form of U.S. Prospectus Supplement) or the
Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectuses, as the
case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each International Manager as of the date hereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof and agrees with each
International Manager, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither of the Prospectuses nor any
amendments or supplements thereto, at the time the Prospectuses or any
amendments or supplements thereto were issued and at the Closing Time
(and, if any International Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading. If Rule 434 is used, the Company will
comply with the requirements of Rule 434. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the International Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any International Manager expressly for use in the
Registration Statement or the International Prospectus.
Each preliminary prospectus and the prospectuses filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to
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<PAGE>
Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and each preliminary prospectus and
the Prospectuses delivered to the Underwriters for use in connection with
this offering were identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectuses, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectuses, at the time the
Registration Statement became effective, at the time the Prospectuses were
issued and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
statement of operations, shareholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
except as otherwise stated in the Registration Statement, said financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present fairly
in accordance with GAAP the information required to be stated therein. The
selected financial data and the summary financial information included in
the Prospectuses present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial or
otherwise, earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered
as one enterprise, and (C) except for regular quarterly dividends
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<PAGE>
on the Common Shares in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its share capital.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of Bermuda with power and authority (corporate and
other) under such laws to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and to enter into
and perform its obligations under this Agreement and the U.S. Purchase
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Significant Subsidiary" and all of the Company's
subsidiaries are collectively hereinafter referred to as the
"Subsidiaries") has been duly organized and is validly existing as a
corporation under the laws of its jurisdiction of incorporation, has
corporate power and authority to own its properties and to conduct its
business as described in the Prospectuses and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to be so qualified or in good standing would not result
in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of
each such Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and (except for non-material
liens that have arisen in the ordinary course of business and, in the case
of non-U.S. subsidiaries, for directors' qualifying shares) is owned by
the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims.
(viii) Capitalization. The Company has authorized, issued and
outstanding share capital as set forth in the Prospectuses under the
caption "Capitalization" (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred to in the
Prospectuses). The issued and outstanding share capital of the Company has
been duly authorized and validly issued and is fully paid and
non-assessable; none of the outstanding share capital of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company. Except as disclosed in the Prospectuses,
there are no holders of securities (debt or equity) of the Company or any
of its Subsidiaries, or holders of rights (including, without limitation,
preemptive rights), warrants or options to obtain securities of the
Company or its Subsidiaries who have the right to request the Company or
any of its Subsidiaries to register securities held by them
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<PAGE>
under the 1933 Act other than holders who have elected not to exercise
their rights or whose securities have been so registered. All of the
Registrable Securities (other than Registrable Securities constituting or
issued or issuable upon exercise of Warrants) under the Registration
Rights Agreement, dated as of July 7, 1992 among Kendall International
Inc. (whose obligations have been assumed by the Company) and the
stockholders and other parties named therein (the "Kendall Registration
Rights Agreement") are freely tradeable under the United States federal
securities laws (including pursuant to Rule 144 of the 1933 Act
Regulations, without regard to the volume limitations thereunder).
(ix) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by
the Company.
(x) Authorization and Description of Securities. The
Securities to be purchased by the International Managers and the U.S.
Underwriters from the Company have been duly authorized for issuance and
sale to the International Managers pursuant to this Agreement and to the
U.S. Underwriters pursuant to the U.S. Purchase Agreement, respectively,
and, when issued and delivered by the Company pursuant to this Agreement
and the U.S. Purchase Agreement, respectively, against payment of the
consideration set forth herein and in the U.S. Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable; the
Common Shares conform to all statements relating thereto contained in the
Prospectuses and such description conforms to the rights set forth in the
instruments defining the same; and the issuance of the Securities is not
subject to the preemptive or other similar rights of any securityholder of
the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its Subsidiaries is in violation of its memorandum of
association or bye-laws (with respect to the Company, the "Memorandum of
Association" and the "Bye-laws," respectively) (or equivalent charter
documents) or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the U.S.
Purchase Agreement and the consummation of the transactions contemplated
in this Agreement, the U.S. Purchase Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the use
of the proceeds from the sale of the Securities as described in the
Prospectuses under the caption "Use of Proceeds") and compliance by the
Company with its obligations under this Agreement and the U.S. Purchase
Agreement have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments (except for
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<PAGE>
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the Memorandum of Association
or Bye-laws (or equivalent charter documents) of the Company or any
subsidiary or any law, statute, rule, regulation, judgment, order, writ or
decree applicable to the Company or of any government, government
instrumentality or court, U.S. or non-U.S., having jurisdiction over the
Company or any subsidiary or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any subsidiary.
(xii) Absence of Labor Dispute. Except as disclosed in the
Prospectuses, no labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, which
could reasonably be expected to result in a Material Adverse Effect.
(xiii) Absence of Proceedings. Except as disclosed in the
Prospectuses, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, U.S. or non-U.S., now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any Subsidiary, which is
required to be disclosed in the Registration Statement, or which could
reasonably be expected to result in a Material Adverse Effect, or which
could reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement and the
U.S. Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectuses or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities under this Agreement and the U.S. Purchase Agreement or
the consummation of the transactions contemplated by this Agreement and
the U.S. Purchase Agreement, except such as have been already obtained or
as may be required under the 1933 Act or the 1933 Act Regulations or
non-U.S. or state securities or blue sky laws.
(xvi) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectuses
will not be, an "investment
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<PAGE>
company" or an entity "controlled" by an "investment company" as such
terms are defined in the United States Investment Company Act of 1940, as
amended (the "1940 Act").
(xvii) Foreign Corrupt Practices Act. Neither the Company
nor, to the best of the Company's knowledge, any officer, director,
employee, agent or shareholder thereof, in each case, acting on behalf of
the Company, has done any act or authorized, directed or participated in
any act, in violation of any provision of the United States Foreign
Corrupt Practices Act of 1977, as amended, applicable to such entity or
person for which civil or criminal liability or penalties, as the case may
be, could currently be imposed on the Company.
(xviii) Choice of Law. The choice of law provisions set forth
in each of this Agreement and the U.S. Purchase Agreement are legal, valid
and binding under the laws of Bermuda and will be recognized and given
effect to by the courts of Bermuda (unless a court determined that doing
so would be contrary to public policy in Bermuda); the Company has the
legal capacity to sue and be sued in its own name under the laws of
Bermuda; the Company has, under the laws of Bermuda, the power to submit,
and has irrevocably submitted, to the jurisdiction of the New York courts
and has validly and irrevocably appointed CT Corporation System, 1633
Broadway, New York, New York 10019 U.S.A. (and any successor entity) as
its authorized agent for the service of process pursuant to this Agreement
and the U.S. Purchase Agreement; the irrevocable submission of the Company
to the jurisdiction of the New York courts and the waiver by the Company
of any immunity and any objection to the venue of the proceeding in a New
York court, included in this Agreement and the U.S. Purchase Agreement,
are legal, valid and binding under the laws of Bermuda. Neither the
Company nor any of its respective assets is entitled to immunity (or any
similar defense) from suit, execution, attachment or other legal process
in Bermuda. Each of this Agreement and the U.S. Purchase Agreement is in
proper legal form under the laws of Bermuda for the enforcement thereof
against the Company, and nothing in Bermuda law prevents suit upon this
Agreement and the U.S. Purchase Agreement in the courts of Bermuda. It is
not necessary (a) in order to enable the International Managers to
exercise or enforce their rights under this Agreement or the U.S. Purchase
Agreement in Bermuda, or (b) by reason of the entry into and/or the
performance of this Agreement or the U.S. Purchase Agreement, that any of
the International Managers should be licensed, qualified, authorized or
entitled to do business in Bermuda.
(xix) Immunity. In any proceedings in Bermuda or elsewhere in
connection with either this Agreement or the U.S. Purchase Agreement, the
Company will not be entitled to claim for itself or any of its assets or
property immunity from suit, execution, attachment or other legal process.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its Subsidiaries delivered to the Global Coordinator, the
International
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<PAGE>
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each International Manager, severally and
not jointly, and each International Manager, severally and not jointly, agrees
to purchase from the Company, at the price per share set forth in Schedule B,
the number of Initial International Securities set forth in Schedule A opposite
the name of such International Manager, plus any additional number of Initial
International Securities which such International Manager may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
International Managers, severally and not jointly, to purchase up to an
additional 660,000 Common Shares at the price per share set forth in Schedule B,
less an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial International Securities but not payable on
the International Option Securities (for purposes of this agreement, dividends
declared by the Company subsequent to the Closing Time that are payable on
Common Shares held as of a record date that is subsequent to a Date of Delivery
are payable on the International Option Securities). The option hereby granted
will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
International Securities upon notice by the Global Coordinator to the Company
setting forth the number of International Option Securities as to which the
several International Managers are then exercising the option and the time and
date of payment and delivery for such International Option Securities. Any such
time and date of delivery for the International Option Securities (a "Date of
Delivery") shall be determined by the Global Coordinator, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined, or later than April 10,
1998. If the option is exercised as to all or any portion of the International
Option Securities, each of the International Managers, acting severally and not
jointly, will purchase that proportion of the total number of International
Option Securities then being purchased which the number of Initial International
Securities set forth in Schedule A opposite the name of such International
Manager bears to the total number of Initial International Securities, subject
in each case to such adjustments as the Global Coordinator in its discretion
shall make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Fried,
Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New York 10004
U.S.A., or at such other place as shall be agreed upon by the Global Coordinator
and the Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
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after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Global Coordinator and the Company (such time and
date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company, which Date of Delivery shall not be later than April 10, 1998.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the respective accounts of the International Managers of certificates for the
International Securities to be purchased by them. It is understood that each
International Manager has authorized Merrill Lynch, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial International Securities and the International Option Securities, if
any, which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the International Managers, may (but shall not be obligated
to) make payment of the purchase price for the Initial International Securities
or the International Option Securities, if any, to be purchased by any
International Manager whose funds have not been received by the Closing Time or
the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the International
Managers may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial International Securities and the International
Option Securities, if any, will be made available for examination and packaging
by the International Managers in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Global Coordinator
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectuses or for additional information, and
(iv) of the issuance by the Commission of
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any stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term Sheet
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the
Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Global Coordinator with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Global Coordinator or
counsel for the International Managers shall reasonably and timely object in
writing.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the International Managers and counsel for the International
Managers, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts. The copies of the Registration Statement
and each amendment thereto furnished to the International Managers will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the International
Prospectus (as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any amendments or
supplements thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement, the U.S. Purchase Agreement and in
the Prospectuses. If at any time when a
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prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the International Managers
or for the Company, to amend the Registration Statement or amend or supplement
any Prospectus in order that the Prospectuses will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement any Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectuses comply
with such requirements, and the Company will furnish to the International
Managers such number of copies of such amendment or supplement as the
International Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the International Managers, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (U.S. and non-U.S.) as the Global Coordinator may designate and to
maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange. The Company shall file
an application for listing of the Securities on the London and Bermuda Stock
Exchanges as soon as practicable and use its best efforts to list the Securities
on the London and Bermuda Stock Exchanges not later than one year after the
Closing Time.
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(j) Restriction on Sale of Securities. During a period of 60 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any Common Shares or any securities
convertible into or exercisable or exchangeable for Common Shares or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Shares, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of Common
Shares or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the Securities to be sold hereunder or under the U.S.
Purchase Agreement, (B) any Common Shares issued by the Company upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof and referred to in the Prospectuses or (C) any Common Shares
issued or options to purchase Common Shares granted pursuant to employee benefit
plans of the Company pursuant to the terms thereof as in effect on the date
hereof.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company agrees to pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters, any Intersyndicate Agreement and
such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the International
Managers and the U.S. Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheets and of the Prospectuses and any amendments or supplements thereto,
(vii) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of
any transfer agent or registrar for the Securities and (ix) the fees and
expenses incurred in connection with the listing of the Securities on the New
York Stock Exchange, the London Stock Exchange and the Bermuda Stock Exchange.
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<PAGE>
(b) Termination of Agreement. If this Agreement is terminated by the
International Managers in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the International Managers for all
of their out-of-pocket expenses, including the reasonable fees and disbursements
of Fried, Frank, Harris, Shriver & Jacobson as counsel for the International
Managers.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the International Managers. A
prospectus containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of General Counsel of Tyco (US). At Closing Time, the
International Managers shall have received the favorable opinion, dated as of
Closing Time, of M. Brian Moroze, Esq., General Counsel Tyco International (US)
Inc., a subsidiary of the Company ("Tyco (US)"), in form and substance
satisfactory to counsel for the International Managers, to the effect set forth
in Exhibit A-1 hereto and to such further effect as counsel to the International
Managers may reasonably request.
(c) Opinion of United States Counsel for Company. At Closing Time,
the International Managers shall have received the favorable opinion, dated as
of Closing Time, of Kramer, Levin, Naftalis & Frankel, United States counsel for
the Company, in form and substance satisfactory to counsel for the International
Managers, to the effect set forth in Exhibit A-2 hereto and to such further
effect as counsel to the International Managers may reasonably request.
(d) Opinion of Bermuda Counsel for Company. At the Closing Time, the
International Managers shall have received the favorable opinion, dated as of
the Closing Time, of Appleby, Spurling & Kempe, Bermuda counsel for the Company,
in form and substance satisfactory to counsel for the International Managers, to
the effect set forth in Exhibit A-3 hereto and to such further effect as counsel
to the International Managers may reasonably request.
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<PAGE>
(e) Opinion of English Counsel for Company. At the Closing Time, the
International Managers shall have received the favorable opinion, dated as of
the Closing Time, of Allen & Overy, special legal advisors in England for the
Company, in form and substance satisfactory to counsel for the International
Managers, to the effect set forth in Exhibit A-4 hereto and to such further
effect as counsel to the International Managers may reasonably request.
(f) Opinion of Counsel for International Managers. At Closing Time,
the International Managers shall have received the favorable opinion, dated as
of Closing Time, of Fried, Frank, Harris, Shriver & Jacobson, counsel for the
International Managers, together with signed or reproduced copies of such letter
for each of the other International Managers, with respect to the matters set
forth in clause (iii) of Exhibit A-1 hereto and in clauses (i) and (ii) of
Exhibit A-2 hereto and in clauses (i) and (iv) of Exhibit A-3. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the International Managers (and, as to
all matters governed by the laws of Bermuda, on the opinion of the Company's
Bermuda counsel referred to in subsection (d) of this Section). Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(g) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in the
condition, financial or otherwise, earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the International
Managers shall have received a certificate of the President or a Vice President
of the Company and of the chief financial or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(h) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the International Managers shall have received from Coopers &
Lybrand a letter dated such date, in form and substance satisfactory to the
International Managers, together with signed or reproduced copies of such letter
for each of the other International Managers, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectuses.
(i) Bring-down Comfort Letter. At Closing Time, the International
Managers shall have received from Coopers & Lybrand a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) of this
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Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(j) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(k) Lock-up Agreements. At the date of this Agreement, the
International Managers shall have received an agreement substantially in the
form of Exhibit B hereto signed by the persons listed on Schedule C hereto.
(l) Indemnification Agreement. The Company shall have executed the
indemnification agreement with the Underwriters dated as of even date herewith
and such agreement shall be in full force and effect and represent a binding and
enforceable agreement of the Company.
(m) Certificate of Chief Financial Officer. At the Closing Time, if
requested by the International Managers, you shall have received a certificate
of the Chief Financial Officer of the Company as to certain agreed upon
accounting matters.
(n) Purchase of Initial U.S. Securities. Contemporaneously with the
purchase by the International Managers of the Initial International Securities
under this Agreement, the U.S. Underwriters shall have purchased the Initial
U.S. Securities under the U.S. Purchase Agreement.
(o) Conditions to Purchase of International Option Securities. In
the event that the International Managers exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the International Managers shall
have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming that
the certificate delivered at the Closing Time pursuant to Section 5(g)
hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of General Counsel of Tyco (US). The favorable
opinion of M. Brian Moroze, Esq, General Counsel of Tyco (US), in form and
substance satisfactory to counsel for the International Managers, dated
such Date of Delivery, relating to the International Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b) hereof.
(iii) Opinion of United States Counsel for Company. The
favorable opinion of Kramer, Levin, Naftalis & Frankel, United States
counsel for the Company, in form and substance satisfactory to counsel for
the International Managers, dated such
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Date of Delivery, relating to the International Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(iv) Opinion of Bermuda Counsel for the Company. The favorable
opinion of Appleby, Spurling & Kempe, Bermuda counsel to the Company, in
form and substance satisfactory to counsel for the International Managers,
dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required in Section 5(d) hereof.
(v) Opinion of English Counsel for Company. The favorable
opinion of Allen & Overy, special legal advisors in England for the
Company, in form and substance satisfactory to counsel for the
International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required in Section 5(e)
hereof.
(vi) Opinion of Counsel for International Managers. The
favorable opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel for
the International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(f)
hereof.
(vii) Bring-down Comfort Letter. A letter from Coopers &
Lybrand, in form and substance satisfactory to the International Managers
and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the International Managers pursuant
to Section 5(i) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than five
days prior to such Date of Delivery.
(p) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the International Managers shall have been furnished with
such documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in form and
substance to the International Managers and counsel for the International
Managers.
(q) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of International
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
Option Securities, may be terminated by the International Managers by notice to
the Company at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in
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Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. The Company agrees to
indemnify and hold harmless each International Manager and each person, if any,
who controls any International Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the International
Prospectus (or any amendment or supplement thereto); provided, further, that the
Company will not be liable to any International Manager or any person
controlling such International Manager with respect to any such untrue statement
or alleged untrue statement or omission or alleged omission made in any
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preliminary prospectus to the extent that the Company shall sustain the burden
of proving that any such loss, liability, claim, damage or expense resulted from
the fact that such International Manager, in contravention of a requirement of
this Agreement or applicable law, sold securities to a person to whom such
International Manager failed to send or give, at or prior to the written
confirmation of the sale of such Securities, a copy of the International
Prospectus (as amended or supplemented) if the Company has previously furnished
copies thereof (sufficiently in advance of the Closing Date to allow for
distribution of the International Prospectus in a timely manner) to the
International Manager and the loss, liability, claim, damage or expense of such
International Manager resulted solely from an untrue statement or omission or
alleged untrue statement or omission of a material fact contained in or omitted
from such preliminary prospectus which was corrected in the International
Prospectus.
(b) Indemnification of Company, Directors and Officers. Each
International Manager severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
international prospectus or the International Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such International Manager expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the International Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability 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 on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by Merrill Lynch,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
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indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 65 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 45 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement. Notwithstanding the immediately preceding sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 6(a)(ii) or 6(b)(ii) effected without its consent if
such indemnifying party (i) reimburses such indemnified party in accordance with
such request to the extent it considers such request to be reasonable and (ii)
provides written notice to the indemnified party setting forth in reasonable
detail its basis for disputing the unpaid balance, in each case prior to the
date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the International Managers on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
International Managers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
International Managers on the other hand in connection with the offering of the
International Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
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The relative fault of the Company on the one hand and the International
Managers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the International Managers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the International Managers 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 Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager has otherwise been required to pay by
reason of any 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 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The International Managers' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any International Manager or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the International Managers.
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SECTION 9. Termination of Agreement.
(a) Termination; General. The International Managers may terminate
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the International
Prospectus, any material adverse change in the condition, financial or
otherwise, earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
International Managers, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, the London Stock Exchange or the Bermuda Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either United States Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the International Managers. If one
or more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the International Managers
shall have the right, but not the obligation, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting International Managers,
or any other underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the International Managers shall not have
completed such arrangements within such 24-hour period, then this Agreement
shall terminate without liability on the part of any non-defaulting
International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the International Managers or the Company shall have the
right to postpone the Closing Time or a Date of Delivery for a period not
exceeding seven days in order to effect any required
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<PAGE>
changes in the Registration Statement or the Prospectuses or in any other
documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the International Managers at 20
Farringdon Road, London EC1M, England, attention of Alex Woodthorpe; and notices
to the Company shall be directed to it at The Gibbons Building, 10 Queen Street,
Suite 301, Hamilton HM11, Bermuda, attention of John D. Campbell, the Secretary,
with a copy to Tyco (US), One Tyco Park, Exeter, New Hampshire 03833, U.S.A.
attention of M. Brian Moroze, Esq.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the International Managers and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
International Managers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the International Managers and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Consent to Jurisdiction and Service of Process. The Company
agrees that any legal suit, action or proceeding brought by any party to enforce
any rights under or with respect to this Agreement and the U.S. Purchase
Agreement or any other document or the transactions contemplated hereby or
thereby may be instituted in any state or federal court in The City of New York,
State of New York, U.S.A., irrevocably waives to the fullest extent permitted by
law any objection which it may now or hereafter have to the laying of venue of
any such suit, action or proceeding, irrevocably waives to the fullest extent
permitted by law any claim that and agrees not to claim or plead in any court
that any such action, suit or proceeding brought in such court has been brought
in an inconvenient forum and irrevocably submits to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding or for
recognition and enforcement of any judgment in respect thereof.
The Company hereby irrevocably and unconditionally designates and appoints
CT Corporation System, 1633 Broadway, New York, New York 10019 U.S.A. (and any
successor entity) as the Company's authorized agent to receive and forward on
its behalf service of any and all process which may be served in any such suit,
action or proceeding in any such court and
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<PAGE>
agrees that service of process upon CT Corporation shall be deemed in every
respect effective service of process upon the Company in any such suit, action
or proceeding and shall be taken and held to be valid personal service upon the
Company. Said designation and appointment shall be irrevocable. Nothing in this
Section 14 shall affect the right of the International Managers, their
affiliates or any indemnified party to serve process in any manner permitted by
law or limit the right of the International Managers, their affiliates or any
indemnified party to bring proceedings against the Company in the courts of any
jurisdiction or jurisdictions. The Company further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation in full force and effect so long as the Common Shares are
outstanding but in no event for a period longer than five years from the date of
this Agreement. The Company hereby irrevocably and unconditionally authorizes
and directs CT Corporation to accept such service on its behalf. If for any
reason CT Corporation ceases to be available to act as such, the Company agrees
to designate a new agent in New York City on the terms and for the purposes of
this provision reasonably satisfactory to the Representatives.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court (including, without limitation, any court in the
United States, the State of New York, Bermuda or any political subdivision
thereof) or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property or assets, this Agreement, the
U.S. Purchase Agreement or any other documents or actions to enforce judgments
in respect of any thereof, the Company hereby irrevocably waives such immunity,
and any defense based on such immunity, in respect of its obligations under the
above-referenced documents and the transactions contemplated thereby, to the
extent permitted by law.
SECTION 15. Judgment Currency. If pursuant to a judgment or order being
made or registered against the Company, any payment under or in connection with
this Agreement to an International Manager is made or satisfied in a currency
(the "Judgment Currency") other than in United States dollars then, to the
extent that the payment (when converted into United States dollars at the rate
of exchange on the date of payment or, if it is not practicable for such
International Manager to purchase United States dollars with the Judgment
Currency on the date of payment, at the rate of exchange as soon thereafter as
it is practicable for it to do so) actually received by such International
Manager falls short of the amount due under the terms of this Agreement, the
Company shall, to the extent permitted by law, as a separate and independent
obligation, indemnify and hold harmless such International Manager against the
amount of such short fall and such indemnity shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. For the purpose
of this Section, "rate of exchange" means the rate at which the International
Underwriter is able on the relevant date to purchase United States dollars with
the Judgment Currency and shall take into account any premium and other costs of
exchange.
SECTION 16. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the International Managers and the Company in accordance with its terms.
Very truly yours,
TYCO INTERNATIONAL LTD.
By ______________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
LEHMAN BROTHERS INTERNATIONAL (EUROPE)
J.P. MORGAN SECURITIES LTD.
By: MERRILL LYNCH INTERNATIONAL
By________________________________________
Authorized Signatory
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<PAGE>
SCHEDULE A
Number of
Initial
International
Name of International Manager Securities
----------------------------- ----------
Merrill Lynch, International................................ 1,100,000
Credit Suisse First Boston (Europe) Limited................. 1,100,000
Lehman Brothers International (Europe)...................... 1,100,000
J.P. Morgan Securities Ltd.................................. 1,100,000
Total....................................................... 4,400,000
=========
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SCHEDULE B
TYCO INTERNATIONAL LTD.
4,400,000 Common Shares
(Par Value U.S. $.20 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be U.S. $50.75.
2. The purchase price per share for the International Securities to
be paid by the several International Managers shall be U.S. $49.35, being an
amount equal to the initial public offering price set forth above less U.S.
$1.40 per share; provided that the purchase price per share for any
International Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Initial International Securities but not payable on the
International Option Securities (for purposes of this agreement, dividends
declared by the Company subsequent to the Closing Time that are payable on
Common Shares held as of a record date that is subsequent to a Date of Delivery
are payable on the International Option Securities).
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SCHEDULE C
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP
L. Dennis Kozlowski
Jerry R. Boggess
David P. Brownell
Robert P. Mead
Richard J. Meelia
Barbara S. Miller
Mark H. Swartz
B-29
