Exhibit 4.3
TYCO INTERNATIONAL GROUP S.A.
Debt Securities
Purchase Agreement
March 30, 2000
MERRILL LYNCH INTERNATIONAL
J.P. MORGAN SECURITIES LTD.
ABN AMRO Bank N.V.
Banca d'Intermediazione Mobiliare IMI Spa
Banque Nationale de Paris
Barclays Bank PLC
Bayerische Hypo- und Vereinsbank AG
Commerzbank Aktiengesellschaft
Credit Lyonnais
Credit Suisse First Boston (Europe) Limited
Deutsche Bank Aktiengesellschaft
Dresdner Bank AG London Branch
HSBC Bank plc
Westdeutsche Landesbank Girozentrale
c/o Merrill Lynch International
25 Ropemaker Place
London EC2Y 9LY, England
Ladies and Gentlemen:
Tyco International Group S.A., a Luxembourg company (the "Company"),
proposes to issue and sell to the managers named in Schedule II hereto (the
"Managers" which term shall also include any manager substituted as herein
provided), for whom you are acting as representatives (the "Representatives"),
the principal amount of its debt securities identified in Schedule I hereto
(the "Securities"), to be issued under the Indenture, dated as of June 9, 1998,
as supplemented by Supplemental Indenture No. 13 thereto (as so supplemented,
the "Indenture"), in each case, among the Company, Tyco International Ltd.
("Tyco"), a Bermuda company and the sole shareholder of the Company, and The
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Bank of New York, as trustee (the "Trustee"). The Securities will be
unconditionally guaranteed by Tyco (the "Guarantees"). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule
I hereto, then the terms "Managers" and "Representatives", as used herein shall
each be deemed to refer to such firm or firms.
The Company and Tyco understand that the Managers propose to make an
offering of the Securities and the Guarantees on the terms and in the manner
set forth herein and agrees that the Managers may resell, subject to the
conditions set forth herein, all or a portion of the Securities and the
Guarantees to purchasers ("Subsequent Purchasers") at any time after the date
of this Agreement. The Securities and Guarantees are to be offered and sold
through the Managers without being registered under the Securities Act of 1933,
as amended, and the rules and regulations of the Securities and Exchange
Commission (the "Commission") thereunder (collectively the "Securities Act"),
in reliance upon exemptions therefrom. Pursuant to the terms of the Securities,
the Guarantees and the Indenture, investors that acquire Securities and the
Guarantees may only resell or otherwise transfer such Securities if such
Securities are hereafter registered under the Securities Act or if an exemption
from the registration requirements of the Securities Act is available
(including the exemption afforded by Rule 144A ("Rule 144A") or Regulation S
("Regulation S") of the rules and regulations promulgated under the Securities
Act by the Commission).
The Company and Tyco have prepared and will deliver to the Managers,
on the date hereof, copies of a final offering circular dated March 30, 2000
(the "Offering Circular") used or to be used by the Managers in connection with
their solicitation of purchases of, or offering of, the Securities and
Guarantees. The Company and Tyco have previously delivered to the Managers
copies of a preliminary offering circular dated March 14, 2000 (the
"Preliminary Offering Circular").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Circular (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is incorporated by reference in the Offering Circular; and all references
in this Agreement to amendments or supplements to the Offering Circular shall
be deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934 as amended, and the rules and regulations of the
Commission thereunder (the "Exchange Act") which is incorporated by reference
in the Offering Circular.
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The holders of the Securities and the Guarantees identified in
Schedule I 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) among the Company, Tyco and the Managers, pursuant to
which the Company and Tyco will agree to file, as soon as practicable after the
Closing Date but in any event within 150 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 Managers as follows:
1. The Company agrees to issue and sell the Securities and Tyco
agrees to issue the Guarantees to the several Managers as hereinafter provided,
and each Manager, on the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to
purchase, severally and not jointly, from the Company the respective principal
amount of Securities and Guarantees set forth opposite such Manager's name in
Schedule II hereto at the purchase price of 99.032% of the principal amount
thereof (which shall equal the issue price of each Security (together with its
related Guarantee) of 99.432%, less a selling concession of 0.25% and a
combined management and underwriting commission of 0.15% of the principal
amount of the Securities which may be divided among you in such proportions as
you may determine which is to be payable to the Managers in connection with the
offering and sale of the Securities and Guarantees) (the "Purchase Price"),
plus accrued interest, if any, from the date specified in Schedule I hereto to
the date of payment and delivery.
2. The Company and Tyco understand that the several Managers 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 Circular. In connection with the offering
and sale of the Securities and the Guarantees, Merrill Lynch International or
its affiliates may over-allot or effect transactions which stabilize or
maintain the market price of the Securities and the Guarantees at levels above
those which might otherwise prevail in the open market. Such transactions may
be effected in the over-the- counter markets or otherwise. Such stabilizing, if
commenced, may be discontinued at any time.
3. Payment of the Purchase Price for the Securities and the
Guarantees shall be made by wire transfer in immediately available funds to the
account specified by the Company to the Representatives (which account
information shall be provided no later than noon on the Business Day prior to
the Closing Date (as defined below)) at 9:00 A.M., London time, on April 4,
2000 at the offices of Merrill Lynch International, 25 Ropemaker Place, London
EC2Y 9LY, England
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(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 on
which the Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open and such day is not a day on which banks or foreign
exchange markets are permitted or required to be closed in London. The time and
date of such payment and delivery with respect to the Securities and the
Guarantees are referred to herein as the "Closing Date".
Payment of the Purchase Price for the Securities and the Guarantees,
less an amount heretofore agreed to be deductible from the Purchase Price in
respect of expenses, shall be made (against delivery in the case of (i)) to (i)
the common depositary for Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System ("Euroclear") and Clearstream
Banking, societe anonyme, Luxembourg ("Clearstream, Luxembourg") and (ii) the
nominee of The Depository Trust Company for the respective accounts of the
several Managers of global notes (the "Global Notes") representing the
Securities and the Guarantees, with any transfer taxes payable in connection
with the transfer to the Managers of the Securities and the Guarantees duly
paid by the Company. The Global Notes will be made available for inspection by
the Representatives at the office of Merrill Lynch International, 25 Ropemaker
Place, London EC2Y 9LY, England, not later than 1:00 P.M., London time, on the
Business Day prior to the Closing Date.
4. The Company and Tyco, jointly and severally, represent and warrant
to each Manager that:
(a) neither the Company nor Tyco has, directly or indirectly,
solicited any offer to buy or offered to sell, and each will not,
directly or indirectly, solicit any offer to buy or offer to sell, in
the United States or to any United States citizen or resident, any
security which is or would be integrated with the sale of the
Securities and the Guarantees in a manner that would require the
Securities or the Guarantees to be registered under the Securities
Act;
(b) the Preliminary Offering Circular as of its date did not contain,
and the Offering Circular at the Closing Date will not contain 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 Preliminary Offering Circular and
the Offering Circular made in reliance upon and in conformity with
information
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furnished to the Company and Tyco in writing by any Manager with
respect to that Manager through Merrill Lynch International or J.P.
Morgan Securities Ltd. expressly for use in the Preliminary Offering
Circular or the Offering Circular, as the case may be;
(c) the documents incorporated by reference in the Preliminary
Offering Circular and in the Offering Circular, or portions thereof,
to the extent only a portion of a document is incorporated by
reference in the Preliminary Offering Circular or in the Offering
Circular, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in
the Preliminary Offering Circular or in the Offering Circular, when
such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(d) PricewaterhouseCoopers, Arthur Anderson L.L.P. (Houston), Arthur
Anderson LLP (Philadelphia) and Deloitte & Touche LLP who certified
the financial statements and supporting schedules included or
incorporated by reference in the Offering Circular are independent
public accountants required by the Securities Act;
(e) the financial statements of Tyco, and the related schedules and
notes thereto, included or incorporated by reference in the
Preliminary Offering Circular and in the Offering Circular 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; said financial statements have been prepared in
conformity with United States generally accepted accounting principles
("U.S. GAAP") applied on a consistent basis, except as otherwise
disclosed therein, and the supporting schedules included or
incorporated by reference in the Preliminary Offering Circular and in
the Offering Circular present fairly in accordance with U.S. GAAP the
information required to be stated therein; any pro forma financial
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information, and the related notes thereto, to the extent included or
incorporated by reference in the Preliminary Offering Circular and in
the Offering Circular, 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; the selected financial data of Tyco
included in the Preliminary Offering Circular and in the Offering
Circular present fairly the information shown therein; the selected
financial data of Tyco have been compiled on a basis consistent with
that of the audited consolidated financial statements included or
incorporated by reference in the Preliminary Offering Circular and in
the Offering Circular; no pro forma financial statements would be
required under the Securities Act to be included in the Preliminary
Offering Circular and in the Offering Circular (to the extent not
included or incorporated by reference) if the offering of the
Securities was being made in a public offering pursuant to a
registration statement under the Securities Act;
(f) since the respective dates as of which information is given in
the Offering Circular, 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 Circular;
and except as set forth or contemplated in the Offering Circular,
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 Circular, and is
duly qualified as a foreign corporation to transact business and is in
good standing under the laws of each other jurisdiction in which the
nature of its business or its ownership or leasing of its properties
requires qualification, except where the failure to be so qualified or
in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(h) Tyco is a limited liability company duly and validly
organized and existing and in good standing under the laws of Bermuda,
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with power and authority (corporate and other) to own, lease and
operate its properties and conduct its business as described in the
Offering Circular, 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 Tyco's material subsidiaries 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 Circular, 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 Circular, all the outstanding shares of capital stock of Tyco
and each subsidiary of Tyco have been duly authorized and validly
issued, are fully paid and non-assessable, and are owned by Tyco, as
the case may be, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims, except 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, and except where the failure to own such shares, directly or
indirectly, free and clear of all liens, encumbrances, security
interests and claims would not have a Material Adverse Effect;
(j) Tyco had as of the date indicated in the Offering Circular a duly
authorized and outstanding capitalization as set forth in the
Preliminary Offering Circular and in the Offering Circular in the
column entitled "Actual" under the caption "Capitalization of Tyco";
except as disclosed in the Offering Circular and except with respect
to the rights of holders of the Company's privately-placed 6-7/8%
Notes due 2002 to receive 6-7/8% Notes due 2002 which are to be
registered under the Securities Act for which the Company and Tyco
have filed a registration statement on Form S-4 with the Commission,
there are no holders of securities (debt or equity) of Tyco or any of
its subsidiaries (including the Company), 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;
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(k) this Agreement has been duly authorized, executed and
delivered by each of the Company and Tyco;
(l) the Securities have been duly authorized and when duly
authenticated by the Trustee pursuant to the Indenture and issued and
delivered pursuant to this Agreement, will have been duly executed,
issued and delivered and will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and entitled to the benefits provided
by the Indenture; the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
instrument of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); 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, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(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, enforceable against Tyco in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent
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transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law), and 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, enforceable
against Tyco in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law); the
Registration Rights Agreement has been duly authorized, executed and
delivered and will constitute a valid and binding agreement of Tyco,
enforceable against Tyco in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law);
(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 Circular (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 Circular under the
caption "Use of Proceeds") and the compliance by the Company and Tyco
with their respective obligations under this Agreement, the
Registration Rights Agreement, the Indenture, the Securities and the
Guarantees do not and will not conflict
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with or result in a breach of any of the terms or provisions of or
with the giving of notice or lapse of time or both conflict with or
constitute a breach of, or default or a Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon the property or assets of Tyco or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which Tyco
or any of its subsidiaries is a party or by which Tyco or any of its
subsidiaries is bound or to which any of the property or assets of
Tyco or any of its subsidiaries is subject, except for such conflicts,
breaches, defaults, liens, charges or encumbrances that would not
result in a Material Adverse Effect, nor will any such action result
in any violation of the provisions of the Charter or the by-laws of
Tyco or any of its subsidiaries or any applicable law or statute or
any order, rule or regulation of any court or governmental 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 or foreign security laws in
connection with the purchase and distribution of the Securities and
the Guarantees by the Managers. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company
or Tyco;
(o) other than as disclosed in or contemplated by the Offering
Circular, 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
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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 Circular, 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 Circular
which are not described as required;
(p) except as disclosed in the Offering Circular, 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 Circular 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 and the Guarantees are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Date, of the
same class as securities listed on a national securities exchange
registered under Section 6 of the Exchange Act, or quoted in a U.S.
automated interdealer quotation system;
(s) none of the Company, Tyco, any of their respective affiliates, as
such term is defined in Rule 501 (b) of Regulation D under the
Securities Act ("Affiliates"), or any person acting on its or any of
their behalf (other than the Managers, as to whom the Company makes no
representation) has engaged or will engage, in connection with the
offering of the Securities and the Guarantees, in any form of general
solicitation or general advertising within the meaning of Rule 502(c)
of Regulation D 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 Managers with the representations
and warranties set forth in the first three paragraphs of Section 5,
it is not necessary in connection with the offer, sale and delivery of
the Securities and the Guarantees to the Managers and to each
Subsequent Purchaser in the manner contemplated by this Agreement and
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the Offering Circular to register the Securities and the Guarantees
under the Securities Act or to qualify the Indenture under the Trust
Indenture Act;
(u) with respect to those Securities and Guarantees sold in reliance
on Regulation S, (A) none of the Company, Tyco, any of their
respective Affiliates or any person acting on their behalf (other than
the Managers, as to whom the Company makes no representation) has
engaged or will engage in any directed selling efforts within the
meaning of Regulation S and (B) each of the Company, Tyco, any of
their respective Affiliates and any person acting on their behalf
(other than the Managers, as to whom the Company makes no
representation) has complied and will comply with the offering
restrictions requirement of Regulation S;
(v) neither the Company nor Tyco or, to the best of the Company's and
Tyco's knowledge, any officer, director, employee agent or shareholder
thereof, in each case acting on behalf of the Company or Tyco, as the
case may be, has done any act or authorized, directed or participated
in any act, in violation of any provision of the Foreign Corrupt
Practices Act of 1977, as amended, applicable to such entity or person
for which civil or criminal liability or penalties, as the case may
be, could currently be imposed on the Company or Tyco;
(w) the choice of law provisions set forth in this Agreement, the
Indenture, the Securities, the Guarantees 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, 111 Eighth Avenue, 13th Floor, New York, New York
10011, U.S.A. (and any successor entity), as its authorized agent for
the service of process pursuant to this Agreement, the Indenture, the
Securities, the Guarantees 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
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this Agreement, the Indenture, the Securities, the Guarantees 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, the
Indenture, the Securities, the Guarantees 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, the Indenture, the
Securities, the Guarantees or the Registration Rights Agreement in the
courts of Luxembourg and Bermuda, respectively; it is not necessary
(a) in order to enable the Managers to exercise or enforce their
rights under this Agreement, the Indenture, the Securities, the
Guarantees 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, the Indenture, the Securities, the
Guarantees and the Registration Rights Agreement, that any of the
Managers should be licensed, qualified, authorized or entitled to do
business in Luxembourg and Bermuda, respectively; and
(x) 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 Managers or to counsel for the Managers shall be deemed a representation
and warranty by the Company or Tyco, as the case may be, to each Manager as to
the matters covered thereby.
5. Each of the Managers acknowledges that the Securities and
Guarantees have not been and will not be registered under the Securities Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S or
pursuant to an exemption from the registration requirements under the
Securities Act. Terms used in this paragraph have the meanings given to them by
Regulation S.
Each Manager represents and warrants that it has offered and sold the
Securities and Guarantees and agrees that it will offer and sell the Securities
and Guarantees (i) as part of their distribution at any time and (ii)
otherwise, until 40
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days after the later of the commencement of the offering and the Closing Date,
only in accordance with Rule 903 of Regulation S. Accordingly, neither it, its
affiliates nor any persons acting on its or their behalf have engaged or will
engage in any directed selling efforts with respect to the Securities and
Guarantees, and it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Manager agrees that, at or prior
to confirmation of the sale of Securities and Guarantees, it will have sent to
each distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities and Guarantees from it during the
restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered and sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, except in either
case, in accordance with Regulation S under the Securities Act. Terms
used above have the meanings given to them by Regulation S."
Any Manager, with the prior written consent of Merrill Lynch
International and J.P. Morgan Securities Ltd., may directly or through its
agents or affiliates arrange for the resale of the Securities and Guarantees in
the United States to qualified institutional buyers or to purchasers who such
Manager reasonably believes is a qualified institutional buyer pursuant to Rule
144A.
Each Manager further represents and warrants and agrees with the
Company and Tyco that:
(i) it has not offered or sold and will not offer or sell any
Securities and Guarantees to persons in the United Kingdom prior to
the expiry of the period six months from the Closing Date except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their business or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(ii) it has complied and will comply with all applicable provisions of
the Financial Services Act of 1986 with respect to anything done by it
in relation to the Securities and the Guarantees in, from or otherwise
involving the United Kingdom; and
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(iii) it has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the
issue of the Securities and Guarantees to a person who is of a kind
described in Article 11(3) of the Financial Services Act of
1986(Investment Advertisements) (Exemption) Order 1996 (as amended) or
is a person to whom such document may otherwise lawfully be issued or
passed on.
Each Manager also agrees with the Company and Tyco that:
(i) it will not offer or sell Securities and Guarantees in the
Federal Republic of Germany other than in compliance with the German
Securities Sales Prospectus Act of 13 December 1990 (as amended), or
any other laws applicable in the Federal Republic of Germany governing
the issue, offering and sale of securities; and
(ii) it will not offer, transfer or sell the Securities and
Guarantees, whether directly or indirectly, to any individual or legal
entity in the Netherlands, as part of their initial distribution, or
at any time thereafter, other than to individuals or legal entities
who or which trade or invest in securities in their conduct of a
profession or trade (which includes banks, brokers, dealers, insurance
companies, pension funds, other institutional investors and commercial
enterprises, which regularly, as an ancillary activity, invest in
securities).
6. The Company and Tyco, jointly and severally, covenant and agree
with each of the several Managers as follows:
(a) to furnish each of the Managers as many copies of the Offering
Circular (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
Circular, 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;
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(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 Circular;
(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
Managers an offering circular 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 a Manager or dealer, or at any
time prior to the completion of the distribution of the Securities and
Guarantees (in the reasonable view of Merrill Lynch International and
J.P. Morgan Securities Ltd.), any event shall occur as a result of
which it is necessary to amend or supplement the Offering Circular in
order to make the statements therein, in the light of the
circumstances existing when the Offering Circular is delivered to a
purchaser (or, in the case of certain jurisdictions where the Offering
Circular is not required to be delivered to a purchaser, when the
Securities and Guarantees are sold), not misleading, or if it is
necessary to amend or supplement the Offering Circular to comply with
law, forthwith to prepare and furnish, at the expense of the Company
and Tyco, to the Managers to which Securities may have been sold by
you on behalf of the Managers, such amendments or supplements to the
Offering Circular as may be necessary so that the statements in the
Offering Circular as so amended or supplemented will not, in light of
the circumstances existing when the Offering Circular is delivered to
a purchaser (or, in the case of certain jurisdictions where the
Offering Circular is not required to be delivered to a purchaser, when
the Securities and Guarantees are sold), be misleading or so that the
Offering Circular will comply with law;
(f) 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 Circular under "Use of Proceeds";
(g) so long as the Securities and the Guarantees are outstanding, to
furnish to you upon request 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;
(h) each of the Company and Tyco agrees that they will not and will
cause their respective affiliates not to make any offer or sale of
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<PAGE>
securities of the Company of any class if, as a result of the doctrine
of "integration" referred to in Rule 502 of Regulation D under the
Securities Act, such offer or sale could be deemed to render invalid
(for the purpose of (i) the sale of the Securities and the Guarantees
by the Company to the Managers, (ii) the resale of the Securities and
the Guarantees by the Managers to Subsequent Purchasers or (iii) the
resale of the Securities and the Guarantees by such Subsequent
Purchasers to others) the exemption from the registration requirements
of the Securities Act provided by Section 4(2) thereof or by Rule 144A
or by Regulation S thereunder or otherwise;
(i) the Company agrees that, in order to render the Securities
eligible for resale pursuant to Rule 144A, while any of the Securities
remain outstanding, it will make available, upon request, to any
holder of Securities or prospective purchasers of Securities the
information specified in Rule 144A(d)(4) for so long as such
information is required to be furnished by Rule 144A, 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");
(j) until the expiration of two years after the original issuance of
the Securities and the Guarantees, the Company and Tyco will not, and
will cause their respective "affiliates" (as such term is defined in
Rule 144(a)(1) under the Securities Act) not to, resell any Securities
and Guarantees which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the Securities Act) that have been
reacquired by any of them and shall immediately upon any purchase of
any such Securities and Guarantees submit such Securities and
Guarantees to the Trustee for cancellation;
(k) the Company and Tyco shall take all reasonable action
necessary to enable Standard & Poor's Corporation and Moody's Investors
Service, Inc. to provide their respective credit ratings of the
Securities and the Guarantees;
(l) the Company will use all reasonable efforts in cooperation with
the Managers to permit the Securities and the Guarantees to be
eligible for clearance and settlement through Euroclear, Clearstream,
Luxembourg and DTC;
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(m) each certificate for a Security to be sold under Rule 144A will
bear the legend contained in "Notices to Investors" in the Offering
Circular for the time period and upon the other terms stated in the
Offering Circular;
(n) 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;
(o) the Company and Tyco shall use all reasonable efforts to procure
the listing of the Securities and the Guarantees on the Luxembourg
Stock Exchange and to maintain such listing until none of the
Securities and the Guarantees are outstanding; provided, however,
that, if it is impractical or unduly burdensome to maintain such
listing, the Company and Tyco shall use all reasonable efforts to
procure and maintain as aforesaid a listing of or quotation of the
Securities and Guarantees on such other securities or stock exchange
or exchanges as it may (with the approval of Merrill Lynch
International and J.P. Morgan Securities Ltd.) decide; and
(p) 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
Circular (including all exhibits, amendments and supplements thereto),
(iii) in connection with the listing of the Securities and the
Guarantees on any securities or stock exchange, (iv) in connection
with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Indenture, the Registration Rights
Agreement and the Preliminary and Supplemental Blue Sky Memoranda and
the furnishing to the Managers and dealers of copies of the Offering
Circular, including mailing and shipping, as herein provided and (v)
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 Managers
except as explicitly set forth herein.
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7. The several obligations of the Managers 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 Circular 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 Circular, 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 Circular;
(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 since the date of the
Offering Circular any Material Adverse Effect;
(e) Mark A. Belnick, Chief Corporate Counsel and Executive Vice
President of Tyco, shall have furnished to you a written opinion,
dated the Closing Date, in form and substance satisfactory to you, to
the effect set forth in Exhibit A-1 hereto;
(f) Davis Polk & Wardwell, U.S. counsel for the Company and Tyco,
shall have furnished to you their written opinion, dated the Closing
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<PAGE>
Date, in form and substance satisfactory to you, to the effect set
forth in Exhibit A-2 hereto;
(g) Beghin & Feider (in association with Allen & Overy), Luxembourg
counsel for the Company, shall have furnished to you their written
opinion, dated the Closing Date, in form and substance satisfactory to
you, to the effect set forth in Exhibit A-3 hereto;
(h) Appleby Spurling & Kempe, Bermuda counsel for Tyco, shall have
furnished to you their written opinion, dated the Closing Date, in
form and substance satisfactory to you, to the effect set forth in
Exhibit A-4 hereto;
(i) on the date hereof and on the Closing Date,
PricewaterhouseCoopers shall have furnished to you letters, dated such
dates, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants "comfort letters" to the Managers with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Offering Circular;
(j) you shall have received on and as of the Closing Date an opinion
of Fried, Frank, Harris, Shriver & Jacobson, U.S. counsel to the
Managers, with respect to the validity of this Agreement, the
Indenture, the Securities and the Guarantees, the Registration Rights
Agreement, the Offering Circular and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(k) on the Closing Date, the Securities and the Guarantees shall have
been approved for listing on the Luxembourg Stock Exchange, subject
only to official notice of issuance;
(l) the Company and Tyco shall have duly authorized, executed and
delivered the Registration Rights Agreement and the Indenture to the
Managers in a form and substance satisfactory to the Representatives
and counsel to the Managers; and
(m) on or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as the
Representatives shall reasonably request.
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8. (a) The Company and Tyco, jointly and severally, agree to
indemnify and hold harmless each Manager and each person, if any, who controls
any Manager within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against (i) any and all losses,
claims, damages, liabilities and expenses (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 Preliminary
Offering Circular or the Offering Circular (as amended or supplemented if the
Company or Tyco shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) any and all losses, claims, damages, liabilities and expenses
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such settlement is
effected with the written consent of the Company; and (iii) any and all
expenses whatsoever, as incurred (including the fees and disbursements of
counsel chosen by Merrill Lynch International and J.P. Morgan Securities Ltd.),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under clauses (i) or (ii)
above; except insofar as such losses, claims, damages, liabilities or expenses
are caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Manager furnished to the Company or Tyco in writing by any Manager through
Merrill Lynch International or J.P. Morgan Securities Ltd. expressly for use
therein.
(b) Each Manager 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 indemnity from the Company and Tyco to each Manager set forth in clauses
(i), (ii) and (iii) of paragraph (a) of this Section 8, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Preliminary Offering Circular or the Offering Circular in reliance
upon and in conformity with written information furnished to the Company or
Tyco by any Manager relating to any Manager through Merrill Lynch International
or J.P. Morgan Securities Ltd. expressly for use in the Preliminary Offering
Circular or the Offering Circular, as the case may be.
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If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing. In the case of the parties indemnified
pursuant to Section 8(a) above, counsel to the indemnified parties shall be
selected by Merrill Lynch International and J.P. Morgan Securities Ltd., and,
in the case of parties indemnified pursuant to Section 8(b) above, counsel to
the indemnified parties shall be selected by the Company. The Indemnifying
Person shall pay the fees and expenses of 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 Managers and such control persons of Managers shall be
designated in writing by Merrill Lynch International and J.P. Morgan Securities
Ltd. and any such separate firm for the Company, Tyco and their respective
directors and officers and such control persons of the Company and Tyco shall
be designated in writing by the Company and Tyco. The Indemnifying Person shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the third sentence
of this paragraph, the Indemnifying Person agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement unless the Indemnifying Person in
good faith shall be contesting the
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<PAGE>
reasonableness of such fees and expenses (but only to the extent so contested)
or the entitlement of the Indemnified Person to indemnification under the terms
of this Section 8. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject
matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 8 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and Tyco on the one hand and the
Managers 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 Managers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company and Tyco on the
one hand and the Managers on the other hand shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such Securities
and Guarantees (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and Tyco and the total underwriting
discounts and the commissions received by the Managers 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 Managers 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 Managers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, Tyco and the Managers 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 Managers 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
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paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, in no event shall a Manager
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 Manager 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 Managers' 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
Schedule II 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 Manager or any person controlling any Manager 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 Luxembourg Stock
Exchange, 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 or (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 or (iii) a general moratorium on
commercial banking activities in London shall have been declared by appropriate
authorities or 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
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<PAGE>
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 Circular or (v) the occurrence of any material
adverse change in the existing financial, political or economic conditions or
currency exchange rates or exchange controls in the United States, Luxembourg,
Bermuda or elsewhere which, in the judgment of the Representatives would
materially and adversely affect the financial markets or the success of the
offering, sale and distribution of the Securities and Guarantees or dealings in
the Securities and Guarantees in the secondary market or the market for the
Company's and Tyco's other debt securities.
If this Agreement is terminated, such termination shall be without
liability of any party to any other party except as provided in Section 11
hereof, and provided further that Sections 4 and 8 shall survive such
termination and remain in full force and effect.
10. If, on the Closing Date, any one or more of the Managers 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 Manager or Managers agreed but failed or refused to purchase is
not more than one-tenth of the aggregate principal amount of the Securities,
the other Managers shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names in
Schedule II hereto bears to the aggregate principal amount of Securities set
forth opposite the names of all such non-defaulting Managers, or in such other
proportions as the Representatives may specify, to purchase the Securities
which such defaulting Manager or Managers agreed but failed or refused to
purchase on such date; provided that in no event shall the principal amount of
Securities that any Manager 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
Manager. If, on the Closing Date, any Manager or Managers 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 Manager, 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 Circular or in any other documents or
arrangements may be effected. Any action taken under this
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paragraph shall not relieve any defaulting Manager from liability in respect of
any default of such Manager under this Agreement.
11. If this Agreement shall be terminated by the Managers, or any of
them pursuant to Section 9 or 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
Managers' obligations cannot be fulfilled, the Company and Tyco agree to
reimburse the Managers or such Managers 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
Managers 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 Managers 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 Manager shall be deemed to be a successor or assign by
reason merely of such purchase.
13. Any action by the Managers hereunder may be taken by you jointly
or by Merrill Lynch International or J.P. Morgan Securities Ltd. alone on
behalf of the Managers, and any such action taken by you jointly or by Merrill
Lynch International or J.P. Morgan Securities Ltd. alone shall be binding upon
the Managers. 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 Managers shall be given
at the address set forth in Schedule I hereto. Notices to the Company and Tyco
shall be given to them, if to the Company, at 6, Avenue Emile Reuter, 2nd
Floor, L- 2420, Luxembourg, facsimile (352) 464-350, Attention: the Managing
Directors; if to Tyco, at The Zurich Centre, Second Floor, 90 Pitts Bay Road,
Pembroke HM 08, Bermuda, facsimile (441) 295-9647, Attention: Secretary, with a
copy in either case c/o Tyco International (US), Inc., 9 West 57th Street, 43rd
Floor, New York, New York 10019, facsimile (646) 282-8553/4; Attention: Chief
Corporate 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,
26
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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, 111 Eighth Avenue, 13th Floor,
New York, New York 10011, 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 Managers, their affiliates or any indemnified
party to serve process in any manner permitted by law or limit the right of the
Managers, 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 eight 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 Managers.
To the extent that either the Company or Tyco has or hereafter may
acquire any immunity from jurisdiction of any court (including, without
limitation, any court in the United States, the State of New York, Luxembourg,
Bermuda or any political subdivision thereof) or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property or assets, this Agreement, or any other documents or actions to
enforce judgments in respect of any thereof, it hereby irrevocably waives such
immunity, and any defense based on such immunity, in respect of its obligations
under the above-referenced
27
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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 a Manager is made or satisfied in a currency (the "Judgment
Currency") other than in euro then, to the extent that the payment (when
converted into euro at the rate of exchange on the date of payment or, if it is
not practicable for such Manager to purchase euro 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 Manager 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 Manager against the amount of such shortfall
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 Manager is able on the relevant date to
purchase euro with the Judgment Currency and shall take into account any
premium and other costs of exchange.
16. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
TYCO INTERNATIONAL GROUP S.A.
By: /s/ Richard W. Brann
-------------------------------
Name: Richard W. Brann
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Mark H. Swartz
-----------------------
Name: Mark H. Swartz
Title: Executive Vice President
Chief Financial Officer
28
<PAGE>
Accepted: March 30, 2000
CONFIRMED AND ACCEPTED,
MERRILL LYNCH INTERNATIONAL
J.P. MORGAN SECURITIES LTD.
BANCA D'INTERMEDIAZIONE MOBILIARE IMI SPA
BANQUE NATIONALE DE PARIS
BARCLAYS BANK PLC
BAYERISCHE HYPO- UND VEREINSBANK AG
COMMERZBANK AKTIENGESELLSCHAFT
CREDIT LYONNAIS
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
DEUTSCHE BANK AKTIENGESELLSCHAFT
DRESDNER BANK AG LONDON BRANCH
HSBC BANK PLC
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: MERRILL LYNCH INTERNATIONAL
By /s/
-----------------------------------
Authorized Signatory
By: J.P. MORGAN SECURITIES LTD.
By /s/
------------------------------------
Authorized Signatory
For themselves and the other Managers named in Schedule II hereto.
29
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SCHEDULE I
Representatives: Merrill Lynch International
J.P. Morgan Securities Ltd.
ABN AMRO Bank N.V.
Banca d'Intermediazione Mobiliare IMI
Spa Banque Nationale de Paris
Barclays Bank PLC
Bayerische Hypo- und Vereinsbank AG
Commerzbank Aktiengesellschaft
Credit Lyonnais
Credit Suisse First Boston (Europe)
Limited
Deutsche Bank Aktiengesellschaft
Dresdner Bank AG London Branch
HSBC Bank plc
Westdeutsche Landesbank Girozentrale
Purchase Agreement Dated: March 30, 2000
Title of Securities: 6.125% Notes Due 2007 (the "Notes")
Aggregate Principal Amount: (U)600,000,000
Purchase Price: 99.032%
Price to Public: 99.432%
Indenture: Indenture, dated as of June 9, 1998, as
supplemented by Supplemental Indenture
No. 13 thereto, dated as of April 4, 2000,
among Tyco International Group S.A.,
Tyco International Ltd. and The Bank of
New York, as trustee.
Maturity: April 4, 2007
First Interest Payment Date: April 4, 2001
Interest Rate: 6.125%
Interest Payment Dates: April 4 of each year until maturity
30
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Redemption Provisions: Optional Redemption. The Notes may be
redeemed, as a whole but not in part, at the
election of the Company, at any time upon
not less than 30 nor more than 60 days'
notice (which notice shall be irrevocable) at
a redemption price equal to the greater of
(i) 100% of the principal amount of such
Notes or (ii) as determined by the
Reference Dealer, (A) 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
redemption date on an annual basis (based
on the actual number of days elapsed
divided by 365 (or, if any of those days
elapsed fall in a leap year, the sum of (x)
the number of those days falling in a leap
year divided by 366 and (y) the number of
those days falling in a non-leap year
divided by 365)) at the Reference Dealer
Rate, plus 10 basis points, plus (B) in each
case, accrued interest thereon to the date of
redemption.
"Reference Dealer" means either of Merrill
Lynch International or J.P. Morgan
Securities Ltd. or their respective
successors.
"Reference Dealer Rate" means with respect
to the Reference Dealer and any redemption
date, the midmarket annual yield to
maturity, as determined by the Reference
Dealer, of the German Government Bund 6.00%
due January 2007 or, if that security is no
longer outstanding, a similar security in
the reasonable judgment of the Reference
Dealer, at 11:00 a.m. (London time) on the
fifth business day in London preceding such
redemption
31
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date quoted in writing to the trustee by such
Reference Dealer.
Redemption Upon Changes In Withholding
Taxes. The Notes may be redeemed, as a whole
but not in part, at the election of the
Company, upon not less than 30 nor more than
60 days' notice (which notice shall be
irrevocable), at a redemption price equal to
100% of the principal amount thereof,
together with accrued interest, if any, to
the redemption date and Additional Amounts
(as defined in Section 12.2), if any, if as
a result of any amendment to, or change in,
the laws or regulations of Luxembourg or
Bermuda or any political subdivision or
taxing authority thereof or therein having
power to tax (a "Taxing Authority"), or any
change in the application or official
interpretation of such laws or regulations
which amendment or change is announced and
becomes effective after the date the Notes
are issued, the Company or Tyco has become
or will become obligated to pay Additional
Amounts, on the next date on which any
amount would be payable with respect to the
Notes, and such obligation cannot be avoided
by the use of reasonable measures available
to the Company or Tyco, as the case may be;
provided, however, that (a) no such notice
of redemption may be given earlier than 60
days prior to the earliest date on which the
Company or Tyco, as the case may be, would
be obligated to pay such Additional Amounts,
and (b) at the time such notice of
redemption is given, such obligation to pay
such Additional Amounts remains in effect.
Sinking Fund Provisions: None
Other Provisions: None
32
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Closing Date and Time of Delivery: April 4, 2000
Closing Location: London, England
Address for Notices to
Managers: Merrill Lynch International
25 Ropemaker Place
London EC2Y 9LY, England
Facsimile: 44-171-867-4488
Attention: Head of Transaction
Management Group
J.P. Morgan Securities Ltd.
60 Victoria Embankment
London EC4Y OJP, England
Facsimile: 44-020-7325-8240
Attention: Head of Debt Syndicate,
Resident Counsel,
Head of Transaction Execution
Group
33
<PAGE>
SCHEDULE II
6.125% NOTES DUE 2007:
Principal Amount of
Manager Securities To Be Purchased
Merrill Lynch International...................... (U)246,000,000
J.P. Morgan Securities Ltd....................... 246,000,000
ABN AMRO Bank N.V................................ 9,000,000
Banca d'Intermediazione Mobiliare IMI Spa........ 9,000,000
Banque Nationale de Paris........................ 9,000,000
Barclays Bank PLC................................ 9,000,000
Bayerische Hypo- und Vereinsbank AG.............. 9,000,000
Commerzbank Aktiengesellschaft................... 9,000,000
Credit Lyonnais.................................. 9,000,000
Credit Suisse First Boston (Europe) Limited...... 9,000,000
Deutsche Bank Aktiengesellschaft................. 9,000,000
Dresdner Bank AG London Branch 9,000,000
HSBC Bank plc.................................... 9,000,000
Westdeutsche Landesbank Girozentrale............. 9,000,000
Total.................................... (U)600,000,000
34
