<PAGE>
UNITED STATES
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 (DATE OF EARLIEST EVENT REPORTED)
FEBRUARY 11, 1999
001-13388
(Commission File Number)
--------------------
GUIDANT CORPORATION
(Exact name of registrant as specified in its charter)
INDIANA 35-1931722
(Jurisdiction of Incorporation) (IRS Employer
Identification Number)
111 MONUMENT CIRCLE, 29TH FLOOR, INDIANAPOLIS, INDIANA 46204
(Address of registrant's principal executive office)
317-971-2000
(Registrant's telephone number)
----------------
<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
1.1 Underwriting Agreement, dated February 11, 1999, among the Company and
J.P. Morgan Securities Inc., BT Alex Brown Incorporated, Chase
Securities Inc. and Credit Suisse First Boston Corporation, as
Underwriters, relating to the issuance and sale by the Company of
$350,000,000 aggregate principal amount of its 6.15% notes due 2006.
4.1 Form of 6.15% Note due 2006.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
GUIDANT CORPORATION
By: /s/ Keith E. Brauer
----------------------------
Keith E. Brauer
Vice President and Chief Financial
Officer
Date: February 16, 1999
<PAGE>
EXHIBIT 1.1
GUIDANT CORPORATION
DEBT SECURITIES
Underwriting Agreement
February 11, 1999
To the Representatives named in
Schedule I hereto of the
Underwriters named in Schedule II
hereto
Ladies and Gentlemen:
Guidant Corporation, an Indiana corporation (the "COMPANY"), proposes to
issue and sell to the underwriters named in Schedule II hereto (the
"UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), the principal amount of its debt securities identified in
Schedule I hereto (the "SECURITIES"), to be issued under the indenture specified
in Schedule I hereto, as amended or supplemented (the "INDENTURE"), between the
Company and the Trustee identified in such Schedule (the "TRUSTEE"). If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "SECURITIES ACT"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain securities (the "SHELF SECURITIES") to be issued from time to time by
the Company. The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration statement as amended
to the date of this Agreement is hereinafter referred to as the "REGISTRATION
STATEMENT" and the related prospectus covering the Shelf Securities in the form
first used to confirm sales of the Securities is hereinafter referred to as the
"BASIC PROSPECTUS". The Basic Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "PROSPECTUS".
If the
<PAGE>
Company has filed an abbreviated registration statement pursuant to Rule 462(b)
under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462 Registration Statement. Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any preliminary form of Prospectus
(a "PRELIMINARY PROSPECTUS") previously filed with the Commission pursuant to
Rule 424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "EXCHANGE ACT") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to an account specified by the Company to the
Representatives, on the date and at the time and place set forth in Schedule I
hereto (or at such other time and place on the same or such other date, not
later than the fifth Business Day (as defined below) thereafter, as you and the
Company may agree in writing). As used herein, the term "BUSINESS DAY" means
any day other than a day on which banks are permitted or required to be closed
in New York City. The time and date of such payment and delivery with respect
to the Securities are referred to herein as the "CLOSING DATE".
Payment for the Securities shall be made against delivery to the nominee of
The Depository Trust Company for the respective accounts of the several
Underwriters of the Securities of one or more global notes (the "GLOBAL NOTE")
2
<PAGE>
representing the Securities, with any transfer taxes payable in connection with
the transfer to the Underwriters of the Securities duly paid by the Company.
The Global Note will be made available for inspection by the Representatives at
such place as the Representatives and the Company shall agree not later than
1:00 P.M., New York City time, on the Business Day prior to the Closing Date.
4. The Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to the
best of the Company's knowledge, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange
Act, and the applicable rules and regulations of the Commission thereunder,
(ii each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented,
if applicable, will not contain, any 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, (ii the Registration Statement
and the Prospectus comply, and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "TRUST INDENTURE ACT"), and (iv
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain, any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section
4(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing (as such term is commonly understood)
under the laws of the State of Indiana, has the corporate power and
authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
3
<PAGE>
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(d) Each Significant Subsidiary (as defined in Regulation S-X of
the Act) of the Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. Annex A
attached hereto lists all Significant Subsidiaries of the Company.
(e) The outstanding shares of capital stock of each Significant
Subsidiary of the Company have been duly authorized and validly issued, are
fully paid and nonassessable and are owned either directly or indirectly
(except for directors' qualifying shares) by the Company free and clear of
all liens, encumbrances and perfected (or, to the best of the Company's
knowledge, unperfected) security interests, and no options, warrants or
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock or ownership
interests in any Significant Subsidiary of the Company are outstanding.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally, (ii rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (ii rights to indemnity may be limited by applicable law
and public policy.
(h) The Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, enforceable in
accordance with their terms except as (i) the enforceability thereof may be
4
<PAGE>
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable principles
of general applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Securities will not contravene any provision of
applicable law or the articles of incorporation or by-laws of the Company
or any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, the Indenture and the Securities
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Securities.
(j) There has not occurred 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, taken as a whole, from that
set forth in the Prospectus.
(k) There are no legal or governmental actions, suits,
proceedings, claims or investigations pending or, to the best of the
Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described, nor are
there any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or
to be filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(l) Each of the Company and its Significant Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits (collectively, "AUTHORIZATIONS") of and from, and has made all
declarations and filings (collectively, "FILINGS") with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, or required for the performance by the Company
or any
5
<PAGE>
subsidiary thereof of its obligations under this Agreement, the Indenture
and the Securities, except to the extent that the failure to obtain an
Authorization or make a Filing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(m) Each preliminary prospectus 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 Securities Act, complied
when so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(n) The Company is not 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.
(o) The Company and its Significant Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii have received all Authorizations
required of them under applicable Environmental Laws to conduct their
respective businesses and (ii are in compliance with all terms and
conditions of any such Authorizations, except where such noncompliance with
Environmental Laws, failure to receive required Authorizations or failure
to comply with the terms and conditions of such permits, licenses or
approvals would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(p) In the ordinary course of its business, the Company reviews
the effect of Environmental Laws on the business, operations and properties
of the Company and its subsidiaries, in the course of which it identifies
and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and
any potential liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated costs and
liabilities would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(q) The consolidated financial statements of the Company and its
subsidiaries (together with the related notes thereto) included or
incorporated by reference in the Registration Statement fairly present in
all material respects the financial position and results of operations of
the Company and its subsidiaries at the respective dates and for the
respective
6
<PAGE>
periods to which they apply. The pro forma financial information of the
Company and its subsidiaries and the related notes thereto included in the
Registration Statement have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the bases described therein and,
in the opinion of the Company and its subsidiaries, 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.
(r) No holder of any securities of the Company has any rights,
not effectively satisfied or waived, to the registration of securities of
the Company because of the filing of the Registration Statement or the
consummation of the transaction contemplated therein.
(s) To the best of the Company's knowledge, no labor dispute
with the employees of the Company or any of its Significant Subsidiaries
exists or is imminent, and the Company is not aware of any existing or
imminent labor disturbance by such employees which is reasonably likely to
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(t) Except as disclosed in the Prospectus, the Company and its
subsidiaries own, possess or license the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names and other
rights or interests in items of intellectual property as are necessary for
the operation of the business now operated by them (the "PATENT AND
PROPRIETARY RIGHTS"); except as disclosed in the Prospectus, neither the
Company nor any subsidiary has received notice of any other asserted rights
with respect to any of the patent and proprietary rights which, if
determined unfavorably with respect to the interests of the Company or any
subsidiary of the Company, would have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and the Company takes
measures which it reasonably believes to be adequate to prevent material
adverse effects upon the Company by creating, maintaining, protecting, and
realizing reasonable value from the material patent and proprietary rights
of the Company and from current material license and other agreements
between the Company and others.
(u) The Company has no knowledge of any impediment to the
enforceability of any of the patents owned by the Company or any of its
subsidiaries that are necessary for the operation of the business now
operated by them or of any materially relevant prior art references not
7
<PAGE>
cited during the prosecution of any of such patents in the U.S. Patent and
Trademark Office or applicable foreign patent office.
(v) The acquisition of the electrophysiology business of Sulzer
Medica USA Holding Co., a division of Sulzer Medica Ltd. ("INTERMEDICS")
has been consummated as described in the Prospectus and in all material
respects in accordance with all applicable law.
5. The Company covenants and agrees with each of the several Under
writers as follows:
(a) to file the Prospectus pursuant to Rule 424 under the
Securities Act not later than the Commission's close of business on the
second Business Day following the date of determination of the offering
price of the Securities or, if applicable, such earlier time as may be
required by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment thereto, in
each case including exhibits and documents incorporated by reference
therein and, during the period mentioned in Section 5 below, to furnish
each of the Underwriters as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by reference
therein as you may reasonably request;
(c) during the period referenced in Section 5 below, to furnish
to you a copy of any proposed amendment or supplement to the Registration
Statement or the Prospectus, for your review, and not to file any such
proposed amendment or supplement to which you reasonably object unless such
filing is required to comply with applicable law;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities, and during such same period,
to advise you promptly, and to confirm such advice in writing, (i) when any
amendment to the Registration Statement shall have become effective, (ii)
of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv) of
the receipt by the Company of any notification with respect to any
suspension
8
<PAGE>
of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such
stop order or notification and, if issued, to obtain as soon as possible
the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to
be delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the Prospectus
to comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Securities may have been sold by
you on behalf of the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Securities; provided that the
Company shall not be required to file a general consent to service of
process in any jurisdiction;
(g) to make generally available to its security holders and to
you as soon as practicable an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring
after the "effective date" (as defined in Rule 158) of the Registration
Statement;
(h) so long as the Securities are outstanding, to furnish to you
copies of all reports or other communications (financial or other)
furnished to holders of Securities, and copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange;
9
<PAGE>
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing Date,
not to offer, sell, contract to sell or otherwise dispose of any debt
securities of or guaranteed by the Company which are substantially similar
to the Securities (other than commercial paper issued in the ordinary
course of business);
(j) to use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner specified
in the Prospectus under the caption "Use of Proceeds"; and
(k) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause
to be paid all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any reasonable expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements thereto),
(iii) incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the
laws of such jurisdictions as the Underwriters may designate (including
reasonable fees of counsel for the Underwriters and their disbursements),
(iv) related to any filing with National Association of Securities Dealers,
Inc., (v) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture, any
Preliminary and Supplemental Blue Sky Memoranda and any Legal Investment
Survey and the furnishing to Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and shipping,
as herein provided, (vi) payable to rating agencies in connection with the
rating of the Securities, (vii) any reasonable expenses incurred by the
Company in connection with a "road show" presentation to potential
investors and (viii) the reasonable cost and charges of any transfer agent.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made on and
as of the Closing Date and the Company shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
10
<PAGE>
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to your
satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any downgrading,
(ii any intended or potential downgrading or (ii any review or possible
change that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or 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, taken
as a whole, otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in
the Prospectus; and neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business form fire, explosion, flood or other
calamity, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company, with
specific knowledge about the Company's financial matters, satisfactory to
you to the effect set forth in Sections 6, 6 and 6 (with respect to the
respective representations, warranties, agreements and conditions of the
Company) and to the further effect that there has not occurred 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
11
<PAGE>
taken as a whole from that set forth or contemplated in the Registration
Statement.
(f) The Underwriters shall have received on the Closing Date an
opinion of Baker & Daniels, counsel for the Company, dated the Closing
Date, to the effect that:
(i) each of the Company and Guidant Sales
Corporation has been duly incorporated and is validly existing as a
corporation and is in good standing under the laws of the state of
Indiana, with full corporate power and authority to own its property
and to conduct its business as described in the Prospectus;
(ii) this Agreement has been duly authorized, executed
and delivered by the Company;
(iii) the Indenture has been duly authorized, executed
and delivered by the Company;
(iv) the Securities have been duly authorized by the
Company;
(v) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Indenture and the Securities will not contravene,
violate, conflict with, result in a breach of, or constitute a
default under (a) any provision of applicable Indiana law or
regulation, (b) the articles of incorporation or by-laws of the
Company, or (c) to the best of such counsel's knowledge (based
solely on inquiries of responsible officers of the Company), any
judgment, determination, order or decree of any Indiana governmental
body, agency or court having jurisdiction over the Company or any
subsidiary of the Company, except in the case of clauses (a) and (c)
hereof, any such contravention that would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole. No consent, approval, authorization or order of or
qualification with any Indiana governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, the Indenture or the Securities, except such as may
be required by the securities or Blue Sky laws of Indiana in
connection with the offer and sale of the Securities; and
(vi) the statements in the Registration Statement in
Item 15, insofar as such statements constitute summaries of the
legal matters or documents referred to therein, fairly present in
all
12
<PAGE>
material respects the information called for with respect to such
legal matters and documents and fairly summarize the matters
referred to therein.
(g) The Underwriters shall have received on the Closing Date an
opinion of Dewey Ballantine LLP, counsel for the Company, dated the Closing
Date, to the effect that:
(i) this Agreement has been duly executed and delivered
by the Company;
(ii) the Indenture has been duly qualified under the
Trust Indenture Act, duly executed and delivered by the Company and,
assuming due authorization thereof by the Company, is a valid and
binding agreement of the Company, enforceable in accordance with its
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally, (b) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (c) rights to indemnity may be limited by
applicable law and public policy;
(iii) the Securities, when duly executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms of this Agreement and assuming due authorization of the
Securities by the Company, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (b) rights
of acceleration, if any, and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(iv) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Indenture and the Securities will not contravene,
violate, conflict with, result in a breach of, or constitute a
default under (a) any provision of applicable New York, California
or U.S. federal law or regulation, or (b) to the best of such
counsel's knowledge (based solely on inquiries of responsible
officers of the Company), any judgment, determination, order or
decree of any New York, California or U.S. federal governmental
body, agency or court having jurisdiction over the Company or any
subsidiary of the Company, except, in the cases of clauses (a) and
(b) hereof, any
13
<PAGE>
such contravention that would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole. No consent,
approval, authorization or order of or qualification with any New
York, California or U.S. federal governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, the Indenture or the Securities, except such as may
be required by the securities or Blue Sky laws of New York and
California in connection with the offer and sale of the Securities;
(v) Advanced Cardiovascular Systems, Inc. ("ACS") has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of California, with full corporate power and
authority to own its property and to conduct its business as
described in the Prospectus;
(vi) the statements (A) in the Prospectus under the
captions "BUSINESS -GOVERNMENT REGULATION", "BUSINESS -HEALTH CARE
REFORM AND THIRD PARTY REIMBURSEMENT" and "BUSINESS - LEGAL AND
REGULATORY PROCEEDINGS," "DESCRIPTION OF THE NOTES," "DESCRIPTION OF
THE SENIOR DEBT SECURITIES" and "PLAN OF DISTRIBUTION" (other than
information contained therein provided in writing to the Company by
the Underwriters for use therein), (B) in "ITEM 1 - BUSINESS -
GOVERNMENTAL REGULATION" and "ITEM 3 - LEGAL PROCEEDINGS" of the
Company's most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (C) in "ITEM 1 - LEGAL PROCEEDINGS"
of Part II of the Company's quarterly reports on Form 10-Q, if any,
filed since such annual report, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present in all material
respects the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the matters
referred to therein;
(vii) to the best of such counsel's knowledge (based
solely on inquiries of responsible officers of the Company), there
are no legal or governmental actions, suits, proceedings, claims or
investigations pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described, nor does such counsel know of any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
14
<PAGE>
filed as exhibits to the Registration Statement that are not
described or filed as required;
(viii) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus (except
for financial statements and the notes related thereto, schedules
and other financial, accounting and statistical data as to which
such counsel need not express any opinion) complied when so filed as
to form in all material respects with the Exchange Act and the rules
and regulations of the Commission thereunder;
(ix) the Registration Statement and the Prospectus and
any supplements or amendments thereto (except for financial
statements and the notes related thereto, schedules and other
financial, accounting and statistical dates as to which such counsel
need not express any opinion) comply as to form in all material
respects with the Securities Act and the rules and regulations of
the Commission thereunder;
(x) the Company is not 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; and
(xi) the Registration Statement is effective under the
Securities Act and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act or proceedings therefor
initiated or threatened by the Commission.
In addition, such counsel shall state that they have
participated in conferences with officers and representatives of the
Company, representatives of the independent accountants of the
Company and representatives of the Underwriters at which the
contents of the Registration Statement and the Prospectus (including
the documents incorporated by reference therein) and related matters
were discussed and, although such counsel need not pass upon or
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus and have made no independent check or verification
thereof, except as described in paragraph (vi) above, on the basis
of the foregoing, no facts have come to such counsel's attention
that have led such counsel to believe that (except for that part of
the Registration Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement, at the time
such part became effective or as
15
<PAGE>
of the date of the Underwriting Agreement, contained any 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 Prospectus, as of its date and
as of the Closing Date, contained or contains 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 light of the
circumstances under which they were made, not misleading, except
that such counsel need not express an opinion or belief with respect
to information contained in the financial statements and the notes
related thereto, schedules and other financial, accounting and
statistical data included therein or excluded therefrom.
(h) The Underwriters shall have received on the Closing Date an
opinion of Faegre & Benson, counsel for the Company, dated the Closing
Date, to the effect that Cardiac Pacemakers, Inc. ("CPI") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of Minnesota, with full corporate power and authority to own
its property and to conduct its business as described in the Prospectus;
and
(i) You shall have received on the Closing Date an opinion of
J.B. King, Esq., General Counsel and Vice President of the Company, dated
the Closing Date, to the effect that:
(i) each of the Company and its Significant
Subsidiaries is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or to be in
good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(ii) the outstanding shares of capital stock of each
Significant Subsidiary of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and are owned
either directly or indirectly (except for directors' qualifying
shares) by the Company and, to the best of such counsel's knowledge,
are owned free and clear of all liens, encumbrances and perfected or
unperfected security interests, and, to the best of such counsel's
knowledge, no options, warrants or rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in
any Significant Subsidiary of the Company are outstanding;
16
<PAGE>
(iii) the execution and delivery by the Company, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Securities will not contravene, violate,
conflict with, result in a breach of, or constitute a default under
(a) any provision of applicable law or regulation, (b) the articles
of incorporation or by-laws of the Company, (c) to the best of such
counsel's knowledge, any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or (d) to the best
of such counsel's knowledge, any judgment, determination, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary of the Company, except in the
cases of clauses (a), (c) and (d) hereof, any such contravention
that would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. No consent, approval, authorization
or order of or qualification with any Indiana governmental body or
agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture or the Securities,
except such as may be required by the securities or Blue Sky laws of
the state of Indiana in connection with the offer and sale of the
Securities;
(iv) to the best of such counsel's knowledge, there are
no legal or governmental actions, suits, proceedings, claims, or
investigations pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described, nor does such counsel know of any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described or filed as required; and
(v) to the best of such counsel's knowledge, each of
the Company and its subsidiaries has all necessary Authorizations of
and from, and has made all Filings with, all state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus, or required for the performance by the
Company of its obligations under this Agreement, the Indenture and
the Securities, except to the extent that the failure to obtain an
Authorization or to make a Filing would not have a material
17
<PAGE>
adverse effect on the Company and its subsidiaries, taken as a
whole.
In addition, such counsel shall state that he or members
of his staff have participated in conferences with officers and
representatives of the Company, representatives of the independent
accountants of the Company and representatives of the Underwriters
at which the contents of the Registration Statement and the
Prospectus (including the documents incorporated by reference
therein) and related matters were discussed and, although such
counsel need not pass upon or assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus and has made no
independent check or verification thereof, on the basis of the
foregoing, no facts have come to the attention of such counsel or
any member of his staff that have led them to believe that (except
for that part of the Registration Statement that constitutes the
Form T-1 heretofore referred to) each part of the Registration
Statement, at the time such part became effective or as of the date
of this Agreement, contained any 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
Prospectus, as of its date and as of the Closing Date, contained or
contains 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 light of the circumstances under which they were made,
not misleading, except that such counsel need not express an opinion
or belief with respect to information contained in the financial
statements and the notes related thereto, schedules and other
financial, accounting and statistical data included therein or
excluded therefrom.
In rendering such opinion, such counsel may state that
such opinion is limited to matters governed by the laws of the
states of Indiana, and that he has relied as to matters involving
the application of the laws of other jurisdictions upon the opinion
of other members of the Company's legal department or upon the law
firms of Dewey Ballantine LLP or Faegre & Benson, as the case may
be.
(j) You shall have received on the Closing Date opinions of
counsel, attached hereto as Annex B, dated the Closing Date, in form and
substance satisfactory to you and your counsel relating to intellectual
property matters.
18
<PAGE>
The opinions of counsel described in paragraphs (f), (g), (h) (i) and (j)
above shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(k) on the date hereof and on the Closing Date, Ernst & Young
LLP, independent public accountants of the Company and Pricewaterhouse
Coopers LLP, the independent public accountants of Intermedics shall have
furnished to you letters, dated such date, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants "COMFORT LETTERS" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus regarding the
Company and Intermedics, respectively;
(l) you shall have received on and as of the Closing Date an
opinion of Davis Polk & Wardwell, counsel to the Underwriters, with respect
to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters; and
(m) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and documents as
the Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter,
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including
without limitation the legal fees and other expenses incurred in connec tion
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein;
provided, however, that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages, or liabilities purchased
Securities or any person
19
<PAGE>
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 5(b) hereof.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supple ment
thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "INDEMNIFIED PERSON") shall promptly
notify the person against whom such indemnity may be sought (the "INDEMNIFYING
PERSON") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by the
first of the named Representatives on Schedule I hereto and any such separate
firm for the
20
<PAGE>
Company, its directors, its officers who sign the Registration Statement and
such control persons of the Company or authorized representatives shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indem nifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
21
<PAGE>
state a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the 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 Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law of in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board
22
<PAGE>
of Trade, (ii) trading of any securities of or guaranteed by the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-tenth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registra tion Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated
23
<PAGE>
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the offering of
Securities.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly
or by the first of the named Representatives set forth in Schedule I hereto
alone on behalf of the Underwriters, and any such action taken by you jointly or
by the first of the named Representatives set forth in Schedule I hereto alone
shall be binding upon the Underwriters. 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
Underwriters shall be given at the address set forth in Schedule II hereto.
Notices to the Company shall be given to it at 111 Monument Circle, 29th Floor,
Indianapolis, IN 46240-5129; telephone 317-971-2000; telefax 317-971-2050;
Attention: Cynthia Lucchese.
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
24
<PAGE>
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
GUIDANT CORPORATION
By: /s/ Keith E. Brauer
-------------------
Name: Keith E. Brauer
Title: Vice-President, Finance and
Chief Financial Officer
Accepted: February 11, 1999
J.P. MORGAN SECURITIES INC.
BT ALEX. BROWN INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON
CORPORATION
Acting severally on behalf of themselves
and the several Underwriters listed
in Schedule II hereto.
By: J.P. MORGAN SECURITIES INC.
By: /s/ Maria Sramek
----------------------------------------------
Name: Maria Sramek
Title: Vice-President
25
<PAGE>
SCHEDULE I
Representatives: J.P. Morgan Securities Inc.
BT Alex. Brown Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
Trustee: Citibank, N.A.
Underwriting Agreement
dated: February 11, 1999
Registration Statement No.: 333-00014
Title of Securities: 6.15% Notes due 2006
Aggregate principal amount: $350,000,000
Purchase Price: 98.983% of the principal amount of the
Securities, plus accrued interest, if
any, from February 16, 1999 to the
Closing Date
Price to Public: 99.608% of the principal amount of the
Securities, plus accrued interest, if
any, from February 16, 1999
Indenture: Indenture dated as of January 18, 1996
between the Company and Citibank, N.A.,
as Trustee, as supplemented from time
to time
Maturity: February 15, 2006
Interest Rate: 6.15% per annum, accruing from February
16, 1999
Interest Payment Dates: February 15 and August 15
Closing Date and Time of
Delivery: February 16, 1999, 9:00 A.M., New York
City time
Closing Location: Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Address for Notices to
Underwriters: J.P. Morgan Securities Inc.
<PAGE>
60 Wall Street
New York, New York 10260-0060
Attention: Corporate Syndicate
Managing Director
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
OF SECURITIES
UNDERWRITER PURCHASED
<S> <C>
J.P. Morgan Securities Inc................... $192,500,000
BT Alex. Brown Incorporated.................. $ 52,500,000
Chase Securities Inc......................... $ 52,500,000
Credit Suisse First Boston Corporation....... $ 52,500,000
Total................................... $350,000,000
</TABLE>
<PAGE>
ANNEX A
Advanced Cardiovascular Systems, Inc.
Cardiac Pacemakers, Inc.
Guidant Sales Corporation
2
<PAGE>
EXHIBIT 4.1
CUSIP NO. 401698AA3
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN. THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY DTC TO A NOMINEE OF DTC, OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC, OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY, UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM.
GUIDANT CORPORATION
6.15% Note Due 2006
REGISTERED
NO. R-_______ $_________
GUIDANT CORPORATION, an Indiana corporation (herein called the
"Company"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of ___________________________________ on
February 15, 2006, upon surrender of this Note at the office or agency of the
Company for such payment in The City of New York, in such coin or currency of
the United States of America as at the time of payment shall be legal tender for
the payment of public and private debts, and to pay interest on said principal
sum until maturity at the rate of 6.15% per annum, at such office or agency, in
like coin or currency, semi-annually on February 15 and August 15 of each year,
commencing August 15, 1999, until the date on which payment of said principal
sum has been made or duly provided for; provided, however, that at the option of
-------- -------
the Company, payment of interest may be made by check mailed to the address of
the person entitled thereto as such address shall appear in the Security
Register. Such interest shall be payable from the February 15 or the August 15,
as the case maybe, next preceding the date hereof to which interest has been
paid, unless the date hereof is a February 15 or August 15 to which interest has
been paid, in which case from the date hereof, or unless the date hereof is
prior to the payment of any interest on the Notes, in which case from February
16, 1999; provided, however, that if the Company shall default in payment of the
-------- -------
interest due on such February 15 or August 15, then from the preceding February
15 or August 15 to which interest has been paid or, if no interest has been paid
on the Notes, from February 16, 1999. The interest payable hereon on any
interest payment date shall be payable to
<PAGE>
the person in whose name this Note is registered at the close of business on the
February 1 or August 1 preceding the respective interest payment date, except as
otherwise provided in the Indenture hereinafter referred to.
The provisions of this Note are continued on the reverse hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture.
[THIS SPACE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, GUIDANT CORPORATION has caused this Instrument to
be signed manually or by facsimile signature of its President or one of its Vice
Presidents and by its Secretary or one of its Assistant Secretaries, and a
facsimile of its corporate seal to be affixed hereto or imprinted hereon.
Dated: February 16, 1999 GUIDANT CORPORATION
By __________________________
Name:
Title:
By __________________________
Name:
Title:
<PAGE>
This is one of the Notes of the series designated herein issued under
the Indenture described herein.
CITIBANK, N.A.,
as Trustee
By____________________________
Authorized Officer
FORM OF REVERSE OF NOTE
This Note is one of a duly authorized issue of a series of senior
unsecured debt securities (the "Debt Securities") of the Company, designated as
its 6.15% Notes Due 2006 (the "Notes"). The Notes are limited to $350,000,000
aggregate principal amount and the Debt Securities, including the Notes, are all
issued or to be issued under and pursuant to the Indenture dated as of January
18, 1996 (herein called the "Indenture"), duly executed and delivered by the
Company to Citibank, N.A., as Trustee (herein called the "Trustee"), as
supplemented by a Supplemental Indenture dated as of January 8, 1999, to which
Indenture and all Board Resolutions and Officer's Certificates (as defined in
the Indenture) as provided therein, reference is hereby made for a description
of the rights, limitation of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and holders of the Notes.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing with respect to the Notes, the principal hereof may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture provides that the holders of the majority in principal amount of
the Notes at the time outstanding may on behalf of the holders of all of the
Notes waive any past default under the Indenture and its consequences, except a
default (i) in the payment of the principal of or interest on any of the Notes,
in the manner and to the extent provided in the Indenture or (ii) in respect of
a covenant or provision in the Indenture which pursuant to the Article Eleven of
the Indenture cannot be modified or amended without the consent of the holders
of each of the Notes then outstanding.
The following Event of Default will apply to the Notes in addition to
the other Events of Default described under Section 5.01 of the Indenture:
there shall have occurred with respect to any indebtedness or other
obligation for borrowed money of the Company or any of its
Subsidiaries having an outstanding principal amount of $25,000,000 (or
the equivalent thereof in other currencies) or more individually or in
the aggregate, (i) a default or defaults where the holder or holders
thereof have declared such indebtedness to be due and payable prior to
its stated maturity or (ii) a default or defaults in the payment of
the principal of such indebtedness when the same became due and
payable at its final maturity after the expiration of any grace period
with respect thereto, and such acceleration has not
<PAGE>
been rescinded or annulled or such indebtedness have not been
discharged in full within 15 days of such acceleration or such
final maturity after the expiration of any grace period with
respect thereto, as the case may be.
The Indenture contains provisions permitting the Company and the
Trustee, with consent of the holders of not less than a majority in principal
amount of the Notes at the time outstanding, evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture with respect to the Notes, or modifying in any
manner the rights of the holders of the Notes; provided, however, that no
-------- -------
supplemental indenture shall (i) extend the maturity of any Note, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or make the principal thereof or interest thereon payable in
any coin or currency other than that in the Notes provided, without the consent
of the holder of each Note so affected, (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all Notes then outstanding, or
(iii) modify any of the provisions of Section 11.02, Section 5.13 or Section
12.10 of the Indenture, except to increase any such percentage or to provide
that certain other provisions of the Indenture cannot be modified or waived
without the consent of the holder of all Notes then outstanding.
The Notes may not be redeemed prior to maturity.
No reference herein to the Indenture and no provision of this Note or
of the Indenture or of any Board Resolution shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the time and place and at the rate and in the coin or
currency herein prescribed.
This Note is transferable by the registered holder hereof in person or
by his attorney duly authorized in writing on the books of the Company at the
office or agency to be maintained by the Company for that purpose, but only in
the manner, subject to the limitations and upon payment of any tax or
governmental charge for which the Company may require reimbursement as provided
in the Indenture, and upon surrender and cancellation of this Note. Upon any
registration of transfer, a new registered Note or Notes, of authorized
denomination or denominations, and in the same aggregate principal amount, will
be issued to the transferee in exchange therefor.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any registered security is
registered on the security register as the owner of such registered security for
the purpose of receiving payment of the principal of (and premium, if any) and
interest, if any, on such registered security and for all other purposes
whatsoever, whether or not such registered security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Note or of the indebtedness represented
thereby, or upon any obligation,
<PAGE>
covenant or agreement of the Indenture, against any incorporator, or against any
stockholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, stockholder, officer or director of any
predecessor or successor Corporation), either directly or indirectly (or any
such predecessor or successor Corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that the
Indenture and this Note is solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company (or
any incorporator, stockholder, officer or director of any such predecessor or
successor Corporation), either directly or indirectly through the Company or any
such predecessor or successor Corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants, promises
or agreements contained in the Indenture or in this Note or to be implied from
the Indenture or therefrom.
All terms used in this Note which are defined in the Indenture shall
have the meaning assigned to them in the Indenture.
