FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- --------------------------------------------------------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: July 1, 1999 Date of earliest event reported:
June 24, 1999
Boston Scientific Corporation
(Exact name of Registrant as specified in its charter)
Delaware 1-11083 04-2695240
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
One Boston Scientific Place, Natick, Massachusetts 01760-1537
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (508) 650-8000
Exhibit Index on Page 2
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Item 5. Other Events
On June 30, 1999, Boston Scientific Corporation (the
"Company") issued an aggregate of 14,950,000 shares of its common stock, par
value $.01 per share (the "Common Stock"). In connection with this offering, the
Company entered into a U.S. Purchase Agreement dated June 24, 1999 between the
Company and the Underwriters named therein (the "U.S. Purchase Agreement") and
an International Purchase Agreement dated June 24, 1999 between the Company and
the International Managers named therein (the "International Purchase
Agreement"). The U.S. Purchase Agreement provides for the issuance by the
Company of 10,400,000 shares of Common Stock and up to an additional
1,560,000 shares of Common Stock to cover over-allotments. The International
Purchase Agreement provides for the issuance by the Company of 2,600,000 shares
of Common Stock and up to an additional 390,000 shares of Common Stock to cover
over-allotments.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
Exhibit No. Exhibit Description
----------- -------------------
99.1 Executed U.S. Purchase Agreement dated June 24, 1999
99.2 Executed International Purchase Agreement dated June
24, 1999
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BOSTON SCIENTIFIC CORPORATION
Date: July 1, 1999 By: /s/ Lawrence J. Knopf
-------------------------------------
Name: Lawrence J. Knopf
Title: Vice President and Assistant
General Counsel
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INDEX TO EXHIBITS
Exhibit No. Exhibit Description
----------- -------------------
99.1 Executed U.S. Purchase Agreement dated June 24, 1999
99.2 Executed International Purchase Agreement dated June
24, 1999
================================================================================
BOSTON SCIENTIFIC CORPORATION
(a Delaware corporation)
10,400,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: June 24, 1999
================================================================================
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Table of Contents
U.S. PURCHASE AGREEMENT.......................................................1
SECTION 1. Representations and Warranties............................4
(a) Representations and Warranties by the Company.............4
(b) Officer's Certificates...................................12
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing..........13
(a) Initial U.S. Securities..................................13
(b) Option Securities........................................13
(c) Payment..................................................13
(d) Denominations; Registration..............................14
SECTION 3. Covenants of the Company.................................14
(a) Compliance with Securities Regulations and Commission
Requests.................................................14
(b) Filing of Amendments.....................................15
(c) Delivery of Registration Statements......................15
(d) Delivery of Prospectuses.................................16
(e) Continued Compliance with Securities Laws................16
(f) Blue Sky Qualifications..................................16
(g) Rule 158.................................................17
(h) Use of Proceeds..........................................17
(i) Listing..................................................17
(j) Restriction on Sale of Securities........................17
(k) Reporting Requirements...................................17
SECTION 4. Payment of Expenses......................................17
(a) Expenses.................................................17
(b) Termination of Agreement.................................18
SECTION 5. Conditions of U.S. Underwriters' Obligations.............18
(a) Effectiveness of Registration Statement..................19
(b) Opinion of Counsel for Company...........................19
(c) Opinion of General Counsel for the Company...............19
(d) Opinion of Counsel for Underwriters......................19
(e) Officers' Certificate....................................20
(f) Accountant's Comfort Letter..............................20
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(g) Bring-down Comfort Letter................................20
(h) Approval of Listing......................................20
(i) No Objection.............................................21
(j) Lock-up Agreements.......................................21
(k) Purchase of Initial International Securities.............21
(l) Conditions to Purchase of U.S. Option Securities.........21
(m) Additional Documents.....................................22
(n) Termination of Agreement.................................22
SECTION 6. Indemnification..........................................22
(a) Indemnification of U.S. Underwriters.....................22
(b) Indemnification of Company, Directors and Officers.......23
(c) Actions against Parties; Notification....................23
(d) Settlement without Consent if Failure to Reimburse.......24
SECTION 7. Contribution.............................................24
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.................................................26
SECTION 9. Termination of Agreement.................................26
(a) Termination; General.....................................26
(b) Liabilities..............................................27
SECTION 10. Default by One or More of the U.S. Underwriters..........27
SECTION 11. Notices..................................................28
SECTION 12. Parties..................................................28
SECTION 13. Governing Law and Time...................................28
SECTION 14. Effect of Headings.......................................28
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SCHEDULES
Schedule A - List of Underwriters............................Sch A-1
Schedule B - Pricing Information.............................Sch B-1
Schedule C - List of Subsidiaries............................Sch C-1
Schedule D - List of Persons subject to Lock-up..............Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel.................A-1
Exhibit B - Form of Opinion of Company's General Counsel.........B-1
Exhibit C - Form of Lock-up Letter...............................C-1
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BOSTON SCIENTIFIC CORPORATION
(a Delaware corporation)
10,400,000 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
June 24, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
PAINEWEBBER INCORPORATED
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
DAIN RAUSCHER WESSELS, a division of
Dain Rauscher Incorporated
DEUTSCHE BANK SECURITIES INC.
U.S. BANCORP PIPER JAFFRAY INC.
as Representatives of the several U.S. Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Boston Scientific Corporation, a Delaware corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and each of the other U.S. Underwriters
named in Schedule A hereto (collectively, the "U.S. Underwriters", which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Merrill Lynch, PaineWebber Incorporated, Banc of
America Securities LLC, Bear, Stearns & Co. Inc., Dain Rauscher Wessels, a
division of Dain Rauscher Incorporated, Deutsche Bank Securities Inc. and U.S.
Bancorp Piper Jaffray Inc. are
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acting as representatives (in such capacity, the "U.S. Representatives"),
with respect to the issue and sale by the Company and the purchase by the U.S.
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Common Stock, par value $.01 per share, of the Company ("Common
Stock") set forth in said Schedule A, and with respect to the grant by the
Company to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 1,560,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 10,400,000 shares of Common Stock (the "Initial U.S. Securities") to
be purchased by the U.S. Underwriters and all or any part of the 1,560,000
shares of Common Stock subject to the option described in Section 2(b) hereof
(the "U.S. Option Securities") are hereinafter called, collectively, the "U.S.
Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of 2,600,000 shares of
Common Stock (the "Initial International Securities") through arrangements with
certain underwriters outside the United States and Canada (the "International
Managers") for which Merrill Lynch International, PaineWebber International
(U.K.) Ltd., Bank of America International Limited, Bear, Stearns International
Limited, Dain Rauscher Wessels, a division of Dain Rauscher Incorporated,
Deutsche Bank AG London and U.S. Bancorp Piper Jaffray Inc. are acting as lead
manager(s) (the "Lead Manager(s)") and the grant by the Company to the
International Managers, acting severally and not jointly, of an option to
purchase all or any part of 390,000 additional shares of Common Stock solely to
cover overallotments, if any (the "International Option Securities" and,
together with the U.S. Option Securities, the "Option Securities"). The Initial
International Securities and the International Option Securities are hereinafter
called the "International Securities". It is understood that the Company is not
obligated to sell and the U.S. Underwriters are not obligated to purchase, any
Initial U.S. Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities and the International Securities
are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Merrill Lynch & Co.,
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Merrill Lynch, Pierce, Fenner & Smith Incorporated (in such capacity, the
"Global Coordinator").
The Company understands that the U.S. Underwriters propose to make a
public offering of the U.S. Securities as soon as the U.S. Representative(s)
deem(s) advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-64887) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting". The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each Form of U.S. Prospectus and Form of International Prospectus
used before such registration statement became effective, and any prospectus
that omitted, as applicable, the Rule 430A Information or the Rule 434
Information, that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "preliminary prospectus."
Such registration statement, including the exhibits thereto, schedules thereto,
if any, and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, at the time it became effective and including
the Rule 430A Information and the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final Form
of U.S. Prospectus and Form of International Prospectus, including the
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documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the "U.S.
Prospectus" and the "International Prospectus," respectively, and collectively,
the "Prospectuses." If Rule 434 is relied on, the terms "U.S. Prospectus" and
"International Prospectus" shall refer to the preliminary U.S. Prospectus dated
June 11, 1999 and the preliminary International Prospectus dated June 11, 1999,
respectively, each together with the applicable Term Sheet and all references in
this Agreement to the date of such Prospectuses shall mean the date of the
applicable Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the U.S. Prospectus, the
Interna tional Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus and the Form of International Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and the Form of International Prospectus)
or the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company The Company
represents and warrants to each U.S. Underwriter as of the date hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each U.S.
Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of
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the Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither of the Prospectuses nor any amendments or supplements thereto,
at the time the Prospectuses or any amendments or supplements were
issued and at the Closing Time (and, if any U.S. Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
If Rule 434 is used, the Company will comply with the requirements of
Rule 434. The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement
or the U.S. Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through Merrill Lynch expressly for use in the Registration Statement
or the U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as
part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectuses in the case of the Company's Current Report on
Form 8-K dated
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September 25, 1998, as amended, and the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, as amended, as of the
effective date of the Registration Statement and with respect to any
other document at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectuses, at the time
the Registration Statement became effective, at the time the
Prospectuses were issued and at the Closing Time (and if any U.S.
Option Securities are purchased, at the Date of Delivery), did not and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectuses, together with the related schedules and
notes, present fairly, in all material respects, the consolidated
financial position of the Company and its consolidated subsidiaries at
the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
for the periods specified; said financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied, except as set forth in the financial statements, on a
consistent basis throughout the periods involved. The supporting
schedules included in the Registration Statement present fairly the
information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectuses
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements
included in the Registration Statement. The pro forma financial
statements and the related notes thereto included in the Registration
Statement and the Prospectuses present fairly the information shown
therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have
been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
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(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change or any development reasonably
likely to result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Schedule C hereto
sets forth all domestic and foreign subsidiaries of the Company which
individually or on a consolidated basis are material to the operations
of the Company and its subsidiaries and the conduct of their respective
businesses (each a "Material Subsidiary" and, collectively, the
"Material Subsidiaries"). Each Material Subsidiary has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each such Material Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company (except for directors' qualifying shares
and shares held by individuals for the purpose of satisfying the legal
requirements of the
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jurisdiction of incorporation), directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
(viii) Capitalization. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectuses in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
this Agreement, pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectuses or pursuant to the
exercise of options referred to in the Prospectuses). The shares of
issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable;
and none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company.
(x) Authorization and Description of Securities. The
Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for
issuance and sale to the U.S. Underwrit ers pursuant to this Agreement
and the International Managers pursuant to the International Purchase
Agreement, and, when issued and delivered by the Company pursuant to
this Agreement and the International Purchase Agreement, respectively,
against payment of the consideration set forth herein and in the
International Purchase Agreement, respectively, will be validly issued,
fully paid and non-assessable; the Common Stock conforms to all
statements relating thereto contained in the Prospectuses and such
description conforms to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to
personal liability by reason of being such a holder; and the issuance
of the Securities is not subject to the preemptive or other similar
rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any
subsidiary is
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subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the
International Purchase Agreement and the consummation of the
transactions contemplated in this Agreement, in the International
Purchase Agreement and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectuses under the
caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement and the International Purchase
Agreement have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, (A) conflict with or constitute a breach
of, or default or, except as disclosed in the Prospectuses under
"Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Liquidity and Capital Resources" and
"Underwriting -- Other Relationships", a Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), (B) result in any
violation of the provisions of the charter or by-laws of the Company or
any subsidiary or (C) to the best of the Company's knowledge, result in
any violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any subsidiary or any of their assets, properties or
operations (except for such violations that would not have a Material
Adverse Effect). As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(xii) Absence of Labor Dispute. No labor disturbance by the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) Absence of Proceedings. Except as set forth in the
Prospectuses, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration
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Statement (other than as disclosed therein), or which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement and the International Purchase Agreement
or the performance by the Company of its obligations hereunder or
thereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of
which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, would not reasonably be
expected to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospec tuses or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. Except as
disclosed in the Prospectuses and except as would not reasonably be
expected to be materially adverse to the Company, the Company and its
subsidiaries own, or have valid, binding and enforceable licenses or
other rights to use, free and clear of all liens, charges, claims,
encumbrances, pledges, security interests, defects and other like
restrictions all Intellectual Property (as defined below) necessary to
conduct the business of the Company and its subsidiaries in the manner
presently conducted, without any conflict with the rights of others.
"Intellectual Property" means all patents, patent applications,
trademarks, trademark applications, trade names, service marks, service
names, copyrights, trade secrets, know how (including all unpatented or
unpatentable proprietary or confidential information, systems or
procedures), technology, inventions, designs, processes, methods,
technical data and information or other intangible asset, other
proprietary intellectual property right or any license or other right
to use any of the foregoing. In addition, the Prospectuses contain or
incorporate by reference descriptions of all actions and suits relating
to Intellectual Property that are required to be described therein.
(xvi) Absence of Further Requirements. No filing with, or
authoriza tion, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this Agreement or the International
Purchase Agreement or the consummation of the transactions contemplated
by this Agreement and the International Purchase Agreement, except such
as have been already obtained or as may be required under the 1933 Act
or the 1933 Act Regulations or state securities or blue sky laws.
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(xvii) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them,
except where the failure to have such Government Licenses would not
singly or in the aggregate have a Material Adverse Effect; the Company
and its subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(xviii) Environmental Laws. Except as described in the
Prospectuses and except as would not reasonably be expected to have a
Material Adverse Effect, to the knowledge of the Company, the
properties, assets and operations of each of the Company and its
subsidiaries are in compliance with all applicable federal, state,
local and foreign laws (including, without limitation, common law),
rules and regulations, orders, decrees, judgments, permits and licenses
relating to worker health and safety, and to the protection and
clean-up of the natural environment and to the protection or
preservation of natural resources, including, without limitation, those
relating to the processing, manufacturing, generation, handling,
disposal, transportation or release of hazardous materials
(collectively, "Environmental Laws"). With respect to such properties,
assets and operations, there are no events, conditions, circumstances,
activities, practices, incidents, actions or plans of the Company or
any of its subsidiaries of which the Company is aware that may
interfere with or prevent compliance or continued compliance with
applicable Environmental Laws or otherwise result in liability to the
Company or any of its subsidiaries pursuant to applicable Environmental
Law in a manner that would reasonably be expected to have a Material
Adverse Affect. Except as described in the Prospectuses and except as
would not reasonably be expected to have a Material Adverse Effect,
(A) to the Company's knowledge, none of the Company or any of its
subsidiaries is the subject of any federal, state, local or foreign
investigation pursuant to Environmental Laws, (B) none of the Company
or any of its subsidiaries has received any written notice or claim
pursuant to Environmental Laws and (C) there are no pending, or, to the
knowledge of the Company, threatened actions, suits or proceedings
against the Company, any of its subsidiaries or its
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properties, assets or operations, in connection with any Environmental
Laws. The term "hazardous materials" shall mean those substances that
are regulated by or pursuant to any applicable Environmental Laws.
(xix) Investment Company Act. The Company is not, and,
after giving effect to the offering and sale of the securities and the
application of the proceeds thereof as described in the Prospectuses,
will not be an "investment company" or an entity controlled by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended
(xx) Registration Rights. No holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement.
(xxi) Year 2000 Compliance. The Company has reviewed its
operations and those of its subsidiaries to evaluate the extent to
which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem (as defined
below); (i) as a result of such review, the Company does not believe
that (A) there are any issues related to the Company's preparedness to
address the Year 2000 Problem that are of a character required to be
described or referred to in the Prospectuses which have not been
accurately described in the Prospectuses, and (B) the Year 2000 Problem
will have a Material Adverse Effect; and (ii) the Company is inquiring
or has inquired whether the suppliers, vendors, customers or other
material third parties used or served by the Company and such
subsidiaries are addressing or will address the Year 2000 Problem in a
timely manner, except to the extent that a failure to address the Year
2000 Problem by any supplier, vendor, customer or material third party
would not have a Material Adverse Effect. "Year 2000 Problem" means any
significant risk that the Company's computer hardware or software
applications and those of its subsidiaries will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Global Coordinator, the
U.S. Representative(s) or to counsel for the U.S. Underwriters shall be deemed a
representa tion and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby.
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SECTION 2. Sale and Delivery to U.S. Underwriters; Closing
(a) Initial U.S. Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each U.S. Underwriter, severally and not
jointly, and each U.S. Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in Schedule B, the
number of Initial U.S. Securities set forth in Schedule A opposite the name of
such U.S. Underwriter, plus any additional number of Initial U.S. Securities
which such U.S. Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the U.S. Underwriters,
severally and not jointly, to purchase up to an additional 1,560,000 shares of
Common Stock at the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial U.S. Securities but not payable on the U.S. Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial U.S. Securities upon notice by the Global
Coordinator to the Company setting forth the number of U.S. Option Securities as
to which the several U.S. Underwriters are then exercising the option and the
time and date of payment and delivery for such U.S. Option Securities. Any such
time and date of delivery for the U.S. Option Securities (a "Date of Delivery")
shall be determined by the Global Coordinator, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the U.S. Option Securities, each of the U.S. Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of U.S. Option Securities then being purchased which the number of
Initial U.S. Securities set forth in Schedule A opposite the name of such
Underwriter bears to the total number of Initial U.S. Securities, subject in
each case to such adjustments as the Global Coordinator in its discretion shall
make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, Meagher & Flom, LLP, 919 Third Avenue, New York, NY 10022,
or at such other place as shall be agreed upon by the Global Coordinator and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (Eastern time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days
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after such date as shall be agreed upon by the Global Coordinator and the
Company (such time and date of payment and delivery being herein called "Closing
Time").
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the U.S. Representative(s) for the respective accounts of the U.S. Underwriters
of certificates for the U.S. Securities to be purchased by them. It is
understood that each U.S. Underwriter has authorized the U.S. Representative(s),
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial U.S. Securities and the U.S. Option Securities,
if any, which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representative(s) may
request in writing at least two full business days before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the
Initial U.S. Securities and the U.S. Option Securities, if any, will be made
available for examination and packaging by the U.S. Representative(s) in The
City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective (for so long as a prospectus is
required to be delivered in connection with the sale of the Securities), or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission regarding the
Registration Statement or the Prospectuses (for so long as a prospectus is
required to be delivered in connection with the sale of the Securities), (iii)
of any request by the Commission for any amendment to the Registration Statement
(for so
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long as a prospectus is required to be delivered in connection with the sale of
the Securities), or any amendment or supplement to the Prospectuses or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement (for so long as
a prospectus is required to be delivered in connection with the sale of the
Securities) or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. For so long as a prospectus is required to be
delivered in connection with the sale of the Securities, the Company will give
the Global Coordinator notice of its intention to file or prepare any amendment
to the Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Global Coordinator with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Global Coordinator or
counsel for the U.S. Underwriters shall object; provided, however, that,
notwithstanding any such objection, the Company may file any amendment to the
Registration Statement that counsel to the Company, after consultation with
counsel for the U.S. Underwriters, reasonably believes is required pursuant to
the 1933 Act, the 1934 Act or other applicable law.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the U.S. Representative(s) and counsel for the U.S.
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the U.S.
Representative(s), without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits)
for each of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted
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copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus as
such U.S. Underwriter reasonably requested, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each U.S. Underwriter, without charge, during the period when the
U.S. Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the U.S. Prospectus (as amended or supplemented) as
such U.S. Underwriter may reasonably request. The U.S. Prospectus and any
amendments or supplements thereto furnished to the U.S. Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, in the International Purchase Agreement and
in the Prospectuses. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the U.S. Underwriters or for the Company, to
amend the Registration Statement or amend or supplement any Prospectus in order
that the Prospectuses will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectuses comply with such requirements, and
the Company will furnish to the U.S. Underwriters such number of copies of such
amendment or supplement as the U.S. Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Global Coordinator may designate and to maintain
such qualifications in effect for a period of not less than one year from the
date of the Prospectus; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any
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jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the date of the Prospectus.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectuses
under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder or under the International Purchase
Agreement, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof and in each case referred to in the Prospectuses, (C) any shares
of Common Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company referred to in the Prospectuses
or (D) any shares of Common Stock issued pursuant to any non-employee director
stock plan or dividend reinvestment plan.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
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SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the U.S. Underwriters and the International
Managers, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc.
("NASD") of the terms of the sale of the Securities, and (x) the fees and
expenses incurred in connection with the listing of the Securities on the New
York Stock Exchange; provided that any fees or expenses described or arising out
of the activities described in clauses (v) (with respect to the fees and
disbursements of counsel), (vii) and (ix) above shall not, in the aggregate,
exceed $5,000. In addition, at Closing Time, the Company will be entitled to
reimbursement from the U.S. Underwriters and International Managers in an
aggregate amount equal to 3.5% of the aggregate amount of all underwriting
commissions incurred in connection with the sale of the Initial U.S. Securities
and Initial International Securities and, in the event the U.S. Underwriters and
International Managers exercise their respective options provided in Section
2(b) of this Agreement and the International Underwriting Agreement,
respectively, on each Date of Delivery, if any, the Company will be entitled to
reimbursement from the U.S. Underwriters and International Managers in an
aggregate amount equal to 3.5% of the aggregate amount of all underwriting
commis sions incurred in connection with the sale of U.S. Option Securities and
International Option Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative(s) in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the U.S. Underwriters for all of
their out-of-pocket
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expenses, including the reasonable fees and disbursements of counsel for the
U.S. Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy of the representa tions and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the U.S.
Representative(s) shall have received the favorable opinion, dated as of Closing
Time, of Shearman & Sterling, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the U.S. Underwriters, together with
signed or reproduced copies of such letter for each of the other U.S.
Underwriters to the effect set forth in Exhibit A hereto and to such further
effect as counsel to the U.S. Underwriters may reasonably request.
(c) Opinion of General Counsel for the Company. At Closing Time, the
U.S. Representative(s) shall have received the favorable opinion, dated as of
the Closing Time, of Paul Sandman, General Counsel for the Company, in form and
substance reasonably satisfactory to counsel for the U.S. Underwriters, together
with signed or reproduced copies of such letter for each of the other U.S.
Underwriters to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the U.S. Underwriters may reasonably request.
(d) Opinion of Counsel for Underwriters. At Closing Time, the U.S.
Representative(s) shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the U.S.
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Underwriters, together with signed or reproduced copies of such letter for each
of the other U.S. Underwriters with respect to the matters set forth in clauses
(i), (iii), (iv),(v), (vi), (viii) and (ix) (solely as to the information in the
Prospectuses under "Description of Common Stock" ) and the penultimate paragraph
of Exhibit A hereto. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General Corporation Law
of the State of Delaware, upon the opinions of counsel satisfactory to the U.S.
Representative(s). Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change or any development
reasonably likely to result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the U.S. Representative(s) shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time in connection with the issuance and sale of the U.S. Securities hereunder,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the U.S. Representative(s) shall have received from Ernst & Young LLP
a letter dated such date, in form and substance reasonably satisfactory to the
U.S. Representative(s), together with signed or reproduced copies of such letter
for each of the other U.S. Underwriters containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectuses, and a letter from
KPMG Peat Marwick, dated such date, in form and substance reasonably
satisfactory to the U.S. Representatives, with respect to certain financial
information contained in the Registration Statement and the Prospectuses
relating to Schneider Worldwide.
(g) Bring-down Comfort Letter. At Closing Time, the U.S.
Representative(s) shall have received from Ernst & Young LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in the
letter furnished
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pursuant to subsection (f) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time and a letter from KPMG Peat Marwick, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (f) of this Section.
(h) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(i) No Objection. If required, the NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) Lock-up Agreements. At the date of this Agreement, the U.S.
Representative(s) shall have received an agreement substantially in the form of
Exhibit C hereto (with such exceptions for certain Stockholders as Merrill Lynch
shall have agreed to) signed by the persons listed on Schedule D hereto.
(k) Purchase of Initial International Securities. Contemporaneously
with the purchase by the U.S. Underwriters of the Initial U.S. Securities under
this Agreement, the International Managers shall have purchased the Initial
International Securities under the International Purchase Agreement.
(l) Conditions to Purchase of U.S. Option Securities. In the event that
the U.S. Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the U.S. Option Securities, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any subsidiary of the Company hereunder
shall be true and correct as of each Date of Delivery and, at the relevant Date
of Delivery, the U.S. Representative(s) shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion
of Shearman & Sterling, counsel for the Company, and General Counsel
for the Company, each in form and substance reasonably satisfactory to
counsel for the U.S. Underwriters, dated such Date of Delivery,
relating to the U.S. Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(b) and 5(c) hereof.
21
<PAGE>
(iii) Opinion of Counsel for Underwriters. The favorable
opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to the U.S.
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(iv) Bring-down Comfort Letter. A letter from Ernst & Young
LLP, in form and substance reasonably satisfactory to the U.S.
Representative(s) and dated such Date of Delivery, substantially in the
same form and substance as the letter furnished to the U.S.
Representative(s) pursuant to Section 5(g) hereof, except that the
"specified date" in the letter furnished pursuant to this paragraph
shall be a date not more than five days prior to such Date of Delivery
and a letter from KPMG Peat Marwick, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Section.
(m) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the U.S. Underwriters shall have been furnished with such documents
and opinions as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance to
the U.S. Representative(s) and counsel for the U.S. Underwriters.
(n) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of U.S. Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several U.S. Underwrit ers to purchase the relevant U.S.
Option Securities, may be terminated by the U.S. Representative(s) by notice to
the Company at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. (1) The Company agrees to
indemnify and hold harmless each U.S. Underwriter and each person, if any, who
controls any U.S. Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
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<PAGE>
(i) against any and all loss, liability, claim, damage and
expense whatsoever (which, in the case of legal fees and expenses will
be reasonable), as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever (which, in the case of legal fees and expenses will
be reasonable), as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject
to Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
Merrill Lynch), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through the U.S. Representative(s) expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement thereto); and
provided further that the Company will not be liable to any U.S. Underwriter
with respect to any U.S. Prospectus to the extent that any such loss, liability,
claim, damage or expense resulted from the fact that such U.S. Underwriter, in
contravention of a requirement of this Agreement or applicable law, sold
Securities to a person to whom such U.S. Underwriter failed to send or give, at
or prior to the Closing Time, a copy of the final U.S. Prospectus, as then
amended or supplemented if
23
<PAGE>
the Company has previously furnished copies thereof to the U.S. Underwriter and
the loss, liability, claim, damage or expense of such U.S. Underwriter resulted
from an untrue statement or omission of a material fact contained in or omitted
from the preliminary U.S. Prospectus which was corrected in the final U.S.
Prospectus, if applicable, as amended or supplemented prior to the Closing Time,
and such final U.S. Prospectus was required by law to be delivered at or prior
to the written confirmation of sale to such person.
(b) Indemnification of Company, Directors and Officers. Each U.S.
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a)(1) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary U.S.
prospectus or the U.S. Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such U.S. Underwriter through the U.S. Representative(s) expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the U.S. Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a)(1) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body,
24
<PAGE>
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 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 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.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein; then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the U.S. Underwriters on the other hand from the offering of the U.S.
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the U.S.
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
U.S. Underwriters on the other hand in connection with the offering of the U.S.
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
25
<PAGE>
The relative fault of the Company on the one hand and the U.S.
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the U.S. Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the U.S. Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement
26
<PAGE>
or in certificates of officers of the Company or any of its subsidiaries
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any U.S. Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement
(a) Termination; General. The U.S. Representative(s) may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the U.S. Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the U.S.
Representative(s), impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal, New York or
Massachusetts authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the U.S. Representative(s) shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting U.S. Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the U.S.
Representative(s) shall not have completed such arrangements within such 24-hour
period, then:
27
<PAGE>
(a) if the number of Defaulted Securities does not exceed 10% of the
number of the U.S. Securities to be purchased on such date, each of the
non-defaulting U.S. Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
U.S. Securities to be purchased on such date, this Agreement or, with respect to
any Date of Delivery which occurs after the Closing Time, the obligation of the
U.S. Underwriters to purchase and of the Company to sell the Option Securities
to be purchased and sold on such Date of Delivery shall terminate without
liability on the part of any non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
U.S. Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either the U.S. Representative(s) or the Company
shall have the right to postpone Closing Time or the relevant Date of Delivery,
as the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "U.S. Underwriter" includes
any person substituted for a U.S. Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representative(s) at 10877 Wilshire
Boulevard, Suite 1900, Los Angeles, CA 90024, attention of James F. Flaherty,
Managing Director; and notices to the Company shall be directed to it at One
Boston Scientific Place, Natick, MA 01760-1537, attention of Paul W. Sandman,
General Counsel.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the U.S. Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the U.S.
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any
28
<PAGE>
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the U.S.
Underwriters and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any U.S. Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
29
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
BOSTON SCIENTIFIC CORPORATION
By: /s/ Paul W. Sandman
-------------------------------------
Title: Senior Vice President,
Secretary and General Counsel
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
PAINEWEBBER INCORPORATED
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
DAIN RAUSCHER WESSELS, a division of
Dain Rauscher Wessels Incorporated
DEUTSCHE BANK SECURITIES INC.
U.S. BANCORP PIPER JAFFRAY INC.
as Representatives of the several U.S. Underwriters
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Matthew Young
--------------------------------------------------
Authorized Signatory
For themselves and as U.S. Representative(s) of the U.S. Underwriters named in
Schedule A hereto.
30
<PAGE>
SCHEDULE A
Number of
Initial U.S.
Name of U.S. Underwriter Securities
- -------------------------------------------------- -------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...................... 4,388,800
PaineWebber Incorporated.......................... 2,007,200
Banc of America Securities LLC.................... 800,800
Bear, Stearns & Co. Inc........................... 800,800
Dain Rauscher Wessels, a division of
Dain Rauscher Incorporated........ 800,800
Deutsche Bank Securities Inc...................... 800,800
U.S. Bancorp Piper Jaffray Inc.................... 800,800
-------------------
Total 10,400,000
===================
Sch A-1
<PAGE>
SCHEDULE B
BOSTON SCIENTIFIC CORPORATION
10,400,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $39.875.
2. The purchase price per share for the U.S. Securities to be paid by
the several U.S. Underwriters shall be $38.675, being an amount equal to the
initial public offering price set forth above less $1.20 per share; provided
that the purchase price per share for any U.S. Option Securities purchased upon
the exercise of the over-allotment option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial U.S. Securities but not payable on the
U.S. Option Securities.
Sch B-1
<PAGE>
SCHEDULE C
List of subsidiaries
Boston Scientific SCIMED, Inc.
SCIMED Life Systems, Inc.
Boston Scientific Ireland Limited
Boston Scientific Japan K.K.
Boston Scientific International B.V.
BSC International Holding Limited
Schneider (Europe) GmbH
Boston Scientific Limited
Sch C-1
<PAGE>
SCHEDULE D
List of persons and entities
subject to lock-up
Directors and Officers:
John E. Abele
James R. Tobin
Raymond Groves
Robert MacLean
Joseph A. Ciffolillo
Joel L. Fleishman
Lawrence L. Horsch
N.J. Nicholas, Jr.
Peter M. Nicholas
Dale A. Spencer
Lawrence C. Best
Michael Berman
Philip P. Le Goff
Paul W. Sandman
Paul A. LaViolette
Arthur L. Rosenthal
Other Stockholders:
Robert M. Dombroff, as Trustee of The Abele Children's Irrevocable Trust
Robert M. Dombroff and N.J. Nicholas, Jr., as Trustees of the Peter M.
Nicholas Family Trust
Promerica, L.P., Peter M. Nicholas General Partner
Lawrence I. Silverstein, as Trustee of the Joseph A. Ciffolillo Family Trust
Sch D-1
<PAGE>
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to enter
into and perform its obligations under the U.S. Purchase Agreement and
the International Purchase Agreement.
(iii) The Securities to be purchased by the U.S. Underwriters
and the International Managers from the Company have been duly
authorized by the Company and, when issued and delivered by the Company
pursuant to the U.S. Purchase Agreement and the International Purchase
Agreement, respectively, against payment of the consideration set forth
in the U.S. Purchase Agreement and the International Purchase
Agreement, will be validly issued and fully paid and non-assessable and
the issuance of the Securities is not subject to preemp tive or other
similar rights of any securityholder of the Company pursuant to the
Delaware General Corporations Law, the Certificate of Incorporation or
the Bylaws of the Company.
(iv) The U.S. Purchase Agreement and the International
Purchase Agreement have been duly authorized, executed and delivered by
the Company.
(v) The Registration Statement has been declared effective
under the 1933 Act; any required filing of the Prospectuses pursuant to
Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
(vi) The Registration Statement, the Prospectuses, excluding
the documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom, as to which
we need express no opinion) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
A-1
<PAGE>
(vii) The documents incorporated by reference in the
Prospectuses (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which we need
express no opinion), in the case of the Company's Current Report on
Form 8-K dated September 25, 1998, as amended, and the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998, as
amended, in each case as of the date of the filing of the respective
latest amendment thereto as of the date hereof, and with respect to any
other documents incorporated by reference, at the time they were filed
with the Commission, complied as to form in all material respects with
the require ments of the 1934 Act and the rules and regulations of the
Commission thereunder.
(viii) The form of certificate used to evidence the Common
Stock complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the charter and
by-laws of the Company and the requirements of the New York Stock
Exchange.
(ix) The statements in the Prospectuses under "Description of
Common Stock", "Certain Federal Income Tax Considerations For
Non-United States Holders", and the statements incorporated by
reference into the Prospec tuses from the Company's Registration
Statement on Form 8-A under the caption "Common Stock", to the extent
that they constitute summaries of legal matters, the Company's charter
and by-laws or legal proceedings, fairly summarize the matters referred
to therein.
(x) No authorization, approval, consent or license of any
court or governmental authority or agency of the United States or the
State of New York (other than under the 1933 Act and the 1933 Act
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which we need
express no opinion) is required in connection with the transactions
contemplated by the U.S. Purchase Agreement and the International
Purchase Agreement.
(xi) The execution, delivery and performance by the Company of
the U.S. Purchase Agreement and the International Purchase Agreement
and the consummation of the transactions contemplated in the U.S.
Purchase Agreement and the International Purchase Agreement (including
the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectuses under
the caption "Use Of Proceeds") do not and will not conflict with or
constitute a breach of, or default or, except as disclosed in the
Prospectuses, a Repayment Event under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to any agreement set
forth on Annex A hereto (except for such conflicts, breaches or
defaults or liens, charges or encumbrances
A-2
<PAGE>
that would not have a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company, or a violation of any Delaware, New York or U.S. federal
law, statute, rule or regulation which, in each instance in our
experience, are normally applicable to corporations such as the Company
or transactions of this type, other than securities or blue sky laws of
the various states, as to which we express no opinion, or except for
such violations that would not have a Material Adverse Effect.
(xii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the 1940 Act.
No facts have come to our attention that gave us reason to believe that
the Registration Statement, including the Rule 430A Information and Rule 434
Information (if applicable), (except for financial statements and schedules and
other financial data included or incorporated by reference therein or omitted
therefrom, as to which we need make no statement), at the time such Registration
Statement became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectuses (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we need make
no statement), at the time the Prospectuses were issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-3
<PAGE>
Exhibit B
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under the U.S. Purchase Agreement and the International
Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectuses in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement or pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred
to in the Prospectuses); the shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable; and none of the outstanding shares
of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(v) The Securities to be purchased by the U.S. Underwriters
and the International Managers from the Company have been duly
authorized for issuance and sale to the Underwriters pursuant to the
U.S. Purchase Agreement and the International Purchase Agreement,
respectively, and, when issued and delivered by the Company pursuant to
the U.S. Purchase Agreement and the International Purchase Agreement,
respectively, against payment of the consideration set forth in the
U.S. Purchase Agreement and the International Purchase Agreement, will
be validly issued and fully paid and non-assessable
B-1
<PAGE>
and no holder of the Securities is or will be subject to personal
liability by reason of being such a holder.
(vi) The issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the
Company.
(vii) Each Material Subsidiary has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each Material Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, to
the best of my knowledge, is owned by the Company (except for
directors' qualifying shares and shares held by individuals for the
purpose of satisfying the legal requirements of the jurisdiction of
incorporation), directly or through subsidiaries, free and clear of any
perfected security interest, and, to my knowledge, any other mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Material Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary.
(viii) The U.S. Purchase Agreement and the International
Purchase Agreement have been duly authorized, executed and delivered by
the Company.
(ix) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the charter and
by-laws of the Company and the requirements of the New York Stock
Exchange.
(x) To the best of my knowledge, except as described in the
Prospectuses, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any
subsidiary is subject, before or brought by any court or governmental
agency or body, domestic or foreign, which might reasonably be expected
to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets of
the Company or the consummation of the transactions contemplated in the
U.S. Purchase Agreement and the International Purchase
B-2
<PAGE>
Agreement or the performance by the Company of its obligations
thereunder or that are required to be described in the Prospectuses
that are not described as required.
(xi) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectuses that
are not described as required.
(xii) All descriptions in the Prospectuses of contracts and
other documents to which the Company or its subsidiaries are a party
are accurate in all material respects; to the best of my knowledge,
there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described
or referred to in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(xiii) The information (i) in the Prospectuses under "Boston
Scientific Corporation -- Regulation", "-- Patents and Proprietary
Rights" and "-- Litigation" and (ii) in the Registration Statement
under Item 15 (Indemnification of Officers and Directors) and (iii) in
Note K to the Company's 1998 Consoli dated Financial Statements
(contained in the Company's Annual Report to Shareholders and
incorporated by reference in the Company's 10-K for the year ended
December 31, 1998, as amended, and Note H to the Company's March 31,
1999 Consolidated Financial Statements contained in the Company's 10-Q
for the quarter ended March 31, 1999, to the extent that such
information constitutes matters of law, summaries of legal matters, the
Company's charter and by-laws or legal proceedings, or legal
conclusions, has been reviewed by me and fairly presents the material
disclosed therein in all material respects.
(xiv) To the best of my knowledge, neither the Company nor any
Material Subsidiary is in violation of its charter or by-laws and no
default by the Company or any subsidiary exists in the due performance
or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement, except for such violations and defaults that
would not result in a Material Adverse Effect.
(xv) The execution, delivery and performance of the U.S.
Purchase Agreement and the International Purchase Agreement and the
consummation of the transactions contemplated in the U.S. Purchase
Agreement and the
B-3
<PAGE>
International Purchase Agreement and in the Prospectuses (including the
issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectuses under the
caption "Use Of Proceeds") and compliance by the Company with its
obligations under the U.S. Purchase Agreement and the International
Purchase Agreement do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute
a breach of, or default or, except as disclosed in the Prospectuses
under "Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Liquidity and Capital Resources" and
"Underwriting -- Other Relationships", a Repayment Event under or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary pursuant
to any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to
us, to which the Company or any subsidiary is a party or by which it or
any of them may be bound, or to which any of the property or assets of
the Company or any subsidiary is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any Material Subsidiary, or, except for such violations that would not
have a Material Adverse Effect, any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
(xvi) Except as disclosed in the Prospectuses, and except as
would not reasonably be expected to be materially adverse to the
Company and its subsidiaries, taken as one enterprise, the Company and
its subsidiaries own, or have valid, binding and enforceable licenses
or other rights to use, free and clear of all liens, charges, claims,
encumbrances, pledges, security interests, defects and other like
restrictions, all Intellectual Property necessary to conduct the
business of the Company and its subsidiaries in the manner presently
conducted, without any conflict with the rights of others.
No facts have come to our attention that gave us reason to believe that
the Registration Statement, including the Rule 430A Information and Rule 434
Information (if applicable), (except for financial statements and schedules and
other financial data included or incorporated by reference therein or omitted
therefrom, as to which we need make no statement), at the time such Registration
Statement became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectuses (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we need
B-4
<PAGE>
make no statement), at the time the Prospectuses were issued or at the Closing
Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Such opinion shall not state that it is to be governed or qualified by,
or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
B-5
<PAGE>
Exhibit C
Form of lock-up from directors, officers or other stockholders
pursuant to Section 5(j)
o, 1999
MERRILL LYNCH & CO.,
on behalf of the several U.S. Underwriters
and International Managers referred to below
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by Boston Scientific Corporation
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Boston Scientific Corporation, a Delaware corporation (the "Company"),
understands that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), and the U.S. Underwriters and International
Managers named in the within-mentioned purchase agreements, propose to enter
into a U.S. Purchase Agreement (the "U.S. Purchase Agreement") and an
International Purchase Agreement (the "Interna tional Purchase Agreement and
together with the U.S. Purchase Agreement, the "Purchase Agreements") with the
Company providing for the public offering of shares (the "Securities") of the
Company's common stock, par value $.01 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder [and an officer and/or director] of the Company,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the undersigned agrees with each underwriter to
be named in the U.S. Purchase Agreement and the International Purchase Agreement
that, during a period of 90 days from the date of such agreements, the
undersigned will not, without the prior written consent of Merrill Lynch,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, lend or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for or repayable with the Company's Common
Stock (collectively, "Common Stock Equivalents") (other than transfers for no
value or without consideration for charitable and estate planning purposes),
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has
C-1
<PAGE>
or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise.
Very truly yours,
Signature:
-----------------------------------
Print Name:
-----------------------------------
C-2
<PAGE>
Annex A
FORM OF PROVISIONS CONTAINED IN
ACCOUNTANTS' COMFORT LETTER
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations.
(i) in our opinion, the audited financial statements and the
related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectuses comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim consolidated financial statements of
the Company for the three month periods ended March 31, 1999 and March
31, 1998 , included or incorporated by reference in the Registration
Statement and the Prospectuses (collectively, the "10-Q Financials"), a
reading of the minutes of all meetings of the stockholders and
directors of the Company and its subsidiaries and the Committees of the
Company's Board of Directors since January 1, 1999, inquiries of
certain officials of the Company and its subsidiaries responsible for
financial and accounting matters, a review of interim financial
information in accordance with standards established by the American
Institute of Certified Public Accountants in Statement on Auditing
Standards No. 71, Interim Financial Information ("SAS 71"), with
respect to the three month periods ended March 31, 1999 and such other
inquiries and procedures as may be specified in such letter, nothing
came to our attention that caused us to believe that:
(A) the 10-Q Financials incorporated by reference in
the Registration Statement and the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act
Regulations applicable to unaudited financial statements
included in Form 10-Q or any material modifications should be
made to the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) at a specified date not more than five days prior
to the date of this Agreement, there was any change in the
capital stock of the Company or any increase in bank
obligations or long-term debt or decrease in total assets or
stockholders' equity, in each case as compared
Annex A-1
<PAGE>
with amounts shown in the latest balance sheet included in the
Registra tion Statement, except in each case for changes,
decreases or increases that the Registration Statement
discloses have occurred or may occur; or
(C) for the period from April 1, 1999 to a specified
date not more than five days prior to the date of this
Agreement, there was any decrease in net sales or net income,
in each case as compared with the comparable period in the
preceding year, except in each case for any decreases that the
Registration Statement discloses have occurred or may occur;
(iii) we are unable to and do not express any opinion on the
Pro Forma Combined Condensed Statements of Operations (the "Pro Forma
Statement") included in the Registration Statement or on the pro forma
adjustments applied to the historical amounts included in the Pro Forma
Statement; however, for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed an audit and a review in accordance
with SAS 71, as applicable, of the financial statements to
which the pro forma adjustments were applied;
(C) made inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters about the basis for their determination of the pro
forma adjustments and whether the Pro Forma Statement complies
as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the
Pro Forma Statement; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention
that caused us to believe that the Pro Forma Statement
included in the Registration Statement does not comply as to
form in all material respects with the applicable requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements; and
Annex A-2
<PAGE>
(iv) in addition to the procedures referred to above, we have
performed other procedures, not constituting an audit, with respect to
certain amounts, percentages, numerical data and financial information
appearing in the Registration Statement, which are specified herein,
and have compared certain of such items with, and have found such items
to be in agreement with, the accounting and financial records of the
Company.
Annex A-3
- --------------------------------------------------------------------------------
BOSTON SCIENTIFIC CORPORATION
(a Delaware corporation)
2,600,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: June 24, 1999
- --------------------------------------------------------------------------------
<PAGE>
Table of Contents
INTERNATIONAL PURCHASE AGREEMENT.............................................1
SECTION 1. Representations and Warranties..........................4
(a) Representations and Warranties by the Company...........4
(b) Officer's Certificates.................................12
SECTION 2. Sale and Delivery to International Managers; Closing...13
(a) Initial International Securities.......................13
(b) Option Securities......................................13
(c) Payment................................................13
(d) Denominations; Registration............................14
SECTION 3. Covenants of the Company...............................14
(a) Compliance with Securities Regulations and Commission
Requests...............................................14
(b) Filing of Amendments...................................15
(c) Delivery of Registration Statements....................15
(d) Delivery of Prospectuses...............................16
(e) Continued Compliance with Securities Laws..............16
(f) Blue Sky Qualifications................................16
(g) Rule 158...............................................17
(h) Use of Proceeds........................................17
(i) Listing................................................17
(j) Restriction on Sale of Securities......................17
(k) Reporting Requirements.................................17
SECTION 4. Payment of Expenses....................................17
(a) Expenses...............................................17
(b) Termination of Agreement...............................18
SECTION 5. Conditions of International Managers' Obligations......18
(a) Effectiveness of Registration Statement................19
(b) Opinion of Counsel for Company.........................19
(c) Opinion of General Counsel for the Company.............19
(d) Opinion of Counsel for International Managers..........19
(e) Officers' Certificate..................................20
(f) Accountant's Comfort Letter............................20
i
<PAGE>
(g) Bring-down Comfort Letter..............................20
(h) Approval of Listing....................................20
(i) No Objection...........................................21
(j) Lock-up Agreements.....................................21
(k) Purchase of Initial U.S. Securities....................21
(l) Conditions to Purchase of International Option
Securities.........................................21
(m) Additional Documents...................................22
(n) Termination of Agreement...............................22
SECTION 6. Indemnification........................................22
(a) Indemnification of International Managers..............22
(b) Indemnification of Company, Directors and Officers.....23
(c) Actions against Parties; Notification..................23
(d) Settlement without Consent if Failure to Reimburse.....24
SECTION 7. Contribution...........................................24
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery...............................................26
SECTION 9. Termination of Agreement...............................26
(a) Termination; General...................................26
(b) Liabilities............................................27
SECTION 10. Default by One or More of the International Managers...27
SECTION 11. Notices................................................28
SECTION 12. Parties................................................28
SECTION 13. Governing Law and Time.................................28
SECTION 14. Effect of Headings.....................................28
ii
<PAGE>
SCHEDULES
Schedule A - List of Underwriters.............................Sch A-1
Schedule B - Pricing Information..............................Sch B-1
Schedule C - List of Subsidiaries..............................Sch C-1
Schedule D - List of Persons subject to Lock-up................Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel...................A-1
Exhibit B - Form of Opinion of Company's General Counsel...........B-1
Exhibit C - Form of Lock-up Letter.................................C-1
iii
<PAGE>
BOSTON SCIENTIFIC CORPORATION
(a Delaware corporation)
2,600,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
June 24, 1999
MERRILL LYNCH INTERNATIONAL
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
BANK OF AMERICA INTERNATIONAL LIMITED
BEAR, STEARNS INTERNATIONAL LIMITED
DAIN RAUSCHER WESSELS, a division of
Dain Rauscher Incorporated
DEUTSCHE BANK AG LONDON
U.S. BANCORP PIPER JAFFRAY INC.
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y9LY
England
Ladies and Gentlemen:
Boston Scientific Corporation, a Delaware corporation (the "Company"),
confirms its agreement with Merrill Lynch International ("Merrill Lynch") and
each of the other underwriters named in Schedule A hereto (collectively, the
""International Managers", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Merrill
Lynch, PaineWebber International (U.K.) Ltd., Bank of America International
Limited, Bear, Stearns International Limited, Dain Rauscher Wessels, a division
of Dain Rauscher Incorporated, Deutsche Bank AG London and U.S. Bancorp Piper
Jaffray Inc. are acting as representatives (in such capacity, the "Lead
Manager(s)"), with respect to the issue and sale by the Company and the purchase
by the International Managers, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.01 per share, of the
1
<PAGE>
Company ("Common Stock") set forth in said Schedule A, and with respect to the
grant by the Company to the International Managers, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of 390,000 additional shares of Common Stock to cover over-allotments, if
any. The aforesaid 2,600,000 shares of Common Stock (the "Initial International
Securities") to be purchased by the International Managers and all or any part
of the 390,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "International Option Securities") are hereinafter called,
collectively, the "International Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 10,400,000 shares of Common Stock
(the "Initial U.S. Securities") through arrangements with certain underwriters
in the United States and Canada (the "U.S. Underwriters") for which Merrill
Lynch, PaineWebber Incorporated, Banc of America Securities LLC, Bear, Stearns &
Co. Inc., Dain Rauscher Wessels, a division of Dain Rauscher Incorporated,
Deutsche Bank Securities Inc. and U.S. Bancorp Piper Jaffray Inc. are acting as
representatives (the "U.S. Representative(s)") and the grant by the Company to
the U.S. Underwriters, acting severally and not jointly, of an option to
purchase all or any part of 1,560,000 additional shares of Common Stock solely
to cover overallotments, if any (the "U.S. Option Securities" and, together with
the International Option Securities, the "Option Securities"). The Initial U.S.
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities". It is understood that the Company is not obligated to sell and the
International Managers are not obligated to purchase, any Initial International
Securities unless all of the Initial U.S. Securities are contemporaneously
purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (in such capacity, the "Global Coordinator").
2
<PAGE>
The Company understands that the International Managers propose to
make a public offering of the International Securities as soon as the Lead
Manager(s) deem(s) advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-64887) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. Prospectus"). The Form of International Prospectus is identical to the Form
of U.S. Prospectus, except for the front cover and back cover pages and the
information under the caption "Underwriting". The information included in such
prospectus or in such Term Sheet, as the case may be, that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective (a) pursuant
to paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434 Information."
Each Form of International Prospectus and Form of U.S. Prospectus used before
such registration statement became effective, and any prospectus that omitted,
as applicable, the Rule 430A Information or the Rule 434 Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final Form of
International Prospectus and the final Form of U.S. Prospectus, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the
"International
3
<PAGE>
Prospectus" and the "U.S. Prospectus," respectively, and collectively, the
"Prospectuses." If Rule 434 is relied on, the terms "International Prospectus"
and "U.S. Prospectus" shall refer to the preliminary International Prospectus
dated June 11, 1999 and the preliminary U.S. Prospectus dated June 11, 1999,
respectively, each together with the applicable Term Sheet and all references in
this Agreement to the date of such Prospectuses shall mean the date of the
applicable Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the International
Prospectus, the U.S. Prospectus or any Term Sheet or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of
International Prospectus and the Form of U.S. Prospectus) or the Prospectuses
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus (including the Form of International Prospectus and the Form of U.S.
Prospectus) or the Prospectuses, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectuses shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934 (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company The Company represents
and warrants to each International Manager as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each International
Manager, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been
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issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any International
Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither of the Prospectuses nor any amendments or supplements thereto,
at the time the Prospectuses or any amendments or supplements were
issued and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the International Prospectus made in reliance
upon and in conformity with information furnished to the Company in
writing by any International Manager through Merrill Lynch expressly for
use in the Registration Statement or the International Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectuses in the case of the Company's Current Report on Form 8-K
dated
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September 25, 1998, as amended, and the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, as amended, as of the
effective date of the Registration Statement and with respect to any
other document at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectuses, at the time the
Registration Statement became effective, at the time the Prospectuses
were issued and at the Closing Time (and if any International Option
Securities are purchased, at the Date of Delivery), did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectuses, together with the related schedules and
notes, present fairly, in all material respects, the consolidated
financial position of the Company and its consolidated subsidiaries at
the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
for the periods specified; said financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied, except as set forth in the financial statements, on a
consistent basis throughout the periods involved. The supporting
schedules, included in the Registration Statement present fairly the
information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectuses
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included
in the Registration Statement. The pro forma financial statements and
the related notes thereto included in the Registration Statement and the
Prospectuses present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
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(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change or any development reasonably
likely to result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Schedule C hereto sets
forth all domestic and foreign subsidiaries of the Company which
individually or on a consolidated basis are material to the operations
of the Company and its subsidiaries and the conduct of their respective
businesses (each a "Material Subsidiary" and, collectively, the
"Material Subsidiaries"). Each Material Subsidiary has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each such Material Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company (except for directors' qualifying shares and shares
held by individuals for the purpose of satisfying the legal requirements
of the
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jurisdiction of incorporation), directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and none of the outstanding shares of capital stock of
any Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of options referred to in the
Prospectuses). The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable; and none of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by
the Company.
(x) Authorization and Description of Securities. The Securities
to be purchased by the International Managers and the U.S. Underwriters
from the Company have been duly authorized for issuance and sale to the
International Managers pursuant to this Agreement and the U.S.
Underwriters pursuant to the U.S. Purchase Agreement, and, when issued
and delivered by the Company pursuant to this Agreement and the U.S.
Purchase Agreement, respectively, against payment of the consideration
set forth herein and in the U.S. Purchase Agreement, respectively, will
be validly issued, fully paid and non-assessable; the Common Stock
conforms to all statements relating thereto contained in the
Prospectuses and such description conforms to the rights set forth in
the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is
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subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the U.S.
Purchase Agreement and the consummation of the transactions contemplated
in this Agreement, in the U.S. Purchase Agreement and in the
Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectuses under the caption "Use of Proceeds")
and compliance by the Company with its obligations under this Agreement
and the U.S. Purchase Agreement have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, (A) conflict
with or constitute a breach of, or default or except as disclosed in the
Prospectuses under "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources"
and "Underwriting - Other Relationships", a Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), (B) result in any
violation of the provisions of the charter or by-laws of the Company or
any subsidiary or (C) to the best of the Company's knowledge, result in
any violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any subsidiary or any of their assets, properties or
operations (except for such violations that would not have a Material
Adverse Effect). As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary.
(xii) Absence of Labor Dispute. No labor disturbance by the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or
any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to result
in a Material Adverse Effect.
(xiii) Absence of Proceedings. Except as set forth in the
Prospectuses, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any subsidiary,
which is required to be disclosed in the Registration
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Statement (other than as disclosed therein), or which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated
in this Agreement and the U.S. Purchase Agreement or the performance by
the Company of its obligations hereunder or thereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or
any subsidiary is a party or of which any of their respective property
or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, would not reasonably be expected to result in a Material
Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectuses or the documents incorporated by reference therein or to
be filed as exhibits thereto which have not been so described and filed
as required.
(xv) Possession of Intellectual Property. Except as disclosed
in the Prospectuses and except as would not reasonably be expected to be
materially adverse to the Company, the Company and its subsidiaries own,
or have valid, binding and enforceable licenses or other rights to use,
free and clear of all liens, charges, claims, encumbrances, pledges,
security interests, defects and other like restrictions all Intellectual
Property (as defined below) necessary to conduct the business of the
Company and its subsidiaries in the manner presently conducted, without
any conflict with the rights of others. "Intellectual Property" means
all patents, patent applications, trademarks, trademark applications,
trade names, service marks, service names, copyrights, trade secrets,
know how (including all unpatented or unpatentable proprietary or
confidential information, systems or procedures), technology,
inventions, designs, processes, methods, technical data and information
or other intangible asset, other proprietary intellectual property right
or any license or other right to use any of the foregoing. In addition,
the Prospectuses contain or incorporate by reference descriptions of all
actions and suits relating to Intellectual Property that are required to
be described therein.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this Agreement or the U.S. Purchase
Agreement or the consummation of the transactions contemplated by this
Agreement and the U.S. Purchase Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state securities or blue sky laws.
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(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure to have such Government Licenses would not singly or
in the aggregate have a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) Environmental Laws. Except as described in the
Prospectuses and except as would not reasonably be expected to have a
Material Adverse Effect, to the knowledge of the Company, the
properties, assets and operations of each of the Company and its
subsidiaries are in compliance with all applicable federal, state, local
and foreign laws (including, without limitation, common law), rules and
regulations, orders, decrees, judgments, permits and licenses relating
to worker health and safety, and to the protection and clean-up of the
natural environment and to the protection or preservation of natural
resources, including, without limitation, those relating to the
processing, manufacturing, generation, handling, disposal,
transportation or release of hazardous materials (collectively,
"Environmental Laws"). With respect to such properties, assets and
operations, there are no events, conditions, circumstances, activities,
practices, incidents, actions or plans of the Company or any of its
subsidiaries of which the Company is aware that may interfere with or
prevent compliance or continued compliance with applicable Environmental
Laws or otherwise result in liability to the Company or any of its
subsidiaries pursuant to applicable Environmental Law in a manner that
would reasonably be expected to have a Material Adverse Affect. Except
as described in the Prospectuses and except as would not reasonably be
expected to have a Material Adverse Effect, (A) to the Company's
knowledge, none of the Company or any of its subsidiaries is the subject
of any federal, state, local or foreign investigation pursuant to
Environmental Laws, (B) none of the Company or any of its subsidiaries
has received any written notice or claim pursuant to Environmental Laws
and (C) there are no pending, or, to the knowledge of the Company,
threatened actions, suits or proceedings against the Company, any of its
subsidiaries or its properties, assets
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or operations, in connection with any Environmental Laws. The term
"hazardous materials" shall mean those substances that are regulated by
or pursuant to any applicable Environmental Laws.
(xix) Investment Company Act. The Company is not, and , after
giving effect to the offering and sale of the securities and the
application of the proceeds thereof as described in the Prospectuses,
will not be an "investment company" or an entity controlled by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended
(xx) Registration Rights. No holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement.
(xxi) Year 2000 Compliance. The Company has reviewed its
operations and those of its subsidiaries to evaluate the extent to which
the business or operations of the Company or any of its subsidiaries
will be affected by the Year 2000 Problem (as defined below); (i) as a
result of such review, the Company does not believe that (A) there are
any issues related to the Company's preparedness to address the Year
2000 Problem that are of a character required to be described or
referred to in the Prospectuses which have not been accurately described
in the Prospectuses, and (B) the Year 2000 Problem will have a Material
Adverse Effect; and (ii) the Company is inquiring or has inquired
whether the suppliers, vendors, customers or other material third
parties used or served by the Company and such subsidiaries are
addressing or will address the Year 2000 Problem in a timely manner,
except to the extent that a failure to address the Year 2000 Problem by
any supplier, vendor, customer or material third party would not have a
Material Adverse Effect. "Year 2000 Problem" means any significant risk
that the Company's computer hardware or software applications and those
of its subsidiaries will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as
in the case of dates or time periods occurring prior to January 1, 2000.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the Lead
Manager(s) or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby.
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SECTION 2. Sale and Delivery to U.S. Underwriters; Closing
(a) Initial U.S. Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each International Manager, severally and
not jointly, and each International Manager, severally and not jointly, agrees
to purchase from the Company, at the price per share set forth in Schedule B,
the number of Initial International Securities set forth in Schedule A opposite
the name of such International Manager, plus any additional number of Initial
International Securities which such International Manager may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the International Managers,
severally and not jointly, to purchase up to an additional 1,560,000 shares of
Common Stock at the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial International Securities but not payable on the
International Option Securities. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial International Securities upon
notice by the Global Coordinator to the Company setting forth the number of
International Option Securities as to which the several International Managers
are then exercising the option and the time and date of payment and delivery for
such International Option Securities. Any such time and date of delivery for the
International Option Securities (a "Date of Delivery") shall be determined by
the Global Coordinator, but shall not be later than seven full business days
after the exercise of said option, nor in any event prior to the Closing Time,
as hereinafter defined. If the option is exercised as to all or any portion of
the International Option Securities, each of the International Managers, acting
severally and not jointly, will purchase that proportion of the total number of
International Option Securities then being purchased which the number of Initial
International Securities set forth in Schedule A opposite the name of such
International Manager bears to the total number of Initial International
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, Meagher & Flom, LLP, 919 Third Avenue, New York, NY 10022,
or at such other place as shall be agreed upon by the Global Coordinator and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (Eastern time) on any given day) business day after the date
hereof (unless postponed in accordance
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with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Global Coordinator
and the Company (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Lead Manager(s) for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Manager(s),
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Securities and the International
Option Securities, if any, which it has agreed to purchase. Merrill Lynch,
individually and not as representative of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the Initial
International Securities or the International Option Securities, if any, to be
purchased by any International Manager whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such International Manager from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Manager(s) may
request in writing at least two full business days before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the
Initial International Securities and the International Option Securities, if
any, will be made available for examination and packaging by the Lead
Managers(s) in The City of New York not later than 10:00 A.M. (Eastern time) on
the business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration
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Statement shall become effective (for so long as a prospectus is required to be
delivered in connection with the sale of the Securities), or any supplement to
the Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission regarding the Registration Statement
or the Prospectuses (for so long as a prospectus is required to be delivered in
connection with the sale of the Securities), (iii) of any request by the
Commission for any amendment to the Registration Statement (for so long as a
prospectus is required to be delivered in connection with the sale of the
Securities), or any amendment or supplement to the Prospectuses or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement (for so long as
a prospectus is required to be delivered in connection with the sale of the
Securities), or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. For so long as a prospectus is required to be
delivered in connection with the sale of the Securities, the Company will give
the Global Coordinator notice of its intention to file or prepare any amendment
to the Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Global Coordinator with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Global Coordinator or
counsel for the International Managers shall object; provided, however, that,
notwith standing any such objection, the Company may file any amendment to the
Registration Statement that counsel to the Company, after consultation with
counsel for the International Managers reasonably believes is required pursuant
to the 1933 Act, the 1934 Act or other applicable law.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Lead Manager(s), and counsel for the International Managers,
without charge, signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the
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Lead Manager(s), without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the International Managers. The copies of the Registration Statement and each
amendment thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Managers reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the International
Prospectus (as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any amendments or
supplements thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, in the U.S. Purchase Agreement and in the
Prospectuses. If at any time when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the International Managers or for the Company, to amend
the Registration Statement or amend or supplement any Prospectus in order that
the Prospectuses will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of such counsel, at any such time to amend the Registration Statement or amend
or supplement any Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectuses comply with such requirements, and
the Company will furnish to the International Managers such number of copies of
such amendment or supplement as the International Managers may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the International Managers, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic
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or foreign) as the Global Coordinator may designate and to maintain such
qualifications in effect for a period of not less than one year from the date of
the Prospectus; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one year
from the date of the Prospectus.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectuses
under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing
of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder or under the U.S. Purchase Agreement,
(B) any shares of Common Stock issued by the Company upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof
and in each case referred to in the Prospectuses, (C) any shares of Common Stock
issued or options to purchase Common Stock granted pursuant to existing employee
benefit plans of the Company referred to in the Prospectuses or (D) any shares
of Common Stock issued pursuant to any non-employee director stock plan or
dividend reinvestment plan.
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(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the International Managers and the U.S.
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectuses and any amendments or supplements thereto, (vii)
the preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (viii) the fees and expenses of any
transfer agent or registrar for the Securities, (ix) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the National Association of Securities Dealers,
Inc. ("NASD") of the terms of the sale of the Securities, and (x) the fees and
expenses incurred in connection with the listing of the Securities on the New
York Stock Exchange; provided that any fees or expenses described or arising out
of the activities described in clauses (v) (with respect to the fees and
disbursements of counsel), (vii) and (ix) above shall not, in the aggregate,
exceed $5,000. In addition, at Closing Time, the Company will be entitled to
reimbursement from the International Managers and the U.S. Underwriters in an
aggregate amount equal to 3.5% of the aggregate amount of all underwriting
commissions incurred in connection with the sale of the Initial International
Securities and Initial U.S. Securities and, in the event the International
Managers and U.S. Underwriters exercise their respective options provided in
Section 2(b) of this Agreement and the U.S. Purchase Agreement, respectively, on
each Date of Delivery, if any, the Company will be entitled to reimbursement
from the International Managers and the U.S. Underwriters in an aggregate amount
equal to 3.5% of the aggregate amount of all underwriting commissions incurred
in connection with the sale of International Option Securities and U.S.
Option Securities.
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(b) Termination of Agreement. If this Agreement is terminated by the
Lead Manager(s) in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the International Managers for all
of their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the International Managers.
SECTION 5. Conditions of International Managers Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the International Managers. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Lead Manager(s)
shall have received the favorable opinion, dated as of Closing Time, of Shearman
& Sterling, counsel for the Company, in form and substance reasonably
satisfactory to counsel for the International Managers, together with signed or
reproduced copies of such letter for each of the other International Managers to
the effect set forth in Exhibit A hereto and to such further effect as counsel
to the International Managers may reasonably request.
(c) Opinion of General Counsel for the Company. At Closing Time, the
Lead Manager(s) shall have received the favorable opinion, dated as of the
Closing Time, of Paul Sandman, General Counsel for the Company, in form and
substance reasonably satisfactory to counsel for the International Managers,
together with signed or reproduced copies of such letter for each of the other
International Managers to the effect set forth in Exhibit B hereto and to such
further effect as counsel to the International Managers may reasonably request.
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(d) Opinion of Counsel for International Managers. At Closing Time, the
Lead Manager(s) shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the International
Managers, together with signed or reproduced copies of such letter for each of
the other International Managers with respect to the matters set forth in
clauses (i), (iii), (iv), (v), (vi), (viii) and (ix) (solely as to the
information in the Prospectuses under "Description of Common Stock" ) and the
penultimate paragraph of Exhibit A hereto. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Lead Manager(s). Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change or any development
reasonably likely to result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Lead Manager(s) shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time in connection with the issuance and sale of the U.S. Securities hereunder,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Lead Manager(s) shall have received from Ernst & Young LLP a
letter dated such date, in form and substance reasonably satisfactory to the
U.S. Lead Manager(s), together with signed or reproduced copies of such letter
for each of the other International Managers containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectuses, and a
letter from KPMG Peat Marwick, dated such date, in form and substance reasonably
satisfactory to the U.S. Representatives, with respect to certain financial
information contained in the Registration Statement and the Prospectuses
relating to Schneider Worldwide.
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(g) Bring-down Comfort Letter. At Closing Time, the Lead Manager(s)
shall have received from Ernst & Young LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (f) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time and a letter from KPMG Peat Marwick, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (f) of this Section.
(h) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to official
notice of issuance.
(i) No Objection. If required, the NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) Lock-up Agreements. At the date of this Agreement, the Lead
Manager(s) shall have received an agreement substantially in the form of Exhibit
C hereto (with such exceptions for certain Stockholders as Merrill Lynch shall
have agreed to) signed by the persons listed on Schedule D hereto.
(k) Purchase of Initial U.S. Securities. Contemporaneously with the
purchase by the International Managers of the Initial International Securities
under this Agreement, the U.S. Underwriters shall have purchased the Initial
U.S. Securities under the U.S. Purchase Agreement.
(l) Conditions to Purchase of International Option Securities. In the
event that the International Managers exercise their option provided in Section
2(b) hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Lead Manager(s) shall have
received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming
that the certificate delivered at the Closing Time pursuant to Section
5(e) hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Shearman & Sterling, counsel for the Company, and General Counsel for
the Company, each in form and substance reasonably satisfactory to
counsel for the
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International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(b)
and 5(c) hereof.
(iii) Opinion of Counsel for International Managers. The
favorable opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel
for the International Managers, dated such Date of Delivery, relating to
the International Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(d) hereof.
(iv) Bring-down Comfort Letter. A letter from Ernst & Young
LLP, in form and substance reasonably satisfactory to the Lead
Manager(s) and dated such Date of Delivery, substantially in the same
form and substance as the letter furnished to the Lead Manager(s)
pursuant to Section 5(g) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery and a letter from KPMG
Peat Marwick, dated as of Closing Time, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (g)
of this Section.
(m) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the International Managers shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Lead Manager(s) and counsel for the International
Managers.
(n) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of International
Option Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
International Option Securities, may be terminated by the Lead Manager(s) by
notice to the Company at any time at or prior to Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
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SECTION 6. Indemnification.
(a) Indemnification of International Managers. (1) The Company agrees to
indemnify and hold harmless each International Manager and each person, if any,
who controls any International Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever (which, in the case of legal fees and expenses will
be reasonable), as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever (which, in the case of legal fees and expenses will
be reasonable), as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
Merrill Lynch), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager through the Lead Manager(s) expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if
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applicable, or any preliminary prospectus or the International Prospectus (or
any amendment or supplement thereto); and provided further that the Company will
not be liable to any International Manager with respect to any International
Prospectus to the extent that any such loss, liability, claim, damage or expense
resulted from the fact that such International Manager, in contravention of a
requirement of this Agreement or applicable law, sold Securities to a person to
whom such International Manager failed to send or give, at or prior to the
Closing Time, a copy of the final International Prospectus, as then amended or
supplemented if: the Company has previously furnished copies thereof to the
International Manager and the loss, liability, claim, damage or expense of such
International Manager resulted from an untrue statement or omission of a
material fact contained in or omitted from the preliminary International
Prospectus which was corrected in the final International Prospectus, if
applicable, as amended or supplemented prior to the Closing Time, and such final
International Prospectus was required by law to be delivered at or prior to the
written confirmation of sale to such person.
(b) Indemnification of Company, Directors and Officers. Each Interna
tional Manager severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a)(1) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
International prospectus or the International Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such International Manager through the Lead
Manager(s) expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the International Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a)(1) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
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consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 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 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.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein; then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the International Managers on the other hand from the offering of the
U.S. Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
International Managers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
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The relative benefits received by the Company on the one hand and the
International Managers on the other hand in connection with the offering of the
International Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
International Managers Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting discount received
by the International Managers, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the International
Securities as set forth on such cover.
The relative fault of the Company on the one hand and the International
Managers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the International Managers agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the International Managers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each
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director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The International Managers respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial International Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
International Manager or controlling person, or by or on behalf of the Company,
and shall survive delivery of the Securities to the International Managers.
SECTION 9. Termination of Agreement
(a) Termination; General. The Lead Manager(s) may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the International
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Lead Manager(s), impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal,
New York or Massachusetts authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as
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provided in Section 4 hereof, and provided further that Sections 1, 6, 7 and 8
shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the International Managers. If one
or more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Lead Manager(s) shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting International Managers, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the Lead
Manager(s) shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of the
non-defaulting International Managers shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the International Managers to purchase and of the Company to sell
the Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting International
Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the Lead Manager(s)
or the Company shall have the right to postpone Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"International Manager" includes any person substituted for a International
Manager under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by
28
<PAGE>
any standard form of telecommunication. Notices to the International Managers
shall be directed to the Lead Manager(s) at 10877 Wilshire Boulevard, Suite
1900, Los Angeles, CA 90024, attention of James Flaherty, Managing Director; and
notices to the Company shall be directed to it at One Boston Scientific Place,
Natick, MA 01760- 1537, attention of Paul W. Sandman, General Counsel.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the International Managers and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the International Managers and the Company and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the International Managers and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
29
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the International Managers and the Company in accordance with its terms.
Very truly yours,
BOSTON SCIENTIFIC CORPORATION
By: /s/ Paul W. Sandman
---------------------------------------------
Title: Senior Vice President, Secretary and
General Counsel
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH INTERNATIONAL
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
BANK OF AMERICA INTERNATIONAL LIMITED
BEAR, STEARNS INTERNATIONAL LIMITED
DAIN RAUSCHER WESSELS, a division of
Dain Rauscher Wessels Incorporated
DEUTSCHE BANK AG LONDON
U.S. BANCORP PIPER JAFFRAY INC.
as Lead Manager(s) of the several International Managers
named in Schedule A hereto
By: MERRILL LYNCH INTERNATIONAL
By /s/ Matthew Young
--------------------------------------------------------
Authorized Signatory
For themselves and as Lead Manager(s) of the International Managers named in
Schedule A hereto.
30
<PAGE>
SCHEDULE A
Number of
Initial
International
Name of International Managers Securities
- ----------------------------------------------- -----------------
Merrill Lynch, International.................... 1,097,200
PaineWebber International (U.K.) Ltd............ 501,800
Bank of America International Limited........... 200,200
Bear, Stearns International Limited............. 200,200
Dain Rauscher Wessels, a division of 200,200
Dain Rauscher Incorporated........
Deutsche Bank AG London......................... 200,200
U.S. Bancorp Piper Jaffray Inc.................. 200,200
-----------------
Total 2,600,000
=================
Sch A-1
<PAGE>
SCHEDULE B
BOSTON SCIENTIFIC CORPORATION
2,600,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $39.875.
2. The purchase price per share for the International Securities to be
paid by the several International Managers shall be $38.675, being an amount
equal to the initial public offering price set forth above less $1.20 per share;
provided that the purchase price per share for any International Option
Securities purchased upon the exercise of the over-allotment option described in
Section 2(b) shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial International
Securities but not payable on the International Option Securities.
Sch B-1
<PAGE>
SCHEDULE C
List of subsidiaries
Boston Scientific SCIMED, Inc.
SCIMED Life Systems, Inc.
Boston Scientific Ireland Limited
Boston Scientific Japan K.K.
Boston Scientific International B.V.
BSC International Holding Limited
Schneider (Europe) GmbH
Boston Scientific Limited
Sch C-1
<PAGE>
SCHEDULE D
List of persons and entities
subject to lock-up
Directors and Officers:
John E. Abele
James R. Tobin
Raymond Groves
Robert MacLean
Joseph A. Ciffolillo
Joel L. Fleishman
Lawrence L. Horsch
N.J. Nicholas, Jr.
Peter M. Nicholas
Dale A. Spencer
Lawrence C. Best
Michael Berman
Philip P. Le Goff
Paul W. Sandman
Paul A. LaViolette
Arthur L. Rosenthal
Other Stockholders:
Robert M. Dombroff, as Trustee of The Abele Children's Irrevocable Trust
Robert M. Dombroff and N.J. Nicholas, Jr., as Trustees of the Peter M. Nicholas
Family Trust
Promerica, L.P., Peter M. Nicholas General Partner
Lawrence I. Silverstein, as Trustee of the Joseph A. Ciffolillo Family Trust
Sch D-1
<PAGE>
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to enter into
and perform its obligations under the U.S. Purchase Agreement and the
International Purchase Agreement.
(iii) The Securities to be purchased by the U.S. Underwriters and
the International Managers from the Company have been duly authorized by
the Company and, when issued and delivered by the Company pursuant to
the U.S. Purchase Agreement and the International Purchase Agreement,
respectively, against payment of the consideration set forth in the U.S.
Purchase Agreement and the International Purchase Agreement, will be
validly issued and fully paid and non-assessable and, the issuance of
the Securities is not subject to preemptive or other similar rights of
any securityholder of the Company pursuant to the Delaware General
Corporations Law, the Certificate of Incorporation or the Bylaws of the
Company.
(iv) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by the
Company.
(v) The Registration Statement has been declared effective under
the 1933 Act; any required filing of the Prospectuses pursuant to Rule
424(b) has been made in the manner and within the time period required
by Rule 424(b); and, to the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(vi) The Registration Statement, the Prospectuses, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom, as to which
we need express no opinion) complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations.
A-1
<PAGE>
(vii) The documents incorporated by reference in the Prospectuses
(other than the financial statements and supporting schedules included
therein or omitted therefrom, as to which we need express no opinion),
in the case of the Company's Current Report on Form 8-K dated September
25, 1998, as amended, and the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998, as amended, in each case as of
the date of the filing of the respective latest amendment thereto as of
the date hereof, and with respect to any other documents incorporated by
reference, at the time they were filed with the Commission, complied as
to form in all material respects with the require ments of the 1934 Act
and the rules and regulations of the Commission thereunder.
(viii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the charter and
by-laws of the Company and the requirements of the New York Stock
Exchange.
(ix) The statements in the Prospectuses under "Description of
Common Stock", "Certain Federal Income Tax Considerations For Non-United
States Holders", and the statements incorporated by reference into the
Prospectuses from the Company's Registration Statement on Form 8-A
under the caption "Common Stock", to the extent that they constitute,
summaries of legal matters, the Company's charter and by-laws or legal
proceedings, fairly summarize the matters referred to therein.
(x) No authorization, approval, consent, or license, of any court
or governmental authority or agency, of the United States or the State
of New York (other than under the 1933 Act and the 1933 Act Regulations,
which have been obtained, or as may be required under the securities or
blue sky laws of the various states, as to which we need express no
opinion) is required in connection with the transactions contemplated by
the U.S. Purchase Agreement and the International Purchase Agreement.
(xi) The execution, delivery and performance by the Company of
the U.S. Purchase Agreement and the International Purchase Agreement and
the consummation of the transactions contemplated in the U.S. Purchase
Agreement and the International Purchase Agreement (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectuses under the
caption "Use Of Proceeds") do not and will not, conflict with or
constitute a breach of, or default or, except as disclosed in the
Prospectuses, a Repayment Event under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to any agreement set
forth on Annex A hereto (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that
A-2
<PAGE>
would not have a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company, or a violation of any Delaware, New York or U.S. federal
law, statute, rule or regulation which, in each instance in our
experience, are normally applicable to corporations such as the Company
or transactions of this type, other than securities or blue sky laws of
the various states, as to which we express no opinion, or except for
such violations that would not have a Material Adverse Effect.
(xii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the 1940 Act.
No facts have come to our attention that gave us reason to believe that
the Registration Statement, including the Rule 430A Information and Rule 434
Information (if applicable), (except for financial statements and schedules and
other financial data included or incorporated by reference therein or omitted
therefrom, as to which we need make no statement), at the time such Registration
Statement became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectuses (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we need make
no statement), at the time the Prospectuses were issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-3
<PAGE>
Exhibit B
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectuses and to enter into and perform its obligations under the
U.S. Purchase Agreement and the International Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement or pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectuses or pursuant to
the exercise of convertible securities or options referred to in the
Prospectuses); the shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable; and none of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(v) The Securities to be purchased by the U.S. Underwriters and
the International Managers from the Company have been duly authorized
for issuance and sale to the Underwriters pursuant to the U.S. Purchase
Agreement and the International Purchase Agreement, respectively, and,
when issued and delivered by the Company pursuant to the U.S. Purchase
Agreement and the International Purchase Agreement, respectively,
against payment of the consideration set forth in the U.S. Purchase
Agreement and the International Purchase Agreement, will be validly
issued and fully paid and non-assessable
B-1
<PAGE>
and no holder of the Securities is or will be subject to personal
liability by reason of being such a holder.
(vi) The issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company.
(vii) Each Material Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed
in the Registration Statement, all of the issued and outstanding capital
stock of each Material Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, to the best of my
knowledge, is owned by the Company (except for directors' qualifying
shares and shares held by individuals for the purpose of satisfying the
legal requirements of the jurisdic tion of incorporation), directly or
through subsidiaries, free and clear of any perfected security interest,
and, to my knowledge, any other mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock of any
Material Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary.
(viii) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by the
Company.
(ix) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the charter and
by-laws of the Company and the requirements of the New York Stock
Exchange.
(x) To the best of my knowledge, except as described in the
Prospectuses there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any
subsidiary is subject, before or brought by any court or governmental
agency or body, domestic or foreign, which might reasonably be expected
to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets of
the Company or the consummation of the transactions contemplated in the
U.S. Purchase Agreement and the International Purchase
B-2
<PAGE>
Agreement or the performance by the Company of its obligations
thereunder or that are required to be described in the Prospectuses that
are not described as required.
(xi) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectuses that
are not described as required.
(xii) All descriptions in the Prospectuses of contracts and other
documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of my knowledge, there
are no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or referred
to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(xiii) The information (i) in the Prospectuses under "Boston
Scientific Corporation -- Regulation", "-- Patents and Proprietary
Rights" and "-- Litigation" and (ii) in the Registration Statement under
Item 15 (Indemnification of Officers and Directors) and (iii) in Note K
to the Company's 1998 Consolidated Financial Statements (contained in
the Company's Annual Report to Shareholders and incorporated by
reference in the Company's 10-K for the year ended December 31, 1998, as
amended, and Note H to the Company's March 31, 1999 Consolidated
Financial Statements contained in the Company's 10-Q for the quarter
ended March 31, 1999, to the extent that such information constitutes
matters of law, summaries of legal matters, the Company's charter and
by-laws or legal proceedings, or legal conclusions, has been reviewed by
me and fairly presents the material disclosed therein in all material
respects.
(xiv) To the best of my knowledge, neither the Company nor any
Material Subsidiary is in violation of its charter or by-laws and no
default by the Company or any subsidiary exists in the due performance
or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the Prospectus
or filed or incorporated by reference as an exhibit to the Registration
Statement, except for such violations and defaults that would not result
in a Material Adverse Effect.
(xv) The execution, delivery and performance of the U.S. Purchase
Agreement and the International Purchase Agreement and the consummation
of the transactions contemplated in the U.S. Purchase Agreement and the
B-3
<PAGE>
International Purchase Agreement and in the Prospectuses (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectuses under the
caption "Use Of Proceeds") and compliance by the Company with its
obligations under the U.S. Purchase Agreement and the International
Purchase Agreement do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a
breach of, or default or, except as disclosed in the Prospectuses under
"Management's Discussion and Analysis of Financial Condition and Results
of Operations -- Liquidity and Capital Resources" and "Underwriting --
Other Relationships", a Repayment Event under or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to us, to which the
Company or any subsidiary is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or
any subsidiary is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or any
Material Subsidiary, or, except for such violations that would not have
a Material Adverse Effect, any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
(xvi) Except as disclosed in the Prospectuses, and except as
would not reasonably be expected to be materially adverse to the Company
and its subsidiaries, taken as one enterprise, the Company and its
subsidiaries own, or have valid, binding and enforceable licenses or
other rights to use, free and clear of all liens, charges, claims,
encumbrances, pledges, security interests, defects and other like
restrictions, all Intellectual Property necessary to conduct the
business of the Company and its subsidiaries in the manner presently
conducted, without any conflict with the rights of others.
No facts have come to our attention that gave us reason to believe that
the Registration Statement, including the Rule 430A Information and Rule 434
Information (if applicable), (except for financial statements and schedules and
other financial data included or incorporated by reference therein or omitted
therefrom, as to which we need make no statement), at the time such Registration
Statement became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectuses (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we need
B-4
<PAGE>
make no statement), at the time the Prospectuses were issued or at the Closing
Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Such opinion shall not state that it is to be governed or qualified by,
or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
B-5
<PAGE>
Exhibit C
Form of lock-up from directors, officers or other stockholders
pursuant to Section 5(j)
o, 1999
MERRILL LYNCH & CO.,
on behalf of the several U.S. Underwriters
and International Managers referred to below
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by Boston Scientific Corporation
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Boston Scientific Corporation, a Delaware corporation (the "Company"),
understands that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), and the U.S. Underwriters and International
Managers named in the within-mentioned purchase agreements, propose to enter
into a U.S. Purchase Agreement (the "U.S. Purchase Agreement") and an
International Purchase Agreement (the "Interna tional Purchase Agreement and
together with the U.S. Purchase Agreement, the "Purchase Agreements") with the
Company providing for the public offering of shares (the "Securities") of the
Company's common stock, par value $.01 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder [and an officer and/or director] of the Company,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the undersigned agrees with each underwriter to
be named in the U.S. Purchase Agreement and the International Purchase Agreement
that, during a period of 90 days from the date of such agreements, the
undersigned will not, without the prior written consent of Merrill Lynch,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, lend or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for or repayable with the Company's Common
Stock (collectively, "Common Stock Equivalents") (other than transfers for no
value or without consideration for charitable and estate planning purposes),
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has
C-1
<PAGE>
or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise.
Very truly yours,
Signature:
-------------------------------------
Print Name:
-------------------------------------
C-2
<PAGE>
Annex A
FORM OF PROVISIONS CONTAINED IN
ACCOUNTANTS' COMFORT LETTER
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations.
(i) in our opinion, the audited financial statements and the
related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectuses comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim consolidated financial statements of
the Company for the three month periods ended March 31, 1999 and March
31, 1998 , included or incorporated by reference in the Registration
Statement and the Prospectuses (collectively, the "10-Q Financials"), a
reading of the minutes of all meetings of the stockholders and directors
of the Company and its subsidiaries and the Committees of the Company's
Board of Directors since January 1, 1999, inquiries of certain officials
of the Company and its subsidiaries responsible for financial and
accounting matters, a review of interim financial information in
accordance with standards established by the American Institute of
Certified Public Accountants in Statement on Auditing Standards No. 71,
Interim Financial Information ("SAS 71"), with respect to the three
month periods ended March 31, 1999 and such other inquiries and
procedures as may be specified in such letter, nothing came to our
attention that caused us to believe that:
(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations
applicable to unaudited financial statements included in Form
10-Q or any material modifications should be made to the 10-Q
Financials incorporated by reference in the Registration
Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) at a specified date not more than five days prior to
the date of this Agreement, there was any change in the capital
stock of the Company or any increase in bank obligations or
long-term debt or decrease in total assets or stockholders'
equity, in each case as compared
Annex A-1
<PAGE>
with amounts shown in the latest balance sheet included in the
Registration Statement, except in each case for changes,
decreases or increases that the Registration Statement discloses
have occurred or may occur; or
(C) for the period from April 1, 1999 to a specified date
not more than five days prior to the date of this Agreement,
there was any decrease in net sales or net income, in each case
as compared with the comparable period in the preceding year,
except in each case for any decreases that the Registration
Statement discloses have occurred or may occur;
(iii) we are unable to and do not express any opinion on the Pro
Forma Combined Condensed Statements of Operations (the "Pro Forma
Statement") included in the Registration Statement or on the pro forma
adjustments applied to the historical amounts included in the Pro Forma
Statement; however, for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed an audit and a review in accordance with
SAS 71, as applicable, of the financial statements to which the
pro forma adjustments were applied;
(C) made inquiries of certain officials of the Company
who have responsibility for financial and accounting matters
about the basis for their determination of the pro forma
adjustments and whether the Pro Forma Statement complies as to
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the Pro
Forma Statement; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention
that caused us to believe that the Pro Forma Statement included
in the Registration Statement does not comply as to form in all
material respects with the applicable requirements of Rule 11-02
of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements; and
Annex A-2
<PAGE>
(iv) in addition to the procedures referred to above, we have
performed other procedures, not constituting an audit, with respect to
certain amounts, percentages, numerical data and financial information
appearing in the Registration Statement, which are specified herein, and
have compared certain of such items with, and have found such items to
be in agreement with, the accounting and financial records of the
Company.
Annex A-3
