<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 29, 1999
REGISTRATION NOS. 333- AND 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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 GIBBONS BUILDING 6, AVENUE EMILE REUTER
10 QUEEN STREET, SUITE 301 SECOND FLOOR
HAMILTON HM11, BERMUDA L-2420 LUXEMBOURG
(441) 292-8674 (352) 46-43-40-1
(Address, including zip code, and telephone number, including (Address, including zip code, and telephone number, including
area code, of registrant principal executive offices) area code, of registrant 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 Gibbons Building, 10 Queen Street, Suite 301, Hamilton HM 11
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 the effective date of this Registration Statement.
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 PROPOSED
TITLE OF EACH CLASS AMOUNT 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>
5.875% Notes due 2004............................. $400,000,000 100% $400,000,000 $111,200
6.125% Notes due 2008............................. $400,000,000 100% $400,000,000 $111,200
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Total............................................. $800,000,000 100% $800,000,000 $222,400
</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 .000278.
------------------------------
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>
SUBJECT TO COMPLETION, DATED JANUARY 29, 1999
PROSPECTUS
$800,000,000
TYCO INTERNATIONAL GROUP S.A.
OFFER TO EXCHANGE
[LOGO]
UP TO $400,000,000 5.875% NOTES DUE 2004
FOR ANY AND ALL OUTSTANDING 5.875% NOTES DUE 2004
AND
UP TO $400,000,000 6.125% NOTES DUE 2008
FOR ANY AND ALL OUTSTANDING 6.125% NOTES DUE 2008
FULLY AND UNCONDITIONALLY GUARANTEED BY
TYCO INTERNATIONAL LTD.
Summary of the Exchange Offer
This prospectus (and accompanying Letter of Transmittal) relates to the
proposed offer by Tyco International Group S.A. (the "Company") to exchange up
to $400,000,000 aggregate principal amount of new 5.875% Notes due 2004 for any
and all of its outstanding 5.875% Notes due 2004 and up to $400,000,000
aggregate principal amount of new 6.125% Notes due 2008 for any and all of its
outstanding 6.125% Notes due 2008. The new Notes of each series, which are
referred to as the "Exchange Notes," will be freely transferable. The
outstanding Notes of each series, 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 [insert date],
1999, unless extended.
- All Restricted Notes that are tendered and not withdrawn will be
exchanged.
- 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 prospectus and any other required
documentation, to the Exchange Agent identified in this prospectus.
Alternatively, you may effect a tender of Restricted Notes by book-entry
transfer into the Exchange Agent's account. All deliveries are at the risk of
the holder. You can find detailed instructions concerning delivery in the
"Exchange Offer" section of this prospectus 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 PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE. THE COMPANY AND TYCO MAY AMEND OR SUPPLEMENT THIS PROSPECTUS
FROM TIME TO TIME BY FILING AMENDMENTS OR SUPPLEMENTS AS REQUIRED. YOU SHOULD
READ THIS ENTIRE PROSPECTUS (AND ACCOMPANYING LETTER OF TRANSMITTAL AND RELATED
DOCUMENTS) AND ANY AMENDMENTS OR SUPPLEMENTS CAREFULLY BEFORE MAKING YOUR
DECISION.
--------------------------
The date of this prospectus is , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Where You Can Find More Information........................................................................ 1
Forward Looking Information ............................................................................... 2
Tyco....................................................................................................... 3
The Company................................................................................................ 3
Current Developments....................................................................................... 3
Ratio of Earnings to Fixed Charges of Tyco................................................................. 6
Exchange Offer............................................................................................. 8
Description of the Notes and the Guarantees................................................................ 19
Enforcement of Civil Liabilities........................................................................... 36
Certain United States Federal Income and Luxembourg Tax Consequences....................................... 37
Plan of Distribution....................................................................................... 40
Legal Matters.............................................................................................. 40
Experts.................................................................................................... 41
</TABLE>
------------------------
<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 to be issued in the
Exchange Offer. As permitted by SEC rules, this prospectus 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 of 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 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/or Tyco that is not included in or delivered with this prospectus. The
information incorporated by reference is considered to be part of this
prospectus, 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 Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
prior to [ ], the date the Exchange Offer expires.
1. Tyco's Annual Report on Form 10-K and Form 10-K/A for the fiscal year
ended September 30, 1998, except for Part II, Items 6, 7, 7A and 8.
2. Tyco's Current Report on Form 8-K filed on December 10, 1998.
3. Tyco's Current Report on Form 8-K/A filed on December 11, 1998.
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 Gibbons Building
10 Queen Street
Hamilton HM11, Bermuda
(441) 292-8674
To obtain timely delivery of any copies of filings requested, please write
or telephone no later than [ ], 1999, ten days prior to the expiration
of the Exchange Offer.
You should rely only on the information provided or incorporated by
reference or provided in this prospectus. Neither the Company nor Tyco has
authorized anyone else to provide you with different information. You should not
assume that the information in this prospectus is accurate as of any date other
than the date on the front of this document.
1
<PAGE>
FORWARD-LOOKING INFORMATION
Certain statements contained or incorporated by reference in this prospectus
are "forward looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. All forward looking statements involve risks and
uncertainties. In particular, any statement contained in this prospectus or any
document incorporated by reference in the prospectus, 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 statement include,
among other things:
- overall economic and business conditions;
- the demand for the goods 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 respective customers and
suppliers to replace, modify or upgrade computer programs in order to
adequately address the Year 2000 issue.
2
<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 vehicle auctions and related
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.
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 Gibbons
Building, 10 Queen Street, Suite 301, Hamilton HM 11, Bermuda, and its telephone
number is (441) 292-8674. The executive offices of Tyco's principal United
States subsidiary, Tyco International (US) Inc., 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. Through its subsidiaries, the Company owns
substantially all of the assets, and engages in substantially all of the
businesses, owned or engaged in by Tyco.
CURRENT DEVELOPMENTS
TYCO RESULTS FOR QUARTER ENDED DECEMBER 31, 1998
On January 19, 1999, Tyco announced its results for the quarter ended
December 31, 1998 (the "fiscal 1999 first quarter"). For the fiscal 1999 first
quarter, (loss) income before extraordinary item was $(26.0) million, or $(0.04)
per share on a diluted basis, as compared to $255.8 million, or $0.41 per share,
for the quarter ended December 31, 1997. During the fiscal 1999 first quarter,
Tyco incurred an after-tax charge of $427.6 million for merger, restructuring
and other non-recurring charges primarily related to the US Surgical merger.
During the quarter ended December 31, 1997, Tyco recorded an after-tax charge of
$9.2 million related to restructuring actions taken by US Surgical prior to its
merger with Tyco. Diluted earnings per share before merger, restructuring and
other non-recurring charges and extraordinary item increased 42% to $0.61 per
share for the fiscal 1999 first quarter, compared to $0.43 per share for the
quarter ended December 31, 1997. Income before merger, restructuring and other
non-recurring charges and extraordinary item increased 52% to $401.6 million in
the fiscal 1999 first quarter, compared to $265.0 million in the quarter ended
December 31, 1997. Sales increased 28% to $3.82 billion in the fiscal 1999 first
quarter from $2.99 billion in the quarter ended December 31, 1997. Last year's
results have been restated to reflect the merger with US Surgical which was
accounted for as a pooling of interests.
The following segment discussion is before merger, restructuring and other
non-recurring charges and extraordinary item with last year's results restated
to reflect the merger with US Surgical. Quarterly
3
<PAGE>
earnings at Tyco's Healthcare and Specialty Products group increased 74% to
$273.8 million in the fiscal 1999 first quarter compared to $157.3 million in
the quarter ended December 31, 1997. Results for this group reflect lower costs
and higher operating margins. Earnings of Tyco's Fire and Security Services
group increased 40% to $205.4 million in the fiscal 1999 first quarter compared
to $146.3 million in the quarter ended December 31, 1997. Results for this group
reflect increased sales and higher operating margins. Earnings of Tyco's Flow
Control group increased 30% to $93.5 million in the fiscal 1999 first quarter
compared to $71.9 million in the quarter ended December 31, 1997. Results for
this group reflect higher volume and operating margins. Earnings of Tyco's
Electrical and Electronic Components group increased 33% to $95.0 million in the
fiscal 1999 first quarter compared to $71.6 million in the quarter ended
December 31, 1997. Results for this group reflect strong growth in the
operations of Tyco Submarine Systems Ltd. and Tyco's Printed Circuit Group. The
earnings of Tyco's four business groups are stated before deduction for general
corporate expenses, interest expense and taxes.
PENDING ACQUISITION OF AMP
On November 22, 1998, a subsidiary of Tyco entered into a definitive merger
agreement for the acquisition of AMP Incorporated. It is estimated that Tyco
will issue up to approximately 186.0 million common shares for delivery by its
subsidiary to the former shareholders of AMP in the merger. AMP designs,
manufactures and markets electronics, electrical and electrical and
electro-optic connection devices and associated application tools and machines.
AMP had annual revenues of approximately $5.5 billion in 1998. At December 31,
1998, AMP's total cash and cash equivalents was approximately $261 million, its
total debt was approximately $702 million (including long-term debt of
approximately $217 million) and its shareholders' equity was approximately $2.7
billion.
The acquisition of AMP, which will be accounted for as a pooling of
interests, has been structured so that AMP shareholders will receive for each of
their shares of AMP common stock a fraction of a Tyco common share valued
between $51.00 and $55.95. The fraction will be determined based on the average
of the daily weighted averages of the trading price of Tyco common shares on the
New York Stock Exchange or the 15 consecutive trading days ending four trading
days prior to the date of the special meeting of AMP shareholders to vote on the
merger. This average is referred to as the "Average Stock Price."
- If the Average Stock Price is equal to or greater than $67.00 but less
than or equal to $73.50, the exchange ratio will be 0.7612 Tyco common
shares for each share of AMP common stock, corresponding to a value of
between $51.00 (0.7612 X $67.00) and $55.95 (0.7612 X $73.50).
- If the Average Stock Price is greater that $73.50, the exchange ratio will
be reduced, so that the product of the exchange ratio and the Average
Stock Price is $55.95 (i.e., AMP shareholders will receive $55.95 in value
(based upon the Average Stock Price) of Tyco common shares for each share
of AMP common stock).
- If the Average Stock Price is equal to or greater than $60.00 but less
than $67.00, the exchange ratio will be increased, so that the product of
the exchange ratio and the Average Stock Price is $51.00 (i.e., AMP
shareholders will receive $51.00 in value (based upon the Average Stock
Price) of Tyco common shares for each share of AMP common stock).
- If the Average Stock Price is less than $60.00, the exchange ratio will be
increased, so that the product of the exchange ratio and the Average Stock
Price remains $51.00 (i.e., AMP shareholders will receive $51.00 in value
(based upon the Average Stock Price) of Tyco common share for each share
of AMP stock). In this case, Tyco may call off the merger unless AMP
agrees to an exchange ratio equal to 0.8500. If AMP so agrees, AMP
shareholders will receive Tyco shares with a value (based on the Average
Stock Price) of less than $51.00.
4
<PAGE>
Tyco has identified certain risks in connection with the AMP acquisition,
including:
- The benefits of Tyco and its shareholders of the merger are predicated on
the assumption that the merger will be accretive to Tyco's earnings per
share, but this will only be the case if Tyco can efficiently integrate
AMP with Tyco's existing operations. On a pro forma basis, which combines
the financial results of the two companies based upon their historical
performance, the merger is not accretive to earnings per share. Tyco
expects that the merger will be accretive if it can realize cost savings
and synergies through the combination of the two companies. In this
regard, Tyco's management believes that it can continue to implement and
enhance AMP's profit improvement plan, which involves staff reductions,
plant closings and consolidations and other cost cutting activities. Tyco
has in the past been successful in integrating prior acquisitions and
realizing anticipated earnings benefits. However, with facilities in 53
countries and approximately 48,500 employees worldwide, AMP is
substantially larger than the largest company previously integrated by
Tyco's management. It is possible that Tyco will not be able to integrate
AMP in a manner that achieves the desired savings and other benefits.
Also, it may take longer to achieve these savings and other benefits than
anticipated by Tyco's management. If so, Tyco's earnings-per-share
performance, which is driven in part by the success of its acquisitions,
is likely to suffer.
- The AMP acquisition could significantly increase the effects of the
downturn in Asia on Tyco. Historically, only 3% of Tyco's revenues were
attributable to Tyco's Asian operations, as opposed to 20% of AMP's
revenues. The effect of the downturn has been more pronounced on AMP
because of AMP's greater dependence on Asian business. Tyco cannot predict
how long the economic downturn in Asia will persist.
The consummation of the AMP transaction is contingent upon customary
regulatory review, approval by the AMP shareholders of the merger, approval by
the Tyco shareholders of the issuance of the Tyco common shares to be delivered
in connection with the merger and certain other conditions. There is no
assurance that the AMP acquisition will be consummated.
On January 28, 1999, AMP announced its results for its fourth quarter ended
December 31, 1998. For the quarter, net (loss)/income was $(79.0) million or
$(0.36) per share, as compared to $127.4 million, or $0.58 per share, for the
quarter ended December 31, 1997. During AMP's 1998 fourth quarter, the Company
incurred an after tax charge of $128.0 million for restructuring associated with
its profit improvement plan, primarily involving staff reductions and facility
consolidations, and one-time after tax charges of $26.0 million for fixed asset
writeoffs. In addition, AMP incurred certain non-operating expenses of $17.0
million, net of tax, associated with its defense against the AlliedSignal
unsolicited bid, and bank commitment fees of $15.0 million, net of tax, related
to the terminated self-tender offer. During the quarter ended December 31, 1997,
AMP recorded an after tax restructuring credit of $14.4 million due to an
adjustment to a restructuring charge recorded in 1996, as well as a one-time
after tax charge for the permanent impairment of investments of $17.2 million.
Diluted earnings per share, before restructuring and other one-time charges and
expenses was $0.49 per share for the quarter ended December 31, 1998, a 15%
decrease from $0.58 per share for the quarter ended December 31, 1997. However,
these earnings represent a 36% increase from the diluted earnings per share
before restructuring and other one time charges and expenses of $0.36 per share
reported in AMP's previous quarter ended September 30, 1998. The sequential
quarter to quarter improvement is the result of the positive impact of AMP's
profit improvement plan, particularly staff reductions made during the quarter.
Sales in the quarter ended December 31, 1998 decreased 3.8% in reported U.S.
dollars and 4.7% in local currencies from the comparable prior year quarter.
Sales increased in the quarter ended December 31, 1998 4.4% in U.S. dollars and
1.1% in local currencies over sales in the quarter ended September 30, 1998.
5
<PAGE>
For the year ended December 31, 1998, net income was $2.0 million or $.01
per share, as compared to $473.1 million, or $2.15 per share, for the year ended
December 31, 1997. During 1998, AMP incurred an after tax charge of $254.0
million for restructuring actions associated with its profit improvement plan,
primarily involving staff reductions and facility consolidations, and one-time
after tax charges of $39 million for fixed asset writeoffs and a litigation
reserve. In addition, AMP incurred certain non-operating expenses of $28.0
million, net of tax, associated with its defense against the AlliedSignal
unsolicited bid and bank commitment fees of $20.0 million, net of tax, related
to the terminated self-tender offer. During 1997, AMP recorded an after tax
restructuring credit of $14.4 million due to an adjustment to the restructuring
charge recorded in 1996, a one-time after tax charge for the permanent
impairment of investments of $17.2 million and a net after tax benefit of $15.4
million from the cumulative effect of accounting changes. Diluted earnings per
share before restructuring and other one-time charges and expenses and the
cumulative effect of accounting changes was $1.57 per share for the year ended
December 31, 1998, a 24% decrease from $2.08 per share for the year ended
December 31, 1997. Sales for the year ended December 31, 1998 decreased 4.6% in
reported U.S. dollars and 2.3% in local currencies from the prior year.
AMP is subject to the informational requirements of the Exchange Act, and in
accordance with the Exchange Act, files reports, proxy statements and other
information with the SEC. Tyco has filed a registration statement on Form S-4
with the SEC in respect of the AMP acquisition, which has not yet been declared
effective by the SEC.
SALE OF $1.2 BILLION OF NOTES BY THE COMPANY
On January 12, 1999, the Company consummated the public sale of $400 million
aggregate principal amount of its 6.125% Notes due 2009 and $800 million
aggregate principal amount of its 6.875% Notes due 2029. The net proceeds of
approximately $1.17 billion were used to repay borrowings under the Company's
$2.25 billion bank credit agreement. The borrowings under this facility were
used primarily to finance the cost of certain business acquisitions and to repay
borrowings under US Surgical's committed credit facilities.
RATIO OF EARNINGS TO FIXED CHARGES OF TYCO
The following table sets forth the ratio of earnings to fixed charges of
Tyco for the fiscal year ended September 30, 1998, the nine month transition
period ended September 30, 1997 and the years ended December 31, 1996, 1995 and
1994.
<TABLE>
<CAPTION>
NINE MONTHS YEAR ENDED
YEAR ENDED ENDED DECEMBER 31,
SEPTEMBER 30, SEPTEMBER 30, -------------------------------
1998(3) 1997(3) 1996 1995 1994
----------------- ------------------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges (1)(2).................. 4.96 (4) 1.29(4) 3.08 3.21
</TABLE>
- ------------------------
(1) For purposes of determining the ratio of earnings to fixed charges, earnings
consist of income (loss) before income taxes and extraordinary item, 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, a wholly-owned subsidiary of Tyco merged with Former Tyco.
On August 27, 1997, Tyco consummated a merger with INBRAND Corporation, on
August 29, 1997, Tyco consummated a merger with Keystone International, Inc.
and on October 1, 1998, Tyco consummated a merger with US Surgical. Each of
the four merger transactions qualifies for the pooling of interests method
of accounting. As such, the ratio of earnings to fixed charges for the year
ended September 30, 1998, the nine months ended September 30, 1997 and the
years ended December 31, 1996,
6
<PAGE>
1995 and 1994 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, ADT, Keystone and US Surgical had
calendar fiscal 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 calendar year end for ADT, Keystone, US Surgical and Former Tyco for the
year ended December 31, 1996. For 1995 and 1994, the ratio of earnings to
fixed charges reflects the combination of ADT, Keystone and US Surgical with
a calendar year end and Former Tyco with a June 30 fiscal year end.
(3) 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 and the year ended September 30, 1998 are presented.
(4) Earnings were insufficient to cover fixed charges by $489.6 million in the
nine months ended September 30, 1997.
Earnings for the nine months ended September 30, 1997 and the year ended
December 31, 1996 include merger, restructuring and other non-recurring
charges of $947.9 million and $246.1 million, respectively. Earnings also
include a charge for the impairment of long-lived assets of $148.4 million
and $744.7 million, respectively, in the 1997 and 1996 periods. The 1997
period also includes a write-off of purchased in-process research and
development of $361.0 million.
On a pro forma basis, the ratio of earnings to fixed charges excluding
merger, restructuring and other non-recurring charges, charge for the
impairment of long-lived assets and write-off of purchased in-process
research and development would have been 5.71x and 4.82x for the nine months
ended September 30, 1997 and year ended December 31, 1996, respectively.
7
<PAGE>
EXCHANGE OFFER
REASON FOR THE EXCHANGE OFFER
The Company initially sold the Restricted Notes in a private offering on
November 2, 1998 to Lehman Brothers Inc., J.P. Morgan Securities Inc., Credit
Suisse First Boston Corporation and Donaldson, Lufkin & Jenrette Securities
Corporation (the "Initial Purchasers") pursuant to a Purchase Agreement dated
October 28, 1998 among the Company, Tyco as guarantor, and the Initial
Purchasers. The Initial Purchasers subsequently resold or were permitted to
resell the Restricted Notes (i) to qualified institutional buyers in reliance
on, and subject to the restrictions imposed under, Rule 144A under the
Securities Act, (ii) to institutional accredited investors in reliance on, and
subject to the restrictions imposed under, Rule 501(a) under the Securities Act,
and (iii) 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 October 28, 1998, in which the Company
agreed, among other things:
- to file with the SEC on or before January 31, 1999, a registration
statement relating to an exchange offer for the Restricted Notes (the
"Exchange Offer Registration Statement");
- use its reasonable best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act on or before
April 1, 1999;
- 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 May 1, 1999.
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 (a "Shelf Registration Statement");
- 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 prospectus 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 the Restricted Notes will cease, and the interest rate for each
series of Restricted Notes will revert to its original rate.
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For a more complete understanding of your exchange and registration rights,
please refer to the Registration Rights Agreement, which is included as Exhibit
4.5 to the Registration Statement that relates to this prospectus.
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 issued in the Exchange
Offer in exchange for Restricted Notes without compliance with the registration
and prospectus delivery requirements of the Securities Act, unless the
noteholder
- is acquiring the Exchange Notes issued in the Exchange Offer 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); and
- 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.
A noteholder that is an "affiliate" of the Company or an Initial Purchaser
or has any arrangement or understanding with any person to participate in a
distribution of the Exchange Notes:
- 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."
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 of the corresponding series, 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.
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TERMS OF THE EXCHANGE OFFER
The Restricted Notes were issued in two series, 5.875% Notes due 2004 and
6.125% Notes due 2008.
As of the date of this prospectus, $400 million aggregate principal amount
of the 5.875% Notes and $400 million aggregate principal amount of the 6.125%
Notes are outstanding. In the Exchange Offer, Restricted Notes of each series
will be exchanged for Exchange Notes of the corresponding series.
Upon the terms and subject to the conditions set forth in this prospectus
and in the accompanying Letter 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 the Expiration Date (defined below in "Expiration Date; Extensions;
Amendments"). After authentication of the Exchange Notes by the Trustee 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 of the corresponding series 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 of each series are identical in all
material respects to the form and terms of the outstanding Restricted Notes of
the corresponding series, 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 ("DTC"), acting as a
depositary. The Exchange Notes will also be issuable and transferable in
book-entry form through DTC.
This prospectus, 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 , 1999. The Exchange Offer for each series 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 Exchange and 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.
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 for the tendering
holders of Restricted Notes for the purpose of receiving Exchange Notes from the
Company and 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 thereof as promptly as practicable after
the Expiration Date.
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 Letter of Transmittal, transfer taxes with
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respect to the exchange of Restricted Notes pursuant to the Exchange Offer. The
Company will pay all 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 term "Expiration Date" means , 1999, unless the Company, in
its sole discretion, extends the Exchange Offer, in which case the term
"Expiration Date" will mean the latest date to which the Exchange Offer is
extended. 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 (if permitted to be 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:
- to the extent permitted by applicable law, 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.
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 November
2, 1998. The Exchange Notes will bear interest at a rate of 5.875% or 6.125% per
annum, as applicable. Interest on the Exchange Notes will be payable
semi-annually on May 1 and November 1 of each year. Assuming that the Exchange
Offer is consummated prior to May 1, 1999, as anticipated, interest on the
Exchange Notes will first become payable beginning on May 1, 1999.
PROCEDURES FOR TENDERING
Each holder of Restricted Notes wishing to accept the Exchange Offer must
complete, sign and date the Letter of Transmittal, or a facsimile thereof, in
accordance with the instructions contained in this prospectus and in the Letter
of Transmittal. This holder should then mail or otherwise deliver such 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 prospectus and in the Letter of Transmittal. Holders
may also tender Restricted Notes pursuant to the procedures for
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book-entry transfer as provided for herein and in the Letter of Transmittal. To
be effective, a tender must be made prior to 5:00 p.m. New York City time on the
Expiration Date.
Only a holder of record of Restricted Notes may tender its Restricted Notes
in 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.
Any financial institution that is a participant in DTC's system may make
book-entry delivery of the Restricted Notes by causing DTC to transfer such
Restricted Notes into the Exchange Agent's account in accordance with DTC's
procedure for such transfer. Although delivery of Restricted Notes may be
effected through book-entry transfer into the Exchange Agent's account at DTC,
the Letter of Transmittal (or facsimile thereof), with any required signature
guarantees and any other required documents, must, in any case, be transmitted
to and received by the Exchange Agent at its address set forth under "Exchange
Agent" below prior to 5:00 p.m. New York City time on the Expiration Date.
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 appropriate 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 will include 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 prospectus in
connection with the resale of such 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 the Letter of Transmittal and
all other required documents 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
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hand delivery service. In all cases, sufficient time should be allowed to ensure
delivery to the Exchange Agent prior to the Expiration Date. No Letter of
Transmittal or Restricted Notes should be sent to the Company.
Signatures on a Letter of Transmittal or a notice of withdrawal (see
"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
- by a registered holder who has not completed the box entitled "Special
Registration Instructions" or the box entitled "Special Delivery
Instructions" on the Letter of Transmittal; or
- for the account of an Eligible Institution.
If the 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 thereof, in either case signed as the
name of the registered holder or holders appears on the Restricted Notes. If the
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 (including time of
receipt), 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
Letter 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 and as to which the defects
or irregularities have not been cured or waived by the Company will be returned
by the Exchange Agent to the tendering holder or other person specified in the
Letter of Transmittal as soon as practicable following the Expiration Date.
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 Date;
- 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 in
the open market, in privately negotiated transactions or otherwise.
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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 Prospectus 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 the Restricted
Notes so tendered will only be made after a timely confirmation of a book-entry
transfer of such Restricted Notes into the Exchange Agent's account, and timely
receipt by the Exchange Agent of an Agent's Message and any other documents
required by the Letter of Transmittal.
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
the 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.
Although delivery of Restricted Notes may be made into the Exchange Agent's
account at DTC, an appropriate Letter of Transmittal properly completed and duly
executed with any required signature guarantee, together with all other required
documents, must be transmitted to and received by the Exchange Agent at its
address set forth herein or in the Letter of Transmittal on or prior to 5:00
p.m. New York City time on the Expiration Date. If the guaranteed delivery
procedures described below are used, the Letter of Transmittal and any other
required documents must be delivered within the time period provided under such
procedures. Delivery of documents to DTC without such confirmation or compliance
does not constitute delivery to the Exchange Agent.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Restricted Notes and (i) whose Restricted
Notes are not immediately available, or (ii) who cannot deliver their Restricted
Notes, the Letter of Transmittal or any other required documents to the Exchange
Agent prior to 5:00 p.m., New York City time, on the Expiration Date, or (iii)
who cannot complete the procedure for book-entry transfer on a timely basis, may
effect a tender if:
- the tender is made through an Eligible Institution;
- prior to 5:00 p.m. New York City time on the Expiration Date, 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
- certificate(s) representing all tendered Restricted Notes in proper form
for transfer (or confirmation of a book-entry transfer into the Exchange
Agent's account at DTC of Restricted Notes delivered electronically),
together with a properly completed and executed Letter of Transmittal (or
facsimile thereof) and all other documents required by the Letter of
Transmittal are received by the Exchange Agent within three business days
after the Expiration Date.
A Notice of Guarantee Delivery must set forth the name and address of the
holder, the certificate number or numbers of such holder's Restricted Notes and
the principal amount of such Restricted Notes tendered; state that the tender is
being made thereby; and guarantee that, within three business days after the
Expiration Date, the Letter of Transmittal (or facsimile thereof), together with
the certificate(s) representing the Restricted Notes to be tendered in proper
form for transfer (or confirmation of a book-entry transfer into the Exchange
Agent's account at DTC of Restricted Notes delivered
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electronically) and any other documents required by the Letter of Transmittal,
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.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Restricted Notes may be
withdrawn at any time prior to 5:00 p.m. New York City time on the Expiration
Date by delivery of a written or facsimile transmission notice of withdrawal to
the Exchange Agent at its address set forth in this prospectus.
Any such notice of withdrawal must
- specify the name of the person having deposited the Restricted Notes to be
withdrawn (the "Depositor");
- 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 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 Depositor
withdrawing the tender; and
- specify the name in which any such Restricted Notes are to be registered,
if different from that of the Depositor.
All questions as to the validity, form and eligibility (including time of
receipt) 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 Date.
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 interpretations of the
SEC staff thereof;
- 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.
If the Company determines that it may terminate or amend the Exchange Offer
for any of the reasons set forth above, the Company may (i) to the extent
permitted by applicable law, delay acceptance of, or refuse to accept, any
Restricted Notes not previously tendered, (ii) refuse to accept any Restricted
Notes and return any Restricted Notes that have been tendered to the tendering
holders,
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(iii) extend the Exchange Offer and retain all Restricted Notes tendered prior
to the Expiration Date of the Exchange Offer, subject to the rights of the
holders of the tendered Restricted Notes to withdraw such Restricted Notes, or
(iv) waive such termination event with respect to the Exchange Offer and accept
the properly tendered Restricted Notes that have not been withdrawn. If the
Company determines that such waiver constitutes a material change in the
Exchange Offer, the Company will promptly disclose such change in a manner
reasonably calculated to inform the holders of such change and the Company will
extend the Exchange Offer to the extent required by law.
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
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. In such capacity, the Exchange Agent has no fiduciary duties to
noteholders and will be acting solely on the basis of directions of the Company.
Requests for assistance and requests for additional copies of this Prospectus 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
Delivery to an address or facsimile number other than those listed above
will not constitute a valid delivery.
SOLICITATION OF TENDERS; FEES AND EXPENSES
The principal solicitation pursuant to the Exchange Offer is being made by
mail. Additional solicitations may be made by officers and regular employees of
the Company and its affiliates in person, by telegraph, telephone or facsimile
transmission.
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
in connection therewith 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
Prospectus, Letters of Transmittal and related documents to the beneficial
owners of the Restricted Notes and in handling or forwarding tenders for
exchange.
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The Company will pay all expenses incurred in connection with the Exchange
Offer, including fees and expenses of the Exchange Agent and Trustee, accounting
and legal fees (including the expense of one counsel to the holders of the
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. For example, the tendering holder will pay transfer taxes, if:
- certificates representing Exchange Notes for principal amounts not
tendered or accepted for exchange are to be delivered to, or are to be
registered or issued in the name of, any person other than the registered
holder of the Restricted Notes tendered; or
- tendered Restricted Notes are registered in the name of any person other
than the person signing the Letter of Transmittal.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed by the Company directly to such 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 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. 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;
- 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 ("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
foreign persons in transactions complying with the provisions of
Regulation S under the Securities Act;
17
<PAGE>
- to an "accredited investor" within the meaning of Rule 501(a)(1), (2), (3)
or (7) under the Securities Act that is an institutional investor (an
"Institutional Accredited Investor") purchasing for its own account or for
the account of such an Institutional Accredited Investor, in each case in
a minimum principal amount of the Restricted Notes of $250,000; 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. In addition, such market-making
activity may be limited during the Exchange Offer.
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<PAGE>
DESCRIPTION OF THE NOTES AND THE GUARANTEES
Each of the Restricted Notes and their related Guarantees were issued and
the Exchange Notes and their related Guarantees will be issued under an
Indenture, dated as of June 9, 1998, as supplemented, in the case of the 5.875%
Notes due 2004, by Supplemental Indenture No. 5 thereto, and, in the case of the
6.125% Notes due 2008, by Supplemental Indenture No. 6 thereto, each dated as of
November 2, 1998 (as so supplemented, the "Indenture"), 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,"
"2004 Notes" refers to the series of both the Restricted Notes and the Exchange
Notes with the interest rate of 5.875% per annum and a maturity in 2004, and the
term "2008 Notes" refers to the series of both the Restricted Notes and the
Exchange Notes with the interest rate of 6.125% per annum and a maturity in
2008. The terms of the Restricted Notes and the Exchange Notes of the
corresponding series are identical, except that the Exchange Notes are not
subject to restrictions on transfer. The term "Notes" refers to and includes the
Restricted Notes and the Exchange Notes of both series. The Indenture is subject
to, and governed by, the Trust Indenture Act of 1939, as amended. The statements
made in this section relating to the Indenture and to the Notes and Guarantees
to be issued under the Indenture are summaries, do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all
provisions of the Indenture, the Notes and the Guarantees. Capitalized terms
used but not defined herein shall have the respective meanings set forth in the
Indenture.
GENERAL
Each of the 2004 Notes and the 2008 Notes are separate series of Notes under
the Indenture. The interest rate, aggregate principal amounts and maturity dates
of each series of Notes are as follows:
<TABLE>
<CAPTION>
2004 NOTES 2008 NOTES
-------------------- --------------------
<S> <C> <C>
Interest Rate.................................... 5.875% 6.125%
Aggregate Principal Amount....................... $400 million $400 million
Maturity Date.................................... November 1, 2004 November 1, 2008
</TABLE>
Interest is payable semiannually on May 1 and November 1 of each year,
commencing May 1, 1999, to the persons in whose names such Notes are registered
at the close of business on April 15 or October 15 (whether or not a Business
Day), as the case may be, immediately preceding such interest payment date.
Interest on the Notes accrues from November 2, 1998.
The Trustee is initially acting as Paying Agent and Registrar as well as
Exchange Agent for purposes of the Exchange Offer. The Notes of each series 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 each
series of 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
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<PAGE>
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. 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.
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 prospectus,
$3.95 billion of debt securities in eight 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 Notes) are as follows:
<TABLE>
<CAPTION>
DEALER
REMARKETABLE
SECURITIES (SM)
2001 NOTES 2005 NOTES 2009 NOTES 2028 NOTES 2029 NOTES ("DRS.(SM)")*
------------ ------------ --------------- ------------ --------------- ------------------
<S> <C> <C> <C> <C> <C> <C>
Interest Rate......... 6% 6% 6.125% 7% 6.875% 6 1/4%
Aggregate Principal
Amount.............. $750 million $750 million $400 million $500 million $800 million $750 million
June 15, June 15, January 15, June 15, January 15,
Maturity Date......... 2001 2005 2005 2028 2029 June 15, 2013
</TABLE>
- ------------------------
* Dealer remarketable securities(SM)" and ("Drs.(SM)") are service marks of
J.P. Morgan Securities Inc.
GUARANTEES
Tyco unconditionally guarantees the due and punctual payment of the
principal of, premium, if any, and interest and any Additional Amounts (as
defined below under "Payment of Additional Amounts"), if any, on the Notes of
each series when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise. The 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 the 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 (collectively with
Tyco, the "Guarantors") may execute and deliver additional Guarantees.
The obligations of Tyco and any other Guarantor, if any, under their
respective Guarantees are limited to the maximum amount which, after giving
effect to any collections from or payments made by or on behalf of any other
Guarantors in respect of the obligations of such other Guarantors under their
respective Guarantees or pursuant to their contribution obligations under the
Indenture, will result in the obligations of such Guarantors under their
Guarantees not constituting a fraudulent conveyance or fraudulent transfer under
applicable law. Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor to the
extent permitted by applicable law.
REDEMPTION
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
1. 100% of their principal amount, and
2. the sum of the present values of the remaining scheduled payments of
principal and interest that the Company has not yet made on the Notes, not
including any portion of such payments of
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<PAGE>
interest accrued as of the date of redemption, discounted to the redemption
date on a semiannual basis, assuming a 360-day year consisting of twelve
30-day months, at the Adjusted Redemption Treasury Rate, defined below, plus
15 basis points in the case of the 2004 Notes or 25 basis points in the case
of the 2008 Notes plus, in each case, accrued interest to the date of
redemption.
The Company must provide the holders of Notes to be redeemed with a notice of
redemption at least 30 and not more than 60 days before the redemption date. See
"Notice of Redemption" below.
"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, with respect to each Note to
be redeemed, the United States Treasury security selected by the Quotation Agent
as having a maturity comparable to the remaining term of such Note 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 Note.
"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 such of Lehman Brothers Inc.
and four other primary U.S. Government securities dealers in New York City (a
"Primary Treasury Dealer") 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 any
series if the following occurs:
1. After the date that the Notes to be redeemed were issued, there is a
change in the laws or regulations of Luxembourg or any of its political
subdivisions or taxing authorities, or any change in the application or
official interpretation of such laws or regulations.
2. As a result of this change, the Company 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.
3. The obligation to pay Additional Amounts cannot be avoided through
the Company's reasonable measures.
4. The Company delivers to the Trustee
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<PAGE>
- a certificate signed by two directors of the Company stating that the
obligation to pay Additional Amounts cannot be avoided by the Company
taking reasonable measures available to it and
- a written opinion of independent legal counsel to the Company of
recognized standing to the effect that the Company 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 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 redemptions of
Notes and redemptions of Notes upon changes in Luxembourg withholding taxes
described above.
The Company must deliver by first-class mail, postage prepaid, to the
holders 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 of such series are surrendered to
the Trustee
- that interest accrued to the date of redemption will be paid as specified
in the notice
- that after the redemption date, and unless the Company defaults in the
payment of the redemption price, interest will stop accruing on the Notes
of such series or portions thereof to be redeemed.
At least one Business Day prior to the redemption date specified in the notice
of redemption given, 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 so called for redemption. If less than all the Notes of a
series are to be redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair, Notes of such series to be redeemed. Unless the
Company defaults on the redemption payments, on and after the redemption date
specified in the notice of redemption:
- interest on the Notes or portions of Notes so called for redemption shall
cease to accrue, and
- the holders thereof shall 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 law, neither the Company nor Tyco
will deduct or withhold from payments made with respect to either series of
Notes and the 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 Luxembourg taxing authority ("Taxes"). In the
event that the Company or Tyco is required to withhold or deduct on account of
any Taxes from any payment
22
<PAGE>
made under or with respect to any Notes or the Guarantees, as the case may be,
the Company or Tyco, as the case may be, will pay such additional amounts
("Additional Amounts") so that the net amount received by each holder of Notes,
including Additional Amounts, will equal the amount that such holder would have
received if such Taxes had not been required to be withheld or deducted.
Additional Amounts will not be payable with respect to a payment made to a
holder of Notes to the extent:
(a) 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
Luxembourg 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, the Guarantees or the
Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or personal
property Taxes imposed with respect to such Notes, except as otherwise
provided in the Indenture;
(c) 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
(d) 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 (x) the making of
such declaration or claim is required or imposed by statute, treaty,
regulation, ruling or administrative practice of the relevant Luxembourg
taxing authority as a precondition to an exemption from, or reduction in,
the relevant Taxes, and (y) at least 60 days prior to the first payment date
with respect to which the Company or Tyco shall apply this clause (d), the
Company or Tyco shall have notified all holders of Notes in writing that
they shall be required to provide such declaration or claim.
The Company and Tyco, as applicable, will also:
- withhold or deduct the Taxes as required
- remit the full amount of Taxes deducted or withheld to the relevant
Luxembourg taxing authority in accordance with all applicable laws
- use their reasonable best efforts to obtain from each Luxembourg taxing
authority imposing such Taxes certified copies of tax receipts evidencing
the payment of any Taxes deducted or withheld
- upon request, make available to the holders of the 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 or Tyco or if, notwithstanding the Company's
or Tyco's efforts to obtain such receipts, the same are not obtainable,
other evidence of such payments by the Company or Tyco.
At least 30 days prior to each date on which any payment under or with
respect to a series of Notes is due and payable, if the Company or Tyco will be
obligated to pay Additional Amounts with respect to such payment, the Company or
Tyco 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 such 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 or Tyco, 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.
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<PAGE>
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 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 of either series, the Guarantees and 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 mention of the payment of Additional Amounts
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
BOOK-ENTRY, DELIVERY AND FORM
THE GLOBAL NOTES
The certificates representing the Restricted Notes were issued, and the
certificates representing the Exchange Notes will be issued, in fully registered
form, without coupons. The Restricted Notes are represented by one or more
permanent global certificates in definitive, fully registered form without
interest coupons (collectively, the "Initial Global Notes"). 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 (collectively, the "Global Notes") and
- will be deposited with, or on behalf of, DTC, and registered in the name
of Cede & Co., as DTC's nominee,
- will remain in the custody of the Trustee pursuant to a FAST Balance
Certificate Agreement between DTC and the Trustee, or
- will be deposited with, or on behalf of, a custodian of DTC for credit to
the respective accounts of the purchasers (or to such accounts as they may
direct) at Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("Euroclear"), or Cedel Bank, societe
anonyme ("Cedel").
If any holder of Restricted Notes whose interest in such Restricted Notes is
represented by the Initial Global Notes fails to tender in the Exchange Offer,
the Company may issue and deliver to such holder a separate certificate
representing such holder's Restricted Notes in registered form without interest
coupons.
CERTAIN BOOK-ENTRY PROCEDURES FOR THE GLOBAL NOTES
The descriptions of the operations and procedures of DTC, Euroclear and
Cedel set forth below 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 change by them from time to time. The
Company takes no responsibility for these operations or procedures, and
investors are urged to contact the relevant system or its participants directly
to discuss these matters.
DTC has advised the Company that it is:
- a limited purpose trust company organized under the laws of the State of
New York,
- a "banking organization" within the meaning of the New York Banking Law,
- a member of the Federal Reserve System,
- a "clearing corporation" within the meaning of the Uniform Commercial
Code, as amended, and
- a "clearing agency" registered pursuant to Section 17A of the Exchange
Act.
DTC was created to hold securities for its participants (collectively, the
"Participants") and facilitates the clearance and settlement of securities
transactions between Participants through electronic book-entry changes to the
accounts of its Participants, thereby eliminating the need for physical transfer
and delivery of certificates. DTC's Participants include securities brokers and
dealers (which may
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<PAGE>
include the Initial Purchasers), banks and trust companies, clearing
corporations and certain other organizations. Indirect access to DTC's system is
also available to other entities such as banks, brokers, dealers and trust
companies (collectively, the "Indirect Participants") that clear through or
maintain a custodial relationship with a Participant, either directly or
indirectly. Investors who are not Participants may beneficially own securities
held by or on behalf of DTC only through Participants or Indirect Participants.
The Company expects that pursuant to procedures established by DTC:
1. upon the deposit of the Global Note, DTC will credit the accounts of
Participants with an interest in the Global Note and
2. 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 Participants) and the records of
Participants and the Indirect Participants (with respect to the interests of
persons other than Participants).
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 a Global Note 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 Participants, 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
thereunder. 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 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 the
Participants to take such action and the Participants would authorize holders
owning through such 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.
Payments with respect to the principal of, and premium, if any, and interest
on, any Exchange Notes represented by a Global Note registered in the name of
DTC or its nominee on the applicable record date will be payable by the Trustee
to or at the direction of DTC or its nominee in its capacity as the registered
holder of the Global Note representing such Exchange Notes under the Indenture.
Under the terms of the Indenture, the Company 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 payment thereon
and for any and all other purposes whatsoever. Accordingly, neither the Company
nor 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
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<PAGE>
interest). Payments by the Participants and the 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 the Indirect Participants and DTC.
Transfers between Participants in DTC will be effected in accordance with
DTC's procedures, and will be settled in same-day funds. Transfers between
participants in Euroclear or Cedel will be effected in the ordinary way in
accordance with their respective rules and operating procedures.
Cross-market transfers of Exchange Notes between the Participants in DTC, on
the one hand, and Euroclear or Cedel participants, on the other hand, will be
effected through DTC in accordance with DTC's rules on behalf of Euroclear or
Cedel, as the case may be, by its respective depositary. However, such
cross-market transactions will require delivery of instructions to Euroclear or
Cedel, 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 Cedel, 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 relevant Global Notes in DTC, and making or
receiving payment in accordance with normal procedures for same-day funds
settlement applicable to DTC. Euroclear participants and Cedel participants may
not deliver instructions directly to the depositaries for Euroclear or Cedel.
Because of time zone differences, the securities account of a Euroclear or
Cedel participant purchasing an interest in a Global Note from a Participant in
DTC will be credited, and any such crediting will be reported to the relevant
Euroclear or Cedel participant, during the securities settlement processing day
(which must be a business day for Euroclear and Cedel) immediately following the
settlement date of DTC. Cash received in Euroclear or Cedel as a result of sales
of interest in a Global Note by or through a Euroclear or Cedel participant to a
Participant in DTC will be received with value on the settlement date of DTC but
will be available in the relevant Euroclear or Cedel cash account only as of the
business day for Euroclear or Cedel following DTC's settlement date.
Although DTC, Euroclear and Cedel have agreed to the foregoing procedures to
facilitate transfers of interests in the Global Notes among participants in DTC,
Euroclear and Cedel, they are under no obligation to perform or to continue to
perform such procedures, and such procedures may be discontinued at any time.
Neither the Company nor the Trustee will have any responsibility for the
performance by DTC, Euroclear or Cedel or their respective participants or
indirect participants of their respective obligations under the rules and
procedures governing their operations.
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 be registered as a
clearing agency under the Exchange Act and a successor depositary is not
appointed within 90 days of such notice or cessation,
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, or
3. upon the occurrence of certain other events as provided in the
Indenture, then,
upon surrender by DTC of the Global Notes, Certificated Exchange Notes will be
issued to each person that DTC identifies as the beneficial owner of the
Exchange Notes represented by the Global Notes. 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.
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Neither the Company nor the Trustee shall be liable for any delay by DTC or
any Participant or Indirect Participant in identifying the beneficial owners of
the related Exchange Notes and each such person 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.
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
- 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 such debt securities), 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:
(a) liens that exist when the applicable debt securities are issued;
(b) 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,
- such Person is merged into the Company or a Subsidiary or
- at the time the Company or a Restricted Subsidiary purchases, leases or
other acquires as an entirety or substantially as an entirety the
assets of such Person;
(c) 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 Principal Property, or
- to secure Indebtedness incurred for the purpose of the financing of all
or any part of improvements or construction on such Principal Property,
which Indebtedness in each case is incurred before, at the time of, or
within one year after the acquisition of such Principal 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);
(d) liens that secure Indebtedness owed by any Restricted Subsidiary to
the Company, Tyco or a Subsidiary or by the Company to Tyco;
(e) liens in favor of any country or state, or political subdivision
thereof,
- to secure payments pursuant to any contract, statute, rule or
regulation or
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- 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;
(f) 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,
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;
(g) certain liens in connection with legal proceedings, as provided in
the Indenture;
(h) 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;
(i) 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;
(j) liens not permitted by the foregoing clauses (a) to (i), 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 (a) through (i), inclusive,
together with the Attributable Debt in respect of Sale and Lease-Back
Transactions permitted by paragraph (a) 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
(k) any total or partial extension, renewal or replacement of any lien
permitted pursuant to exceptions (a) through (j), inclusive, except that the
principal amount of Indebtedness secured by such extension, renewal or
replacement, unless otherwise excepted under clauses (a) through (j), 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 (a) 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 (b) 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
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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).
LIMITATION ON INDEBTEDNESS OF SUBSIDIARIES
(a) The Company will not cause or permit any Subsidiary (which is not a
Guarantor), 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.
(b) Notwithstanding the foregoing, any Guarantee by a Subsidiary 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
1. 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,
2. the payment in full of all obligations under the Indebtedness giving
rise to such Guarantee or
3. with respect to Indebtedness described in clause 1. above
constituting guarantees, 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), at such time as (A) no
other Indebtedness (other than Permitted Subsidiary Indebtedness) has been
guaranteed by such Subsidiary, as the case may be, or (B) the holders of all
such 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).
(c) 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 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
1. existing at the time such Person becomes a Restricted Subsidiary or
2. 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.
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"Affiliate" means, with respect to any specified Person:
1. any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person;
2. 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
3. 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 semi-annually) 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.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights in or other equivalents (however designated) of such
Person's capital stock, other equity interests whether now outstanding or issued
after the date of the Indenture, partnership interests (whether general or
limited), any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person and any rights (other than debt securities convertible into
Capital Stock), warrants or options exchangeable for or convertible into such
Capital Stock.
"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.
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"Guarantee" means the unconditional and unsubordinated guarantee by Tyco or
any Guarantor of the due and punctual payment of the principal of and interest
on any series of Notes or any other debt securities issued under the Indenture
(including premium and Additional Amounts, if any) when and as the same shall
become due and payable, whether at the stated maturity, by acceleration, call
for redemption or otherwise, in accordance with the terms of such Notes or other
debt securities and the Indenture.
"Guarantor" means Tyco or any Subsidiary that after the date of the
Indenture executes a guarantee of each series of Notes and of all other debt
securities issued under the Indenture contemplated by the "Limitation on
Indebtedness of Subsidiaries" covenant, until a successor replaces such party
pursuant to the applicable provisions of the Indenture and, thereafter, shall
mean such successor.
"Indebtedness" means, without duplication, the principal or face amount of:
1. all obligations for borrowed money;
2. all obligations evidenced by debentures, notes or other similar
instruments;
3. all obligations in respect of letters of credit or bankers
acceptances or similar instruments (or reimbursement obligations with
respect thereto);
4. all obligations to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business;
5. all obligations as lessee which are capitalized in accordance with
United States generally accepted accounting principles; and
6. all Indebtedness of others guaranteed by the Company or any of its
Subsidiaries or for which the Company or any of its Subsidiaries is legally
responsible or liable (whether by agreement to purchase indebtedness of, or
to supply funds or to invest in, others).
"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;
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;
6. Acquired Indebtedness that by its terms is not callable or redeemable
prior to its stated maturity and that remains outstanding following such
time as the Subsidiary 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 (c) of the "Limitation on Indebtedness of Subsidiaries"
covenant;
7. Indebtedness outstanding on the date of the Indenture; and
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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.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"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 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 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.
"Subsidiary" means any corporation of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Company or by one or more Subsidiaries or by the Company and
one or more Subsidiaries.
"Voting Stock" of a Person means Capital Stock of such Person of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
MERGER, CONSOLIDATION, SALE OR CONVEYANCE
The Indenture provides that unless otherwise provided in any supplemental
indenture, neither the Company, Tyco nor any other Guarantor will merge or
consolidate with any other corporation and 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,
- 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 in either case, immediately after such merger, consolidation, sale or
conveyance, the Company, Tyco or such other Guarantor, as the case may be, such
Person or such successor corporation 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 (b) of the
"Limitation on Indebtedness of Subsidiaries" covenant.
EVENTS OF DEFAULT
An Event of Default with respect to a series of Notes is defined in the
Indenture as being:
- default for 30 days in payment of any interest on any Notes of such
series;
- default in any payment of principal of or premium, if any, on any Notes of
such series (including any sinking fund payment);
- 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;
- 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;
- any Guarantee 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
- 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 any 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 any 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 payment of principal of,
premium, if any, or interest on any series of Notes or due to 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 shall have occurred and
be continuing, either the Trustee or the holders of not less than 25% in
principal amount of the Notes of
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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, or due to 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 to
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 and then outstanding (treated as
one class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately.
Upon certain conditions, 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 of such series, 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
- 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 this
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
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Additional Amounts, if any, on such Notes. However, the Company may not thereby
avoid its duty to register the transfer or exchange of such series of Notes, to
replace any mutilated, destroyed, lost or stolen Notes of such series or to
maintain an office or agency in respect of such series of Notes.
In the case of any series of Notes in respect of which the exact amounts of
principal of and interest due on such 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 duty to register the transfer or exchange of such series of Notes, to
replace any mutilated, destroyed, lost, or stolen Notes of such series or to
maintain an office or agency in respect of such series of Notes; 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 of, premium, if any, and interest and
Additional Amounts, if any, on all outstanding Notes of the relevant series
on the dates such installments of principal, premium, if any, and interest
are due;
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 United
States federal income tax purpose as a result of such deposit and
defeasance or covenant defeasance, as applicable, and will be subject to
United States 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
(in the case of defeasance, such opinion must be based on a ruling of the
Internal Revenue Service or a change in United States federal income tax
law occurring after the date of the Indenture); and
(B) an opinion of counsel to the effect that (x) 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 (y) 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.
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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
principal amount of the debt securities issued under the Indenture at the time
outstanding of all series affected (voting as one class), to modify the
Indenture or any supplemental indenture or the rights of the holders of the debt
securities, including the Notes. 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 reduce the
amount of any original issue discount security payable upon acceleration or
provable in bankruptcy or impair or affect the right of any holder of the
Notes to institute suit for the payment thereof without the consent of the
holder of each of the Notes so affected or
2. reduce the aforesaid percentage in principal amount of Notes, the
consent of the holders of which is required for any such modification,
without the consent of the holders of all Notes then outstanding.
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 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 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 substantially all of
the assets of the Company. Substantially all 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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<PAGE>
CERTAIN UNITED STATES FEDERAL INCOME AND LUXEMBOURG TAX CONSEQUENCES
The following discussion is intended to be a general summary of Luxembourg
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, disposition and exchange 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 issuance of the Notes.
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
Internal Revenue Code of 1986, as amended (the "Code"), 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 herein, 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 Treasury regulations),
- 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 United States 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.
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<PAGE>
As used herein, 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 (including any Additional
Amounts paid in respect of withholding taxes) 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. Such interest
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 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 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
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<PAGE>
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, appreciation, in the case of a gift, 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 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. 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.
39
<PAGE>
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 prospectus, 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 of market-making activities or other
trading activities. The Company has agreed that, starting on the date of this
prospectus and ending on the close of business on the earlier to occur of (i)
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 (ii) the date 180 days after the consummation of the
Exchange Offer, it will make this prospectus, as amended or supplemented,
available to any broker-dealer in connection with any such resale. In addition,
until [ ], 1999 [90 days after the date of this prospectus], all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus.
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 purchaser 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 on the close of
business on the earlier to occur and (i) 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 (ii)
the date 180 days after the consummation of the Exchange Offer, the Company will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the Letter or Transmittal. 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 the Guarantees have been
passed upon for Tyco and the Company 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 72,090
common shares of Tyco. Certain matters under the laws of Bermuda related to the
Guarantees of Tyco will be passed upon for Tyco by Appleby, Spurling & Kempe,
Hamilton, Bermuda, Bermuda counsel to Tyco. Certain matters under the laws of
Luxembourg related to the Notes will be passed upon by Beghin Nothar Feider
Loeff Claeys Verbeke, Luxembourg counsel to the Company. Kramer Levin Naftalis
and Frankel LLP have relied on Appleby, Spurling & Kempe with
40
<PAGE>
respect to matters of Bermuda law and on Beghin Nothar 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, 1998 and 1997 and for the year ended September 30,
1998, the nine months ended September 30, 1997 and the year ended December 31,
1996 included in Tyco's Current Report on Form 8-K filed on December 10, 1998
and incorporated by reference in this prospectus give retroactive effect to the
merger between Tyco International Ltd. and United States Surgical Corporation
and 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 Arthur Andersen LLP and Deloitte & Touche
LLP. The consolidated financial statements and consolidated financial statement
schedule referred to above have been incorporated herein in reliance upon said
reports given upon the authority of such firms as experts in accounting and
auditing.
41
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR OTHER PERSON TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE EXCHANGE OFFER MADE BY THIS PROSPECTUS AND YOU MUST NOT RELY
ON ANY SUCH INFORMATION OR REPRESENTATIONS AS HAVING BEEN AUTHORIZED BY THE
COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NORE ANY SALE MADE HEREUNDER
WILL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE AS OF WHICH INFORMATION IS
GIVEN IN THIS PROSPECTUS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
SOLICITATION.
---------------------
Dealer Prospectus Delivery Obligation
Until , 1999 [90 days after the date of this prospectus], all
broker dealers that effect transactions in the Exchange Notes, whether or not
participating in the Exchange Offer, may be required to deliver a prospectus.
This is in addition to the broker-dealers' obligation to deliver a prospectus
when acting as underwriters and with respect to any unsold allotments or
subscriptions.
$800,000,000
TYCO INTERNATIONAL
GROUP S.A.
OFFER TO EXCHANGE
UP TO $400,000,000
5.875% NOTES DUE 2004
FOR ANY AND ALL OUTSTANDING
5.875% NOTES DUE 2004
AND
UP TO $400,000,000
6.125% NOTES DUE 2008
FOR ANY AND ALL OUTSTANDING
6.125% NOTES DUE 2008
FULLY AND UNCONDITIONALLY GUARANTEED BY
[LOGO]
---------------------
PROSPECTUS
---------------------
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<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 $75 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> <S>
3.1 --Memorandum of Association of Tyco (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 (previously filed as Exhibit 3.3 to the Registrants' Form S-3 (File Nos.
333-50855 and 333-50855-01))
3.4 --Articles of Association of the Company (previously filed as Exhibit 3.4 to the Registrants' Form
S-3 (File Nos. 333-50855 and 333-50855-01))
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. 5 with respect to the 5.875% Notes due 2004
4.3 --Supplemental Indenture No. 6 with respect to the 6.125% Notes due 2008
4.4 --Purchase Agreement, dated October 28, 1998, among the Company, Tyco as guarantor, and Lehman
Brothers Inc., J.P. Morgan Securities Inc., Credit Suisse First Boston Corporation and Donaldson,
Lufkin & Jenrette Securities Corporation
4.5 --Registration Rights Agreement, dated as of November 2, 1998, among the Company, Tyco as
guarantor, and Lehman Brothers Inc., J.P. Morgan Securities Inc., Credit Suisse First Boston
Corporation and Donaldson, Lufkin & Jenrette Securities Corporation
5.1 --Opinion of Appleby, Spurling & Kempe*
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------------- ---------------------------------------------------------------------------------------------------
<C> <S>
5.2 --Opinion of Beghin Nothar 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 Arthur Andersen LLP
23.3 --Consent of Deloitte & Touche LLP
24 --Powers of Attorney (contained on 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 Letters of Transmittal
99.2 --Form of Notices 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 in 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) That, for purposes of determining any liability under the Securities
Act of 1933, 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.
II-2
<PAGE>
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities and Exchange
Act of 1934) 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and its, 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 Act and will be governed by the final adjudication of
such issue.
(d) The undersigned Registrant hereby undertakes to respond to requests for
information that it 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.
(e) 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 that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 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 29th day of
January, 1999.
<TABLE>
<S> <C> <C>
TYCO INTERNATIONAL LTD.
By: /s/ MARK H. SWARTZ
--------------------------------------------
Mark H. Swartz
EXECUTIVE VICE PRESIDENT--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) which incorporates 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 January 29,
1999 in the capacities indicated below.
SIGNATURE TITLE
- ------------------------------ ---------------------------
Chairman of the Board,
/s/ L. DENNIS KOZLOWSKI President, Chief
- ------------------------------ Executive Officer and
L. Dennis Kozlowski Director (Principal
Executive Officer)
/s/ MICHAEL A. ASHCROFT Director
- ------------------------------
Michael A. Ashcroft
/s/ JOSHUA M. BERMAN Director
- ------------------------------
Joshua M. Berman
/s/ RICHARD S. BODMAN Director
- ------------------------------
Richard S. Bodman
/s/ JOHN F. FORT Director
- ------------------------------
John F. Fort
II-4
<PAGE>
SIGNATURE TITLE
- ------------------------------ ---------------------------
/s/ STEPHEN W. FOSS Director
- ------------------------------
Stephen W. Foss
/s/ RICHARD A. GILLELAND Director
- ------------------------------
Richard A. Gilleland
/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
Executive Vice President
/s/ MARK H. SWARTZ and Chief Financial
- ------------------------------ Officer (Principal
Mark H. Swartz Financial and Accounting
Officer)
/s/ FRANK E. WALSH, JR. Director
- ------------------------------
Frank E. Walsh, Jr.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Luxembourg, on the 29th day of January, 1999.
TYCO INTERNATIONAL GROUP S.A.
BY: /S/ RICHARD W. BRANN
-----------------------------------------
Richard W. Brann
MANAGING DIRECTOR
(PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER)
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), 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 January 29,
1999 in the capacities indicated below.
SIGNATURE TITLE
- ------------------------------ ---------------------------
/s/ PHILIPPE BEOT Director
- ------------------------------
Philippe Beot
/s/ RICHARD W. BRANN Managing Director
- ------------------------------
Richard W. Brann
/s/ ERIK D. LAZAR Managing Director
- ------------------------------
Erik D. Lazar
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE NUMBER
- ----------- ------------------------------------------------------------------------------------------ -----------------
<C> <S> <C>
3.1 --Memorandum of Association of Tyco (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 (previously filed as Exhibit 3.3 to the Registrants' Form S-3 (File
Nos. 333-50855 and 333-50855-01)).......................................................
3.4 --Articles of Association of the Company (previously filed as Exhibit 3.4 to the
Registrants' Form S-3 (File Nos. 333-50855 and 333-50855-01))...........................
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. 5 with respect to the 5.875% Notes due 2004..................
4.3 --Supplemental Indenture No. 6 with respect to the 6.125% Notes due 2008..................
4.4 --Purchase Agreement, dated October 28, 1998, among the Company, Tyco as guarantor, and
Lehman Brothers Inc., J.P. Morgan Securities Inc., Credit Suisse First Boston
Corporation and Donaldson, Lufkin & Jenrette Securities Corporation.....................
4.5 --Registration Rights Agreement, dated as of November 2, 1998, among the Company, Tyco as
guarantor, and Lehman Brothers Inc., J.P. Morgan Securities Inc., Credit Suisse First
Boston Corporation and Donaldson, Lufkin & Jenrette Securities Corporation..............
5.1 --Opinion of Appleby, Spurling & Kempe*...................................................
5.2 --Opinion of Beghin Nothar 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 Arthur Andersen LLP..........................................................
23.3 --Consent of Deloitte & Touche LLP........................................................
24 --Powers of Attorney (contained on 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 Letters of Transmittal..........................................................
99.2 --Form of Notices of Guaranteed Delivery..................................................
</TABLE>
- ------------------------
* To be filed by amendment.
<PAGE>
Exhibit 4.2
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE NO. 5
$400,000,000
5.875% Notes due 2004
THIS SUPPLEMENTAL INDENTURE NO. 5, dated as of November 2, 1998, among
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Company"), TYCO
INTERNATIONAL LTD., a Bermuda company ("Tyco"), and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company and Tyco have heretofore executed and delivered to
the Trustee an Indenture, dated as of June 9, 1998 (the "Indenture"), providing
for the issuance from time to time of one or more series of the Company's
Securities;
WHEREAS, Article Seven of the Indenture provides for various matters
with respect to any series of Securities issued under the Indenture to be
established in an indenture supplemental to the Indenture; and
WHEREAS, Section 7.1(e) of the Indenture provides that the Company,
Tyco and the Trustee may enter into an indenture supplemental to the Indenture
to establish the form or terms of Securities of any series as permitted by
Sections 2.1 and 2.4 of the Indenture.
NOW THEREFORE: In consideration of the premises and the issuance of the
series of Securities provided for herein, the Company, Tyco and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders of the Securities of such series as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 RELATION TO INDENTURE. This Supplemental Indenture No. 5
constitutes an integral part of the Indenture.
SECTION 1.2 DEFINITIONS. For all purposes of this Supplemental
Indenture No. 5, the following terms shall have the respective meanings set
forth below:
"ADJUSTED REDEMPTION TREASURY RATE" means, with respect to any
<PAGE>
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.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules
and procedures of the Depositary, Euroclear or Cedel, as the case may
be, that apply to such transfer or exchange.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which banking institutions in The City of New York are
authorized or obligated by law, executive order or governmental decree
to be closed.
"CEDEL" means Cedel Bank, SA.
"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 will
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, (i) 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 (ii) if
the Quotation Agent obtains fewer than four such Redemption Reference
Treasury Dealer Quotations, the average of all such Redemption
Reference Treasury dealer Quotations.
"CUSTODIAN" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"DEFINITIVE NOTE" means a certificated Note in the form of Exhibit
A-1 hereto, registered in the name of the Holder thereof and issued in
accordance with Section 2.9 hereof, except that such Note shall not
bear the Global Note Legend.
"EUROCLEAR" means the Euroclear Clearance System.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer
pursuant to Section 2.9(f) hereof; following the exchange of interests
in the Rule 144A
2
<PAGE>
Global Note, the Regulation S Global Note and the Restricted Definitive
Note for Exchange Notes pursuant to an effective registration
statement, the defined term "Exchange Notes" and "Notes" shall have the
same meaning and be entitled to the same rights under the Indenture.
"EXCHANGE OFFER" means the exchange offer by the Company of the
Exchange Notes for the Notes issued in reliance upon an exemption from
registration under the Securities Act on the date hereof in accordance
with the provisions of the Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, including the prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein
filed by the Company and Tyco in accordance with the Registration
Rights Agreement in connection with the Exchange Offer.
"GLOBAL NOTES" means, individually and collectively, any of the
Notes issued as global notes under the Indenture.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.9(g)(ii), which is required to be placed on all Global Notes issued
under the Indenture.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"INITIAL PURCHASER" means each of Lehman Brothers Inc., J.P.
Morgan Securities Inc., Credit Suisse First Boston Corporation and
Donaldson, Lufkin & Jenrette Securities Corporation.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is
an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, who is not also a QIB.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by
such Holders in connection with the Exchange Offer.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" has the meaning assigned to it in Section 2.1 hereof.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or
Cedel, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Cedel).
3
<PAGE>
"PARTICIPATING BROKER DEALER" means the Initial Purchasers and any
other broker-dealer which makes a market in the Notes and exchanges
Notes in the Exchange Offer for Exchange Notes.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.9(g)(i) to be placed on all Notes issued under the Indenture except
where otherwise permitted by the provisions of the Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"QUOTATION AGENT" means a Redemption Reference Treasury Dealer
appointed as such agent by the Company.
"REDEMPTION REFERENCE TREASURY DEALER" means each of Lehman
Brothers Inc. 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.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of November 2, 1998, by and among the Company, Tyco
and the Initial Purchasers, as such agreement may be amended, modified
or supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the Securities
Act or any successor rule or regulation substantially to the same
effect.
"REGULATION S GLOBAL NOTE" means a global Note in the form of
Exhibit A-2 hereto bearing the Global Note Legend and the legend in
Section 2.9(g)(iii) hereof and deposited with or on behalf of the
Depositary and registered in the name of the Depositary or its nominee.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED PERIOD" means the period beginning on the date hereof
and ending on the date of receipt by the Trustee of (x) a written
certificate from the Depositary, together with copies of certificates
required by Rule 903(b)(3)(ii)(B) under the Securities Act and (y) an
Officers' Certificate from the Company certifying as to the end of the
end of the 40-day restricted period as defined in
4
<PAGE>
Regulation S and any other matters required by the Applicable
Procedures.
"RULE 144" means Rule 144 promulgated under the Securities Act,
any successor rule or regulation to substantially the same effect or
any additional rule or regulation under the Securities Act that permits
transfers of restricted securities without registration such that the
transferee thereof holds securities that are freely tradeable under the
Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act
or any successor rule or regulation to substantially the same effect.
"RULE 144A GLOBAL NOTE" means a global Note in the form of Exhibit
A-1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee.
"RULE 903" means Rule 903 promulgated under the Securities Act or
any successor rule or regulation substantially to the same effect.
"RULE 904" means Rule 904 promulgated the Securities Act or any
successor rule or regulation substantially to the same effect.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the United States Securities Act of 1933,
as amended.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration
statement of the Company and Tyco filed pursuant to the provisions of
the Registration Rights Agreement on an appropriate form under Rule 415
under the Securities Act, or any 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
documents incorporated by reference therein.
"UNRESTRICTED GLOBAL NOTE" means a global Note (other than a
Regulation S Global Note) in the form of Exhibit A-1 attached hereto
that bears the Global Note Legend, and that is deposited with or on
behalf of and registered in the name of the Depositary, representing a
series of Notes that do not bear the Private Placement Legend.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement
Legend.
"U.S. PERSON" means a U.S. Person as defined in Rule 902(o) under
the Securities Act.
5
<PAGE>
SECTION 1.3 RULES OF CONSTRUCTION. For all purposes of this
Supplemental Indenture No. 5:
(a) capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 5; and
(c) the terms "HEREIN", "HEREOF", "HEREUNDER" and other words of
similar import refer to this Supplemental Indenture No. 5.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 TITLE OF THE SECURITIES. There shall be a series of
Securities designated as the "5.875% Notes due 2004" (the "Notes").
SECTION 2.2 FORM AND DATING.
(a) GENERAL.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibits A-1 or A-2, as applicable, hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of the Indenture Supplement No. 5, and the
Company, Tyco and the Trustee, by their execution and delivery of the Indenture
Supplement No. 5, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of the Indenture Supplement No. 5, the provisions of the
Indenture Supplement No. 5 shall govern and be controlling.
(b) RULE 144A GLOBAL NOTES; DEFINITIVE NOTES.
Notes issued in global form shall be substantially in the form of
Exhibits A-1 or A-2 attached hereto (including the Global Note Legend thereon).
The Company hereby designates The Depository Trust Company as the initial
Depositary for the Global Notes. Notes offered and sold to QIBs shall be issued
initially in the form of the Rule 144A Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee at
its New York office, as custodian for the Depositary, duly executed by the
Company and Tyco and authenticated by the Trustee as hereinafter provided. Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it
6
<PAGE>
shall represent the aggregate principal amount of outstanding Notes from time to
time as conclusively reflected in the books and records of the Trustee endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemption. Any change in the principal amount of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee as the custodian for the Depositary, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.9 hereof.
Notes offered and sold to Institutional Accredited Investors shall be
issued in definitive form in substantially the form of Exhibit A-1 attached
hereto (but without the Global Note Legend thereon).
(c) REGULATION S GLOBAL NOTES.
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Global Note, which shall be deposited
on behalf of the purchasers of the Notes represented thereby with the Trustee,
at its New York office, as custodian for the Depositary, and registered in the
name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedel Bank, duly executed by
the Company and Tyco and authenticated by the Trustee as hereinafter provided.
During the Restricted Period, interests in the Regulation S Global Note must be
held through Euroclear or Cedel, if the holders are participants in such
systems, or indirectly through organizations that are participants in such
systems.
Following the termination of the Restricted Period, beneficial
interests in the Regulation S Global Note may be held, directly or indirectly,
in the account of any Participant of the Depositary.
(d) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Global Note
that are held by Participants through Euroclear or Cedel Bank.
SECTION 2.3 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT. The aggregate
principal amount of the Notes shall not initially exceed $400,000,000.
SECTION 2.4 PRINCIPAL PAYMENT DATE. Subject to the provisions of
Section 2.7 hereof and Articles Four and Twelve of the Indenture, the principal
of the Notes shall be become due and payable in a single installment on November
1, 2004.
SECTION 2.5 INTEREST AND INTEREST RATES. Interest on the Notes shall be
payable semiannually on May 1 and November 1 of each year beginning on May 1,
1999 (each, an
7
<PAGE>
"INTEREST PAYMENT DATE"); PROVIDED, HOWEVER, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment Date
shall be the next succeeding Business Day, and no additional interest shall be
paid in respect of such intervening period. The interest rate borne by the Notes
will be 5.875% per annum until the Notes are paid in full subject, however, to
the following provisions. In the event that (i) the Exchange Offer Registration
Statement is not filed with the SEC on or prior to the 90th calendar day
following the original issue of the Notes, (ii) the Exchange Offer Registration
Statement has not been declared effective by the SEC on or prior to the 150th
calendar day following the original issue of the Notes or (iii) 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
original issue of the Notes (each such event in clauses (i) through (iii) above,
a "REGISTRATION DEFAULT"), the interest rate borne by the Notes shall be
increased by an amount ("ADDITIONAL INTEREST") equal to an additional one
quarter of one percent (0.25%) per annum upon the occurrence of each
Registration Default, which rate will increase by an additional one quarter of
one percent (0.25%) per annum 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 1.0% 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 as set forth above because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC (it being understood that in any such circumstance the Company shall be
required to file a Shelf Registration Statement and Additional Interest shall be
payable if such Shelf Registration Statement is not declared effective as
provided in clause (iii) above); and PROVIDED FURTHER that Additional Interest
shall only be payable in the case a Shelf Registration Statement is not declared
effective as aforesaid with respect to notes that have the right to be included,
and whose inclusion has been requested, in the Shelf Registration Statement.
Following the cure of all Registration Defaults applicable to the respective
Notes, the accrual of Additional Interest will cease and the interest rate will
revert to 5.875% per annum.
If a Shelf Registration Statement is declared effective but shall
thereafter become unusable by the Holder of Notes for any reason (whether or not
the Company had the right to prevent the Holders from distributing Notes during
the 30 day period described in the Indenture), 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, the interest rate borne by the
Notes included in such Shelf Registration Statement will be increased by an
amount ("ADDITIONAL INTEREST") equal to 0.25% per annum 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 at the beginning of each subsequent 90-day period,
provided the maximum aggregate increase in the interest rate will in no event
exceed 1.0% per annum. Upon the Shelf Registration Statement once again becoming
usable, the interest rate borne by the Notes included therein will be reduced to
the original interest rate if the Company is otherwise in compliance with the
Registration Rights Agreement with respect to such Notes at that time.
Additional Interest in accordance with this paragraph shall be computed based
upon the actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is unusable. For all purposes of this Indenture
Supplement No. 5, the term interest
8
<PAGE>
shall include "Additional Amounts" and "Additional Interest".
The interest payable on each Interest Payment Date shall be the amount
of interest accrued from November 2, 1998 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, until the principal amount of the Notes has been paid or duly provided
for. Interest shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
The interest payable on any Note which is punctually paid or duly
provided for on any Interest Payment Date shall be paid to the Person in whose
name such Note is registered at the close of business on the April 15 or October
15 (in each case, whether or not a Business Day), respectively, immediately
preceding such Interest Payment Date (each, a "Regular Record Date"). Interest
payable on any Note which is not punctually paid or duly provided for on any
Interest Payment Date therefor shall forthwith cease to be payable to the Person
in whose name such Note is registered at the close of business on the Regular
Record Date immediately preceding such Interest Payment Date, and such interest
shall instead be paid to the Person in whose name such Note is registered at the
close of business on the record date established for such payment by notice by
or on behalf of the Company to the Holders of the Notes mailed by first-class
mail not less than 15 days prior to such record date to their last addresses as
they shall appear upon the Security register, such record date to be not less
than five days preceding the date of payment of such defaulted interest.
The Company and Tyco shall notify the Trustee within five Business Days
after each and every date (an "EVENT DATE") on which an event occurs in respect
of which Additional Interest is required to be paid. The obligation to pay
Additional Interest shall be deemed to accrue from and including the day
following the applicable Event Date. Additional Interest shall be paid by
depositing with the Trustee for the benefit of the Holders of the Notes entitled
to receive such Additional Interest, on or before the applicable Interest
Payment Date, immediately available funds in sums sufficient to pay the
Additional interest then due. Additional Interest shall be payable to the Person
otherwise entitled to be paid the interest payable on the Notes on such Interest
Payment Date.
SECTION 2.6 PLACE OF PAYMENT. The place of payment where the Notes may
be presented or surrendered for payment, where the principal of and interest and
any other payments due on the Notes are payable, where the Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Notes and the Indenture may be
served shall be in the Borough of Manhattan, The City of New York, and the
office or agency maintained by the Company for such purpose shall initially be
the Corporate Trust Office of the Trustee.
At the option of the Company, interest on the Notes may be paid (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Holders of the Notes or (ii) at the expense of the
Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in writing to the Trustee by such Person by the applicable
record date.
9
<PAGE>
SECTION 2.7 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 15 basis points plus, in each case, accrued interest thereon to the
date of redemption.
The Notes are also subject to redemption to the extent described in
Article Twelve of the Indenture.
The Company shall have no obligation to redeem or purchase the Notes
pursuant to any sinking fund or analogous provisions or upon the happening of
any specified event or at the option of any Holder of the Notes.
SECTION 2.8 CURRENCY. Principal and interest on the Notes shall be
payable in United States dollars.
SECTION 2.9 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES.
A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Company for Definitive
Notes if (i) the Company delivers to the Trustee notice from the Depositary that
it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 90 days after the
date of such notice from the Depositary; or (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should be
exchanged for Definitive Notes and delivers a written notice to such effect to
the Trustee; provided that in no event shall the Regulation S Global Note be
exchanged by the Company for Definitive Notes prior to the expiration of the
Restricted Period. Global Notes may also be, subject to compliance with the
terms of this Section 2.9, exchanged for Definitive Notes (x) upon the request
of any holder of Notes if an Event of Default has occurred and is continuing for
a period of at least 180 days or (y) in connection with any transfer of an
interest in the Global Note to an Institutional Accredited Investor. Upon the
occurrence of any of the preceding events, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.10 and
2.12 of the Indenture.
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(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES.
The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
the Indenture and the Applicable Procedures. Transfers of beneficial interests
in the Global Notes also shall require compliance with either subparagraph (i)
or (ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME TYPE OF GLOBAL
NOTE. Beneficial interests in any Rule 144A Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in a Rule 144A Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend.
Beneficial interests in any Regulation S Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in a Regulation S Global Note; provided, however, that prior
to the expiration of the Restricted Period beneficial interests in the
Regulation S Global Note may only be transferred in accordance with the
Applicable Procedures of Euroclear and Cedel. Beneficial interests in
any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.9(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN
GLOBAL NOTES. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.9(b)(i) above,
and, subject to any other requirement in this Section 2.9, the
transferor of such beneficial interest must deliver to the Registrar
either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in a Global Note of another type in an amount equal
to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B), subject to Section 2.9(a), (1) a written
order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal
to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange; provided that
in no event shall Definitive Notes be issued upon the transfer or
exchange of beneficial interests in the Regulation S Global Note prior
to the expiration of the Restricted Period. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in
Global Notes contained herein and in the Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to Section
2.9(h) hereof.
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(iii) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RULE 144A
GLOBAL NOTE OR A REGULATION S GLOBAL NOTES FOR BENEFICIAL INTERESTS IN
AN UNRESTRICTED GLOBAL NOTE. A beneficial interest in Rule 144A Global
Note may be exchanged by any holder thereof for a beneficial interest
in an Unrestricted Global Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if (x) the exchange or transfer complies with
the requirements of Section 2.9(b)(ii) above and (y):
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of
Transmittal or via the Depositary's book-entry system in a form
acceptable to the Trustee that it is not (1) a broker-dealer, (2)
a Person participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule 144) of
the Company, and such Letter of Transmittal or book-entry system
certification shall satisfy the requirements of Section 2.9(ii);
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures
so require, an Opinion of Counsel to the effect that the transfer
is permitted, and that upon transfer the Notes will not be
restricted, under the Securities Act, is furnished to the Trustee
and Registrar.
If any such transfer is effected at a time when an Unrestricted
Global Note has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.5 of
the Indenture, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate
principal amount of beneficial interests so transferred.
(iv) TRANSFER AND EXCHANGE OF INTERESTS TO AND FROM REGULATION S
GLOBAL NOTES (OTHER THAN AS PROVIDED IN CLAUSE (iii) ABOVE).
(A) TRANSFER AND EXCHANGE OF INTERESTS IN A REGULATION S
GLOBAL NOTE PRIOR TO THE TERMINATION OF THE RESTRICTED PERIOD FOR
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL NOTE. A beneficial
interest
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in any Regulation S Global Note may be exchanged by any holder
thereof for a beneficial interest in a Rule 144A Global Note or
transferred to a Person who takes delivery thereof in the form of
a beneficial interest in a Rule 144A Global Note, if (x) the
exchange or transfer complies with the requirements of Section
2.9(b)(ii) above, and (y) the holder of the beneficial interest in
the Regulation S Global Note delivers to the Trustee and the
Registrar a letter in the form of Exhibit B with the certification
set forth in paragraph 1 or Exhibit C with the certification set
forth in paragraph 2(b), as applicable, completed.
(B) TRANSFER AND EXCHANGE OF INTERESTS IN A REGULATION S
GLOBAL NOTE FOLLOWING THE TERMINATION OF THE RESTRICTED PERIOD FOR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE. A beneficial
interest in any Regulation S Global Note following the termination
of the Restricted Period may be exchanged by any holder thereof
for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note, if (x) the
exchange or transfer complies with the requirements of Section
2.9(b)(ii) above and (y) the holder of the Regulation S Global
Note delivers to the Trustee and the Registrar a letter in the
form of Exhibit B with the certification set forth in paragraph
4(b) or Exhibit C with the certification set forth in paragraph 1,
as applicable, completed.
(C) TRANSFER AND EXCHANGE OF INTERESTS IN A RULE 144A GLOBAL
NOTE FOR BENEFICIAL INTERESTS IN A REGULATION S GLOBAL NOTE. A
beneficial interest in any Rule 144A Global Note may be exchanged
by any holder thereof for a beneficial interest in a Regulation S
Global Note or transferred to a Person who takes delivery thereof
in the form of a beneficial interest in a Regulation S Global
Note, if (x) the exchange or transfer complies with the
requirements of Section 2.9(b)(ii) above and (y) the holder of the
beneficial interest in the Rule 144A Global Note delivers to the
Trustee and the Registrar a letter in the form of Exhibit B with
the certification set forth in paragraph 2 or Exhibit C with the
certification set forth in paragraph 2(b), as applicable,
completed.
(c) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL NOTES FOR
DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RULE 144A GLOBAL NOTES TO RESTRICTED
DEFINITIVE NOTES. If any holder of a beneficial interest in a Rule 144A
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted
Definitive Note in the circumstances set forth in Section 2.9(a)
hereof, such Definitive Note shall be subject to all restrictions on
transfer contained therein and shall be issued,
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upon receipt by each of the Trustee and the Registrar of the following
documentation:
(A) if the holder of a beneficial interest in a Rule 144A
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, Exhibit C with the certification set
forth in paragraph 2(a) completed;
(B) if such beneficial interest is being transferred in
accordance with Rule 144A under the Securities Act, a letter in
the form of Exhibit B with the certification set forth in
paragraph 1 completed;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a letter in the form of
Exhibit B with the certification set forth in paragraph 2
completed; or
(D) if any such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act, a letter
in the form of Exhibit B with the certification set forth in
paragraph 3(a) completed.
(ii) intentionally omitted.
(iii) BENEFICIAL INTERESTS IN RULE 144A GLOBAL NOTES OR REGULATION
S GLOBAL NOTES TO UNRESTRICTED DEFINITIVE NOTES. Subject to Section
2.9(a), a holder of a beneficial interest in a Rule 144A Global Note or
Regulation S Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if such exchange or transfer is in accordance with
the Applicable Procedures and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
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(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures
so require, an Opinion of Counsel to the effect that the transfer
is permitted, and that upon transfer the Notes will not be
restricted, under the Securities Act, is furnished to the Trustee
and Registrar.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE Notes. A holder of a beneficial interest in an
Unrestricted Global Note may, in the circumstances described in Section
2.9(a), exchange such beneficial interest for an Unrestricted
Definitive Note or transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note.
Any transfer pursuant to this Section 2.9(c) shall satisfy the
requirements of Section 2.9(b)(ii). In any such case, the Trustee shall cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.9(h) hereof, and the Company shall execute and
the Trustee, upon receipt of an Authentication Order in accordance with Section
2.5 of the Indenture, shall authenticate and deliver to the Person designated in
the instructions a Definitive Note in the appropriate principal amount. Any
Restricted Definitive Note issued in exchange for a beneficial interest in a
Global Note pursuant to this Section 2.9(c) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS
IN GLOBAL NOTES.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN RULE
144A GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Rule 144A
Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Rule 144A Global Note, then, upon receipt by each of the Trustee and
the Registrar of a letter in the form of Exhibit B with the
certification set forth in paragraph 1 or Exhibit C with the
certification set forth in paragraph 2(b), as applicable, completed,
the Trustee shall cancel the Restricted Definitive Note and increase or
cause to be increased the aggregate principal amount of the appropriate
Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
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Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal or via the Depositary's book-entry system in
a form acceptable to the Trustee, that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures
so require, an Opinion of Counsel to the effect that the transfer
is permitted, and that upon transfer the Notes will not be
restricted, under the Securities Act, is furnished to the Trustee
and Registrar.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time if permitted by the Applicable
Procedures and applicable law. Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
(iv) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
REGULATION S GLOBAL NOTES. A beneficial interest in any Restricted
Definitive Note may be exchanged by any holder thereof who is a
non-U.S. Person for a beneficial interest in a Regulation S Global Note
or transferred to a Non U.S. Person who takes delivery thereof in the
form of a beneficial interest in a Regulation S Global Note, if (x) the
holder of the Restricted Definitive Note delivers to the Trustee and
the Registrar a letter in the form of Exhibit B with the certification
set forth in paragraph 2 or Exhibit C with the certification set forth
in paragraph 2(b), as applicable, completed and (y) if the Trustee and
the Registrar so request or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Trustee and the
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Registrar is furnished to the Trustee and the Registrar to the effect
that such exchange or transfer is in compliance with the Securities
Act.
If any such exchange or transfer from a Definitive Note to a beneficial
interest in a Global Note is effected at a time when a Global Note of the
appropriate type has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 5 of the Indenture
the Trustee shall authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.9(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed
by such Holder or by his attorney, duly authorized in writing. In addition,
the requesting Holder shall provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions
of this Section 2.9(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE NOTES.
Any restricted Definitive Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a
Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a letter in the form of Exhibit B with
certification set forth in paragraph 1 completed,
(B) if the transfer will be made to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or 904 under the
Securities, then the transferor must deliver a letter in the form
of Exhibit B with the certification set forth in paragraph 2
completed; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a letter in the form of
Exhibit B with the appropriate certification set forth in
paragraph 3 completed, as well as an Opinion of Counsel in form
and substance acceptable to the Trustee.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES.
Any Restricted Definitive Note may be exchanged by the Holder thereof
for an Unrestricted Definitive Note or transferred to a Person or
Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
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(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal in a form acceptable to the Trustee, that it
is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures
so require, an Opinion of Counsel to the effect that the transfer
is permitted, and that upon transfer the Notes will not be
restricted, under the Securities Act, is furnished to the Trustee
and Registrar.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) EXCHANGE OFFER; SHELF REGISTRATION STATEMENT
(i) Upon the occurrence of the Exchange Offer in accordance with
the Registration Rights Agreement, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.5 of
the Indenture, the Trustee shall authenticate (x) one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Rule 144A Global
Notes and Regulation S Global Notes tendered for acceptance by Persons
that certify in the applicable Letters of Transmittal that (A) they are
not broker-dealers, (B) they are not participating in a distribution of
the Exchange Notes and (C) they are not affiliates (as defined in Rule
144) of the Company, and accepted for exchange in the Exchange Offer
and (y) Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such
Notes, the Trustee shall cause the aggregate principal amount of the
applicable Rule 144A Global Notes and/or Regulation S Global Notes to
be reduced accordingly, and the Company shall execute and the Trustee
shall,
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upon receipt of an Authentication Order in accordance with Section 2.5
of the Indenture, authenticate and deliver to the Persons designated by
the Holders of the Restricted Definitive Notes so accepted Unrestricted
Definitive Notes in the appropriate principal amount.
(ii) Following the effectiveness of a Shelf Registration Statement
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.5, of the Indenture the Trustee shall
authenticate from time to time (x) one or more Unrestricted Global
Notes, or, if there shall be at the time one or more Unrestricted
Global Notes outstanding and such increase can be effected in
accordance with Applicable Procedures, the Trustee shall increase or
cause to be increased the aggregate principal amount thereof, in each
case in an aggregate principal amount equal to the principal amount of
the beneficial interests in the Global Notes sold by Persons that
certify as to the consummation of such sale under the Shelf
Registration Statement in a manner acceptable to the Trustee and the
Company and (y) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes
sold by Persons that certify as to the consummation of such sale under
the Shelf Registration Statement in a manner acceptable to the Trustee
and the Company. Concurrently with the issuance of such Unrestricted
Global Notes, the Trustee shall cause the aggregate principal amount of
the applicable Rule 144A Global Notes and/or the Regulation S Global
Notes to be reduced accordingly, and the Company shall execute and the
Trustee shall, upon receipt of an Authentication Order in accordance
with Section 2.5 of the Indenture, authenticate and deliver to the
Persons designated by the Holders of Restricted Definitive Notes so
sold Unrestricted Definitive Notes in the appropriate principal amount.
(g) LEGENDS.
The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under the Indenture unless specifically stated otherwise
in the applicable provisions of the Indenture.
(i) PRIVATE PLACEMENT LEGEND. Except as permitted by subparagraph
(B) below, each Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the
following form:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER: REPRESENTS THAT (1) IT IS (A) A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
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UNDER THE SECURITIES ACT) OR (B) AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) OR (C) NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED
HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT RESELL
OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY EXCEPT TO (A) THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE
EVIDENCED HEREBY (A FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE), (D) OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR
(E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK
OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE
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MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Note which is (i) a
Regulation S Global Note (and any Note issued in exchange therefor
or substitution thereof after the Restricted Period), (ii) a Note
which has been exchanged or transferred pursuant to the Exchange
Offer Registration Statement or the Shelf Registration Statement,
or (iii) a Note which has been transferred in accordance with Rule
144, provided that in such case an Opinion of Counsel is delivered
which states that the Note does not have to bear the Private
Placement Legend in the cases where such opinion is required under
this Indenture, shall not bear the Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.9 OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN CERTAIN
CIRCUMSTANCES IN THE SUPPLEMENTAL INDENTURE NO. 5, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
(iii) REGULATION S GLOBAL NOTE LEGEND. The Regulation S Global
Note shall bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). DURING
THE RESTRICTED PERIOD, INTERESTS IN THIS NOTE MAY ONLY BE HELD THROUGH
EUROCLEAR AND CEDEL."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES.
At such time as all beneficial interests in a particular Global Note
have
21
<PAGE>
been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 of the Indenture. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary to reflect
such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary to reflect such increase.
SECTION 2.10 DEFEASANCE AND COVENANT DEFEASANCE. The provisions of
Article Nine of the Indenture shall apply to the Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 RATIFICATION. The Indenture, as supplemented and amended by
this Supplemental Indenture No. 5, is in all respects hereby adopted, ratified
and confirmed.
SECTION 3.2 COUNTERPARTS. This Supplemental Indenture No. 5 may be
executed in any number of counterparts, each of which when so executed shall be
deemed an original; and all such counterparts shall together constitute but one
and the same instrument.
SECTION 3.3 AMENDMENTS. This Supplemental Indenture No. 5 may be
amended by the Company and Tyco without the consent of any holder of the Notes
in order for the restrictions on transfer contained herein to be in compliance
with applicable law or the Applicable Procedures.
SECTION 3.4 APPLICABLE PROCEDURES. Notwithstanding anything else
herein, the Company shall not be required to permit a transfer to a global note
that is not permitted by the Applicable Procedures.
SECTION 3.5 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE NO. 5 AND EACH
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
22
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 5 to be duly executed as of the day and year first written above.
TYCO INTERNATIONAL GROUP S.A.
By: /s/ Richard Brann
-------------------------------
Name: Richard Brann
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
-------------------------------
Name: Mark H. Swartz
Title: Executive Vice President
and Chief Financial Officer
THE BANK OF NEW YORK, Trustee
By: /s/ Ming J. Shiang
-------------------------------
Name: Ming J. Shiang
Title: Vice President
23
<PAGE>
Exhibit A-1
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN CERTAIN CIRCUMSTANCES DESCRIBED IN THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY
STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:
REPRESENTS THAT (1) IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) OR (C) NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THE NOTE EVIDENCED HEREBY EXCEPT TO (A) THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OR ANY OTHER APPLICABLE JURISDICTION; AND (3) AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF
<PAGE>
THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
2
<PAGE>
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTE DUE 2004
No. [ ]
$[ ] CUSIP: 902118 AE 8
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), for
value received, hereby promises to pay to CEDE & CO. or registered assigns,
the principal sum of [ ] Dollars on November 1, 2004, at the office or
agency of the Issuer in the Borough of Manhattan, The City of New York, in
such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts,
and to pay semiannually on May 1 and November 1 of each year (each, an
"Interest Payment Date"; provided, however, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment
Date shall be the next succeeding Business Day but no additional interest
shall be paid in respect of such intervening period), commencing May 1, 1999,
the amount of interest on said principal sum at said office or agency, in
like coin or currency, at the rate per annum specified in the title of this
Note, from November 2, 1998 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for until said principal sum
has been paid or duly provided for. Interest shall be computed on the basis
of a 360-day year consisting of twelve 30-day months. For purposes of this
Note, "Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
The interest payable on any Interest Payment Date which is punctually paid
or duly provided for on such Interest Payment Date will be paid to the Person in
whose name this Note is registered at the close of business on the April 15 or
October 15 (in each case, whether or not a Business Day), as the case may be
(each, a "Regular Record Date"), immediately preceding such Interest Payment
Date. Interest payable on this Note which is not punctually paid or duly
provided for on any Interest Payment Date therefor shall forthwith cease to be
payable to the Person in whose name this Note is registered at the close of
business on the Regular Record Date immediately preceding such Interest Payment
Date, and such interest shall instead be paid to the Person in whose name this
Note is registered at the close of business on the record date established for
such payment by notice by or on behalf of the Issuer to the Holders of the Notes
mailed by first-class mail not less than 15 days prior to such record date to
their last addresses as they shall appear upon the Security register, such
record date to be not less than five days preceding the date of payment of such
defaulted interest. At the option of the Issuer, interest on the Notes may be
paid (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Holders of the Notes or (ii) at the
expense of the Issuer, by wire transfer to an account maintained by the Person
entitled thereto as specified in writing to the Trustee by such Person by the
applicable record date of the Notes.
3
<PAGE>
All references in the Notes (and related Guarantees) to interest shall
include any Additional Interest or Additional Amounts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to on the reverse hereof.
4
<PAGE>
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this instrument
to be signed by its duly authorized officers.
Dated: November 2, 1998
TYCO INTERNATIONAL GROUP S.A.
By:
---------------------------
Title:
By:
---------------------------
Title:
5
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------
Authorized Signatory
6
<PAGE>
GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Note the
payment of principal of, and interest on, the Security upon which this Guarantee
is endorsed in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest on, if any, of such Note, if lawful, and the payment or performance of
all other obligations of the Issuer under the Indenture or the Notes, to the
holder of such Note and the Trustee, all in accordance with and subject to the
terms and limitations of such Note and Article Thirteen of the Indenture. This
Guarantee will not become effective until the Trustee duly executes the
certificate of authentication on this Note. This Guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of law principles thereof. All references in this Guarantee
to interest shall include any Additional Amounts or Additional Interest.
Dated: November 2, 1998
TYCO INTERNATIONAL LTD.
By:
---------------------
Title:
7
<PAGE>
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTES DUE 2004
1. INDENTURE. (a) This Note is one of a duly authorized issue of notes of
the Issuer (hereinafter called the "Notes") of a series designated as the 5.875%
Notes due 2004 of the Issuer, initially limited in aggregate principal amount to
$400,000,000, all issued or to be issued under and pursuant to an indenture,
dated as of June 9, 1998, as amended and supplemented by Supplemental Indenture
No. 5, dated as of November 2, 1998 (as so amended and supplemented, the
"Indenture"), among the Issuer, Tyco International Ltd. ("Tyco") and The Bank of
New York, as Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Issuer, Tyco, the Trustee and the Holders of the Notes.
(b) Other debentures, notes, bonds or other evidences of indebtedness
(together with the Notes, hereinafter called the "Securities") may be issued
under the Indenture in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary from the Notes and each other, as in the
Indenture provided.
(c) All capitalized terms used in this Note (or the related Guarantee)
which are defined in the Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
2. AMENDMENTS AND WAIVERS. (a) The Indenture contains provisions
permitting the Issuer and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Securities of each such series; PROVIDED, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or reduce the
8
<PAGE>
amount of the principal of an Original Issue Discount Security that would be due
and payable upon an acceleration of the maturity thereof pursuant to Section 4.1
of the Indenture or the amount thereof provable in bankruptcy pursuant to
Section 4.2 of the Indenture, or impair or affect the rights of any Holder to
institute suit for the payment thereof, without the consent of the Holder of
each Security so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each Security
affected.
(b) It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Securities of any series, prior to
any declaration accelerating the maturity of such Securities, the Holders of a
majority in aggregate principal amount Outstanding of the Securities of such
series (or, in the case of certain defaults or Events of Default, all or certain
series of the Securities) may on behalf of the Holders of all the Securities of
such series (or all or certain series of the Securities, as the case may be)
waive any such past default or Event of Default and its consequences. The
preceding sentence shall not, however, apply to a default in the payment of the
principal of or premium, if any, or interest on any of the Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
3. OBLIGATION TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, Tyco or any other
obligor on the Notes, which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on this Note in the manner, at the respective
times, at the rate, at the place and in the coin or currency herein prescribed.
4. REDEMPTION. This Note may be redeemed, in whole or in part, at the
option of the Issuer at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of this Note, 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
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 of
twelve 30-day months) at the Adjusted Redemption Treasury Rate plus 15 basis
points plus, in each case, accrued interest thereon to the date of redemption.
This Note is also subject to redemption to the extent provided in Article Twelve
of the Indenture.
"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
9
<PAGE>
its principal amount) equal to the Comparable Redemption Treasury Price for such
redemption date.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"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 will 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, (i) 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 (ii) 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 Lehman Brothers
Inc. 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.
5. CERTAIN COVENANTS. The Indenture restricts the Issuer's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Issuer is obliged to abide by certain covenants, including covenants limiting
the amount of liens it may incur, as well as its ability to enter into sale and
leaseback transactions, a covenant limiting the ability of its subsidiaries to
incur indebtedness, and a covenant requiring it to pay or discharge all taxes,
all as more fully described in the Indenture. All of such covenants are subject
to the covenant Defeasance procedures outlined in the Indenture.
6. EFFECT OF EVENT OF DEFAULT. If an Event of Default shall have occurred
and be continuing under the Indenture, the principal hereof may be declared, and
upon such declaration
10
<PAGE>
shall become, due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
7. DEFEASANCE. The Indenture contains provisions for Defeasance and
covenant Defeasance at any time of the indebtedness on this Note upon compliance
by the Issuer with certain conditions set forth therein.
8. DENOMINATIONS; TRANSFER. (a) The Notes are issuable in registered form
without coupons in denominations of $1,000 and any multiple of $1,000 at the
office or agency of the Issuer in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations provided in the
Indenture.
(b) Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture. This Note may also be surrendered
for exchange at the aforesaid office or agency for Notes in other authorized
denominations in an equal aggregate principal amount. No service charge shall be
made for any registration of transfer or any exchange of the Notes, except that
the Issuer may require payment of any tax or other governmental charge imposed
in connection therewith.
(c) A certificate in global form representing all of a portion of the
Notes may not be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or any such nominee to a
successor Depositary for such Notes or a nominee of such successor Depositary.
9. HOLDER AS OWNER. The Issuer, Tyco, the Trustee and any authorized agent
of the Issuer, Tyco or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal hereof
and, subject to the provisions on the face hereof, interest hereon, and for all
other purposes, and none of the Issuer, Tyco or the Trustee or any authorized
agent of the Issuer, Tyco or the Trustee shall be affected by any notice to the
contrary.
10. NO LIABILITY OF CERTAIN PERSONS. No recourse under or upon any
obligation, covenant or agreement of the Issuer or Tyco in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, or any
past, present or future shareholder, officer or director, as such, of the
Issuer, Tyco or of any successor corporation of either of them, either directly
or through the Issuer, Tyco or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
11
<PAGE>
11. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Notes other than Holders of Unrestricted Global Notes
and Holders of Unrestricted Definitive Notes shall have all the rights set forth
in the Registration Rights Agreement, dated as of November 2, 1998, among the
Issuer, Tyco International Ltd. and the parties named on the signature pages
thereof.
12. GOVERNING LAW. The laws of the State of New York govern the Indenture
and this Note.
12
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto:
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note of Tyco International Group S.A. and all rights thereunder and
hereby irrevocably constitutes and appoints such person attorney to transfer
such Note on the books of Tyco International Group S.A., with full power of
substitution in the premises.
Dated:
---------------------------------------
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE SIGNATURE
SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER
ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY SUCH OTHER ENTITY WHOSE
SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO THE TRANSFER AGENT.
13
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in the Global Note, have
been made:
<TABLE>
<CAPTION>
Amount of Amount of
decrease in increase in Principal Amount of this Global Signature of Authorized
Date of Principal Amount Principal Amount Note following such decrease (or Officer of Trustee or Note
Exchange of this Global Note of this Global Note increase) Custodian
------------------- ------------------- -------------------------------- --------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
* This Schedule may be used by the Trustee in respect of a Global Note, and,
if so used, shall be deemed a part thereof for all purposes.
14
<PAGE>
Exhibit A-2
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN CERTAIN CIRCUMSTANCES DESCRIBED IN THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). DURING THE RESTRICTED PERIOD,
INTERESTS IN THIS NOTE MAY ONLY BE HELD THROUGH EUROCLEAR AND CEDEL.
<PAGE>
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTE DUE 2004
No. [ ]
$[ ] CUSIP: 902118 AE 8
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), for
value received, hereby promises to pay to CEDE & CO. or registered assigns,
the principal sum of [ ] Dollars on November 1, 2004, at the office or
agency of the Issuer in the Borough of Manhattan, The City of New York, in
such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts,
and to pay semiannually on May 1 and November 1 of each year (each, an
"Interest Payment Date"; provided, however, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment
Date shall be the next succeeding Business Day but no additional interest
shall be paid in respect of such intervening period), commencing May 1, 1999,
the amount of interest on said principal sum at said office or agency, in
like coin or currency, at the rate per annum specified in the title of this
Note, from November 2, 1998 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for until said principal sum
has been paid or duly provided for. Interest shall be computed on the basis
of a 360-day year consisting of twelve 30-day months. For purposes of this
Note, "Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
The interest payable on any Interest Payment Date which is punctually paid
or duly provided for on such Interest Payment Date will be paid to the Person in
whose name this Note is registered at the close of business on the April 15 or
October 15 (in each case, whether or not a Business Day), as the case may be
(each, a "Regular Record Date"), immediately preceding such Interest Payment
Date. Interest payable on this Note which is not punctually paid or duly
provided for on any Interest Payment Date therefor shall forthwith cease to be
payable to the Person in whose name this Note is registered at the close of
business on the Regular Record Date immediately preceding such Interest Payment
Date, and such interest shall instead be paid to the Person in whose name this
Note is registered at the close of business on the record date established for
such payment by notice by or on behalf of the Issuer to the Holders of the Notes
mailed by first-class mail not less than 15 days prior to such record date to
their last addresses as they shall appear upon the Security register, such
record date to be not less than five days preceding the date of payment of such
defaulted interest. At the option of the Issuer, interest on the Notes may be
paid (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Holders of the Notes or (ii) at the
expense of the Issuer, by wire transfer to an account maintained by the Person
entitled thereto as specified in writing to the Trustee by such Person by the
applicable record date of the Notes.
2
<PAGE>
All references in the Notes (and related Guarantees) to interest shall
include any Additional Interest or Additional Amounts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to on the reverse hereof.
3
<PAGE>
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this instrument
to be signed by its duly authorized officers.
Dated: November 2, 1998
TYCO INTERNATIONAL GROUP S.A.
By:
--------------------------
Title:
By:
--------------------------
Title:
4
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------
Authorized Signatory
5
<PAGE>
GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Note the
payment of principal of, and interest on, the Security upon which this Guarantee
is endorsed in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest on, if any, of such Note, if lawful, and the payment or performance of
all other obligations of the Issuer under the Indenture or the Notes, to the
holder of such Note and the Trustee, all in accordance with and subject to the
terms and limitations of such Note and Article Thirteen of the Indenture. This
Guarantee will not become effective until the Trustee duly executes the
certificate of authentication on this Note. This Guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of law principles thereof. All references in this Guarantee
to interest shall include any Additional Amounts or Additional Interest.
Dated: November 2, 1998
TYCO INTERNATIONAL LTD.
By:
---------------------
Title:
6
<PAGE>
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
5.875% NOTES DUE 2004
1. INDENTURE. (a) This Note is one of a duly authorized issue of notes of
the Issuer (hereinafter called the "Notes") of a series designated as the 5.875%
Notes due 2004 of the Issuer, initially limited in aggregate principal amount to
$400,000,000, all issued or to be issued under and pursuant to an indenture,
dated as of June 9, 1998, as amended and supplemented by Supplemental Indenture
No. 5, dated as of November 2, 1998 (as so amended and supplemented, the
"Indenture"), among the Issuer, Tyco International Ltd. ("Tyco") and The Bank of
New York, as Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Issuer, Tyco, the Trustee and the Holders of the Notes.
(b) Other debentures, notes, bonds or other evidences of indebtedness
(together with the Notes, hereinafter called the "Securities") may be issued
under the Indenture in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary from the Notes and each other, as in the
Indenture provided.
(c) All capitalized terms used in this Note (or the related Guarantee)
which are defined in the Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
2. AMENDMENTS AND WAIVERS. (a) The Indenture contains provisions
permitting the Issuer and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Securities of each such series; PROVIDED, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the
7
<PAGE>
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.1 of the Indenture or
the amount thereof provable in bankruptcy pursuant to Section 4.2 of the
Indenture, or impair or affect the rights of any Holder to institute suit for
the payment thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holder of each Security affected.
(b) It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Securities of any series, prior to
any declaration accelerating the maturity of such Securities, the Holders of a
majority in aggregate principal amount Outstanding of the Securities of such
series (or, in the case of certain defaults or Events of Default, all or certain
series of the Securities) may on behalf of the Holders of all the Securities of
such series (or all or certain series of the Securities, as the case may be)
waive any such past default or Event of Default and its consequences. The
preceding sentence shall not, however, apply to a default in the payment of the
principal of or premium, if any, or interest on any of the Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
3. OBLIGATION TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, Tyco or any other
obligor on the Notes, which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on this Note in the manner, at the respective
times, at the rate, at the place and in the coin or currency herein prescribed.
4. REDEMPTION. This Note may be redeemed, in whole or in part, at the
option of the Issuer at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of this Note, 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
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 of
twelve 30-day months) at the Adjusted Redemption Treasury Rate plus 15 basis
points plus, in each case, accrued interest thereon to the date of redemption.
This Note is also subject to redemption to the extent provided in Article Twelve
of the Indenture.
"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
8
<PAGE>
its principal amount) equal to the Comparable Redemption Treasury Price for such
redemption date.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"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 will 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, (i) 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 (ii) 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 Lehman Brothers
Inc. 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.
5. CERTAIN COVENANTS. The Indenture restricts the Issuer's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Issuer is obliged to abide by certain covenants, including covenants limiting
the amount of liens it may incur, as well as its ability to enter into sale and
leaseback transactions, a covenant limiting the ability of its subsidiaries to
incur indebtedness, and a covenant requiring it to pay or discharge all taxes,
all as more fully described in the Indenture. All of such covenants are subject
to the covenant Defeasance procedures outlined in the Indenture.
6. EFFECT OF EVENT OF DEFAULT. If an Event of Default shall have occurred
and be continuing under the Indenture, the principal hereof may be declared, and
upon such declaration
9
<PAGE>
shall become, due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
7. DEFEASANCE. The Indenture contains provisions for Defeasance and
covenant Defeasance at any time of the indebtedness on this Note upon compliance
by the Issuer with certain conditions set forth therein.
8. DENOMINATIONS; TRANSFER. (a) The Notes are issuable in registered form
without coupons in denominations of $1,000 and any multiple of $1,000 at the
office or agency of the Issuer in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations provided in the
Indenture.
(b) Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture. This Note may also be surrendered
for exchange at the aforesaid office or agency for Notes in other authorized
denominations in an equal aggregate principal amount. No service charge shall be
made for any registration of transfer or any exchange of the Notes, except that
the Issuer may require payment of any tax or other governmental charge imposed
in connection therewith.
(c) A certificate in global form representing all of a portion of the
Notes may not be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or any such nominee to a
successor Depositary for such Notes or a nominee of such successor Depositary.
9. HOLDER AS OWNER. The Issuer, Tyco, the Trustee and any authorized agent
of the Issuer, Tyco or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal hereof
and, subject to the provisions on the face hereof, interest hereon, and for all
other purposes, and none of the Issuer, Tyco or the Trustee or any authorized
agent of the Issuer, Tyco or the Trustee shall be affected by any notice to the
contrary.
10. NO LIABILITY OF CERTAIN PERSONS. No recourse under or upon any
obligation, covenant or agreement of the Issuer or Tyco in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, or any
past, present or future shareholder, officer or director, as such, of the
Issuer, Tyco or of any successor corporation of either of them, either directly
or through the Issuer, Tyco or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
10
<PAGE>
11. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Notes other than Holders of Unrestricted Global Notes
and Holders of Unrestricted Definitive Notes shall have all the rights set forth
in the Registration Rights Agreement, dated as of November 2, 1998, among the
Issuer, Tyco International Ltd. and the parties named on the signature pages
thereof.
12. GOVERNING LAW. The laws of the State of New York govern the Indenture
and this Note.
11
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto:
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note of Tyco International Group S.A. and all rights thereunder and
hereby irrevocably constitutes and appoints such person attorney to transfer
such Note on the books of Tyco International Group S.A., with full power of
substitution in the premises.
Dated:
---------------------------------------
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE SIGNATURE
SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER
ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY SUCH OTHER ENTITY WHOSE
SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO THE TRANSFER AGENT.
12
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in the Global Note, have
been made:
<TABLE>
<CAPTION>
Amount of Amount of
decrease in increase in Principal Amount of this Global Signature of Authorized
Date of Principal Amount Principal Amount Note following such decrease (or Officer of Trustee or Note
Exchange of this Global Note of this Global Note increase) Custodian
------------------- ------------------- -------------------------------- --------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
* This Schedule may be used by the Trustee in respect of a Global Note, and,
if so used, shall be deemed a part thereof for all purposes.
13
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Tyco International Group S.A.
[__________________]
The Bank of New York
[__________________]
Re: 5.875% Notes due 2004
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of June 9, 1998,
and the Supplemental Indenture No. 5 dated November 2, 1998 (collectively, the
"Indenture") among Tyco International Group S.A., Tyco International Ltd. and
The Bank of New York as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
[___] 1. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A
144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction
<PAGE>
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
[___] 2. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Temporary Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
[__] 3. CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A RESTRICTED
DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE
144A OR REGULATION S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Regulation S Global
Notes, Rule 144A Global Notes, and Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act and any applicable blue sky securities
laws of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):
[__] (a) such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Regulation S Global Note, Rule 144A Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by a certificate executed by the Transferee in the form of Exhibit D to the
Indenture; or
<PAGE>
[__] (b) such transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any State of the United States.
[ ] 4. Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
[ ] (a) CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Note, the Rule 144A Global Notes, the Restricted Definitive Notes and in the
Indenture.
[ ] (b) CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Rule 144A Global Notes, the Restricted
Definitive Notes and in the Indenture.
[ ] (c) CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Notes, the Rule 144A Global Notes, the Restricted Definitive Notes and in the
Indenture.
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated: , .
------------------ -----
<PAGE>
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
[ ] (a) a beneficial interest in the:
[ ] (i) 144A Global Note (CUSIP _____), or
[ ] (ii) Regulation S Global Note (CUSIP _____).
[ ] (b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
/CHECK ONE/
[ ] (a) a beneficial interest in the:
[ ] (i) 144A Global Note (CUSIP _____), or
[ ] (ii) Regulation S Global Note (CUSIP _____), or
[ ] (iii) Unrestricted Global Note (CUSIP _____); or
[ ] (b) a Restricted Definitive Note; or
[ ] (c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Tyco International Group S.A.
[_________________]
The Bank of New York
[_________________]
Re: 5.875% Notes due 2004
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of June 9, 1998,
and the Supplemental Indenture No. 5 dated November 2, 1998 (collectively, the
"Indenture") among Tyco International Group S.A., Tyco International Ltd. and
the Bank of New York.
____________, (the "Owner") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
[ ] 1. CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A REGULATION S GLOBAL
NOTE OR RULE 144A GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE. In connection with the Exchange of the Owner's beneficial interest in a
Regulation S Global Note or Rule 144A Global Note for a beneficial interest in
an Unrestricted Global Note in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
REGULATION S GLOBAL NOTES OR RULE 144A GLOBAL NOTES FOR RESTRICTED DEFINITIVE
NOTES OR BENEFICIAL INTERESTS IN REGULATION S GLOBAL NOTES OR RULE 144A GLOBAL
NOTES
-1-
<PAGE>
[ ] (a) CHECK IF EXCHANGE IS TO A RESTRICTED DEFINITIVE NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Rule 144A
Global Note or a Regulation S Global Notes for a Restricted Definitive Note with
an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner's own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Note and in the Indenture and the Securities Act.
[ ] (b) CHECK IF EXCHANGE IS TO BENEFICIAL INTEREST IN A RULE 144A GLOBAL
NOTE OR A REGULATION S GLOBAL NOTE. In connection with the Exchange of the
Owner's Note for a beneficial interest in the [CHECK ONE] [ ] 144A Global Note,
[ ] Regulation S Global Note, with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Rule 144A Global Notes,
Regulation S Global Notes or Restrictive Definitive Notes and pursuant to and in
accordance with the Securities Act, and in compliance with any applicable blue
sky securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Rule 144A Global Notes or Regulation
S Global Notes as the case may be and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated: , .
------------------ -----
-2-
<PAGE>
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Tyco International Group S.A.
[_________________]
The Bank of New York
[_________________]
Re: 5.875% Notes due 2004
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of June 9, 1998, and the
Supplemental Indenture No. 5 dated November 2, 1998 (collectively, the
Indenture") among Tyco International Group S.A., Tyco International Ltd. And The
Bank of New York as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of Transferee's:
[ ] (a) beneficial interest in a Global Note, or
[ ] (b) Definitive Note,
we confirm that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1993, as
amended (the "Securities Act")),
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<PAGE>
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Notes for investment purposes
and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or other applicable securities
laws and we have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand and acknowledge that the Notes have not been registered
under the Securities Act, or any other applicable securities law and may not be
offered, sold or otherwise transferred except in compliance with the
registration requirements of the Securities Act or any other applicable
securities law, or pursuant to an exemption therefrom, and in each case in
compliance with the conditions for transfer set forth below. We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes
to offer, sell or otherwise transfer such Notes prior to the date which is two
years after the later of the date of original issue and the last date on which
the Company or any affiliate of the Company was the owner of such Notes (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) for so long as the Notes are eligible
for resale pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "Qualified Institutional Buyer" within the meaning of
Rule 144A (a "QIB") that purchases for its own account or for the account of a
QIB and to whom notice is given that the transfer is being made in reliance on
Rule 144A, (d) pursuant to offers and sales to non-U.S. persons that occur
outside the United States within the meaning of Regulation S under the
Securities Act, (e) to an institutional "accredited investor" within the meaning
of subparagraphs (a)(1), (a)(2), (a)(3) or (a)(7) or Rule 501 under the
Securities Act that is acquiring the Notes for its own account or for the
account of such an institutional "accredited investor" for the investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and to compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (e) above
prior to the Resale Restriction Termination Date, the transferor shall deliver
to the trustee (the "Trustee") under the Indenture pursuant to which the Notes
are issued a letter from the transferee substantially in the form of this letter
or as acceptable to the Trustee, which shall provide, among other things, that
the transferee is a person or entity as defined in paragraph 1 of this letter
and that is acquiring such Notes for investment purposes and not for
distribution violation of the Securities Act. We acknowledge that the Company
and the Trustee reserve the right prior to any offer, sale or other transfer of
the Notes pursuant to clauses (d), (e) and (f) above prior to the Resale
Restriction Termination Date to require the delivery of any opinion of counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
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<PAGE>
3. We are acquiring the Notes purchased by us for our own account or for one
or more accounts as to each of which we exercise sole investment discretion.
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By: (Name of Purchaser)
Date:
----------------------
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated: , .
------------------ -----
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Exhibit 4.3
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE NO. 6
$400,000,000
6.125% Notes due 2008
THIS SUPPLEMENTAL INDENTURE NO. 6, dated as of November 2, 1998, among
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Company"), TYCO
INTERNATIONAL LTD., a Bermuda company ("Tyco"), and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company and Tyco have heretofore executed and delivered to
the Trustee an Indenture, dated as of June 9, 1998 (the "Indenture"), providing
for the issuance from time to time of one or more series of the Company's
Securities;
WHEREAS, Article Seven of the Indenture provides for various matters
with respect to any series of Securities issued under the Indenture to be
established in an indenture supplemental to the Indenture; and
WHEREAS, Section 7.1(e) of the Indenture provides that the Company,
Tyco and the Trustee may enter into an indenture supplemental to the Indenture
to establish the form or terms of Securities of any series as permitted by
Sections 2.1 and 2.4 of the Indenture.
NOW THEREFORE: In consideration of the premises and the issuance of the
series of Securities provided for herein, the Company, Tyco and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders of the Securities of such series as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 RELATION TO INDENTURE. This Supplemental Indenture No. 6
constitutes an integral part of the Indenture.
SECTION 1.2 DEFINITIONS. For all purposes of this Supplemental
Indenture No. 6, the following terms shall have the respective meanings set
forth below:
"ADJUSTED REDEMPTION TREASURY RATE" means, with respect to any
<PAGE>
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.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules
and procedures of the Depositary, Euroclear or Cedel, as the case may
be, that apply to such transfer or exchange.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which banking institutions in The City of New York are
authorized or obligated by law, executive order or governmental decree
to be closed.
"CEDEL" means Cedel Bank, SA.
"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 will
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, (i) 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 (ii) if
the Quotation Agent obtains fewer than four such Redemption Reference
Treasury Dealer Quotations, the average of all such Redemption
Reference Treasury dealer Quotations.
"CUSTODIAN" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"DEFINITIVE NOTE" means a certificated Note in the form of Exhibit
A-1 hereto, registered in the name of the Holder thereof and issued in
accordance with Section 2.9 hereof, except that such Note shall not
bear the Global Note Legend.
"EUROCLEAR" means the Euroclear Clearance System.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer
pursuant to Section 2.9(f) hereof; following the exchange of interests
in the Rule 144A
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Global Note, the Regulation S Global Note and the Restricted Definitive
Note for Exchange Notes pursuant to an effective registration
statement, the defined term "Exchange Notes" and "Notes" shall have the
same meaning and be entitled to the same rights under the Indenture.
"EXCHANGE OFFER" means the exchange offer by the Company of the
Exchange Notes for the Notes issued in reliance upon an exemption from
registration under the Securities Act on the date hereof in accordance
with the provisions of the Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, including the prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein
filed by the Company and Tyco in accordance with the Registration
Rights Agreement in connection with the Exchange Offer.
"GLOBAL NOTES" means, individually and collectively, any of the
Notes issued as global notes under the Indenture.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.9(g)(ii), which is required to be placed on all Global Notes issued
under the Indenture.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"INITIAL PURCHASER" means each of Lehman Brothers Inc., J.P.
Morgan Securities Inc., Credit Suisse First Boston Corporation and
Donaldson, Lufkin & Jenrette Securities Corporation.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is
an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, who is not also a QIB.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by
such Holders in connection with the Exchange Offer.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" has the meaning assigned to it in Section 2.1 hereof.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or
Cedel, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Cedel).
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<PAGE>
"PARTICIPATING BROKER DEALER" means the Initial Purchasers and any
other broker-dealer which makes a market in the Notes and exchanges
Notes in the Exchange Offer for Exchange Notes.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.9(g)(i) to be placed on all Notes issued under the Indenture except
where otherwise permitted by the provisions of the Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"QUOTATION AGENT" means a Redemption Reference Treasury Dealer
appointed as such agent by the Company.
"REDEMPTION REFERENCE TREASURY DEALER" means each of Lehman
Brothers Inc. 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.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of November 2, 1998, by and among the Company, Tyco
and the Initial Purchasers, as such agreement may be amended, modified
or supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the Securities
Act or any successor rule or regulation substantially to the same
effect.
"REGULATION S GLOBAL NOTE" means a global Note in the form of
Exhibit A-2 hereto bearing the Global Note Legend and the legend in
Section 2.9(g)(iii) hereof and deposited with or on behalf of the
Depositary and registered in the name of the Depositary or its nominee.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED PERIOD" means the period beginning on the date hereof
and ending on the date of receipt by the Trustee of (x) a written
certificate from the Depositary, together with copies of certificates
required by Rule 903(b)(3)(ii)(B) under the Securities Act and (y) an
Officers' Certificate from the Company certifying as to the end of the
end of the 40-day restricted period as defined in
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<PAGE>
Regulation S and any other matters required by the Applicable
Procedures.
"RULE 144" means Rule 144 promulgated under the Securities Act,
any successor rule or regulation to substantially the same effect or
any additional rule or regulation under the Securities Act that permits
transfers of restricted securities without registration such that the
transferee thereof holds securities that are freely tradeable under the
Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act
or any successor rule or regulation to substantially the same effect.
"RULE 144A GLOBAL NOTE" means a global Note in the form of Exhibit
A-1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee.
"RULE 903" means Rule 903 promulgated under the Securities Act or
any successor rule or regulation substantially to the same effect.
"RULE 904" means Rule 904 promulgated the Securities Act or any
successor rule or regulation substantially to the same effect.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the United States Securities Act of 1933,
as amended.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration
statement of the Company and Tyco filed pursuant to the provisions of
the Registration Rights Agreement on an appropriate form under Rule 415
under the Securities Act, or any 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
documents incorporated by reference therein.
"UNRESTRICTED GLOBAL NOTE" means a global Note (other than a
Regulation S Global Note) in the form of Exhibit A-1 attached hereto
that bears the Global Note Legend, and that is deposited with or on
behalf of and registered in the name of the Depositary, representing a
series of Notes that do not bear the Private Placement Legend.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement
Legend.
"U.S. PERSON" means a U.S. Person as defined in Rule 902(o) under
the Securities Act.
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<PAGE>
SECTION 1.3 RULES OF CONSTRUCTION. For all purposes of this
Supplemental Indenture No. 6:
(a) capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 6; and
(c) the terms "HEREIN", "HEREOF", "HEREUNDER" and other words of
similar import refer to this Supplemental Indenture No. 6.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 TITLE OF THE SECURITIES. There shall be a series of
Securities designated as the "6.125% Notes due 2008" (the "Notes").
SECTION 2.2 FORM AND DATING.
(a) GENERAL.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibits A-1 or A-2, as applicable, hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of the Indenture Supplement No. 6, and the
Company, Tyco and the Trustee, by their execution and delivery of the Indenture
Supplement No. 6, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of the Indenture Supplement No. 6, the provisions of the
Indenture Supplement No. 6 shall govern and be controlling.
(b) RULE 144A GLOBAL NOTES; DEFINITIVE NOTES.
Notes issued in global form shall be substantially in the form of
Exhibits A-1 or A-2 attached hereto (including the Global Note Legend thereon).
The Company hereby designates The Depository Trust Company as the initial
Depositary for the Global Notes. Notes offered and sold to QIBs shall be issued
initially in the form of the Rule 144A Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee at
its New York office, as custodian for the Depositary, duly executed by the
Company and Tyco and authenticated by the Trustee as hereinafter provided. Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it
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<PAGE>
shall represent the aggregate principal amount of outstanding Notes from time to
time as conclusively reflected in the books and records of the Trustee endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemption. Any change in the principal amount of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee as the custodian for the Depositary, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.9 hereof.
Notes offered and sold to Institutional Accredited Investors shall be
issued in definitive form in substantially the form of Exhibit A-1 attached
hereto (but without the Global Note Legend thereon).
(c) REGULATION S GLOBAL NOTES.
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Global Note, which shall be deposited
on behalf of the purchasers of the Notes represented thereby with the Trustee,
at its New York office, as custodian for the Depositary, and registered in the
name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedel Bank, duly executed by
the Company and Tyco and authenticated by the Trustee as hereinafter provided.
During the Restricted Period, interests in the Regulation S Global Note must be
held through Euroclear or Cedel, if the holders are participants in such
systems, or indirectly through organizations that are participants in such
systems.
Following the termination of the Restricted Period, beneficial
interests in the Regulation S Global Note may be held, directly or indirectly,
in the account of any Participant of the Depositary.
(d) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Global Note
that are held by Participants through Euroclear or Cedel Bank.
SECTION 2.3 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT. The aggregate
principal amount of the Notes shall not initially exceed $400,000,000.
SECTION 2.4 PRINCIPAL PAYMENT DATE. Subject to the provisions of
Section 2.7 hereof and Articles Four and Twelve of the Indenture, the principal
of the Notes shall be become due and payable in a single installment on November
1, 2008.
SECTION 2.5 INTEREST AND INTEREST RATES. Interest on the Notes shall be
payable semiannually on May 1 and November 1 of each year beginning on May 1,
1999 (each, an
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"INTEREST PAYMENT DATE"); PROVIDED, HOWEVER, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment Date
shall be the next succeeding Business Day, and no additional interest shall be
paid in respect of such intervening period. The interest rate borne by the Notes
will be 6.125% per annum until the Notes are paid in full subject, however, to
the following provisions. In the event that (i) the Exchange Offer Registration
Statement is not filed with the SEC on or prior to the 90th calendar day
following the original issue of the Notes, (ii) the Exchange Offer Registration
Statement has not been declared effective by the SEC on or prior to the 150th
calendar day following the original issue of the Notes or (iii) 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
original issue of the Notes (each such event in clauses (i) through (iii) above,
a "REGISTRATION DEFAULT"), the interest rate borne by the Notes shall be
increased by an amount ("ADDITIONAL INTEREST") equal to an additional one
quarter of one percent (0.25%) per annum upon the occurrence of each
Registration Default, which rate will increase by an additional one quarter of
one percent (0.25%) per annum 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 1.0% 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 as set forth above because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC (it being understood that in any such circumstance the Company shall be
required to file a Shelf Registration Statement and Additional Interest shall be
payable if such Shelf Registration Statement is not declared effective as
provided in clause (iii) above); and PROVIDED FURTHER that Additional Interest
shall only be payable in the case a Shelf Registration Statement is not declared
effective as aforesaid with respect to notes that have the right to be included,
and whose inclusion has been requested, in the Shelf Registration Statement.
Following the cure of all Registration Defaults applicable to the respective
Notes, the accrual of Additional Interest will cease and the interest rate will
revert to 6.125% per annum.
If a Shelf Registration Statement is declared effective but shall
thereafter become unusable by the Holder of Notes for any reason (whether or not
the Company had the right to prevent the Holders from distributing Notes during
the 30 day period described in the Indenture), 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, the interest rate borne by the
Notes included in such Shelf Registration Statement will be increased by an
amount ("ADDITIONAL INTEREST") equal to 0.25% per annum 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 at the beginning of each subsequent 90-day period,
provided the maximum aggregate increase in the interest rate will in no event
exceed 1.0% per annum. Upon the Shelf Registration Statement once again becoming
usable, the interest rate borne by the Notes included therein will be reduced to
the original interest rate if the Company is otherwise in compliance with the
Registration Rights Agreement with respect to such Notes at that time.
Additional Interest in accordance with this paragraph shall be computed based
upon the actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is unusable. For all purposes of this Indenture
Supplement No. 6, the term interest
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<PAGE>
shall include "Additional Amounts" and "Additional Interest".
The interest payable on each Interest Payment Date shall be the amount
of interest accrued from November 2, 1998 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, until the principal amount of the Notes has been paid or duly provided
for. Interest shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
The interest payable on any Note which is punctually paid or duly
provided for on any Interest Payment Date shall be paid to the Person in whose
name such Note is registered at the close of business on the April 15 or October
15 (in each case, whether or not a Business Day), respectively, immediately
preceding such Interest Payment Date (each, a "Regular Record Date"). Interest
payable on any Note which is not punctually paid or duly provided for on any
Interest Payment Date therefor shall forthwith cease to be payable to the Person
in whose name such Note is registered at the close of business on the Regular
Record Date immediately preceding such Interest Payment Date, and such interest
shall instead be paid to the Person in whose name such Note is registered at the
close of business on the record date established for such payment by notice by
or on behalf of the Company to the Holders of the Notes mailed by first-class
mail not less than 15 days prior to such record date to their last addresses as
they shall appear upon the Security register, such record date to be not less
than five days preceding the date of payment of such defaulted interest.
The Company and Tyco shall notify the Trustee within five Business Days
after each and every date (an "EVENT DATE") on which an event occurs in respect
of which Additional Interest is required to be paid. The obligation to pay
Additional Interest shall be deemed to accrue from and including the day
following the applicable Event Date. Additional Interest shall be paid by
depositing with the Trustee for the benefit of the Holders of the Notes entitled
to receive such Additional Interest, on or before the applicable Interest
Payment Date, immediately available funds in sums sufficient to pay the
Additional interest then due. Additional Interest shall be payable to the Person
otherwise entitled to be paid the interest payable on the Notes on such Interest
Payment Date.
SECTION 2.6 PLACE OF PAYMENT. The place of payment where the Notes may
be presented or surrendered for payment, where the principal of and interest and
any other payments due on the Notes are payable, where the Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Notes and the Indenture may be
served shall be in the Borough of Manhattan, The City of New York, and the
office or agency maintained by the Company for such purpose shall initially be
the Corporate Trust Office of the Trustee.
At the option of the Company, interest on the Notes may be paid (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Holders of the Notes or (ii) at the expense of the
Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in writing to the Trustee by such Person by the applicable
record date.
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SECTION 2.7 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 25 basis points plus, in each case, accrued interest thereon to the
date of redemption.
The Notes are also subject to redemption to the extent described in
Article Twelve of the Indenture.
The Company shall have no obligation to redeem or purchase the Notes
pursuant to any sinking fund or analogous provisions or upon the happening of
any specified event or at the option of any Holder of the Notes.
SECTION 2.8 CURRENCY. Principal and interest on the Notes shall be
payable in United States dollars.
SECTION 2.9 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES.
A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Company for Definitive
Notes if (i) the Company delivers to the Trustee notice from the Depositary that
it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 90 days after the
date of such notice from the Depositary; or (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should be
exchanged for Definitive Notes and delivers a written notice to such effect to
the Trustee; provided that in no event shall the Regulation S Global Note be
exchanged by the Company for Definitive Notes prior to the expiration of the
Restricted Period. Global Notes may also be, subject to compliance with the
terms of this Section 2.9, exchanged for Definitive Notes (x) upon the request
of any holder of Notes if an Event of Default has occurred and is continuing for
a period of at least 180 days or (y) in connection with any transfer of an
interest in the Global Note to an Institutional Accredited Investor. Upon the
occurrence of any of the preceding events, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.10 and
2.12 of the Indenture.
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(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES.
The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
the Indenture and the Applicable Procedures. Transfers of beneficial interests
in the Global Notes also shall require compliance with either subparagraph (i)
or (ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME TYPE OF GLOBAL
NOTE. Beneficial interests in any Rule 144A Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in a Rule 144A Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend.
Beneficial interests in any Regulation S Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in a Regulation S Global Note; provided, however, that prior
to the expiration of the Restricted Period beneficial interests in the
Regulation S Global Note may only be transferred in accordance with the
Applicable Procedures of Euroclear and Cedel. Beneficial interests in
any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.9(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN
GLOBAL NOTES. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.9(b)(i) above,
and, subject to any other requirement in this Section 2.9, the
transferor of such beneficial interest must deliver to the Registrar
either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in a Global Note of another type in an amount equal
to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B), subject to Section 2.9(a), (1) a written
order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal
to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange; provided that
in no event shall Definitive Notes be issued upon the transfer or
exchange of beneficial interests in the Regulation S Global Note prior
to the expiration of the Restricted Period. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in
Global Notes contained herein and in the Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to Section
2.9(h) hereof.
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(iii) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RULE 144A
GLOBAL NOTE OR A REGULATION S GLOBAL NOTES FOR BENEFICIAL INTERESTS IN
AN UNRESTRICTED GLOBAL NOTE. A beneficial interest in Rule 144A Global
Note may be exchanged by any holder thereof for a beneficial interest
in an Unrestricted Global Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if (x) the exchange or transfer complies with
the requirements of Section 2.9(b)(ii) above and (y):
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of
Transmittal or via the Depositary's book-entry system in a form
acceptable to the Trustee that it is not (1) a broker-dealer, (2)
a Person participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule 144) of
the Company, and such Letter of Transmittal or book-entry system
certification shall satisfy the requirements of Section 2.9(ii);
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures
so require, an Opinion of Counsel to the effect that the transfer
is permitted, and that upon transfer the Notes will not be
restricted, under the Securities Act, is furnished to the Trustee
and Registrar.
If any such transfer is effected at a time when an Unrestricted
Global Note has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.5 of
the Indenture, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate
principal amount of beneficial interests so transferred.
(iv) TRANSFER AND EXCHANGE OF INTERESTS TO AND FROM REGULATION S
GLOBAL NOTES (OTHER THAN AS PROVIDED IN CLAUSE (iii) ABOVE).
(A) TRANSFER AND EXCHANGE OF INTERESTS IN A REGULATION S
GLOBAL NOTE PRIOR TO THE TERMINATION OF THE RESTRICTED PERIOD FOR
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL NOTE. A beneficial
interest
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in any Regulation S Global Note may be exchanged by any holder
thereof for a beneficial interest in a Rule 144A Global Note or
transferred to a Person who takes delivery thereof in the form of
a beneficial interest in a Rule 144A Global Note, if (x) the
exchange or transfer complies with the requirements of Section
2.9(b)(ii) above, and (y) the holder of the beneficial interest in
the Regulation S Global Note delivers to the Trustee and the
Registrar a letter in the form of Exhibit B with the certification
set forth in paragraph 1 or Exhibit C with the certification set
forth in paragraph 2(b), as applicable, completed.
(B) TRANSFER AND EXCHANGE OF INTERESTS IN A REGULATION S
GLOBAL NOTE FOLLOWING THE TERMINATION OF THE RESTRICTED PERIOD FOR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE. A beneficial
interest in any Regulation S Global Note following the termination
of the Restricted Period may be exchanged by any holder thereof
for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note, if (x) the
exchange or transfer complies with the requirements of Section
2.9(b)(ii) above and (y) the holder of the Regulation S Global
Note delivers to the Trustee and the Registrar a letter in the
form of Exhibit B with the certification set forth in paragraph
4(b) or Exhibit C with the certification set forth in paragraph 1,
as applicable, completed.
(C) TRANSFER AND EXCHANGE OF INTERESTS IN A RULE 144A GLOBAL
NOTE FOR BENEFICIAL INTERESTS IN A REGULATION S GLOBAL NOTE. A
beneficial interest in any Rule 144A Global Note may be exchanged
by any holder thereof for a beneficial interest in a Regulation S
Global Note or transferred to a Person who takes delivery thereof
in the form of a beneficial interest in a Regulation S Global
Note, if (x) the exchange or transfer complies with the
requirements of Section 2.9(b)(ii) above and (y) the holder of the
beneficial interest in the Rule 144A Global Note delivers to the
Trustee and the Registrar a letter in the form of Exhibit B with
the certification set forth in paragraph 2 or Exhibit C with the
certification set forth in paragraph 2(b), as applicable,
completed.
(c) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL NOTES FOR
DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RULE 144A GLOBAL NOTES TO RESTRICTED
DEFINITIVE NOTES. If any holder of a beneficial interest in a Rule 144A
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted
Definitive Note in the circumstances set forth in Section 2.9(a)
hereof, such Definitive Note shall be subject to all restrictions on
transfer contained therein and shall be issued,
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upon receipt by each of the Trustee and the Registrar of the following
documentation:
(A) if the holder of a beneficial interest in a Rule 144A
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, Exhibit C with the certification set
forth in paragraph 2`(a) completed;
(B) if such beneficial interest is being transferred in
accordance with Rule 144A under the Securities Act, a letter in
the form of Exhibit B with the certification set forth in
paragraph 1 completed;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a letter in the form of
Exhibit B with the certification set forth in paragraph 2
completed; or
(D) if any such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act, a letter
in the form of Exhibit B with the certification set forth in
paragraph 3(a) completed.
(ii) intentionally omitted.
(iii) BENEFICIAL INTERESTS IN RULE 144A GLOBAL NOTES OR REGULATION
S GLOBAL NOTES TO UNRESTRICTED DEFINITIVE NOTES. Subject to Section
2.9(a), a holder of a beneficial interest in a Rule 144A Global Note or
Regulation S Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if such exchange or transfer is in accordance with
the Applicable Procedures and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
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(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures
so require, an Opinion of Counsel to the effect that the transfer
is permitted, and that upon transfer the Notes will not be
restricted, under the Securities Act, is furnished to the Trustee
and Registrar.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE Notes. A holder of a beneficial interest in an
Unrestricted Global Note may, in the circumstances described in Section
2.9(a), exchange such beneficial interest for an Unrestricted
Definitive Note or transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note.
Any transfer pursuant to this Section 2.9(c) shall satisfy the
requirements of Section 2.9(b)(ii). In any such case, the Trustee shall
cause the aggregate principal amount of the applicable Global Note to
be reduced accordingly pursuant to Section 2.9(h) hereof, and the
Company shall execute and the Trustee, upon receipt of an
Authentication Order in accordance with Section 2.5 of the Indenture,
shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Restricted Definitive Note issued in exchange for a beneficial interest
in a Global Note pursuant to this Section 2.9(c) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes
to the Persons in whose names such Notes are so registered.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS
IN GLOBAL NOTES.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN RULE
144A GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Rule 144A
Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Rule 144A Global Note, then, upon receipt by each of the Trustee and
the Registrar of a letter in the form of Exhibit B with the
certification set forth in paragraph 1 or Exhibit C with the
certification set forth in paragraph 2(b), as applicable, completed,
the Trustee shall cancel the Restricted Definitive Note and increase or
cause to be increased the aggregate principal amount of the appropriate
Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
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Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal or via the Depositary's book-entry system in
a form acceptable to the Trustee, that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures
so require, an Opinion of Counsel to the effect that the transfer
is permitted, and that upon transfer the Notes will not be
restricted, under the Securities Act, is furnished to the Trustee
and Registrar.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time if permitted by the Applicable
Procedures and applicable law. Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
(iv) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
REGULATION S GLOBAL NOTES. A beneficial interest in any Restricted
Definitive Note may be exchanged by any holder thereof who is a
non-U.S. Person for a beneficial interest in a Regulation S Global Note
or transferred to a Non U.S. Person who takes delivery thereof in the
form of a beneficial interest in a Regulation S Global Note, if (x) the
holder of the Restricted Definitive Note delivers to the Trustee and
the Registrar a letter in the form of Exhibit B with the certification
set forth in paragraph 2 or Exhibit C with the certification set forth
in paragraph 2(b), as applicable, completed and (y) if the Trustee and
the Registrar so request or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Trustee and the
Registrar is furnished to the Trustee and the
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Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act.
If any such exchange or transfer from a Definitive Note to a beneficial
interest in a Global Note is effected at a time when a Global Note of the
appropriate type has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 5 of the Indenture
the Trustee shall authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.9(e), the Registrar shall register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.9(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE NOTES.
Any restricted Definitive Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a
Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a letter in the form of Exhibit B with
certification set forth in paragraph 1 completed,
(B) if the transfer will be made to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or 904 under the
Securities, then the transferor must deliver a letter in the form
of Exhibit B with the certification set forth in paragraph 2
completed; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a letter in the form of
Exhibit B with the appropriate certification set forth in
paragraph 3 completed, as well as an Opinion of Counsel in form
and substance acceptable to the Trustee.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES.
Any Restricted Definitive Note may be exchanged by the Holder thereof
for an Unrestricted Definitive Note or transferred to a Person or
Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
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(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal in a form acceptable to the Trustee, that it
is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the
Securities Act, a letter in the form of Exhibit B with the
certification set forth in paragraph 4(a) completed, and, if the
Trustee and the Registrar so request or the Applicable Procedures
so require, an Opinion of Counsel to the effect that the transfer
is permitted, and that upon transfer the Notes will not be
restricted, under the Securities Act, is furnished to the Trustee
and Registrar.
(iii)UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) EXCHANGE OFFER; SHELF REGISTRATION STATEMENT
(i) Upon the occurrence of the Exchange Offer in accordance with
the Registration Rights Agreement, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.5 of
the Indenture, the Trustee shall authenticate (x) one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Rule 144A Global
Notes and Regulation S Global Notes tendered for acceptance by Persons
that certify in the applicable Letters of Transmittal that (A) they are
not broker-dealers, (B) they are not participating in a distribution of
the Exchange Notes and (C) they are not affiliates (as defined in Rule
144) of the Company, and accepted for exchange in the Exchange Offer
and (y) Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such
Notes, the Trustee shall cause the aggregate principal amount of the
applicable Rule 144A Global Notes and/or Regulation S Global Notes to
be reduced accordingly, and the Company shall execute and the Trustee
shall,
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upon receipt of an Authentication Order in accordance with Section 2.5
of the Indenture, authenticate and deliver to the Persons designated by
the Holders of the Restricted Definitive Notes so accepted Unrestricted
Definitive Notes in the appropriate principal amount.
(ii) Following the effectiveness of a Shelf Registration Statement
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.5, of the Indenture the Trustee shall
authenticate from time to time (x) one or more Unrestricted Global
Notes, or, if there shall be at the time one or more Unrestricted
Global Notes outstanding and such increase can be effected in
accordance with Applicable Procedures, the Trustee shall increase or
cause to be increased the aggregate principal amount thereof, in each
case in an aggregate principal amount equal to the principal amount of
the beneficial interests in the Global Notes sold by Persons that
certify as to the consummation of such sale under the Shelf
Registration Statement in a manner acceptable to the Trustee and the
Company and (y) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes
sold by Persons that certify as to the consummation of such sale under
the Shelf Registration Statement in a manner acceptable to the Trustee
and the Company. Concurrently with the issuance of such Unrestricted
Global Notes, the Trustee shall cause the aggregate principal amount of
the applicable Rule 144A Global Notes and/or the Regulation S Global
Notes to be reduced accordingly, and the Company shall execute and the
Trustee shall, upon receipt of an Authentication Order in accordance
with Section 2.5 of the Indenture, authenticate and deliver to the
Persons designated by the Holders of Restricted Definitive Notes so
sold Unrestricted Definitive Notes in the appropriate principal amount.
(g) LEGENDS.
The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under the Indenture unless specifically stated otherwise
in the applicable provisions of the Indenture.
(i) PRIVATE PLACEMENT LEGEND. Except as permitted by subparagraph
(B) below, each Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the
following form:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER: REPRESENTS THAT (1) IT IS (A) A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
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UNDER THE SECURITIES ACT) OR (B) AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) OR (C) NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED
HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT RESELL
OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY EXCEPT TO (A) THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE
EVIDENCED HEREBY (A FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE), (D) OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR
(E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK
OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE
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MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Note which is (i) a
Regulation S Global Note (and any Note issued in exchange therefor
or substitution thereof after the Restricted Period), (ii) a Note
which has been exchanged or transferred pursuant to the Exchange
Offer Registration Statement or the Shelf Registration Statement,
or (iii) a Note which has been transferred in accordance with Rule
144, provided that in such case an Opinion of Counsel is delivered
which states that the Note does not have to bear the Private
Placement Legend in the cases where such opinion is required under
this Indenture, shall not bear the Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.9 OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN CERTAIN
CIRCUMSTANCES IN THE SUPPLEMENTAL INDENTURE NO. 6, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
(iii) REGULATION S GLOBAL NOTE LEGEND. The Regulation S Global
Note shall bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). DURING
THE RESTRICTED PERIOD, INTERESTS IN THIS NOTE MAY ONLY BE HELD THROUGH
EUROCLEAR AND CEDEL."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES.
At such time as all beneficial interests in a particular Global Note
have
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been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 of the Indenture. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary to reflect
such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary to reflect such increase.
SECTION 2.10 DEFEASANCE AND COVENANT DEFEASANCE. The provisions of
Article Nine of the Indenture shall apply to the Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 RATIFICATION. The Indenture, as supplemented and amended by
this Supplemental Indenture No. 6, is in all respects hereby adopted, ratified
and confirmed.
SECTION 3.2 COUNTERPARTS. This Supplemental Indenture No. 6 may be
executed in any number of counterparts, each of which when so executed shall be
deemed an original; and all such counterparts shall together constitute but one
and the same instrument.
SECTION 3.3 AMENDMENTS. This Supplemental Indenture No. 6 may be
amended by the Company and Tyco without the consent of any holder of the Notes
in order for the restrictions on transfer contained herein to be in compliance
with applicable law or the Applicable Procedures.
SECTION 3.4 APPLICABLE PROCEDURES. Notwithstanding anything else
herein, the Company shall not be required to permit a transfer to a global note
that is not permitted by the Applicable Procedures.
SECTION 3.5 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE NO. 6 AND EACH
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
22
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 6 to be duly executed as of the day and year first written above.
TYCO INTERNATIONAL GROUP S.A.
By: /s/ Richard Brann
-------------------------------
Name: Richard Brann
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
-------------------------------
Name: Mark H. Swartz
Title: Executive Vice President
and Chief Financial Officer
THE BANK OF NEW YORK, Trustee
By: /s/ Ming J. Shiang
-------------------------------
Name: Ming J. Shiang
Title: Vice President
23
<PAGE>
EXHIBIT A-1
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN CERTAIN CIRCUMSTANCES DESCRIBED IN THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY
STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:
REPRESENTS THAT (1) IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) OR (C) NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THE NOTE EVIDENCED HEREBY EXCEPT TO (A) THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OR ANY OTHER APPLICABLE JURISDICTION; AND (3) AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF
1
<PAGE>
THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
2
<PAGE>
TYCO INTERNATIONAL GROUP S.A.
6.125% NOTE DUE 2008
No. [ ]
$ CUSIP: 902118 AG 3
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), for
value received, hereby promises to pay to CEDE & CO. or registered assigns,
the principal sum of [ ] Dollars on November 1, 2008, at the office or
agency of the Issuer in the Borough of Manhattan, The City of New York, in
such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts,
and to pay semiannually on May 1 and November 1 of each year (each, an
"Interest Payment Date"; provided, however, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment
Date shall be the next succeeding Business Day but no additional interest
shall be paid in respect of such intervening period), commencing May 1, 1999,
the amount of interest on said principal sum at said office or agency, in
like coin or currency, at the rate per annum specified in the title of this
Note, from November 2, 1998 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for until said principal sum
has been paid or duly provided for. Interest shall be computed on the basis
of a 360-day year consisting of twelve 30-day months. For purposes of this
Note, "Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
The interest payable on any Interest Payment Date which is punctually paid
or duly provided for on such Interest Payment Date will be paid to the Person in
whose name this Note is registered at the close of business on the April 15 or
October 15 (in each case, whether or not a Business Day), as the case may be
(each, a "Regular Record Date"), immediately preceding such Interest Payment
Date. Interest payable on this Note which is not punctually paid or duly
provided for on any Interest Payment Date therefor shall forthwith cease to be
payable to the Person in whose name this Note is registered at the close of
business on the Regular Record Date immediately preceding such Interest Payment
Date, and such interest shall instead be paid to the Person in whose name this
Note is registered at the close of business on the record date established for
such payment by notice by or on behalf of the Issuer to the Holders of the Notes
mailed by first-class mail not less than 15 days prior to such record date to
their last addresses as they shall appear upon the Security register, such
record date to be not less than five days preceding the date of payment of such
defaulted interest. At the option of the Issuer, interest on the Notes may be
paid (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Holders of the Notes or (ii) at the
expense of the Issuer, by wire transfer to an account maintained by the Person
entitled thereto as specified in writing to the Trustee by such Person by the
applicable record date of the Notes.
3
<PAGE>
All references in the Notes (and related Guarantees) to interest shall
include any Additional Interest or Additional Amounts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to on the reverse hereof.
4
<PAGE>
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this instrument
to be signed by its duly authorized officers.
Dated: November 2, 1998
TYCO INTERNATIONAL GROUP S.A.
By:
--------------------------
Title:
By:
--------------------------
Title:
5
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------
Authorized Signatory
6
<PAGE>
GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Note the
payment of principal of, and interest on, the Security upon which this Guarantee
is endorsed in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest on, if any, of such Note, if lawful, and the payment or performance of
all other obligations of the Issuer under the Indenture or the Notes, to the
holder of such Note and the Trustee, all in accordance with and subject to the
terms and limitations of such Note and Article Thirteen of the Indenture. This
Guarantee will not become effective until the Trustee duly executes the
certificate of authentication on this Note. This Guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of law principles thereof. All references in this Guarantee
to interest shall include any Additional Amounts or Additional Interest.
Dated: November 2, 1998
TYCO INTERNATIONAL LTD.
By:
---------------------
Title:
7
<PAGE>
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
6.125% NOTES DUE 2008
1. INDENTURE. (a) This Note is one of a duly authorized issue of notes of
the Issuer (hereinafter called the "Notes") of a series designated as the 6.125%
Notes due 2008 of the Issuer, initially limited in aggregate principal amount to
$400,000,000, all issued or to be issued under and pursuant to an indenture,
dated as of June 9, 1998, as amended and supplemented by Supplemental Indenture
No. 6, dated as of November 2, 1998 (as so amended and supplemented, the
"Indenture"), among the Issuer, Tyco International Ltd. ("Tyco") and The Bank of
New York, as Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Issuer, Tyco, the Trustee and the Holders of the Notes.
(b) Other debentures, notes, bonds or other evidences of indebtedness
(together with the Notes, hereinafter called the "Securities") may be issued
under the Indenture in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary from the Notes and each other, as in the
Indenture provided.
(c) All capitalized terms used in this Note (or the related Guarantee)
which are defined in the Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
2. AMENDMENTS AND WAIVERS. (a) The Indenture contains provisions
permitting the Issuer and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Securities of each such series; PROVIDED, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the
8
<PAGE>
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.1 of the Indenture or
the amount thereof provable in bankruptcy pursuant to Section 4.2 of the
Indenture, or impair or affect the rights of any Holder to institute suit for
the payment thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holder of each Security affected.
(b) It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Securities of any series, prior to
any declaration accelerating the maturity of such Securities, the Holders of a
majority in aggregate principal amount Outstanding of the Securities of such
series (or, in the case of certain defaults or Events of Default, all or certain
series of the Securities) may on behalf of the Holders of all the Securities of
such series (or all or certain series of the Securities, as the case may be)
waive any such past default or Event of Default and its consequences. The
preceding sentence shall not, however, apply to a default in the payment of the
principal of or premium, if any, or interest on any of the Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
3. OBLIGATION TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, Tyco or any other
obligor on the Notes, which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on this Note in the manner, at the respective
times, at the rate, at the place and in the coin or currency herein prescribed.
4. REDEMPTION. This Note may be redeemed, in whole or in part, at the
option of the Issuer at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of this Note, 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
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 of
twelve 30-day months) at the Adjusted Redemption Treasury Rate plus 25 basis
points plus, in each case, accrued interest thereon to the date of redemption.
This Note is also subject to redemption to the extent provided in Article Twelve
of the Indenture.
"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
9
<PAGE>
its principal amount) equal to the Comparable Redemption Treasury Price for such
redemption date.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"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 will 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, (i) 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 (ii) 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 Lehman Brothers
Inc. 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.
5. CERTAIN COVENANTS. The Indenture restricts the Issuer's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Issuer is obliged to abide by certain covenants, including covenants limiting
the amount of liens it may incur, as well as its ability to enter into sale and
leaseback transactions, a covenant limiting the ability of its subsidiaries to
incur indebtedness, and a covenant requiring it to pay or discharge all taxes,
all as more fully described in the Indenture. All of such covenants are subject
to the covenant Defeasance procedures outlined in the Indenture.
6. EFFECT OF EVENT OF DEFAULT. If an Event of Default shall have occurred
and be continuing under the Indenture, the principal hereof may be declared, and
upon such declaration
10
<PAGE>
shall become, due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
7. DEFEASANCE. The Indenture contains provisions for Defeasance and
covenant Defeasance at any time of the indebtedness on this Note upon compliance
by the Issuer with certain conditions set forth therein.
8. DENOMINATIONS; TRANSFER. (a) The Notes are issuable in registered form
without coupons in denominations of $1,000 and any multiple of $1,000 at the
office or agency of the Issuer in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations provided in the
Indenture.
(b) Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture. This Note may also be surrendered
for exchange at the aforesaid office or agency for Notes in other authorized
denominations in an equal aggregate principal amount. No service charge shall be
made for any registration of transfer or any exchange of the Notes, except that
the Issuer may require payment of any tax or other governmental charge imposed
in connection therewith.
(c) A certificate in global form representing all of a portion of the
Notes may not be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or any such nominee to a
successor Depositary for such Notes or a nominee of such successor Depositary.
9. HOLDER AS OWNER. The Issuer, Tyco, the Trustee and any authorized agent
of the Issuer, Tyco or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal hereof
and, subject to the provisions on the face hereof, interest hereon, and for all
other purposes, and none of the Issuer, Tyco or the Trustee or any authorized
agent of the Issuer, Tyco or the Trustee shall be affected by any notice to the
contrary.
10. NO LIABILITY OF CERTAIN PERSONS. No recourse under or upon any
obligation, covenant or agreement of the Issuer or Tyco in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, or any
past, present or future shareholder, officer or director, as such, of the
Issuer, Tyco or of any successor corporation of either of them, either directly
or through the Issuer, Tyco or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
11
<PAGE>
11. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Notes other than Holders of Unrestricted Global Notes
and Holders of Unrestricted Definitive Notes shall have all the rights set forth
in the Registration Rights Agreement, dated as of November 2, 1998, among the
Issuer, Tyco International Ltd. and the parties named on the signature pages
thereof.
12. GOVERNING LAW. The laws of the State of New York govern the Indenture
and this Note.
12
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto:
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note of Tyco International Group S.A. and all rights thereunder and
hereby irrevocably constitutes and appoints such person attorney to transfer
such Note on the books of Tyco International Group S.A., with full power of
substitution in the premises.
Dated:
---------------------------------------
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE SIGNATURE
SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER
ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY SUCH OTHER ENTITY WHOSE
SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO THE TRANSFER AGENT.
13
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in the Global Note, have
been made:
<TABLE>
<CAPTION>
Amount of Amount of
decrease in increase in Principal Amount of this Global Signature of Authorized
Date of Principal Amount Principal Amount Note following such decrease (or Officer of Trustee or Note
Exchange of this Global Note of this Global Note increase) Custodian
- --------- ------------------- ------------------- -------------------------------- --------------------------
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
* This Schedule may be used by the Trustee in respect of a Global Note, and,
if so used, shall be deemed a part thereof for all purposes.
14
<PAGE>
EXHIBIT A-2
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN CERTAIN CIRCUMSTANCES DESCRIBED IN THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). DURING THE RESTRICTED PERIOD,
INTERESTS IN THIS NOTE MAY ONLY BE HELD THROUGH EUROCLEAR AND CEDEL.
<PAGE>
TYCO INTERNATIONAL GROUP S.A.
6.125% NOTE DUE 2008
No. [ ]
$ CUSIP: 902118 AG 3
TYCO INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), for
value received, hereby promises to pay to CEDE & CO. or registered assigns,
the principal sum of [ ] Dollars on November 1, 2008, at the office or
agency of the Issuer in the Borough of Manhattan, The City of New York, in
such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts,
and to pay semiannually on May 1 and November 1 of each year (each, an
"Interest Payment Date"; provided, however, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment
Date shall be the next succeeding Business Day but no additional interest
shall be paid in respect of such intervening period), commencing May 1, 1999,
the amount of interest on said principal sum at said office or agency, in
like coin or currency, at the rate per annum specified in the title of this
Note, from November 2, 1998 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for until said principal sum
has been paid or duly provided for. Interest shall be computed on the basis
of a 360-day year consisting of twelve 30-day months. For purposes of this
Note, "Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
The interest payable on any Interest Payment Date which is punctually paid
or duly provided for on such Interest Payment Date will be paid to the Person in
whose name this Note is registered at the close of business on the April 15 or
October 15 (in each case, whether or not a Business Day), as the case may be
(each, a "Regular Record Date"), immediately preceding such Interest Payment
Date. Interest payable on this Note which is not punctually paid or duly
provided for on any Interest Payment Date therefor shall forthwith cease to be
payable to the Person in whose name this Note is registered at the close of
business on the Regular Record Date immediately preceding such Interest Payment
Date, and such interest shall instead be paid to the Person in whose name this
Note is registered at the close of business on the record date established for
such payment by notice by or on behalf of the Issuer to the Holders of the Notes
mailed by first-class mail not less than 15 days prior to such record date to
their last addresses as they shall appear upon the Security register, such
record date to be not less than five days preceding the date of payment of such
defaulted interest. At the option of the Issuer, interest on the Notes may be
paid (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Holders of the Notes or (ii) at the
expense of the Issuer, by wire transfer to an account maintained by the Person
entitled thereto as specified in writing to the Trustee by such Person by the
applicable record date of the Notes.
-2-
<PAGE>
All references in the Notes (and related Guarantees) to interest shall
include any Additional Interest or Additional Amounts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to on the reverse hereof.
-3-
<PAGE>
IN WITNESS WHEREOF, TYCO INTERNATIONAL GROUP S.A. has caused this instrument
to be signed by its duly authorized officers.
Dated: November 2, 1998
TYCO INTERNATIONAL GROUP S.A.
By:
---------------------------
Title:
By:
---------------------------
Title:
-4-
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
------------------------------
Authorized Signatory
-5-
<PAGE>
GUARANTEE
For value received, TYCO INTERNATIONAL LTD. hereby absolutely,
unconditionally and irrevocably guarantees to the holder of this Note the
payment of principal of, and interest on, the Security upon which this Guarantee
is endorsed in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest on, if any, of such Note, if lawful, and the payment or performance of
all other obligations of the Issuer under the Indenture or the Notes, to the
holder of such Note and the Trustee, all in accordance with and subject to the
terms and limitations of such Note and Article Thirteen of the Indenture. This
Guarantee will not become effective until the Trustee duly executes the
certificate of authentication on this Note. This Guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of law principles thereof. All references in this Guarantee
to interest shall include any Additional Amounts or Additional Interest.
Dated: November 2, 1998
TYCO INTERNATIONAL LTD.
By:
---------------------
Title:
-6-
<PAGE>
REVERSE OF NOTE
TYCO INTERNATIONAL GROUP S.A.
6.125% NOTES DUE 2008
1. INDENTURE. (a) This Note is one of a duly authorized issue of notes of
the Issuer (hereinafter called the "Notes") of a series designated as the 6.125%
Notes due 2008 of the Issuer, initially limited in aggregate principal amount to
$400,000,000, all issued or to be issued under and pursuant to an indenture,
dated as of June 9, 1998, as amended and supplemented by Supplemental Indenture
No. 6, dated as of November 2, 1998 (as so amended and supplemented, the
"Indenture"), among the Issuer, Tyco International Ltd. ("Tyco") and The Bank of
New York, as Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Issuer, Tyco, the Trustee and the Holders of the Notes.
(b) Other debentures, notes, bonds or other evidences of indebtedness
(together with the Notes, hereinafter called the "Securities") may be issued
under the Indenture in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary from the Notes and each other, as in the
Indenture provided.
(c) All capitalized terms used in this Note (or the related Guarantee)
which are defined in the Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
2. AMENDMENTS AND WAIVERS. (a) The Indenture contains provisions
permitting the Issuer and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Securities of each such series; PROVIDED, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the
-7-
<PAGE>
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.1 of the Indenture or
the amount thereof provable in bankruptcy pursuant to Section 4.2 of the
Indenture, or impair or affect the rights of any Holder to institute suit for
the payment thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holder of each Security affected.
(b) It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Securities of any series, prior to
any declaration accelerating the maturity of such Securities, the Holders of a
majority in aggregate principal amount Outstanding of the Securities of such
series (or, in the case of certain defaults or Events of Default, all or certain
series of the Securities) may on behalf of the Holders of all the Securities of
such series (or all or certain series of the Securities, as the case may be)
waive any such past default or Event of Default and its consequences. The
preceding sentence shall not, however, apply to a default in the payment of the
principal of or premium, if any, or interest on any of the Securities. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
3. OBLIGATION TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, Tyco or any other
obligor on the Notes, which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on this Note in the manner, at the respective
times, at the rate, at the place and in the coin or currency herein prescribed.
4. REDEMPTION. This Note may be redeemed, in whole or in part, at the
option of the Issuer at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of this Note, 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
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 of
twelve 30-day months) at the Adjusted Redemption Treasury Rate plus 25 basis
points plus, in each case, accrued interest thereon to the date of redemption.
This Note is also subject to redemption to the extent provided in Article Twelve
of the Indenture.
"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
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<PAGE>
its principal amount) equal to the Comparable Redemption Treasury Price for such
redemption date.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"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 will 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, (i) 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 (ii) 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 Lehman Brothers
Inc. 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.
5. CERTAIN COVENANTS. The Indenture restricts the Issuer's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Issuer is obliged to abide by certain covenants, including covenants limiting
the amount of liens it may incur, as well as its ability to enter into sale and
leaseback transactions, a covenant limiting the ability of its subsidiaries to
incur indebtedness, and a covenant requiring it to pay or discharge all taxes,
all as more fully described in the Indenture. All of such covenants are subject
to the covenant Defeasance procedures outlined in the Indenture.
6. EFFECT OF EVENT OF DEFAULT. If an Event of Default shall have occurred
and be continuing under the Indenture, the principal hereof may be declared, and
upon such declaration
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<PAGE>
shall become, due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
7. DEFEASANCE. The Indenture contains provisions for Defeasance and
covenant Defeasance at any time of the indebtedness on this Note upon compliance
by the Issuer with certain conditions set forth therein.
8. DENOMINATIONS; TRANSFER. (a) The Notes are issuable in registered form
without coupons in denominations of $1,000 and any multiple of $1,000 at the
office or agency of the Issuer in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations provided in the
Indenture.
(b) Upon due presentment for registration of transfer of this Note at
the office or agency of the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture. This Note may also be surrendered
for exchange at the aforesaid office or agency for Notes in other authorized
denominations in an equal aggregate principal amount. No service charge shall be
made for any registration of transfer or any exchange of the Notes, except that
the Issuer may require payment of any tax or other governmental charge imposed
in connection therewith.
(c) A certificate in global form representing all of a portion of the
Notes may not be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or any such nominee to a
successor Depositary for such Notes or a nominee of such successor Depositary.
9. HOLDER AS OWNER. The Issuer, Tyco, the Trustee and any authorized agent
of the Issuer, Tyco or the Trustee may deem and treat the registered Holder
hereof as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal hereof
and, subject to the provisions on the face hereof, interest hereon, and for all
other purposes, and none of the Issuer, Tyco or the Trustee or any authorized
agent of the Issuer, Tyco or the Trustee shall be affected by any notice to the
contrary.
10. NO LIABILITY OF CERTAIN PERSONS. No recourse under or upon any
obligation, covenant or agreement of the Issuer or Tyco in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, or any
past, present or future shareholder, officer or director, as such, of the
Issuer, Tyco or of any successor corporation of either of them, either directly
or through the Issuer, Tyco or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
-10-
<PAGE>
11. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Notes other than Holders of Unrestricted Global Notes
and Holders of Unrestricted Definitive Notes shall have all the rights set forth
in the Registration Rights Agreement, dated as of November 2, 1998, among the
Issuer, Tyco International Ltd. and the parties named on the signature pages
thereof.
12. GOVERNING LAW. The laws of the State of New York govern the Indenture
and this Note.
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<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto:
PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF ASSIGNEE
- ---------------------------------
- ---------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note of Tyco International Group S.A. and all rights thereunder and
hereby irrevocably constitutes and appoints such person attorney to transfer
such Note on the books of Tyco International Group S.A., with full power of
substitution in the premises.
Dated:
---------------------------------------
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE SIGNATURE
SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER
ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY SUCH OTHER ENTITY WHOSE
SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO THE TRANSFER AGENT.
-12-
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in the Global Note, have
been made:
<TABLE>
<CAPTION>
Amount of Amount of
decrease in increase in Principal Amount of this Global Signature of Authorized
Date of Principal Amount Principal Amount Note following such decrease (or Officer of Trustee or Note
Exchange of this Global Note of this Global Note increase) Custodian
- --------- ------------------- ------------------- -------------------------------- --------------------------
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
* This Schedule may be used by the Trustee in respect of a Global Note, and,
if so used, shall be deemed a part thereof for all purposes.
-13-
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Tyco International Group S.A.
[_________________]
The Bank of New York
[_________________]
Re: 6.125% Notes due 2008
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of June 9, 1998, and the
Supplemental Indenture No. 6 dated November 2, 1998 (collectively, the
"Indenture") among Tyco International Group S.A., Tyco International Ltd. and
The Bank of New York as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the Note[s]
or interest in such Note[s] specified in Annex A hereto, in the principal amount
of $___________ in such Note[s] or interests (the "Transfer"), to __________
(the "Transferee"), as further specified in Annex A hereto. In connection with
the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
[___] 1. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
A 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a
<PAGE>
transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
[___] 2. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Temporary Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
[__] 3. CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A RESTRICTED
DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE
144A OR REGULATION S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Regulation S Global
Notes, Rule 144A Global Notes, and Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act and any applicable blue sky securities
laws of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):
[__] (a) such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Regulation S Global Note, Rule 144A Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by a certificate executed by the Transferee in the form of Exhibit D to the
Indenture; or
<PAGE>
[__] (b) such transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any State of the United States.
[ ] 4. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
[ ] (a) CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Regulation S Global Note, the Rule 144A
Global Notes, the Restricted Definitive Notes and in the Indenture.
[ ] (b) CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note, the Rule 144A Global Notes, the Restricted Definitive Notes and in
the Indenture.
[ ] (c) CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Notes, the Rule 144A Global Notes, the Restricted Definitive Notes and in the
Indenture.
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------
[Insert Name of Transferor]
By:
------------------------
Name:
Title:
Dated: , .
------------------ -----
<PAGE>
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
[ ] (a) a beneficial interest in the:
[ ] (i) 144A Global Note (CUSIP _____), or
[ ] (ii) Regulation S Global Note (CUSIP _____).
[ ] (b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
[ ] (a) a beneficial interest in the:
[ ] (i) 144A Global Note (CUSIP _____), or
[ ] (ii) Regulation S Global Note (CUSIP _____), or
[ ] (iii) Unrestricted Global Note (CUSIP _____); or
[ ] (b) a Restricted Definitive Note; or
[ ] (c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Tyco International Group S.A.
[_________________]
The Bank of New York
[_________________]
Re: 6.125% Notes due 2008
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of June 9, 1998, and the
Supplemental Indenture No. 6 dated November 2, 1998 (collectively, the
"Indenture") among Tyco International Group S.A., Tyco International Ltd. and
the Bank of New York.
____________, (the "Owner") owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
[ ] 1. CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A REGULATION S
GLOBAL NOTE OR RULE 144A GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE. In connection with the Exchange of the Owner's beneficial interest
in a Regulation S Global Note or Rule 144A Global Note for a beneficial interest
in an Unrestricted Global Note in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
REGULATION S GLOBAL NOTES OR RULE 144A GLOBAL NOTES FOR RESTRICTED DEFINITIVE
NOTES OR BENEFICIAL INTERESTS IN REGULATION S GLOBAL NOTES OR RULE 144A GLOBAL
NOTES
-1-
<PAGE>
[ ] (a) CHECK IF EXCHANGE IS TO A RESTRICTED DEFINITIVE NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Rule 144A
Global Note or a Regulation S Global Notes for a Restricted Definitive Note with
an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner's own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Note and in the Indenture and the Securities Act.
[ ] (b) CHECK IF EXCHANGE IS TO BENEFICIAL INTEREST IN A RULE 144A
GLOBAL NOTE OR A REGULATION S GLOBAL NOTE. In connection with the Exchange of
the Owner's Note for a beneficial interest in the [CHECK ONE] [ ] 144A Global
Note, [ ] Regulation S Global Note, with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Rule 144A Global
Notes, Regulation S Global Notes or Restrictive Definitive Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Rule 144A Global Notes
or Regulation S Global Notes as the case may be and in the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
------------------------------
[Insert Name of Accredited Investor]
By:
------------------------------
Name:
Title:
Dated: , .
----------------------- -----
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<PAGE>
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Tyco International Group S.A.
[_________________]
The Bank of New York
[_________________]
Re: 6.125% Notes due 2008
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of June 9, 1998, and the
Supplemental Indenture No. 6 dated November 2, 1998 (collectively, the
Indenture") among Tyco International Group S.A., Tyco International Ltd. And The
Bank of New York as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of Transferee's:
[ ] (a) beneficial interest in a Global Note, or
[ ] (b) Definitive Note,
we confirm that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1993, as
amended (the "Securities Act")),
-3-
<PAGE>
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Notes for investment purposes
and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or other applicable securities
laws and we have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand and acknowledge that the Notes have not been registered
under the Securities Act, or any other applicable securities law and may not be
offered, sold or otherwise transferred except in compliance with the
registration requirements of the Securities Act or any other applicable
securities law, or pursuant to an exemption therefrom, and in each case in
compliance with the conditions for transfer set forth below. We agree on our own
behalf and on behalf of any investor account for which we are purchasing Notes
to offer, sell or otherwise transfer such Notes prior to the date which is two
years after the later of the date of original issue and the last date on which
the Company or any affiliate of the Company was the owner of such Notes (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) for so long as the Notes are eligible
for resale pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "Qualified Institutional Buyer" within the meaning of
Rule 144A (a "QIB") that purchases for its own account or for the account of a
QIB and to whom notice is given that the transfer is being made in reliance on
Rule 144A, (d) pursuant to offers and sales to non-U.S. persons that occur
outside the United States within the meaning of Regulation S under the
Securities Act, (e) to an institutional "accredited investor" within the meaning
of subparagraphs (a)(1), (a)(2), (a)(3) or (a)(7) or Rule 501 under the
Securities Act that is acquiring the Notes for its own account or for the
account of such an institutional "accredited investor" for the investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and to compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (e) above
prior to the Resale Restriction Termination Date, the transferor shall deliver
to the trustee (the "Trustee") under the Indenture pursuant to which the Notes
are issued a letter from the transferee substantially in the form of this letter
or as acceptable to the Trustee, which shall provide, among other things, that
the transferee is a person or entity as defined in paragraph 1 of this letter
and that is acquiring such Notes for investment purposes and not for
distribution violation of the Securities Act. We acknowledge that the Company
and the Trustee reserve the right prior to any offer, sale or other transfer of
the Notes pursuant to clauses (d), (e) and (f) above prior to the Resale
Restriction Termination Date to require the delivery of any opinion of counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
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<PAGE>
3. We are acquiring the Notes purchased by us for our own account or for one
or more accounts as to each of which we exercise sole investment discretion.
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By: (Name of Purchaser)
Date:
------------------------------
[Insert Name of Accredited Investor]
By:
------------------------------
Name:
Title:
Dated: , .
----------------------- -----
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<PAGE>
Exhibit 4.4
TYCO INTERNATIONAL GROUP S.A.
Debt Securities
Purchase Agreement
October 28, 1998
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION,
as Representatives of the Initial Purchasers
c/o Lehman Brothers Inc.
3 World Financial Center
200 Vesey Street
New York, NY 10285
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 and
II-B hereto (the "Initial Purchasers"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedules I-A and I-B hereto (the "Securities"), to be
issued under the Indenture, dated as of June 9, 1998, as supplemented by
Supplemental Indenture No. 5 and Supplemental Indenture No. 6 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. If the firm or firms listed in
Schedules II-A and II-B hereto include only the firm or firms listed in
Schedules I-A and I-B 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 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 to purchasers
("Subsequent Purchasers") at any time after the date of this Agreement.
<PAGE>
The Securities 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.
The Company and Tyco have prepared and will deliver to the Initial
Purchasers, on the date hereof, copies of a final offering memorandum dated
October 28, 1998 (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. "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.
The holders of the Securities 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 and the Initial
Purchasers, pursuant to which the Company 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 set forth opposite such Initial Purchaser's name
in Schedules II-A and II-B hereto at the purchase price set forth in Schedules
I-A and I-B hereto plus accrued interest, if any, from the date specified in
Schedules I-A and I-B 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 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 November 2, 1998 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".
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<PAGE>
Payment for the Securities 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,
with any transfer taxes payable in connection with the transfer to the Initial
Purchasers of the Securities duly paid by the Company. The Global Notes will be
made available for inspection by the Representatives at the office of Lehman
Brothers Inc., 3 World Financial Center, 200 Vesey Street, New York, NY 10285,
not later than 1:00 P.M., New York City time, on the Business Day prior to the
Closing Date.
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 in a manner that would
require the Securities 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 in writing by the Initial
Purchasers 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 Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder (collectively,
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;
-3-
<PAGE>
(d) PricewaterhouseCoopers L.L.P. and Deloitte & Touche L.L.P.
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 dates indicated and the
results of their operations and the changes in their consolidated cash
flows for the periods specified (except that such financial statements,
schedules and notes do not reflect the acquisition by Tyco of United
States Surgical Corporation, which was acquired on October 1, 1998);
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;
(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
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<PAGE>
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 (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;
-5-
<PAGE>
(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 (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 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
constitute a default 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
-6-
<PAGE>
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 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;
(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
-7-
<PAGE>
will be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(r) the Securities 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, its 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, 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 to the Initial Purchasers and to each Subsequent Purchaser
in the manner contemplated by this Agreement and the Offering
Memorandum to register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act;
(u) with respect to those Securities 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 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 and Tyco 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) the Company has been advised by the National Association of
Securities Dealers, Inc. PORTAL Market that the Securities will be
designated PORTAL eligible securities in accordance with the rules and
regulations of the National Association of Securities Dealers, Inc.;
(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
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<PAGE>
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 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.
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<PAGE>
5. Each of the Initial Purchasers 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 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
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<PAGE>
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) the Company agrees that it will not and will cause its
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 purpose of (i) the sale of the
Securities by the Company to the Initial Purchasers, (ii) the resale of
the Securities by the Initial Purchasers to Subsequent Purchasers or
(iii) the resale of the Securities 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
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<PAGE>
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, the Company will not, and will cause its
"affiliates" (as such term is defined in Rule 144(a)(1) under the
Securities Act) not to, resell any Securities 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 submit such
Securities 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 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 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
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<PAGE>
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;
(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;
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<PAGE>
(e) Mark 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, 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 Nothar 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 L.L.P. and Deloitte & Touche L.L.P. 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; and
(k) 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.
8. 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 any and all losses,
claims, damages and liabilities (including without limitation the reasonable
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the 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, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement
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<PAGE>
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 such
Initial Purchaser through the Representatives expressly for use therein.
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 reference to information relating to such Initial Purchaser
furnished to the Company and Tyco in writing by such Initial Purchaser through
the Representatives expressly for use in the Offering Memorandum, any amendment
or supplement thereto, or any preliminary 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, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related 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
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<PAGE>
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 or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company 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, 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 in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, 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 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
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<PAGE>
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 and I-B 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
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 or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Offering Memorandum.
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
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opposite their respective names in Schedules II-A and II-B 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 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 and I-B 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 and I-B 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 and I-B hereto.
Notices to the Company and Tyco shall be given to them,
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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 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 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,
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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 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 Brann
-----------------------------
Name: Richard Brann
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
-----------------------------
Name: Mark H. Swartz
Title: Executive Vice President
and Chief Financial Officer
Accepted: October __, 1998
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: Lehman Brothers Inc.
By: /s/ James W. Merli
----------------------------
Name James W. Merli
Title: Managing Director
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SCHEDULE I-A
<TABLE>
<S> <C>
Representatives: Lehman Brothers Inc.
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette
Securities Corporation
Purchase Agreement Dated: October 28, 1998
Title of Securities: 5.875% Notes due 2004
Aggregate Principal Amount: $400,000,000
Purchase Price: 99.334%
Price to Public: 99.959%
Indenture: Indenture, dated as of June 9, 1998, as supplemented by
Supplemental Indenture No. 5 thereto, dated as of November 2,
1998, among Tyco International Group S.A., Tyco International
Ltd. and The Bank of New York, as trustee.
Maturity: November 1, 2004
Interest Rate: 5.875%
Interest Payment Dates: November 1 and May 1
Optional Redemption Provisions: The Notes may be redeemed, 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 the Notes, and
(ii) as determined by the Quotation Agent (as defined in the
Indenture), the sum of the present values of the remaining
scheduled payments of principal and interest thereon (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 of twelve
30-day months) at the Adjusted Redemption Treasury Rate (as
defined in the Indenture) plus 15 basis points plus, in each
case, accrued interest thereon to the date of redemption.
TheNotes are also subject to redemption to the extent provided
in Article Twelve of the Indenture.
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: November 2, 1998
Closing Location: New York, New York
Address for Notices to Initial Purchasers: Lehman Brothers Inc., 3 World Financial Center,
200 Vesey Street, New York, NY 10285
</TABLE>
-23-
<PAGE>
SCHEDULE I-B
<TABLE>
<S> <C>
Representatives: Lehman Brothers Inc.
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette
Securities Corporation
Purchase Agreement Dated: October 28, 1998
Title of Securities: 6.125% Notes due 2008
Aggregate Principal Amount: $400,000,000
Purchase Price: 98.599%
Price to Public: 99.249%
Indenture: Indenture, dated as of June 9, 1998, as supplemented by
Supplemental Indenture No. 6 thereto, dated as of November 2,
1998, among Tyco International Group S.A., Tyco International
Ltd. and The Bank of New York, as trustee.
Maturity: November 1, 2008
Interest Rate: 6.125%
Interest Payment Dates: November 1 and May 1
Optional Redemption Provisions: The Notes may be redeemed, 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 the Notes, and
(ii) as determined by the Quotation Agent (as defined in the
Indenture), the sum of the present values of the remaining
scheduled payments of principal and interest thereon (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 of twelve
30-day months) at the Adjusted Redemption Treasury Rate (as
defined in the Indenture) plus 25 basis points plus, in each
case, accrued interest thereon to the date of redemption.
TheNotes are also subject to redemption to the extent provided
in Article Twelve of the Indenture.
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Sinking Fund Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: November 2, 1998
Closing Location: New York, New York
Address for Notices to Initial Purchasers: Lehman Brothers Inc., 3 World Financial Center,
200 Vesey Street, New York, NY 10285
</TABLE>
-25-
<PAGE>
SCHEDULE II-A
5.875% NOTES DUE 2004:
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
INITIAL PURCHASER SECURITIES TO BE PURCHASED
----------------- --------------------------
<S> <C>
Lehman Brothers Inc. ................................... $160,000,000
J.P. Morgan Securities Inc.............................. $120,000,000
Credit Suisse First Boston Corporation.................. $ 60,000,000
Donaldson, Lufkin & Jenrette
Securities Corporation................................. $ 60,000,000
------------
Total.......................................... $400,000,000
------------
------------
</TABLE>
<PAGE>
SCHEDULE II-B
6.125% NOTES DUE 2008:
<TABLE>
Principal Amount of
INITIAL PURCHASER SECURITIES TO BE PURCHASED
----------------- --------------------------
<S> <C>
Lehman Brothers Inc. ................................... $160,000,000
J.P. Morgan Securities Inc.............................. $120,000,000
Credit Suisse First Boston Corporation.................. $ 60,000,000
Donaldson, Lufkin & Jenrette
Securities Corporation................................. $ 60,000,000
------------
Total.......................................... $400,000,000
------------
------------
</TABLE>
<PAGE>
Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 2, 1998
AMONG
TYCO INTERNATIONAL GROUP S.A.,
AND
TYCO INTERNATIONAL LTD.
AND
LEHMAN BROTHERS INC.,
J.P. MORGAN SECURITIES INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION,
AND
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 2nd day of November, 1998 among Tyco International Group
S.A., a Luxembourg company (the "Company"), Tyco International Ltd., a
Bermuda company (the "Guarantor") and Lehman Brothers Inc., J.P. Morgan &
Co., Credit Suisse First Boston Corporation and Donaldson, Lufkin & Jenrette
Securities Corporation (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
October 28, 1998, 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 $400,000,000 principal amount of
the Company's 5.875% Notes due 2004, and $400,000,000 principal amount of
6.125% Notes due 2008, and, in each case, 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.
-1-
<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 of
Exchange Securities 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), 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 (i) the 5.875% Notes due 2004
issued by the Company, (ii) the 6.125% Notes due 2008, issued by the
Company and (iii) the related guarantees of the 5.875% Exchange Notes
and the 6.125% Exchange Notes 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. 5, dated as of November 2, 1998, and
Supplemental Indenture No. 6, dated as of November 2, 1998, 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 and other obligors
on the Securities or any Affiliate (as defined in the Indenture) of the
Company 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 Lehman Brothers
Inc., J.P. Morgan Securities Inc., Credit Suisse First Boston
Corporation and Donaldson, Lufkin & Jenrette Securities Corporation and
any other broker-dealer which makes a market in the Securities 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.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section
2.1 hereof.
"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.
"REGISTRABLE SECURITIES" shall mean the Securities; PROVIDED,
HOWEVER, that the Securities shall cease to be Registrable Securities
when (i) a Registration Statement with respect to such Securities shall
have been declared effective under
-3-
<PAGE>
the 1933 Act and such Securities shall have been disposed of pursuant to
such Registration Statement, (ii) such Securities 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 or is saleable pursuant to Rule 144(k)
under the 1933 Act (or any similar provision then in force), (iii) such
Securities shall have ceased to be outstanding or (iv) the Exchange Offer
is consummated (except in the case of Securities purchased from the Company
and continued to be held by the Initial Purchasers).
"REGISTRATION EXPENSES" shall mean any and all expenses incident
to performance of or compliance by the Company 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 of the independent public accountants of the Company,
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 by issuers or
sellers of securities and the fees and expenses of any special experts
retained by the Company 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.
-4-
<PAGE>
"REGISTRATION STATEMENT" shall mean any registration statement of
the Company 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 Registrable
Securities or Private Exchange Securities on an appropriate form under
Rule 415 under the 1933 Act, or any 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 Exchange Securities 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 90 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 150 days of the Closing Date, (C)
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) cause the Exchange Offer to be consummated not later
than 180 days following the Closing Date. 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
-5-
<PAGE>
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 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 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
(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
-6-
<PAGE>
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 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 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
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to the Depositary for the benefit of 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 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 which, in the Company's and the Guarantor' 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
-7-
<PAGE>
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 150 days
following the original issue of the Registrable Securities or the Exchange Offer
is not consummated within 180 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 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
-8-
<PAGE>
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 effective or in the 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.
-9-
<PAGE>
(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 Defaults the accrual of Additional
Interest will cease and the interest rate will revert to the original rate.
-10-
<PAGE>
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 Shelf 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 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
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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 (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
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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 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 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 Lehman Brothers
Inc. 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 SEC or such positions or policies, in the reasonable judgment of Lehman
Brothers Inc. on behalf of the Participating Broker-Dealers and its counsel,
represent the prevailing views
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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 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:
"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;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment;
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(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;
(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
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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 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
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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;
(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
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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 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
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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 or a Private Exchange,
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 or a Private Exchange, 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 Company and the Guarantor in accordance with
its respective terms (with customary exceptions) and (ii) an officers'
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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 trigger the obligation of the Company
to pay Additional Interest in accordance with the
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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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<PAGE>
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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<PAGE>
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 and I-B 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 time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the
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<PAGE>
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, including, without limitation and without the need for an express
assignment, subsequent
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<PAGE>
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.
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<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
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<PAGE>
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
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.
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<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 Brann
-----------------------------------
Name: Richard Brann
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
-----------------------------------
Name: Mark H. Swartz
Title: Executive Vice President and
Chief Financial Officer
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<PAGE>
Confirmed and accepted as
of the date first above
written:
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ David N. Frank
----------------------------------
Name: David N. Frank
Title: Vice President
-31-
<PAGE>
EXHIBIT 12
TYCO INTERNATIONAL LTD
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES(1)
($ IN MILLIONS)
<TABLE>
<CAPTION>
YEAR NINE MONTHS
ENDED ENDED YEAR ENDED DECEMBER 31,
SEPT. 30, SEPT. 30, -------------------------------
1998(5) 1997(5) 1996 1995 1994
--------- ------------ --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Earnings:
Income (loss) before extraordinary item................... $ 965.1 $ (697.7) $ (187.6) $ 346.7 $ 324.0
Income taxes.............................................. 428.9 208.1 268.1 219.2 206.7
--------- ------------ --------- --------- ---------
1,394.0 (489.6) 80.5 565.9 530.7
--------- ------------ --------- --------- ---------
Fixed Charges:
Interest expense(2)....................................... 270.1 144.8 207.3 210.2 185.4
Rentals(3)................................................ 82.2 60.8 72.9 61.6 55.2
--------- ------------ --------- --------- ---------
352.3 205.6 280.2 271.8 240.6
--------- ------------ --------- --------- ---------
Earnings (loss) before income taxes and fixed charges..... $ 1,746.3 $ (284.0) $ 360.7 $ 837.7 $ 771.3
--------- ------------ --------- --------- ---------
--------- ------------ --------- --------- ---------
Ratio of earnings to fixed charges(4)..................... 4.96 (4) 1.29(4) 3.08 3.21
</TABLE>
- ------------------------
(1) On July 2, 1997, a wholly-owned subsidiary of Tyco merged with Former Tyco.
On August 27, 1997, Tyco consummated a merger with INBRAND Corporation; on
August 29, 1997, Tyco consummated a merger with Keystone International,
Inc.; and on October 1, 1998, Tyco consummated a merger with US Surgical.
Each of the four merger transactions qualifies for the pooling of interests
method of accounting. As such, the ratio of earnings to fixed charges for
the year ended September 30, 1998, the nine months ended September 30, 1997
and the years ended December 31, 1996, 1995 and 1994 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, ADT, Keystone and US Surgical had calendar
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 calendar
year end for ADT, Keystone, US Surgical and Former Tyco for the year ended
December 31, 1996. For 1995 and 1994, the ratio of earnings to fixed charges
reflects the combination of ADT, Keystone and US Surgical with a calendar
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 were insufficient to cover fixed charges by $489.6 million in the
nine months ended September 30, 1997.
Earnings for the nine months ended September 30, 1997 and the year ended
December 31, 1996 include merger, restructuring and other non-recurring
charges of $947.9 million and $246.1 million, respectively. Earnings also
include a charge for the impairment of long-lived assets of $148.4 million
and $744.7 million, respectively, in the 1997 and 1996 periods. The 1997
period also includes a write-off of purchased in-process research and
development of $361.0 million.
On a pro forma basis, the ratio of earnings to fixed charges excluding
merger, restructuring and other non-recurring charges, charge for the
impairment of long-lived assets and write-off of purchased in-process
research and development would have been 5.71x and 4.82x for the nine months
ended September 30, 1997 and year ended December 31, 1996, 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 and the fiscal year ended September 30, 1998 are 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 November 23, 1998, on our audit of the combination of the
historical consolidated financial statements and consolidated financial
statement schedule of Tyco International Ltd. and United States Surgical
Corporation after restatement for the pooling of interests as described in Note
1 to the consolidated financial statements, which report is included in Tyco's
Current Report on Form 8-K filed December 10, 1998. We also consent to the
reference to our firm under the caption "Experts."
/s/ PRICEWATERHOUSECOOPERS
Hamilton, Bermuda
January 26, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT 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 January 31, 1997 on our
audit of the consolidated statements of income, changes in shareholders'
investment and cash flows of Keystone International, Inc. and subsidiaries for
the year ended December 31, 1996, included in the Tyco International Ltd.
Current Report on Form 8-K filed December 10, 1998, and to all references to our
Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Houston, Texas
January 26, 1999
<PAGE>
EXHIBIT 23.3
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 balance sheet of
United States Surgical Corporation and its subsidiaries as of September 30,
1997, and the consolidated statements of operations, changes in stockholders'
equity and cash flows for the nine month period ended September 30, 1997, the
twelve month period ended December 31, 1996 and the related financial statement
schedule for the nine month period ended September 30, 1997 and the twelve month
period ended December 31, 1996), which report is included in Tyco International
Ltd.'s Current Report on Form 8-K filed December 10, 1998, and 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
January 26, 1999
<PAGE>
FORM OF
LETTER OF TRANSMITTAL
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
OFFER TO EXCHANGE
5.875% NOTES DUE 2004
FOR
5.875% NOTES DUE 2004
PURSUANT TO THE PROSPECTUS DATED , 1999
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 1999, UNLESS THE EXCHANGE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
The Exchange Agent for the Exchange Offer is:
The Bank of New York
<TABLE>
<S> <C> <C>
BY HAND OR OVERNIGHT DELIVERY: FACSIMILE TRANSACTIONS: BY REGISTERED OR CERTIFIED MAIL:
(Eligible Institutions Only)
The Bank of New York (212) 815-4699 The Bank of New York
101 Barclay Street, 7E TO CONFIRM BY TELEPHONE 101 Barclay Street
New York, New York 10286 OR FOR INFORMATION CALL: Corporate Trust Services Window
Attn: Denise Robinson (212) 815-2791 Ground Level
New York, New York 10286
Attn: Denise Robinson
</TABLE>
- --------------------------------------------------------------------------------
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR TRANSMISSION TO A FACSIMILE
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE
METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES, IS AT THE RISK
OF THE HOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. YOU SHOULD READ THE
INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL CAREFULLY BEFORE YOU
COMPLETE THIS LETTER OF TRANSMITTAL.
The undersigned acknowledges that he or she has received the prospectus,
dated , 1999 (the "Prospectus"), of Tyco International Group S.A., a
Luxembourg company (the "Company"), and Tyco International Ltd., a Bermuda
company ("Tyco"), and this Letter of Transmittal and the instructions hereto
(the "Letter of Transmittal"), which together constitute the Company's offer
(the "Exchange Offer") to exchange $1,000 principal amount of its 5.875% Notes
due 2004 (the "Exchange Notes"), which have been registered under the Securities
Act of 1933, as amended (the "Securities Act"), pursuant to a Registration
Statement of which the Prospectus is a part, for each $1,000 principal amount of
its outstanding 5.875% Notes due 2004 (the "Restricted Notes"), of which
$400,000,000 aggregate principal amount is outstanding, upon the terms and
subject to the conditions set forth in the Prospectus. The term "Expiration
Date" shall mean 5:00 p.m. New York City time on , 1999, unless the
Company, in its sole discretion, extends the Exchange Offer, in which case the
term shall mean the latest date and time to which the Exchange Offer is extended
by the Company. Capitalized terms used but not defined herein have the meaning
given to them in the Prospectus.
This Letter of Transmittal is to be used if either (1) certificates
representing Restricted Notes are to be physically delivered to the Exchange
Agent herewith by Holders (as defined below), (2) tender of Restricted Notes is
to be made by book-entry transfer to an account maintained by the Exchange Agent
at The Depository Trust Company ("DTC"), pursuant to the procedures set forth in
"The Exchange Offer--Procedures for Tendering" in the Prospectus by any
financial institution that is a participant in DTC and whose name appears on a
security position listing as the owner of Restricted Notes or (3) tender of
Restricted Notes is to be made according to the guaranteed delivery procedures
set forth in the Prospectus under "The Exchange Offer--Guaranteed Delivery
Procedures." Delivery of this Letter of Transmittal and any other required
documents must be made to the Exchange Agent.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
<PAGE>
The term "Holder" as used herein means any person in whose name Restricted
Notes are registered on the books of the Company or any other person who has
obtained a properly completed bond power from the registered holder.
All Holders of Restricted Notes who wish to tender their Restricted Notes
must, prior to the Expiration Date: (1) complete, sign and deliver this Letter
of Transmittal, or a facsimile thereof, to the Exchange Agent, in person or to
the address or facsimile number set forth above; and (2) tender (and not
withdraw) his, her or its Restricted Notes or, if a tender of Restricted Notes
is to be made by book-entry transfer to the account maintained by the Exchange
Agent at DTC, confirm such book-entry transfer (a "Book-Entry Confirmation"), in
each case in accordance with the procedures for tendering described in the
Instructions to this Letter of Transmittal. Holders of Restricted Notes whose
certificates are not immediately available, or who are unable to deliver their
certificates or Book-Entry Confirmation and all other documents required by this
Letter of Transmittal to be delivered to the Exchange Agent on or prior to the
Expiration Date, must tender their Restricted Notes according to the guaranteed
delivery procedures set forth under the caption "The Exchange Offer--Guaranteed
Delivery Procedures" in the Prospectus. (See Instruction 2.)
Upon the terms and subject to the conditions of the Exchange Offer, the
acceptance for exchange of the Restricted Notes validly tendered and not
withdrawn and the issuance of the Exchange Notes will be made promptly following
the Expiration Date. For the purposes of the Exchange Offer, the Company shall
be deemed to have accepted for exchange validly tendered Restricted Notes when,
as and if the Company has given written notice thereof to the Exchange Agent.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW. THE INSTRUCTIONS INCLUDED IN THIS LETTER OF
TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR
ADDITIONAL COPIES OF THE PROSPECTUS, THIS LETTER OF TRANSMITTAL AND THE NOTICE
OF GUARANTEED DELIVERY MAY BE DIRECTED TO THE EXCHANGE AGENT. SEE INSTRUCTION
12.
HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR RESTRICTED
NOTES MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY AND COMPLY WITH
ALL OF ITS TERMS.
List below the Restricted Notes to which this Letter of Transmittal relates.
If the space provided below is inadequate, the Certificate Numbers and Principal
Amounts should be listed on a separate signed schedule, attached hereto. The
minimum permitted tender is $1,000 in principal amount of the Restricted Notes.
All other tenders must be in integral multiples of $1,000.
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
DESCRIPTION OF RESTRICTED NOTES 1 2 3
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CERTIFICATE AGGREGATE PRINCIPAL
NUMBER(S)* PRINCIPAL AMOUNT OF
AMOUNT OF RESTRICTED
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S): NOTES NOTES
(PLEASE FILL IN, IF BLANK) TENDERED**
- ----------------------------------------------------------------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
Total
- --------------------------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Need not be completed by Holders who wish to tender all Restricted Notes listed.
- --------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
- --------------------------------------------------------------------------------
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
SPECIAL REGISTRATION INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if certificates for Restricted Notes in a principal
amount not tendered, or Exchange Notes issued in exchange for Restricted
Notes accepted for exchange, are to be issued in the name of someone other
than the undersigned.
Issue certificate(s) to:
Name(s) ____________________________________________________________________
Address ____________________________________________________________________
(INCLUDE ZIP CODE)
____________________________________________________________________________
(TAX IDENTIFICATION OR SOCIAL
SECURITY NUMBER(S))
-------------------------------------------------------------------
-------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if certificates for Restricted Notes in a principal
amouint not tendered, or Exchange Notes issued in exchange for Restricted
Notes accepted for exchange, are to be delivered to someone other than the
undersigned.
Deliver certificate(s) to:
Name(s) ____________________________________________________________________
Address ____________________________________________________________________
(INCLUDE ZIP CODE)
____________________________________________________________________________
(TAX IDENTIFICATION OR SOCIAL
SECURITY NUMBER(S))
-------------------------------------------------------------------
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE
CERTIFICATE(S) FOR RESTRICTED NOTES OR A CONFIRMATION OF BOOK-ENTRY TRANSFER OF
SUCH RESTRICTED NOTES AND ALL OTHER REQUIRED DOCUMENTS) OR, IF GUARANTEED
DELIVERY PROCEDURES ARE TO BE COMPLIED WITH, A NOTICE OF GUARANTEED DELIVERY,
MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
<TABLE>
<S> <C>
/ / CHECK HERE IF RESTRICTED NOTES ARE BEING DELIVERED BY DTC TO AN ACCOUNT MAINTAINED BY THE
EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
/ / The Depository Trust Company
Account Number
Transaction Code Number
Holders whose Restricted Notes are not immediately available or who cannot deliver their Restricted Notes
and all other documents required hereby to the Exchange Agent on or prior to the Expiration Date may tender
their Restricted Notes according to the guaranteed delivery procedures set forth in the prospectus under the
caption "The Exchange Offer--Guaranteed Delivery Procedures." (See Instruction 2.)
/ / CHECK HERE IF RESTRICTED NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of tendering Holder(s)
Date of Execution of Notice of Guaranteed Delivery
Name of Institution which Guarantees Delivery
Transaction Code Number
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
</TABLE>
3
<PAGE>
If the undersigned is not a broker-dealer, the undersigned represents that (1)
it is acquiring the Exchange Notes in the ordinary course of its business, (2)
it has no arrangements or understanding with any person, nor does it intend to
engage in, a distribution (as that term is interpreted by the SEC) of Exchange
Notes and (3) it is not an affiliate (as that term is interpreted by the SEC) of
the Company. If the undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Restricted Notes that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the undersigned
hereby tenders to Tyco International Group S.A. (the "Company") the principal
amount of Restricted Notes indicated above.
Subject to and effective upon the acceptance for exchange of the principal
amount of Restricted Notes tendered hereby in accordance with the terms of the
Exchange Offer described in the prospectus, this Letter of Transmittal and the
accompanying Instructions, the undersigned sells, assigns and transfers to, or
upon the order of, the Company all right, title and interest in and to the
Restricted Notes tendered hereby. The undersigned hereby irrevocably constitutes
and appoints the Exchange Agent as its agent and attorney-in-fact (with full
knowledge that the Exchange Agent also acts as the agent of the Company and as
Trustee and Registrar under the Indenture for the Restricted Notes and the
Exchange Notes) with respect to the tendered Restricted Notes with full power of
substitution (such power of attorney being deemed an irrevocable power coupled
with an interest), subject only to the right of withdrawal described in the
Prospectus, to (1) deliver certificates for such Restricted Notes to the Company
or transfer ownership of such Restricted Notes on the account books maintained
by DTC, together, in either such case, with all accompanying evidences of
transfer and authenticity to, or upon the order of, the Company and (2) present
such Restricted Notes for transfer on the books of the Company and receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Restricted Notes, all in accordance with the terms of the Exchange Offer.
The undersigned acknowledges that the Exchange Offer is being made in
reliance upon interpretative advice given by the staff of the SEC to third
parties in connection with transactions similar to the Exchange Offer, so that
the Exchange Notes issued pursuant to the Exchange Offer in exchange for the
Restricted Notes may be offered for resale, resold and otherwise transferred by
holders thereof (other than a broker-dealer who purchased such Restricted Notes
directly from the Company for resale pursuant to Rule 144A, Regulation S or any
other available exemption under the Securities Act or a person that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery provisions
of the Securities Act, provided that such Exchange Notes are acquired in the
ordinary course of such holders' business and such holders are not
participating, do not intend to participate and have no arrangement or
understanding with any person to participate, in the distribution of such
Exchange Notes.
The undersigned agrees that acceptance of any tendered Restricted Notes by
the Company and the issuance of Exchange Notes in exchange therefor shall
constitute performance in full by the Company of its obligations under the
Exchange Offer and Registration Rights Agreement and that, upon the issuance of
the Exchange Notes, the Company will have no further obligations or liabilities
thereunder (except in certain limited circumstances).
The undersigned represents and warrants that (1) the Exchange Notes acquired
pursuant to the Exchange Offer are being acquired in the ordinary course of
business of the person receiving Exchange Notes (which shall be the undersigned
unless otherwise indicated in the box entitled "Special Delivery Instructions"
above) (the "Recipient"), (2) neither the undersigned nor the Recipient (if
different) is engaged in, intends to engage in or has any arrangement or
understanding with any person to participate in the distribution (as that term
is interpreted by the SEC) of such Exchange Notes, and (3) neither the
undersigned nor the Recipient (if different) is an "affiliate" of the Company as
defined in Rule 405 under the Securities Act.
If the undersigned is a broker-dealer, the undersigned further (1)
represents that it acquired Restricted Notes for the undersigned's own account
as a result of market-making activities or other trading activities, (2)
represents that it has not entered into any arrangement or understanding with
the Company or any "affiliate" of the Company (within the meaning of Rule 405
under the Securities Act) to distribute the Exchange Notes to be received in the
Exchange Offer and (3) acknowledges that it will deliver a prospectus meeting
the requirements of the Securities Act (for which purposes, the delivery of the
Prospectus, as the same may be hereafter supplemented or amended, shall be
sufficient) in connection with any resale of Exchange Notes received in the
Exchange Offer. Such a broker-dealer will not be deemed, solely by reason of
such acknowledgment and prospectus delivery, to admit that it is an
"underwriter" within the meaning of the Securities Act.
4
<PAGE>
The undersigned understands and agrees that the Company reserves the right
not to accept tendered Restricted Notes from any tendering holder if the Company
determines, in its sole and absolute discretion, that such acceptance could
result in a violation of applicable securities laws.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, exchange, assign and transfer the Restricted
Notes tendered hereby and to acquire Exchange Notes issuable upon the exchange
of such tendered Restricted Notes, and that, when the same are accepted for
exchange, the Company will acquire good and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claim. The undersigned also warrants that it will, upon request,
execute and deliver any additional documents deemed to be necessary or desirable
by the Exchange Agent or the Company in order to complete the exchange,
assignment and transfer of tendered Restricted Notes or transfer of ownership of
such Restricted Notes on the account books maintained by a book-entry transfer
facility.
The undersigned understands and acknowledges that 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 Date or, as set forth in
the Prospectus under the caption "The Exchange Offer--Procedures for Tendering,"
to terminate the Exchange Offer and, to the extent permitted by applicable law,
purchase Restricted Notes in the open market, in privately negotiated
transactions or otherwise. The terms of any such purchases or offers could
differ from the terms of the Exchange Offer.
The undersigned understands that the Company may accept the undersigned's
tender by delivering written notice of acceptance to the Exchange Agent, at
which time the undersigned's right to withdraw such tender will terminate. For
purposes of the Exchange Offer, the Company shall be deemed to have accepted
validly tendered Restricted Notes when, as and if the Company has given oral
(which shall be confirmed in writing) or written notice thereof to the Exchange
Agent.
The undersigned understands that the first interest payment following the
Expiration Date will include unpaid interest on the Restricted Notes accrued
through the date of issuance of the Exchange Notes.
The undersigned understands that tenders of Restricted Notes pursuant to the
procedures described under the caption "The Exchange Offer--Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned, the Company and the Exchange Agent in
accordance with the terms and subject to the conditions of the Exchange Offer.
If any tendered Restricted Notes are not accepted for exchange pursuant to
the Exchange Offer for any reason, certificates for any such unaccepted
Restricted Notes will be returned (except as noted below with respect to tenders
through DTC), at the Company's cost and expense, to the undersigned at the
address shown below or at a different address as may be indicated herein under
"Special Delivery Instructions" as promptly as practicable after the Expiration
Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding on the undersigned's heirs, personal
representatives, successors and assigns. This tender may be withdrawn only in
accordance with the procedures set forth in the prospectus and in this Letter of
Transmittal.
By acceptance of the Exchange Offer, each broker-dealer that receives
Exchange Notes pursuant to the Exchange Offer hereby acknowledges and agrees
that upon the receipt of notice by the Company of the happening of any event
that makes any statement in the Prospectus untrue in any material respect or
that requires the making of any changes in the Prospectus in order to make the
statements therein not misleading (which notice the Company agrees to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemented prospectus to such broker-dealer.
Unless otherwise indicated under "Special Registration Instructions," please
issue the certificates representing the Exchange Notes issued in exchange for
the Restricted Notes accepted for exchange and return any certificates for
Restricted Notes not tendered or not exchanged, in the name(s) of the
undersigned (or, in either such event in the case of Restricted Notes tendered
by DTC, by credit to the account at DTC). Similarly, unless otherwise indicated
under "Special Delivery Instructions," please send the certificates representing
the Exchange Notes issued in exchange for the Restricted Notes accepted for
exchange and any certificates for Restricted Notes not tendered or not exchanged
(and accompanying documents, as appropriate) to the undersigned at the address
shown below the undersigned's signature(s), unless, in either event, tender is
being made through DTC. In the event that both "Special Registration
Instructions" and "Special Delivery Instructions" are completed, please issue
the certificates representing the Exchange Notes issued in exchange for the
Restricted Notes accepted for exchange in the name(s) of, and return any
certificates for Restricted Notes not tendered or not exchanged to, the
person(s) so indicated. The undersigned understands that the Company has no
obligations pursuant to the "Special Registration Instructions" or "Special
Delivery Instructions" to transfer any Restricted Notes from the name of the
registered Holder(s) thereof if the Company does not accept for exchange any of
the Restricted Notes so tendered.
5
<PAGE>
Holders who wish to tender the Restricted Notes and (1) whose Restricted
Notes are not immediately available or (2) who cannot deliver their Restricted
Notes, this Letter of Transmittal or any other documents required hereby to the
Exchange Agent prior to the Expiration Date, may tender their Restricted Notes
according to the guaranteed delivery procedures set forth in the Prospectus
under the caption "The Exchange Offer--Guaranteed Delivery Procedures." See
Instruction 1 regarding the completion of the Letter of Transmittal.
- --------------------------------------------------------------------------------
PLEASE SIGN HERE WHETHER OR NOT RESTRICTED NOTES ARE BEING PHYSICALLY
TENDERED HEREBY AND WHETHER OR NOT TENDER IS TO BE MADE PURSUANT TO
THE GUARANTEED DELIVERY PROCEDURES
(PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN)
This Letter of Transmittal must be signed by the registered holder(s) as
its (their) name(s) appear on the Restricted Notes or, if tendered by a
participant in DTC, exactly as such participant's name appears on a security
listing as the owner of Restricted Notes, or by person(s) authorized to
become registered holder(s) by a properly completed bond power from the
registered holder(s), a copy of which must be transmitted with this Letter
of Transmittal. If the Restricted Notes to which this Letter of Transmittal
relate are held of record by two or more joint holders, then all such
holders must sign this Letter of Transmittal. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative
capacity, then such person must (1) set forth his or her full title below
and (2) unless waived by the Company, submit evidence satisfactory to the
Company of such person's authority so to act. (See Instruction 4.)
----------------------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Date: ____________, 1999
Name(s) ____________________________________________________________________
(PLEASE PRINT)
Capacity (full title) ______________________________________________________
Address ____________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number _____________________________________________
____________________________________________________________________________
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER(S))
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTION 1)
----------------------------------------------------------------
(AUTHORIZED SIGNATURE)
Date: ____________, 1999
Name of Firm _______________________________________________________________
Capacity (full title) ______________________________________________________
Address ____________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number _____________________________________________
- --------------------------------------------------------------------------------
6
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. Signatures on this Letter of Transmittal need
not be guaranteed if (a) this Letter of Transmittal is signed by the registered
holder(s) of the Restricted Notes tendered herewith and such holder(s) have not
completed the box set forth herein entitled "Special Registration Instructions"
or the box entitled "Special Delivery Instructions" or (b) such Restricted Notes
are tendered for the account of a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.
or a commercial bank or trust company having an office or correspondent in the
United States (each, an "Eligible Institution"). (See Instruction 6.) Otherwise,
all signatures on this Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by an Eligible Institution. All signatures on
bond powers and endorsements on certificates must also be guaranteed by an
Eligible Institution.
2. DELIVERY OF THIS LETTER OF TRANSMITTAL AND RESTRICTED NOTES. Certificates
for all physically delivered Restricted Notes or confirmation of any book-entry
transfer to the Exchange Agent at DTC of Restricted Notes tendered by book-entry
transfer, as well as, in each case (including cases where tender is affected by
book-entry transfer), a properly completed and duly executed copy of this Letter
of Transmittal or facsimile hereof and any other documents required by this
Letter of Transmittal, must be received by the Exchange Agent at its address set
forth herein prior to 5:00 p.m. New York City time on the Expiration Date. The
method of delivery of the tendered Restricted Notes, this Letter of Transmittal
and all other required documents to the Exchange Agent is at the election and
risk of the Holder and the delivery will be deemed made only when actually
received by the Exchange Agent. If Restricted Notes are sent by mail, registered
mail with return receipt requested, properly insured, is recommended. In all
cases, sufficient time should be allowed to ensure timely delivery. No Letter of
Transmittal or Restricted Notes should be sent to the Company.
The Exchange Agent will make a request to establish an account with respect
to the Restricted Notes at DTC for purposes of the Exchange Offer promptly after
receipt of this Prospectus, and any financial institution that is a participant
in DTC may make book-entry delivery of Restricted Notes by causing DTC to
transfer such Restricted Notes into the Exchange Agent's account at DTC in
accordance with DTC's procedures for transfer. However, although delivery of
Restricted Notes may be effected through book-entry transfer at DTC, the Letter
of Transmittal, with any required signature guarantees or an Agent's Message (as
defined in the next paragraph) in connection with a book-entry transfer and any
other required documents, must, in any case, be transmitted to and received by
the Exchange Agent at the address specified on the cover page of the Letter of
Transmittal on or prior to the Expiration Date or the guaranteed delivery
procedures described below must be complied with.
A Holder may tender Restricted Notes that are held through DTC by
transmitting its acceptance through DTC's Automatic Tender Offer Program, for
which the transaction will be eligible, and DTC will then edit and verify the
acceptance and send an Agent's Message to the Exchange Agent for its acceptance.
The term "Agent's Message" means a message transmitted by DTC to, and received
by, the Exchange Agent and forming part of the Book-Entry Confirmation, which
states that DTC has received an express acknowledgment from each participant in
DTC tendering the Restricted Notes and that such participant has received the
Letter of Transmittal and agrees to be bound by the terms of the Letter of
Transmittal and the Company may enforce such agreement against such participant.
Holders who wish to tender their Restricted Notes and (1) whose Restricted
Notes are not immediately available, or (2) who cannot deliver their Restricted
Notes, this Letter of Transmittal or any other documents required hereby to the
Exchange Agent prior to the Expiration Date or comply with book-entry transfer
procedures on a timely basis must tender their Restricted Notes according to the
guaranteed delivery procedures set forth in the Prospectus. See "Exchange
Offer--Guaranteed Delivery Procedures." Pursuant to such procedure: (1) such
tender must be made by or through an Eligible Institution; (2) prior to the
Expiration Date, the Exchange Agent must have received from the Eligible
Institution a properly completed and duly executed Notice of Guaranteed Delivery
(by facsimile transmission, overnight courier, mail or hand delivery) setting
forth the name and address of the Holder of the Restricted Notes, the
certificate number or numbers of such Restricted Notes and the principal amount
of Restricted Notes tendered, stating that the tender is being made thereby and
guaranteeing that, within three New York Stock Exchange trading days after the
Expiration Date, this Letter of Transmittal (or facsimile hereof) together with
the certificate(s) representing the Restricted Notes and any other required
documents will be deposited by the Eligible Institution with the Exchange Agent;
and (3) such properly completed and executed Letter of Transmittal (or facsimile
hereof), as well as all other documents required by this Letter of Transmittal
and the certificate(s) representing all tendered Restricted Notes in proper form
for transfer (or a confirmation of book-entry transfer of such Restricted Notes
into the Exchange Agent's account at DTC), must be received by the Exchange
Agent within three New York Stock Exchange trading days after the Expiration
Date, all in the manner provided in the Prospectus under the caption "The
7
<PAGE>
Exchange Offer--Guaranteed Delivery Procedures." Any Holder who wishes to tender
his, her or its Restricted Notes pursuant to the guaranteed delivery procedures
described above must ensure that the Exchange Agent receives the Notice of
Guaranteed Delivery prior to 5:00 p.m. New York City time on the Expiration
Date. Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will
be sent to Holders who wish to tender their Restricted Notes according to the
guaranteed delivery procedures set forth above.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Restricted Notes, and withdrawal of tendered
Restricted Notes will be determined by the Company in its sole discretion, which
determination will be final and binding. All tendering holders, by execution of
this Letter of Transmittal (or facsimile thereof), shall waive any right to
receive notice of the acceptance of the Restricted Notes for exchange. The
Company reserves the absolute right to reject any and all 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 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 this Letter of
Transmittal) shall 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. Neither the Company, the
Exchange Agent nor any other person shall be under any duty to give notification
of defects or irregularities with respect to tenders of Restricted Notes, nor
shall any of them incur any liability for failure to give such notification.
Tenders of Restricted Notes will not be deemed to have been made until such
defects or irregularities have been cured to the Company's satisfaction or
waived. Any Restricted Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned by the Exchange Agent to the tendering Holders
pursuant to the Company's determination, unless otherwise provided in this
Letter of Transmittal as soon as practicable following the Expiration Date. The
Exchange Agent has no fiduciary duties to the Holders with respect to the
Exchange Offer and is acting solely on the basis of directions of the Company.
3. INADEQUATE SPACE. If the space provided is inadequate, the certificate
numbers and/or the number of Restricted Notes should be listed on a separate
signed schedule attached hereto.
4. TENDER BY HOLDER. Only a Holder of Restricted Notes may tender such
Restricted Notes in the Exchange Offer. Any beneficial owner of Restricted Notes
who is not the registered Holder and who wishes to tender should arrange with
such registered holder to execute and deliver this Letter of Transmittal on such
beneficial owner's behalf or must, prior to completing and executing this Letter
of Transmittal and delivering his, her or its Restricted Notes, either make
appropriate arrangements to register ownership of the Restricted Notes in such
beneficial owner's name or obtain a properly completed bond power from the
registered holder or properly endorsed certificates representing such Restricted
Notes.
5. PARTIAL TENDERS; WITHDRAWALS. Tenders of Restricted Notes will be
accepted only in integral multiples of $1,000. If less than the entire principal
amount of any Restricted Notes is tendered, the tendering Holder should fill in
the principal amount tendered in the third column of the box entitled
"Description of Restricted Notes" above. The entire principal amount of any
Restricted Notes delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated. If the entire principal amount of all
Restricted Notes is not tendered, then Restricted Notes for the principal amount
of Restricted Notes not tendered and a certificate or certification representing
Exchange Notes issued in exchange for any Restricted Notes accepted will be sent
to the Holder at his, her or its registered address, unless a different address
is provided in the "Special Delivery Instructions" box above on this Letter of
Transmittal or unless tender is made through DTC, promptly after the Restricted
Notes are accepted for exchange.
Except as otherwise provided herein, tenders of Restricted Notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration
Date. To withdraw a tender of Restricted Notes in the Exchange Offer, a written
or facsimile transmission notice of withdrawal must be received by the Exchange
Agent at its address set forth herein prior to 5:00 p.m., New York City time, on
the Expiration Date. Any such notice of withdrawal must (1) specify the name of
the person having deposited the Restricted Notes to be withdrawn (the
"Depositor"), (2) identify the Restricted Notes to be withdrawn (including the
certificate number or numbers 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), (3) be signed by the Depositor in
the same manner as the original signature on the Letter of Transmittal by which
such Restricted Notes were tendered (including any required signature
guarantees) or be accompanied by documents of transfer sufficient to have the
Registrar with respect to the Restricted Notes register the transfer of such
Restricted Notes into the name of the person withdrawing the tender and (4)
specify the name in which any such Restricted Notes are to be registered, if
different from that of the Depositor. All questions as to the validity, form and
eligibility (including time of receipt) of such 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
8
<PAGE>
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 which have been tendered
but which are not accepted for exchange by the Company 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 in the Prospectus under "The Exchange Offer--Procedures for Tendering"
at any time prior to the Expiration Date.
6. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS. If
this Letter of Transmittal (or facsimile hereof) is signed by the registered
Holder(s) of the Restricted Notes tendered hereby, the signature must correspond
with the name(s) as written on the face of the Restricted Note without
alteration, enlargement or any change whatsoever.
If any of the Restricted Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
If a number of Restricted Notes registered in different names are tendered,
it will be necessary to complete, sign and submit as many copies of this Letter
of Transmittal as there are different registrations of Restricted Notes.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered Holder or Holders (which term, for the purposes described herein,
shall include a book-entry transfer facility whose name appears on a security
listing as the owner of the Restricted Notes) of Restricted Notes tendered and
the certificate or certificates for Exchange Notes issued in exchange therefor
is to be issued (or any untendered principal amount of Restricted Notes to be
reissued) to the registered Holder, then such Holder need not and should not
endorse any tendered Restricted Notes, nor provide a separate bond power. In any
other case, such Holder must either properly endorse the Restricted Notes
tendered or transmit a properly completed separate bond power with this Letter
of Transmittal with the signatures on the endorsement or bond power guaranteed
by an Eligible Institution.
If this Letter of Transmittal (or facsimile hereof) is signed by a person
other than the registered Holder or Holders of any Restricted Notes listed, such
Restricted Notes must be endorsed or accompanied by appropriate bond powers in
each case signed as the name of the registered Holder or Holders appears on the
Restricted Notes.
If this Letter of Transmittal (or facsimile hereof) or any Restricted Notes
or bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, or officers of corporations or others acting in a fiduciary
or representative capacity, such persons should so indicate when signing, and
unless waived by the Company, evidence satisfactory to the Company of their
authority so to act must be submitted with this Letter of Transmittal.
Endorsements on Restricted Notes or signatures on bond powers required by
this Instruction 6 must be guaranteed by an Eligible Institution.
7. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS. Tendering Holders should
indicate, in the applicable box or boxes, the name and address to which Exchange
Notes or substitute Restricted Notes for principal amounts not tendered or not
accepted for exchange are to be issued or sent, if different from the name and
address of the person signing this Letter of Transmittal. In the case of
issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated.
8. BACKUP UNITED STATES FEDERAL INCOME TAX WITHHOLDING AND SUBSTITUTE FORM
W-9. Under the United States federal income tax laws, payments that may be made
by the Company on account of Exchange Notes issued pursuant to the Exchange
Offer may be subject to backup withholding at the rate of 31%. In order to avoid
such backup withholding, each tendering holder should complete and sign the
Substitute Form W-9 included in this Letter of Transmittal and either (a)
provide the correct taxpayer identification number ("TIN") and certify, under
penalties of perjury, that the TIN provided is correct and that (1) the Holder
has not been notified by the United States Internal Revenue Service the ("IRS")
that the Holder is subject to backup withholding as a result of failure to
report all interest or dividends or (2) the IRS has notified the Holder that the
Holder is no longer subject to backup withholding; or (b) provide an adequate
basis for exemption. If the tendering Holder has not been issued a TIN and has
applied for one, or intends to apply for one in the near future, such Holder
should write "Applied For" in the space provided for the TIN in Part I of the
Substitute Form W-9, sign and date the Substitute Form W-9 and sign the
Certificate of Payee Awaiting Taxpayer Identification Number. If "Applied For"
is written in Part I, the Company (or the Paying Agent under the Indenture
governing the Exchange Notes) shall retain 31% of payments made to the tendering
Holder during the 60-day period following the date of the Substitute Form W-9.
If the Holder furnishes his, her or its TIN within 60 days after the date of the
Substitute Form W-9, the Company (or the Paying Agent) shall remit such amounts
retained during the 60-day period to the Holder and no further amounts shall be
retained or withheld from payments made to the Holder thereafter. If, however,
the Holder has not provided the Exchange Agent or the Company with his, her or
its TIN within such 60-day period, the Company (or the Paying Agent) shall remit
9
<PAGE>
such previously retained amounts to the IRS as backup withholding. In general,
if a Holder is an individual, the TIN is the social security number of such
individual. If the Exchange Agent or the Company are not provided with the
correct TIN, the Holder may be subject to a $50 penalty imposed by the IRS.
Certain Holders (including, among others, all corporations and certain
non-United States individuals) are not subject to these backup withholding and
reporting requirements. In order for a non-United States individual to qualify
as an exempt recipient, such Holder must submit a statement (generally, IRS Form
W-8), signed under penalties of perjury, attesting to that individual's exempt
status. Such statements can be obtained from the Exchange Agent. For further
information concerning backup withholding and instructions for completing the
Substitute Form W-9 (including how to obtain a taxpayer identification number if
you do not have one and how to complete the Substitute Form W-9 if Restricted
Notes are registered in more than one name), consult the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9. Failure
to complete the Substitute Form W-9 will not, by itself, cause Restricted Notes
to be deemed invalidly tendered, but may require the Company (or the Paying
Agent) to withhold 31% of the amount of any payments made on account of the
Exchange Notes. Backup withholding is not an additional federal income tax.
Rather, the federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the IRS.
9. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the exchange of Restricted Notes pursuant to the Exchange Offer.
If, however, certificates representing Exchange Notes or Restricted Notes for
principal amounts not tendered or accepted for exchange are to be delivered to,
or are to be registered in the name of, any person other than the registered
Holder of the Restricted Notes tendered hereby, or if tendered Restricted Notes
are registered in the name of a person other than the person signing this Letter
of Transmittal, or if 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 or on any
other persons) will be payable by the tendering Holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with this
Letter of Transmittal, the amount of such transfer taxes will be billed directly
to such tendering Holder. See the Prospectus under "The Exchange
Offer--Solicitation of Tenders; Fees and Expenses."
Except as provided in this Instruction 9, it will not be necessary for
transfer tax stamps to be affixed to the Restricted Notes listed in this Letter
of Transmittal.
10. WAIVER OF CONDITIONS. The Company reserves the right, in its sole
discretion, to amend, waive or modify specified conditions in the Exchange Offer
in the case of any Restricted Notes tendered.
11. MUTILATED, LOST, STOLEN OR DESTROYED RESTRICTED NOTES. Any tendering
Holder whose Restricted Notes have been mutilated, lost, stolen or destroyed
should contact the Exchange Agent at the address indicated herein for further
instructions.
12. REQUESTS FOR ASSISTANCE, COPIES. Requests for assistance and requests
for additional copies of the Prospectus or this Letter of Transmittal may be
directed to the Exchange Agent at the address specified in the Prospectus.
Holders may also contact their broker, dealer, commercial bank, trust company or
other nominee for assistance concerning the Exchange Offer.
(DO NOT WRITE IN SPACE BELOW)
<TABLE>
<CAPTION>
CERTIFICATE TENDERED RESTRICTED NOTES ACCEPTED RESTRICTED NOTES SURRENDERED
- ---------------------------------------- ---------------------------------------- ----------------------------------------
<S> <C> <C>
- ---------------------------------------- ---------------------------------------- ----------------------------------------
- ---------------------------------------- ---------------------------------------- ----------------------------------------
</TABLE>
Received _________ Accepted by _________ Checked by _________
Delivery Prepared by ________ Checked by ________ Date ________
10
<PAGE>
IMPORTANT TAX INFORMATION
Under United States federal income tax laws, to avoid imposition of a 31%
backup withholding with respect to payments made under the Exchange Notes a
Holder whose tendered Restricted Notes are accepted for payment should provide
the Exchange Agent with such Holder's correct TIN on Substitute Form W-9 below
or otherwise establish a basis for exemption from backup withholding. If such
Holder is an individual, the TIN is his social security number. If the Exchange
Agent is not provided with the correct TIN, a $50 penalty may be imposed by the
Internal Revenue Service, and payments made under the Exchange Note may be
subject to backup withholding.
Certain Holders (including, among others, all corporations and certain
non-United States persons) are not subject to these backup withholding and
reporting requirements. Exempt Holders should indicate their exempt status on
Substitute Form W-9. A non-United States person may qualify as an exempt
recipient by submitting to the Exchange Agent a properly completed Internal
Revenue Service Form W-8, signed under penalties of perjury, attesting to that
Holder's exempt status. A Form W-8 can be obtained from the Exchange Agent. See
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional instructions.
If backup withholding applies, the Company (or the Paying Agent under the
Indenture governing the Exchange Notes) is required to withhold 31% of any
payments made to the Holder or other payee with respect to the Exchange Notes.
Backup withholding is not an additional United States federal income tax.
Rather, the United States federal income tax liability of persons subject to
backup withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to the Exchange
Notes, the Holder should provide the Company (or the Paying Agent under the
Indenture governing the Exchange Notes) with either (a) the Holder's correct TIN
by completing the form below, certifying that the TIN provided on Substitute
Form W-9 is correct (or that such Holder is awaiting a TIN) and that (1) the
Holder has been notified by the Internal Revenue Service that the Holder is not
subject to backup withholding as a result of failure to report all interest or
dividends or (2) the Internal Revenue Service has notified the Holder that the
Holder is no longer subject to backup withholding or (b) an adequate basis for
exemption.
WHAT NUMBER TO GIVE
The Holder is required to give the TIN (e.g., social security number or
employer identification number) of the registered Holder of the Restricted
Notes. If the Restricted Notes are held in more than one name or are held not in
the name of the actual owner, consult the enclosed "Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9" for additional
guidance on which number to report.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify, under penalties of perjury, that a Taxpayer Identification Number
has not been issued to me, and that I mailed or delivered an application to
receive a Taxpayer Identification Number to the appropriate Internal Revenue
Service Center or Social Security Administration Office (or I intend to mail
or deliver an application in the near future). I understand that if I do not
provide a Taxpayer Identification Number to the payer, 31% of all payments
made to me on account of the Exchange Notes shall be retained until I provide
a Taxpayer Identification Number within 60 days, such retained amounts shall
be remitted to the Internal Revenue Service as backup withholding and 31% of
all reportable payments made to me thereafter will be withheld and remitted to
the Internal Revenue Service until I provide a Taxpayer Identification Number.
Signature
--------------------------------------------- Date
-------------------------- ,1999
11
<PAGE>
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT
ON OR PRIOR TO THE EXPIRATION DATE.
TO BE COMPLETED BY ALL TENDERING SECURITYHOLDERS
(SEE INSTRUCTION 8)
<TABLE>
<S> <C> <C>
- -------------------------------------------------------------------------------------------
PAYER'S NAME: [insert]
------------------------------------------------------------------------------------------
PART 1--PLEASE PROVIDE YOUR TIN TIN: -------------------------
ON THE LINE AT RIGHT AND CERTIFY Social Security Number or
BY SIGNING AND DATING BELOW Employer Identification Number
-----------------------------------------------------------------
PART 2--TIN Applied For / /
-----------------------------------------------------------------
SUBSTITUTE CERTIFICATION--UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) the number shown on this form is my correct taxpayer
identification number (or I
am waiting for a number to be issued to me),
FORM W-9 (2) I am not subject to backup withholding either because (i) I
Department of the am exempt from backup withholding, (ii) I have not been notified
Treasury by the Internal Revenue Service ("IRS") that I am subject to
Internal Revenue
Service backup withholding as a result of a failure to report all
Payor's Request For interest or dividends, or (iii) the IRS has notified me that
Taxpayer Identification I am no longer subject to backup withholding, and
Number ("TIN") and
Certification
(3) any other information provided on this form is true and
correct.
Signature Date , 1999
You must cross out item (iii) in Part (2) above if you have been notified by the IRS that
you are subject to backup withholding because of underreporting interest or dividends on
your tax return and you have not been notified by the IRS that you are no longer subject
to backup withholding.
- -------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU ON ACCOUNT OF THE
EXCHANGE NOTES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
12
<PAGE>
FORM OF
LETTER OF TRANSMITTAL
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
OFFER TO EXCHANGE
6.125% NOTES DUE 2008
FOR
6.125% NOTES DUE 2008
PURSUANT TO THE PROSPECTUS DATED , 1999
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME ON
, 1999, UNLESS THE EXCHANGE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
The Exchange Agent for the Exchange Offer is:
The Bank of New York
<TABLE>
<S> <C> <C>
BY HAND OR OVERNIGHT DELIVERY: FACSIMILE TRANSACTIONS: BY REGISTERED OR CERTIFIED MAIL:
(Eligible Institutions Only)
The Bank of New York (212) 815-4699 The Bank of New York
101 Barclay Street, 7E TO CONFIRM BY TELEPHONE 101 Barclay Street
New York, New York 10286 OR FOR INFORMATION CALL: Corporate Trust Services Window
Attn: Denise Robinson (212) 815-2791 Ground Level
New York, New York 10286
Attn: Denise Robinson
</TABLE>
- --------------------------------------------------------------------------------
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR TRANSMISSION TO A FACSIMILE
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE
METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES, IS AT THE RISK
OF THE HOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. YOU SHOULD READ THE
INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL CAREFULLY BEFORE YOU
COMPLETE THIS LETTER OF TRANSMITTAL.
The undersigned acknowledges that he or she has received the prospectus,
dated , 1999 (the "Prospectus"), of Tyco International Group S.A., a
Luxembourg company (the "Company"), and Tyco International Ltd., a Bermuda
company ("Tyco"), and this Letter of Transmittal and the instructions hereto
(the "Letter of Transmittal"), which together constitute the Company's offer
(the "Exchange Offer") to exchange $1,000 principal amount of 6.125% Notes due
2008 (the "Exchange Notes"), which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to a Registration Statement
of which the Prospectus is a part, for each $1,000 principal amount of its
outstanding 6.125% Notes due 2008 (the "Restricted Notes"), of which
$400,000,000 aggregate principal amount is outstanding, upon the terms and
subject to the conditions set forth in the Prospectus. The term "Expiration
Date" shall mean 5:00 p.m. New York City time on , 1999, unless the
Company, in its sole discretion, extends the Exchange Offer, in which case the
term shall mean the latest date and time to which the Exchange Offer is extended
by the Company. Capitalized terms used but not defined herein have the meaning
given to them in the Prospectus.
This Letter of Transmittal is to be used if either (1) certificates
representing Restricted Notes are to be physically delivered to the Exchange
Agent herewith by Holders (as defined below), (2) tender of Restricted Notes is
to be made by book-entry transfer to an account maintained by the Exchange Agent
at The Depository Trust Company ("DTC"), pursuant to the procedures set forth in
"The Exchange Offer--Procedures for Tendering" in the Prospectus by any
financial institution that is a participant in DTC and whose name appears on a
security position listing as the owner of Restricted Notes or (3) tender of
Restricted Notes is to be made according to the guaranteed delivery procedures
set forth in the Prospectus under "The Exchange Offer--Guaranteed Delivery
Procedures." Delivery of this Letter of Transmittal and any other required
documents must be made to the Exchange Agent.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
<PAGE>
The term "Holder" as used herein means any person in whose name Restricted
Notes are registered on the books of the Company or any other person who has
obtained a properly completed bond power from the registered holder.
All Holders of Restricted Notes who wish to tender their Restricted Notes
must, prior to the Expiration Date: (1) complete, sign and deliver this Letter
of Transmittal, or a facsimile thereof, to the Exchange Agent, in person or to
the address or facsimile number set forth above; and (2) tender (and not
withdraw) his, her or its Restricted Notes or, if a tender of Restricted Notes
is to be made by book-entry transfer to the account maintained by the Exchange
Agent at DTC, confirm such book-entry transfer (a "Book-Entry Confirmation"), in
each case in accordance with the procedures for tendering described in the
Instructions to this Letter of Transmittal. Holders of Restricted Notes whose
certificates are not immediately available, or who are unable to deliver their
certificates or Book-Entry Confirmation and all other documents required by this
Letter of Transmittal to be delivered to the Exchange Agent on or prior to the
Expiration Date, must tender their Restricted Notes according to the guaranteed
delivery procedures set forth under the caption "The Exchange Offer--Guaranteed
Delivery Procedures" in the Prospectus. (See Instruction 2.)
Upon the terms and subject to the conditions of the Exchange Offer, the
acceptance for exchange of the Restricted Notes validly tendered and not
withdrawn and the issuance of the Exchange Notes will be made promptly following
the Expiration Date. For the purposes of the Exchange Offer, the Company shall
be deemed to have accepted for exchange validly tendered Restricted Notes when,
as and if the Company has given written notice thereof to the Exchange Agent.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW. THE INSTRUCTIONS INCLUDED IN THIS LETTER OF
TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR
ADDITIONAL COPIES OF THE PROSPECTUS, THIS LETTER OF TRANSMITTAL AND THE NOTICE
OF GUARANTEED DELIVERY MAY BE DIRECTED TO THE EXCHANGE AGENT. SEE INSTRUCTION
12.
HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR RESTRICTED
NOTES MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY AND COMPLY WITH
ALL OF ITS TERMS.
List below the Restricted Notes to which this Letter of Transmittal relates.
If the space provided below is inadequate, the Certificate Numbers and Principal
Amounts should be listed on a separate signed schedule, attached hereto. The
minimum permitted tender is $1,000 in principal amount of the Restricted Notes.
All other tenders must be in integral multiples of $1,000.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
DESCRIPTION OF RESTRICTED NOTES 1 2 3
- ------------------------------------------------------------------------------------------------------
PRINCIPAL
AGGREGATE AMOUNT OF
PRINCIPAL RESTRICTED
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S): CERTIFICATE AMOUNT OF NOTES
(PLEASE FILL IN, IF BLANK) NUMBER(S)* NOTES TENDERED**
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
----------------------------------------------
Total
- ----------------------------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Need not be completed by Holders who wish to tender all Restricted Notes listed.
- ----------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
- --------------------------------------------------------------------------------
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
SPECIAL REGISTRATION INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if certificates for Restricted Notes in a principal
amount not tendered, or Exchange Notes issued in exchange for Restricted
Notes accepted for exchange, are to be issued in the name of someone other
than the undersigned.
Issue certificate(s) to:
Name(s) ____________________________________________________________________
Address ____________________________________________________________________
(INCLUDE ZIP CODE)
__________________________________________________________________________
(TAX IDENTIFICATION OR SOCIAL
SECURITY NUMBER(S))
-------------------------------------------------------------------
-------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if certificates for Restricted Notes in a principal
amouint not tendered, or Exchange Notes issued in exchange for Restricted
Notes accepted for exchange, are to be delivered to someone other than the
undersigned.
Deliver certificate(s) to:
Name(s) ____________________________________________________________________
Address ____________________________________________________________________
(INCLUDE ZIP CODE)
__________________________________________________________________________
(TAX IDENTIFICATION OR SOCIAL
SECURITY NUMBER(S))
- -------------------------------------------------------------
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE
CERTIFICATE(S) FOR RESTRICTED NOTES OR A CONFIRMATION OF BOOK-ENTRY TRANSFER OF
SUCH RESTRICTED NOTES AND ALL OTHER REQUIRED DOCUMENTS) OR, IF GUARANTEED
DELIVERY PROCEDURES ARE TO BE COMPLIED WITH, A NOTICE OF GUARANTEED DELIVERY,
MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
<TABLE>
<S> <C>
/ / CHECK HERE IF RESTRICTED NOTES ARE BEING DELIVERED BY DTC TO AN ACCOUNT MAINTAINED BY THE
EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
/ / The Depository Trust Company
Account Number
Transaction Code Number
Holders whose Restricted Notes are not immediately available or who cannot deliver their Restricted Notes
and all other documents required hereby to the Exchange Agent on or prior to the Expiration Date may tender
their Restricted Notes according to the guaranteed delivery procedures set forth in the prospectus under the
caption "The Exchange Offer--Guaranteed Delivery Procedures." (See Instruction 2.)
/ / CHECK HERE IF RESTRICTED NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of tendering Holder(s)
Date of Execution of Notice of Guaranteed Delivery
Name of Institution which Guarantees Delivery
Transaction Code Number
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
</TABLE>
3
<PAGE>
If the undersigned is not a broker-dealer, the undersigned represents that (1)
it is acquiring the Exchange Notes in the ordinary course of its business, (2)
it has no arrangements or understanding with any person, nor does it intend to
engage in, a distribution (as that term is interpreted by the SEC) of Exchange
Notes and (3) it is not an affiliate (as that term is interpreted by the SEC) of
the Company. If the undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Restricted Notes that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the undersigned
hereby tenders to Tyco International Group S.A. (the "Company") the principal
amount of Restricted Notes indicated above.
Subject to and effective upon the acceptance for exchange of the principal
amount of Restricted Notes tendered hereby in accordance with the terms of the
Exchange Offer described in the prospectus, this Letter of Transmittal and the
accompanying Instructions, the undersigned sells, assigns and transfers to, or
upon the order of, the Company all right, title and interest in and to the
Restricted Notes tendered hereby. The undersigned hereby irrevocably constitutes
and appoints the Exchange Agent as its agent and attorney-in-fact (with full
knowledge that the Exchange Agent also acts as the agent of the Company and as
Trustee and Registrar under the Indenture for the Restricted Notes and the
Exchange Notes) with respect to the tendered Restricted Notes with full power of
substitution (such power of attorney being deemed an irrevocable power coupled
with an interest), subject only to the right of withdrawal described in the
Prospectus, to (1) deliver certificates for such Restricted Notes to the Company
or transfer ownership of such Restricted Notes on the account books maintained
by DTC, together, in either such case, with all accompanying evidences of
transfer and authenticity to, or upon the order of, the Company and (2) present
such Restricted Notes for transfer on the books of the Company and receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Restricted Notes, all in accordance with the terms of the Exchange Offer.
The undersigned acknowledges that the Exchange Offer is being made in
reliance upon interpretative advice given by the staff of the SEC to third
parties in connection with transactions similar to the Exchange Offer, so that
the Exchange Notes issued pursuant to the Exchange Offer in exchange for the
Restricted Notes may be offered for resale, resold and otherwise transferred by
holders thereof (other than a broker-dealer who purchased such Restricted Notes
directly from the Company for resale pursuant to Rule 144A, Regulation S or any
other available exemption under the Securities Act or a person that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery provisions
of the Securities Act, provided that such Exchange Notes are acquired in the
ordinary course of such holders' business and such holders are not
participating, do not intend to participate and have no arrangement or
understanding with any person to participate, in the distribution of such
Exchange Notes.
The undersigned agrees that acceptance of any tendered Restricted Notes by
the Company and the issuance of Exchange Notes in exchange therefor shall
constitute performance in full by the Company of its obligations under the
Exchange Offer and Registration Rights Agreement and that, upon the issuance of
the Exchange Notes, the Company will have no further obligations or liabilities
thereunder (except in certain limited circumstances).
The undersigned represents and warrants that (1) the Exchange Notes acquired
pursuant to the Exchange Offer are being acquired in the ordinary course of
business of the person receiving Exchange Notes (which shall be the undersigned
unless otherwise indicated in the box entitled "Special Delivery Instructions"
above) (the "Recipient"), (2) neither the undersigned nor the Recipient (if
different) is engaged in, intends to engage in or has any arrangement or
understanding with any person to participate in the distribution (as that term
is interpreted by the SEC) of such Exchange Notes, and (3) neither the
undersigned nor the Recipient (if different) is an "affiliate" of the Company as
defined in Rule 405 under the Securities Act.
If the undersigned is a broker-dealer, the undersigned further (1)
represents that it acquired Restricted Notes for the undersigned's own account
as a result of market-making activities or other trading activities, (2)
represents that it has not entered into any arrangement or understanding with
the Company or any "affiliate" of the Company (within the meaning of Rule 405
under the Securities Act) to distribute the Exchange Notes to be received in the
Exchange Offer and (3) acknowledges that it will deliver a prospectus meeting
the requirements of the Securities Act (for which purposes, the delivery of the
Prospectus, as the same may be hereafter supplemented or amended, shall be
sufficient) in connection with any resale of Exchange Notes received in the
Exchange Offer. Such a broker-dealer will not be deemed, solely by reason of
such acknowledgment and prospectus delivery, to admit that it is an
"underwriter" within the meaning of the Securities Act.
4
<PAGE>
The undersigned understands and agrees that the Company reserves the right
not to accept tendered Restricted Notes from any tendering holder if the Company
determines, in its sole and absolute discretion, that such acceptance could
result in a violation of applicable securities laws.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, exchange, assign and transfer the Restricted
Notes tendered hereby and to acquire Exchange Notes issuable upon the exchange
of such tendered Restricted Notes, and that, when the same are accepted for
exchange, the Company will acquire good and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claim. The undersigned also warrants that it will, upon request,
execute and deliver any additional documents deemed to be necessary or desirable
by the Exchange Agent or the Company in order to complete the exchange,
assignment and transfer of tendered Restricted Notes or transfer of ownership of
such Restricted Notes on the account books maintained by a book-entry transfer
facility.
The undersigned understands and acknowledges that 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 Date or, as set forth in
the Prospectus under the caption "The Exchange Offer--Procedures for Tendering,"
to terminate the Exchange Offer and, to the extent permitted by applicable law,
purchase Restricted Notes in the open market, in privately negotiated
transactions or otherwise. The terms of any such purchases or offers could
differ from the terms of the Exchange Offer.
The undersigned understands that the Company may accept the undersigned's
tender by delivering written notice of acceptance to the Exchange Agent, at
which time the undersigned's right to withdraw such tender will terminate. For
purposes of the Exchange Offer, the Company shall be deemed to have accepted
validly tendered Restricted Notes when, as and if the Company has given oral
(which shall be confirmed in writing) or written notice thereof to the Exchange
Agent.
The undersigned understands that the first interest payment following the
Expiration Date will include unpaid interest on the Restricted Notes accrued
through the date of issuance of the Exchange Notes.
The undersigned understands that tenders of Restricted Notes pursuant to the
procedures described under the caption "The Exchange Offer--Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned, the Company and the Exchange Agent in
accordance with the terms and subject to the conditions of the Exchange Offer.
If any tendered Restricted Notes are not accepted for exchange pursuant to
the Exchange Offer for any reason, certificates for any such unaccepted
Restricted Notes will be returned (except as noted below with respect to tenders
through DTC), at the Company's cost and expense, to the undersigned at the
address shown below or at a different address as may be indicated herein under
"Special Delivery Instructions" as promptly as practicable after the Expiration
Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding on the undersigned's heirs, personal
representatives, successors and assigns. This tender may be withdrawn only in
accordance with the procedures set forth in the prospectus and in this Letter of
Transmittal.
By acceptance of the Exchange Offer, each broker-dealer that receives
Exchange Notes pursuant to the Exchange Offer hereby acknowledges and agrees
that upon the receipt of notice by the Company of the happening of any event
that makes any statement in the Prospectus untrue in any material respect or
that requires the making of any changes in the Prospectus in order to make the
statements therein not misleading (which notice the Company agrees to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemented prospectus to such broker-dealer.
Unless otherwise indicated under "Special Registration Instructions," please
issue the certificates representing the Exchange Notes issued in exchange for
the Restricted Notes accepted for exchange and return any certificates for
Restricted Notes not tendered or not exchanged, in the name(s) of the
undersigned (or, in either such event in the case of Restricted Notes tendered
by DTC, by credit to the account at DTC). Similarly, unless otherwise indicated
under "Special Delivery Instructions," please send the certificates representing
the Exchange Notes issued in exchange for the Restricted Notes accepted for
exchange and any certificates for Restricted Notes not tendered or not exchanged
(and accompanying documents, as appropriate) to the undersigned at the address
shown below the undersigned's signature(s), unless, in either event, tender is
being made through DTC. In the event that both "Special Registration
Instructions" and "Special Delivery Instructions" are completed, please issue
the certificates representing the Exchange Notes issued in exchange for the
Restricted Notes accepted for exchange in the name(s) of, and return any
certificates for Restricted Notes not tendered or not exchanged to, the
person(s) so indicated. The undersigned understands that the Company has no
obligations pursuant to the "Special Registration Instructions" or "Special
Delivery Instructions" to transfer any Restricted Notes from the name of the
registered Holder(s) thereof if the Company does not accept for exchange any of
the Restricted Notes so tendered.
5
<PAGE>
Holders who wish to tender the Restricted Notes and (1) whose Restricted
Notes are not immediately available or (2) who cannot deliver their Restricted
Notes, this Letter of Transmittal or any other documents required hereby to the
Exchange Agent prior to the Expiration Date, may tender their Restricted Notes
according to the guaranteed delivery procedures set forth in the Prospectus
under the caption "The Exchange Offer--Guaranteed Delivery Procedures." See
Instruction 1 regarding the completion of the Letter of Transmittal.
- --------------------------------------------------------------------------------
PLEASE SIGN HERE WHETHER OR NOT RESTRICTED NOTES ARE BEING PHYSICALLY
TENDERED HEREBY AND WHETHER OR NOT TENDER IS TO BE MADE PURSUANT TO
THE GUARANTEED DELIVERY PROCEDURES
(PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN)
This Letter of Transmittal must be signed by the registered holder(s) as
its (their) name(s) appear on the Restricted Notes or, if tendered by a
participant in DTC, exactly as such participant's name appears on a security
listing as the owner of Restricted Notes, or by person(s) authorized to
become registered holder(s) by a properly completed bond power from the
registered holder(s), a copy of which must be transmitted with this Letter
of Transmittal. If Restricted Notes to which this Letter of Transmittal
relate are held of record by two or more joint holders, then all such
holders must sign this Letter of Transmittal. If the signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative
capacity, then such person must (1) set forth his or her full title below
and (2) unless waived by the Company, submit evidence satisfactory to the
Company of such person's authority so to act. (See Instruction 4.)
----------------------------------------------------------------
(SIGNATURE(S) OF HOLDER(S))
Date: ____________, 1999
Name(s) ____________________________________________________________________
(PLEASE PRINT)
Capacity (full title) ______________________________________________________
Address ____________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number ( )________________________________________
____________________________________________________________________________
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER(S))
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTION 1)
----------------------------------------------------------------
(AUTHORIZED SIGNATURE)
Date: ____________, 1999
Name of Firm _______________________________________________________________
Capacity (full title) ______________________________________________________
Address ____________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number ( )________________________________________
- --------------------------------------------------------------------------------
6
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. Signatures on this Letter of Transmittal need
not be guaranteed if (a) this Letter of Transmittal is signed by the registered
holder(s) of the Restricted Notes tendered herewith and such holder(s) have not
completed the box set forth herein entitled "Special Registration Instructions"
or the box entitled "Special Delivery Instructions" or (b) such Restricted Notes
are tendered for the account of a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.
or a commercial bank or trust company having an office or correspondent in the
United States (each, an "Eligible Institution"). (See Instruction 6.) Otherwise,
all signatures on this Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by an Eligible Institution. All signatures on
bond powers and endorsements on certificates must also be guaranteed by an
Eligible Institution.
2. DELIVERY OF THIS LETTER OF TRANSMITTAL AND RESTRICTED NOTES. Certificates
for all physically delivered Restricted Notes or confirmation of any book-entry
transfer to the Exchange Agent at DTC of Restricted Notes tendered by book-entry
transfer, as well as, in each case (including cases where tender is affected by
book-entry transfer), a properly completed and duly executed copy of this Letter
of Transmittal or facsimile hereof and any other documents required by this
Letter of Transmittal, must be received by the Exchange Agent at its address set
forth herein prior to 5:00 p.m. New York City time on the Expiration Date. The
method of delivery of the tendered Restricted Notes, this Letter of Transmittal
and all other required documents to the Exchange Agent is at the election and
risk of the Holder and the delivery will be deemed made only when actually
received by the Exchange Agent. If Restricted Notes are sent by mail, registered
mail with return receipt requested, properly insured, is recommended. In all
cases, sufficient time should be allowed to ensure timely delivery. No Letter of
Transmittal or Restricted Notes should be sent to the Company.
The Exchange Agent will make a request to establish an account with respect
to the Restricted Notes at DTC for purposes of the Exchange Offer promptly after
receipt of this Prospectus, and any financial institution that is a participant
in DTC may make book-entry delivery of Restricted Notes by causing DTC to
transfer such Restricted Notes into the Exchange Agent's account at DTC in
accordance with DTC's procedures for transfer. However, although delivery of
Restricted Notes may be effected through book-entry transfer at DTC, the Letter
of Transmittal, with any required signature guarantees or an Agent's Message (as
defined in the next paragraph) in connection with a book-entry transfer and any
other required documents, must, in any case, be transmitted to and received by
the Exchange Agent at the address specified on the cover page of the Letter of
Transmittal on or prior to the Expiration Date or the guaranteed delivery
procedures described below must be complied with.
A Holder may tender Restricted Notes that are held through DTC by
transmitting its acceptance through DTC's Automatic Tender Offer Program, for
which the transaction will be eligible, and DTC will then edit and verify the
acceptance and send an Agent's Message to the Exchange Agent for its acceptance.
The term "Agent's Message" means a message transmitted by DTC to, and received
by, the Exchange Agent and forming part of the Book-Entry Confirmation, which
states that DTC has received an express acknowledgment from each participant in
DTC tendering the Restricted Notes and that such participant has received the
Letter of Transmittal and agrees to be bound by the terms of the Letter of
Transmittal and the Company may enforce such agreement against such participant.
Holders who wish to tender their Restricted Notes and (1) whose Restricted
Notes are not immediately available, or (2) who cannot deliver their Restricted
Notes, this Letter of Transmittal or any other documents required hereby to the
Exchange Agent prior to the Expiration Date or comply with book-entry transfer
procedures on a timely basis must tender their Restricted Notes according to the
guaranteed delivery procedures set forth in the Prospectus. See "Exchange
Offer--Guaranteed Delivery Procedures." Pursuant to such procedure: (1) such
tender must be made by or through an Eligible Institution; (2) prior to the
Expiration Date, the Exchange Agent must have received from the Eligible
Institution a properly completed and duly executed Notice of Guaranteed Delivery
(by facsimile transmission, overnight courier, mail or hand delivery) setting
forth the name and address of the Holder of the Restricted Notes, the
certificate number or numbers of such Restricted Notes and the principal amount
of Restricted Notes tendered, stating that the tender is being made thereby and
guaranteeing that, within three New York Stock Exchange trading days after the
Expiration Date, this Letter of Transmittal (or facsimile hereof) together with
the certificate(s) representing the Restricted Notes and any other required
documents will be deposited by the Eligible Institution with the Exchange Agent;
and (3) such properly completed and executed Letter of Transmittal (or facsimile
hereof), as well as all other documents required by this Letter of Transmittal
and the certificate(s) representing all tendered Restricted Notes in proper form
for transfer (or a confirmation of book-entry transfer of such Restricted Notes
into the Exchange Agent's account at DTC), must be received by the Exchange
Agent within three New York Stock Exchange trading days after the Expiration
Date, all in the manner provided in the Prospectus under the caption "The
7
<PAGE>
Exchange Offer--Guaranteed Delivery Procedures." Any Holder who wishes to tender
his, her or its Restricted Notes pursuant to the guaranteed delivery procedures
described above must ensure that the Exchange Agent receives the Notice of
Guaranteed Delivery prior to 5:00 p.m. New York City time on the Expiration
Date. Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will
be sent to Holders who wish to tender their Restricted Notes according to the
guaranteed delivery procedures set forth above.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Restricted Notes, and withdrawal of tendered
Restricted Notes will be determined by the Company in its sole discretion, which
determination will be final and binding. All tendering holders, by execution of
this Letter of Transmittal (or facsimile thereof), shall waive any right to
receive notice of the acceptance of the Restricted Notes for exchange. The
Company reserves the absolute right to reject any and all 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 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 this Letter of
Transmittal) shall 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. Neither the Company, the
Exchange Agent nor any other person shall be under any duty to give notification
of defects or irregularities with respect to tenders of Restricted Notes, nor
shall any of them incur any liability for failure to give such notification.
Tenders of Restricted Notes will not be deemed to have been made until such
defects or irregularities have been cured to the Company's satisfaction or
waived. Any Restricted Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned by the Exchange Agent to the tendering Holders
pursuant to the Company's determination, unless otherwise provided in this
Letter of Transmittal as soon as practicable following the Expiration Date. The
Exchange Agent has no fiduciary duties to the Holders with respect to the
Exchange Offer and is acting solely on the basis of directions of the Company.
3. INADEQUATE SPACE. If the space provided is inadequate, the certificate
numbers and/or the number of Restricted Notes should be listed on a separate
signed schedule attached hereto.
4. TENDER BY HOLDER. Only a Holder of Restricted Notes may tender such
Restricted Notes in the Exchange Offer. Any beneficial owner of Restricted Notes
who is not the registered Holder and who wishes to tender should arrange with
such registered holder to execute and deliver this Letter of Transmittal on such
beneficial owner's behalf or must, prior to completing and executing this Letter
of Transmittal and delivering his, her or its Restricted Notes, either make
appropriate arrangements to register ownership of the Restricted Notes in such
beneficial owner's name or obtain a properly completed bond power from the
registered holder or properly endorsed certificates representing such Restricted
Notes.
5. PARTIAL TENDERS; WITHDRAWALS. Tenders of Restricted Notes will be
accepted only in integral multiples of $1,000. If less than the entire principal
amount of any Restricted Notes is tendered, the tendering Holder should fill in
the principal amount tendered in the third column of the box entitled
"Description of Restricted Notes" above. The entire principal amount of any
Restricted Notes delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated. If the entire principal amount of all
Restricted Notes is not tendered, then Restricted Notes for the principal amount
of Restricted Notes not tendered and a certificate or certification representing
Exchange Notes issued in exchange for any Restricted Notes accepted will be sent
to the Holder at his, her or its registered address, unless a different address
is provided in the "Special Delivery Instructions" box above on this Letter of
Transmittal or unless tender is made through DTC, promptly after the Restricted
Notes are accepted for exchange.
Except as otherwise provided herein, tenders of Restricted Notes may be
withdrawn at any time prior to 5:00 p.m. New York City time on the Expiration
Date. To withdraw a tender of Restricted Notes in the Exchange Offer, a written
or facsimile transmission notice of withdrawal must be received by the Exchange
Agent at its address set forth herein prior to 5:00 p.m. New York City time on
the Expiration Date. Any such notice of withdrawal must (1) specify the name of
the person having deposited the Restricted Notes to be withdrawn (the
"Depositor"), (2) identify the Restricted Notes to be withdrawn (including the
certificate number or numbers 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), (3) be signed by the Depositor in
the same manner as the original signature on the Letter of Transmittal by which
such Restricted Notes were tendered (including any required signature
guarantees) or be accompanied by documents of transfer sufficient to have the
Registrar with respect to the Restricted Notes register the transfer of such
Restricted Notes into the name of the person withdrawing the tender and (4)
specify the name in which any such Restricted Notes are to be registered, if
different from that of the Depositor. All questions as to the validity, form and
eligibility (including time of receipt) of such 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
8
<PAGE>
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 which have been tendered but which are
not accepted for exchange by the Company 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 in the
Prospectus under "The Exchange Offer--Procedures for Tendering" at any time
prior to the Expiration Date.
6. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS. If
this Letter of Transmittal (or facsimile hereof) is signed by the registered
Holder(s) of the Restricted Notes tendered hereby, the signature must correspond
with the name(s) as written on the face of the Restricted Note without
alteration, enlargement or any change whatsoever.
If any of the Restricted Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
If a number of Restricted Notes registered in different names are tendered,
it will be necessary to complete, sign and submit as many copies of this Letter
of Transmittal as there are different registrations of Restricted Notes.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered Holder or Holders (which term, for the purposes described herein,
shall include a book-entry transfer facility whose name appears on a security
listing as the owner of the Restricted Notes) of Restricted Notes tendered and
the certificate or certificates for Exchange Notes issued in exchange therefor
is to be issued (or any untendered principal amount of Restricted Notes to be
reissued) to the registered Holder, then such Holder need not and should not
endorse any tendered Restricted Notes, nor provide a separate bond power. In any
other case, such Holder must either properly endorse the Restricted Notes
tendered or transmit a properly completed separate bond power with this Letter
of Transmittal with the signatures on the endorsement or bond power guaranteed
by an Eligible Institution.
If this Letter of Transmittal (or facsimile hereof) is signed by a person
other than the registered Holder or Holders of any Restricted Notes listed, such
Restricted Notes must be endorsed or accompanied by appropriate bond powers in
each case signed as the name of the registered Holder or Holders appears on the
Restricted Notes.
If this Letter of Transmittal (or facsimile hereof) or any Restricted Notes
or bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, or officers of corporations or others acting in a fiduciary
or representative capacity, such persons should so indicate when signing, and
unless waived by the Company, evidence satisfactory to the Company of their
authority so to act must be submitted with this Letter of Transmittal.
Endorsements on Restricted Notes or signatures on bond powers required by
this Instruction 6 must be guaranteed by an Eligible Institution.
7. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS. Tendering Holders should
indicate, in the applicable box or boxes, the name and address to which Exchange
Notes or substitute Restricted Notes for principal amounts not tendered or not
accepted for exchange are to be issued or sent, if different from the name and
address of the person signing this Letter of Transmittal. In the case of
issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated.
8. BACKUP UNITED STATES FEDERAL INCOME TAX WITHHOLDING AND SUBSTITUTE FORM
W-9. Under the United States federal income tax laws, payments that may be made
by the Company on account of Exchange Notes issued pursuant to the Exchange
Offer may be subject to backup withholding at the rate of 31%. In order to avoid
such backup withholding, each tendering holder should complete and sign the
Substitute Form W-9 included in this Letter of Transmittal and either (a)
provide the correct taxpayer identification number ("TIN") and certify, under
penalties of perjury, that the TIN provided is correct and that (1) the Holder
has not been notified by the United States Internal Revenue Service the ("IRS")
that the Holder is subject to backup withholding as a result of failure to
report all interest or dividends or (2) the IRS has notified the Holder that the
Holder is no longer subject to backup withholding; or (b) provide an adequate
basis for exemption. If the tendering Holder has not been issued a TIN and has
applied for one, or intends to apply for one in the near future, such Holder
should write "Applied For" in the space provided for the TIN in Part I of the
Substitute Form W-9, sign and date the Substitute Form W-9 and sign the
Certificate of Payee Awaiting Taxpayer Identification Number. If "Applied For"
is written in Part I, the Company (or the Paying Agent under the Indenture
governing the Exchange Notes) shall retain 31% of payments made to the tendering
Holder during the 60-day period following the date of the Substitute Form W-9.
If the Holder furnishes his, here or its TIN within 60 days after the date of
the Substitute Form W-9, the Company (or the Paying Agent) shall remit such
amounts retained during the 60-day period to the Holder and no further amounts
shall be retained or withheld from payments made to the Holder thereafter. If,
however, the Holder has not provided the Exchange Agent or the Company with his,
her or its TIN within such 60-day period, the Company (or the Paying Agent)
shall remit
9
<PAGE>
such previously retained amounts to the IRS as backup withholding. In general,
if a Holder is an individual, the TIN is the social security number of such
individual. If the Exchange Agent or the Company are not provided with the
correct TIN, the Holder may be subject to a $50 penalty imposed by the IRS.
Certain Holders (including, among others, all corporations and certain
non-United States individuals) are not subject to these backup withholding and
reporting requirements. In order for a non-United States individual to qualify
as an exempt recipient, such Holder must submit a statement (generally, IRS Form
W-8), signed under penalties of perjury, attesting to that individual's exempt
status. Such statements can be obtained from the Exchange Agent. For further
information concerning backup withholding and instructions for completing the
Substitute Form W-9 (including how to obtain a taxpayer identification number if
you do not have one and how to complete the Substitute Form W-9 if Restricted
Notes are registered in more than one name), consult the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9. Failure
to complete the Substitute Form W-9 will not, by itself, cause Restricted Notes
to be deemed invalidly tendered, but may require the Company (or the Paying
Agent) to withhold 31% of the amount of any payments made on account of the
Exchange Notes. Backup withholding is not an additional federal income tax.
Rather, the federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the IRS.
9. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the exchange of Restricted Notes pursuant to the Exchange Offer.
If, however, certificates representing Exchange Notes or Restricted Notes for
principal amounts not tendered or accepted for exchange are to be delivered to,
or are to be registered in the name of, any person other than the registered
Holder of the Restricted Notes tendered hereby, or if tendered Restricted Notes
are registered in the name of a person other than the person signing this Letter
of Transmittal, or if 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 or on any
other persons) will be payable by the tendering Holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with this
Letter of Transmittal, the amount of such transfer taxes will be billed directly
to such tendering Holder. See the Prospectus under "The Exchange
Offer--Solicitation of Tenders; Fees and Expenses."
Except as provided in this Instruction 9, it will not be necessary for
transfer tax stamps to be affixed to the Restricted Notes listed in this Letter
of Transmittal.
10. WAIVER OF CONDITIONS. The Company reserves the right, in its sole
discretion, to amend, waive or modify specified conditions in the Exchange Offer
in the case of any Restricted Notes tendered.
11. MUTILATED, LOST, STOLEN OR DESTROYED RESTRICTED NOTES. Any tendering
Holder whose Restricted Notes have been mutilated, lost, stolen or destroyed
should contact the Exchange Agent at the address indicated herein for further
instructions.
12. REQUESTS FOR ASSISTANCE, COPIES. Requests for assistance and requests
for additional copies of the Prospectus or this Letter of Transmittal may be
directed to the Exchange Agent at the address specified in the Prospectus.
Holders may also contact their broker, dealer, commercial bank, trust company or
other nominee for assistance concerning the Exchange Offer.
(DO NOT WRITE IN SPACE BELOW)
<TABLE>
<CAPTION>
CERTIFICATE TENDERED RESTRICTED NOTES ACCEPTED RESTRICTED NOTES SURRENDERED
- ---------------------------------------- ---------------------------------------- ----------------------------------------
<S> <C> <C>
- ---------------------------------------- ---------------------------------------- ----------------------------------------
- ---------------------------------------- ---------------------------------------- ----------------------------------------
</TABLE>
Received _________ Accepted by _________ Checked by _________
Delivery Prepared by ________ Checked by ________ Date ________
10
<PAGE>
IMPORTANT TAX INFORMATION
Under United States federal income tax laws, to avoid imposition of a 31%
backup withholding with respect to payments made under the Exchange Notes a
Holder whose tendered Restricted Notes are accepted for payment should provide
the Exchange Agent with such Holder's correct TIN on Substitute Form W-9 below
or otherwise establish a basis for exemption from backup withholding. If such
Holder is an individual, the TIN is his social security number. If the Exchange
Agent is not provided with the correct TIN, a $50 penalty may be imposed by the
Internal Revenue Service, and payments made under the Exchange Note may be
subject to backup withholding.
Certain Holders (including, among others, all corporations and certain
non-United States persons) are not subject to these backup withholding and
reporting requirements. Exempt Holders should indicate their exempt status on
Substitute Form W-9. A non-United States person may qualify as an exempt
recipient by submitting to the Exchange Agent a properly completed Internal
Revenue Service Form W-8, signed under penalties of perjury, attesting to that
Holder's exempt status. A Form W-8 can be obtained from the Exchange Agent. See
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional instructions.
If backup withholding applies, the Company (or the Paying Agent under the
Indenture governing the Exchange Notes) is required to withhold 31% of any
payments made to the Holder or other payee with respect to the Exchange Notes.
Backup withholding is not an additional United States federal income tax.
Rather, the United States federal income tax liability of persons subject to
backup withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to the Exchange
Notes, the Holder should provide the Company (or the Paying Agent under the
Indenture governing the Exchange Notes) with either (a) the Holder's correct TIN
by completing the form below, certifying that the TIN provided on Substitute
Form W-9 is correct (or that such Holder is awaiting a TIN) and that (1) the
Holder has been notified by the Internal Revenue Service that the Holder is not
subject to backup withholding as a result of failure to report all interest or
dividends or (2) the Internal Revenue Service has notified the Holder that the
Holder is no longer subject to backup withholding or (b) an adequate basis for
exemption.
WHAT NUMBER TO GIVE
The Holder is required to give the TIN (e.g., social security number or
employer identification number) of the registered Holder of the Restricted
Notes. If the Restricted Notes are held in more than one name or are held not in
the name of the actual owner, consult the enclosed "Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9" for additional
guidance on which number to report.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify, under penalties of perjury, that a Taxpayer Identification Number
has not been issued to me, and that I mailed or delivered an application to
receive a Taxpayer Identification Number to the appropriate Internal Revenue
Service Center or Social Security Administration Office (or I intend to mail
or deliver an application in the near future). I understand that if I do not
provide a Taxpayer Identification Number to the payer, 31% of all payments
made to me on account of the Exchange Notes shall be retained until I provide
a Taxpayer Identification Number within 60 days, such retained amounts shall
be remitted to the Internal Revenue Service as backup withholding and 31% of
all reportable payments made to me thereafter will be withheld and remitted to
the Internal Revenue Service until I provide a Taxpayer Identification Number.
Signature
--------------------------------------------- Date
-------------------------- ,1999
11
<PAGE>
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT
ON OR PRIOR TO THE EXPIRATION DATE.
TO BE COMPLETED BY ALL TENDERING SECURITYHOLDERS
(SEE INSTRUCTION 8)
<TABLE>
<S> <C> <C>
- -------------------------------------------------------------------------------------------
PAYER'S NAME: [insert]
------------------------------------------------------------------------------------------
PART 1--PLEASE PROVIDE YOUR TIN TIN: -------------------------
ON THE LINE AT RIGHT AND CERTIFY Social Security Number or
BY SIGNING AND DATING BELOW Employer Identification Number
-----------------------------------------------------------------
PART 2--TIN Applied For / /
-----------------------------------------------------------------
SUBSTITUTE CERTIFICATION--UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) the number shown on this form is my correct taxpayer
identification number (or I
am waiting for a number to be issued to me),
FORM W-9 (2) I am not subject to backup withholding either because (i) I
Department of the am exempt from backup withholding, (ii) I have not been notified
Treasury by the Internal Revenue Service ("IRS") that I am subject to
Internal Revenue
Service backup withholding as a result of a failure to report all
Payor's Request For interest or dividends, or (iii) the IRS has notified me that
Taxpayer Identification I am no longer subject to backup withholding, and
Number ("TIN") and
Certification
(3) any other information provided on this form is true and
correct.
Signature Date , 1999
You must cross out item (iii) in Part (2) above if you have been notified by the IRS that
you are subject to backup withholding because of underreporting interest or dividends on
your tax return and you have not been notified by the IRS that you are no longer subject
to backup withholding.
- -------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU ON ACCOUNT OF THE
EXCHANGE NOTES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
12
<PAGE>
FORM OF
NOTICE OF GUARANTEED DELIVERY
FOR
5.875% NOTES DUE 2004
OF
TYCO INTERNATIONAL GROUP S.A.
As set forth in the prospectus dated , 1999 (the "Prospectus") of
Tyco International Group S.A. (the "Company") and Tyco International Ltd.
("Tyco") and in the Letter of Transmittal (the "Letter of Transmittal"), this
form or a form substantially equivalent to this form must be used to accept the
Exchange Offer (as defined below) if the certificates for the outstanding 5.875%
Notes due 2004 (the "Restricted Notes") of the Company and all other documents
required by the Letter of Transmittal cannot be delivered to the Exchange Agent
by the Expiration Date of the Exchange Offer or compliance with book-entry
transfer procedures cannot be effected on a timely basis. Such form may be
delivered by hand or transmitted by facsimile transmission, telex or mail to the
Exchange Agent no later than the Expiration Date, and must include a signature
guarantee by an Eligible Institution as set forth below. Capitalized terms used
herein but not defined herein have the meanings ascribed thereto in the
Prospectus.
The Exchange Agent for the Exchange Offer is:
The Bank Of New York
<TABLE>
<CAPTION>
BY REGISTERED OR CERTIFIED MAIL FACSIMILE TRANSMISSIONS: BY HAND OR OVERNIGHT DELIVERY
<S> <C> <C>
The Bank of New York (Eligible Institutions The Bank of New York
101 Barclay Street, 7E Only) (212) 815-4699 101 Barclay Street
New York, New York 10286 CONFIRM BY TELEPHONE: CorporateTrustServices Window
Attn: Denise Robinson (212) 815-2791 Ground Level
FOR INFORMATION CALL: New York, New York 10286
(212) 815-2791 Attn: Denise Robinson
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR TRANSMISSION TO A FACSIMILE
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE
METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES, IS AT THE RISK OF
THE HOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. YOU SHOULD READ THE INSTRUCTIONS
ACCOMPANYING THE LETTER OF TRANSMITTAL CAREFULLY BEFORE YOU COMPLETE THIS NOTICE
OF GUARANTEED DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution under the instructions thereto, such
signatures must appear in the applicable space provided on the Letter of
Transmittal for Guarantee of Signature(s).
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.
NEW YORK CITY TIME ON , 1999 UNLESS THE EXCHANGE OFFER IS EXTENDED.
<PAGE>
Ladies and Gentlemen:
The undersigned acknowledges receipt of the Prospectus and the related
Letter of Transmittal which describes the Company's offer (the "Exchange Offer")
to exchange $1,000 in principal amount of its 5.875% Notes due 2004 (the
"Exchange Notes") for each $1,000 in principal amount of its 5.875% Notes due
2004 (the "Restricted Notes"). The undersigned hereby tenders to the Company the
aggregate principal amount of Restricted Notes set forth below on the terms and
conditions set forth in the Prospectus and the related Letter of Transmittal
pursuant to the guaranteed delivery procedure set forth in the "The Exchange
Offer--Guaranteed Delivery Procedures" section in the Prospectus and the
accompanying Letter of Transmittal.
The undersigned understands that no withdrawal of a tender of Restricted
Notes may be made on or after the Expiration Date. The undersigned understands
that for a withdrawal of a tender of Restricted Notes to be effective, a written
notice of withdrawal that complies with the requirements of the Exchange Offer
must be timely received by the Exchange Agent at one of its addresses or by
facsimile specified on the cover of this Notice of Guaranteed Delivery prior to
the Expiration Date.
The undersigned understands that the exchange of Restricted Notes for
Exchange Notes pursuant to the Exchange Offer will be made only after timely
receipt by the Exchange Agent of (1) such Restricted Notes (or Book-Entry
Confirmation of the transfer of such Restricted Notes into the Exchange Agent's
account at The Depository Trust Company ("DTC")) and (2) a Letter of Transmittal
(or facsimile thereof) with respect to such Restricted Notes, properly completed
and duly executed, with any required signature guarantees, this Notice of
Guaranteed Delivery and any other documents required by the Letter of
Transmittal or a properly transmitted Agent's Message. The term "Agent's
Message" means a message transmitted by DTC to, 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 in DTC
tendering the Restricted Notes and that such participant has received the Letter
of Transmittal and agrees to be bound by the terms of the Letter of Transmittal
and the Company may enforce such agreement against such participant.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall not be affected by, and shall survive, the death or
incapacity of the undersigned, and every obligation of the undersigned under
this Notice of Guaranteed Delivery shall be binding on the heirs, executors,
administrators, trustees in bankruptcy, personal and legal representatives,
successors and assigns of the undersigned.
2
<PAGE>
- --------------------------------------------------------------------------------
PLEASE COMPLETE
<TABLE>
<S> <C>
Principal Amount of Restricted Notes Name(s) of Registered Holder(s):
Tendered for Exchange: $
Restricted Note Certificate No.(s)
(if available):
If Restricted Notes will be tendered by book-entry transfer, provide the following
information:
DTC Account Number:
Date:
</TABLE>
PLEASE SIGN HERE
<TABLE>
<S> <C>
X
Signature(s) of Owner(s) or Authorized
Signatory Date
Area Code and Telephone Number:
</TABLE>
- --------------------------------------------------------------------------------
This Notice of Guaranteed Delivery must be signed by the registered
Holder(s) of Restricted Notes exactly as its (their) name(s) appear on
certificates for Restricted Notes or on a security position listing as the owner
of Restricted Notes, or by person(s) authorized to become registered Holder(s)
by endorsements and documents transmitted with this Notice of Guaranteed
Delivery. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must provide the following information.
- --------------------------------------------------------------------------------
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Capacity:
-------------------------------------------------------------------------------
Address(es):
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
----------------------------------------------------------------------------
3
<PAGE>
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities exchange
or of the National Association of Securities Dealers, Inc. or a commercial bank
or trust company having an office or a correspondent in the United States, or
otherwise an "eligible guarantor institution" within the meaning of Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
hereby (1) represents that each holder of Restricted Notes on whose behalf this
tender is being made "own(s)" the Restricted Notes covered hereby within the
meaning of Rule 13d-3 under the Exchange Act, (2) represents that such tender of
Restricted Notes complies with Rule 14e-4 of the Exchange Act and (3) guarantees
that, within three New York Stock Exchange trading days from the expiration date
of the Exchange Offer, a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof), together with certificates representing
the Restricted Notes covered hereby in proper form for transfer (or confirmation
of the book-entry transfer of such Restricted Notes into the Exchange Agent's
account at DTC, pursuant to the procedure for book-entry transfer set forth in
the Prospectus) and required documents will be deposited by the undersigned with
the Exchange Agent.
The undersigned acknowledges that it must deliver the Letter of Transmittal
and Restricted Notes tendered hereby to the Exchange Agent within the time
period set forth above and the failure to do so could result in financial loss
to the undersigned.
<TABLE>
<S> <C>
Name of Firm Authorized Signature
Address Title
Zip Code (Please Type or Print)
Area Code and Telephone No. Dated:
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR RESTRICTED NOTES WITH THIS FORM. CERTIFICATES
FOR RESTRICTED NOTES SHOULD ONLY BE SENT WITH YOUR LETTER OF TRANSMITTAL.
4
<PAGE>
FORM OF
NOTICE OF GUARANTEED DELIVERY
FOR
6.125% NOTES DUE 2008
OF
TYCO INTERNATIONAL GROUP S.A.
As set forth in the prospectus dated , 1999 (the "Prospectus") of
Tyco International Group S.A. (the "Company") and Tyco International Ltd.
("Tyco") and in the Letter of Transmittal (the "Letter of Transmittal"), this
form or a form substantially equivalent to this form must be used to accept the
Exchange Offer (as defined below) if the certificates for the outstanding 6.125%
Notes due 2008 (the "Restricted Notes") of the Company and all other documents
required by the Letter of Transmittal cannot be delivered to the Exchange Agent
by the Expiration Date of the Exchange Offer or compliance with book-entry
transfer procedures cannot be effected on a timely basis. Such form may be
delivered by hand or transmitted by facsimile transmission, telex or mail to the
Exchange Agent no later than the Expiration Date, and must include a signature
guarantee by an Eligible Institution as set forth below. Capitalized terms used
herein but not defined herein have the meanings ascribed thereto in the
Prospectus.
The Exchange Agent for the Exchange Offer is:
The Bank Of New York
<TABLE>
<CAPTION>
BY REGISTERED OR CERTIFIED MAIL FACSIMILE TRANSMISSIONS: BY HAND OR OVERNIGHT DELIVERY
<S> <C> <C>
The Bank of New York (Eligible Institutions The Bank of New York
101 Barclay Street, 7E Only) 101 Barclay Street
New York, New York 10286 (212) 815-4699 CorporateTrustServices Window
Attn: Denise Robinson CONFIRM BY TELEPHONE: Ground Level
(212) 815-2719 New York, New York 10286
FOR INFORMATION CALL: Attn: Denise Robinson
(212) 815-2791
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR TRANSMISSION TO A FACSIMILE
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE
METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES, IS AT THE RISK OF
THE HOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. YOU SHOULD READ THE INSTRUCTIONS
ACCOMPANYING THE LETTER OF TRANSMITTAL CAREFULLY BEFORE YOU COMPLETE THIS NOTICE
OF GUARANTEED DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution under the instructions thereto, such
signatures must appear in the applicable space provided on the Letter of
Transmittal for Guarantee of Signature(s).
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1999 UNLESS THE EXCHANGE OFFER IS EXTENDED.
<PAGE>
Ladies and Gentlemen:
The undersigned acknowledges receipt of the Prospectus and the related
Letter of Transmittal which describes the Company's offer (the "Exchange Offer")
to exchange $1,000 in principal amount of its 6.125% Notes due 2008 (the
"Exchange Notes") for each $1,000 in principal amount of its 6.125% Notes due
2008 (the "Restricted Notes"). The undersigned hereby tenders to the Company the
aggregate principal amount of Restricted Notes set forth below on the terms and
conditions set forth in the Prospectus and the related Letter of Transmittal
pursuant to the guaranteed delivery procedure set forth in the "The Exchange
Offer--Guaranteed Delivery Procedures" section in the Prospectus and the
accompanying Letter of Transmittal.
The undersigned understands that no withdrawal of a tender of Restricted
Notes may be made on or after the Expiration Date. The undersigned understands
that for a withdrawal of a tender of Restricted Notes to be effective, a written
notice of withdrawal that complies with the requirements of the Exchange Offer
must be timely received by the Exchange Agent at one of its addresses or by
facsimile specified on the cover of this Notice of Guaranteed Delivery prior to
the Expiration Date.
The undersigned understands that the exchange of Restricted Notes for
Exchange Notes pursuant to the Exchange Offer will be made only after timely
receipt by the Exchange Agent of (1) such Restricted Notes (or Book-Entry
Confirmation of the transfer of such Restricted Notes into the Exchange Agent's
account at The Depository Trust Company ("DTC")) and (2) a Letter of Transmittal
(or facsimile thereof) with respect to such Restricted Notes, properly completed
and duly executed, with any required signature guarantees, this Notice of
Guaranteed Delivery and any other documents required by the Letter of
Transmittal or a properly transmitted Agent's Message. The term "Agent's
Message" means a message transmitted by DTC to, 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 in DTC
tendering the Restricted Notes and that such participant has received the Letter
of Transmittal and agrees to be bound by the terms of the Letter of Transmittal
and the Company may enforce such agreement against such participant.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall not be affected by, and shall survive, the death or
incapacity of the undersigned, and every obligation of the undersigned under
this Notice of Guaranteed Delivery shall be binding on the heirs, executors,
administrators, trustees in bankruptcy, personal and legal representatives,
successors and assigns of the undersigned.
2
<PAGE>
- --------------------------------------------------------------------------------
PLEASE COMPLETE
<TABLE>
<S> <C>
Principal Amount of Restricted Notes Name(s) of Registered Holder(s):
Tendered for Exchange: $
Restricted Note Certificate No.(s)
(if available):
If Restricted Notes will be tendered by book-entry transfer, provide the following
information:
DTC Account Number:
Date:
</TABLE>
PLEASE SIGN HERE
<TABLE>
<S> <C>
X
Signature(s) of Owner(s) or Authorized
Signatory Date
Area Code and Telephone Number:
</TABLE>
- --------------------------------------------------------------------------------
This Notice of Guaranteed Delivery must be signed by the registered
Holder(s) of Restricted Notes exactly as its (their) name(s) appear on
certificates for Restricted Notes or on a security position listing as the owner
of Restricted Notes, or by person(s) authorized to become registered Holder(s)
by endorsements and documents transmitted with this Notice of Guaranteed
Delivery. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must provide the following information.
- --------------------------------------------------------------------------------
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Capacity:
-------------------------------------------------------------------------------
Address(es):
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
----------------------------------------------------------------------------
3
<PAGE>
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities exchange
or of the National Association of Securities Dealers, Inc. or a commercial bank
or trust company having an office or a correspondent in the United States, or
otherwise an "eligible guarantor institution" within the meaning of Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
hereby (1) represents that each holder of Restricted Notes on whose behalf this
tender is being made "own(s)" the Restricted Notes covered hereby within the
meaning of Rule 13d-3 under the Exchange Act, (2) represents that such tender of
Restricted Notes complies with Rule 14e-4 of the Exchange Act and (3) guarantees
that, within three New York Stock Exchange trading days from the expiration date
of the Exchange Offer, a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof), together with certificates representing
the Restricted Notes covered hereby in proper form for transfer (or confirmation
of the book-entry transfer of such Restricted Notes into the Exchange Agent's
account at DTC, pursuant to the procedure for book-entry transfer set forth in
the Prospectus) and required documents will be deposited by the undersigned with
the Exchange Agent.
The undersigned acknowledges that it must deliver the Letter of Transmittal
and Restricted Notes tendered hereby to the Exchange Agent within the time
period set forth above and the failure to do so could result in financial loss
to the undersigned.
<TABLE>
<S> <C>
Name of Firm Authorized Signature
Address Title
Zip Code (Please Type or Print)
Area Code and Telephone No. Dated:
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR RESTRICTED NOTES WITH THIS FORM. CERTIFICATES
FOR RESTRICTED NOTES SHOULD ONLY BE SENT WITH YOUR LETTER OF TRANSMITTAL.
4
