EXHIBIT 1.1
BOSTON SCIENTIFIC CORPORATION
Debt Securities
UNDERWRITING AGREEMENT-BASIC PROVISIONS
June 6, 2006
To: The Underwriters named in the within-mentioned Terms Agreement
Ladies and Gentlemen:
Boston Scientific Corporation (the "Company") proposes to issue and sell
its Debt Securities having an aggregate initial public offering price or
purchase price of up to U.S. $1,200,000,000 or the equivalent thereof in foreign
currencies or currency units (the "Securities"). The Securities will be issued
under an indenture dated as of June 1, 2006 between the Company and JPMorgan
Chase Bank, National Association, as trustee (the "Trustee"), as supplemented
from time to time by supplemental indentures and/or modified from time to time
by resolutions of the Board of Directors of the Company as provided in Section
301 of such indenture (such indenture as so supplemented and/or modified being
hereinafter referred to as the "Indenture").
Whenever the Company determines to make an offering of Securities, it will
enter into an agreement substantially in the form of Exhibit A hereto (a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, the underwriter or underwriters named therein (each an
"Underwriter" and, collectively, the "Underwriters" or "you," which terms shall
include the underwriter or underwriters named therein whether acting alone in
the resale of the Securities or as members of an underwriting syndicate). The
Terms Agreement relating to each offering of Securities shall specify the
principal amount of Securities to be issued and their terms not otherwise
specified in the Indenture, the name or names of the Underwriters participating
in such offering (subject to substitution as provided in Section 10 hereof) and
the principal amount of Securities which each severally agrees to purchase, the
name or names of the Underwriters acting as manager or co-managers in connection
with such offering, if any (each a "Representative" and, collectively, the
"Representatives," which term shall include each Underwriter in the event that
there shall be no manager or co-managers), the price at which the Securities are
to be purchased by the Underwriters from the Company, the initial public
offering price, any delayed delivery arrangements and the time and place of
delivery and payment. Each offering of Securities will be governed by this
Agreement, as supplemented by the applicable Terms Agreement, and this Agreement
and such Terms Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of such Securities.
1. Representations and Warranties. The Company represents and warrants to
you that as of the date hereof, as of the Applicable Time and as of the Closing
Time (each as hereinafter defined) under such Terms Agreement (in each case, the
"Representation Date") as set forth below. Certain terms used in this Section 1
are defined in paragraph (C) hereof.
A. If the offering of the Securities is a Delayed Offering (as
specified in the relevant Terms Agreement), paragraph (i) below is
applicable and, if the offering of the Securities is a Non-Delayed
Offering (as so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "1933 Act"), and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (File No. 333-132626) on such
Form, including a Basic Prospectus, for registration under the 1933
Act
of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, and may have used a
Preliminary Prospectus, each of which has previously been furnished
to you. Such registration statement, as amended, including the
financial statements, exhibits and schedules thereto, at each time
of effectiveness under the 1933 Act, including any required
information deemed to be a part thereof at the time of effectiveness
pursuant to Rule 430B under the 1933 Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act"), is called the
"Registration Statement." Such Registration Statement, as so
amended, has become effective. The offering of the Securities is a
Delayed Offering and, although the Basic Prospectus may not include
all the information with respect to the Securities and the offering
thereof required by the 1933 Act and the rules thereunder to be
included in the Final Prospectus, the Basic Prospectus included all
such information required by the 1933 Act and the rules thereunder
to be included therein as of the Effective Date. The Company will
next file with the Commission pursuant to Rules 415 and 424(b)(2) or
(5) a Final Prospectus to the Basic Prospectus included in such
Registration Statement relating to the Securities and the offering
thereof. The Final Prospectus shall only contain information in the
Disclosure Package (as hereinafter defined) and the Final Term Sheet
(as hereinafter defined), except to the extent the Representatives
shall agree to any additional information.
(ii) The Company meets the requirements for the use of Form
S-3 under the 1933 Act and has filed with the Commission a
registration statement (File No. 333-132626) on such Form, including
a Basic Prospectus, for registration under the 1933 Act of the
offering and sale of the Securities. The Company may have filed one
or more amendments thereto, and including a Preliminary Prospectus,
each of which has previously been furnished to you. Such
registration statement, as amended, including the financial
statements, exhibits and schedules thereto, at each time of
effectiveness under the 1933 Act, including any required information
deemed to be a part thereof at the time of effectiveness pursuant to
Rule 430B under the 1933 Act or the 1934 Act, is called the
"Registration Statement." The Company will next file with the
Commission either (x) a Final Prospectus relating to the Securities
in accordance with Rules 430B and 424(b)(1) or (4), or (y) prior to
the effectiveness of such Registration Statement, an amendment to
such Registration Statement, including the form of Final Prospectus.
In the case of clause (x), the Company has included in such
Registration Statement, as amended at the Effective Date, all
information (other than Rule 430B Information) required by the 1933
Act and the rules thereunder to be included in the Final Prospectus
with respect to the Securities and the offering thereof. The Final
Prospectus shall only contain information in the Disclosure Package
(as hereinafter defined) and the Final Term Sheet (as hereinafter
defined), except to the extent the Representatives shall agree to
any additional information.
B. On the Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and at the Closing Time, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable
requirements of the 1933 Act, the 1934 Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; the Indenture complies in all
material respects with the requirements of the Trust Indenture Act and the
rules thereunder; and, the Final Prospectus, will not, on the date of any
filing pursuant to Rule 424(b) and at the Closing Time, include any untrue
statement of a material fact or
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omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations
or warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Final Prospectus (or any supplement
thereto); it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information
in Annex C to the Terms Agreement.
C. The term "Disclosure Package" shall mean (i) the Basic
Prospectus, including any preliminary prospectus supplement, as amended or
supplemented prior to the Applicable Time, (ii) the issuer free writing
prospectuses as defined in Rule 433 of the 1933 Act (each, an "Issuer Free
Writing Prospectus"), if any, identified in Annex A to the Terms
Agreement, (iii) any other free writing prospectus that the parties hereto
shall hereafter expressly agree in writing to treat as part of the
Disclosure Package and (iv) the Final Term Sheet (as defined herein),
which shall be identified in Annex B to the Terms Agreement. As of the
Applicable Time, the Disclosure Package did not, and at the Closing Time
will not, contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to the information contained in or omitted from the Disclosure Package
in reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Disclosure Package; it
being understood and agreed that the only such information furnished by or
on behalf of any Underwriter consists of the information in Annex C to the
Terms Agreement.
D. The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Applicable Time" shall
mean the date and time on the date of execution of the Terms Agreement (as
set forth in the Terms Agreement), which the Company has informed the
Underwriters as the time when sales of the Securities may be first made by
the Underwriters in the offering. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (A)(i) above contained in the
Registration Statement at the Effective Date including, in the case of a
Non-Delayed Offering, any Preliminary Prospectus. "Preliminary Prospectus"
shall mean any preliminary prospectus supplement to the Basic Prospectus
which describes the Securities and the offering thereof including the
Basic Prospectus and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the final prospectus supplement relating to
the Securities that is filed pursuant to Rule 424(b) after the Applicable
Time, together with the Basic Prospectus or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus relating to the Securities, including
the Basic Prospectus, included in the Registration Statement at the
Effective Date. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, the Disclosure Package or
the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the 1934 Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Prospectus, the Disclosure Package or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary
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Prospectus, the Disclosure Package or the Final Prospectus shall be deemed
to refer to and include the filing of any document under the 1934 Act
after the Effective Date or the issue date of the Basic Prospectus, any
Preliminary Prospectus, the Disclosure Package or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference; provided
that no such document filed after the Applicable Time shall be deemed
incorporated into the Disclosure Package. A "Non-Delayed Offering" shall
mean an offering of securities which is intended to commence promptly
after the effective date of the Registration Statement, with the result
that, pursuant to Rules 415 and 430B, all information (other than Rule
430B Information) with respect to the securities so offered must be
included in such Registration Statement at the effective date thereof. A
"Delayed Offering" shall mean an offering of securities pursuant to Rule
415 which does not commence promptly after the effective date of the
Registration Statement, with the result that only information required
pursuant to Rule 415 need be included in such Registration Statement at
the effective date thereof with respect to the securities so offered.
Whether an offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in the relevant Terms Agreement.
E. (i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) of the ▇▇▇▇ ▇▇▇) made any offer relating to
the Securities in reliance on the exemption of Rule 163 of the 1933 Act,
and (iv) at the Applicable Time (with such date being used as the
determination date for purposes of this clause (iv)), the Company was, is
and will be a "well-known seasoned issuer" as defined in Rule 405 of the
1933 Act. The Registration Statement is an "automatic shelf registration
statement," as defined in Rule 405 of the 1933 Act, that initially became
effective within three years of the date hereof, and the Company has not
received from the Commission any notice pursuant to Rule 401(g)(2) of the
1933 Act objecting to use of the automatic shelf registration statement
form and the Company has not otherwise ceased to be eligible to use the
automatic shelf registration statement form.
F. (i) At the earliest time after the filing of the Registration
Statement relating to the Securities that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2))
of the 1933 Act and (ii) as of the Applicable Time, the Company was not
and is not an Ineligible Issuer (as defined in Rule 405 of the 1933 Act),
without taking account of any determination by the Commission pursuant to
Rule 405 of the 1933 Act that it is not necessary that the Company be
considered an Ineligible Issuer.
G. Neither any Issuer Free Writing Prospectus nor the Final Term
Sheet, as of its issue date and at all subsequent times through the
completion of the offering of the Securities or until any earlier date
that the Company notified or notifies the Representatives as described in
the next sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained
in the Registration Statement, including any document incorporated by
reference therein that has not been superseded or modified. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement, the Company has promptly notified
or will promptly notify the Representatives and has promptly amended or
supplemented or will promptly amend or supplement, at its own expense,
such Issuer Free Writing Prospectus to eliminate or correct such conflict.
The foregoing two sentences do not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in conformity with
written
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information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such Annex C to the Terms
Agreement.
H. The Company has not distributed and will not distribute, prior to
the later of the Closing Time and the completion of the Underwriters'
distribution of the Securities, any offering material in connection with
the offering and sale of the Securities other than the Preliminary
Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus
reviewed and consented to by the Representatives and included in Annex A
to the Terms Agreement or the Registration Statement.
I. The consolidated financial statements included or incorporated by
reference in the Registration Statement, the Disclosure Package and the
Final Prospectus present fairly in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as at
the dates indicated and the results of their operations for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved, except as indicated therein; the supporting
schedules included or incorporated by reference in the Registration
Statement, if any, present fairly the information required to be stated
therein; and if pro forma financial statements are included or
incorporated by reference in the Registration Statement, the Disclosure
Package and the Final Prospectus, the assumptions used in preparing the
pro forma financial statements included therein provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those adjustments
to the corresponding historical financial statement amounts.
J. The documents incorporated by reference in the Final Prospectus
and the Disclosure Package, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations
thereunder, and, when read together and with the other information in the
Final Prospectus, the Disclosure Package and the Registration Statement,
at each Representation Date, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
K. Since the respective dates as of which information is given in
the Registration Statement, the Disclosure Package and the Final
Prospectus, except as may otherwise be stated therein or contemplated
thereby, (i) there has been no material adverse change in the condition
(financial or other), earnings, results of operations, business or
properties of the Company and its subsidiaries, considered as one
enterprise, whether or not arising from transactions in the ordinary
course of business and (ii) there have been no material transactions
entered into by the Company or any of its subsidiaries, other than those
in the ordinary course of business.
L. The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate its
properties and conduct its business as now being conducted and as
described in the Registration Statement, the Disclosure Package and the
Final Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not
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have a material adverse effect on the condition (financial or other),
earnings, results of operations, business or properties of the Company and
its subsidiaries, considered as one enterprise (a "Material Adverse
Effect").
M. Schedule I hereto sets forth each domestic and foreign subsidiary
of the Company which is a "significant subsidiary" within the meaning of
Rule 1-02 of Regulation S-X of the 1933 Act (each, a "Material Subsidiary"
and collectively, the "Material Subsidiaries"). Each Material Subsidiary
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement, the Disclosure Package and the Final Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to be in good standing or to so
qualify would not have a Material Adverse Effect, and, except as otherwise
disclosed in the Registration Statement, the Disclosure Package or the
Final Prospectus, all of the issued and outstanding capital stock of each
such Material Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company (except for
directors' qualifying shares and shares held by individuals for the
purpose of satisfying the legal requirements of the jurisdiction of
incorporation), directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
N. Neither the Company nor any of its subsidiaries is in violation of
its or any of their charters or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it or any of them is a party or by which it or any of
them or their properties may be bound where any such violation or default
would have a Material Adverse Effect; and the execution of this Agreement,
the execution and delivery of the Indenture and the applicable Terms
Agreement (including this Agreement as incorporated by reference therein),
the filing of the Registration Statement and the consummation of the
transactions contemplated herein and therein have been duly authorized by
all necessary corporate action and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject where any such conflict, breach, default,
creation or imposition would have a Material Adverse Effect, nor will such
action result in any violation of the provisions of the charter or by-laws
of the Company or, to the best of its knowledge, any law, administrative
regulation or administrative or court decree (except for such violations
of any law, administrative regulation or administrative or court decree
that would not have a Material Adverse Effect and would not have a
material adverse effect on the Company's ability to consummate the
transactions contemplated by this Agreement), and no consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under the
1933 Act or the rules and regulations promulgated thereunder (the
"Regulations"), the Trust Indenture Act or state securities or "blue sky"
laws.
O. The Company and its Material Subsidiaries possess adequate
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except such certificates,
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authorities or permits which are not material to such conduct of their
business, and neither the Company nor any of its Material Subsidiaries
has, to the knowledge of the Company, received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject of
any unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
P. Except as set forth in the Registration Statement or the
Disclosure Package and the Final Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries that might
reasonably be expected to result in a Material Adverse Effect, or that
might reasonably be expected to materially and adversely affect the
consummation of this Agreement and the applicable Terms Agreement.
Q. There are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the
Registration Statement (including the documents incorporated by reference
therein) by the 1933 Act or the Regulations which have not been so filed.
R. The Company has full right, power and authority to execute and
deliver this Agreement, the Securities and the Indenture (collectively,
the "Transaction Documents") and to perform its obligations hereunder and
thereunder.
S. The Indenture has been duly and validly authorized by the Company
and, when executed and delivered by the Company and, assuming due
execution and delivery by the Trustee, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and subject to the
applicability of general principles of equity, and has been duly qualified
under the Trust Indenture Act.
T. The Securities have been duly authorized for issuance and sale
pursuant to this Agreement and the applicable Terms Agreement (or will
have been so authorized prior to each issuance of Securities) and, when
executed and authenticated in accordance with the provisions of the
Indenture and the Resolutions of the Board of Directors of the Company or
a Pricing Committee thereof, and delivered to and paid for by the
purchasers thereof, will constitute legal, valid and binding obligations
of the Company enforceable in accordance with their terms (subject, as to
enforcement of remedies, to applicable bankruptcy, fraudulent transfer,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to principles relating to
the availability of equitable remedies to the extent that adequate
remedies at law may exist) and will be entitled to the benefits of the
Indenture, which will be substantially in the form heretofore delivered to
you; and the Securities and the Indenture will conform when executed and
delivered in all material respects to all statements relating thereto
contained in the Disclosure Package and the Final Prospectus.
U. Except as disclosed in the Registration Statement or the
Disclosure Package and the Final Prospectus, and except as where such
failure would not have a Material Adverse Effect, the Company and its
subsidiaries own, possess, license or have the right to use 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 and conduct of the businesses
now operated by them (the "patent and proprietary rights"); and except as
disclosed in the Registration Statement or the Disclosure
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Package and the Final Prospectus, the Company has no knowledge of any
infringement of or conflict with asserted rights of others with respect to
any patent and proprietary rights which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, and, except as disclosed in the Registration
Statement or the Disclosure Package and the Final Prospectus, the Company
has no knowledge that any person or entity is infringing or otherwise
violating any of the Company's patents, trademarks, servicemarks or
copyrights in a manner that could materially affect the use thereof by the
Company or any of its subsidiaries and which infringement would have a
Material Adverse Effect.
V. No labor disturbance by the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent which
might reasonably be expected to have a Material Adverse Effect.
W. The Company is not, and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Disclosure Package and the Final Prospectus, will not be
an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940,
as amended.
X. Except as described in the Registration Statement or the
Disclosure Package and the Final Prospectus and except as could not
reasonably be expected to have a Material Adverse Effect, to the knowledge
of the Company, the properties, assets and operations of each of the
Company and its subsidiaries are in compliance with all applicable
federal, state, local and foreign laws (including, without limitation,
common law), rules and regulations, orders, decrees, judgments, permits
and licenses relating to worker health and safety, and to the protection
and clean-up of the natural environment and to the protection or
preservation of natural resources, including, without limitation, those
relating to the processing, manufacturing, generation, handling, disposal,
transportation or release of hazardous materials (collectively,
"Environmental Laws"). With respect to such properties, assets and
operations, there are no events, conditions, circumstances, activities,
practices, incidents, actions or plans of the Company or any of its
subsidiaries of which the Company is aware that may interfere with or
prevent compliance or continued compliance with applicable Environmental
Laws or otherwise result in liability to the Company or any of its
subsidiaries pursuant to applicable Environmental Law in a manner that
could reasonably be expected to have a Material Adverse Affect. Except as
described in the Registration Statement or the Disclosure Package and the
Final Prospectus and except as could not reasonably be expected to have a
Material Adverse Effect, (A) to the Company's knowledge, none of the
Company or any of its subsidiaries is the subject of any federal, state,
local or foreign investigation pursuant to Environmental Laws, (B) none of
the Company or any of its subsidiaries has received any written notice or
claim pursuant to Environmental Laws and (C) there are no pending, or, to
the knowledge of the Company, threatened actions, suits or proceedings
against the Company, any of its subsidiaries or its properties, assets or
operations, in connection with any Environmental Laws. The term "hazardous
materials" shall mean those substances that are regulated by or pursuant
to any applicable Environmental Laws.
Y. This Agreement has been duly authorized, executed and delivered
by the Company.
Z. The Company's authorized equity capitalization as of December 31,
2005 is as set forth in the Disclosure Package and the Final Prospectus.
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AA. No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
BB. The Company is, to its knowledge, in compliance in all material
respects with the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
that are effective and the rules and regulations of the Commission that
have been adopted and are effective thereunder.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with an offering
of Securities shall be deemed a representation and warranty by the Company, as
to the matters covered thereby, to each Underwriter.
2. Purchase and Sale. The several commitments of the Underwriters to
purchase securities pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties herein contained and
shall be subject to the terms and conditions herein set forth.
A. Payment of the purchase price for, and delivery of, any
Securities to be purchased by the Underwriters shall be made at the place
set forth in the applicable Terms Agreement, or at such other place as
shall be agreed upon by the Representatives and the Company, on the third
business day (unless postponed in accordance with the provisions of
Section 10) following the date of the applicable Terms Agreement or such
other time as shall be agreed upon by the Representatives and the Company
(each such time and date being referred to as a "Closing Time"). Except as
indicated in the applicable Terms Agreement, payment shall be made to the
Company by wire transfer in same-day funds against delivery of the
Securities to be purchased by the Representatives for the respective
accounts of the Underwriters. Such Securities shall be in such
denominations and registered in such names as the Representatives may
request in writing at least two business days prior to the applicable
Closing Time or shall be in global or bearer form as permitted by the
Indenture. Such Securities, which may be in temporary form, will be made
available for examination and packaging by the Representatives on or
before the first business day prior to Closing Time.
B. If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto, with such changes therein
as the Company may approve.
C. As compensation for arranging Delayed Delivery Contracts, the
Company will pay to the Representatives at Closing Time, for the accounts
of the Underwriters, a fee equal to that percentage of the principal
amount of Securities for which Delayed Delivery Contracts are made at
Closing Time as is specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the
types which will be set forth in the applicable prospectus supplement
included in the Final Prospectus. If applicable, at Closing Time the
Company will enter into Delayed Delivery Contracts (for not less than the
minimum principal amount of Securities per Delayed Delivery Contract
specified in the applicable Terms Agreement) with all purchasers proposed
by the Underwriters and previously approved by the Company as provided
below, but not for an aggregate principal amount of Securities in excess
of that specified in the applicable Terms Agreement. The Underwriters will
not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
D. The Representatives are to submit to the Company, at least two
business days prior to Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter into
Delayed Delivery Contracts and the principal amount of Securities to be
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purchased by each of them, and the Company will advise the
Representatives, at least one business day prior to Closing Time, of the
names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the principal amount of
Securities to be covered by each such Delayed Delivery Contract.
E. The principal amount of Securities agreed to be purchased by the
respective Underwriters pursuant to the applicable Terms Agreement shall
be reduced by the principal amount of Securities covered by Delayed
Delivery Contracts, as to each Underwriter as set forth in a written
notice delivered by the Representatives to the Company; provided, however,
that the total principal amount of Securities to be purchased by all
Underwriters shall be the total amount of Securities covered by the
applicable Terms Agreement, less the principal amount of Securities
covered by Delayed Delivery Contracts.
F. The Company acknowledges and agrees that the purchase and sale of
the Securities pursuant to this Agreement and the Terms Agreement
hereunder, including the determination of the public offering price of the
Securities and any related discounts and commissions, is an arm's-length
commercial transaction between the Company, on the one hand, and the
several Underwriters, on the other hand.
3. Covenants of the Company. The Company covenants with each Underwriter
as follows:
A. The Company will use commercially reasonable efforts to cause the
Registration Statement, if not effective at the Applicable Time, and any
amendment thereto, to become effective. Immediately following the
execution of each Terms Agreement, the Company will prepare a final
prospectus supplement to be included in the Final Prospectus setting forth
the principal amount of Securities covered thereby and their terms not
otherwise specified in the Indenture, the names of the Underwriters and
the principal amount of Securities which each severally has agreed to
purchase, the names of the Representatives, the price at which the
Securities are to be purchased by the Underwriters from the Company, the
initial public offering price, the selling concession and reallowance, if
any, any delayed delivery arrangements, and such other information as the
Representatives and the Company reasonably deem necessary in connection
with the offering of the Securities. Following the completion of the
offering, the Company will promptly transmit copies of the Final
Prospectus to the Commission for filing pursuant to Rule 424 of the
Regulations.
B. If at any time when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities any event shall
occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or counsel for the Company, to
further amend or supplement the Disclosure Package or the Final Prospectus
in order that the Disclosure Package or the Final Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in
the light of circumstances existing at the time it is delivered to a
purchaser or if it shall be necessary, in the opinion of either such
counsel, at any such time to amend or supplement the Registration
Statement, the Disclosure Package or the Final Prospectus in order to
comply with the requirements of the 1933 Act or the Regulations, the
Company will promptly prepare and file with the Commission such amendment
or supplement, whether by filing documents pursuant to the 1934 Act or
otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and the Disclosure Package
comply with such requirements.
C. With respect to each sale of Securities, the Company will make
generally available to its security holders and to the Representatives as
soon as practicable earnings
-10-
statements of the Company that will satisfy the provisions of Section
11(a) of the 1933 Act and Rule 158 of the Regulations.
D. From the date of a Terms Agreement, and for so long as a
prospectus is required by the 1933 Act to be delivered in connection with
the sale of Securities covered by such Terms Agreement, the Company will
give the Representatives notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the Final
Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise,
and will furnish them with copies of any such proposed amendment or
supplement or other documents proposed to be filed a reasonable time in
advance of filing and will provide the Representatives the opportunity to
review and comment on such documents.
E. From the date of a Terms Agreement, and for so long as a
prospectus is required by the 1933 Act to be delivered in connection with
the sale of Securities covered by such Terms Agreement, the Company will
notify the Representatives immediately, and confirm the notice in writing,
(i) of the effectiveness of any amendment to the Registration Statement,
(ii) of the mailing or the delivery to the Commission for filing of any
supplement to the Final Prospectus or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference into the Final
Prospectus, (iii) of the receipt of any comments from the Commission with
respect to the Registration Statement, the Disclosure Package, the Final
Prospectus or any prospectus supplement related thereto, (iv) of any
request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Disclosure Package or the Final
Prospectus or for additional information relating to the offering of the
Securities, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose and (vi) the commencement
or threat of any Section 8A proceeding against the Company in connection
with the Securities. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof as soon as practicable.
F. The Company will deliver to the Representatives a conformed copy
of the Registration Statement, any documents incorporated by reference
therein (unless such documents are available on the "▇▇▇▇▇" website), and
each amendment thereto for each of the Underwriters. So long as delivery
of a prospectus by an Underwriter or dealer may be required by the 1933
Act, the Company will deliver to the Representatives as many copies of any
Preliminary Prospectus and the Final Prospectus and any supplement thereto
as the Representatives may reasonably request.
G. The Company will arrange for the qualification of the Securities
for offering and sale under the laws of such jurisdictions as the
Representatives, after consultation with the Company, may collectively
designate and will maintain such qualifications in effect so long as
required for the distribution of the Securities.
H. The Company, during the period when the Final Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13
or 14 of the 1934 Act.
I. Between the date of any Terms Agreement and the Closing Time the
Company will not, without the prior consent of the Representatives, offer
or sell, or enter into any agreement to sell, any debt securities of the
Company with a maturity of more than one year, including additional
Securities.
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J. The Company and the Representatives will prepare a final term
sheet containing only a description of the Securities, in a form agreed
between the Company and the Representatives, and the Company will file
such term sheet pursuant to Rule 433(d) under the 1933 Act within the time
required by such rule (such term sheet, the "Final Term Sheet").
K. The Company represents that it has not made, and agrees that,
unless it obtains the prior written consent of the Representatives, and
each Representative represents that it has not made, and agrees that,
unless it obtains the prior written consent of the Company, it will not
make, any offer relating to the Securities that would constitute an Issuer
Free Writing Prospectus or that would otherwise constitute a "free writing
prospectus" (as defined in Rule 405 of the ▇▇▇▇ ▇▇▇) required to be filed
with the Commission or retained by the Company under Rule 433 of the 1933
Act; provided that the prior written consent of the Company and the
Representatives hereto shall be deemed to have been given in respect of
the Free Writing Prospectuses included in Annex A to the Terms Agreement.
Any such free writing prospectus consented to by the Company and the
Representatives is hereinafter referred to as a "Permitted Free Writing
Prospectus". The Company agrees that (i) it has treated and will treat, as
the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus, and (ii) has complied and will comply, as the case may
be, with the requirements of Rules 164 and 433 of the 1933 Act applicable
to any Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping. The Company
consents to the use by any Underwriter of a free writing prospectus that
(a) is not an "issuer free writing prospectus" as defined in Rule 433, and
(b) contains only (i) information describing the preliminary terms of the
Securities or their offering, (ii) information permitted by Rule 134 under
the 1933 Act or (iii) information that describes the final terms of the
Securities or their offering and that is included in the Final Term Sheet
of the Company contemplated in Section 3(J).
L. The Company agrees to pay the required Commission filing fees
relating to the Securities within the time required by Rule 456(b)(1) of
the 1933 Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the 1933 Act.
4. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase Securities pursuant to any Terms Agreement are subject
to the accuracy of the representations and warranties on the part of the Company
herein contained as of the Applicable Time and Closing Time, to the accuracy of
the statements of the Company's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance by the Company of all of
its covenants and other obligations hereunder and to the following further
conditions:
A. If the Registration Statement has not become effective prior to
the Applicable Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 p.m. New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to 3:00
p.m. New York City time on such date or (ii) 12:00 Noon on the business
day following the day on which the public offering price was determined,
if such determination occurred after 3:00 p.m. New York City time on such
date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time period
required by Rule 424(b). The Company will (i) prepare the Rule 462(b)
Registration Statement, if necessary, in a form approved by the
Underwriters and file such Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) under the 1933 Act by 10:00 a.m.
New York City time on the business day immediately following the date of
determination of the public offering price of the Securities and, at the
time of filing, either pay
-12-
to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the 1933 Act.
B. At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings thereof or initiated or threatened by the
Commission, (ii) there shall not have been since the execution of such
Terms Agreement any decrease in the ratings of any of the Company's debt
securities by any "nationally recognized statistical rating organization"
(as defined for purpose of Rule 436(g) under the ▇▇▇▇ ▇▇▇) or any notice
given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of
the possible change and (iii) there shall not have come to the attention
of the Representatives any facts that would cause them reasonably to
believe that the Disclosure Package or the Final Prospectus, at the time
it was required to be delivered to a purchaser of the Securities,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
C. At the applicable Closing Time you shall have received:
1. The favorable opinion, dated as of the Closing Time, of
Shearman & Sterling LLP, counsel of the Company, substantially in
the form set forth in Exhibit C.
2. The favorable opinion, dated as of the Closing Time, of
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant General Counsel of the Company,
substantially in the form set forth in Exhibit D.
3. The favorable opinion or opinions, dated as of the
applicable Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for
the Underwriters, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Final
Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
D. At the applicable Closing Time there shall not have been, since
the Applicable Time or since the date and time of which information is
given in the Disclosure Package, any material adverse change in the
condition (financial or otherwise), earnings, results of operations,
business or properties of the Company and its subsidiaries considered as
one enterprise, whether or not arising from transactions in the ordinary
course of business, except as set forth or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto),
and the Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board, the Chief Executive
Officer, the President, the principal financial officer or the principal
accounting officer of the Company, dated as of such Closing Time, to the
effect that:
1. the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Time with the same effect as if made at the Closing Time
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Time;
-13-
2. no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
3. since the date of the most recent financial statements or
financial data included or incorporated by reference in the
Disclosure Package or the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change in
the condition (financial or other), earnings, results of operations,
business or properties of the Company and its subsidiaries,
considered as one enterprise, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
You shall have received from Ernst & Young LLP or other independent
certified public accountants acceptable to the Representatives a letter or
letters, dated the date of the applicable Terms Agreement and as of the
applicable Closing Time, in form and substance satisfactory to the
Representatives, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certified financial
information contained or incorporated by reference in the Disclosure
Package and the Final Prospectus; provided that such letters shall use a
"cut-off" date no more than three business days prior to the respective
dates of such letters.
E. At the applicable Closing Time counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any
of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be in all material respects satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms
Agreement may be terminated by the Representatives by notice to the
Company at any time at or prior to the applicable Closing Time, and such
termination shall be without liability of any party to any other party
except as provided in Section 5.
5. Payment of Expenses. The Company will pay all reasonable and
necessary expenses incident to the performance of its obligations
under this Agreement and each Terms Agreement, including (a) the
preparing, printing or other production and filing of the Registration
Statement (as originally filed) and all amendments thereto, (b) the
preparation, issuance and delivery of the Securities to the
Underwriters, (c) the reasonable fees and disbursements of the
Company's counsel and accountants and of the Trustee and its counsel,
(d) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(G), including filing fees
and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey, (e) the printing or other
production and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Preliminary Prospectus, any Issuer
Free Writing Prospectus and the Final Prospectus and any amendments or
supplements thereto, (f) the production and delivery to the
Underwriters of copies of the Indenture and any Blue Sky Survey
reasonably requested by the Representatives, (g) the fees of rating
agencies, (h) the fees and expenses, if any, incurred in connection
with the listing of the Securities on any securities exchange, and (i)
the fees, if any, of the National Association of Securities Dealers,
Inc. in connection with the review of the offering and including the
reasonable fees and expenses of counsel for the Underwriters in
connection therewith.
-14-
If a Terms Agreement is terminated by the Representatives in accordance
with the provisions of Section 4 or Sections 9(i) and 9(iv), or if the sale of
any Securities provided for herein or in any Terms Agreement is not consummated
because any condition to the obligations of the Underwriters set forth herein is
not satisfied by the Company or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any
provision hereof, the Company shall reimburse the Underwriters named in such
Terms Agreement for all of their reasonable out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters, that
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
6. Indemnification.
A. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to reasonable attorneys' fees and any and all expenses reasonably
and necessarily incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the 1933 Act, the 1934 Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities, as originally filed or any
amendment thereof, or any related Preliminary Prospectus, any Issuer Free
Writing Prospectus, the Disclosure Package or the Final Prospectus, or in any
supplement thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives expressly for use therein;
it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described in Annex C to the Terms
Agreement. This indemnity will be in addition to any liability which the Company
may otherwise have, including under this Agreement.
B. Each Underwriter severally, and not jointly, agrees to indemnify and
hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement, and
each other person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to reasonable attorneys' fees and any and all expenses reasonably
and necessarily incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation) to which they or any of
them may become subject under the 1933 Act, the 1934 Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Securities, as originally filed or any amendment thereof, or
any related Preliminary Prospectus, the Disclosure Package or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity
-15-
with written information furnished to the Company by or on behalf of such
Underwriter as set forth in Annex C to the Terms Agreement. It being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in the Terms Agreement. This indemnity will
be in addition to any liability which any Underwriter may otherwise have,
including under this Agreement.
C. Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 6). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel reasonably satisfactory to the indemnified parties to have
charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld. No indemnifying party shall,
without the written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnification could have been sought
hereunder by such indemnified party, unless such settlement (x) includes an
unconditional release of such indemnified party, in form and substance
reasonably satisfactory to such indemnified party, from all liability on claims
that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
D. If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6C effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
7. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 6 is for any reason held to be
unavailable from any indemnifying party or is insufficient to hold harmless a
party indemnified thereunder, then the indemnifying parties shall contribute to
the aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any
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claims asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contributions, including persons who control the Company within the meaning
of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, officers of the
Company who signed the Registration Statement and directors of the Company) as
incurred to which the Company and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the Securities
or, if such allocation is not permitted by applicable law or indemnification is
not available as a result of the indemnifying party not having received notice
as provided in Section 6 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company and the Underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Underwriters shall be deemed to be in the same proportion
as (x) the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Final Prospectus. The relative fault of the Company and of the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or 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 which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this Section
7, in no case shall any Underwriter be liable or responsible for any amount in
excess of the underwriting discount applicable to the securities purchased by
such Underwriter hereunder. Notwithstanding the provisions of this Section 7 and
the preceding sentence, no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act shall have the same rights to contribution as such Underwriter, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20(a) of the 1934 Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to
clauses (i) and (ii) of this Section 7. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7 or otherwise. The
obligation of the Underwriters to contribute pursuant to this Section 7 shall be
several in proportion to their respective underwriting obligations and not
joint.
8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties, indemnities and agreements contained in this
Agreement or any Term Agreement, or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect regardless of any termination of the applicable Terms Agreement
(including this Agreement as incorporated by reference therein), or any
investigation made by or on behalf of any Underwriter, controlling person or the
Company, and shall survive delivery of, and payment for, any Securities to the
Underwriters.
-17-
9. Termination. The Representatives may terminate the applicable Terms
Agreement (including this Agreement, as incorporated by reference therein),
immediately upon notice to the Company, at any time at or prior to the
applicable Closing Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the
Disclosure Package or the Final Prospectus, any material adverse change in the
condition, (financial or otherwise), earnings, results of operations, business
or properties of the Company and its subsidiaries considered as one enterprise,
whether or not from transactions arising in the ordinary course of business, or
(ii) if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis or change in general domestic or international economic,
political or financial conditions either within or outside of the United States
the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering, sale
or delivery of the Securities, or (iii) if trading in any Securities of the
Company has been suspended by the Commission or any securities exchange or in
the over-the-counter market, or if trading generally on the American Stock
Exchange, the New York Stock Exchange or in the over-the-counter market has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal or New York authorities
or (iv) there shall have been since the execution of such Terms Agreement any
decrease in the ratings of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purpose
of Rule 436(g) under the ▇▇▇▇ ▇▇▇) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
10. Default. If one or more of the Underwriters shall fail at the
applicable Closing Time to purchase the Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, during such 24 hours you shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then:
A. if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations under the
applicable Terms Agreement (including this Agreement as incorporated by
reference therein) bear to the underwriting obligations of all such
non-defaulting Underwriters, unless otherwise agreed, or
B. if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
pursuant to such Terms Agreement, such Terms Agreement (including this
Agreement as incorporated by reference therein) shall terminate, without
any liability on the part of any non-defaulting Underwriter or the
Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
the applicable Terms Agreement or this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section which does not result in termination of the applicable Terms
Agreement, either the Representatives or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order that any required changes in the Registration Statement or the Final
Prospectus or in any other documents or arrangements may be effected.
-18-
11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to you as provided in the applicable Terms Agreement. Notices to the
Company shall be directed to it at Boston Scientific Corporation, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of the Chief
Financial Officer with a copy to the Assistant General Counsel.
12. Parties. The applicable Terms Agreement and this Agreement shall inure
to the benefit of and be binding upon the Underwriters and the Company, and
their respective successors and the officers and directors and any controlling
persons referred to in Section 6 hereof. Nothing expressed or mentioned in the
applicable Terms Agreement or this Agreement is intended or shall be construed
to give any person, firm or corporation, other than the parties hereto or
thereto and their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of the applicable Terms Agreement or this Agreement or any provision
therein or herein contained. The applicable Terms Agreement and this Agreement
and all conditions and provisions thereof and hereof are intended to be for the
sole and exclusive benefit of the parties and their respective successors and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
13. Authority of the Representatives. Any action by the Underwriters
hereunder may be taken by the Representatives on behalf of the Underwriters, and
any such action taken by the Representatives shall be binding upon the
Underwriters.
14. Governing Law. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
15. Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
16. Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-19-
Very truly yours,
BOSTON SCIENTIFIC CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President, Treasurer and Investor
Relations
-20-
SCHEDULE I
MATERIAL SUBSIDIARIES
Guidant Corporation
Guidant Sales Corporation
Cardiac Pacemakers, Inc.
Advanced Bionics Corporation
Target Therapeutics, Inc.
Boston Scientific Scimed, Inc.
Guidant Luxembourg S. a ▇.▇.
Guidant Group B.V.
Boston Scientific Japan K.K.
Boston Scientific International B.V.
▇▇▇▇▇▇▇▇▇ (Europe) GmbH
Boston Scientific Limited
BSC International Holding Limited
EXHIBIT A
BOSTON SCIENTIFIC CORPORATION
Debt Securities
FORM OF TERMS AGREEMENT
Dated:_________, _____
To: Boston Scientific Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We understand that Boston Scientific Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell its Debt Securities having an
aggregate initial public offering price or purchase price of $____ (as described
in more detail below, the "Securities"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the underwriter(s) named below
(the "Underwriter(s)") hereby offer(s) to purchase such Securities.
The Securities to be purchased by the Underwriter(s), which are to be
issued under an Indenture dated as of June 1, 2006, between the Company and
JPMorgan Chase Bank, National Association, as Trustee, as supplemented from time
to time by supplemental indentures and/or modified from time to time by
resolutions of the Board of Directors of the Company or a Pricing Committee
thereof as provided in Section 301 of such Indenture, shall have the following
terms:
Principal Amount:
Date of maturity:
Interest rate:
Interest payment dates:
Public offering price:
Purchase price:
Redemption provisions:
Form of Securities:
Delayed Delivery Contracts:
Aggregate Underwriting %
Discount:
Purchase Price to be paid by
A-1
Underwriters:
Closing date and location:
Representatives:
Applicable Time: [ ][a/p]m Eastern Time on the date hereof.
All of the provisions contained in the document entitled "Boston
Scientific Corporation Debt Securities, Underwriting Agreement-Basic
Provisions," dated as of ____________ __, _____, a copy of which is attached
hereto as Annex A, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein. Terms defined in such document are
used herein as therein defined. Each Underwriter severally agrees, subject to
the terms and provisions of this Terms Agreement, including the terms and
provisions incorporated by reference herein, to purchase the principal amount of
Securities set forth opposite its name.
Name Principal Amount
Total
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
___________________________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By: ____________________________________
Name:
Title:
A-2
Accepted:
BOSTON SCIENTIFIC CORPORATION
By: _______________________
Name:
Title:
A-3
Annex A - Issuer Free Writing Prospectuses
A-4
Annex B - Final Term Sheet
A-5
Annex C - Information Furnished by the Representatives
A-6
EXHIBIT B
BOSTON SCIENTIFIC CORPORATION
Debt Securities
DELAYED DELIVERY CONTRACT
______________ ____,____
Boston Scientific Corporation
c/o [Name and address of Representatives]
Attention:
Ladies and Gentlemen:
The undersigned hereby agree to purchase from Boston Scientific
Corporation (the "Company"), and the Company agrees to sell to the undersigned
on __________ __, ____ (the "Delivery Date"), principal amount of the Company's
Debt Securities due ___________ __, ____ (the "Securities"), offered by the
Company's Basic Prospectus dated ____, as supplemented by its Final Prospectus
dated ___________ __, ____, receipt of which is hereby acknowledged, at a
purchase price of ____% of the principal amount thereof, plus accrued interest
from ____, to the Delivery Date, and on the further terms and conditions set
forth in the contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or by wire transfer in same day
funds, on the Delivery Date, upon delivery to the undersigned at the office of
[name and address of Representatives], of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before ___________ __, ____,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated ___________ __, ____ between the Company and the
Underwriters. The obligation of the undersigned to take delivery of and make
payment for Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof, prohibited under
the laws of any jurisdiction to which the undersigned is subject and which
govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase,
B-1
and that, upon acceptance hereof by the Company and mailing or delivery of a
copy as provided below, this contract will constitute a valid and binding
agreement of the undersigned in accordance with its terms.
[Name of Purchaser]
By: ______________________________
Name:
Title:
Accepted:
BOSTON SCIENTIFIC CORPORATION
By: _____________________________
Name:
Title:
B-2
EXHIBIT C
FORM OF OPINION OF SHEARMAN & STERLING LLP
(i) the statements in the Basic Prospectus under the caption "Description
of the Debt Securities" and the statements in the Disclosure Package and the
Final Prospectus under the caption "Description of the Notes", insofar as such
statements constitute summaries of documents referred to therein, fairly
summarize in all material respects the documents referred to therein;
(ii) the statements in the Disclosure Package and the Final Prospectus
under the caption "Material U.S. Federal Income Tax Consequences", insofar as
such statements constitute summaries of legal matters referred to therein,
fairly summarize in all material respects the legal matters referred to therein;
(iii) assuming that the Indenture has been duly authorized, executed and
delivered by the Company and the Trustee, the Indenture is a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally (including without limitation all laws relating to
fraudulent transfers), and except as enforcement thereof is subject to the
effect of general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law);
(iv) assuming that the Notes have been duly authorized and executed by the
Company, when the Notes have been authenticated by the Trustee in accordance
with the Indenture and delivered and paid for as provided by the Underwriting
Agreement, the Notes will be the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally (including without limitation all laws
relating to fraudulent transfers), and except as enforcement thereof is subject
to the effect of general principles of equity, including without limitation
concepts of materiality, reasonableness, good faith and fair dealing (regardless
of whether considered in a proceeding in equity or at law);
(v) the Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended;
(vi) to the best knowledge of such counsel, no authorization, approval or
other action by, and no notice to or filing with, any United States federal or
New York governmental authority or regulatory body is required for the
consummation of the transactions contemplated by the Underwriting Agreement,
except as have been obtained and are in full force and effect under the
Securities Act or as may be required under the securities or blue sky laws of
any jurisdiction in the United States in connection with the offer and sale of
the Notes;
(vii) the execution and delivery of the Underwriting Agreement, the Terms
Agreement, the Indenture or the Notes do not, and the performance by the Company
of its obligations thereunder will not, result in a violation of any Generally
Applicable Law ; and
(viii) the Company is not required to register as an investment company
under the Investment Company Act of 1940, as amended.
In addition, such opinion shall also contain a statement that such counsel
has participated in discussions concerning preparation of the Registration
Statement, the Disclosure Package and the Final
C-1
Prospectus with certain officers and employees of the Company, with its auditors
and with your representatives and counsel. In such counsel's opinion, each of
the Registration Statement, the Disclosure Package and the Final Prospectus
(other than the financial statements and other financial data contained therein
or omitted therefrom and the Trustee's Statement of Eligibility on Form T-1, as
to which it shall express no opinion) appears on its face to be appropriately
responsive in all material respects to the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder.
Such counsel shall also state that, subject to the limitations set forth
therein, on the basis of the information it gained in the course of performing
the services referred to therein, no facts came to its attention which gave it
reason to believe that (i) the Registration Statement (other than the financial
statements and other financial data contained therein or omitted therefrom and
the Trustee's Statement of Eligibility on Form T-1, as to which it has not been
requested to comment), as of the Effective Date or any amendment thereof made
prior to the date hereof as of the date of such amendment, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(ii) the Disclosure Package (as of the Applicable Time) and the Final Prospectus
(as of the date of the Final Prospectus or the date hereof) (other than the
financial statements and other financial data contained therein or omitted
therefrom, as to which we have not been requested to comment), 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 the light of
the circumstances under which they were made, not misleading.
C-2
EXHIBIT D
FORM OF OPINION OF ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware;
(ii) the Company has corporate power and authority to own its properties
and to conduct its business as now being conducted and as described in the
Disclosure Package and the Final Prospectus;
(iii) the Company is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not have a Material Adverse Effect;
(iv) each Material Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own its properties and
conduct its business as now being conducted and as described in the Disclosure
Package and the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not have a Material Adverse Effect;
(v) except as otherwise described in the Registration Statement or the
Disclosure Package and the Final Prospectus, all of the issued and outstanding
capital stock of the Company and each Material Subsidiary has been duly
authorized and validly issued, are fully paid and non-assessable and, to the
best of my knowledge, all of the issued and outstanding capital stock of each
Material Subsidiary are owned by the Company (except for directors' qualifying
shares and shares held by individuals for the purpose of satisfying the legal
requirements of the jurisdiction of incorporation), directly or through
subsidiaries, free and clear of any security interests, claims, liens or
encumbrances;
(vi) neither the execution and delivery of the Indenture, the issue and
sale of the Notes, nor the consummation of any other of the transactions
contemplated in the Underwriting Agreement nor the fulfillment of the terms of
the Underwriting Agreement will conflict with, result in a breach of, violate or
constitute a default under, the charter or by-laws of the Company or the terms
of any indenture or other material agreement or instrument known to me and to
which the Company or any of the Company's subsidiaries is a party or may be
bound (except for such conflicts, breaches, violations or defaults that would
not have a Material Adverse Effect), or any material judgment, decree, order
statute, rule or regulation known to me to be applicable to the Company or any
of the Company's subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the Company or
any of the Company's subsidiaries (except for such conflicts, breaches,
violations or defaults that would not have a Material Adverse Effect);
(vii) to my knowledge (A) there are no pending or threatened legal or
governmental proceedings required to be described in or incorporated into the
documents constituting Disclosure Package and the Final Prospectus which are not
described as required and (B) there is no franchise, contract or other document
of a character required to be described in or incorporated into the Registration
Statement or the Disclosure Package and the Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and to my knowledge,
the statements included or incorporated in the Disclosure Package and
D-1
the Final Prospectus describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such matters in all material
respects;
(viii) the descriptions in the Registration Statement, the Disclosure
Package and the Final Prospectus of statutes, contracts and other documents are
accurate and fairly present the information required to be shown in all material
respects;
(ix) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(x) the Indenture has been duly authorized, executed and delivered by the
Company; and
(xi) the Notes have been duly authorized and executed by the Company; and
As Assistant General Counsel, I have reviewed, and lawyers under my
supervision have participated in the preparation of, the Registration Statement,
the Disclosure Package and the Final Prospectus, and I and lawyers under my
supervision have participated in the preparation of, the documents incorporated
by reference therein. In examining the Registration Statement, the Disclosure
Package and the Final Prospectus, I have necessarily assumed the correctness and
completeness of the statements made or included therein by the Company. However,
in the course of performing my duties as Assistant General Counsel of the
Company, I and lawyers under my supervision have participated in conferences
with officers and representatives of and accountants for the Company with
respect to the matters contained in the Registration Statement, the Disclosure
Package and the Final Prospectus, and no facts have come to my attention which
would lead me to believe that either (i) the Registration Statement (except for
the financial statements and schedules and other financial or statistical data
included or incorporated by reference therein and the Statement of Eligibility
of the Trustee on Form T-1, as to which I express no opinion), at Effective
Date, or any amendment thereof made prior to the date hereof as of the date of
such amendment, contained an untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) the Disclosure Package (as of the
Applicable Time) or the Final Prospectus (as of its date and as of the date
hereof) (except for the financial statements and schedules and other financial
or statistical data included or incorporated by reference therein, as to which I
express no opinion), contained or contains an untrue statement of a material
fact or omitted or omits to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
D-2
BOSTON SCIENTIFIC CORPORATION
Debt Securities
TERMS AGREEMENT
Dated: June 6, 2006
To: Boston Scientific Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We understand that Boston Scientific Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell its Debt Securities (as described in
more detail below, the "Securities"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the underwriters named below
(the "Underwriters") hereby offer to purchase such Securities.
The Securities to be purchased by the Underwriters, which are to be issued
under an Indenture to be dated as of June 1, 2006, between the Company and
JPMorgan Chase Bank, National Association, as Trustee, as supplemented from time
to time by supplemental indentures and/or modified from time to time by
resolutions of the Board of Directors of the Company or a Pricing Committee
thereof as provided in Section 301 of such Indenture, shall have the following
terms:
Principal Amount: $600,000,000 of 6.000% notes due 2011
$600,000,000 of 6.400% notes due 2016
Dates of Maturity: June 15, 2011
June 15, 2016
Interest Rates: 6.000% for the 2011 notes
6.400% for the 2016 notes
Interest Payment Dates: June 15 and December 15, commencing December 15, 2006
Public Offering Price: 99.909% of principal amount of the 2011 notes
99.619% of principal amount of the 2016 notes
Purchase Price: 99.309% of principal amount of the 2011 notes
98.969% of principal amount of the 2016 notes
Redemption Provisions: As described in the Prospectus Supplement dated June 6, 2006
Form of Securities: Book-Entry
Delayed Delivery Contracts: N/A
Aggregate Underwriting 0.600% for the 2011 notes
Discount: 0.650% for the 2016 notes
-1-
Purchase Price to be Paid by $595,854,000 for the 2011 notes
Underwriters: $593,814,000 for the 2016 notes
Closing Date and Location: June 9, 2006
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Representatives: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Banc of America Securities LLC
Applicable Time: 5:10 pm Eastern Time on the date hereof.
All of the provisions contained in the document entitled "Boston
Scientific Corporation Debt Securities, Underwriting Agreement-Basic
Provisions," dated June 6, 2006 a copy of which is attached hereto as Annex A,
are herein incorporated by reference in their entirety and shall be deemed to be
a part of this Agreement to the same extent as if such provisions had been set
forth in full herein. Terms defined in such document are used herein as therein
defined. Each Underwriter severally agrees, subject to the terms and provisions
of this Terms Agreement, including the terms and provisions incorporated by
reference herein, to purchase the principal amount of Securities set forth
opposite its name.
Underwriters Principal Amount Principal Amount
of 6.000% notes of 6.4000% notes
due 2011 due 2016
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $185,625,000 $185,625,000
Banc of America Securities LLC $185,625,000 $185,625,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $ 72,000,000 $ 72,000,000
Deutsche Bank Securities Inc. $ 39,000,000 $ 39,000,000
Wachovia Capital Markets, LLC $ 39,000,000 $ 39,000,000
ABN AMRO Incorporated $ 11,250,000 $ 11,250,000
BNP Paribas Securities Corp. $ 11,250,000 $ 11,250,000
Daiwa Securities America Inc. $ 11,250,000 $ 11,250,000
Greenwich Capital Markets, Inc. $ 11,250,000 $ 11,250,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 11,250,000 $ 11,250,000
Lazard Capital Markets LLC $ 11,250,000 $ 11,250,000
UBS Securities LLC $ 11,250,000 $ 11,250,000
Total $600,000,000 $600,000,000
Any notice by the Company to the Underwriters pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
-2-
Banc of America Securities LLC at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Tel: ▇▇▇-▇▇▇-▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Tel: (▇▇▇) ▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
-3-
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters named in this Terms Agreement
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
-4-
Accepted:
BOSTON SCIENTIFIC CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President, Treasurer and
Investor Relations
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Annex A - Issuer Free Writing Prospectuses
The Final Term Sheet, attached to Annex B hereof.
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Annex B - Final Term Sheet
Attached.
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Annex C - Information Furnished by the Representatives
- the names of the Underwriters on the cover page of the Preliminary
Prospectus and the Final Prospectus
- the following information under the caption "Underwriting" in the
Preliminary Prospectus and the Final Prospectus:
- the names of the Underwriters and their respective allocations
- the first paragraph under the sub-heading "Commissions and
Discount"
- the third sentence under the sub-heading "New Issue of Notes"
- the first paragraph under the sub-heading "Price Stabilization
and Short Positions"
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