EXHIBIT 4.20
TYCO INTERNATIONAL GROUP S.A.
TYCO INTERNATIONAL LTD.
SUPPLEMENTAL INDENTURE NO. 11
$1,000,000,000
6.875% Notes due 2002
THIS SUPPLEMENTAL INDENTURE NO. 11, dated as of August 31, 1999, among TYCO
INTERNATIONAL GROUP S.A., a Luxembourg company (the "Company"), TYCO
INTERNATIONAL LTD., a Bermuda company ("Tyco"), and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and Tyco have heretofore executed and delivered to the
Trustee an Indenture, dated as of June 9, 1998 (the "Indenture"), providing for
the issuance from time to time of one or more series of the Company's
Securities;
WHEREAS, Article Seven of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture; and
WHEREAS, Section 7.1(e) of the Indenture provides that the Company, Tyco and
the Trustee may enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as permitted by Sections
2.1 and 2.4 of the Indenture.
NOW THEREFORE: In consideration of the premises and the issuance of the
series of Securities provided for herein, the Company, Tyco and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders of the Securities of such series as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 RELATION TO INDENTURE. This Supplemental Indenture No. 11
constitutes an integral part of the Indenture.
SECTION 1.2 DEFINITIONS. For all purposes of this Supplemental Indenture
No. 11, the following terms shall have the respective meanings set forth in this
section. In the event of a conflict with the definition of terms in the
Indenture, the definitions in this Supplemental Indenture shall control.
"ADJUSTED REDEMPTION TREASURY RATE" means, with respect to any redemption
date, the annual rate equal to the semiannual equivalent yield to maturity or
interpolated (on a 30/360 day count basis) yield to maturity of the Comparable
Redemption Treasury Issue, assuming a price for the comparable Redemption
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Redemption Treasury Price for such redemption date.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear or Cedel, as the case may be, that apply to such transfer
or exchange.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or obligated
by law, executive order or governmental decree to be closed.
"CEDEL" means Cedelbank or any successor.
"COMPARABLE REDEMPTION TREASURY ISSUE" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Notes to be redeemed that will be utilized at the time of
selection and in accordance with customary financial practice in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes.
"COMPARABLE REDEMPTION TREASURY PRICE" means, with respect to any redemption
date, (i) the average of the Redemption Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest such Redemption
Reference Treasury Dealer Quotations (unless there is more than one highest or
lowest quotation, in which case only one such highest and/or lowest quotation
shall be excluded), or (ii) if the Quotation Agent obtains fewer than four such
Redemption Reference Treasury Dealer Quotations, the average of all such
Redemption Reference Treasury dealer Quotations.
"CUSTODIAN" means the Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
"DEFINITIVE NOTE" means a certificated Note in the form of Exhibit A hereto,
registered in the name of the Holder thereof and issued in accordance with
Section 2.9 hereof, except that such Note shall not bear the Global Note Legend.
"EUROCLEAR" means the Euroclear Clearance System or any successor.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer pursuant to
Section 2.9(f) hereof; following the exchange of interests in the Rule 144A
Global Notes, the Regulation S Global Notes and any Restricted Definitive Note
for Exchange Notes pursuant to an effective registration statement, the defined
term "Exchange Notes" and "Notes" shall have the same meaning and be entitled to
the same rights under the Indenture.
"EXCHANGE OFFER" means the exchange offer by the Company of the Exchange
Notes for the Notes issued in reliance upon an exemption from registration under
the Securities Act on the date hereof in accordance with the provisions of the
Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means an exchange offer registration
statement on Form S-4 (or, if applicable, on another appropriate form), and all
amendments and supplements to such registration statement, including the
prospectus contained therein, all exhibits thereto and all documents
incorporated by reference therein filed by the Company and Tyco in accordance
with the Registration Rights Agreement in connection with the Exchange Offer.
"GLOBAL NOTES" means, individually and collectively, any of the Notes issued
as global notes under the Indenture.
"GLOBAL NOTE LEGEND" means the legend set forth in Section 2.9(g)(ii), which
is required to be placed on all Global Notes issued under the Indenture.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"INITIAL PURCHASER" means each of Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities Inc., Lehman Brothers Inc., Morgan
Stanley & Co. Incorporated, Credit Suisse First Boston Corporation, Donaldson,
Lufkin & Jenrette Securities Corporation, Goldman, Sachs & Co., Bear, Stearns &
Co. Inc., Banc of America Securities LLC, Chase Securities Inc., Commerzbank
Capital Markets Corporation, Warburg Dillon Read LLC, Salomon Smith
Barney Inc., The Williams Capital Group, L.P., and Blaylock & Partners, L.P.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
2
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" has the meaning assigned to it in Section 2.1 hereof.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or Cedel, a
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and, with respect to The Depository Trust Company, shall include Euroclear and
Cedel).
"PARTICIPATING BROKER DEALER" means the Initial Purchasers and any other
broker-dealer which makes a market in the Notes and exchanges Notes in the
Exchange Offer for Exchange Notes.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in
Section 2.9(g)(i) to be placed on all Notes issued under the Indenture except
where otherwise permitted by the provisions of the Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"QUOTATION AGENT" means a Redemption Reference Treasury Dealer appointed as
such agent by the Company.
"REDEMPTION REFERENCE TREASURY DEALER" means each of Merrill Lynch, Pierce,
Fenner & Smith Incorporated and four other primary U.S. Government securities
dealers in The City of New York selected by the Company.
"REDEMPTION REFERENCE TREASURY DEALER QUOTATIONS" means with respect to each
Redemption Reference Treasury Dealer and any redemption date, the offer price
for the Comparable Redemption Treasury Issue (expressed in each case as a
percentage of its principal amount) for settlement on the redemption date quoted
in writing to the Quotation Agent by such Redemption Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day preceding such
redemption date.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of August 31, 1999, by and among the Company, Tyco and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from time
to time.
"REGISTRAR" means the registrar and transfer agent of the Company in respect
of the Notes which shall initially be by the Trustee hereunder. The Company may
appoint additional Co-Registrars or terminate the appointment of existing
Registrars at any time.
"REGULATION S" means Regulation S promulgated under the Securities Act or
any successor rule or regulation substantially to the same effect.
"REGULATION S GLOBAL NOTE" means a global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the legend in
Section 2.9(g)(iii) hereof and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the Private
Placement Legend.
"RESTRICTED PERIOD" means the period beginning on the date hereof and ending
on the date of receipt by the Trustee of an Officers' Certificate from the
Company certifying as to the end of the end of the 40-day restricted period as
defined in Regulation S and any other matters required by the Applicable
Procedures or Regulation S.
"RULE 144" means Rule 144 promulgated under the Securities Act, any
successor rule or regulation to substantially the same effect or any additional
rule or regulation under the Securities Act that permits transfers of restricted
securities without registration such that the transferee thereof holds
securities that are freely tradeable under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act or any
successor rule or regulation to substantially the same effect.
3
"RULE 144A GLOBAL NOTE" means a global Note in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with or on behalf of, and registered in the name of, the Depositary or its
nominee.
"RULE 903" means Rule 903 promulgated under the Securities Act or any
successor rule or regulation substantially to the same effect.
"RULE 904" means Rule 904 promulgated the Securities Act or any successor
rule or regulation substantially to the same effect.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the United States Securities Act of 1933, as amended.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement of the
Company and Tyco filed pursuant to the provisions of the Registration Rights
Agreement on an appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements
to such registration statement, including post-effective amendments, in each
case including the prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"UNRESTRICTED GLOBAL NOTE" means a global Note (other than a Regulation S
Global Note) in the form of Exhibit A attached hereto that bears the Global Note
Legend, and that is deposited with or on behalf of and registered in the name of
the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes that do
not bear and are not required to bear the Private Placement Legend.
"U.S. PERSON" means a U.S. Person as defined in Rule 902(o) under the
Securities Act.
SECTION 1.3 RULES OF CONSTRUCTION. For all purposes of this Supplemental
Indenture No. 11:
(a) capitalized terms used herein without definition shall have the meanings
specified in the Indenture;
(b) all references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture No. 11; and
(c) the terms "HEREIN", "HEREOF", "HEREUNDER" and other words of similar
import refer to this Supplemental Indenture No. 11.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 TITLE OF THE SECURITIES. There shall be a series of Securities
designated as the "6.875% Notes due 2002" (the "Notes").
SECTION 2.2 FORM AND DATING.
(a) GENERAL.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each Note
shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of the Indenture Supplement No. 11, and the
Company, Tyco and the Trustee, by their execution and
4
delivery of the Indenture Supplement No. 11, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of any
Note conflicts with the express provisions of the Indenture Supplement No. 11,
the provisions of the Indenture Supplement No. 11 shall govern and be
controlling.
The Company hereby designates The Depository Trust Company as the initial
Depositary for the Global Notes.
(b) RULE 144A GLOBAL NOTES.
Notes offered and sold to QIBs shall be issued initially in the form of the
Rule 144A Global Note, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee at its New York office, as
custodian for the Depositary, duly executed by the Company and Tyco and
authenticated by the Trustee as hereinafter provided. Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time as conclusively reflected in the books and
records of the Trustee endorsed thereon and that the aggregate principal amount
of outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemption. Any change in
the principal amount of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee as the custodian for the Depositary, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.9 hereof.
(c) REGULATION S GLOBAL NOTES.
Notes offered and sold in reliance on Regulation S shall be issued initially
in the form of the Regulation S Global Note, which shall be deposited on behalf
of the purchasers of the Notes represented thereby with the Trustee, at its New
York office, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Cedel, duly executed by the Company and
Tyco and authenticated by the Trustee as hereinafter provided. During the
Restricted Period, interests in the Regulation S Global Note must be held
through Euroclear or Cedel, if the holders are Participants in such systems, or
indirectly through organizations that are Participants in such systems.
Following the termination of the Restricted Period, beneficial interests in
the Regulation S Global Note may be held, directly or indirectly, in the account
of any Participant of the Depositary.
(d) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel shall be applicable
to transfers of beneficial interests in the Regulation S Global Note that are
held by Participants through Euroclear or Cedel.
SECTION 2.3 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT. The aggregate
principal amount of the Notes shall not initially exceed $1,000,000,000.
SECTION 2.4 PRINCIPAL PAYMENT DATE. Subject to the provisions of
Section 2.7 hereof and Articles Four and Twelve of the Indenture, the principal
of the Notes shall be become due and payable in a single installment on
September 5, 2002.
SECTION 2.5 INTEREST AND INTEREST RATES. Interest on the Notes shall be
payable semiannually on March 5 and September 5 of each year beginning on
March 5, 2000 (each, an "INTEREST PAYMENT DATE"); PROVIDED, HOWEVER, that if an
Interest Payment Date would otherwise be a day that is not a Business Day, such
Interest Payment Date shall be the next succeeding Business Day, and no
additional interest shall be paid in respect of such intervening period. The
interest rate borne by the Notes will be 6.875% per annum
5
until the Notes are paid in full subject, however, to the following provisions.
In the event that (i) the Exchange Offer Registration Statement is not filed
with the SEC on or prior to the 120th calendar day following the original issue
of the Notes, (ii) the Exchange Offer Registration Statement has not been
declared effective by the SEC on or prior to the 180th calendar day following
the original issue of the Notes or (iii) the Exchange Offer is not consummated
or a Shelf Registration Statement is not declared effective, in either case, on
or prior to the 210th calendar day following the original issue of the Notes
(each such event in clauses (i) through (iii) above, a "REGISTRATION DEFAULT"),
the interest rate borne by the Notes shall be increased by an amount
("ADDITIONAL INTEREST") equal to an additional one quarter of one percent
(0.25%) per annum upon the occurrence of each Registration Default, which rate
will increase by an additional one quarter of one percent (0.25%) per annum each
90-day period that such Additional Interest continues to accrue under any such
circumstance, provided that the maximum aggregate increase in the interest rate
will in no event exceed 1.0% per annum; PROVIDED, HOWEVER, that no Additional
Interest shall be payable if the Exchange Offer Registration Statement is not
filed or declared effective or the Exchange Offer is not consummated as set
forth above because of any changes in law, SEC rules or regulations or
applicable interpretations thereof by the staff of the SEC (it being understood
that in any such circumstance the Company shall be required to file a Shelf
Registration Statement and Additional Interest shall be payable if such Shelf
Registration Statement is not declared effective as provided in clause (iii)
above); and PROVIDED FURTHER that Additional Interest shall only be payable in
the case a Shelf Registration Statement is not declared effective as aforesaid
with respect to notes that have the right to be included, and whose inclusion
has been requested, in the Shelf Registration Statement. Following the cure of
all Registration Defaults applicable to the respective Notes, the accrual of
Additional Interest will cease and the interest rate will revert to 6.875% per
annum.
If a Shelf Registration Statement is declared effective but shall thereafter
become unusable by the Holder of Notes for any reason (whether or not the
Company had the right to prevent the Holders from distributing Notes during any
period pursuant to the Registration Rights Agreement) and the aggregate number
of days in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days, the interest rate borne by the
Notes included in such Shelf Registration Statement will be increased by an
amount ("ADDITIONAL INTEREST") equal to 0.25% per annum for the first 90-day
period (or portion thereof) beginning on the 31st such date that such Shelf
Registration Statement ceases to be usable, which rate shall be increased by an
additional 0.25% per annum at the beginning of each subsequent 90-day period,
provided the maximum aggregate increase in the interest rate will in no event
exceed 1.0% per annum. Upon the Shelf Registration Statement once again becoming
usable, the interest rate borne by the Notes included therein will be reduced to
the original interest rate if the Company is otherwise in compliance with the
Registration Rights Agreement with respect to such Notes at that time.
Additional Interest in accordance with this paragraph shall be computed based
upon the actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is unusable. For all purposes of this Indenture
Supplement No. 11, the term interest shall include "Additional Amounts" and
"Additional Interest".
The interest payable on each Interest Payment Date shall be the amount of
interest accrued from August 31, 1999 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
until the principal amount of the Notes has been paid or duly provided for.
Interest shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
The interest payable on any Note which is punctually paid or duly provided
for on any Interest Payment Date shall be paid to the Person in whose name such
Note is registered at the close of business on the February 18 or August 21 (in
each case, whether or not a Business Day), respectively, immediately preceding
such Interest Payment Date (each, a "REGULAR RECORD DATE"). Interest payable on
any Note which is not punctually paid or duly provided for on any Interest
Payment Date therefor shall forthwith cease to be payable to the Person in whose
name such Note is registered at the close of business on the Regular Record Date
immediately preceding such Interest Payment Date, and such interest shall
instead be paid to
6
the Person in whose name such Note is registered at the close of business on the
record date established for such payment by notice by or on behalf of the
Company to the Holders of the Notes mailed by first-class mail not less than
15 days prior to such record date to their last addresses as they shall appear
upon the Security register, such record date to be not less than five days
preceding the date of payment of such defaulted interest.
The Company and Tyco shall notify the Trustee within five Business Days
after each and every date (an "EVENT DATE") on which an event occurs in respect
of which Additional Interest is required to be paid. The obligation to pay
Additional Interest shall be deemed to accrue from and including the day
following the applicable Event Date. Additional Interest shall be paid by
depositing with the Trustee for the benefit of the Holders of the Notes entitled
to receive such Additional Interest, on or before the applicable Interest
Payment Date, immediately available funds in sums sufficient to pay the
Additional interest then due. Additional Interest shall be payable to the Person
otherwise entitled to be paid the interest payable on the Notes on such Interest
Payment Date.
SECTION 2.6 PLACE OF PAYMENT. The place of payment where the Notes may be
presented or surrendered for payment, where the principal of and interest and
any other payments due on the Notes are payable, where the Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Notes and the Indenture may be
served shall be in the Borough of Manhattan, The City of New York, and the
office or agency maintained by the Company for such purpose shall initially be
the Corporate Trust Office of the Trustee.
At the option of the Company, interest on the Notes may be paid (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the register of Holders of the Notes or (ii) at the expense of the
Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in writing to the Trustee by such Person by the applicable
record date.
SECTION 2.7 (a) REDEMPTION. The Notes are redeemable, in whole or in part,
at the option of the Company at any time at a redemption price equal to the
greater of (i) 100% of the principal amount of such Notes, and (ii) as
determined by the Quotation Agent, the sum of the present values of the
remaining scheduled payments of principal and interest thereon (not including
any portion of such payment of interest accrued as of the date of redemption)
discounted to the date of redemption on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Redemption Treasury
Rate plus 12.5 basis points plus, in each case, accrued interest thereon to the
date of redemption.
(b) ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS. For purposes of the Notes,
Sections 12.1 and 12.2 of the Indenture are amended in their entirety to read as
follows:
"SECTION 12.1. REDEMPTION UPON CHANGES IN WITHHOLDING TAXES. The Notes may
be redeemed, as a whole but not in part, at the election of the Company, upon
not less than 30 nor more than 60 days notice (which notice shall be
irrevocable), at a redemption price equal to 100% of the principal amount
thereof, together with accrued interest, if any, to the redemption date and
Additional Amounts (as defined in Section 12.2), if any, if as a result of any
amendment to, or change in, the laws or regulations of Luxembourg or Bermuda or
any political subdivision or taxing authority thereof or therein having power to
tax (a "Taxing Authority"), or any change in the application or official
interpretation of such laws or regulations which amendment or change is
announced and becomes effective after the date the Notes are issued, the Company
or Tyco has become or will become obligated to pay Additional Amounts, on the
next date on which any amount would be payable with respect to the Notes, and
such obligation cannot be avoided by the use of reasonable measures available to
the Company or Tyco, as the case may be; PROVIDED, HOWEVER, that (a) no such
notice of redemption may be given earlier than 60 days prior to the earliest
date on which the Company or Tyco, as the case may be, would be obligated to pay
such Additional Amounts, and (b) at the time such notice of redemption is given,
such obligation to pay such Additional Amounts remains in effect. Prior to the
giving of any notice of redemption described in this paragraph, the Company
shall deliver to the Trustee (i)(I) a certificate signed by two directors of the
Company stating that the
7
obligation to pay Additional Amounts cannot be avoided by the Company taking
reasonable measures available to it or (II) a certificate signed by two
executive officers of Tyco stating that the obligation to pay Additional Amounts
cannot be avoided by Tyco taking reasonable measures available to it, as the
case may be, and (ii) a written opinion of independent legal counsel to the
Company or Tyco, as the case may be, of recognized standing to the effect that
the Company or Tyco, as the case may be, has or will become obligated to pay
Additional Amounts as a result of a change, amendment, official interpretation
or application described above and that the Company or Tyco, as the case may be,
cannot avoid the payment of such Additional Amounts by taking reasonable
measures available to it.
SECTION 12.2. PAYMENT OF ADDITIONAL AMOUNTS. All payments made by the
Company, Tyco and any other Guarantor under or with respect to the Notes and the
Guarantees will be made free and clear of and without withholding or deduction
for or on account of any present or future taxes, duties, levies, imposts,
assessments or governmental charges of whatever nature imposed or levied by or
on behalf of any Taxing Authority ("Taxes"), unless the Company, Tyco or such
Guarantor, as the case may be, is required to withhold or deduct Taxes by law or
by the interpretation or administration thereof. In the event that the Company,
Tyco or such Guarantor is required to so withhold or deduct any amount for or on
account of any Taxes from any payment made under or with respect to the Notes or
the Guarantees, as the case may be, the Company, Tyco or such Guarantor, as the
case may be, will pay such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by each Holder of Notes (including
Additional Amounts) after such withholding or deduction will equal the amount
that such Holder would have received if such Taxes had not been required to be
withheld or deducted; PROVIDED that no Additional Amounts will be payable with
respect to a payment made to a Holder of Notes to the extent:
(a) that any such Taxes would not have been so imposed but for the
existence of any present or former connection between such Holder and the
Taxing Authority imposing such Taxes (other than the mere receipt of such
payment, acquisition, ownership or disposition of such Notes or the exercise
or enforcement of rights under such Notes, the Guarantees or the Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or personal
property Tax imposed with respect to such Notes, except as otherwise
provided herein;
(c) that any such Taxes would not have been so imposed but for the
presentation of such Notes or Guarantees (where presentation is required)
for payment on a date more than 30 days after the date on which such payment
became due and payable or the date on which payment thereof is duly provided
for, whichever is later, except to the extent that the beneficiary or Holder
thereof would have been entitled to Additional Amounts had the Notes or
Guarantees been presented for payment on any date during such 30-day period;
or
(d) that such Holder would not be liable or subject to such withholding
or deduction of Taxes but for the failure to make a valid declaration of
non-residence or other similar claim for exemption, if (x) the making of
such declaration or claim is required or imposed by statute, treaty,
regulation, ruling or administrative practice of the relevant Taxing
Authority as a precondition to an exemption from, or reduction in, the
relevant Taxes, and (y) at least 60 days prior to the first payment date
with respect to which the Company, Tyco or such Guarantor shall apply this
clause (d), the Company, Tyco or such Guarantor shall have notified all
Holders of Notes in writing that they shall be required to provide such
declaration or claim.
The Company, Tyco or such Guarantor, as the case may be, will also (i) make
such withholding or deduction of Taxes and (ii) remit the full amount of Taxes
so deducted or withheld to the relevant Taxing Authority in accordance with all
applicable laws. The Company, Tyco or such Guarantor, as the case may be, will
use its reasonable best efforts to obtain certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld from each Taxing
Authority imposing such Taxes. The Company, Tyco or such Guarantor, as the case
may be, will, upon request, make available to the Holders of the Notes, within
60 days after the date the payment of any Taxes so deducted or withheld is due
pursuant to applicable law,
8
certified copies of tax receipts evidencing such payment by the Company, Tyco or
such Guarantor or if, notwithstanding the Company's, Tyco's or such Guarantor's
efforts to obtain such receipts, the same are not obtainable, other evidence of
such payments by the Company, Tyco or such Guarantor.
At least 30 days prior to each date on which any payment under or with
respect to the Notes or Guarantees is due and payable, if the Company, Tyco or
such Guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Company, Tyco or such Guarantor will deliver to the Trustee an
Officers' Certificate stating the fact that such Additional Amounts will be
payable, the amounts so payable and will set forth such other information as is
necessary to enable such Trustee to pay such Additional Amounts to Holders of
Notes on the payment date.
In addition, the Company, Tyco or such Guarantor, as the case may be, will
pay any stamp, issue, registration, documentary or other similar taxes and
duties, including interest, penalties and Additional Amounts with respect
thereto, payable in Luxembourg, Bermuda or the United States or any political
subdivision or taxing authority of or in the foregoing in respect of the
creation, issue, offering, enforcement, redemption or retirement of the Notes or
the Guarantees.
The foregoing provisions shall survive any termination of the discharge of
the Indenture and shall apply mutatis mutandis to any jurisdiction in which any
successor Person to the Company, Tyco or such Guarantor, as the case may be, is
organized or is engaged in business for tax purposes or any political
subdivisions or taxing authority or agency thereof or therein; PROVIDED,
HOWEVER, the date on which such Person becomes a successor to the Company, Tyco
or such Guarantor, as the case may be, shall be substituted for the date on
which the series of Notes was issued.
Whenever in the Indenture, the Notes or the Guarantees there is mentioned,
in any context, the payment of principal (and premium, if any), redemption
price, interest or any other amount payable under or with respect to any Notes
or Guarantees, such mention shall be deemed to include mention of the payment of
Additional Amounts to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof."
(c) NO SINKING FUND.
The Company shall have no obligation to redeem or purchase the Notes
pursuant to any sinking fund or analogous provisions or upon the happening of
any specified event or at the option of any Holder of the Notes.
SECTION 2.8 CURRENCY. Principal and interest on the Notes shall be payable
in United States dollars.
SECTION 2.9 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES.
A Global Note may not be transferred as a whole except by the Depositary to
a nominee of the Depositary, by a nominee of the Depositary to the Depositary or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 90 days after the date of such
notice from the Depositary; or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Regulation S Global Note be
exchanged by the Company for Definitive Notes prior to the expiration of the
Restricted Period. Global Notes may also be, subject to compliance with the
terms of this Section 2.9, exchanged for Definitive Notes upon the request of
any holder of Notes if an Event of Default has occurred and is continuing for a
period of at least 180 days.
9
Upon the occurrence of any of the preceding events, Definitive Notes shall be
issued in such names as the Depositary shall instruct the Trustee. Global Notes
also may be exchanged or replaced, in whole or in part, as provided in Sections
2.10 and 2.12 of the Indenture.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES.
The transfer and exchange of beneficial interests in the Global Notes shall
be effected through the Depositary, in accordance with the provisions of the
Indenture and the Applicable Procedures. Transfers of beneficial interests in
the Global Notes also shall require compliance with either subparagraph (i) or
(ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME TYPE OF GLOBAL NOTE.
Beneficial interests in any Rule 144A Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in a
Rule 144A Global Note in accordance with the transfer restrictions set forth
in the Private Placement Legend. Beneficial interests in any Regulation S
Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in a Regulation S Global Note; provided,
however, that prior to the expiration of the Restricted Period beneficial
interests in the Regulation S Global Note may only be transferred in
accordance with the Applicable Procedures of Euroclear and Cedel. Beneficial
interests in any Unrestricted Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described
in this Section 2.9(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN GLOBAL
NOTES. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.9(b)(i) above, and, subject to
any other requirement in this Section 2.9, the transferor of such beneficial
interest must deliver to the Registrar (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to credit or cause
to be credited a beneficial interest in a Global Note of another type in an
amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase or (B), subject to Section 2.9(a), (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial interest to be
exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive
Note shall be registered to effect the exchange; provided that in no event
shall Definitive Notes be issued upon the exchange of beneficial interests
in the Regulation S Global Note prior to the expiration of the Restricted
Period. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained herein and in the
Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.9(h) hereof.
(iii) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RULE 144A
GLOBAL NOTE OR A REGULATION S GLOBAL NOTES FOR BENEFICIAL INTERESTS IN AN
UNRESTRICTED GLOBAL NOTE. A beneficial interest in Rule 144A Global Note may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
if (x) the exchange or transfer complies with the requirements of
Section 2.9(b)(ii) above and (y):
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the holder
of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal or via the Depositary's book-entry system in a form
acceptable to the Trustee that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the
10
Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company, and such Letter of Transmittal or book-entry
system certification shall satisfy the requirements of Section 2.9(ii);
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the Securities
Act, a letter in the form of Exhibit B with the certification set forth
in paragraph 4(a) completed, and, if the Trustee and the Registrar so
request or the Applicable Procedures so require, an Opinion of Counsel to
the effect that the transfer is permitted, and that upon transfer the
Notes will not be restricted, under the Securities Act, is furnished to
the Trustee and Registrar.
If any such transfer is effected at a time when an Unrestricted Global
Note has not yet been issued, the Company shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.5 of the Indenture, the
Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of
beneficial interests so transferred.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS TO AND FROM
REGULATION S GLOBAL NOTES.
(A) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A REGULATION S
GLOBAL NOTE PRIOR TO THE TERMINATION OF THE RESTRICTED PERIOD FOR
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL NOTE. A beneficial interest in
any Regulation S Global Note may be exchanged by any holder thereof for a
beneficial interest in a Rule 144A Global Note or transferred to a Person
who takes delivery thereof in the form of a beneficial interest in a
Rule 144A Global Note, if (x) the exchange or transfer complies with the
requirements of Section 2.9(b)(ii) above, and (y) the holder of the
beneficial interest in the Regulation S Global Note delivers to the
Trustee and the Registrar a letter in the form of Exhibit B with the
certification set forth in paragraph 1 or Exhibit C with the
certification set forth in paragraph 2(b), as applicable, completed.
(B) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A REGULATION S
GLOBAL NOTE FOLLOWING THE TERMINATION OF THE RESTRICTED PERIOD FOR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE. A beneficial
interest in any Regulation S Global Note following the termination of the
Restricted Period may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Note or transferred to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, if (x) the exchange or transfer complies with
the requirements of Section 2.9(b)(ii) above and (y) the holder of the
Regulation S Global Note delivers to the Trustee and the Registrar a
letter in the form of Exhibit B with the certification set forth in
paragraph 4(b) or Exhibit C with the certification set forth in
paragraph 1, as applicable, completed.
(C) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RULE 144A
GLOBAL NOTE FOR BENEFICIAL INTERESTS IN A REGULATION S GLOBAL NOTE. A
beneficial interest in any Rule 144A Global Note may be exchanged by any
holder thereof for a beneficial interest in a Regulation S Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in a Regulation S Global Note, if (x) the exchange or
transfer complies with the requirements of Section 2.9(b)(ii) above and
(y) the holder of the beneficial interest in the Rule 144A Global Note
delivers to the Trustee and the Registrar a letter in the form of
Exhibit B with the certification set forth in paragraph 2 or Exhibit C
with the certification set forth in paragraph 2(b), as applicable,
completed.
11
(c) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL NOTES FOR
DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RULE 144A GLOBAL NOTES TO RESTRICTED
DEFINITIVE NOTES. If any holder of a beneficial interest in a Rule 144A
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note in the circumstances set forth in Section 2.9(a) hereof,
such Definitive Note shall be subject to all restrictions on transfer
contained therein and shall be issued, upon receipt by each of the Trustee
and the Registrar of Exhibit C with the certification set forth in
paragraph 2`(a) completed;
(ii) intentionally omitted.
(iii) BENEFICIAL INTERESTS IN RULE 144A GLOBAL NOTES OR REGULATION S
GLOBAL NOTES TO UNRESTRICTED DEFINITIVE NOTES. Subject to Section 2.9(a), a
holder of a beneficial interest in a Rule 144A Global Note or Regulation S
Global Note may exchange such beneficial interest for an Unrestricted
Definitive Note only if such exchange is in accordance with the Applicable
Procedures, a letter in the form of Exhibit B with the certification set
forth in paragraph 4(a)(ii) is completed, and, if the Trustee and the
Registrar so request or the Applicable Procedures so require, an Opinion of
Counsel to the effect that the exchange is permitted, and that upon transfer
the Notes will not be restricted, under the Securities Act, is furnished to
the Trustee and Registrar.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO UNRESTRICTED
DEFINITIVE NOTES. A holder of a beneficial interest in an Unrestricted
Global Note may, in the circumstances described in Section 2.9(a), exchange
such beneficial interest for an Unrestricted Definitive Note.
Any transfer pursuant to this Section 2.9(c) shall satisfy the requirements
of Section 2.9(b)(ii). In any such case, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.9(h) hereof, and the Company shall execute and the
Trustee, upon receipt of an Authentication Order in accordance with Section 2.5
of the Indenture, shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Restricted Definitive Note issued in exchange for a beneficial interest in a
Global Note pursuant to this Section 2.9(c) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS IN
GLOBAL NOTES.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN RULE 144A
GLOBAL NOTES. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Rule 144A Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Rule 144A Global Note,
then, upon receipt by each of the Trustee and the Registrar of a letter in
the form of Exhibit B with the certification set forth in paragraph 1 or
Exhibit C with the certification set forth in paragraph 2(b), as applicable,
completed, the Trustee shall cancel the Restricted Definitive Note and
increase or cause to be increased the aggregate principal amount of the
appropriate Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN UNRESTRICTED
GLOBAL NOTES. A Holder of a Restricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note only if
such transfer is effected pursuant to Rule 144 of the Securities Act, a
letter in the form of Exhibit B with the certification set forth in
paragraph 4(a) completed, and, if the Trustee and the Registrar so request
or the Applicable Procedures so require, an Opinion of Counsel to the effect
that the transfer is permitted, and that upon transfer the Notes will not be
restricted, under the Securities Act, is furnished to the Trustee and
Registrar.
12
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note at any time
if permitted by the Applicable Procedures and applicable law. Upon receipt
of a request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Notes.
(iv) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
REGULATION S GLOBAL NOTES. A beneficial interest in any Restricted
Definitive Note may be exchanged by any holder thereof who is a non-U.S.
Person for a beneficial interest in a Regulation S Global Note or
transferred to a Non U.S. Person who takes delivery thereof in the form of a
beneficial interest in a Regulation S Global Note, if (x) the holder of the
Restricted Definitive Note delivers to the Trustee and the Registrar a
letter in the form of Exhibit B with the certification set forth in
paragraph 2 or Exhibit C with the certification set forth in
paragraph 2(b), as applicable, completed and (y) if the Trustee and the
Registrar so request or if the Applicable Procedures so require, an Opinion
of Counsel in form reasonably acceptable to the Trustee and the Registrar is
furnished to the Trustee and the Registrar to the effect that such exchange
or transfer is in compliance with the Securities Act.
If any such exchange or transfer from a Definitive Note to a beneficial
interest in a Global Note is effected at a time when a Global Note of the
appropriate type has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 5 of the Indenture
the Trustee shall authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.9(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this
Section 2.9(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE NOTES. Any
restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then the
transferor must deliver a letter in the form of Exhibit B with
certification set forth in paragraph 1 completed,
(B) if the transfer will be made to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or 904 under the Securities, then
the transferor must deliver a letter in the form of Exhibit B with the
certification set forth in paragraph 2 completed; and
(C) if the transfer will be made pursuant to any other exemption from
the registration requirements of the Securities Act, then the transferor
must deliver a letter in the form of Exhibit B with the certification set
forth in paragraph 3 completed, as well as an Opinion of Counsel in form
and substance acceptable to the Trustee.
13
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal in a form
acceptable to the Trustee, that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) such transfer is effected pursuant to Rule 144 of the Securities
Act, a letter in the form of Exhibit B with the certification set forth
in paragraph 4(a) completed, and, if the Trustee and the Registrar so
request or the Applicable Procedures so require, an Opinion of Counsel to
the effect that the transfer is permitted, and that upon transfer the
Notes will not be restricted, under the Securities Act, is furnished to
the Trustee and Registrar.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note.
Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from
the Holder thereof.
(f) EXCHANGE OFFER; SHELF REGISTRATION STATEMENT
(i) Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.5 of the Indenture, the
Trustee shall authenticate (x) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Rule 144A Global Notes and Regulation S Global Notes
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (A) they are not broker-dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they are not
affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (y) Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer. Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Rule 144A Global Notes and/or Regulation S Global
Notes to be reduced accordingly, and the Company shall execute and the
Trustee shall, upon receipt of an Authentication Order in accordance with
Section 2.5 of the Indenture, authenticate and deliver to the Persons
designated by the Holders of the Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
(ii) Following the effectiveness of a Shelf Registration Statement the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.5, of the Indenture the Trustee shall authenticate
from time to time (x) one or more Unrestricted Global Notes, or, if there
shall be at the time one or more Unrestricted Global Notes outstanding and
such increase can be effected in accordance with Applicable Procedures, the
Trustee shall increase or cause to be increased the aggregate principal
amount thereof, in each case in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Global Notes sold by
Persons that certify as to the consummation of such sale under the Shelf
Registration Statement in a manner acceptable to the Trustee and the Company
and (y) Unrestricted Definitive Notes in an aggregate principal amount equal
to the principal amount of the Restricted Definitive Notes sold by Persons
that certify as to the
14
consummation of such sale under the Shelf Registration Statement in a manner
acceptable to the Trustee and the Company. Concurrently with the issuance of
such Unrestricted Global Notes, the Trustee shall cause the aggregate
principal amount of the applicable Rule 144A Global Notes and/or the
Regulation S Global Notes to be reduced accordingly, and the Company shall
execute and the Trustee shall, upon receipt of an Authentication Order in
accordance with Section 2.5 of the Indenture, authenticate and deliver to
the Persons designated by the Holders of Restricted Definitive Notes so sold
Unrestricted Definitive Notes in the appropriate principal amount.
(g) LEGENDS.
The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under the Indenture unless specifically stated otherwise
in the applicable provisions of the Indenture.
(i) PRIVATE PLACEMENT LEGEND. (A) Except as permitted by subparagraph
(B) below, each Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following
form:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER: (1) REPRESENTS THAT IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) NOT A U.S. PERSON
AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION;
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED
HEREBY EXCEPT TO (A) THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OR ANY OTHER APPLICABLE JURISDICTION; AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFER
IS PURSUANT TO CLAUSE (C) OR (D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Note which is (i) a Regulation S
Global Note (and any Note issued in exchange therefor or substitution
thereof after the Restricted Period), (ii) a Note which has been exchanged
or transferred pursuant to the Exchange Offer Registration Statement or the
Shelf Registration Statement, or (iii) a Note which has been transferred in
accordance with Rule 144, provided that in such case an Opinion of Counsel
is delivered which states that the Note does not have
15
to bear the Private Placement Legend in the cases where such opinion is
required under this Indenture, shall not bear the Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.9 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN CERTAIN CIRCUMSTANCES IN THE SUPPLEMENTAL INDENTURE
NO. 11, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(iii) REGULATION S GLOBAL NOTE LEGEND. The Regulation S Global Note
shall bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). DURING THE RESTRICTED
PERIOD, INTERESTS IN THIS NOTE MAY ONLY BE HELD THROUGH EUROCLEAR AND
CEDEL."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES.
At such time as all beneficial interests in a particular Global Note have
been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 of the Indenture. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary to reflect
such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary to reflect such increase.
SECTION 2.10 DEFEASANCE AND COVENANT DEFEASANCE. The provisions of Article
Nine of the Indenture shall apply to the Notes.
SECTION 2.11 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITY HOLDERS. In
addition to provisions specified in Section 7.2 of the Indenture, Section 7.2 is
supplemented to include the following as clause (c) at the end of the first
paragraph thereof and deleting the ", or" immediately prior to clause (b):
"or (c) change the currency denomination of Securities of any series,
including the currency denomination of any interest or other payments thereon,
without the consent of the Holders of each Security so affected."
SECTION 2.12 DEFINITION OF PERMITTED SUBSIDIARY INDEBTEDNESS. Clause (vi)
of the definition of "Permitted Subsidiary Indebtedness" in Section 1.1 of the
Indenture is amended by inserting after the phrase "Acquired Indebtedness that
by its terms is not" the following phrase:
", at the time it becomes Acquired Indebtedness or within 180 days
thereafter,"
16
SECTION 2.13 DEFINITION OF RESTRICTED SUBSIDIARY. The definition of
"Restricted Subsidiary" in Section 1.1 of the Indenture is amended in its
entirety to read as follows:
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company which owns or
leases a Principal Property.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 RATIFICATION. The Indenture, as supplemented and amended by
this Supplemental Indenture No. 11, is in all respects hereby adopted, ratified
and confirmed.
SECTION 3.2 COUNTERPARTS. This Supplemental Indenture No. 11 may be
executed in any number of counterparts, each of which when so executed shall be
deemed an original; and all such counterparts shall together constitute but one
and the same instrument.
SECTION 3.3 AMENDMENTS. This Supplemental Indenture No. 11 may be amended
by the Company and Tyco without the consent of any holder of the Notes in order
for the restrictions on transfer contained herein to be in compliance with
applicable law or the Applicable Procedures.
SECTION 3.4 APPLICABLE PROCEDURES. Notwithstanding anything else herein,
the Company shall not be required to permit a transfer to a global note that is
not permitted by the Applicable Procedures.
SECTION 3.5 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE NO. 11 AND EACH
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 11 to be duly executed as of the day and year first written above.
TYCO INTERNATIONAL GROUP S.A.
By:
-----------------------------------------
Name:
Title:
TYCO INTERNATIONAL LTD.
By:
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK, Trustee
By:
-----------------------------------------
Name:
Title:
17