<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 21, 1999
REGISTRATION NOS. 333- AND 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
7382
(Primary Standard Industrial
Classification Code Number)
<TABLE>
<S> <C>
TYCO INTERNATIONAL LTD. TYCO INTERNATIONAL GROUP S.A.
(Exact name of registrant as specified (Exact name of registrant as specified
in its charter) in its charter)
BERMUDA LUXEMBOURG
(State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or organization)
NOT APPLICABLE NOT APPLICABLE
(IRS Employer (IRS Employer
Identification No.) Identification No.)
THE ZURICH CENTRE, SECOND FLOOR 6, AVENUE EMILE REUTER
90 PITTS BAY ROAD SECOND FLOOR
PEMBROKE HM 08, BERMUDA L-2420 LUXEMBOURG
(441) 292-8674* (352) 46-43-40-1
(Address, including zip code, and telephone (Address, including zip code, and telephone
number, including area code, of registrant's number, including area code, of registrant's
principal executive offices) principal executive offices)
</TABLE>
------------------------
MARK H. SWARTZ
c/o Tyco International (US) Inc.
One Tyco Park
Exeter, New Hampshire 03833
(603) 778-9700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
*Tyco International Ltd. maintains its registered and principal executive
offices at The Zurich Centre, Second Floor, 90 Pitts Bay Road, Pembroke HM 08,
Bermuda. The executive offices of Tyco's principal U.S. subsidiary, Tyco
International (US) Inc., are located at One Tyco Park, Exeter, New Hampshire
03833. The telephone number there is (603) 778-9700.
------------------------------
COPY TO:
JOSHUA M. BERMAN, ESQ.
ABBE L. DIENSTAG, ESQ.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
(212) 715-9100
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after expiration of the exchange offer described herein.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER NOTE (1) OFFERING PRICE(1) FEE(2)
<S> <C> <C> <C> <C>
6 7/8% Notes due 2002......... $1,000,000,000 100% $1,000,000,000 $264,000
</TABLE>
(1) Estimated solely for the purposes of computing the registration fee pursuant
to Rule 457(f)(2) under the Securities Act of 1933.
(2) Calculated by multiplying the aggregate offering amount for each class of
securities by .000264.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PROSPECTUS
$1,000,000,000
TYCO INTERNATIONAL GROUP S.A.
OFFER TO EXCHANGE
UP TO $1,000,000,000 6 7/8% NOTES DUE 2002
FOR ANY AND ALL OUTSTANDING 6 7/8% NOTES DUE 2002
FULLY AND UNCONDITIONALLY GUARANTEED BY
[LOGO]
Summary of the Exchange Offer
This document and accompanying Letter of Transmittal relate to the proposed
offer by Tyco International Group S.A. (the "Company") to exchange up to
$1,000,000,000 aggregate principal amount of new 6 7/8% notes due 2002 for any
and all of its outstanding 6 7/8% notes due 2002. The new notes, which are
referred to as the "exchange notes," will be freely transferable. The
outstanding notes, which are referred to as the "restricted notes," have certain
transfer restrictions.
The restricted notes are, and the exchange notes will be, unsecured and
unsubordinated obligations of the Company that are fully and unconditionally
guaranteed on an unsecured and unsubordinated basis by Tyco International Ltd.
("Tyco"), the Company's corporate parent.
- The exchange offer expires 5:00 p.m. New York City time on , 2000,
unless extended.
- All restricted notes that are tendered and not withdrawn will be exchanged
promptly upon consummation of the exchange offer.
- There should be no United States federal income tax consequences to
holders of restricted notes who exchange restricted notes for exchange
notes pursuant to the exchange offer.
- Holders of restricted notes do not have any appraisal or dissenters'
rights in connection with the exchange offer.
- Restricted notes not exchanged in the exchange offer will remain
outstanding and be entitled to the benefits of the indenture under which
they were issued, but except under certain circumstances will not have
further exchange or registration rights.
- The Company does not intend to apply for listing of the exchange notes on
any securities exchange or to arrange for them to be quoted on any
quotation system.
Each holder of restricted notes wishing to accept the exchange offer must
deliver the restricted notes to be exchanged, together with the Letter of
Transmittal that accompanies this document and any other required documentation,
to the exchange agent identified in this document. Alternatively, you may effect
a tender of restricted notes by book-entry transfer into the exchange agent's
account at the Depository Trust Company. All deliveries are at the risk of the
holder. You can find detailed instructions concerning delivery in the "Exchange
Offer" section of this document and in the accompanying Letter of Transmittal.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE EXCHANGE NOTES OR DETERMINED IF
THIS DOCUMENT IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
YOU SHOULD READ THIS ENTIRE DOCUMENT AND THE ACCOMPANYING LETTER OF
TRANSMITTAL AND RELATED DOCUMENTS AND ANY AMENDMENTS OR SUPPLEMENTS CAREFULLY
BEFORE MAKING YOUR DECISION TO PARTICIPATE IN THE EXCHANGE OFFER.
The date of this prospectus is , 2000
<PAGE>
YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED OR INCORPORATED BY
REFERENCE IN THIS DOCUMENT. NEITHER THE COMPANY NOR TYCO HAS AUTHORIZED ANYONE
ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS DOCUMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON
THE FRONT OF THIS DOCUMENT. NEITHER THE DELIVERY OF THIS DOCUMENT OR THE
ACCOMPANYING LETTER OF TRANSMITTAL, NOR ANY EXCHANGE MADE PURSUANT TO THIS
DOCUMENT SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THE
INFORMATION CONTAINED IN THIS DOCUMENT IS CORRECT AS OF ANY SUBSEQUENT DATE.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL TENDERS OF RESTRICTED
NOTES BE ACCEPTED FROM, HOLDERS OF RESTRICTED NOTES IN ANY JURISDICTION IN WHICH
THE EXCHANGE OFFER OR ITS ACCEPTANCE IS UNLAWFUL.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More Information......................... iii
Forward Looking Information................................. 1
Tyco........................................................ 2
The Company................................................. 2
Ratio of Earnings to Fixed Charges of Tyco.................. 3
Exchange Offer.............................................. 4
Description of the Notes and the Guarantees................. 14
Enforcement of Civil Liabilities............................ 32
Certain Luxembourg, Bermuda and United States Federal Income
Tax Consequences.......................................... 33
Plan of Distribution........................................ 35
Legal Matters............................................... 36
Experts..................................................... 36
</TABLE>
ii
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
In connection with the exchange offer, the Company and Tyco have filed with
the Securities and Exchange Commission a registration statement under the
Securities Act of 1933, relating to the exchange notes. As permitted by SEC
rules, this document omits certain information included in the registration
statement. For a more complete understanding of the exchange offer, you should
refer to the registration statement, including its exhibits.
Tyco also files annual, quarterly and current reports, proxy statements and
other information with the SEC. These filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document filed by Tyco or the Company with the SEC at the SEC's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms and their copy charges. Tyco's common shares are listed on the
New York Stock Exchange, as well as on the London and Bermuda Stock Exchanges.
You can obtain information about Tyco from the New York Stock Exchange at 20
Broad Street, New York, New York 10005.
The SEC allows the Company and Tyco to "incorporate by reference"
information in documents filed with the SEC, which means that they can disclose
important information to you by referring you to those documents. These
incorporated documents contain important business and financial information
about the Company and Tyco that is not included in or delivered with this
document. The information incorporated by reference is considered to be part of
this document, and later information filed with the SEC may update and supersede
this information. The Company and Tyco incorporate by reference the documents
listed below and any future filings made with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the
expiration of the exchange offer.
1. Tyco's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999.
2. Tyco's Current Reports on Form 8-K filed on October 22, 1999,
November 9, 1999, November 22, 1999, December 9, 1999 and December 10,
1999
3. The description of Tyco's common shares as set forth in Tyco's
Registration Statement on Form 8-A/A filed on March 1, 1999.
You may request a copy of these filings at no cost, by writing or calling
Tyco at the following address or telephone number:
Tyco International Ltd.
The Zurich Centre, Second Floor
90 Pitts Bay Road
Pembroke HM 08, Bermuda
(441) 292-8674
Exhibits to the documents will not be sent, unless those exhibits have
specifically been incorporated by reference in this document.
To obtain timely delivery of any copies of filings requested, please write
or telephone no later than , 2000, ten days prior to the expiration of
the exchange offer.
iii
<PAGE>
FORWARD LOOKING INFORMATION
Certain statements contained or incorporated by reference in this document
are "forward looking statements" within the meaning of the U.S. Private
Securities Litigation Reform Act of 1995. All forward looking statements involve
risks and uncertainties. In particular, any statement contained in this document
or any document incorporated by reference in this document regarding the
consummation and benefits of future acquisitions, as well as expectations with
respect to future sales, operating efficiencies and product expansion, are
subject to known and unknown risks, uncertainties and contingencies, many of
which are beyond the control of the Company and Tyco, which may cause actual
results, performance or achievements to differ materially from anticipated
results, performances or achievements. Factors that might affect such forward
looking statements include, among other things:
- overall economic and business conditions;
- the demand for the goods and services of the Company and Tyco;
- competitive factors in the industries in which the Company and Tyco
compete;
- changes in government regulation;
- changes in tax requirements, including tax rate changes, new tax laws and
revised tax law interpretations;
- interest rate fluctuations, foreign currency rate fluctuations and other
capital market conditions;
- economic and political conditions in international markets, including
governmental changes and restrictions on the ability to transfer capital
across borders;
- the ability to achieve anticipated synergies and other costs savings in
connection with acquisitions;
- the timing, impact and other uncertainties of future acquisitions; and
- the ability of the Company and Tyco and their customers and suppliers, to
replace, modify or upgrade computer programs in order to adequately
address the Year 2000 issue.
1
<PAGE>
TYCO
Tyco is a diversified manufacturing and service company that, through its
subsidiaries:
- designs, manufactures and distributes electrical and electronic components
and designs, manufactures, installs and services undersea cable
communication systems;
- designs, manufactures and distributes disposable medical supplies and
other specialty products, and conducts auto redistribution services;
- designs, manufactures, installs and services fire detection and
suppression systems and installs, monitors and maintains electronic
security systems; and
- designs, manufactures and distributes flow control products and provides a
broad range of environmental, consulting and engineering services.
Tyco's strategy is to be the low-cost, high quality producer and provider in
each of its markets. It promotes its leadership position by investing in
existing businesses, developing new markets and acquiring complementary
businesses and products. Combining the strengths of its existing operations and
its business acquisitions, Tyco seeks to enhance shareholder value through
increased earnings per share and strong cash flows.
Tyco's registered and principal executive offices are located at The Zurich
Centre, Second Floor, 90 Pitts Bay Road, Pembroke HM 08, Bermuda, and its
telephone number is (441) 292-8674. The executive offices of Tyco International
(US) Inc., Tyco's principal United States subsidiary, are located at One Tyco
Park, Exeter, New Hampshire 03833, and its telephone number is (603) 778-9700.
THE COMPANY
Tyco International Group S.A., a Luxembourg company, is a wholly-owned
subsidiary of Tyco. The registered and principal offices of the Company are
located at 6, avenue Emile Reuter, 2nd Floor, L-2420 Luxembourg, and its
telephone number is (352) 46 43 40-1. The Company indirectly owns a substantial
portion of the operating subsidiaries of Tyco.
2
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES OF TYCO
The following table sets forth the ratio of earnings to fixed charges of
Tyco for the years ended September 30, 1999 and 1998, the nine-month transition
period ended September 30, 1997 and the years ended December 31, 1996 and 1995.
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED ENDED YEAR ENDED
SEPTEMBER 30, SEPTEMBER 30, DECEMBER 31,
------------------- ------------- -------------------
1999 1998 1997(4) 1996 1995
-------- -------- ------------- -------- --------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges (1)(2)(3)....... 3.45 5.07 1.00 2.54 4.68
</TABLE>
- ------------------------
(1) For purposes of determining the ratio of earnings to fixed charges, earnings
consist of income (loss) before income taxes, extraordinary items,
cumulative effect of accounting changes and fixed charges. Fixed charges
consist of interest on indebtedness, amortization of debt expenses and
one-third of rent expense which is deemed representative of an interest
factor.
(2) On July 2, 1997, Tyco, formerly called ADT Limited, merged with Tyco
International Ltd., a Massachusetts corporation ("Former Tyco"). On
April 2, 1999, October 1, 1998, August 29, 1997 and August 27, 1997, Tyco
consummated mergers with AMP Incorporated, United States Surgical
Corporation, Keystone International, Inc. and Inbrand Corporation,
respectively. Each of the five merger transactions qualifies for the pooling
of interests method of accounting. As such, the ratios of earnings to fixed
charges presented above include the effect of the mergers, except that the
calculation presented above for periods prior to January 1, 1997 does not
include Inbrand due to immateriality.
Prior to their respective mergers, AMP, US Surgical, Keystone, and ADT had
December 31 year ends and Former Tyco had a June 30 fiscal year end. The
historical results upon which the ratios are based have been combined using
a December 31 year end for AMP, US Surgical, Keystone, ADT and Former Tyco
for the year ended December 31, 1996. For 1995, the ratio of earnings to
fixed charges reflects the combination of AMP, US Surgical, Keystone and ADT
with a December 31 year end and Former Tyco with a June 30 fiscal year end.
(3) Earnings for the years ended September 30, 1999 and 1998, the nine months
ended September 30, 1997 and the years ended December 31, 1996 and 1995
include merger, restructuring and other non-recurring charges of
$1,261.7 million (of which $78.9 million is included in cost of sales),
$256.9 million, $947.9 million, $344.1 million and $97.1 million,
respectively. Earnings also include charges for the impairment of long-lived
assets of $335.0 million, $148.4 million, $744.7 million and $8.2 million in
the year ended September 30, 1999, the nine months ended September 30, 1997
and the years ended December 31, 1996 and 1995, respectively. The 1997
period also includes a write-off of purchased in-process research and
development of $361.0 million. The 1995 period also includes a net loss on
the disposal of businesses of $34.4 million.
On a pro forma basis, the ratio of earnings to fixed charges excluding
merger, restructuring and other non-recurring charges, charges for the
impairment of long-lived assets, the write-off of purchased in-process
research and development and the net loss on the disposal of businesses
would have been 5.82x, 5.68x, 6.81x, 5.76x and 5.09x for the years ended
September 30, 1999 and 1998, the nine months ended September 30, 1997 and
the years ended December 31, 1996 and 1995, respectively.
(4) In September 1997, Tyco changed its fiscal year end from December 31 to
September 30. Accordingly, the nine-month transition period ended
September 30, 1997 is presented.
3
<PAGE>
EXCHANGE OFFER
REASON FOR THE EXCHANGE OFFER
The Company initially sold the restricted notes in a private offering on
August 31, 1999 to Merrill Lynch Pierce, Fenner & Smith Incorporated, Lehman
Brothers Inc., J.P. Morgan Securities, Inc., Morgan Stanley & Co. Incorporated,
Credit Suisse First Boston Corporation, Donaldson, Lufkin & Jenrette Securities
Corporation, Goldman, Sachs & Co., Bear, Stearns Co. Inc., Banc of America
Securities LLC, Chase Securities Inc., Commerzbank Capital Markets Corporation,
Warburg Dillon Read LLC, Salomon Smith Barney Inc., The Williams Capital Group
L.P. and Blaylock & Partners, collectively referred to as the "Initial
Purchasers," pursuant to a Purchase Agreement dated August 26, 1999 among the
Company, Tyco as guarantor, and the Initial Purchasers. The Initial Purchasers
subsequently resold or were permitted to resell the restricted notes:
- to qualified institutional buyers in accordance with the provisions of
Rule 144A under the Securities Act, and
- outside the United States in accordance with the provisions of
Regulation S under the Securities Act.
In connection with the private offering of the restricted notes, the
Company, Tyco as guarantor, and the Initial Purchasers entered into a
Registration Rights Agreement dated August 31, 1999, in which the Company
agreed, among other things:
- to file with the SEC on or before December 29, 1999, a registration
statement relating to an exchange offer for the restricted notes;
- use its reasonable best efforts to cause the exchange offer registration
statement to be declared effective under the Securities Act on or before
February 25, 2000;
- upon the effectiveness of the exchange offer registration statement, to
offer the holders of the restricted notes the opportunity to exchange
their restricted notes in the exchange offer for a like principal amount
of exchange notes;
- to keep the exchange offer open for not less than 30 days, or longer, if
required by applicable law, after notice of the exchange offer is mailed
to holders of restricted notes; and
- to use its reasonable best efforts to consummate the exchange offer on or
before March 28, 2000.
The Company also agreed, under certain circumstances:
- to use its reasonable best efforts to file a shelf registration statement
relating to the offer and sale of the restricted notes by the holders of
the restricted notes;
- to use its reasonable best efforts to cause such shelf registration
statement to be declared effective; and
- to use its reasonable best efforts to keep such shelf registration
statement effective for two years after the shelf registration statement
becomes effective or until the restricted notes covered by the shelf
registration statement have been sold or cease to be outstanding.
The exchange offer being made by this document is intended to satisfy the
Company's exchange and registration obligations under the Registration Rights
Agreement. If the Company fails to fulfill such obligations, holders of
outstanding restricted notes are entitled to receive additional interest at the
rate of 0.25% per annum for each violation of the obligations. The rate will
increase by an additional 0.25% each 90-day period during which the additional
interest continues to accrue. The maximum aggregate increase to the interest
rate under all circumstances is 1% per annum. After the Company has cured all
defaults of its registration and exchange obligations, the accrual of additional
interest on
4
<PAGE>
the restricted notes will cease, and the interest rate for each series of
restricted notes will revert to its original rate.
For a more complete understanding of your exchange and registration rights,
please refer to the Registration Rights Agreement, which is included as
Exhibit 4.4 to the registration statement relating to the exchange notes.
TRANSFERABILITY OF THE EXCHANGE NOTES
Based on certain no-action letters issued by the staff of the SEC to others
in unrelated transactions, the Company believes that a noteholder may offer for
resale, resell or otherwise transfer any exchange notes without compliance with
the registration and prospectus delivery requirements of the Securities Act,
unless the noteholder
- is acquiring the exchange notes other than in the ordinary course of
business;
- is participating, intends to participate or has an arrangement or
understanding with any person to participate, in a distribution of the
exchange notes;
- is an "affiliate" of the Company, as defined in Rule 405 under the
Securities Act; or
- is an Initial Purchaser who acquired restricted notes directly from the
Company in the initial offering to resell pursuant to Rule 144A,
Regulation S or any other available exemption under the Securities Act.
In any of the foregoing circumstances, a noteholder
- will not be able to rely on the interpretations of the staff of the SEC,
in connection with any offer for resale, resale or other transfer of
exchange notes; and
- must comply with the registration and prospectus delivery requirements of
the Securities Act, or have an exemption available, in connection with any
offer for resale, resale or other transfer of the exchange notes.
The Company is not making this exchange offer to, nor will it accept
surrenders of restricted notes from, holders of restricted notes in any state in
which this exchange offer would not comply with the applicable securities laws
or "blue sky" laws of such state.
Each broker-dealer that receives exchange notes for its own account in
exchange for restricted notes, where such restricted notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such exchange notes. See "Plan of Distribution" on page ."
USE OF PROCEEDS
Neither the Company nor Tyco will receive any cash proceeds from the
issuance of the exchange notes. As consideration for the exchange notes, the
Company will receive in exchange an equivalent principal amount of outstanding
restricted notes, the terms of which are substantially identical to the terms of
the exchange notes, except that the exchange notes will be freely transferable
and issued free of any covenants regarding exchange and registration rights.
The Company will retire and cancel the restricted notes surrendered in
exchange for the exchange notes. Accordingly, the issuance of the exchange notes
under the exchange offer will not result in any change in the outstanding
aggregate indebtedness of the Company.
5
<PAGE>
TERMS OF THE EXCHANGE OFFER
The restricted notes were issued in a single series of 6 7/8% notes due
2002. As of the date of this document, $1 billion aggregate principal amount of
the 6 7/8% notes are outstanding. In the exchange offer, restricted notes of
each series will be exchanged for exchange notes.
Upon the terms and subject to the conditions set forth in this document and
in the accompanying Letters of Transmittal, the Company will accept all
restricted notes validly tendered and not withdrawn prior to 5:00 p.m. New York
City time on , 2000, the date that the exchange offer expires. This date
and time may be extended. See "Expiration Date; Extensions; Amendments" below.
After authentication of the exchange notes by the trustee under the indenture
governing the notes or an authenticating agent, the Company will issue and
deliver $1,000 principal amount of exchange notes in exchange for each $1,000
principal amount of outstanding restricted notes accepted in the exchange offer.
Holders may tender some or all of their restricted notes pursuant to the
exchange offer in denominations of $1,000 and integral multiples thereof.
The form and terms of the exchange notes are identical in all material
respects to the form and terms of the outstanding restricted notes, except that:
- the offering of the exchange notes has been registered under the
Securities Act;
- the exchange notes will not be subject to transfer restrictions; and
- the exchange notes will be issued free of any covenants regarding exchange
and registration rights.
The exchange notes will be issued under and entitled to the benefits of the
indenture that governs the restricted notes.
In connection with the issuance of the restricted notes, the Company
arranged for the restricted notes to be issued and transferable in book-entry
form through the facilities of The Depository Trust Company, acting as a
depositary. The exchange notes will also be issuable and transferable in
book-entry form through DTC.
This document, together with the accompanying Letter of Transmittal, is
initially being sent to all registered holders of restricted notes as of the
close of business on , 2000. The exchange offer of restricted notes
is not conditioned upon any minimum aggregate principal amount being tendered.
However, the exchange offer is subject to certain customary conditions which may
be waived by the Company, and to the terms and provisions of the Registration
Rights Agreement. See "Conditions to the Exchange Offer" below.
The exchange agent is The Bank of New York, which also serves as trustee
under the indenture that governs the notes. The Company will be deemed to have
accepted validly tendered restricted notes when, as and if the Company has given
oral or written notice thereof to the exchange agent. The exchange agent will
act as agent of the tendering holders for the purpose of receiving exchange
notes from the Company and as agent of the Company for the purpose of delivering
exchange notes to such holders. See "Exchange Agent" below.
If any tendered restricted notes are not accepted for exchange because of an
invalid tender or the occurrence of certain other events set forth herein,
certificates for any such unaccepted restricted notes will be returned, at the
Company's cost, to the tendering holder as promptly as practicable after the
expiration of the exchange offer.
Holders who tender restricted notes in the exchange offer will not be
required to pay brokerage commissions or fees or, subject to the instructions in
the Letters of Transmittal, transfer taxes with respect to the exchange of
restricted notes pursuant to the exchange offer. The Company will pay all
6
<PAGE>
charges and expenses, other than certain applicable taxes, in connection with
the exchange offer. See "Solicitation of Tenders, Fees and Expenses" below.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The exchange offer will expire at 5:00 p.m. New York City time on
, 2000 unless the Company, in its sole discretion, extends the
exchange offer. The Company may extend the exchange offer at any time and from
time to time by giving oral or written notice to the exchange agent and by
timely public announcement.
The Company reserves the right, in its sole discretion, to amend the terms
of the exchange offer in any manner. If any of the conditions set forth below
under "Conditions to the Exchange Offer" has occurred and has not been waived by
the Company, the Company expressly reserves the right, in its sole discretion,
by giving oral or written notice to the exchange agent, to:
- delay acceptance of, or refuse to accept, any restricted notes not
previously accepted;
- extend the exchange offer; or
- terminate the exchange offer.
Any such delay in acceptance, extension, termination or amendment will be
followed as promptly as practicable by oral or written notice thereof by the
Company to the registered holders of the restricted notes. If the exchange offer
is amended in a manner determined by the Company to constitute a material
change, the Company will promptly disclose such amendment in a manner reasonably
calculated to inform the holders of such amendment, and the Company will extend
the exchange offer to the extent required by law. If the exchange offer is
terminated, federal law requires that the Company promptly either exchange or
return all restricted notes that have been tendered.
The Company will have no obligation to publish, advise, or otherwise
communicate any delay in acceptance, extension, termination or amendment of the
exchange offer other than by making a timely press release. The Company may also
publicly communicate these matters in any other appropriate manner of its
choosing.
INTEREST ON THE EXCHANGE NOTES
Interest on the exchange notes will accrue from the last interest payment
date on which interest was paid on the restricted notes surrendered in exchange
therefor or, if no interest has been paid on the restricted notes, from
August 31, 1999. The exchange notes will bear interest at a rate of 6 7/8% per
annum. Interest on the exchange notes will be payable semi-annually on
and of each year. Assuming that the exchange offer is
consummated prior to March 28, 2000, as anticipated, interest on the exchange
notes will first become payable beginning on , 2000.
PROCEDURES FOR TENDERING
Only a holder of record of restricted notes or a DTC participant listed on a
DTC securities position listing with respect to the restricted notes may tender
its restricted notes in the exchange offer. To tender restricted notes in the
exchange offer:
- registered holders of certificated restricted notes must complete, sign
and date the Letter of Transmittal, or a facsimile thereof, in accordance
with the instructions contained in this document and in the Letter of
Transmittal. The holder should then mail or otherwise deliver the Letter
of Transmittal, or such facsimile, together with the restricted notes to
be exchanged and any other required documentation, to the exchange agent,
at the address set forth in this document and in the Letter of
Transmittal;
7
<PAGE>
- holders of restricted notes that are DTC participants may follow the
procedures for book-entry transfer as provided for below under "Book-Entry
Transfer" and in the Letter of Transmittal.
To be effective, a tender must be made prior to the expiration of the
exchange offer.
Any beneficial owner whose restricted notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender restricted notes in the exchange offer should contact such registered
holder promptly and instruct such registered holder to tender on such beneficial
owner's behalf. If a beneficial owner wishes to tender on its own behalf, such
beneficial owner must, prior to completing and executing the Letter of
Transmittal and delivering its restricted notes, either make appropriate
arrangements to register ownership of the restricted notes in its own name or
obtain a properly completed bond power from the registered holder of such
restricted notes. This transfer of record ownership may take considerable time.
Delivery of documents to DTC in accordance with DTC's procedures will NOT
constitute delivery to the exchange agent.
The tender by a holder of restricted notes will constitute an agreement
between such holder, the Company and the exchange agent in accordance with the
terms and subject to the conditions set forth herein and in the Letter of
Transmittal. If less than all the restricted notes held by a holder of
restricted notes are tendered, a tendering holder should fill in the amount of
restricted notes being tendered in the specified box on the Letter of
Transmittal. The entire amount of restricted notes delivered to the exchange
agent will be deemed to have been tendered unless otherwise indicated.
The Letter of Transmittal includes representations by the tendering holder
to the Company that, among other things:
- any exchange notes received by the tendering holder will be acquired in
the ordinary course of its business;
- the tendering holder has no arrangement or understanding with any person
to participate in the distribution of the exchange notes; and
- the tendering holder is not an "affiliate," as defined in Rule 405 under
the Securities Act, of the Company, or, if it is an affiliate, that it
will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable.
A Letter of Transmittal of a broker-dealer that receives exchange notes for
its own account in exchange for restricted notes that were acquired by it as a
result of market-making or other trading activities must also include an
acknowledgment that the broker-dealer will deliver a copy of this document in
connection with the resale of such exchange notes. By so acknowledging and by
delivering a prospectus, such broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act. See "Plan of
Distribution."
The method of delivery of restricted notes and Letters of Transmittal and
all other required documents or transmittal of an Agent's Message, as described
below under "Book-Entry Transfer," to the exchange agent is at the election and
risk of the holders of restricted notes. Instead of delivery by mail, it is
recommended that holders of restricted notes use an overnight or hand delivery
service. In all cases, sufficient time should be allowed to ensure delivery to
the exchange agent prior to the expiration of the exchange offer. No Letters of
Transmittal or restricted notes should be sent to the Company.
Signatures on a Letter of Transmittal or a notice of withdrawal described in
"Withdrawal of Tenders" below must be guaranteed by a member firm of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution" within
the meaning of Rule 17Ad-15 under the Exchange Act (each, an "Eligible
Institution"), unless the corresponding restricted notes are tendered
8
<PAGE>
- by a registered holder who has not completed the box entitled "Special
Registration Instructions" or the box entitled "Special Delivery
Instructions" in the Letter of Transmittal; or
- for the account of an Eligible Institution.
If a Letter of Transmittal is signed by a person other than the registered
holder, the corresponding restricted notes must be endorsed or accompanied by
appropriate bond powers which authorize such person to tender the restricted
notes on behalf of the registered holder, in either case signed as the name of
the registered holder or holders appears on the restricted notes. If a Letter of
Transmittal or any restricted notes or bond powers are signed or endorsed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers or
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and unless waived by the Company,
submit evidence satisfactory to the Company of their authority to so act with
such Letter of Transmittal.
All questions as to the validity, form, eligibility, acceptance and
withdrawal of the tendered restricted notes will be determined by the Company in
its sole discretion, which determination will be final and binding. The Company
reserves the absolute right to reject restricted notes not properly tendered or
any restricted notes the Company's acceptance of which would, in the opinion of
counsel for the Company, be unlawful. The Company also reserves the absolute
right to waive any irregularities or conditions of tender as to particular
restricted notes. The Company's interpretation of the terms and conditions of
the Exchange Offer, including the instructions in the Letters of Transmittal,
will be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of restricted notes must be cured
within such time as the Company shall determine.
Although the Company intends to notify tendering holders of defects or
irregularities with respect to tenders of restricted notes, neither the Company,
the exchange agent nor any other person will be under any duty or obligation to
do so, and no person will incur any liability for failure to give such
notification. Restricted notes will not be validly tendered until such
irregularities have been cured or waived. Any restricted notes received by the
exchange agent that the Company determines are not properly tendered or the
tender of which is otherwise rejected by the Company will be returned by the
exchange agent to the tendering holder or other person specified in the
appropriate Letter of Transmittal as soon as practicable following the
expiration of the exchange offer.
The Company reserves the right in its sole discretion:
- to purchase or make offers for any restricted notes that remain
outstanding subsequent to the expiration of the exchange offer;
- to terminate the exchange offer, as set forth in "Conditions to the
Exchange Offer" below; and
- to the extent permitted by applicable law, to purchase restricted notes
during the pendency of the exchange offer in the open market, in privately
negotiated transactions or otherwise.
The terms of any such purchases or offers may differ from the terms of the
exchange offer.
BOOK-ENTRY TRANSFER
The Company understands that the exchange agent will make a request promptly
after the date of this document to establish accounts with respect to the
restricted notes at DTC for the purpose of facilitating the exchange offer. Any
financial institution that is a participant in DTC's system may make book-entry
delivery of restricted notes by causing DTC to transfer such restricted notes
into the Exchange Agent's DTC account in accordance with DTC's Automated Tender
Offer Program procedures for such transfer. The exchange for tendered restricted
notes will only be made after a timely confirmation of a book-entry transfer of
the restricted notes into the exchange agent's account, and timely receipt by
the exchange agent of an Agent's Message.
9
<PAGE>
The term "Agent's Message" means a message, transmitted by DTC and received
by the exchange agent and forming part of the confirmation of a book-entry
transfer, which states that DTC has received an express acknowledgment from a
participant tendering restricted notes and that such participant has received an
appropriate Letter of Transmittal and agrees to be bound by the terms of the
Letter of Transmittal, and the Company may enforce such agreement against the
participant. Delivery of an Agent's Message will also constitute an
acknowledgement from the tendering DTC participant that the representations
contained in the appropriate Letter of Transmittal and described on page above
are true and correct.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their restricted notes and:
- whose restricted notes are not immediately available,
- who cannot deliver their restricted notes, the Letter of Transmittal or
any other required documents to the exchange agent prior to the expiration
of the exchange offer, or
- who cannot complete the procedure for book-entry transfer on a timely
basis,
may effect a tender if:
1. the tender is made through an Eligible Institution;
2. prior to the expiration of the exchange offer the exchange agent
receives from such Eligible Institution a properly completed and duly
executed Notice of Guaranteed Delivery by facsimile transmittal, mail
or hand delivery; and
3. certificate(s) representing all tendered restricted notes in proper
form for transfer, together with a properly completed and executed
Letter of Transmittal, or a facsimile thereof and all other documents
required by the Letter of Transmittal, or confirmation of a book-entry
transfer into the exchange agent's account at DTC of restricted notes
delivered electronically, are received by the exchange agent within
three business days after the expiration of the exchange offer.
A Notice of Guaranteed Delivery must state:
- the name and address of the holder;
- if the restricted notes will be tendered by their registered holder, the
certificate number or numbers of such restricted notes;
- the principal amount of such restricted notes tendered;
- that the tender is being made thereby; and
- that the holder guarantees that, within three business days after the
expiration of the exchange offer, a Letter of Transmittal or facsimile
thereof, together with the certificate(s) representing the restricted
notes to be tendered in proper form for transfer and any other documents
required by the Letter of Transmittal, or confirmation of a book-entry
transfer into the exchange agent's account at DTC of restricted notes
delivered electronically, will be deposited by the Eligible Institution
with the exchange agent.
Forms of the Notice of Guaranteed Delivery will be available from the
exchange agent upon request.
10
<PAGE>
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of restricted notes may be
withdrawn at any time prior to the expiration of the exchange offer by delivery
of a written or facsimile transmission notice of withdrawal to the exchange
agent at its address set forth in this document.
Any such notice of withdrawal must:
- specify the name of the person having deposited the restricted notes to be
withdrawn;
- identify the restricted notes to be withdrawn, including the certificate
number or number and principal amount of such restricted notes or, in the
case of restricted notes transferred by book-entry transfer, the name and
number of the account at DTC to be credited;
- be signed by the depositor of the restricted notes in the same manner as
the original signature on the Letter of Transmittal by which such
restricted notes were tendered, including any required signature
guarantee, or be accompanied by documents of transfer sufficient to permit
the registrar to register the transfer of such restricted notes into the
name of the party withdrawing the tender or, in the case of restricted
notes transferred by book-entry transfer, be transmitted by DTC and
received by the exchange agent in the same manner as the Agent's Message
transferring the notes; and
- specify the name in which any such restricted notes are to be registered,
if different from that of the depositor of the restricted notes.
All questions as to the validity, form and eligibility of such withdrawal
notices will be determined by the Company, whose determination shall be final
and binding on all parties. Any restricted notes so withdrawn will be deemed not
to have been validly tendered for purposes of the exchange offer, and no
exchange notes will be issued with respect thereto unless the restricted notes
so withdrawn are validly retendered. Any restricted notes that have been
tendered but are not accepted for exchange will be returned to the holder
thereof without cost to such holder as soon as practicable after withdrawal,
rejection of tender or termination of the exchange offer. Properly withdrawn
restricted notes may be retendered by following one of the procedures described
above under "Procedures for Tendering" at any time prior to the expiration of
the exchange offer.
CONDITIONS TO THE EXCHANGE OFFER
The Company will not be required to accept for exchange, or to exchange
notes for, any restricted notes, and may terminate or amend the exchange offer
before the acceptance of such restricted notes if, in the Company's judgment,
any of the following conditions has occurred:
- the exchange offer, or the making of any exchange by a holder of
restricted notes, violates applicable law or the applicable
interpretations of the SEC staff;
- any action or proceeding shall have been instituted or threatened in any
court or by or before any governmental agency or body with respect to the
exchange offer; or
- there has been adopted or enacted any law, statute, rule or regulation
that can reasonably be expected to impair the ability of the Company to
proceed with the exchange offer.
See "Expiration Date; Extensions; Amendments" above for a discussion of
possible Company actions if any of the foregoing conditions occur.
The foregoing conditions are for the sole benefit of the Company. They may
be asserted by the Company regardless of the circumstances giving rise to any
such condition or may be waived by the Company in whole or in part at any time
and from time to time in its sole discretion. The failure by the Company at any
time to exercise any of the foregoing rights will not be deemed a waiver of any
11
<PAGE>
such right, and each such right will be deemed an ongoing right which may be
asserted at any time and from time to time.
EXCHANGE AGENT
The Bank of New York has been appointed as exchange agent for the exchange
offer. Requests for assistance and requests for additional copies of this
document or of the Letter of Transmittal should be directed to the exchange
agent addressed as follows:
BY MAIL, OVERNIGHT DELIVERY OR HAND DELIVERY:
The Bank of New York
101 Barclay Street, 7E
New York, New York 10286
Attn: Denise Robinson
FACSIMILE TRANSMISSION:
(212) 815-4699
INFORMATION OR CONFIRMATION BY TELEPHONE:
(212) 815-2791
SOLICITATION OF TENDERS; FEES AND EXPENSES
The principal solicitation pursuant to the exchange offer is being made by
the Company by mail and through the facilities of DTC. Additional solicitations
may be made by officers and regular employees of the Company and its affiliates
in person or by telegraph, telephone, facsimile transmission, electronic
communication or similar methods.
The Company has not retained any dealer-manager in connection with the
exchange offer and will not make any payments to brokers, dealers or other
persons soliciting acceptances of the exchange offer. The Company will, however,
pay the exchange agent reasonable and customary fees for its services and will
reimburse the exchange agent for its reasonable out-of-pocket costs and expenses
incurred in connection with the exchange offer and will indemnify the exchange
agent for all losses and claims incurred by it as a result of the exchange
offer. The Company may also pay brokerage houses and other custodians, nominees
and fiduciaries the reasonable out-of-pocket expenses incurred by them in
forwarding copies of this document, the Letter of Transmittal and related
documents to the beneficial owners of the restricted notes and in handling or
forwarding tenders for exchange.
The Company will pay all expenses incurred in connection with the exchange
offer, including fees and expenses of the trustee, accounting and legal fees,
including the expense of one counsel for the holders of the restricted notes,
and printing costs.
The Company will pay any transfer taxes applicable to the exchange of
restricted notes pursuant to the exchange offer. If, however, a transfer tax is
imposed for any reason other than the exchange of restricted notes pursuant to
the exchange offer, then the amount of any such transfer taxes, whether imposed
on the registered holder thereof or any other person, will be payable by the
tendering holder.
ACCOUNTING TREATMENT
The exchange notes will be recorded at the same carrying value as the
restricted notes, as reflected in the Company's accounting records on the date
of the exchange. Accordingly, no gain or loss for accounting purposes will be
recognized by the Company as a result of the consummation of the
12
<PAGE>
exchange offer. The expense of the exchange offer will be amortized by the
Company over the term of the exchange notes.
CONSEQUENCES OF A FAILURE TO EXCHANGE RESTRICTED NOTES
Following consummation of the exchange offer, assuming the Company has
accepted for exchange all validly tendered restricted notes, the Company will
have fulfilled its exchange and registration obligations under the Registration
Rights Agreement. All untendered restricted notes outstanding after consummation
of the exchange offer will continue to be valid and enforceable debt obligations
of the Company, fully and unconditionally guaranteed by Tyco, subject to the
restrictions on transfer set forth in the indenture governing the notes. Holders
of such restricted notes will only be able to offer for sale, sell or otherwise
transfer untendered restricted notes as follows:
- to the Company, although the Company has no obligation to purchase
untendered restricted notes except if they are called for redemption in
accordance with the provisions of the indenture governing the notes;
- pursuant to a registration statement that has been declared effective
under the Securities Act, although the Company will have no obligation,
and does not intend, to file any such registration statement;
- for so long as the restricted notes are eligible for resale pursuant to
Rule 144A under the Securities Act, to a person reasonably believed to be
a qualified institutional buyer, or QIB, within the meaning of Rule 144A,
that purchases for its own account or for the account of a QIB to whom
notice is given that the transfer is being made in reliance on the
exemption from the registration requirements of the Securities Act
provided by Rule 144A;
- pursuant to offers and sales that occur outside the United States to
non-U.S. persons in transactions complying with the provisions of
Regulation S under the Securities Act; or
- pursuant to any other available exemption from the registration
requirements of the Securities Act.
To the extent that restricted notes are tendered and accepted in the
exchange offer, the liquidity of the trading market for untendered restricted
notes could be adversely affected.
ABSENCE OF A PUBLIC MARKET
Although holders of exchange notes who are not "affiliates" of the Company
within the meaning of the Securities Act may resell or otherwise transfer their
exchange notes without compliance with the registration requirements of the
Securities Act, there is no existing market for the exchange notes, and there
can be no assurance as to the liquidity of any markets that may develop for the
exchange notes, the ability of holders of exchange notes to sell their exchange
notes or the prices at which holders would be able to sell their exchange notes.
Future trading prices of the exchange notes will depend on many factors,
including, among other things, prevailing interest rates, Tyco's operating
results and the market for similar securities.
The Initial Purchasers in the private offering have advised the Company that
they intend to make a market in the exchange notes after the exchange offer.
However, they are not obligated to do so, and any market-making may be
discontinued at any time without notice.
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<PAGE>
DESCRIPTION OF THE NOTES AND THE GUARANTEES
The restricted notes and their guarantees were issued and the exchange notes
and their guarantees will be issued under an indenture, dated as of June 9,
1998, as supplemented by supplemental indenture No. 11, dated as of August 31,
1999, in each case among the Company, Tyco and The Bank of New York, as the
trustee. The following description is subject to the detailed provisions of the
indenture, a copy of which can be obtained upon request from Tyco. See "Where
You Can Find More Information." As used in this "Description of the Notes and
the Guarantees," the term "notes" refers to and includes the restricted notes
and the exchange notes. The terms of the restricted notes and the exchange notes
are identical, except that the exchange notes are not subject to restrictions on
transfer. The indenture is subject to, and governed by, the Trust Indenture Act
of 1939. The statements made in this section relating to the indenture and to
the notes and guarantees of the notes to be issued under the indenture are
summaries, and do not purport to be complete. For a full description of the
terms of the notes and their guarantees, noteholders should refer to the
indenture, as supplemented by the supplemental indenture. Capitalized terms used
but not defined in this section shall have the respective meanings set forth in
the indenture.
GENERAL
The interest rate, aggregate principal amounts and maturity dates of the
notes are as follows:
<TABLE>
<S> <C>
Interest Rate............................................ 6 7/8%
Aggregate Principal Amount............................... $1 billion
Maturity Date............................................ September 5, 2002
</TABLE>
Interest is payable semiannually on March 5 and September 5 of each year,
commencing March 5, 2000, to the persons in whose names such notes are
registered at the close of business on February 18 or August 21, respectively,
immediately preceding such interest payment date. Interest on the notes accrues
from August 31, 1999.
The trustee is initially acting as paying agent and registrar, as well as
exchange agent under the exchange offer. The notes may be presented for
registration or transfer and exchange, without any service charge, at the
offices of the registrar. Principal and premium, if any, on the notes are
payable at the office of the trustee. However, note holders may be required to
pay to the Company a sum sufficient to cover any tax or other governmental
charge payable in connection with any such transfer or exchange.
The notes are direct, unsecured and unsubordinated obligations of the
Company and rank equally with other unsecured and unsubordinated obligations of
the Company for money borrowed. The notes are effectively subordinated to all
existing and future indebtedness and other liabilities of the Company's
subsidiaries. The Company's rights and the rights of its creditors, including
holders of notes, to participate in any distribution of assets of any subsidiary
upon the latter's liquidation or reorganization or otherwise will be effectively
subordinated to the claims of the subsidiary's creditors, except to the extent
that the Company or any of its creditors may itself be a creditor of that
subsidiary.
Except as described under "Certain Covenants," the indenture does not limit
other indebtedness or securities which may be incurred or issued by the Company
or any of its subsidiaries or contain financial or similar restrictions on the
Company or any of its subsidiaries. There are no covenants or provisions
contained in the indenture which afford the holders of notes protection in the
event of a highly leveraged transaction, reorganization, restructuring, merger
or similar transaction involving the Company or Tyco. The consummation of any
highly leveraged transaction, reorganization, restructuring, merger or similar
transaction could cause a material decline in the credit quality of the
outstanding notes.
14
<PAGE>
The restricted notes were, and the exchange notes will be, initially issued
in the form of one or more registered global notes and will be deposited with,
or on behalf of, The Depository Trust Company, as depositary, and registered in
the name of DTC's nominee. A description of DTC's procedures with respect to the
global notes is set forth under "Book-Entry, Delivery and Form" below.
The indenture does not limit the aggregate principal amount of debt
securities which may be issued thereunder. As of the date of this document,
$6.75 billion and Y10 billion of debt securities in twelve series have been
issued by the Company and guaranteed by Tyco and are outstanding under the
indenture. The interest rate, aggregate principal amounts and maturity dates of
each of such series of debt securities, other than the restricted notes, are as
follows:
<TABLE>
<CAPTION>
2000 2000 2001 2001 2004 2005 2008 2009
NOTES NOTES NOTES NOTES NOTES NOTES NOTES NOTES
---------- ---------- -------- -------- ------------ -------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Interest Rate............. Floating 0.57% Floating 6 1/8% 5 7/8% 6 3/8% 6 1/8% 6 1/8%
Aggregate Principal $500 Y10 $500 $750 $400 $750 $400 $400
Amount.................. million billion million million million million million million
Maturity Date............. September September March June November June November January
5, 2000 5, 2000 5, 2001 15, 2001 1, 2004 15, 2005 1, 2008 15, 2009
<CAPTION>
DEALER
REMARKETABLE
2028 2029 SECURITIES(SM)
NOTES NOTES ("DRS.(SM)")*
-------- -------- ---------------
<S> <C> <C> <C>
Interest Rate............. 7% 6 7/8% 6 1/4%**
Aggregate Principal $500 $800 $750
Amount.................. million million million
Maturity Date............. June January June
15, 2028 15, 2029 15, 2013
</TABLE>
- ----------------------------------
* Dealer remarketable securities(sm)" and ("Drs.(sm)") are service marks of
J.P. Morgan Securities Inc.
** The Dealer remarketable securities will bear interest at the rate of 61/4%
per annum to June 15, 2003. If J.P. Morgan Securities Inc. elects to
remarket the Drs., the interest rate will be reset at a fixed rate until
June 15, 2013 as determined by the remarketing dealer. If J.P. Morgan
Securities Inc. does not elect to remarket the Drs., all Drs. must be
repurchased by the Company on June 15, 2003.
GUARANTEES
Tyco has agreed to unconditionally guarantee the due and punctual payment of
the principal of, premium, if any, and interest on and any other obligations of
the Company under the indenture with respect to the notes when and as the same
shall become due and payable, whether at maturity, upon redemption or otherwise.
Tyco's guarantees are unsecured and unsubordinated obligations of Tyco and will
rank equally with all other unsecured and unsubordinated obligations of Tyco.
The guarantees provide that in the event of a default in payment of principal
of, premium, if any, or interest on a note, the holder of that note may
institute legal proceedings directly against Tyco to enforce the guarantees
without first proceeding against the Company. In addition, as described below
under "Certain Covenants--Limitation on Indebtedness of Subsidiaries,"
subsidiaries of the Company may execute and deliver additional guarantees.
The obligations of Tyco and any other guarantor under their respective
guarantees of any series of notes are limited to the maximum amount which will
not result in the obligations of such guarantors under their guarantees
constituting a fraudulent conveyance or fraudulent transfer under applicable
law. Each guarantor of a series of notes that makes a payment or distribution
under its guarantee shall be entitled to a contribution from each other
guarantor of such notes to the extent permitted by applicable law.
REDEMPTION
OPTIONAL REDEMPTION
The notes will be redeemable, in whole or in part, at the option of the
Company at any time at a redemption price equal to the greater of:
- 100% of the principal amount of such notes, and
- as determined by the Quotation Agent, as defined below, the sum of the
present values of the remaining scheduled payments of principal and
interest on the notes to be redeemed, not including any portion of such
payments of interest accrued as of the date of redemption, discounted to
the date of redemption on a semiannual basis, assuming a 360-day year
consisting
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<PAGE>
of twelve 30-day months, at the Adjusted Redemption Treasury Rate, as
defined below, plus 12.5 basis points plus, in each case, accrued interest
thereon to the date of redemption.
Notice of any redemption will be mailed at least 30 days and not more than
60 days before the redemption date to each holder of the 2002 notes to be
redeemed. Unless the Company defaults in the payment of the redemption price, on
or after the redemption date, interest will cease to accrue on the notes or the
portions thereof called for redemption.
"Adjusted Redemption Treasury Rate" means, with respect to any redemption
date, the annual rate equal to the semiannual equivalent yield to maturity or
interpolated, on a 30/360 day count basis, yield to maturity of the Comparable
Redemption Treasury Issue, assuming a price for the Comparable Redemption
Treasury Issue, expressed as a percentage of its principal amount, equal to the
Comparable Redemption Treasury Price for such redemption date.
"Comparable Redemption Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
remaining term of the notes to be redeemed that would be utilized at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such notes.
"Comparable Redemption Treasury Price" means, with respect to any redemption
date,
- the average of the Redemption Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest such
Redemption Reference Treasury Dealer Quotations, unless there is more than
one highest or lowest quotation, in which case only one such highest
and/or lowest quotation shall be excluded, or
- if the Quotation Agent obtains fewer than four such Redemption Reference
Treasury Dealer Quotations, the average of all such Redemption Reference
Treasury Dealer Quotations.
"Quotation Agent" means a Redemption Reference Treasury Dealer appointed as
such agent by the Company.
"Redemption Reference Treasury Dealer" means each of Merrill Lynch, Pierce,
Fenner & Smith Incorporated and four other primary U.S. Government securities
dealers in The City of New York selected by the Company.
"Redemption Reference Treasury Dealer Quotations" means, with respect to
each Redemption Reference Treasury Dealer and any redemption date, the offer
price for the Comparable Redemption Treasury Issue, expressed in each case as a
percentage of its principal amount, for settlement on the redemption date quoted
in writing to the Quotation Agent by such Redemption Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third business day preceding such
redemption date.
REDEMPTION UPON CHANGES IN WITHHOLDING TAXES
The Company may redeem all, but not less than all, of the notes of a series
if the following occurs:
1. After the notes of such series to be redeemed are issued, there is a
change or an amendment in the laws or regulations of Luxembourg or Bermuda
or any political subdivisions or taxing authorities thereof or therein
having power to tax (a "Taxing Authority"), or any change in the application
or official interpretation of such laws or regulations.
2. As a result of the change, the Company or Tyco became or will become
obligated to pay Additional Amounts, as defined below in "Payment of
Additional Amounts," on the next payment date with respect to the notes to
be redeemed.
16
<PAGE>
3. The obligation to pay Additional Amounts cannot be avoided through
the Company's or Tyco's reasonable measures.
4. The Company delivers to the trustee:
- a certificate signed by two directors of the Company or two officers of
Tyco, as the case may be, stating that the obligation to pay Additional
Amounts cannot be avoided by the Company or Tyco taking reasonable
measures available to it; and
- a written opinion of independent legal counsel to the Company or Tyco,
as the case may be, of recognized standing to the effect that the
Company or Tyco, as the case may be, has or will become obligated to
pay Additional Amounts as a result of a change, amendment, official
interpretation or application described above and that the Company
cannot avoid the payment of such Additional Amounts by taking
reasonable measures available to it.
5. Following the delivery of the certificate and opinion described in
paragraph 4 above, the Company provides notice of redemption not less than
30 days, but not more than 60 days, prior to the date of redemption. The
notice of redemption cannot be given more than 60 days before the earliest
date on which the Company or Tyco would be otherwise required to pay
Additional Amounts, and the obligation to pay Additional Amounts must still
be in effect when the notice is given.
Upon the occurrence of each of 1 through 5 above, the Company may redeem the
notes at a redemption price equal to 100% of the principal amount thereof,
together with accrued interest, if any, to the redemption date, plus any
Additional Amounts.
NOTICE OF REDEMPTION
The following notice provisions apply to both the optional redemption of the
notes and redemptions of any series of notes upon the changes in Luxembourg or
Bermuda withholding taxes, if any, described above.
The Company must deliver by first-class mail, postage prepaid, to each
holder of notes to be redeemed, a notice of redemption specifying the following:
- the redemption price;
- the amount of the notes held by the holder to be redeemed;
- the redemption date;
- the place of payment;
- that payment will be made when the notes are surrendered to the trustee;
- that interest accrued to the date of redemption will be paid as specified
in the notice; and
- that after the redemption date, and unless the Company defaults in the
payment of the redemption price, interest will stop accruing on the notes
or portions thereof to be redeemed.
At least one business day prior to the redemption date specified in the notice
of redemption, the Company will deposit with the trustee or with one or more
paying agents an amount of money sufficient to redeem on the redemption date all
the notes called for redemption. If less than all the notes of a series are to
be redeemed, the trustee will select, in such manner as it shall deem
appropriate and fair, notes of that series to be redeemed. Unless the Company
defaults on the redemption payments, on and after the redemption payments, on
and after the redemption date specified in the notice of redemption:
- interest on the notes called for redemption will cease to accrue; and
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- the holders of such notes will have no right in respect of such notes
except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption.
PAYMENT OF ADDITIONAL AMOUNTS
Unless otherwise required by Luxembourg or Bermuda law, neither the Company,
Tyco nor any other guarantor will deduct or withhold from payments made with
respect to any series of notes and their guarantees on account of any present or
future taxes, duties, levies, imposts, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of any Taxing Authority
("Taxes"). In the event that the Company, Tyco or any other guarantor is
required to withhold or deduct on account of any Taxes from any payment made
under or with respect to any notes or the guarantees, as the case may be, the
Company, Tyco or such other guarantor as the case may be, will pay such
additional amounts so that the net amount received by each holder of notes,
including those additional amounts, will equal the amount that such holder would
have received if such Taxes had not been required to be withheld or deducted.
The amounts that the Company, Tyco or such other guarantor are required to pay
to preserve the net amount receivable by the holders of notes are referred to as
"Additional Amounts."
Additional Amounts will not be payable with respect to a payment made to a
holder of notes to the extent:
1. that any such Taxes would not have been so imposed but for the
existence of any present or former connection between such holder and the
relevant Taxing Authority imposing such Taxes, other than the mere receipt
of such payment, acquisition, ownership or disposition of such notes or the
exercise or enforcement of rights under such notes, their guarantees or the
indenture;
2. of any estate, inheritance, gift, sales, transfer, or personal
property Taxes imposed with respect to such notes, except as otherwise
provided in the indenture;
3. that any such Taxes would not have been imposed but for the
presentation of such notes, where presentation is required, for payment on a
date more than 30 days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for, whichever
is later, except to the extent that the beneficiary or holder thereof would
have been entitled to Additional Amounts had the notes been presented for
payment on any date during such 30-day period; or
4. that such holder would not be liable or subject to such withholding
or deduction of Taxes but for the failure to make a valid declaration of
non-residence or other similar claim for exemption, if:
- the making of such declaration or claim is required or imposed by statute,
treaty, regulation, ruling or administrative practice of the relevant
Taxing Authority as a precondition to an exemption from, or reduction in,
the relevant Taxes; and
- at least 60 days prior to the first payment date with respect to which the
Company or Tyco shall apply this clause 4, the Company or Tyco shall have
notified all holders of notes in writing that they shall be required to
provide such declaration or claim.
Each of the Company, Tyco and any other guarantor of the notes, as
applicable, will also:
- withhold or deduct the Taxes as required;
- remit the full amount of Taxes deducted or withheld to the relevant Taxing
Authority in accordance with all applicable laws;
- use its reasonable best efforts to obtain from each relevant Taxing
Authority imposing such Taxes certified copies of tax receipts evidencing
the payment of any Taxes deducted or withheld; and
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- upon request, make available to the holders of notes, within 60 days after
the date the payment of any Taxes deducted or withheld is due pursuant to
applicable law, certified copies of tax receipts evidencing such payment
by the Company, Tyco or such other guarantor or if, notwithstanding the
Company's, Tyco's or such other guarantor's efforts to obtain such
receipts, the same are not obtainable, other evidence of such payments.
At least 30 days prior to each date on which any payment under or with
respect to the notes is due and payable, if the Company, Tyco or such other
guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Company, Tyco or such other guarantor will deliver to the trustee
an officer's certificate stating the fact that such Additional Amounts will be
payable, the amounts so payable and such other information as is necessary to
enable the trustee to pay such Additional Amounts to holders of such notes on
the payment date.
The foregoing provisions shall survive any termination of the discharge of
the indenture and shall apply MUTATIS MUTANDIS to any jurisdiction in which any
successor to the Company, Tyco or any other guarantor of notes, as the case may
be, is organized or is engaged in business for tax purposes or any political
subdivisions or taxing authority or agency thereof or therein.
In addition, the Company will pay any stamp, issue, registration,
documentary or other similar taxes and duties, including interest, penalties and
Additional Amounts with respect thereto, payable in Luxembourg, Bermuda or the
United States or any political subdivision or taxing authority of or in the
foregoing in respect of the creation, issue, offering, enforcement, redemption
or retirement of any of the notes.
Whenever in the indenture, the notes, their guarantees or in this
"Description of the Notes and the Guarantees" there is mentioned, in any
context, the payment of principal, and premium, if any, redemption price,
interest or any other amount payable under or with respect to any note, such
mention shall be deemed to include the payment of Additional Amounts to the
extent payable in the particular context
BOOK-ENTRY, DELIVERY AND FORM
THE GLOBAL NOTES
The restricted notes are represented by one or more permanent global
certificates in definitive, fully registered form without interest coupons.
Except as described under "Certificated Exchange Notes," the exchange notes
initially will be represented by one or more permanent global certificates in
definitive, fully registered form and
- will be deposited with, or on behalf of, DTC, and registered in the name
of Cede & Co., as DTC's nominee, or
- will remain in the custody of the trustee pursuant to a FAST Balance
Certificate Agreement between DTC and the trustee.
DEPOSITARY PROCEDURES
The following description of the operations and procedures of DTC, Euroclear
and Cedelbank are provided solely as a matter of convenience. These operations
and procedures are solely within the control of the respective settlement
systems and are subject to changes by them from time to time. The Company takes
no responsibility for these operations and procedures and urges investors to
contact the system or their participants directly to discuss these matters.
DTC has advised the Company and Tyco that DTC is a limited-purpose trust
company created to hold securities for its participating organizations
(collectively, the "Participants") and to facilitate the clearance and
settlement of transactions in those securities between Participants through
electronic
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book-entry changes in accounts of its Participants. The Participants include
securities brokers and dealers, including the initial purchasers, banks, trust
companies, clearing corporations and certain other organizations. Access to
DTC's system is also available to other entities such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly (collectively, the "Indirect
Participants"). Persons who are not Participants may beneficially own securities
held by or on behalf of DTC only through the Participants or the Indirect
Participants. The ownership interests in, and transfers of ownership interests
in, each security held by or on behalf of DTC are recorded on the records of the
Participants and Indirect Participants.
DTC has also advised the Company and Tyco that, pursuant to procedures
established by it:
- upon deposit of the global notes representing the exchange notes, DTC will
credit the accounts of Participants with an interest in the global notes;
and
- ownership of the exchange notes will be shown on, and the transfer of
ownership thereof will be effected only through, records maintained by
DTC, with respect to the interests of its Participants, and the records of
DTC's Participants and the Indirect Participants, with respect to the
interests of persons other than Participants in such series of the global
notes.
The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of such securities in definitive form.
Accordingly, the ability to transfer interests in the exchange notes represented
by global notes to such persons may be limited. In addition, because DTC can act
only on behalf of its participants, who in turn act on behalf of persons who
hold interests through a DTC Participant, the ability of a person having an
interest in exchange notes represented by a global note to pledge or transfer
such interest to persons or entities that do not participate in DTC's system, or
to otherwise take actions in respect of such interest, may be affected by the
lack of a physical definitive security in respect of such interest.
So long as DTC or its nominee is the registered owner of a global note, DTC
or such nominee, as the case may be, will be considered the sole owner or holder
of the exchange notes represented by the global note for all purposes under the
indenture. Except as provided below, owners of beneficial interests in a global
note will not be entitled to have exchange notes represented by such global note
registered in their names, will not receive or be entitled to receive physical
delivery of certificated exchange notes, and will not be considered the owners
or holders thereof under the indenture for any purpose, including with respect
to the giving of any direction, instruction or approval to the trustee under the
indenture. Accordingly, each holder owning a beneficial interest in a global
note must rely on the procedures of DTC and, if such holder is not a DTC
Participant or an Indirect Participant, on the procedures of the Participant
through which such holder owns its interest, to exercise any rights of a holder
of exchange notes under the indenture or such global note. The Company
understands that under existing industry practice, in the event that the Company
requests any action of holders of exchange notes, or a holder that is an owner
of a beneficial interest in a global note desires to take any action that DTC,
as the holder of such global note, is entitled to take, DTC would authorize its
participants to take such action and the participants would authorize holders
owning through participants to take such action or would otherwise act upon the
instruction of such holders. Neither the Company nor the trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of exchange notes by DTC, or for maintaining,
supervising or reviewing any records of DTC relating to such exchange notes.
Except as described below, owners of interests in global notes will not have
notes registered in their names, will not receive physical delivery of notes in
certificated form and will not be considered the registered owners or holders
thereof under the indenture for any purpose.
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Payments in respect of the principal of, and premium, if any, and interest
on the exchange notes represented by the global note registered in the name of
DTC or its nominee on the applicable record date will be payable by the trustee
to DTC or its nominee in its capacity as the registered holder of the global
note representing the exchange notes under the indenture. Under the terms of the
indenture, the Company, Tyco and the trustee may treat the persons in whose
names the exchange notes, including the global notes, are registered as the
owners thereof for the purpose of receiving payments thereon and for any and all
other purposes whatsoever. Consequently, none of the Company, Tyco, the trustee
or any agent of the Company, Tyco or the trustee has or will have any
responsibility or liability for the payment of such amounts to owners of
beneficial interests in a global note, including principal, premium, if any, and
interest. Payments by the DTC Participants and Indirect Participants to the
owners of beneficial interests in a global note will be governed by standing
instructions and customary industry practice and will be the responsibility of
the Participants or Indirect Participants and DTC.
DTC has advised the Company and Tyco that its current practice, upon receipt
of any payment in respect of securities such as the notes including principal
and interest, is to credit the accounts of the relevant Participants with the
payment on the payment date, in amounts proportionate to their respective
holdings in the principal amount of beneficial interest in the relevant security
as shown on the records of DTC, unless DTC has reason to believe it will not
receive payment on such payment date. Payments by the Participants and the
Indirect Participants to the beneficial owners of the notes will be governed by
standing instructions and customary practices and will be the responsibility of
the Participants or the Indirect Participants and will not be the responsibility
of DTC, the trustee, the Company or Tyco. None of the Company, Tyco or the
trustee will be liable for any delay by DTC or any of its Participants in
identifying the beneficial owners of the notes, and the Company and the trustee
may conclusively rely on and will be protected in relying on instructions from
DTC or its nominee for all purposes.
Subject to compliance with the transfer restrictions applicable to the
notes, cross-market transfers between the Participants in DTC, on the one hand,
and Euroclear or Cedelbank participants, on the other hand, will be effected
through DTC in accordance with DTC's rules on behalf of Euroclear or Cedelbank,
as the case may be, by its respective depositary; however, such cross-market
transactions will require delivery of instructions to Euroclear or Cedelbank, as
the case may be, by the counterparty in such system in accordance with the rules
and procedures and within the established deadlines (Brussels time) of such
system. Euroclear or Cedelbank, as the case may be, will, if the transaction
meets its settlement requirements, deliver instructions to its respective
depositary to take action to effect final settlement on its behalf by delivering
or receiving interests in the global note in DTC, and making or receiving
payment in accordance with normal procedures for same-day funds settlement
applicable to DTC. Euroclear participants and Cedelbank participants may not
deliver instructions directly to the depositories for Euroclear or Cedelbank.
DTC has advised the Company and Tyco that it will take any action permitted
to be taken by a holder of notes of any series only at the direction of one or
more Participants to whose account DTC has credited the interests in the global
notes of such series and only in respect of such portion of the aggregate
principal amount of the notes as to which such Participant or Participants has
or have given such direction. However, if there is an event of default under the
notes, DTC reserves the right to exchange the global notes for legended notes in
certificated form, and to distribute such notes to its Participants.
Although DTC, Euroclear and Cedelbank have agreed to the foregoing
procedures to facilitate transfers of interests in the global notes among
Participants in DTC, Euroclear and Cedelbank, they are under no obligation to
perform or to continue to perform such procedures, and such procedures may be
discontinued at any time. None of the Company, Tyco or the trustee or any of
their respective agents will have any responsibility for the performance by DTC,
Euroclear or Cedelbank or their
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respective participants or indirect participants of their respective obligations
under the rules and procedures governing their operations.
DTC management is aware that some computer applications, systems, and the
like for processing data ("Systems") that are dependent upon calendar dates,
including dates before, on, and after January 1, 2000, may encounter "Year 2000
problems." DTC has informed its Participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to securityholders, book-entry
deliveries, and settlement of trades within DTC ("DTC Services"), continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, DTC's plan includes a
testing phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third party vendors from whom DTC licenses software and hardware, and
third party vendors on whom DTC relies for information of the provision of
services, including telecommunication and electrical utility service providers,
among others. DTC has informed the Industry that it is contacting (and will
continue to contact) third party vendors from whom DTC acquires services to:
(1) impress upon them the importance of such services being year 2000 compliant;
and (2) determine the extent of their efforts for Year 2000 remediation (and, as
appropriate, testing) of their services. In addition, DTC is in the process of
developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
CERTIFICATED EXCHANGE NOTES
If:
1. the Company notifies the trustee in writing that DTC is no longer willing
or able to act as a depositary or DTC ceases to registered as a clearing agency
under the Exchange Act, and a successor depositary is not appointed within
90 days of such notice or cessation; or,
2. the Company, at its option, notifies the trustee in writing that it
elects to cause the issuance of exchange notes in definitive form under the
indenture,
upon surrender by DTC of the global notes representing exchange notes,
certificated exchange notes will be issued in the names and denominations
requested by DTC in accordance with its customary procedures. Upon any such
issuance, the trustee is required to register such certificated exchange notes
in the name of such person or persons or the nominee of any thereof, and cause
the same to be delivered thereto.
None of the Company, Tyco or the trustee shall be liable for any delay by
DTC or any Participant or Indirect Participant in identifying the beneficial
owners of the related notes and the Company, Tyco and the trustee may
conclusively rely on, and shall be protected in relying on, instructions from
DTC for all purposes.
CERTAIN COVENANTS
The indenture contains, among others, the covenants described below. Some
capitalized terms used in this section are defined under "Definitions" below.
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LIMITATIONS ON LIENS
The Company covenants that, so long as any debt securities issued under the
indenture, including any of the notes, remain outstanding, but subject to
defeasance, as provided in the indenture, it will not, and will not permit any
Restricted Subsidiary to incur any indebtedness which is secured by a mortgage,
pledge, security interest, lien or encumbrance (each a "lien") upon:
- any Principal Property; or
- any shares of stock of or indebtedness issued by any Restricted
Subsidiary,
whether now owned or hereafter acquired, without effectively providing that, for
so long as such lien shall continue in existence with respect to such secured
indebtedness, the debt securities issued under the indenture, including the
notes, together with, if the Company shall so determine, any other indebtedness
of the Company ranking equally with the notes, shall be equally and ratably
secured with, or at the Company's option prior to, such secured indebtedness.
The foregoing restriction shall not apply to:
1. liens that exist when the applicable debt securities are issued;
2. liens on the stock, assets or indebtedness of a person that exist when
such person becomes a Restricted Subsidiary unless created in contemplation of
such Restricted Subsidiary becoming such;
3. liens on any assets or indebtedness of a person that exist when:
- such person is merged into the Company or a Restricted Subsidiary; or
- at the time the Company or a Restricted Subsidiary purchases, leases or
otherwise acquires as an entirety or substantially as an entirety the
assets of such person;
4. liens on any Principal Property that exist:
- when the Company or any Restricted Subsidiary acquired such property;
- to secure the payment or indebtedness for the financing of the purchase
price of such property; or
- to secure indebtedness incurred for the purpose of the financing of all
or any part of improvements or construction on such property, which
indebtedness in each case is incurred before, at the time of, or within
one year after the acquisition of such property, or in the case of real
property, completion of such improvement or construction or commencement
of full operation of such property, whichever is later;
5. liens that secure indebtedness owed by any Restricted Subsidiary to the
Company, Tyco or a subsidiary of the Company or by the Company to Tyco;
6. liens in favor of any country or state, or political subdivision thereof:
- to secure payments pursuant to any contract, statute, rule or regulation;
or
- to secure any indebtedness incurred for the purpose of financing all or
any part of the purchase price, or, in the case of real property, the
cost of construction or improvement, of the Principal Property subject to
such liens, including, but not limited to, liens incurred in connection
with pollution control, industrial revenue or similar financings;
7. liens or deposits under worker's compensation or similar legislation, or
in connection with bids, tenders, contracts, other than for the payment of
money, or leases to which the Company or any Restricted Subsidiary is a party,
or to secure the public or statutory obligations of the Company or any
Restricted Subsidiary, or in connection with obtaining or maintaining
self-insurance, or to obtain the benefits of any law, regulation or arrangement
pertaining to unemployment insurance, old age pensions,
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social security or similar matters, or to secure surety, performance, appeal or
customs bonds to which the Company or any Restricted Subsidiary is a party, or
in litigation or other proceedings in connection with the matters heretofore
referred to in this clause, such as, but not limited to, interpleader
proceedings, and other similar pledges, liens or deposits made or incurred in
the ordinary course of business;
8. certain liens in connection with legal proceedings, as provided in the
indenture;
9. liens for certain taxes or assessments, landlord's liens and liens and
charges incidental to the conduct of the business of the Company or any
Restricted Subsidiary, or the ownership of their respective assets, which were
not incurred in connection with the borrowing of money or the obtaining of
advances or credit and which do not, in the opinion of the Board of Directors of
the Company, materially impair the use of such assets in the operation of the
business of the Company or such Restricted Subsidiary or the value of such
Principal Property for the purposes thereof;
10. liens to secure the Company's or any Restricted Subsidiary's obligations
under agreements with respect to spot, forward, future and option transactions,
entered into in the ordinary course of business;
11. liens not permitted by the foregoing clauses 1 to 10, inclusive, if at
the time of, and after giving effect to, the creation or assumption of such
lien, the aggregate amount of all outstanding indebtedness of the Company and
its Restricted Subsidiaries, without duplication, secured by all liens not
permitted by the foregoing clauses 1 through 10, inclusive, together with the
Attributable Debt in respect of Sale and Lease-Back Transactions permitted by
clause 1 under "Limitation on Sale and Lease-Back Transactions" below does not
exceed the greater of $100,000,000 and 10% of Consolidated Net Worth; and
12. any total or partial extension, renewal or replacement of any lien
permitted pursuant to clauses 1 through 11, inclusive, except that the principal
amount of indebtedness secured by such extension, renewal or replacement, unless
otherwise excepted under clauses 1 through 11, shall not exceed the principal
amount of indebtedness of the original permitted lien, and that such extension,
renewal or replacement shall be limited to all or part of the assets, or any
replacement therefor, which secured the original lien, plus improvements and
construction on real property.
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any Sale and Lease-Back Transaction with respect to a Principal
Property unless;
1. the Company or such Restricted Subsidiary would, at the time of entering
into a Sale and Lease-Back Transaction, be entitled to incur indebtedness
secured by a lien on the Principal Property to be leased in an amount at least
equal to the Attributable Debt in respect of such transaction, without equally
and ratably securing the debt securities issued under the indenture, including
the notes, pursuant to the provisions described under "Limitations on Liens"
above; or
2. the direct or indirect proceeds of the sale of the Principal Property to
be leased are at least equal to their fair value, as determined by the Company's
Board of Directors, and an amount equal to the net proceeds is applied, within
180 days of the effective date of such transaction, to the purchase or
acquisition, or, in the case of real property, commencement of the construction,
of property or assets or to the retirement of the debt securities issued under
the indenture, other than at maturity or pursuant to a mandatory sinking fund or
a mandatory redemption provision, or of Funded Indebtedness of the Company or a
consolidated subsidiary of the Company that ranks on a parity with or senior to
the debt securities issued under the indenture, subject to credits for certain
voluntary retirement of Funded Indebtedness and certain delivery of debt
securities issued under the indenture to the trustee for retirement and
cancellation.
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LIMITATION ON INDEBTEDNESS OF SUBSIDIARIES
1. The Company will not cause or permit any subsidiary of the Company which is
not a guarantor of the notes or any other debt securities issued under the
indenture, directly or indirectly, to create, incur, assume, guarantee or
otherwise in any manner become liable for the payment of or otherwise incur
(collectively, "incur"), any indebtedness, including any Acquired
Indebtedness but excluding any Permitted Subsidiary Indebtedness, unless
such subsidiary simultaneously executes and delivers a supplemental
indenture providing for a guarantee of the debt securities issued under the
indenture, including the notes.
2. Notwithstanding the foregoing, any guarantee by a subsidiary of the Company
of the debt securities issued under the indenture, including any guarantee
by a subsidiary of any of the notes, shall provide by its terms that it, and
all liens securing the same, shall be automatically and unconditionally
released and discharged upon:
- any sale, exchange or transfer, to any person not an Affiliate of the
Company, of all of the Company's equity interests in, or all or
substantially all the assets of, such subsidiary, which transaction is in
compliance with the terms of the indenture and such subsidiary is released
from all guarantees, if any, by it of other indebtedness of the Company or
any subsidiaries of the Company;
- the payment in full of all obligations under the indebtedness described in
clause 1 above giving rise to such guarantee; or
- with respect to indebtedness described in the clause 1 above constituting
guarantees of indebtedness, the release by the holders of such
indebtedness of the guarantee by such subsidiary, including any deemed
release upon payment in full of all obligations under such indebtedness,
provided that:
(A) no other indebtedness, other than Permitted Subsidiary Indebtedness,
has been guaranteed by such subsidiary; or
(B) the holders of all other indebtedness which is guaranteed by such
subsidiary also release the guarantee by such subsidiary, including
any deemed release upon payment in full of all obligations under such
indebtedness.
3. For purposes of this covenant, any Acquired Indebtedness shall not be deemed
to have been incurred until 180 days from the date
(A) the person obligated on such Acquired Indebtedness becomes a subsidiary
of the Company, or
(B) the acquisition of assets in connection with which such Acquired
Indebtedness was assumed is consummated.
DEFINITIONS
"Acquired Indebtedness" means indebtedness of a person:
- existing at the time such person becomes a Restricted Subsidiary; or
- assumed in connection with the acquisition of assets by such person,
in each case, other than indebtedness incurred in connection with, or in
contemplation of, such person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
"Affiliate" means, with respect to any specified person:
- any other person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified person;
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- any other person that owns, directly or indirectly, 10% or more of such
specified person's capital stock or any officer or director of any such
specified person or other person; or
- any other person 10% or more of the voting stock of which is beneficially
owned or held directly or indirectly by such specified person.
For the purposes of this definition, "control" when used with respect to any
specified person means the power to direct the management and policies of such
person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Attributable Debt" means in connection with a Sale and Lease-Back
Transaction, as of any particular time, the aggregate of present values,
discounted at a rate per annum equal to the average interest borne by all
outstanding debt securities issued under the indenture determined on a weighted
average basis and compounded semiannually, of the obligations of the Company or
any Restricted Subsidiary for net rental payments during the remaining term of
the applicable lease, including any period for which such lease has been
extended or may, at the option of the lessor, be extended. The term "net rental
payments" under any lease of any period shall mean the sum of the rental and
other payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee, whether or
not designated as rental or additional rental, on account of maintenance and
repairs, reconstruction, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales,
maintenance and repairs, reconstruction, insurance, taxes, assessments, water
rates or similar charges.
"Consolidated Net Worth" means, at any date, the total assets less the total
liabilities, in each case appearing on the most recently prepared consolidated
balance sheet of the Company and its subsidiaries as of the end of a fiscal
quarter of the Company, prepared in accordance with United States generally
accepted accounting principles as in effect on the date of calculation.
"Consolidated Tangible Assets" means, at any date, the total assets less all
Intangible Assets appearing on the most recently prepared consolidated balance
sheet of the Company and its subsidiaries as of the end of a fiscal quarter of
the Company, prepared in accordance with United States generally accepted
accounting principles as in effect on the date of calculation. "Intangible
Assets" means the amount, if any, which would be stated under the heading "Costs
in Excess of Net Assets of Acquired Companies" or under any other heading
relating to intangible assets separately listed, in each case on the face of the
aforesaid consolidated balance sheet.
"Funded Indebtedness" means any indebtedness maturing by its terms more than
one year from the date of the determination thereof, including any indebtedness
renewable or extendible at the option of the obligor to a date later than one
year from the date of the determination thereof.
"Permitted Subsidiary Indebtedness" means any of the following:
1. indebtedness in an aggregate amount, without duplication, not to exceed,
as of the date of determination, 5% of the Consolidated Tangible Assets
of the Company, excluding any indebtedness described in clauses 2 through
8 below;
2. indebtedness owed to the Company, Tyco or any subsidiary of the Company;
3. obligations under standby letters of credit or similar arrangements
supporting the performance of a Person under a contract or agreement in
the ordinary course of business;
4. obligations as lessee in the ordinary course of business which are
capitalized in accordance with United States generally accepted
accounting principles;
5. Indebtedness that was Permitted Subsidiary Indebtedness at the time that
it was first incurred;
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6. Acquired Indebtedness that by its terms is not, at the time it became
Acquired Indebtedness or within 180 days thereafter, callable or
redeemable prior to its stated maturity and that remains outstanding
following such time as the subsidiary of the Company obligated under such
Acquired Indebtedness in good faith has made or caused to be made an
offer to acquire all such indebtedness, including, without limitation, an
offer to exchange such indebtedness for securities of the Company, on
terms which, in the opinion of an independent investment banking firm of
national reputation and standing, are consistent with market practices in
existence at the time for offers of a similar nature, provided that the
initial expiration date of any such offer shall be not later than the
expiration of the time period set forth in paragraph 3 of the "Limitation
on Indebtedness of Subsidiaries" covenant;
7. indebtedness outstanding on the date of the indenture; and
8. any renewals, extensions, substitutions, refundings, refinancings or
replacements (collectively, a "refinancing") of any indebtedness referred
to in clause 7 of this definition of "Permitted Subsidiary Indebtedness"
of a subsidiary organized under a jurisdiction other than the United
States or any State thereof or the District of Columbia, including any
successive refinancings, so long as the borrower under such refinancing
is such subsidiary and the aggregate principal amount of indebtedness
represented thereby, or if such indebtedness provides for an amount less
than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof, the original issue
price of such indebtedness plus any accreted value attributable thereto
since the original issuance of such indebtedness, is not increased by
such refinancing plus the lesser of (A) the stated amount of any premium
or other payment required to be paid in connection with such a
refinancing pursuant to the terms of the indebtedness being refinanced or
(B) the amount of premium or other payment actually paid at such time to
refinance the indebtedness, plus, in either case, the amount of expenses
of such Subsidiary incurred in connection with such refinancing.
"Principal Property" means any manufacturing, processing or assembly plant
or facility or any warehouse or distribution facility which is used by any U.S.
subsidiary of the Company after the date hereof, other than any such plants,
facilities, warehouses or portions thereof, which in the opinion of the Board of
Directors of the Company, are not collectively of material importance to the
total business conducted by the Company and its Restricted Subsidiaries as an
entirety, or which, in each case, has a book value, on the date of the
acquisition or completion of the initial construction thereof by the Company, of
less than 1.5% of Consolidated Tangible Assets.
"Restricted Subsidiary" means any subsidiary of the Company which owns or
leases a Principal Property.
"Sale and Lease-Back Transaction" means an arrangement with any person
providing for the leasing by the Company or a Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Company or a Restricted Subsidiary to such person; provided,
however, that the foregoing shall not apply to any such arrangement involving a
lease for a term, including renewal rights, for not more than three years.
MERGER, CONSOLIDATION, SALE OR CONVEYANCE
The indenture provides that neither the Company, Tyco nor any other
guarantor will merge or consolidate with any other corporation or will not sell
or convey all or substantially all of its assets to any person, unless:
1. the Company, Tyco or such other guarantor, as the case may be, shall be
the continuing corporation; or
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2. the successor corporation or person that acquires all or substantially
all of the assets of the Company, Tyco or such other guarantor, as the
case may be, shall expressly assume:
- the payment of principal of, premium, if any, and interest on the notes
and all other debt securities issued under the indenture or the
guarantees thereof, as the case may be,
- the observance of all the covenants and agreements under the indenture
to be performed or observed by the Company, Tyco or such other
guarantor, as the case may be; and
and in either case, immediately after such merger, consolidation, sale or
conveyance, the Company, Tyco or such other guarantor, as the case may be, or
such successor corporation or person, as the case may be, shall not be in
default in the performance of the covenants and agreements of the indenture to
be performed or observed by the Company, Tyco or such other guarantor, as the
case may be; provided that the foregoing shall not apply to a guarantor other
than Tyco if in connection with any such merger, consolidation, sale or
conveyance the guarantee of such guarantor is released and discharged pursuant
to paragraph 2 of the "Limitation on Indebtedness of Subsidiaries" covenant
described above.
EVENTS OF DEFAULT
An event of default with respect to a series of notes is defined in the
indenture as being:
1. default for 30 days in payment of any interest on any notes of such
series;
2. default in any payment of principal or sinking fund installment on any
notes of such series;
3. default by the Company, Tyco or any other guarantor in performance of
any other of the covenants or agreements in respect of the notes of such
series and related guarantees or the indenture that continues for
90 days after the Company receives notice of such failure in accordance
with the indenture;
4. default by the Company, Tyco or any other guarantor in the payment at
the final maturity thereof, after the expiration of any applicable grace
period, of principal of, premium, if any, or interest on indebtedness for
money borrowed, other than non-recourse indebtedness, in the principal
amount then outstanding of $50,000,000 or more, or acceleration of any
indebtedness in such principal amount so that it becomes due and payable
prior to the date on which it would otherwise have become due and payable
and such acceleration is not rescinded within ten business days after
notice to the Company in accordance with the indenture;
5. any guarantee of that series of notes ceases to be, or the Company or
any guarantor asserts in writing that such guarantee is not, in full
force and effect and enforceable in accordance with its terms; or
6. certain events involving bankruptcy, insolvency or reorganization of the
Company, Tyco or any Significant Subsidiary Guarantor.
The indenture provides that the trustee shall transmit notice of any uncured
default under the indenture with respect to either series of notes, within
90 days after the occurrence of such default, to the holders of notes of each
affected series, except that the trustee may withhold notice to the holders of
either series of the notes of any default, except in payment of principal of,
premium, if any, or interest on such series of notes, if the trustee considers
it in the interest of the holders of such series of notes to do so.
If an event of default due to:
- the default in the payment of interest, principal or sinking fund
installment with respect to the notes of a series;
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- the default in the performance or breach of any other covenant or
agreement of the Company, Tyco or any guarantor applicable to the notes of
such series but not applicable to all outstanding debt securities issued
under the indenture; or
- a guarantee of a series of notes ceasing to be, or the Company or any
guarantor asserting that a guarantee of a series of notes no longer is, in
full force and effect and enforceable in accordance with its terms,
shall have occurred and be continuing, either the trustee or the holders of not
less than 25% in principal amount of the notes of such series then outstanding
may declare the principal of all notes of such series and interest accrued
thereon to be due and payable immediately.
If an event of default due to:
- a default in the performance of any other of the covenants or agreements
in the indenture applicable to all outstanding debt securities issued
thereunder and then outstanding;
- a default in payment at final maturity or upon acceleration of
indebtedness for money borrowed in the principal amount then outstanding
of $50,000,000 or more; or
- certain events of bankruptcy, insolvency and reorganization of the
Company, Tyco or any Significant Subsidiary Guarantor,
shall have occurred and be continuing, either the trustee or the holders of not
less than 25% in principal amount of all debt securities issued under the
indenture then outstanding, including the notes, treated as one class, may
declare the principal of all such debt securities and interest accrued thereon
to be due and payable immediately.
Under certain circumstances, such declarations may be annulled and past
defaults may be waived, except a non-payment of such debt securities which shall
have become due by acceleration, by the holders of a majority in principal
amount of the outstanding notes of an affected series, voting as a separate
class, or all debt securities outstanding under the indenture, voting as a
single class, as the case may be.
The holders of a majority in principal amount of the outstanding notes of
each affected series shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the trustee with
respect to the notes, subject to certain limitations specified in the indenture.
The indenture provides that no holder of notes of any series may institute
any action against the Company under the indenture, except actions for payment
of overdue principal, premium, if any, or interest, unless such holder
previously shall have given to the trustee written notice of default and
continuance thereof and unless the holders of not less than 25% in principal
amount of the notes of such series then outstanding shall have requested the
trustee to institute such action and shall have offered the trustee reasonable
indemnity, and the trustee shall not have instituted such action within 60 days
of such request, and the trustee shall not have received direction inconsistent
with such written request by the holders of a majority in principal amount of
the notes of such series then outstanding.
The indenture requires the annual filing by the Company with the trustee of
a written statement as to compliance with the covenants and agreements contained
in the indenture.
"Significant Subsidiary Guarantor" means any one or more guarantors, other
than Tyco, which, at the date of determination, together with its or their
respective subsidiaries in the aggregate,
- for the most recently completed fiscal year of the Company accounted for
more than 10% of the consolidated revenues of the Company; or
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- at the end of such fiscal year, was the owner, beneficial or otherwise, of
more than 10% of the consolidated assets of the Company, as determined in
accordance with United States generally accepted accounting principles and
reflected on the Company's consolidated financial statements.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company may discharge or defease its obligations under the indenture as
set forth below.
Under terms satisfactory to the trustee, the Company may discharge the
indenture with respect to any series of notes issued under the indenture which
have not already been delivered to the trustee for cancellation and which have
either become due and payable or are by their terms due and payable within one
year, or which may be called for redemption within one year, by irrevocably
depositing with the trustee cash or direct obligations of the United States as
trust funds in an amount certified to be sufficient to pay at maturity, or upon
redemption, the principal of, premium, if any, and interest and Additional
Amounts, if any, on such series of notes. However, the Company may not thereby
avoid:
- its duty to register the transfer or exchange of such series of notes, or
to replace any mutilated, destroyed, lost or stolen notes;
- the rights of holders of such series of notes to receive from the funds
deposited with the trustee payments of principal and interest, on such
notes, on the stated due dates for such payments; or
- the rights, obligations and immunities of the trustee under the indenture.
If the exact amounts of principal of and interest due on a series can be
determined at the time of making the deposit referred to below, the Company at
its option at any time may also:
1. discharge any and all of its obligations to holders of such series of
notes issued under the indenture ("defeasance"), but may not thereby avoid
its obligations enumerated in the previous paragraph; or
2. be released with respect to such series of notes from the obligations
imposed by the covenants described under the captions "Certain Covenants"
and "Merger, Consolidation, Sale or Conveyance" above and omit to comply
with such covenants without creating an event of default ("covenant
defeasance").
Defeasance or covenant defeasance may be effected only if, among other
things:
1. the Company or Tyco irrevocably deposits with the trustee cash and/or
direct obligations of the United States, as trust funds in an amount
certified by a nationally recognized firm of independent public accountants
or a nationally recognized investment banking firm to be sufficient to pay
each installment of principal and interest and Additional Amounts, if any,
on all outstanding notes of the relevant series on the dates such
installments of principal and interest are due and any mandatory sinking
fund payments with respect to such series;
2. no default or event of default shall have occurred and be continuing
on the date of the deposit referred to in clause 1 or, in respect of certain
events of bankruptcy, insolvency or reorganization, during the period ending
on the 91st day after the date of such deposit, or any longer applicable
preference period; and
3. the Company delivers to the trustee:
(A) an opinion of counsel to the effect that the holders of such series
of notes:
- will not recognize any income, gain or loss for U.S. federal income tax
purposes as a result of such deposit and defeasance or covenant
defeasance, as applicable, and
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- will be subject to U.S. federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if
such deposit and defeasance or covenant defeasance, as applicable, had
not occurred.
Which, in the case of defeasance, must be based on a ruling of the Internal
Revenue Service or a change in U.S. federal income tax law occurring after
the date of the indenture; and
(B) an opinion of counsel to the effect that:
- payments from the defeasance trust will be free and exempt from any and
all withholding and other taxes imposed or levied by or on behalf of
Luxembourg or any political subdivision thereof having the power to
tax, and
- holders of such series of notes will not recognize any income, gain or
loss for Luxembourg income tax and other Luxembourg tax purposes as a
result of such deposit and defeasance or covenant defeasance, as
applicable, and will be subject to Luxembourg income tax and other
Luxembourg tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and defeasance or
covenant defeasance, as applicable, had not occurred.
MODIFICATION OF THE INDENTURE
The indenture contains provisions permitting the Company, Tyco and the
trustee, with the consent of the holders of not less than a majority of the
principal amount of all affected series of the debt securities issued under the
indenture at the time outstanding, including the notes, voting as one class, to
modify the indenture or any supplemental indenture or the rights of the holders
of such debt securities. However, without the consent of each holder of debt
securities including the notes, so affected, the indenture cannot be modified
to:
1. extend the final maturity of any of the notes or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof, or change the
currency thereof, or impair or affect the right of any holder of the notes
to institute suit for the payment thereof; or
2. reduce the aforesaid percentage in principal amount of debt
securities, the consent of the holders of which is required for any such
modification.
The indenture contains provisions permitting the Company, Tyco and the
trustee, without the consent of any holders of notes, to enter into a
supplemental indenture, among other things, for purposes of curing any ambiguity
or correcting or supplementing any provision contained in the indenture or in
any supplemental indenture or making other provisions in regard to the matters
or questions arising under the indenture or any supplemental indenture as the
Board of Directors of the Company deems necessary or desirable and which does
not adversely affect the interests of the holders of notes in any material
respect. The Company, Tyco and the trustee, without the consent of any holders
of notes, may also enter into a supplemental indenture to establish the form or
terms of any series of debt securities as are not otherwise inconsistent with
any of the provisions of the indenture.
CONCERNING THE TRUSTEE
The trustee may hold notes, act as a depository for funds of, make loans to,
or perform other services for, Tyco, the Company and their respective
subsidiaries as if it were not the trustee.
ENFORCEMENT OF CIVIL LIABILITIES
The Company and Tyco have consented in the indenture to jurisdiction in the
United States federal and state courts in The City of New York and to service of
process in The City of New York in
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any legal suit, action or proceeding brought to enforce any rights under or with
respect to the indenture, the notes and the guarantees. However, substantially
all of the Company's directly held assets consists of shares in its wholly-owned
subsidiary Tyco Group S.a.r.l., a Luxembourg company which, through its
subsidiaries, owns a substantial majority of the assets of the Company. A
substantial majority of Tyco's directly held assets consists of shares in the
Company. Accordingly, any judgment against the Company or Tyco in respect of the
indenture, the notes or the guarantees, including for civil liabilities under
the United States federal securities laws, obtained in any United States federal
or state court may have to be enforced in the courts of Luxembourg. Investors
should not assume that the courts of Luxembourg would enforce judgments of
United States courts obtained against the Company or Tyco predicated upon the
civil liability provisions of the United States federal securities laws or that
such courts would enforce, in original actions, liabilities against the Company
or Tyco predicated solely upon such laws.
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CERTAIN LUXEMBOURG, BERMUDA AND UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES
The following discussion is intended to be a general summary of Luxembourg,
Bermuda and United States federal income tax consequences to holders of notes.
Due to the complexity of the tax laws of these and other taxing jurisdictions,
the uncertainty, in some instances, as to the manner in which such laws apply to
holders and possible changes in law, it is particularly important that each
holder consult with its own tax adviser regarding the tax treatment of the
acquisition, ownership and disposition of notes under the laws of any federal,
state, local or other taxing jurisdiction.
LUXEMBOURG
Under current law, no withholding or deduction is imposed in Luxembourg in
respect of any payment to be made by the Company in respect of the notes.
Holders of notes who are neither resident in Luxembourg nor engaged in a trade
or business through a permanent establishment or permanent representative in
Luxembourg will not be subject to taxes or duties in Luxembourg with respect to
interest payments on, or gains realized on the disposition of, the notes. No
stamp, registration or similar taxes, duties or charges are payable in
Luxembourg in connection with the issue of the notes.
BERMUDA
Under current law, no income, withholding or other taxes or stamp,
registration or other duties are imposed upon the issue, transfer or sale of the
notes or on any payments made in respect of the notes or the guarantees.
UNITED STATES
The following is a general discussion of anticipated U.S. federal income tax
consequences of the ownership and disposition of the notes to holders thereof
and of the exchange of Restricted Notes for Exchange Notes pursuant to the
exchange offer. This summary is based upon laws, regulations, rulings and
decisions currently in effect, all of which are subject to change at any time,
possibly with retroactive effect. Moreover, it deals only with purchasers who
hold notes as "capital assets" within the meaning of Section 1221 of the U.S.
Internal Revenue Code of 1986 and does not purport to deal with persons in
special tax situations, such as financial institutions, insurance companies,
regulated investment companies, tax exempt investors, dealers in securities or
currencies, U.S. expatriates, persons holding notes as a hedge against currency
risk or as a position in a "straddle," "hedge," "conversion" or another
integrated transaction for tax purposes, persons who own, directly or
indirectly, 10 percent or more of the voting power of the Company, or U.S.
Holders, as defined below, whose functional currency is not the U.S. dollar.
Further, this discussion does not address the consequences under U.S. federal
estate or gift tax laws or the laws of any U.S. state or locality.
Holders of Restricted Notes are urged to consult their own tax advisors
concerning the consequences, in their particular circumstances, of the ownership
and disposition of the notes and the exchange of Restricted Notes for Exchange
Notes pursuant to the exchange offer under the U.S. federal tax laws and the
laws of any relevant state, local or non-U.S. taxing jurisdiction.
As used in this section, the term "U.S. Holder" means a beneficial owner of
notes that is, for U.S. federal income tax purposes:
- a citizen or resident of the United States,
- a corporation, partnership or other entity, other than a trust, created or
organized in or under the laws of the United States or of any political
subdivision thereof, other than a partnership that is not treated as a
U.S. person under any applicable U.S. Treasury regulations,
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- an estate whose income is subject to U.S. federal income tax regardless of
its source, or
- a trust if, in general, a court within the U.S. is able to exercise
primary jurisdiction over its administration and one or more U.S. persons
have authority to control all of its substantial decisions.
As used in this section, the term "non-U.S. Holder" means a beneficial owner
of notes that is not a U.S Holder for U.S. federal income tax purposes.
THE EXCHANGE OFFER
An exchange of Restricted Notes for Exchange Notes pursuant to the exchange
offer should not be treated as an exchange or other taxable event for United
States federal income tax purposes. Accordingly, there should be no United
States federal income tax consequences to holders of Restricted Notes who
exchange Restricted Notes for Exchange Notes pursuant to the exchange offer, and
any holder should have the same adjusted tax basis and holding period in the
Exchange Notes as it had in the Restricted Notes immediately before the
exchange.
U.S. HOLDERS
INTEREST AND DISPOSITION GENERALLY
The gross amount of interest paid on the notes will be taxable as ordinary
income for U.S. federal income tax purposes when received or accrued by a U.S.
Holder in accordance with such U.S. Holder's method of tax accounting. While not
entirely clear, any additional amounts paid in respect of withholding taxes in
general should be taxable in the same manner. Interest on the notes will be
income from sources outside the United States and, with certain exceptions, will
be treated as "passive" income for purposes of computing the foreign tax credit
allowable under U.S. federal income tax laws. The rules relating to foreign tax
credits and the timing thereof are extremely complex, and U.S. Holders should
consult their own tax advisers with regard to the availability of foreign tax
credits and the application of the foreign tax credit limitations to their
particular situations.
Upon the sale, redemption or other taxable disposition of a note, a U.S.
Holder will recognize capital gain or loss equal to the difference between the
amount realized, excluding any amount attributable to accrued interest, which
will be taxable as ordinary interest income as described above, or accrued
market discount which is described below, and the U.S. Holder's tax basis in the
notes, generally the U.S. Holder's cost. Such gain or loss will be long term
capital gain or loss if the notes are held for more than one year. The
deductibility of capital losses is subject to certain limitations. For purposes
of foreign tax credits under U.S. federal income tax laws, capital gain or loss
recognized by a U.S. Holder generally will be treated as U.S. source. U.S.
Holders should consult their own tax advisors as to the foreign tax credit
implications of the disposition of notes under U.S. federal income tax laws.
Special rules apply to notes acquired at a market discount or premium, which
are discussed below.
BOND PREMIUM
If a U.S. Holder purchased notes for an amount in excess of the amount
payable at the maturity date of the notes, the U.S. Holder may deduct such
excess as amortizable bond premium over the term of the notes under a
yield-to-maturity formula. The deduction is available only if an election is
made by the purchaser or if such election is in effect. This election is
revocable only with the consent of the U.S. Internal Revenue Service. The
election applies to all obligations owned or subsequently acquired by the U.S.
Holder. The U.S. Holder's adjusted tax basis in the notes will be reduced to the
extent of the deduction of amortizable bond premium. The amortizable bond
premium is treated as an offset to interest income on the notes rather than as a
separate deduction item. A loss upon the disposition of a
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note generally will be treated as foreign source for U.S. foreign tax credit
purposes to the extent of any unamortized bond premium on the notes that could
have been deducted had an election been made.
MARKET DISCOUNT
If a U.S. Holder acquired the notes, other than in an original issue, at a
market discount which equals or exceeds 1/4 of 1% of the stated redemption price
of the notes at maturity multiplied by the number of remaining complete years to
maturity and thereafter recognizes gain upon a disposition, or makes a gift, of
the notes, the lesser of:
1. such gain or, in the case of a gift, appreciation, or
2. the portion of the market discount which accrued on a straight line
basis, or, if the U.S. Holder so elects, on a constant interest rate basis,
while the notes were held by such U.S. Holder
will be treated as ordinary income at the time of the disposition or gift. For
these purposes, market discount means the excess, if any, of the stated
redemption price at maturity over the basis of such notes immediately after
their acquisition by the U.S. Holder. A U.S. Holder may elect to include accrued
market discount in income currently, which would increase the U.S. Holder's
basis in the notes, rather than upon disposition of the notes. This election
once made applies to all market discount obligations acquired on or after the
first taxable year to which the election applies, and may not be revoked without
the consent of the Internal Revenue Service. For U.S. foreign tax credit
purposes, accrued market discount included as ordinary income will be treated as
income from foreign sources.
A U.S. Holder of notes acquired at a market discount generally will be
required to defer the deduction of a portion of the interest on any indebtedness
incurred or maintained to purchase or carry such notes until the market discount
is recognized upon a subsequent disposition of such notes. Such a deferral is
not required, however, if the U.S. Holder elects to include accrued market
discount in income currently.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Non-exempt U.S. Holders may be subject to information reporting with respect
to payments of interest on, and the proceeds of the disposition of, notes.
Non-exempt U.S. Holders who are subject to information reporting and who do not
provide appropriate information when requested may be subject to backup
withholding at a 31% rate. U.S. Holders should consult their tax advisors.
NON-U.S. HOLDERS
INTEREST AND DISPOSITION
In general, and subject to the discussion below under "Information Reporting
and Backup Withholding," a non-U.S. Holder will not be subject to U.S. federal
income or withholding tax with respect to payments of interest on, or gain upon
the disposition of, notes, unless the income, or, in the case of a treaty
resident, attributable to a permanent establishment or a fixed base, or gain is
effectively connected with the conduct by the non-U.S. Holder of a trade or
business in the United States. In that event, such income or gain will generally
be subject to regular U.S. income tax in the same manner as if it were realized
by a U.S. Holder. In addition, if such non-U.S. Holder is a non-U.S.
corporation, such income or gain may be subject to a branch profits tax at a
rate of 30%, or such lower rate provided by an applicable income tax treaty.
INFORMATION REPORTING AND BACKUP WITHHOLDING
If the notes are held by a non-U.S. Holder through a non-U.S., and non-U.S.
related, broker or financial institution, information reporting and backup
withholding generally would not be required.
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Information reporting, and possibly backup withholding, may apply if the notes
are held by a non-U.S. Holder through a U.S., or U.S. related, broker or
financial institution and the non-U.S. Holder fails to provide appropriate
information. Holders should consult their tax advisors.
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange notes for its own account pursuant
to the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of such exchange notes. This document, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of exchange notes or market-making activities or other
trading activities.
The Company will not receive any proceeds from any sale of exchange notes by
broker-dealers. Exchange notes received by broker-dealers for their own account
pursuant to the exchange offer may be sold from time to time in one or more
transaction in the over-the-counter market, in negotiated transactions, through
the writing of options on the exchange notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or at negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealers who may receive
compensation in the form commissions or concessions from any such broker-dealer
or the purchasers of any such exchange notes. Any broker-dealer that resells
exchange notes that were received by it for its own account pursuant to the
exchange offer and any broker or dealer that participates in a distribution of
such exchange notes may be deemed to be an "underwriter" within the meaning of
the Securities Act, and any profit on any such resale of exchange notes and any
commission or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period starting on the date of this prospectus and ending on the close
of business on the earlier to occur of:
1. the date on which all exchange notes held by broker-dealers eligible to
use the prospectus to satisfy their prospectus delivery obligations under
the Securities Act have been sold and
2. the date 180 days after the consummation of the exchange offer,
the Company will make this document, as amended or supplemented, available to
any broker-dealer in connection with any such resale and will send additional
copies of this document and any amendment or supplement to this prospectus to
any broker-dealer that requests such documents.
The Company has agreed to pay all expenses incident to the exchange offer,
including the expense of one counsel for the holders of the restricted notes,
other than commissions or concession of any broker-dealers and will indemnify
the holders of the restricted notes, including any broker-dealers, against
certain liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
Certain U.S. legal matters regarding the notes and Tyco's guarantees of the
notes have been passed upon for Tyco by Kramer Levin Naftalis & Frankel LLP, New
York, New York. Joshua M. Berman, a director and vice president of Tyco, is
counsel to Kramer Levin Naftalis & Frankel LLP and beneficially owns 144,180
common shares of Tyco. Certain matters under the laws of Bermuda related to the
guarantees of Tyco of the notes will be passed upon for Tyco by Appleby
Spurling & Kempe, Hamilton, Bermuda, Bermuda counsel to Tyco. Michael L. Jones,
Secretary of Tyco, is a partner of Appleby Spurling & Kempe. Certain matters
under the laws of Luxembourg related to the notes will be passed upon by Beghin
Feider Loeff Claeys Verbeke, Luxembourg counsel to the Company. Kramer
36
<PAGE>
Levin Naftalis & Frankel LLP has relied on Appleby Spurling & Kempe with respect
to matters of Bermuda law and on Beghin Feider Loeff Claeys Verbeke with respect
to matters of Luxembourg law.
EXPERTS
The consolidated financial statements and financial statement schedule of
Tyco as of September 30, 1999 and 1998, and for the years ended September 30,
1999 and 1998 and the nine months ended September 30, 1997 included in Tyco's
Annual Report on Form 10-K filed on December 13, 1999, and incorporated by
reference in this document, have been audited by PricewaterhouseCoopers,
independent accountants, as set forth in their report included therein. In its
report, that firm states that with respect to certain subsidiaries its opinion
is based upon the reports of other independent accountants, namely Deloitte &
Touche LLP (as it relates to the consolidated statements of operations, changes
in stockholders' equity and cash flows of United States Surgical Corporation and
its subsidiaries for the nine-month period ended September 30, 1997 and the
related financial statement schedule for the nine-month period ended
September 30, 1997) and Arthur Andersen LLP (as it relates to the consolidated
balance sheets of AMP Incorporated and subsidiaries as of September 30, 1998,
and the related consolidated statements of income, shareholders' equity and cash
flows for the year ended September 30, 1998 and the nine months ended
September 30, 1997). The consolidated financial statements and financial
statement schedule referred to above have been incorporated herein in reliance
on said reports given on the authority of such firms as experts in auditing and
accounting.
37
<PAGE>
$1,000,000,000
TYCO INTERNATIONAL
GROUP S.A.
OFFER TO EXCHANGE
UP TO $1,000,000,000
6 7/8% NOTES DUE 2002
FOR ANY AND ALL OUTSTANDING
6 7/8% NOTES DUE 2002
FULLY AND UNCONDITIONALLY GUARANTEED BY
[LOGO]
---------------------
PROSPECTUS
---------------------
, 2000
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Bye-Law 102 of Tyco's Bye-Laws provides, in part, that Tyco shall indemnify
its directors and other officers for all costs, losses and expenses which they
may incur in the performance of their duties as director or officer, provided
that such indemnification is not otherwise prohibited under the Companies Act
1981 (as amended) of Bermuda. Section 98 of the Companies Act 1981 (as amended)
prohibits such indemnification against any liability arising out of fraud or
dishonesty of the director or officer. However, such section permits Tyco to
indemnify a director or officer against any liability incurred by him in
defending any proceedings, whether civil or criminal, in which judgment is given
in his favor or in which he is acquitted or when other similar relief is granted
to him.
Tyco maintains $100 million of insurance to reimburse the directors and
officers of Tyco and its subsidiaries, including the Company and its
subsidiaries, for charges and expenses incurred by them for wrongful acts
claimed against them by reason of their being or having been directors or
officers of Tyco or any of its subsidiaries, including the Company and its
subsidiaries. Such insurance specifically excludes reimbursement of any director
or officer for any charge or expense incurred in connection with various
designated matters, including libel or slander, illegally obtained personal
profits, profits recovered by Tyco pursuant to Section 16(b) of the Exchange Act
and deliberate dishonesty.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- --------------------- ------------------------------------------------------------
<C> <C> <S>
3.1 -- Memorandum of Association of Tyco (as altered)
(Incorporating all amendments to May 26, 1992) (previously
filed as an Exhibit to Tyco's Annual Report on Form 10-K for
the year ended December 31, 1992)
3.2 -- Certificate of Incorporation on change of name of Tyco
(previously filed as an Exhibit to Tyco's Current Report on
Form 8-K filed July 10, 1997)
3.3 -- Bye-Laws of Tyco (incorporating all amendments to April 1,
1999) (previously filed as Exhibit 3.3 to the Registrants'
Form S-3 (File Nos. 333-50855 and 333-50855-01))
3.4 -- Restated Articles of Association of the Company
4.1 -- Indenture (previously filed as Exhibit 4.1 to the
Registrants' Form S-3 (File Nos. 333-50855 and
333-50855-01))
4.2 -- Supplemental Indenture No. 11 with respect to the 6 7/8%
Notes due 2002 (previously filed as Exhibit 4.18 to Tyco's
Annual Report on Form 10-K for the year ended September 30,
1999)
4.3 -- Purchase Agreement, dated August 26, 1999, among the
Company, Tyco as guarantor, and Merrill Lynch Pierce, Fenner
& Smith Incorporated, J.P. Morgan Securities, Inc., Lehman
Brothers Inc., Morgan Stanley & Co. Incorporated, Credit
Suisse First Boston Corporation, Donaldson, Lufkin &
Jenrette Securities Corporation, Goldman, Sachs & Co., Bear,
Stearns Co. Inc., Banc of America Securities LLC, Chase
Securities Inc., Commerzbank Capital Markets Corporation,
Warburg Dillon Read LLC, Salomon Smith Barney Inc., The
Williams Capital Group L.P. and Blaylock & Partners
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- --------------------- ------------------------------------------------------------
<C> <C> <S>
4.4 -- Registration Rights Agreement, dated as of August 31, 1999,
among the Company, Tyco as guarantor, and Merrill Lynch
Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities,
Inc., Lehman Brothers Inc., Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation,
Donaldson, Lufkin & Jenrette Securities Corporation,
Goldman, Sachs & Co., Bear, Stearns Co. Inc., Banc of
America Securities LLC, Chase Securities Inc., Commerzbank
Capital Markets Corporation, Warburg Dillon Read LLC,
Salomon Smith Barney Inc., The Williams Capital Group L.P.
and Blaylock & Partners
5.1 -- Opinion of Appleby Spurling & Kempe*
5.2 -- Opinion of Beghin Feider Loeff Claeys Verbeke*
5.3 -- Opinion of Kramer Levin Naftalis & Frankel LLP*
12 -- Statement of Computation of Ratio of Earnings to Fixed
Charges
23.1 -- Consent of PricewaterhouseCoopers
23.2 -- Consent of Deloitte & Touche LLP
23.3 -- Consent of Arthur Andersen LLP
24 -- Powers of Attorney (contained in the Signature pages hereto)
25 -- Statement of Eligibility of Trustee on Form T-1
(incorporated by reference to the Registrants' Form S-3
(File Nos. 333-50855 and 333-50855-01))
99.1 -- Form of Letter of Transmittal*
99.2 -- Form of Notice of Guaranteed Delivery*
</TABLE>
- ------------------------
* To be filed by amendment.
ITEM 22. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the maximum aggregate offering price may be reflected in
the form of prospectus filed with the SEC pursuant to Rule 424(b) under
the Securities Act, if in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement.
II-2
<PAGE>
(2) That, for purposes of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant, pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town of Exeter,
State of New Hampshire, on the 21st day of December, 1999.
<TABLE>
<S> <C> <C>
TYCO INTERNATIONAL LTD.
By: /s/ MARK H. SWARTZ
-----------------------------------------
Mark H. Swartz
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
(PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER)
</TABLE>
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes and
appoints L. DENNIS KOZLOWSKI AND MARK H. SWARTZ, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement (including all pre-effective and
post-effective amendments thereto and all registration statements filed pursuant
to Rule 462(b) which incorporate this registration statement by reference), and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on December 21,
1999 in the capacities indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ L. DENNIS KOZLOWSKI Chairman of the Board, President, Chief
------------------------------------------- Executive Officer and Director (Principal
L. Dennis Kozlowski Executive Officer)
/s/ MICHAEL A. ASHCROFT
------------------------------------------- Director
Michael A. Ashcroft
/s/ JOSHUA M. BERMAN
------------------------------------------- Vice President and Director
Joshua M. Berman
/s/ RICHARD S. BODMAN
------------------------------------------- Director
Richard S. Bodman
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ JOHN F. FORT
------------------------------------------- Director
John F. Fort
/s/ STEPHEN W. FOSS
------------------------------------------- Director
Stephen W. Foss
/s/ PHILIP M. HAMPTON
------------------------------------------- Director
Philip M. Hampton
/s/ JAMES S. PASMAN, JR.
------------------------------------------- Director
James S. Pasman, Jr.
/s/ W. PETER SLUSSER
------------------------------------------- Director
W. Peter Slusser
/s/ MARK H. SWARTZ Executive Vice President and Chief Financial
------------------------------------------- Officer (Principal Financial and Accounting
Mark H. Swartz Officer)
/s/ FRANK E. WALSH, JR.
------------------------------------------- Director
Frank E. Walsh, Jr.
</TABLE>
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Luxembourg, on the
21st day of December, 1999.
<TABLE>
<S> <C> <C>
TYCO INTERNATIONAL GROUP S.A.
By: /s/ RICHARD W. BRANN
-----------------------------------------
Richard W. Brann
MANAGING DIRECTOR
(PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER)
</TABLE>
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes and
appoints RICHARD W. BRANN AND MARK H. SWARTZ, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement (including all pre-effective and
post-effective amendments thereto and all registration statements filed pursuant
to Rule 462(b) which incorporate this registration statement by reference), and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on December 21,
1999 in the capacities indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------- -----
<C> <S>
/s/ PHILIPPE BEOT
------------------------------------------- Director
Philippe Beot
/s/ RICHARD W. BRANN
------------------------------------------- Managing Director
Richard W. Brann
/s/ ERIK D. LAZAR
------------------------------------------- Managing Director
Erik D. Lazar
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE NUMBER
------- ----------- -----------
<C> <S> <C> <C>
3.1 -- Memorandum of Association of Tyco (as altered)
(incorporating all amendments to May 26, 1992) (previously
filed as an Exhibit to Tyco's Annual Report on Form 10-K for
the year ended December 31, 1992)
3.2 -- Certificate of Incorporation on change of name of Tyco
(incorporating all amendments to April 1, 1999) (previously
filed as an Exhibit to Tyco's Current Report on Form 8-K
filed July 10, 1997)
3.3 -- Bye-Laws of Tyco (previously filed as Exhibit 3.3 to the
Registrants' Form S-3 (File Nos. 333-50855 and
333-50855-01))
3.4 -- Restated Articles of Association of the Company
4.1 -- Indenture (previously filed as Exhibit 4.1 to the
Registrants' Form S-3 (File Nos. 333-50855 and
333-50855-01))
4.2 -- Supplemental Indenture No. 11 with respect to the 6 7/8%
Notes due 2002 (previously filed as Exhibit 4.18 to Tyco's
Annual Report on Form 10-K for the year ended September 30,
1999)
4.3 -- Purchase Agreement, dated August 26, 1999, among the
Company, Tyco as guarantor, and Merrill Lynch Pierce, Fenner
& Smith Incorporated, J.P. Morgan Securities, Inc., Lehman
Brothers Inc., Morgan Stanley & Co. Incorporated, Credit
Suisse First Boston Corporation, Donaldson, Lufkin &
Jenrette Securities Corporation, Goldman, Sachs & Co., Bear,
Stearns Co. Inc., Banc of America Securities LLC, Chase
Securities Inc., Commerzbank Capital Markets Corporation,
Warburg Dillon Read LLC, Salomon Smith Barney Inc., The
Williams Capital Group L.P. and Blaylock & Partners
4.4 -- Registration Rights Agreement, dated as of August 31, 1999,
among the Company, Tyco as guarantor, and Merrill Lynch
Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities,
Inc., Lehman Brothers Inc., Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation,
Donaldson, Lufkin & Jenrette Securities Corporation,
Goldman, Sachs & Co., Bear, Stearns Co. Inc., Banc of
America Securities LLC, Chase Securities Inc., Commerzbank
Capital Markets Corporation, Warburg Dillon Read LLC,
Salomon Smith Barney Inc., The Williams Capital Group L.P.
and Blaylock & Partners
5.1 -- Opinion of Appleby Spurling & Kempe*
5.2 -- Opinion of Beghin Feider Loeff Claeys Verbeke*
5.3 -- Opinion of Kramer Levin Naftalis & Frankel LLP*
12 -- Statement of Computation of Ratio of Earnings to Fixed
Charges
23.1 -- Consent of PricewaterhouseCoopers
23.2 -- Consent of Deloitte & Touche LLP
23.3 -- Consent of Arthur Andersen LLP
24 -- Powers of Attorney (contained in the Signature pages hereto)
25 -- Statement of Eligibility of Trustee on Form T-1
(incorporated by reference to the Registrants' Form S-3,
(File Nos. 333-50855 and 333-50855-01))
99.1 -- Form of Letter of Transmittal*
99.2 -- Form of Notice of Guaranteed Delivery*
</TABLE>
- ------------------------
* To be filed by amendment
<PAGE>
Exhibit 3.4
Restated Articles of Association
Tyco International Group S.A.
Societe anonyme
Siege social : 6, avenue Emile Reuter
L-2420 Luxembourg
R.C. Luxembourg B 63.939
-------------------------------------------------------
Status coordonnes deposes au greffe du tribunal
d'arrondissement de et a Luxembourg, le
Pour mention afin de publication au Memorial, Recueil Special des
Societes et Associations.
Hesperange, le 28 decembre 1998.
<PAGE>
Tyco International Group S.A.
Societe anonyme
Siege social : 6, avenue Emile Reuter
L-2420 Luxembourg
R.C. Luxembourg B 63.939
-------------------------------------------------------
constituee suivant acte du notaire Gerard LECUIT, de residence a
Hesperange, en date du 30 mars 1998, publie au Memorial, Recueil Special C
numero 474 du 29 juin 1998,
les statuts de la sociere ont ete modifies:
- suivant acte dudit notaire Gerard LECUIT, en date du 6 juillet 1998,
publie au Memorial, Recueil Special C numero 733 du 10 octobre 1998,
- suivant acte dudit notaire Gerard LECUIT, en date du
22 octobre 1998,
- suivant acte dudit notaire Gerard LECUIT, en date du
4 decembre 1998,
<PAGE>
TITLE I. - DENOMINATION, REGISTERED OFFICE, OBJECT,
DURATION,
ARTICLE 1
There is established hereby a societe anonyme under the name of TYCO
INTERNATIONAL GROUP S.A.
ARTICLE 2
The registered office of the corporation is established in Luxembourg.
The registered office may be transferred to any other place in the
municipality by a decision of the board of directors.
If extraordinary political or economic events occur or are imminent, which
might interfere with the normal activities of the registered office, or with
easy communication between the registered office and abroad, the registered
office shall be declared to have been transferred abroad provisionally, until
the complete cessation of such extraordinary events. such provisional transfer,
shall have no effect on the nationality of the company. Such declaration of the
transfer of the registered office shall be made and brought to the attention of
third parties by the organ of the corporation which is best situated for this
purpose under such circumstance.
ARTICLE 3
The corporation is established for an unlimited period.
ARTICLE 4
The corporation may carry out all transactions pertaining
directly or indirectly to the acquiring of participating interests in any
enterprises in whatever form and the administration management, control and
development of those participating interests.
The corporation may issue bonds, notes and other debt instruments both in
public and private placements, in registered or bearer form, with any
denomination and payable in any currencies.
The corporation may furthermore carry out any commercial, industrial or
financial operations as well as any transactions in respect of real estate or
moveable property.
<PAGE>
In particular, the corporation may use its funds whether borrowed or not
for creation, development and control of any enterprise and the grant to
companies in which the corporation has a participating interest or which are
under the same control as the corporation, any support, loans, advances or
guarantees.
TITLE II. - CAPITAL SHARES
ARTICLE 5
The subscribed capital of the corporation is fixed at forty thousand and
four United States Dollars (40.004.-USD) represented by twenty thousand and two
(20,002) shares with a par value of two United States Dollars (2.- USD).
Shares may be evidenced at the owners option, in certificates representing
single shares or in certificates representing two or more shares.
Shares may be issued in registered or bearer form, at the shareholder's
option.
The corporation may, to the extent and under the terms permitted by law,
purchase its own shares.
TITLE III.- MANAGEMENT
ARTICLE 6
The corporation shall be managed by a board of directors composed of at
least three members, either shareholders or not, who shall be appointed for a
term not exceeding six years, by a general meeting of shareholders. They may be
reelected and may be removed at any time by a general meeting of shareholders.
The number of directors and their term of office shall be fixed by a
general meeting of shareholders.
In the event of a vacancy on the board of directors, the remaining
directors have the right to fill in the vacancy, which decision has to be
ratified by the next general meeting.
ARTICLE 7
The board of directors shall elect from among its members a chairman.
A meeting of the board of directors shall be convened at any time upon
call by the chairman or at the request of not less than two directors.
<PAGE>
The board of directors may validly deliberate and act only if the majority
of its members are present or represented, a proxy between directors, which may
be given by letter, telegram, telex or telefax being permitted. In case of
emergency, directors may vote by letter, telegram telex or telefax.
Resolutions shall require a majority vote.
In case of a tie, the chairman has a casting vote.
ARTICLE 8
The board of directors shall have the broadest powers to perform all acts
of administration and disposition in compliance with the corporate object stated
in Article 4 hereof.
All powers not expressly reserved by law or by the present articles of
association to a general meeting of shareholders, shall fall within the
competence of the board of directors.
The board of directors may pay interim dividends in compliance with the
legal requirements.
ARTICLE 9
The corporation shall be bound in all circumstances by the joint signature
of two directors or by the sole signature of the managing director provided that
special arrangements have been reached concerning the authorized signature in
the case of a delegation of powers or proxies given by the board of directors
pursuant to Article 10 hereof.
ARTICLE 10
The board of directors may delegate its powers for the conduct of the
daily management of the Corporation, to one or more directors, who will be
called managing directors.
The board of directors may also commit the management of all or part of
the affairs of the corporation, to one or more managers and give special powers
for determined matters to one or more proxyholders. Such proxyholder or manager
shall not be required to be a director or a shareholder.
Delegation to a member of the board of directors is subject to a prior
authorization of the general meeting.
<PAGE>
ARTICLE 11
Any litigation involving the corporation either as plaintiff or as
defendant, will be handled in the name of the corporation by the board of
directors, represented by its chairman or by a director delegated for such
purpose.
TITLE IV.- SECRETARY
ARTICLE 12
A secretary may be appointed by a resolution or a meeting of the
shareholders of the Company ("Secretary").
The Secretary, who may or may not be a director, shall have the
responsibility to act as clerk of the meetings of the board of directors and, to
the extent practical, of the shareholders' meetings, and to keep the records and
the minutes of the board of directors and, to the extent practical, of the
shareholders' meetings and their transactions in a book to be kept for that
purpose, and he shall perform like duties for all committees of the board of
directors (if any) when required. He shall have the possibility to delegate his
powers to one or several persons provided he shall remain responsible for the
tasks so delegated.
The Secretary shall have the power and authority to issue certificates and
extracts on behalf of the Company to be produced in court or, more generally,
vis-a-vis any third parties and to be used as official documents.
TITLE V.- SUPERVISION
ARTICLES 13
The corporation shall be supervised by one or more statutory auditors,
appointed by a general meeting of shareholders which shall fix their number,
remuneration, and their term of office, such office not to exceed six years.
They may be reelected and removed at any time.
TITLE VI.- GENERAL MEETING
ARTICLE 14
The annual general meeting of shareholders will be held in
the commune of the registered office at the place specified in the convening
notices on the second Tuesday of February at 10:00 a.m.
<PAGE>
If such day is a legal holiday, the annual general meeting will be held on
the next following business day.
If all the shareholders are present or represented and if they declare
that they have had knowledge of the agenda, the general meeting may take place
without previous convening notices. Each share gives the right to one vote.
TITLE VII.- ACCOUNTING YEAR, ALLOCATION OF PROFITS
ARTICLE 15
The accounting year of the corporation shall begin on the 1st of October
and shall terminate on the 30th of September of the next year.
ARTICLE 16
After deduction of any and all expenses and amortization of the
corporation, the credit balance represents the net profits of the corporation.
Of such net profit, five percent (5%) shall be compulsorily appropriated for the
legal reserve; such appropriation shall cease when the legal reserve amounts to
ten percent (10%) of the capital of the corporation, but shall be resumed until
the reserve is entirely reconstituted if, at any time and for whatever reason,
the legal reserve has fallen below the required ten percent of the capital of
the corporation (10%).
The balance of the net profit is at the disposal of the general meeting.
TITLE VIII.- DISSOLUTION, LIQUIDATION
ARTICLE 17
The corporation may be dissolved by a resolution of the general meeting of
shareholders. the liquidation will be carried out by one or more liquidators,
appointed by the general meeting of shareholders which will specify their powers
and fix their remuneration.
TITLE IX. - GENERAL PROVISIONS
ARTICLE 18
All matters not governed by these articles of association are to be
construed in accordance with the law of August 10th 1915 on commercial companies
and the amendments thereto.
<PAGE>
Exhibit 4.3
TYCO INTERNATIONAL GROUP S.A.
Debt Securities
Purchase Agreement
August 26, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
Salomon Smith Barney Inc.
The Williams Capital Group, L.P.
Blaylock & Partners, L.P.
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 Group S.A., a Luxembourg company (the "Company"),
proposes to issue and sell to the initial purchasers named in Schedules II-A,
II-B, II-C and II-D hereto (the "Initial Purchasers" which term shall also
include any initial purchaser substituted as herein provided), for whom you are
acting as representatives (the "Representatives"), the principal
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amount of its debt securities identified in Schedules I-A, I-B, I-C and I-D
hereto (the "Securities"), to be issued under the Indenture, dated as of June 9,
1998, as supplemented by Supplemental Indenture No. 9, Supplemental Indenture
No. 10, Supplemental Indenture No. 11 and Supplemental Indenture No. 12, thereto
(as so supplemented, the "Indenture"), in each case, among the Company, Tyco
International Ltd., a Bermuda company and the sole shareholder of the Company
("Tyco"), and The Bank of New York, as trustee (the "Trustee"). The Securities
will be unconditionally guaranteed by Tyco (the "Guarantees"). If the firm or
firms listed in Schedules II-A, II-B, II-C and II-D hereto include only the firm
or firms listed in Schedules I-A, I-B, I-C and I-D hereto, then the terms
"Initial Purchasers" and "Representatives", as used herein shall each be deemed
to refer to such firm or firms.
The Company and Tyco understand that the Initial Purchasers propose to
make an offering of the Securities and the Guarantees on the terms and in the
manner set forth herein and agrees that the Initial Purchasers may resell,
subject to the conditions set forth herein, all or a portion of the Securities
and the Guarantees to purchasers ("Subsequent Purchasers") at any time after the
date of this Agreement. The Securities and Guarantees are to be offered and sold
through the Initial Purchasers without being registered under the Securities Act
of 1933, as amended, and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder (collectively the "Securities
Act"), in reliance upon exemptions therefrom. Pursuant to the terms of the
Securities, the Guarantees and the Indenture, investors that acquire Securities
and the Guarantees may only resell or otherwise transfer such Securities if such
Securities are hereafter registered under the Securities Act or if an exemption
from the registration requirements of the Securities Act is available (including
the exemption afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation
S") of the rules and regulations promulgated under the Securities Act by the
Commission).
The Company and Tyco have prepared and will deliver to the Initial
Purchasers, on the date hereof, copies of a final offering memorandum dated
August 26, 1999 (the "Final Offering Memorandum"), used or to be used by the
Initial Purchasers in connection with their solicitation of purchases of, or
offering of, the Securities and Guarantees. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (whether the Final Offering Memorandum, or any amendment or
supplement to such document), which has been prepared and delivered by the
Company to the Initial Purchasers in connection with their solicitation of
purchases of, or offering of, the Securities and Guarantees.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (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 Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 as amended, and the rules and regulations of
the
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Commission thereunder (the "Exchange Act") which is incorporated by reference in
the Offering Memorandum.
The holders of the Securities and the Guarantees Identified Schedule
I-C will be entitled to the benefits of the registration rights agreement (the
"Registration Rights Agreement"), to be dated as of the Closing Date (as defined
below) between the Company, Tyco and the Initial Purchasers, pursuant to which
the Company and Tyco will agree to file, as soon as practicable after the
Closing Date but in any event within 90 days of the Closing Date, a registration
statement with the Commission registering the Exchange Securities (as defined in
the Registration Rights Agreement) under the Securities Act.
The Company and Tyco hereby agree with the Initial Purchasers as
follows:
1. The Company agrees to issue and sell the Securities and Tyco agrees
to issue the Guarantees to the several Initial Purchasers as hereinafter
provided, and each Initial Purchaser, on the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase, severally and not jointly, from the Company the respective
principal amount of Securities and Guarantees set forth opposite such Initial
Purchaser's name in Schedules II-A, II-B, II-C and II-D hereto at the purchase
price set forth in Schedules I-A, I-B, I-C and I-D hereto plus accrued interest,
if any, from the date specified in Schedules I-A, I-B, I-C and I-D hereto to the
date of payment and delivery.
2. The Company and Tyco understand that the several Initial Purchasers
intend (i) to make an offering of their respective portions of the Securities
and the Guarantees and (ii) initially to offer the Securities and the Guarantees
upon the terms set forth in the Offering Memorandum.
3. Payment for the Securities and the Guarantees shall be made by wire
transfer in immediately available funds to the account specified by the Company
to the Representatives no later than noon on the Business Day prior to the
Closing Date (as defined below), at 9:00 A.M. on August 31, 1999 at the offices
of Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New
York (or at such other time and place on the same or such other date, not later
than the fifth Business Day (as defined below) thereafter, as you and the
Company may agree in writing). As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be closed in
New York City. The time and date of such payment and delivery with respect to
the Securities are referred to herein as the "Closing Date".
Payment for the Securities and the Guarantees shall be made against
delivery to the nominee of The Depository Trust Company for the respective
accounts of the several Initial Purchasers of global notes (the "Global Notes")
representing the Securities and the Guarantees, with any transfer taxes payable
in connection with the transfer to the Initial Purchasers of the Securities and
the Guarantees duly paid by the Company. The Global Notes will be made available
for inspection by the Representatives at the office of Merrill Lynch, Pierce,
Fenner & Smith Incorporated, North Tower, World Financial Center, New York, New
York 10281-1209, not later than 1:00 P.M., New York City time, on the Business
Day prior to the Closing Date.
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4. The Company and Tyco, jointly and severally, represent and warrant
to each Initial Purchaser that:
(a) the Company has not, directly or indirectly, solicited any
offer to buy or offered to sell, and will not, directly or indirectly,
solicit any offer to buy or offer to sell, in the United States or to
any United States citizen or resident, any security which is or would
be integrated with the sale of the Securities and the Guarantees in a
manner that would require the Securities or the Guarantees to be
registered under the Securities Act;
(b) the Final Offering Memorandum does not, and at the Closing
Date will not, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, that this representation, warranty and
agreement shall not apply to statements in or omissions from the Final
Offering Memorandum made in reliance upon and in conformity with
information furnished to the Company and Tyco in writing by any initial
purchaser through Merrill Lynch expressly for use in the Final Offering
Memorandum;
(c) the documents incorporated by reference in the Offering
Memorandum, or portions thereof, to the extent only a portion of a
document is incorporated by reference in the Offering Memorandum, when
they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Offering Memorandum or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(d) PricewaterhouseCoopers, Arthur Anderson L.L.P. (Houston),
Arthur Anderson LLP (Philadelphia) and Deloitte & Touche LLP who
certified the financial statements and supporting schedules included or
incorporated by reference in the Offering Memorandum are independent
public accountants required by the Securities Act;
(e) the financial statements, and the related schedules and
notes thereto, included or incorporated by reference in the Offering
Memorandum present fairly the consolidated financial position of Tyco
and its consolidated subsidiaries as of the
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dates indicated and the results of their operations and the changes in
their consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with United States
generally accepted accounting principles ("GAAP") applied on a
consistent basis, except as otherwise disclosed therein, and the
supporting schedules included or incorporated by reference in the
Offering Memorandum present fairly in accordance with GAAP the
information required to be stated therein; the pro forma financial
information, and the related notes thereto, included or incorporated by
reference in the Offering Memorandum has been prepared in accordance
with the applicable requirements of the Securities Act and the Exchange
Act, as applicable, and is based upon good faith estimates and
assumptions believed by Tyco to be reasonable; and the selected
financial data included in the Offering Memorandum present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included or incorporated
by reference in the Offering Memorandum; no pro forma financial
statements would be required under the Securities Act to be included in
the Offering Memorandum (which have not been incorporated by reference)
if the offering of the Securities was being made in a public offering
pursuant to a registration statement under the Securities Act;
(f) since the respective dates as of which information is
given in the Offering Memorandum, there has not been any change in the
capital stock or long-term debt (on a consolidated basis) of Tyco, or
any material adverse change, or any development involving a prospective
material adverse change that is reasonably likely to occur, in or
affecting the general affairs, business, prospects, management,
financial position, shareholders' equity or results of operations of
Tyco and its subsidiaries, taken as a whole, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"),
otherwise than as set forth or contemplated in the Offering Memorandum;
and except as set forth or contemplated in the Offering Memorandum,
neither Tyco nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to Tyco and its subsidiaries, taken as a whole;
(g) the Company is a corporation duly and validly organized
and existing under the laws of Luxembourg, with power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Offering Memorandum, and is
duly qualified as a foreign corporation to transact business and is in
good standing under the laws of each other jurisdiction in which the
nature of its business or its ownership or leasing of its properties
requires qualification, except where the failure to be so qualified or
in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(h) Tyco is a limited liability company duly and validly
organized and existing and in good standing under the laws of Bermuda,
with power and authority
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(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Offering Memorandum, and is
duly qualified as a foreign corporation to transact business and is in
good standing under the laws of each other jurisdiction in which the
nature of its business or the ownership or leasing of its properties
requires qualification, except where the failure to be so qualified or
in good standing would not have a Material Adverse Effect;
(i) each of the Company's subsidiaries listed on Schedule III
hereto is a "significant subsidiary" (as such term is defined in Rule
1-02 of Regulation S-X under the Securities Act), is duly and validly
organized and existing as a corporation under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Offering Memorandum, is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of each
jurisdiction in which the nature of its business or its ownership or
leasing of its properties requires qualification, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect; and, except as otherwise disclosed in the
Offering Memorandum, all the outstanding shares of capital stock of the
Company and each subsidiary of the Company have been duly authorized
and validly issued, are fully-paid and non-assessable, and (except as
indicated on Schedule III for non-material liens that have arisen in
the ordinary course of business and, in the case of non-United States
subsidiaries, for directors' qualifying shares) are owned by the
Company, as the case may be, directly or indirectly, free and clear of
all liens, encumbrances, security interests and claims;
(j) Tyco had as of the date indicated in the Offering
Memorandum a duly authorized and outstanding capitalization as set
forth in the Offering Memorandum in the column entitled "Actual" under
the caption "Capitalization"; except as disclosed in the Offering
Memorandum, there are no holders of securities (debt or equity) of Tyco
or any of its subsidiaries, or holders of rights, warrants or options
to obtain securities of Tyco or any of its subsidiaries who have the
right to request the Company or Tyco to register securities held by
them under the Securities Act other than holders who have elected not
to exercise their rights or whose securities have been so registered;
(k) this Agreement has been duly authorized, executed and
delivered by each of the Company and Tyco;
(l) the Securities have been duly authorized and when duly
authenticated by the Trustee pursuant to the Indenture and issued and
delivered pursuant to this Agreement, will have been duly executed,
issued and delivered and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding instrument of the Company;
the Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended
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(the "Trust Indenture Act"); the Registration Rights Agreement has been
duly authorized, executed and delivered and will constitute a valid and
binding agreement of the Company; and the Registration Rights
Agreement, the Securities, the Guarantees, and the Indenture will
conform in all material respects to the descriptions thereof in the
Offering Memorandum;
(m) the Guarantees have been duly authorized and when the
Securities have been duly authenticated by the Trustee pursuant to the
Indenture and issued and delivered pursuant to this Agreement, will
have been duly executed, issued and delivered and will constitute valid
and binding obligations of Tyco entitled to the benefits provided by
the Indenture; the Indenture has been duly authorized, executed and
delivered by Tyco and constitutes a valid and binding instrument of
Tyco; and the Guarantees will conform in all material respects to the
descriptions thereof in the Offering Memorandum;
(n) neither Tyco nor any of its subsidiaries is, or, with the
giving of notice or lapse of time or both would be, in violation of or
in default under, its memorandum of association, articles of
organization, certificate of incorporation or other similar charter
document (each a "Charter") or by-laws or any indenture, mortgage, deed
of trust, loan agreement, note, lease or other agreement or instrument
to which Tyco or any of its subsidiaries is a party or by which it or
any of them or any of their respective properties is bound or subject,
except for violations and defaults which individually and in the
aggregate would not result in a Material Adverse Effect, or are not
material to the holders of the Securities and the Guarantees; the
execution, delivery and performance of this Agreement, the Registration
Rights Agreement, the Indenture, the Securities and the Guarantees by
the Company and Tyco, as the case may be, the consummation of the
transactions contemplated herein, therein and in the Offering
Memorandum (including the issuance and sale of the Securities and the
Guarantees and the use of the proceeds from the sale of the Securities
as described in the Offering Memorandum under the caption "Use of
Proceeds") and the compliance by the Company and Tyco of their
respective obligations under this Agreement, the Registration Rights
Agreement, the Indenture, the Securities and the Guarantees do not and
will not conflict with or result in a breach of any of the terms or
provisions of or with the giving of notice or lapse of time or both
conflict with or constitute a breach of, or default or a Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon the property or assets of Tyco
or any of its subsidiaries pursuant to, any indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument to
which Tyco or any of its subsidiaries is a party or by which Tyco or
any of its subsidiaries is bound or to which any of the property or
assets of Tyco or any of its subsidiaries is subject, except for such
conflicts, breaches, defaults, liens, charges or encumbrances that
would not result in a Material Adverse Effect, nor will any such action
result in any violation of the provisions of the Charter or the by-laws
of Tyco or any of its subsidiaries or any applicable law or statute or
any order, rule or regulation of any court or governmental
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agency or body having jurisdiction over Tyco or any of its subsidiaries
or any of their respective properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Securities and the issue of the Guarantees or the consummation
by the Company or Tyco of the transactions contemplated by this
Agreement, the Registration Rights Agreement or the Indenture, except
such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been or will be obtained under
the Securities Act and the Trust Indenture Act and as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities and the Guarantees by the Initial
Purchasers. 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 Tyco;
(o) other than as disclosed in or contemplated by the Offering
Memorandum, there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the Company or
Tyco, threatened to which Tyco or any of its subsidiaries is or may be
a party or to which any property or assets of Tyco or any of its
subsidiaries is or may be the subject which, if determined adversely to
Tyco or any of its subsidiaries, could individually or in the aggregate
have, or reasonably be expected to have, a Material Adverse Effect or
which could be reasonably expected to materially and adversely affect
the consummation of the transactions contemplated by this Agreement or
the performance by the Company and Tyco of their respective obligations
hereunder; and no such proceedings are pending or, to the best of the
Company's and Tyco's knowledge, threatened against Tyco or any of its
subsidiaries which are required to be disclosed in the Offering
Memorandum, other than those disclosed therein; and there are no
contracts, mortgages, loan agreements, notes, leases or other documents
to which Tyco or any of its subsidiaries is a party or by which any of
them may be bound or to which any property or assets of Tyco or any of
its subsidiaries is subject that are required to be described in the
Offering Memorandum which are not described as required;
(p) except as disclosed in the Offering Memorandum, no labor
dispute with the employees of Tyco or any of its subsidiaries exists
or, to the knowledge of the Company or Tyco, is threatened, which could
reasonably be expected to result in a Material Adverse Effect;
(q) neither the Company nor Tyco is, and upon the issuance and
sale of the Securities and the issuance of the Guarantees as herein
contemplated and the application of the net proceeds therefrom as
described in the Offering Memorandum will be, an "investment company"
or an entity "controlled" by an "investment
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company" as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(r) the Securities and the Guarantees are eligible for resale
pursuant to Rule 144A ("Rule 144A") of the rules and regulations
promulgated under the Securities Act and will not be, at the Closing
Date, of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act, or quoted in a
U.S. automated interdealer quotation system;
(s) none of the Company, Tyco, any of their respective
affiliates, as such term is defined in Rule 501(b) under the Securities
Act ("Affiliates"), or any person acting on its or any of their behalf
(other than the Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage, in connection with the
offering of the Securities and the Guarantees, in any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act, or in any manner involving a public offering
of the Securities within the meaning of Section 4(2) of the Securities
Act;
(t) subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 5, it is not
necessary in connection with the offer, sale and delivery of the
Securities and the Guarantees to the Initial Purchasers and to each
Subsequent Purchaser in the manner contemplated by this Agreement and
the Offering Memorandum to register the Securities and the Guarantees
under the Securities Act or to qualify the Indenture under the Trust
Indenture Act;
(u) with respect to those Securities and Guarantees sold in
reliance on Regulation S ("Regulation S") of the rules and regulations
promulgated under the Securities Act by the Commission, (A) none of the
Company, Tyco, any of their respective Affiliates or any person acting
on their behalf (other than the Initial Purchasers, as to whom the
Company makes no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S and (B)
each of the Company, Tyco, any of their respective Affiliates and any
person acting on their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has complied and will comply
with the offering restrictions requirement of Regulation S;
(v) all disclosure regarding year 2000 compliance and the Euro
conversion that is required to be described under the Securities Act
and the Securities Act Regulations (including disclosures required by
Staff Legal Bulletin No. 6, SEC Release No. 33-7558 (July 29, 1998) and
SEC Release No. 33-7609 (November 9, 1998)) has been included in the
Offering Memorandum or incorporated by reference therein. Neither the
Company, Tyco, nor any of their subsidiaries will incur significant
operating expenses or costs to ensure that their information systems
will be year 2000 compliant or to adjust their operating and
information systems to the
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conversion to a single currency in Europe, other than as disclosed in
the Offering Memorandum;
(w) neither the Company nor Tyco or, to the best of the
Company's and Tyco's knowledge, any officer, director, employee agent
or shareholder thereof, in each case acting on behalf of the Company or
Tyco, as the case may be, has done any act or authorized, directed or
participated in any act, in violation of any provision of the Foreign
Corrupt Practices Act of 1977, as amended, applicable to such entity or
person for which civil or criminal liability or penalties, as the case
may be, could currently be imposed on the Company or Tyco;
(x) the choice of law provisions set forth in this Agreement
and the Registration Rights Agreement are legal, valid and binding
under the laws of Luxembourg and Bermuda, respectively, and will be
recognized and given effect to by the courts of Luxembourg and Bermuda,
respectively, (unless a court determined that doing so would be
contrary to public policy in Luxembourg and Bermuda, respectively,);
each of the Company and Tyco has the legal capacity to sue and be sued
in its own name under the laws of Luxembourg and Bermuda, respectively;
each of the Company and Tyco has, under the laws of Luxembourg and
Bermuda, respectively, 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 Registration Rights Agreement; the irrevocable submission of
the Company and Tyco to the jurisdiction of the New York courts and the
waiver by the Company and Tyco of any immunity and any objection to the
venue of the proceeding in a New York court, included in this Agreement
or the Registration Rights Agreement, are legal, valid and binding
under the laws of Luxembourg and Bermuda, respectively; neither the
Company nor Tyco or any of their respective assets is entitled to
immunity (or any similar defense) from suit, execution, attachment or
other legal process in Luxembourg and Bermuda, respectively; this
Agreement and the Registration Rights Agreement are in proper legal
form under the laws of Luxembourg and Bermuda, respectively, for the
enforcement thereof against the Company and Tyco, respectively, and
nothing in Luxembourg and Bermuda law, respectively, prevents suit upon
this Agreement or the Registration Rights Agreement in the courts of
Luxembourg and Bermuda, respectively; it is not necessary (a) in order
to enable the Initial Purchasers to exercise or enforce their rights
under this Agreement or the Registration Rights Agreement in Luxembourg
and Bermuda, respectively, or (b) by reason of the entry into and/or
the performance of this Agreement and the Registration Rights
Agreement, that any of the Initial Purchasers should be licensed,
qualified, authorized or entitled to do business in Luxembourg and
Bermuda, respectively; and
(y) in any proceedings in Luxembourg and Bermuda,
respectively, or elsewhere in connection with this Agreement, the
Company and Tyco will not be
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entitled to claim for themselves or any of their respective assets or
property immunity from suit, execution, attachment or other legal
process.
Any certificate signed by any officer of the Company or Tyco delivered
to the Initial Purchasers or to counsel for the Initial Purchasers shall be
deemed a representation and warranty by the Company or Tyco, as the case may be,
to each Initial Purchaser as to the matters covered thereby.
5. Each of the Initial Purchasers, severally, represents and warrants
to, and agrees with, the Company that it (i) is a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act (a "Qualified
Institutional Buyer") or an "accredited investor" within the meaning of Rule
501(a) under the Securities Act (an "Accredited Investor"); (ii) is not
acquiring the Securities with a view to any distribution thereof that would
violate the Securities Act; (iii) has not and will not solicit offers for, or
offer or sell, Securities by means of any general solicitation or general
advertising within the meaning of Rule 502(c) under Regulation D under the
Securities Act; (iv) will offer and sell the Securities only to (A)
institutional investors that are reasonably believed by it to qualify as
Accredited Investors, (B) institutional investors that are reasonably believed
by it to qualify as Qualified Institutional Buyers or (C) non-U.S. persons in
offshore transactions in reliance upon Regulation S under the Securities Act;
and (v) will otherwise act in accordance with the terms and conditions set forth
in this Agreement and in the Offering Memorandum in connection with the
placement of the Securities contemplated hereby.
6. The Company and Tyco, jointly and severally, covenant and agree with
each of the several Initial Purchasers as follows:
(a) to furnish each of the Initial Purchasers as many
copies of the Offering Memorandum (including all amendments
and supplements thereto) and documents incorporated by
reference therein as you may reasonably request
(b) from the date hereof and prior to the Closing
Date, to furnish you a copy of any proposed amendment or
supplement to the Offering Memorandum, for your review, and
not to effect any such proposed amendment or supplement to
which you reasonably and timely object;
(c) to file promptly, subject to the provisions of
paragraph (b) above, all reports and any definitive proxy or
information statements required to be filed by Tyco with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act during the period mentioned in paragraph (d)
below;
(d) the Company and Tyco will comply with the
Securities Act and the Exchange Act so as to permit the
completion of the distribution of the Securities and the
Guarantees contemplated in this Agreement and in the Offering
Memorandum;
(e) if, during such period after the first date of
the offering of the Securities and the Guarantees as in the
opinion of counsel for the Initial Purchasers an offering
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memorandum relating to the Securities and the Guarantees is
required by law to be delivered in connection with sales of
the Securities and the Guarantees by an Initial Purchaser or
dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Offering Memorandum in
order to make the statements therein, in the light of the
circumstances when the Offering Memorandum is delivered to a
purchaser, not misleading, or if it is necessary to amend or
supplement the Offering Memorandum to comply with law,
forthwith to prepare and furnish, at the expense of the
Company and Tyco, to the Initial Purchasers and to the dealers
(whose names and addresses you will furnish to the Company) to
which Securities may have been sold by you on behalf of the
Initial Purchasers and to any other dealers upon request, such
amendments or supplements to the Offering Memorandum as may be
necessary so that the statements in the Offering Memorandum as
so amended or supplemented will not, in the light of the
circumstances when the Offering Memorandum is delivered to a
purchaser, be misleading or so that the Offering Memorandum
will comply with law;
(f) to endeavor to qualify the Securities and the
Guarantees for offer and sale under the securities or Blue Sky
laws of such jurisdictions as you shall reasonably request and
to continue such qualification in effect so long as reasonably
required for distribution of the Securities and the
Guarantees; PROVIDED that neither the Company nor Tyco shall
be required to file a general consent to service of process or
qualify as a foreign corporation in any jurisdiction in which
it is not so qualified or as a dealer in securities in any
jurisdiction in which it is not so qualified or subject itself
to taxation in respect of doing business in any jurisdiction
in which it is not so subject;
(g) to use the net proceeds received by the Company
from the sale of the Securities pursuant to this Agreement in
the manner specified in the Offering Memorandum under "Use of
Proceeds";
(h) to make generally available to their security
holders and to you as soon as practicable an earnings
statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of Tyco
occurring after the date of the Offering Memorandum;
(i) so long as the Securities and the Guarantees are
outstanding, to furnish to you copies of all reports or other
communications (financial or other) furnished to holders of
Securities and the Guarantees and copies of any reports and
financial statements furnished to or filed with the Commission
or any national securities exchange;
(j) each of the Company and Tyco agrees that they
will not and will cause their respective affiliates not to
make any offer or sale of securities of the Company of any
class if, as a result of the doctrine of "integration"
referred to in Rule 502 under the Securities Act, such offer
or sale could be deemed to render invalid (for the
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purpose of (i) the sale of the Securities and the Guarantees
by the Company to the Initial Purchasers, (ii) the resale of
the Securities and the Guarantees by the Initial Purchasers to
Subsequent Purchasers or (iii) the resale of the Securities
and the Guarantees by such Subsequent Purchasers to others)
the exemption from the registration requirements of the
Securities Act provided by Section 4(2) thereof or by Rule
144A or by Regulation S thereunder or otherwise;
(k) the Company agrees that, in order to render the
Securities eligible for resale pursuant to Rule 144A under the
Securities Act, while any of the Securities remain
outstanding, it will make available, upon request, to any
holder of Securities or prospective purchasers of Securities
the information specified in Rule 144A(d)(4), unless the
Company furnishes information to the Commission pursuant to
Section 13 or 15(d) of the Exchange Act (such information,
whether made available to holders or prospective purchasers or
furnished to the Commission, is hereinafter referred to as
"Additional Information");
(l) until the expiration of two years after the
original issuance of the Securities and the Guarantees, the
Company and Tyco will not, and will cause their respective
"affiliates" (as such term is defined in Rule 144(a)(1) under
the Securities Act) not to, resell any Securities and
Guarantees which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the Securities Act) that
have been reacquired by any of them and shall immediately upon
any purchase of any such Securities and Guarantees submit such
Securities and Guarantees to the Trustee for cancellation;
(m) The Company shall take all reasonable action
necessary to enable Standard & Poor's Corporation ("S&P") and
Moody's Investors Service, Inc. ("Moody's") to provide their
respective credit ratings of the Securities.
(n) The Company will use all reasonable efforts in
cooperation with the Initial Purchasers to permit the
Securities and the Guarantees to be eligible for clearance and
settlement through DTC.
(o) Each certificate for a Security will bear the
legend contained in "Notices to Investors" in the Offering
Memorandum for the time period and upon the other terms stated
in the Offering Memorandum.
(p) during the period beginning on the date hereof
and continuing to and including the Business Day following the
Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of or guaranteed by
the Company or Tyco which are substantially similar to the
Securities or the Guarantees without prior written consent of
the Representatives; and
(q) whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is
terminated, to pay or cause to be paid all costs and expenses
incident to the performance of its obligations hereunder,
including without
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<PAGE>
limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities and the
Guarantees, including any expenses of the Trustee, (ii)
incident to the preparation, printing, filing and distribution
of the Offering Memorandum (including all exhibits, amendments
and supplements thereto), (iii) incurred in connection with
the registration or qualification and determination of
eligibility for investment of the Securities and the
Guarantees under the laws of such jurisdictions as the Initial
Purchasers may designate, including reasonable fees of counsel
for the Initial Purchasers and their disbursements, (iv) in
connection with the listing of the Securities and the
Guarantees on any stock exchange, (v) related to any filing
with the National Association of Securities Dealers, Inc.,
(vi) in connection with the printing (including word
processing and duplication costs) and delivery of this
Agreement, the Indenture, the Registration Rights Agreement,
the Preliminary and Supplemental Blue Sky Memoranda and any
Legal Investment Survey and the furnishing to the Initial
Purchasers and dealers of copies of the Offering Memorandum,
including mailing and shipping, as herein provided and (vii)
payable to rating agencies in connection with the rating of
the Securities, it being understood that the Company and Tyco
shall not be responsible for the fees and expenses of counsel
to the Initial Purchasers except as explicitly set forth
herein.
7. The several obligations of the Initial Purchasers hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company
and Tyco contained herein are true and correct on and as of
the Closing Date as if made on and as of the Closing Date and
the Company and Tyco shall have complied with all agreements
and all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date;
(b) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have
occurred any downgrading, nor shall any notice have been given
of (i) any downgrading, (ii) any intended or potential
downgrading or (iii) any review or possible change that does
not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company or Tyco by any
"nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(c) since the respective dates as of which
information is given in the Offering Memorandum there shall
not have been any material change in the capital stock or
long-term debt of Tyco or any of its subsidiaries, or any
Material Adverse Effect otherwise than as set forth or
contemplated in the Offering Memorandum, the effect of which
in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the
delivery of the Securities and the Guarantees on the terms and
in the manner contemplated in the Offering Memorandum;
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<PAGE>
(d) the Representatives shall have received on and as
of the Closing Date a certificate of a managing director or an
executive officer of each of the Company and Tyco with
specific knowledge about each of the Company's and Tyco's
financial matters, satisfactory to you to the effect set forth
in subsections (a) through (c) of this Section and to the
further effect that there has not occurred any Material
Adverse Effect;
(e) Mark A. Belnick, Chief Corporate Counsel and
Executive Vice President of Tyco, shall have furnished to you
a written opinion, dated the Closing Date, in form and
substance satisfactory to you, to the effect set forth in
Exhibit A-1 hereto;
(f) Kramer Levin Naftalis & Frankel LLP counsel for
the Company and Tyco, shall have furnished to you their
written opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect set forth in Exhibit A-2
hereto;
(g) Beghin Feider Loeff Claeys Verbeke, Luxembourg
counsel for the Company, shall have furnished to you their
written opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect set forth in Exhibit A-3
hereto;
(h) Appleby, Spurling & Kempe, Bermuda counsel for
Tyco, shall have furnished to you their written opinion, dated
the Closing Date, in form and substance satisfactory to you,
to the effect set forth in Exhibit A-4 hereto;
(i) on the date hereof and on the Closing Date,
PricewaterhouseCoopers shall have furnished to you letters,
dated such dates, in form and substance satisfactory to you,
containing statements and information of the type customarily
included in accountants "comfort letters" to initial
purchasers with respect to the financial statements and
certain financial information contained in the Offering
Memorandum;
(j) you shall have received on and as of the Closing
Date an opinion of Fried, Frank, Harris, Shriver & Jacobson,
counsel to the Initial Purchasers, with respect to the
validity of the Indenture, the Securities and the Guarantees,
the Offering Memorandum and other related matters as the
Representatives may reasonably request, and such counsel shall
have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(k) the Company and Tyco shall have duly authorized,
executed and delivered the Registration Rights Agreement and
the Indenture to the Initial Purchasers in a form and
substance satisfactory to the Representative and counsel to
the Initial Purchasers; and
(l) on or prior to the Closing Date, the Company
shall have furnished to the Representatives such further
certificates and documents as the Representatives shall
reasonably request.
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<PAGE>
8. (A) The Company and Tyco, jointly and severally, agree to indemnify
and hold harmless each Initial Purchaser and each person, if any, who controls
any Initial Purchaser within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against (i) any and all losses,
claims, damages, liabilities and expense (including without limitation the
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Offering Memorandum
(as amended or supplemented if the Company or Tyco shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) 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 any such settlement is
effected with the written consent of the Company; and (iii) 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 clauses (i) or
(ii) above; except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Initial Purchaser furnished to the Company or Tyco in writing by any Initial
Purchaser through Merrill Lynch expressly for use therein.
(b) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company, Tyco and their respective directors and
officers and each person who controls the Company or Tyco within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and Tyco to each Initial
Purchaser, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Offering Memorandum in reliance upon
and in conformity with written information furnished to the Company or Tyco by
any Initial Purchaser through Merrill Lynch expressly for use in the Offering
Memorandum.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing. In the case of the parties indemnified pursuant to Section
8(A) above, counsel to the indemnified parties shall be selected by Merrill
Lynch, and, in the case of parties indemnified pursuant to Section 8(B) above,
counsel to the indemnified parties shall be selected by the Company. The
Indemnifying Person shall pay the fees and expenses of
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such counsel related to such proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary, (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Initial Purchasers and such control
persons of Initial Purchasers shall be designated in writing by the first of the
named Representatives on each of Schedules I-A and I-B hereto and any such
separate firm for the Company, Tyco and their respective directors and officers
and such control persons of the Company and Tyco shall be designated in writing
by the Company and Tyco. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement unless the Indemnifying Person in good faith shall be contesting the
reasonableness of such fees and expenses (but only to the extent so contested)
or the entitlement of the Indemnified Person to indemnification under the terms
of this Section 8. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 8 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and Tyco on the one hand and the
Initial Purchasers on the other hand from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law,
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in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
Tyco on the one hand and the Initial Purchasers on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and Tyco on the one hand and the
Initial Purchasers on the other hand shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such Securities
and Guarantees (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and Tyco and the total underwriting
discounts and the commissions received by the Initial Purchasers bear to the
aggregate public offering price of the Securities and Guarantees. The relative
fault of the Company and Tyco on the one hand and the Initial Purchasers on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and Tyco or by the Initial Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, Tyco and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
PRO RATA allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, in no event shall an Initial
Purchaser be required to contribute any amount in excess of the amount by which
the total price at which the Securities purchased by it exceeds the amount of
any damages that such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 8 are several in
proportion to the respective principal amount of the Securities set forth
opposite their names in Schedules I-A, I-B, I-C and I-D hereto, and not joint.
The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 8
and the representations and warranties of the Company and Tyco set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Initial Purchaser or any person controlling any Initial Purchaser or by
or on behalf of the Company, Tyco, their respective officers or directors or any
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other person controlling the Company or Tyco and (iii) acceptance of and payment
for any of the Securities and the Guarantees.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company or Tyco, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the Nasdaq National Market System, the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of or guaranteed by the Company
or Tyco shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Offering Memorandum or (vi) the occurrence
of any material adverse change in the existing financial, political or economic
conditions in the United States, Luxembourg, Bermuda or elsewhere which, in the
judgment of the Representatives would materially and adversely affect the
financial markets or the market for the Securities or the Company's and Tyco's
other debt securities.
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 11 hereof, and provided further that Sections 4 and 8 shall
survive such termination and remain in full force and effect.
10. If, on the Closing Date, any one or more of the Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase under this Agreement, and the aggregate principal amount of Securities
which such defaulting Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities, the other Initial Purchasers shall be obligated
severally in the proportions that the principal amount of Securities set forth
opposite their respective names in Schedules II-A, II-B, II-C and II-D hereto
bears to the aggregate principal amount of Securities set forth opposite the
names of all such non-defaulting Initial Purchasers, or in such other
proportions as the Representatives may specify, to purchase the Securities which
such defaulting Initial Purchaser or Initial Purchasers agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the principal
amount of Securities that any Initial Purchaser has agreed to purchase pursuant
to Section 1 be increased pursuant to this Section 9 by an amount in excess of
one-tenth of such principal amount of Securities without the written consent of
such Initial Purchaser. If, on the Closing Date, any Initial Purchaser or
Initial Purchasers shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to you, the Company and Tyco for the purchase
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<PAGE>
of such Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Initial Purchaser, the Company or Tyco. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Offering Memorandum or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting Initial
Purchaser from liability in respect of any default of such Initial Purchaser
under this Agreement.
11. If this Agreement shall be terminated by the Initial Purchasers, or
any of them, because of any failure or refusal on the part of the Company or
Tyco to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or Tyco shall be unable to perform
its obligations under this Agreement or any condition of the Initial Purchasers'
obligations cannot be fulfilled, the Company and Tyco agree to reimburse the
Initial Purchasers or such Initial Purchasers as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Initial Purchasers in connection with this Agreement or the offering of the
Securities and the Guarantees.
12. This Agreement shall inure to the benefit of and be binding upon
the Company, Tyco, the Initial Purchasers and any Indemnified Persons referred
to herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Securities from any Initial Purchaser shall be deemed to be a successor or
assign by reason merely of such purchase.
13. Any action by the Initial Purchasers hereunder may be taken by you
jointly or by the first of the named Representatives set forth in each of
Schedules I-A, I-B, I-C and I-D hereto alone on behalf of the Initial
Purchasers, and any such action taken by you jointly or by the first of the
named Representatives set forth in each of Schedules I-A, I-B, I-C and I-D
hereto alone shall be binding upon the Initial Purchasers. 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 Initial Purchasers shall be given at the address set forth in
each of Schedules I-A, I-B, I-C and I-D hereto. Notices to the Company and Tyco
shall be given to them, if to the Company, at 6, Avenue Emile Reuter, 2nd Floor,
L-2420, Luxembourg, Attention: the Managing Directors; if to Tyco, at The
Gibbons Building, 10 Queens Street, Suite 301, Hamilton HM 11, Bermuda,
Attention: Secretary, with a copy in either case c/oTyco International (US),
Inc., 712 Fifth Avenue, New York, New York 10019; Attention: General Counsel.
14. Each of the Company and Tyco (i) agrees that any legal suit, action
or proceeding brought by any party to enforce any rights under or with respect
to this Agreement or any other document or the transactions contemplated hereby
or thereby may be instituted in any state or federal court in The City of New
York, State of New York, U.S.A., (ii) irrevocably waives to the fullest extent
permitted by law any objection which it may now or hereafter have to
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the laying of venue of any such suit, action or proceeding, (iii) irrevocably
waives to the fullest extent permitted by law any claim that and agrees not to
claim or plead in any court that any such action, suit or proceeding brought in
such court has been brought in an inconvenient forum and (iv) irrevocably
submits to the non-exclusive jurisdiction of any such court in any such suit,
action or proceeding or for recognition and enforcement of any judgment in
respect thereof.
Each of the Company and Tyco hereby irrevocably and
unconditionally designates and appoints CT Corporation System, 1633 Broadway,
New York, New York 10019, U.S.A. (and any successor entity), as its authorized
agent to receive and forward on its behalf service of any and all process which
may be served in any such suit, action or proceeding in any such court and
agrees that service of process upon CT Corporation shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and shall be taken and held to be valid personal service upon it.
Said designation and appointment shall be irrevocable. Nothing in this Section
13 shall affect the right of the Initial Purchasers, their affiliates or any
indemnified party to serve process in any manner permitted by law or limit the
right of the Initial Purchasers, their affiliates or any indemnified party to
bring proceedings against the Company or Tyco in the courts of any jurisdiction
or jurisdictions. Each of the Company and Tyco further agrees to take any and
all action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation in full force and effect so long as the Securities and the
Guarantees are outstanding but in no event for a period longer than five years
from the date of this Agreement. Each of the Company and Tyco hereby irrevocably
and unconditionally authorizes and directs CT Corporation to accept such service
on its behalf. If for any reason CT Corporation ceases to be available to act as
such, each of the Company and Tyco agrees to designate a new agent in New York
City on the terms and for the purposes of this provision reasonably satisfactory
to the Initial Purchasers.
To the extent that either the Company or Tyco has or hereafter
may acquire any immunity from jurisdiction of any court (including, without
limitation, any court in the United States, the State of New York, Luxembourg,
Bermuda or any political subdivision thereof) or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property or
assets, this Agreement, or any other documents or actions to enforce judgments
in respect of any thereof, it hereby irrevocably waives such immunity, and any
defense based on such immunity, in respect of its obligations under the
above-referenced documents and the transactions contemplated thereby, to the
extent permitted by law.
15. If pursuant to a judgment or order being made or registered against
the Company or Tyco, any payment under or in connection with this Agreement to
an Initial Purchaser 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 Initial Purchaser 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 Initial Purchaser falls short
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of the amount due under the terms of this Agreement, the Company or Tyco shall,
to the extent permitted by law, as a separate and independent obligation,
indemnify and hold harmless such Initial Purchaser 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 Initial Purchaser 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.
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16. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
TYCO INTERNATIONAL GROUP S.A.
By: /s/ Richard W. Brann
---------------------------------
Name: Richard W. Brann
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
---------------------------------
Name: Mark H. Swartz
Title: Executive Vice President
& Chief Financial Officer
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Accepted: August 26, 1999
CONFIRMED AND ACCEPTED,
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
Salomon Smith Barney Inc.
The Williams Capital Group, L.P.
Blaylock & Partners, L.P.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Geoffrey J. Blythe
------------------------------------------
Authorized Signatory
For itself and the other Initial Purchasers
named in Schedules hereto.
-24-
<PAGE>
SCHEDULE I-A
Representatives: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities
Corporation
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
Salomon Smith Barney Inc.
Williams Capital Group, L.P.
Blaylock & Partners, L.P.
Purchase Agreement Dated: August 26, 1999
Title of Securities: Floating Rate Notes Due 2000
Aggregate Principal Amount: $500,000,000
Purchase Price: 99.8753%
Price to Public: 99.9753%
Indenture: Indenture, dated as of June 9, 1998, as
supplemented by Supplemental Indenture No. 9
thereto, dated as of August 31, 1999, among
Tyco International Group S.A., Tyco
International Ltd. and The Bank of New York,
as trustee.
Maturity: September 5, 2000
First Payment Date: December 5, 1999
Interest Rate: The per annum rate of interest for each
floating rate interest period will be (1)
LIBOR on the second London business day
preceding the interest reset date for such
floating rate interest period, referred to
as the interest determination date, plus (2)
.60%. The Company will determine LIBOR for
each floating rate interest period in
accordance with the following provisions:
o On each interest determination
date, the Company will ascertain
the offered rate for three-month
-25-
<PAGE>
deposits in U.S. dollars in the
London interbank market, which
appears on the Telerate Page
3750 as of 11:00 a.m. (London
time) on such interest
determination date.
o If such rate does not appear on
the Telerate Page 3750, or the
Telerate Page 3750 is
unavailable, the Company will
request four major banks in the
London interbank market,
referred to as the reference
banks to provide the Company
with their offered quotation,
expressed as a rate per annum
for three-month deposits in U.S.
dollars to leading banks in the
London interbank market, in a
principal amount equal to an
amount of not less than $1
million that is representative
for a single transaction in such
market at such time, at
approximately 11:00 a.m. (London
time) on the interest
determination date. If at least
two such quotations are
provided, LIBOR in respect of
that interest determination date
will be the arithmetic mean of
such quotations.
If less than two of the reference banks
provide the Company with such offered
quotations, LIBOR in respect of that
interest determination date will be the
arithmetic mean of the rates quoted by three
major banks in The City of New York selected
by the Company at approximately 11:00 a.m.,
New York City time, on that interest
determination date for three-month loans in
U.S. dollars to leading European banks, in a
principal amount equal to an amount of not
less than $1 million that is representative
for a single transaction in such market at
such time; provided, however, that if the
banks the Company so selected are not
quoting as mentioned in this sentence, LIBOR
will be LIBOR in effect on such interest
determination date.
Interest Payment Dates: March 5, June 5, September 5, and December 5
Optional Redemption Provisions: REDEMPTION UPON CHANGES IN WITHHOLDING
TAXES. The Notes may be redeemed, as a whole
but not in part, at the election of the
Company, upon not less than 30 nor more than
60 days notice (which notice shall be
irrevocable), at a redemption price equal to
100% of the principal amount thereof,
together with accrued interest, if any, to
the
-26-
<PAGE>
redemption date and Additional Amounts (as
defined in Section 12.2), if any, if as a
result of any amendment to, or change in,
the laws or regulations of Luxembourg or
Bermuda or any political subdivision or
taxing authority thereof or therein having
power to tax (a "Taxing Authority"), or any
change in the application or official
interpretation of such laws or regulations
which amendment or change is announced and
becomes effective after the date the Notes
are issued, the Company or Tyco has become
or will become obligated to pay Additional
Amounts, on the next date on which any
amount would be payable with respect to the
Notes, and such obligation cannot be avoided
by the use of reasonable measures available
to the Company or Tyco, as the case may be;
PROVIDED, HOWEVER, that (a) no such notice
of redemption may be given earlier than 60
days prior to the earliest date on which the
Company or Tyco, as the case may be, would
be obligated to pay such Additional Amounts,
and (b) at the time such notice of
redemption is given, such obligation to pay
such Additional Amounts remains in effect.
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: August 31, 1999
Closing Location: New York, New York
Address for Notices to
Initial Purchasers: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, NY 10281-1209
-27-
<PAGE>
SCHEDULE I-B
Representatives: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities
Corporation
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
Salomon Smith Barney Inc.
Williams Capital Group, L.P.
Blaylock & Partners, L.P.
Purchase Agreement Dated: August 26, 1999
Title of Securities: Floating Rate Notes Due 2001
Aggregate Principal Amount: $500,000,000
Purchase Price: 99.8064%
Price to Public: 99.9564%
Indenture: Indenture, dated as of June 9, 1998, as
supplemented by Supplemental Indenture No.
10 thereto, dated as of August 31, 1999,
among Tyco International Group S.A., Tyco
International Ltd. and The Bank of New York,
as trustee.
Maturity: March 5, 2001
First Payment Date: December 5, 1999
Interest Rate: The per annum rate of interest for each
floating rate interest period will be (1)
LIBOR on the second London business day
preceding the interest reset date for such
floating rate interest period, referred to
as the interest determination date, plus (2)
.70%. The Company will determine LIBOR for
each floating rate interest period in
accordance with the following provisions:
-28-
<PAGE>
o On each interest determination
date, the Company will ascertain
the offered rate for three-month
deposits in U.S. dollars in the
London interbank market, which
appears on the Telerate Page
3750 as of 11:00 a.m. (London
time) on such interest
determination date.
o If such rate does not appear on
the Telerate Page 3750, or the
Telerate Page 3750 is
unavailable, the Company will
request four major banks in the
London interbank market,
referred to as the reference
banks to provide the Company
with their offered quotation,
expressed as a rate per annum
for three-month deposits in U.S.
dollars to leading banks in the
London interbank market, in a
principal amount equal to an
amount of not less than $1
million that is representative
for a single transaction in such
market at such time, at
approximately 11:00 a.m. (London
time) on the interest
determination date. If at least
two such quotations are
provided, LIBOR in respect of
that interest determination date
will be the arithmetic mean of
such quotations.
If less than two of the reference banks
provide the Company with such offered
quotations, LIBOR in respect of that
interest determination date will be the
arithmetic mean of the rates quoted by three
major banks in The City of New York selected
by the Company at approximately 11:00 a.m.,
New York City time, on that interest
determination date for three-month loans in
U.S. dollars to leading European banks, in a
principal amount equal to an amount of not
less than $1 million that is representative
for a single transaction in such market at
such time; provided, however, that if the
banks the Company so selected are not
quoting as mentioned in this sentence, LIBOR
will be LIBOR in effect on such interest
determination date.
Interest Payment Dates: March 5, June 5, September 5, and December 5
Optional Redemption Provisions: REDEMPTION UPON CHANGES IN WITHHOLDING
TAXES. The Notes may be redeemed, as a whole
but not in part, at the election of the
Company, upon not less than 30 nor more than
60 days notice (which notice shall be
irrevocable), at
-29-
<PAGE>
a redemption price equal to 100% of the
principal amount thereof, together with
accrued interest, if any, to the redemption
date and Additional Amounts (as defined in
Section 12.2), if any, if as a result of any
amendment to, or change in, the laws or
regulations of Luxembourg or Bermuda or any
political subdivision or taxing authority
thereof or therein having power to tax (a
"Taxing Authority"), or any change in the
application or official interpretation of
such laws or regulations which amendment or
change is announced and becomes effective
after the date the Notes are issued, the
Company or Tyco has become or will become
obligated to pay Additional Amounts, on the
next date on which any amount would be
payable with respect to the Notes, and such
obligation cannot be avoided by the use of
reasonable measures available to the Company
or Tyco, as the case may be; PROVIDED,
HOWEVER, that (a) no such notice of
redemption may be given earlier than 60 days
prior to the earliest date on which the
Company or Tyco, as the case may be, would
be obligated to pay such Additional Amounts,
and (b) at the time such notice of
redemption is given, such obligation to pay
such Additional Amounts remains in effect.
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: August 31, 1999
Closing Location: New York, New York
Address for Notices to
Initial Purchasers: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, NY 10281-1209
-30-
<PAGE>
SCHEDULE I-C
Representatives: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities
Corporation
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
Salomon Smith Barney Inc.
Williams Capital Group, L.P.
Blaylock & Partners, L.P.
Purchase Agreement Dated: August 26, 1999
Title of Securities: 6.875% Notes Due 2002
Aggregate Principal Amount: $1,000,000,000
Purchase Price: 99.198%
Price to Public: 99.648%
Indenture: Indenture, dated as of June 9, 1998, as
supplemented by Supplemental Indenture No.
11 thereto, dated as of August 31, 1999,
among Tyco International Group S.A., Tyco
International Ltd. and The Bank of New York,
as trustee.
Maturity: September 5, 2002
First Payment Date: March 5, 2000
Interest Rate: 6.875%
Interest Payment Dates: March 5 and September 5
-31-
<PAGE>
Optional Redemption Provisions: OPTIONAL REDEMPTION. The Notes are
redeemable, in whole or in part, at the
option of the Company at any time at a
redemption price equal to the greater of (i)
100% of the principal amount of such Notes,
and (ii) as determined by the Quotation
Agent, the sum of the present values of the
remaining scheduled payments of principal
and interest thereon (not including any
portion of such payment of interest accrued
as of the date of redemption) discounted to
the date of redemption on a semiannual basis
(assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted
Redemption Treasury Rate plus 12.5 basis
points plus, in each case, accrued interest
thereon to the date of redemption.
REDEMPTION UPON CHANGES IN WITHHOLDING
TAXES. The Notes may be redeemed, as a whole
but not in part, at the election of the
Company, upon not less than 30 nor more than
60 days notice (which notice shall be
irrevocable), at a redemption price equal to
100% of the principal amount thereof,
together with accrued interest, if any, to
the redemption date and Additional Amounts
(as defined in Section 12.2), if any, if as
a result of any amendment to, or change in,
the laws or regulations of Luxembourg or
Bermuda or any political subdivision or
taxing authority thereof or therein having
power to tax (a "Taxing Authority"), or any
change in the application or official
interpretation of such laws or regulations
which amendment or change is announced and
becomes effective after the date the Notes
are issued, the Company or Tyco has become
or will become obligated to pay Additional
Amounts, on the next date on which any
amount would be payable with respect to the
Notes, and such obligation cannot be avoided
by the use of reasonable measures available
to the Company or Tyco, as the case may be;
PROVIDED, HOWEVER, that (a) no such notice
of redemption may be given earlier than 60
days prior to the earliest date on which the
Company or Tyco, as the case may be, would
be obligated to pay such Additional Amounts,
and (b) at the time such notice of
redemption is given, such obligation to pay
such Additional Amounts remains in effect.
Sinking Fund Provisions: None
-32-
<PAGE>
Other Provisions: None
Closing Date and Time of Delivery: August 31, 1999
Closing Location: New York, New York
Address for Notices to
Initial Purchasers: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, NY 10281-1209
-33-
<PAGE>
SCHEDULE I-D
Representatives: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Purchase Agreement Dated: August 26, 1999
Title of Securities: 0.57% % Yen Notes Due 2000
Aggregate Principal Amount: (Y) 10,000,000,000
Purchase Price: 99.9%
Price to Public: 100 %
Indenture: Indenture, dated as of June 9, 1998, as
supplemented by Supplemental Indenture No.
12 thereto, dated as of August 31, 1999,
among Tyco International Group S.A., Tyco
International Ltd. and The Bank of New York,
as trustee.
Maturity: September 5, 2000
First Payment Date: September 5, 2000
Interest Rate: 0.57 %
Interest Payment Date: September 5, 2000
Optional Redemption Provisions: REDEMPTION UPON CHANGES IN WITHHOLDING
TAXES. The Notes may be redeemed, as a whole
but not in part, at the election of the
Company, upon not less than 30 nor more than
60 days notice (which notice shall be
irrevocable), at a redemption price equal to
100% of the principal amount thereof,
together with accrued interest, if any, to
the redemption date and Additional Amounts
(as defined in Section 12.2), if any, if as
a result of any amendment to, or change in,
the laws or regulations of Luxembourg or
Bermuda or any political subdivision or
taxing authority thereof or therein having
power to tax (a "Taxing Authority"), or any
change in the application or official
interpretation of such laws or regulations
which amendment or change is announced and
becomes
-34-
<PAGE>
effective after the date the Notes are
issued, the Company or Tyco has become or
will become obligated to pay Additional
Amounts, on the next date on which any
amount would be payable with respect to the
Notes, and such obligation cannot be avoided
by the use of reasonable measures available
to the Company or Tyco, as the case may be;
PROVIDED, HOWEVER, that (a) no such notice
of redemption may be given earlier than 60
days prior to the earliest date on which the
Company or Tyco, as the case may be, would
be obligated to pay such Additional Amounts,
and (b) at the time such notice of
redemption is given, such obligation to pay
such Additional Amounts remains in effect.
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: August 31, 1999
Closing Location: New York, New York
Address for Notices to
Initial Purchasers: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, NY 10281-1209
-35-
<PAGE>
SCHEDULE II-A
FLOATING RATE NOTES DUE 2000:
<TABLE>
<CAPTION>
Principal Amount of
Initial Purchaser Securities to be Purchased
----------------- --------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith...............
Incorporated $ 275,625,000
Lehman Brothers Inc................................. $ 30,000,000
J.P. Morgan Securities Inc.......................... $ 30,000,000
Morgan Stanley & Co. Incorporated................... $ 30,000,000
Banc of America Securities LLC...................... $ 14,375,000
Bear, Stearns & Co. Inc............................. $ 14,375,000
Chase Securities Inc................................ $ 14,375,000
Commerzbank Capital Markets Corporation............. $ 14,375,000
Credit Suisse First Boston Corporation.............. $ 14,375,000
Donaldson, Lufkin & Jenrette Securities Corporation. $ 14,375,000
Goldman, Sachs & Co................................. $ 14,375,000
SBC Warburg Dillon Read LLC......................... $ 14,375,000
Salomon Smith Barney Inc............................ $ 14,375,000
Blaylock & Partners, L.P............................ $ 2,500,000
The Williams Capital Group, L.P..................... $ 2,500,000
Total...................................... $ 500,000,000
===========
</TABLE>
-36-
<PAGE>
SCHEDULE II-B
6.875% NOTES DUE 2002:
<TABLE>
<CAPTION>
Principal Amount of
Initial Purchaser Securities to be Purchased
----------------- --------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith...................
Incorporated $ 275,625,000
Lehman Brothers Inc..................................... $ 30,000,000
J.P. Morgan Securities Inc.............................. $ 30,000,000
Morgan Stanley & Co. Incorporated....................... $ 30,000,000
Banc of America Securities LLC.......................... $ 14,375,000
Bear, Stearns & Co. Inc................................. $ 14,375,000
Chase Securities Inc.................................... $ 14,375,000
Commerzbank Capital Markets Corporation................. $ 14,375,000
Credit Suisse First Boston Corporation.................. $ 14,375,000
Donaldson, Lufkin & Jenrette Securities Corporation..... $ 14,375,000
Goldman, Sachs & Co..................................... $ 14,375,000
SBC Warburg Dillon Read LLC............................. $ 14,375,000
Salomon Smith Barney Inc................................ $ 14,375,000
Blaylock & Partners, L.P................................ $ 2,500,000
The Williams Capital Group, L.P......................... $ 2,500,000
Total.......................................... $ 500,000,000
===========
</TABLE>
-37-
<PAGE>
SCHEDULE II-C
<TABLE>
<CAPTION>
Principal Amount of
Initial Purchaser Securities to be Purchased
----------------- --------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith...................
Incorporated $ 551,250,000
Lehman Brothers Inc..................................... $ 60,000,000
J.P. Morgan Securities Inc.............................. $ 60,000,000
Morgan Stanley & Co. Incorporated....................... $ 60,000,000
Banc of America Securities LLC.......................... $ 28,750,000
Bear, Stearns & Co. Inc................................. $ 28,750,000
Chase Securities Inc.................................... $ 28,750,000
Commerzbank Capital Markets Corporation................. $ 28,750,000
Credit Suisse First Boston Corporation.................. $ 180,000,000
Donaldson, Lufkin & Jenrette Securities Corporation..... $ 28,750,000
Goldman, Sachs & Co..................................... $ 28,750,000
SBC Warburg Dillon Read LLC............................. $ 28,750,000
Salomon Smith Barney Inc................................ $ 28,750,000
Blaylock & Partners, L.P................................ $ 5,000,000
The Williams Capital Group, L.P......................... $ 5,000,000
Total.......................................... $ 1,000,000,000
=============
</TABLE>
-38-
<PAGE>
SCHEDULE II-D
<TABLE>
<CAPTION>
Principal Amount of
Initial Purchaser Securities to be Purchased
----------------- --------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith...................
Incorporated Yen $10,000,000,000
</TABLE>
-39-
<PAGE>
Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this 31st day of August, 1999 among Tyco International Group
S.A., a Luxembourg company (the "Company"), Tyco International Ltd., a Bermuda
company (the "Guarantor") and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities Inc., Lehman Brothers Inc., Morgan Stanley
& Co. Incorporated, Credit Suisse First Boston Corporation, Donaldson, Lufkin &
Jenrette Securities Corporation, Goldman, Sachs & Co., Bear, Stearns & Co. Inc.,
Banc of America Securities LLC, Chase Securities Inc., Commerzbank Capital
Markets Corporation, Warburg Dillon Read LLC, Salomon Smith Barney Inc., The
Williams Capital Group, L.P., and Blaylock & Partners, L.P. (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated August 26, 1999, among the Company, the Guarantor and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of an aggregate of $1,000,000,000 principal
amount of 6.875% Notes due 2002 and related guarantees of the Securities issued
by the Guarantor (collectively, the "Securities"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company and the
Guarantor has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 ACT" shall mean the United States Securities Act of
1933, as amended from time to time.
"1934 ACT" shall mean the United States Securities Exchange
Act of l934, as amended from time to time.
"CLOSING DATE" shall mean the Closing Time as defined in the
Purchase Agreement.
"COMPANY" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
<PAGE>
"DEPOSITARY" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, PROVIDED, HOWEVER, that such
depositary must have an address in the Borough of Manhattan, in the
City of New York.
"EXCHANGE OFFER" shall mean the exchange offer by the Company
and the Guarantor of Exchange Securities (and related Guarantees) for
Registrable Securities pursuant to Section 2.1 hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under
the 1933 Act effected pursuant to Section 2.1 hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form or any successor form used for substantially the same
transaction), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits
thereto and all documents incorporated by reference therein.
"EXCHANGE PERIOD" shall have the meaning set forth in Section
2.1 hereof.
"EXCHANGE SECURITIES" shall mean collectively, the 6.875%
Notes due 2002 Series B, issued by the Company and the related
guarantees of the 6.875% Notes due 2002 Series B issued by the
Guarantor, containing terms identical to the Securities in all material
respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to
Holders of Securities in exchange for Registrable Securities pursuant
to the Exchange Offer.
"HOLDER" shall mean an Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
"INDENTURE" shall mean the Indenture relating to the
Securities and the Exchange Securities, dated as of June 9, 1998, as
supplemented by Supplemental Indenture No. 11, dated as of August 31,
1999, in each case among the Company, the Guarantor and The Bank of New
York, as trustee, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms
thereof.
-2-
<PAGE>
"INITIAL PURCHASER" or "INITIAL PURCHASERS" shall have the
meaning set forth in the preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities or each series of Registrable Securities as the
case may be; PROVIDED that whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company, the Guarantor
and other obligors on the Securities or the Guarantees or any Affiliate
(as defined in the Indenture) of the Company or the Guarantor shall be
disregarded in determining whether such consent or approval was given
by the Holders of such required percentage amount; PROVIDED FURTHER
that, when used in connection with the Shelf Registration Statement,
the term Majority Holders shall mean the Holders of a majority of the
aggregate principal amount of all series of Registrable Securities
participating therein or whose securities are being sold thereunder in
the particular case, as applicable.
"PARTICIPATING BROKER-DEALER" shall mean any of Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), J.P. Morgan
Securities Inc., Lehman Brothers Inc., Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation, Donaldson, Lufkin
& Jenrette Securities Corporation, Goldman, Sachs & Co., Bear, Stearns
& Co. Inc., Banc of America Securities LLC, Chase Securities Inc.,
Commerzbank Capital Markets Corporation, Warburg Dillon Read LLC,
Salomon Smith Barney Inc., The Williams Capital Group, L.P., and
Blaylock & Partners, L.P. and any other broker-dealer which makes a
market in the Securities and Guarantees and exchanges Registrable
Securities in the Exchange Offer for Exchange Securities.
"PERSON" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference
therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble.
-3-
<PAGE>
"REGISTRABLE SECURITIES" shall mean, collectively, the
Securities and the Guarantees; PROVIDED, HOWEVER, that Securities and
Guarantees shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities and Guarantees
shall have been declared effective under the 1933 Act and such
Securities and Guarantees shall have been disposed of pursuant to such
Registration Statement, (ii) such Securities and Guarantees have been
sold to the public pursuant to Rule l44 (or any similar provision then
in force, but not Rule 144A) under the 1933 Act, (iii) such Securities
and Guarantees shall have ceased to be outstanding or (iv) the Exchange
Offer is consummated (except in the case of Securities and Guarantees
purchased from the Company and the Guarantors and continued to be held
by the Initial Purchasers or Securities which may not be exchanged in
the Exchange Offer).
"REGISTRATION EXPENSES" shall mean any and all expenses
incident to performance of or compliance by the Company and the
Guarantor with this Agreement, including without limitation: (i) all
SEC, stock exchange or National Association of Securities Dealers, Inc.
(the "NASD") registration and filing fees, including, if applicable,
the fees and expenses of any "qualified independent underwriter" (and
the reasonable fees and expenses of its counsel) that is required to be
retained by any holder of Registrable Securities in accordance with the
rules and regulations of the NASD, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws
and compliance with the rules of the NASD (including reasonable fees
and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities and any filings with the NASD),
(iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Company and the Guarantor and of the
independent public accountants of the Company and the Guarantor,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (vii) the
fees and expenses of the Trustee, and any escrow agent or custodian,
(viii) the reasonable fees and expenses of the Initial Purchasers in
connection with the Exchange Offer, including the reasonable fees and
expenses of one counsel to the Initial Purchasers in connection
therewith, (ix) the reasonable fees and disbursements of one special
counsel representing the Holders of Registrable Securities in
connection with the Shelf Registration Statement and (x) any fees and
disbursements of the underwriters customarily required to be paid
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by issuers or sellers of securities and the fees and expenses of any
special experts retained by the Company and the Guarantor in connection
with any Registration Statement, but excluding underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement
of the Company and the Guarantor which covers any of the Exchange
Securities or Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected
pursuant to Section 2.2 hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf"
registration statement of the Company and the Guarantor pursuant to the
provisions of Section 2.2 of this Agreement which covers all of the
Registrable Securities on an appropriate form under Rule 415 under the
1933 Act, or any successor or similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"TRUSTEE" shall mean the trustee with respect to the
Securities and the Guarantees under the Indenture.
2. REGISTRATION UNDER THE 1933 ACT.
2.1 EXCHANGE OFFER. The Company and the Guarantor shall, for
the benefit of the Holders, at the Company's and the Guarantor's cost, use their
reasonable best efforts to (A) prepare and, as soon as practicable but not later
than 120 days following the Closing Date, file with the SEC an Exchange Offer
Registration Statement on an appropriate form under the 1933 Act with respect to
a proposed Exchange Offer and the issuance and delivery to the Holders, in
exchange for the Registrable Securities, of a like principal amount of Exchange
Securities, (B) to cause the Exchange Offer Registration Statement to be
declared effective under the 1933 Act within 180 days of the Closing Date, (C)
keep the Exchange Offer Registration Statement effective until the
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closing of the Exchange Offer and (D) cause the Exchange Offer to be consummated
not later than 210 days following the Closing Date. The Exchange Securities will
be issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantor shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Securities for Exchange
Securities to transfer such Exchange Securities from and after their receipt
without any limitations or restrictions under the 1933 Act and under state
securities or blue sky laws.
Each Holder participating in the Exchange Offer shall be
required, as a condition to such participation, to represent in writing to the
Company that, at the time of the consummation of the Exchange Offer, such Holder
(a) is not an affiliate of the Company within the meaning of Rule 405 under the
1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired
directly from the Company for its own account, (c) acquired or will acquire the
Exchange Securities in the ordinary course of such Holder's business and (d) has
no arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities.
In connection with the Exchange Offer, the Company and the
Guarantor shall:
(a) mail as promptly as practicable to each Holder a
copy of the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related
documents;
(b) keep the Exchange Offer open for acceptance for a
period of not less than 30 calendar days after the date notice thereof is mailed
to the Holders (or longer if required by applicable law) (such period referred
to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the
Exchange Offer;
(d) permit Holders to withdraw tendered Registrable
Securities at any time prior to 5:00 p.m. (Eastern Standard Time), on the last
business day of the Exchange Period, by sending to the institution specified in
the notice, a telegram, telex, facsimile transmission or letter setting forth
the name of such Holder, the principal amount of Registrable Securities
delivered for exchange, and a statement that such Holder is withdrawing such
Holder's election to have such Securities and Guarantees exchanged;
(e) notify each Holder that any Registrable Security
not tendered will remain outstanding and continue to accrue interest, but will
not retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
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(f) otherwise comply in all respects with all
applicable laws relating to the Exchange Offer.
The Exchange Securities shall be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the
Indenture and which, in either case, has been qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), or is exempt from such
qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture. The Indenture
or such indenture shall provide that the Exchange Securities and the Securities
having the same interest rate and maturity (and related Guarantees) shall vote
and consent together on all matters as one class and that none of the Exchange
Securities or the Securities having the same interest rate and maturity (and
related Guarantees) will have the right to vote or consent as a separate class
on any matter.
As soon as practicable after the close of the Exchange Offer
the Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities
duly tendered and not validly withdrawn pursuant to the
Exchange Offer in accordance with the terms of the Exchange
Offer Registration Statement and the letter of transmittal
which shall be an exhibit thereto;
(ii) deliver, or cause to be delivered to the Trustee
for cancellation all Registrable Securities so accepted for
exchange; and
(iv) cause the Trustee promptly to authenticate and
deliver Exchange Securities to each Holder of Registrable
Securities so accepted for exchange in a principal amount
equal to the principal amount of the Registrable Securities of
such Holder so accepted for exchange.
Interest on each Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in
exchange therefor or, if no interest has been paid on the Registrable
Securities, from the date of original issuance. The Exchange Offer shall not be
subject to any conditions, other than (i) that the Exchange Offer or the making
of any exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer, (iii) that each Holder of
Registrable Securities exchanged in the Exchange Offer shall have made the
representations set forth above in this Section 2.1 and shall have made such
other representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer
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<PAGE>
which, in the Company's and the Guarantor's judgment, would reasonably be
expected to impair the ability of the Company and the Guarantor to proceed with
the Exchange Offer. The Company and the Guarantor shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchasers shall have the right to contact such Holders
and otherwise facilitate the tender of Registrable Securities in the Exchange
Offer.
2.2 SHELF REGISTRATION. (i) If, because of any changes in law,
SEC rules or regulations or applicable interpretations thereof by the staff of
the SEC, the Company and the Guarantor are not permitted to effect the Exchange
Offer as contemplated by Section 2.1 hereof, (ii) if for any other reason the
Exchange Offer Registration Statement is not declared effective within 180 days
following the original issue of the Registrable Securities or the Exchange Offer
is not consummated within 210 days after the original issue of the Registrable
Securities, (iii) upon the request of any of the Initial Purchasers with respect
to Registrable Securities that are not eligible to be exchanged for Exchange
Notes in the Exchange Offer or the Initial Purchasers do not receive freely
tradeable Exchange Securities in the Exchange Offer or (iv) if a Holder known or
identified in writing to the Company (other than an Initial Purchaser) is not
permitted by applicable law to participate in the Exchange Offer or elects to
participate in the Exchange Offer but does not receive fully tradeable Exchange
Securities pursuant to the Exchange Offer, then in case of each of clauses (i)
through (iv) the Company and the Guarantor shall, at their cost:
(a) As promptly as practicable, file with the SEC,
and thereafter shall use their reasonable best efforts to
cause to be declared effective within 150 days after the
original issue of the Registrable Securities, a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the
Majority Holders participating in the Shelf Registration and
set forth in such Shelf Registration Statement; PROVIDED,
HOWEVER, that no Holder shall be entitled to have Registrable
Securities held by it included in the Shelf Registration
Statement unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such
Holder and furnishes to the Company in writing such
information as the Company may reasonably request for
inclusion in the Shelf Registration Statement or any
Prospectus included therein.
(b) Use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order
to permit the Prospectus forming part thereof to be usable by
Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the SEC, or
for such shorter period that will terminate when all
Registrable Securities
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<PAGE>
covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise to be Registrable Securities (the
"Effectiveness Period"); PROVIDED, HOWEVER, that the
Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the 1933 Act and as otherwise
provided herein.
(c) Notwithstanding any other provisions hereof, use
their reasonable best efforts to ensure that (i) any Shelf
Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the
rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, 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 and
(iii) any Prospectus forming part of any Shelf Registration
Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements, in light of the
circumstances under which they were made, not misleading.
The Company and the Guarantor shall not permit any securities
other than Registrable Securities to be included in the Shelf Registration
Statement. The Company and the Guarantor further agree, if necessary, to
supplement or amend the Shelf Registration Statement, as required by Section
3(b) below, and to furnish to the Holders of Registrable Securities copies of
any such supplement or amendment promptly after its being used or filed with the
SEC.
2.3 EXPENSES. The Company and the Guarantor shall pay all
Registration Expenses in connection with the registration pursuant to Section
2.1 or 2.2. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
2.4. EFFECTIVENESS. (a) The Company and the Guarantor will be
deemed not to have used their reasonable best efforts to cause the Exchange
Offer Registration Statement or the Shelf Registration Statement, as the case
may be, to become, or to remain, effective during the requisite period if the
Company or the Guarantor voluntarily takes any action that would, or omits to
take any action which omission would, result in any such Registration Statement
not being declared or remaining effective or in the
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<PAGE>
Holders of Registrable Securities covered thereby not being able to exchange or
offer and sell such Registrable Securities during that period as and to the
extent contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant
to Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; PROVIDED, HOWEVER, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court of competent jurisdiction, such Registration
Statement will be deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
2.5 INTEREST. The Indenture executed in connection with the
Securities will provide that in the event that either (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 90th
calendar day following the date of original issue of the Securities, (b) the
Exchange Offer Registration Statement has not been declared effective on or
prior to the 150th calendar day following the date of original issue of the
Securities or (c) the Exchange Offer is not consummated or a Shelf Registration
Statement is not declared effective, in either case, on or prior to the 180th
calendar day following the date of original issue of the Securities (each such
event referred to in clauses (a) through (c) above, a "Registration Default"),
the interest rate borne by the Securities shall be increased ("Additional
Interest") by one-quarter of one percent per annum upon the occurrence of each
Registration Default, which rate will increase by one quarter of one percent
each 90-day period that such Additional Interest continues to accrue under any
such circumstance, provided that the maximum aggregate increase in the interest
rate will in no event exceed one percent (1%) per annum; PROVIDED, HOWEVER, that
no Additional Interest shall be payable if the Exchange Offer Registration
Statement is not filed or declared effective or the Exchange Offer is not
consummated on account of the reasons set forth in clause (i) of the first
paragraph of this Section 2.2 (it being understood, however, that in any such
case the Company and the Guarantor shall be obligated to file a Shelf
Registration Statement and Additional Interest shall be payable if the Shelf
Registration Statement is not declared effective in accordance with clause (c)),
that no Additional Interest shall be payable if the Shelf Registration Statement
is not declared effective as set forth above because the request under clause
(iii) of Section 2.2 or notice under clause (iv) of such paragraph was not made
on a timely basis; and PROVIDED, FURTHER, that Additional Interest shall only be
payable in case the Shelf Registration Statement is not declared effective as
aforesaid with respect to Securities that have the right to be included, and
whose inclusion has been requested, in the Shelf Registration Statement.
Following the cure of all Registration
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<PAGE>
Defaults the accrual of Additional Interest will cease and the interest rate
will revert to the original rate.
If the Shelf Registration Statement is declared effective but
shall thereafter become unusable by the Holders for any reason (whether pursuant
to the last paragraph of Section 3 or otherwise),, and the aggregate number of
days in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days in the aggregate, then the
interest rate borne by the Securities included in the Registration Statement
will be increased by 0.25% per annum of the principal amount of the Securities
for the first 90-day period (or portion thereof) beginning on the 31st such date
that such Shelf Registration Statement ceases to be usable, which rate shall be
increased by an additional 0.25% per annum of the principal amount of the
Securities at the beginning of each subsequent 90-day period, provided that the
maximum aggregate increase in the interest rate will in no event exceed one
percent (1%) per annum. Any amounts payable under this paragraph shall also be
deemed "Additional Interest" for purposes of this Agreement. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by
such Securities will be reduced to the original interest rate if the Company is
otherwise in compliance with this Agreement at such time. Additional Interest
shall be computed based on the actual number of days elapsed in each 90-day
period in which the Shelf Registration Statement is unusable.
The Company and the Guarantor shall notify the Trustee within
five business days after each and every date on which an event occurs in respect
of which Additional Interest is required to be paid (an "Event Date").
Additional Interest shall be paid by depositing with the Trustee, in trust, for
the benefit of the Holders of the Securities entitled to receive the interest
payment, on or before the applicable semiannual interest payment date,
immediately available funds in sums sufficient to pay the Additional Interest
then due. The Additional Interest due shall be payable on each interest payment
date to the record Holder of Securities entitled to receive the interest payment
to be paid on such date as set forth in the Indenture. Each obligation to pay
Additional Interest shall be deemed to accrue from and including the day
following the applicable Event Date.
3. REGISTRATION PROCEDURES.
In connection with the obligations of the Company and the
Guarantor with respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Company and the Guarantor shall:
(a) prepare and file with the SEC a Registration Statement,
within the relevant time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company and the
Guarantor, (ii) shall, in the case
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of a Shelf Registration, be available for the sale of the Registrable Securities
by the selling Holders thereof, (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to be filed therewith
or incorporated by reference therein, and (iv) shall comply in all respects with
the requirements of Regulation S-T under the 1933 Act, and use their reasonable
best efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the 1933 Act and comply with the
provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition of all securities
covered by each Registration Statement during the applicable period in
accordance (in the case of a Shelf Registration) with the intended method or
methods of distribution by the selling Holders thereof (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five business days prior to filing,
that a Shelf Registration Statement with respect to the Registrable Securities
is being filed and advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method selected by the Majority
Holders participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits, in order to facilitate the public sale or
other disposition of the Registrable Securities; and (iii) hereby consent to the
use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) use their reasonable best efforts to register or qualify
the Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC; PROVIDED, HOWEVER, that
none of the Company and the Guarantor shall be required to
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(i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), or (ii) take any action which would subject it to general service
of process or taxation in any such jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities
included under a Shelf Registration or any Participating Broker-Dealer who has
notified the Company and the Guarantor that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below and, if requested by
such Holder or Participating Broker-Dealer, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) in the case of a Shelf Registration,
if, between the effective date of such Registration Statement and the closing of
any sale of Registrable Securities covered thereby, the representations and
warranties of the Company and the Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material respects,
(v) of the happening of any event or the discovery of any facts during the
period a Shelf Registration Statement is effective which makes any statement
made in such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein not
misleading, (vi) of the receipt by the Company or the Guarantor of any
notification with respect to the suspension of the qualification of the
Registrable Securities or the Exchange Securities, as the case may be, for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose and (vii) of any determination by the Company or the Guarantor that a
post-effective amendment to such Registration Statement would be appropriate;
(f) in the case of the Exchange Offer Registration Statement
(i) include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution" which section shall be reasonably acceptable to Merrill
Lynch on behalf of the Participating Broker-Dealers, and which shall contain a
summary statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any broker-dealer that
holds Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities and that will be the
beneficial owner (as defined in Rule 13d-3 promulgated under the 1934 Act) of
Exchange Securities to be received by such broker-dealer in the Exchange Offer,
whether such positions or policies have been publicly disseminated by the staff
of the
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SEC or such positions or policies, in the reasonable judgment of Merrill Lynch
on behalf of the Participating Broker-Dealers and its counsel, represent the
prevailing views of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and must
deliver a prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company and the Guarantor the notice
referred to in Section 3(e), without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto, by any Person subject to the prospectus
delivery requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, provided any such Person has
provided the Company in writing with any information required by Item 507 or
Item 508 of Regulation S-K under the 1933 Act (or any similar provision then in
force) for inclusion in the Prospectus contained in the Exchange Offer
Registration Statement, and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate in
the Exchange Offer (x) the following provision (or any other provision requested
by Merrill Lynch on behalf of the Participating Broker-Dealers with respect to
similar matters):
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(g) (i) in the case of an Exchange Offer, furnish counsel for
the Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any comment letters
received from the SEC or any other request by the SEC or any state securities
authority for amendments or supplements to a Registration Statement and
Prospectus or for additional information;
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<PAGE>
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, and each underwriter, if any, without charge,
at least one conformed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits thereto,
unless requested in writing);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities to
be in such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale
of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts, each as contemplated by Sections
3(e)(v) and 3(e)(vi) hereof, as promptly as practicable after the occurrence of
such an event, use their best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Securities
or Participating Broker-Dealers, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so
qualified. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such determination
and to furnish each Holder such number of copies of the Prospectus as amended or
supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, within a reasonable
time prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a Prospectus
or any document which is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration Statement,
provide copies of such document to the Initial Purchasers on behalf of such
Holders; and make representatives of the Company and the Guarantor as shall be
reasonably requested by the Holders of Registrable Securities, or the Initial
Purchasers on behalf of such Holders, available for discussion of such document;
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(m) use their reasonable best efforts to obtain a CUSIP number
for all Exchange Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities or the Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(n) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the Trustee to effect such
changes to the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA, to the extent that such changes may be
made without the consent of the Holders or the holders of any other securities
issued under the Indenture and (iii) execute, and use their reasonable best
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters,
if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings
as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and
the Guarantor and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, or, if
there are no underwriters, the Majority Holders) addressed to
the underwriters, if any, or, if there are no underwriters,
the selling Holders of Registrable Securities covering the
matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates
thereof from the Company's and the Guarantor's independent
certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for
which financial statements are, or are required to be,
included in the Registration Statement) addressed to the
underwriters, if any, and if there
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are no underwriters, use reasonable efforts to have such
letter addressed to the selling Holders of Registrable
Securities (to the extent consistent with Statement on
Auditing Standards No. 72 of the American Institute of
Certified Public Accounts), such letters to be in customary
form and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with
similar underwritten offerings;
(iv) if so requested by the Majority Holders, enter
into a securities sales agreement with the Holders and an
agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the
purpose of soliciting purchases of Registrable Securities,
which agreement shall be in form, substance and scope
customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section or, at the request of any
underwriters, in the form customarily provided to such
underwriters in similar types of transactions; provided such
underwriting agreement shall contain customary provisions
regarding indemnification of the Company and the Guarantor
with the respect to information provided by the underwriters;
and
(vi) deliver such documents and certificates as may
be reasonably requested by the managing underwriter or, if
there are no underwriters, the Majority Holders and as are
customarily delivered in similar offerings, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and, if requested by the Majority Holders, each post-effective amendment
thereto) and (ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any underwritten offering,
the Company and the Guarantor shall provide written notice to the Holders of all
Registrable Securities whose Securities are included in the Shelf Registration
Statement of such underwritten offering at least 15 days prior to the filing of
a prospectus supplement for such underwritten offering. Such notice shall (x)
offer each such Holder the right to participate in such underwritten offering,
(y) specify a date, which shall be no earlier than 10 days following the date of
such notice, by which such Holder must inform the Company of its intent to
participate in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten offering;
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(p) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the case of an
Exchange Offer, make available for inspection by representatives of the Majority
Holders of the Registrable Securities, any underwriters participating in any
disposition pursuant to a Shelf Registration Statement, any Participating
Broker-Dealer and any counsel or accountant retained by any of the foregoing,
all financial and other records, pertinent corporate documents and properties of
the Company and the Guarantor reasonably requested by any such persons, and
cause the respective officers, directors, employees, and any other agents of the
Company and the Guarantor to supply all information reasonably requested by any
such representative, underwriter, special counsel or accountant in connection
with a Registration Statement, and make such representatives of the Company and
the Guarantor available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers, in each case as shall be customary and
reasonably necessary to enable such Persons to exercise applicable due diligence
responsibilities; PROVIDED that any information that is designated by the
Company or the Guarantor in good faith, in writing, as confidential at the time
of delivery of such information shall be kept confidential by such Persons,
unless such information becomes available to the public generally not as a
result of a breach of this Agreement, and unless disclosure is required in
connection with a court proceeding or required by law, in which case prior to
such disclosure the Company and the Guarantor shall be given such notice as
shall be reasonably practicable in the circumstances to enable the Company or
the Guarantor to take action to prevent disclosure of such information;
(q) (i) in the case of an Exchange Offer Registration
Statement, within a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any amendment to
an Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Initial Purchasers and their
counsel and make such changes in any such document prior to the filing thereof
as the Initial Purchasers or their counsel may reasonably request and, except as
otherwise required by applicable law, not file any such document in a form to
which the Initial Purchasers or their counsel shall not have previously been
advised and furnished a copy of or to which the Initial Purchasers shall
reasonably object, and make the representatives of the Company and the Guarantor
available for discussion of such documents as shall be reasonably requested by
the Initial Purchasers; and
(ii) in the case of a Shelf Registration, within a
reasonable time prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus, provide copies of such document to
the Holders of Registrable Securities participating therein, to the Initial
Purchasers, to counsel for the Holders of Registrable Securities participating
therein selected by the Majority Holders (all
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references to counsel for the Holders of Registrable Securities in this
paragraph being references to such counsel) and to the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any, make
such changes in any such document prior to the filing thereof as the Initial
Purchasers, the counsel to the Holders of Registrable Securities participating
therein or the underwriter or underwriters reasonably request and not file any
such document in a form to which the Initial Purchasers, counsel for the Holders
of Registrable Securities or any underwriter shall not have previously been
advised and furnished a copy of or to which the Initial Purchasers, counsel to
the Holders of Registrable Securities or any underwriter shall reasonably
object, and make the representatives of the Company and the Guarantor available
for discussion of such document as shall be reasonably requested by the Initial
Purchasers, counsel for the Holders of Registrable Securities or any
underwriter.
(r) in the case of a Shelf Registration, use their reasonable
best efforts to cause all Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Company are then listed
if requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(s) in the case of a Shelf Registration, use their reasonable
best efforts to cause the Registrable Securities to be rated by the appropriate
rating agencies, if so requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;
(t) otherwise comply with all applicable rules and regulations
of the SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 promulgated
thereunder;
(u) cooperate and assist in any filings required to be made
with the NASD and, in the case of a Shelf Registration, in the performance of
any due diligence investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(v) upon consummation of an Exchange Offer, obtain (i) a
customary opinion of counsel to the Company and the Guarantor addressed to the
Trustee for the benefit of all Holders of Registrable Securities participating
in the Exchange Offer, and which includes an opinion that (A) each of the
Company and the Guarantor has duly authorized, executed and delivered the
Exchange Securities and the related indenture, and (B) each of the Exchange
Securities and related indenture constitute legal, valid and binding obligations
of each of the Company and the Guarantor, enforceable against the
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Company and the Guarantor in accordance with its respective terms (with
customary exceptions) and (ii) an officers' certificate containing the
certifications substantially similar to those set forth in Section 5(c) of the
Purchase Agreement.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company and the Guarantor of
the happening of any event or the discovery of any facts, each of the kind
described in Section 3(e)(v) and 3(e)(vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(k) hereof, and, if so directed by
the Company and the Guarantor, such Holder will deliver to the Company and the
Guarantor (at their expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of all such Registrable
Securities included in such offering and shall be acceptable to the Company and
the Guarantor. No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.
The Company shall be entitled for a period of time not to
exceed 30 consecutive days in any one instance or 60 days in the aggregate
during any consecutive twelve-month period, to require that Holders refrain from
effecting any distribution of their Registrable Securities pursuant to the Shelf
Registration Statement if the Company or the Guarantor in its reasonable good
faith judgment determines that, in accordance with its understanding of the
disclosure requirements of applicable securities law, such distribution would
require disclosure of any financing (other than an underwritten secondary
offering of any securities of the Company or the Guarantor), acquisition,
corporate reorganization or other transaction or development involving the
Company, the Guarantor or any of their subsidiaries that is or would be material
to the Company and that, in the reasonable good faith business judgment of the
Company or the Guarantor, such disclosure would not at that time be in the best
interests of the Company or the Guarantor (a "Material Development Election")
provided that any period during which the Company requires Holders to refrain
from disposing of their Registrable Securities due to a Material Event Election
(an "Election Period") shall be deemed to
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trigger the obligation of the Company to pay Additional Interest in accordance
with the second paragraph of Section 2.5 to the extent that such Election
Period, together with all other days that the Shelf Registration Statement has
become unusable in any consecutive twelve-month period, exceeds 30 days in the
aggregate. The Company shall, as promptly as practicable, give the Holders whose
Securities are included in the Shelf Registration Statement written notice of
any such Material Development Election. If such Holders have been required to
refrain from disposing of their Registrable Securities as a result of a Material
Development Election, the Company shall, as promptly as practicable following
the determination that the Holders may recommence such sales, notify such
Holders in writing of such determination but in any event no later than the end
of such 30-day period in any one case or 60-day period in the aggregate.
4. INDEMNIFICATION; CONTRIBUTION.
(a) The Company and the Guarantor, jointly and severally,
agree to indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter (any
such Person being an "Underwriter") and each Person, if any, who controls any
Holder or Underwriter 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 any Registration Statement (or any amendment
or supplement thereto) pursuant to which Exchange Securities
or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, 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 contained in any Prospectus (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 4(d) below) any such settlement is effected with
the written consent of the Company and the Guarantor; and
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(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by any indemnified party), 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 subparagraph (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 and the
Guarantor by the Holder, Participating Broker-Dealer or Underwriter expressly
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto); and PROVIDED FURTHER that this
indemnity agreement shall not, with respect to a Shelf Registration Statement,
if applicable, with respect to any preliminary prospectus, inure to the benefit
of any Underwriter (or to the benefit of any Person controlling such
Underwriter) from whom the Person asserting any such losses, liabilities,
claims, damages or expenses purchased Registrable Securities if such untrue
statement or omission or alleged untrue statement or omission made in a
preliminary prospectus is eliminated or remedies in the Prospectus (as amended
or supplemented if the Company and the Guarantor shall have furnished amendments
or supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such Person at or
prior to the written confirmation of the sale of such Registrable Securities to
such Person.
(b) Each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Guarantor, the Initial Purchasers,
each Underwriter and the other selling Holders, and each of their respective
directors and officers, and each Person, if any, who controls the Company, the
Guarantor, the Initial Purchasers, any Underwriter or any other selling Holder
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 Section 4(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Holder
furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); PROVIDED, HOWEVER, that no such Holder shall
be liable for any claims hereunder in excess
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of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to 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. The
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any other the indemnifying party may designate in such action or
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the contrary, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party or (iii) the named parties in
any such proceeding (including impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. In no event shall the indemnifying party or parties be liable for
the 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 4 (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) 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 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
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settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement unless the
indemnifying party in good faith shall be contesting the reasonableness of such
fees and expenses (but only to the extent so contested) or the entitlement of
the indemnified party to indemnification under the terms of this Section. No
indemnifying person shall, without the prior written consent of the indemnified
person, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified person is or could have been a party and indemnity
could have been sought hereunder by such indemnified person, unless such
settlement includes an unconditional release of such indemnified person from all
liability on claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in this Section 4 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, in such proportion as is
appropriate to reflect the relative fault of the Company and the Guarantor on
the one hand and the Initial Purchasers, the Holders, the Participating
Broker-Dealers and/or the Underwriters each 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 fault of the Company and the Guarantor on the one hand and
the Initial Purchasers, the Holders, the Participating Broker-Dealers and/or the
Underwriters each 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 and the Guarantor, the Holders, the
Participating Broker-Dealers and/or the Underwriters or the Initial Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Guarantor, the Initial Purchasers, the Holders, the
Participating Broker-Dealers and/or the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 4 were determined by
pro rata allocation (even if the Initial Purchasers, the Holders, the
Participating Broker-Dealers and/or the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 4. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 4 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
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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 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser, Holder Participating Broker-Dealer or 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 Initial Purchaser or Holder, and each
director of the Company and such Guarantor, as the case may be, and each Person,
if any, who controls the Company and such Guarantor, as the case may be, 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 Initial Purchasers'
respective obligations to contribute pursuant to this Section 4 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedules I-A, I-B, I-C and I-D to the Purchase Agreement
and not joint.
5. MISCELLANEOUS.
5.1 Rule 144 and Rule 144A. For so long as the Guarantor is
subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the
Company and the Guarantor covenant that the Guarantor will file the reports
required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the
1934 Act and the rules and regulations adopted by the SEC thereunder. If the
Guarantor ceases to be so required to file such reports, the Company and the
Guarantor covenant that the Guarantor will upon the request of any Holder of
Registrable Securities (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act to the extent required by the
securities laws, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
1933 Act within the limitation of the exemptions provided by (i) Rule 144 under
the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A
under the 1933 Act, as such Rule may be amended from time to
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time, or (iii) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company and the
Guarantor will deliver to such Holder a written statement as to whether they
have complied with such requirements.
5.2 NO INCONSISTENT AGREEMENTS. The Company and the Guarantor
have not entered into, and the Company and the Guarantor will not after the date
of this Agreement enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with the rights granted to the
holders of the Company's and the Guarantor's other issued and outstanding
securities under any such agreements.
5.3 AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Guarantor have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
5.4 NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company and the Guarantor by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth
in the Purchase Agreement with respect to the Initial Purchasers; and (b) if to
the Company and the Guarantor, initially at the Company's address set forth in
the Purchase Agreement, and thereafter at such other address of which notice is
given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Trustee
under the Indenture, at the address specified in such Indenture.
5.5 SUCCESSOR AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties,
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including, without limitation and without the need for an express assignment,
subsequent Holders; PROVIDED that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in violation
of the terms of the Purchase Agreement or the Indenture. If any transferee of
any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such person shall be entitled to receive
the benefits hereof.
5.6 THIRD PARTY BENEFICIARIES. The Initial Purchasers (even if
the Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company and the
Guarantor, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made under this Registration Rights Agreement
between the Company and the Guarantor, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder.
5.7. SPECIFIC ENFORCEMENT. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company and the
Guarantor acknowledge that any failure by the Company and the Guarantor to
comply with their obligations under Sections 2.1 through 2.4 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it would not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's and the Guarantor's obligations
under Sections 2.1 through 2.4 hereof.
5.8. RESTRICTION ON RESALES. Until the expiration of two years
after the original issuance of the Securities and the Guarantee, the Company and
the Guarantor will not, and will cause their "affiliates" (as such term is
defined in Rule 144(a)(1) under the 1933 Act) not to, resell any Securities and
Guarantee which are "restricted securities" (as such term is defined under Rule
144(a)(3) under the 1933 Act) that have been reacquired by any of them and shall
immediately upon any purchase of any such Securities and Guarantees submit such
Securities and Guarantees to the Trustee for cancellation.
-27-
<PAGE>
5.9 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.10 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
5.13 JURISDICTIONAL MATTERS. Each of the Company and the
Guarantor (i) agrees that any legal suit, action or proceeding brought by any
party to enforce any rights under or with respect to this Agreement or any other
document in respect thereof 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., (ii) irrevocably waives to the fullest extent permitted by
law any objection which it may now or hereafter have to the laying of venue of
any such suit, action or proceeding, (iii) irrevocably waives to the fullest
extent permitted by law any claim that and agrees not to claim or plead in any
court that any such action, suit or proceeding brought in such court has been
brought in an inconvenient forum and (iv) irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding or for recognition and enforcement of any judgment in respect
thereof.
Each of the Company and the Guarantor 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 its authorized
agent to receive and forward on its behalf service of any and all process which
may be served in any such suit, action or proceeding in any such court and
agrees that service of process upon CT Corporation shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and shall be taken and held to be valid personal service upon it.
Said designation and appointment shall be irrevocable. Nothing in this Section
5.13 shall affect the right of Initial Purchasers, their affiliates or any
indemnified party to serve process in any manner permitted by law or limit the
right of the Initial
-28-
<PAGE>
Purchasers, their affiliates or any indemnified party to bring proceedings
against the Company or the Guarantor in the courts of any jurisdiction or
jurisdictions. Each of the Company and the Guarantor further agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation and
appointment of CT Corporation in full force and effect so long as the Securities
and the Guarantees are outstanding but in no event for a period longer than five
years from the date of this Agreement. Each of the Company and Guarantor hereby
irrevocably and unconditionally authorizes and directs CT Corporation to accept
such service on its behalf. If for any reason CT Corporation ceases to be
available to act as such, each of the Company and Guarantor agrees to designate
a new agent in New York City on the terms and for the purposes of this provision
reasonably satisfactory to the Underwriters.
To the extent that either the Company or the Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court (including,
without limitation, any court in the United States, the State of New York,
Luxembourg, Bermuda or any political subdivision thereof) or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property or assets, this Agreement, or any other documents or actions to
enforce judgments in respect of any thereof, it hereby irrevocably waives such
immunity, and any defense based on such immunity, in respect of its obligations
under the above-referenced documents and the transactions contemplated thereby,
to the extent permitted by law.
5.14. JUDGMENT CURRENCY. If pursuant to a judgment or order
being made or registered against the Company or the Guarantor, any payment under
or in connection with this Agreement to a Person 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
Person 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 Person falls short of the amount due
under the terms of this Agreement, the Company or the Guarantor shall, to the
extent permitted by law, as a separate and independent obligation, indemnify and
hold harmless such Person 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 Person 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.
-29-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
TYCO INTERNATIONAL GROUP S.A.
By: /s/ Richard W. Brann
----------------------------------
Name: Richard W. Brann
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
----------------------------------
Name: Mark H. Swartz
Title: Executive Vice President
& Chief Financial Officer
-30-
<PAGE>
Confirmed and accepted as
of the date first above
written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Bear, Stearns & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
Salomon Smith Barney Inc.
The Williams Capital Group, L.P.
Blaylock & Partners, L.P.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Geoffrey T. Blythe
----------------------------------------
Authorized Signatory
For itself and on behalf of the other Initial Purchasers.
-31-
<PAGE>
EXHIBIT 12
TYCO INTERNATIONAL LTD.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES(1)
($ IN MILLIONS)
The ratio of earnings to fixed charges for the years ended September 30,
1999 and 1998, the nine months ended September 30, 1997 and the year ended
December 31, 1996 was computed based on Tyco's historical consolidated financial
statements. The ratio of earnings to fixed charges for the year ended
December 31, 1996 was computed based on the consolidated financial statements
included in Tyco's Current Report on Form 8-K filed on June 3, 1999. The ratio
of earnings to fixed charges for the year ended December 31, 1995 was computed
based on the historical financial statements of Former Tyco, ADT, Keystone, US
Surgical and AMP.
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS YEAR ENDED
SEPTEMBER 30, ENDED DECEMBER 31,
---------------------- SEPTEMBER 30, ----------------------
1999 1998 1997(5) 1996 1995
-------- -------- -------------- -------- --------
<S> <C> <C> <C> <C> <C>
Earnings:
Income (loss) before
extraordinary items and
cumulative effect of accounting
changes........................ $1,031.0 $1,168.6 $(348.5) $ 49.4 $ 755.5
Income taxes..................... 620.2 534.2 348.1 469.4 478.0
-------- -------- ------- ------ --------
1,651.2 1,702.8 (0.4) 518.8 1,233.5
-------- -------- ------- ------ --------
Fixed Charges:
Interest expense(2).............. 547.1 307.9 170.0 238.5 247.1
Rentals(3)....................... 127.0 110.6 81.0 99.3 88.3
-------- -------- ------- ------ --------
674.1 418.5 251.0 337.8 335.4
-------- -------- ------- ------ --------
Earnings before income taxes and
fixed charges.................. $2,325.3 $2,121.3 $ 250.6 $856.6 $1,568.9
======== ======== ======= ====== ========
Ratio of earnings to fixed
charges(4)..................... 3.45 5.07 1.00 2.54 4.68
</TABLE>
- ------------------------
(1) On July 2, 1997, Tyco, formerly called ADT Limited, merged with Tyco
International Ltd., a Massachusetts corporation ("Former Tyco"). On
April 2, 1999, October 1, 1998, August 29, 1997 and August 27, 1997, Tyco
merged with AMP Incorporated, United States Surgical Corporation, Keystone
International and Inbrand Corporation, respectively. Each of the five merger
transactions qualifies for the pooling of interests method of accounting. As
such, the ratios of earnings to fixed charges presented above include the
effect of the mergers, except that the calculation presented above for
periods prior to January 1, 1997 does not include Inbrand due to
immateriality.
Prior to their respective mergers, AMP, US Surgical, Keystone and ADT had
December 31 year ends and Former Tyco had a June 30 fiscal year end. The
historical results upon which the ratios are based have been combined using
a December 31 year end for AMP, US Surgical, Former Tyco, Keystone and ADT
for the year ended December 31, 1996. For 1995, the ratio of earnings to
fixed charges reflects the combination of AMP, US Surgical, Keystone and ADT
with a December 31 year end and Former Tyco with a June 30 fiscal year end.
(2) Interest expense consists of interest on indebtedness and amortization of
debt expense.
(3) One-third of net rental expense is deemed representative of the interest
factor.
(4) Earnings for the years ended September 30, 1999 and 1998, the nine months
ended September 30, 1997 and the years ended December 31, 1996 and 1995
include merger, restructuring and other non-recurring charges of
$1,261.7 million (of which $78.9 million is included in cost of sales),
$256.9 million, $947.9 million, $344.1 million and $97.1 million,
respectively. Earnings also include
<PAGE>
charges for the impairment of long-lived assets of $335.0 million,
$148.4 million, $744.7 million and $8.2 million in the year ended
September 30, 1999, the nine months ended September 30, 1997 and the years
ended December 31, 1996 and 1995, respectively. The 1997 period also
includes a write-off of purchased in-process research and development of
$361.0 million. The 1995 period also includes a net loss on the disposal of
businesses of $34.4 million.
On a pro forma basis, the ratio of earnings to fixed charges excluding
merger, restructuring and other non-recurring charges, charges for the
impairment of long-lived assets, the write-off of purchased in-process
research and development and the net loss on the disposal of businesses
would have been 5.82x, 5.68x, 6.81x, 5.76x and 5.09x for the years ended
September 30, 1999 and 1998, the nine months ended September 30, 1997 and
the years ended December 31, 1996 and 1995, respectively.
(5) In September 1997, Tyco changed its fiscal year end from December 31 to
September 30. Accordingly, the nine-month transition period ended
September 30, 1997 is presented.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-4 of Tyco International Ltd. and Tyco International Group S.A. of our
report dated October 21, 1999, on our audits of the Consolidated Financial
Statements and the Consolidated Financial Statement Schedule of Tyco
International Ltd., as of September 30, 1999 and 1998 and for the years ended
September 30, 1999 and 1998, and the nine months ended September 30, 1997, which
report is included in Tyco's Form 10-K filed December 13, 1999. We also consent
to the reference to us under the heading "Experts" in such Registration
Statement.
/s/ PRICEWATERHOUSECOOPERS
Hamilton, Bermuda
December 17, 1999
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-4 of Tyco International Ltd. and Tyco International Group S.A. of our
report dated September 30, 1998 (relating to the consolidated statements of
operations, changes in stockholders' equity and cash flows of United States
Surgical Corporation and its subsidiaries for the nine month period ended
September 30, 1997 and the related financial statement schedule for the nine
month period ended September 30, 1997), which report is included in Tyco
International Ltd.'s Annual Report on Form 10-K filed December 13, 1999. We also
consent to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Stamford, Connecticut
December 17, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-4 of Tyco International Ltd.
and Tyco International Group S.A. of our report dated February 12, 1999 (except
with respect to the matter disclosed in Note 18-Merger with Tyco
International Ltd., as to which the date is April 2, 1999) on our audit of the
consolidated balance sheets of AMP Incorporated and subsidiaries as of
September 30, 1998, and the related consolidated statements of income,
shareholders' equity and cash flows for the year ended September 30, 1998 and
the nine months ended September 30, 1997, included in the Tyco
International Ltd. Form 10-K filed December 13, 1999, and to all references to
our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Philadelphia, Pennsylvania
December 17, 1999
