EXHIBIT
1.1
EXECUTION
COPY
BOSTON
SCIENTIFIC CORPORATION
Debt
Securities
UNDERWRITING
AGREEMENT-BASIC PROVISIONS
November
14, 2005
To:
The
Underwriters named in the within-mentioned Terms Agreement
Dear
Sirs:
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
date of the applicable Terms Agreement and as of the
Closing
Time (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.
333-119412) 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 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.
As
filed, such Final Prospectus shall include all required information with
respect
to the Securities and the offering thereof and, except to the extent the
Representatives shall agree to a modification, shall be in all substantive
respects in the form furnished to you for your review prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only
such specific additional information and other changes (beyond that contained
in
the Basic Prospectus and any Preliminary Prospectus) as the Company has advised
you, prior to the Execution Time, will be included or made therein.
(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. 333-119412)
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, including a Preliminary Prospectus, each of which has
previously been furnished to you. The Company will next file with the Commission
either (x) a Final Prospectus relating to the Securities in accordance with
Rules 430A 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 430A 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. As filed, such Final Prospectus or such
amendment and form of Final Prospectus shall contain all Rule 430A Information,
together with all other such required information, with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you for your review prior to
the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional
information
and other changes (beyond that contained in the Basic Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein.
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
Securities Exchange Act of 1934, as amended (the “l934 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; at the Closing Time, the Indenture will
comply 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 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).
C.
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. “Execution Time” shall mean the date and time that the
applicable Terms Agreement (including this Agreement as incorporated by
reference therein) is executed and delivered by the parties thereto. “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 Execution 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. “Registration
Statement” shall mean the registration statement referred to in paragraph (A)(i)
above, including incorporated documents, exhibits and financial statements,
as
amended at the Execution Time (or, if not effective at the Execution Time,
in
the form in which it shall become effective) and, in the event any
post-effective amendment thereto becomes effective prior to the Closing Time
(as
hereinafter defined), shall also mean such Registration Statement as so amended.
Such term shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. “Rule 415”, “Rule 424”, “Rule
430A” and “Regulation S-K” refer to
such
rules or regulation under the 1933 Act. “Rule 430A Information” means
information with respect to the Securities and the offering thereof permitted
to
be omitted from the Registration Statement when it becomes effective pursuant
to
Rule 430A. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus 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 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 Prospectus 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
of the Registration Statement or the issue date of the Basic Prospectus,
any
Preliminary Prospectus or the Final Prospectus, as the case may be, deemed
to be
incorporated therein by reference. 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 430A, all information (other than Rule 430A 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.
D.
The
consolidated financial statements included or incorporated by reference in
the
Registration Statement 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 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.
E.
The
documents incorporated by reference in the Final Prospectus, 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 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.
F.
Since
the
respective dates as of which information is given in the Registration Statement
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.
G.
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 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 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”).
H.
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 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
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.
I.
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 that would not have a Material Adverse Effect), 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.
J.
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, 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.
K.
Except
as set forth in the Registration Statement or 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.
L.
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.
M.
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.
N.
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.
O.
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 Final
Prospectus.
P.
Except
as
disclosed in the Registration Statement or 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 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 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.
Q.
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.
R.
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
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.
S.
Except
as
described in the Registration Statement or 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 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.
T.
This
Agreement has been duly authorized, executed and delivered by the
Company.
U.
The
Company's authorized equity capitalization as of September 30, 2005 is as
set
forth in the Final Prospectus.
V.
No
holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
W.
The
Company is, to its knowledge, in compliance in all material respects with
the
applicable provisions of the Sarbanes-Oxley 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 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 Execution 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 Final Prospectus
in order that 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 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 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
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 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 Final Prospectus or for additional information relating to the offering
of the Securities, and (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. 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 “EDGAR” 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.
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 Execution 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 Execution 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 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 1933 Act)
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
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 Lawrence J. Knopf, 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
Simpson Thacher & Bartlett 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 date of the
applicable Terms Agreement or since the date as of which information is given
in
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
arising from transactions in the ordinary course of business, except as set
forth or contemplated in 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;
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 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 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 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 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.
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 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 as such in the Terms Agreement and
provided
further
that
with respect to any such untrue statement in or omission from the Preliminary
Prospectus, the indemnity agreement contained in this paragraph (A) shall
not
inure to the benefit of any Underwriter to the extent that the sale to the
person asserting any such loss, claim, damage or liability was an initial
resale
by the Underwriter and any such loss, claim, damage or liability of or with
respect to the Underwriter results from the fact that both (i) a copy of
the
Final Prospectus (excluding any documents incorporated by reference therein)
was
not sent or given to such person at or prior to the written confirmation
of the
sale of such Securities to such person and (ii) the untrue statement in or
omission from such Preliminary Prospectus was corrected in the Final Prospectus
unless, in either case, such failure to deliver the Final Prospectus was
a
result of non-compliance by the Company with the provisions of Section 4
hereof.
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 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 with written information furnished to the Company by or
on
behalf of such 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 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 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, (i) no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls an 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.
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 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 1933 Act) 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.
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, One Boston Scientific Place,
Natick, Massachusetts 01760-1537, 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.
|
|
|
|
|
|
Very
truly yours,
|
|
|
|
|
|
BOSTON
SCIENTIFIC CORPORATION
|
|
|
|
|
|
By:
|
/s/
|
|
|
Name:
|
|
|
Title:
|
SCHEDULE
I
MATERIAL
SUBSIDIARIES
Boston
Scientific Scimed, Inc.
Boston
Scientific Japan K.K.
Boston
Scientific International B.V.
Schneider
(Europe) GmbH
Boston
Scientific Limited
Advanced
Bionics Corporation
BSC
International Holding Limited
EXHIBIT
A
BOSTON
SCIENTIFIC CORPORATION
Debt
Securities
FORM
OF
TERMS AGREEMENT
Dated:_________,
_____
|
To:
|
Boston Scientific
Corporation
|
|
|
One Boston Scientific
Place
|
|
|
Natick, Massachusetts
01760-1537
|
Dear
Sirs:
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 ________ between the Company and J.P. Morgan Trust
Company, 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 Underwriters:
|
|
|
Closing
date and location:
|
|
|
Representatives:
|
|
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:
___________________________.
The
Company acknowledges that the statements set forth in the last paragraph
of the
cover page and in the ________________ paragraph[s] under the caption
“Underwriting” in the Final Prospectus constitute the only information furnished
in writing by or on behalf of any Underwriter expressly for use in the
Registration Statement relating to the Securities as originally filed or
in any
amendment thereof, any related Preliminary Prospectus or the Final Prospectus
or
in any amendment thereof or supplement thereto, as the case may be.
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________________________________
|
|
|
|
|
Accepted:
|
|
|
|
|
|
BOSTON SCIENTIFIC CORPORATION
|
|
|
|
|
|
|
|
|
By________________________________
|
|
EXHIBIT
B
BOSTON
SCIENTIFIC CORPORATION
Debt
Securities
DELAYED
DELIVERY CONTRACT
___________
__, ______
Boston
Scientific Corporation
c/o
[Name
and address of Representatives]
Attention:
Dear
Sirs:
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,
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________________________________
|
|
|
|
|
Accepted:
|
|
|
|
|
|
BOSTON SCIENTIFIC CORPORATION
|
|
|
|
|
|
|
|
|
By________________________________
|
|
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 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 Final Prospectus under the caption “Material U.S. Federal
Income Tax Consequences”, insofar as such discussion represents legal
conclusions or statements of United States federal income tax law, subject
to
the limitations and conditions set forth therein, constitutes our opinion
as to
the material United States federal income tax consequences relevant to the
purchase, ownership and disposition of the Notes;
(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
enforcement is considered in a proceeding in equity or in law);
(iv)
assuming
that the Notes have been duly authorized and executed by the Company, when
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, 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
enforcement is considered in a proceeding in equity or in 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 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
and the Final 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 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 date on which the Report on Form 10-K of
the
Company for the year ended December 31, 2004 was filed or the date of the
Final
Prospectus, 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 Final Prospectus (other
than
the financial statements and other financial data contained therein or omitted
therefrom, as to which we have not been requested to comment), as of the
date of
the Final Prospectus or the date hereof, 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.
EXHIBIT
D
FORM
OF
OPINION OF LAWRENCE J. KNOPF
(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 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 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 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 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 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 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 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 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 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 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 the time it became effective, 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 Final Prospectus (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), as of its date and as of the
date
hereof, 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.
EXECUTION
COPY
BOSTON
SCIENTIFIC CORPORATION
Debt
Securities
TERMS
AGREEMENT
Dated:
November 14, 2005
|
To:
|
Boston Scientific
Corporation
|
|
|
One Boston Scientific
Place
|
|
|
Natick, Massachusetts
01760-1537
|
Dear
Sirs:
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 dated November 18, 2004 between the Company and J.P. Morgan Trust
Company, National Association, as Trustee and 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, shall have the following terms:
|
Principal
Amount:
|
$400,000,000
of 5.50% notes due 2015
$350,000,000
of 6.25% notes due 2035
|
|
Dates
of maturity:
|
November
15, 2015
November
15, 2035
|
|
Interest
rates:
|
5.50%
for the 2015 notes
6.25%
for the 2035 notes
|
|
Interest
payment dates:
|
May
15 and November 15, commencing May 15, 2006
|
|
Public
offering prices:
|
99.228%
of principal amount of the 2015 notes
99.410%
of principal amount of the 2035 notes
|
|
Purchase
prices:
|
98.578%
of principal amount of the 2015 notes
98.535%
of principal amount of the 2035 notes
|
|
Redemption
provisions:
|
As
described in the Prospectus Supplement dated
November
14, 2005
|
|
Form
of Securities:
|
Book
Entry
|
|
Delayed
Delivery Contracts:
|
N/A
|
|
Aggregate
Underwriting Discount:
|
0.650%
for the 2015 notes
0.875%
for the 2035 notes
|
|
Purchase
Price to be paid by Underwriters:
|
$394,312,000
for the 2015 notes
$344,872,500
for the 2035 notes
|
|
Closing
date and location:
|
November
17, 2005
Shearman
& Sterling LLP
599
Lexington Avenue
New
York, NY 10022
|
|
Representatives:
|
Deutsche
Bank Securities Inc.,
J.P.
Morgan Securities Inc. and UBS Securities LLC
|
All
of
the provisions contained in the document entitled “Boston Scientific Corporation
Debt Securities, Underwriting Agreement-Basic Provisions,” dated as of November
14, 2005, 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 agrees severally, 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
of
5.50% Notes due 2015
|
|
Principal
Amount
of
6.25% Notes due 2035
|
|
|
Deutsche
Bank Securities Inc.
|
|
$
|
80,000,000
|
|
$
|
70,000,000
|
|
|
J.P.
Morgan Securities Inc.
|
|
|
80,000,000
|
|
|
70,000,000
|
|
|
UBS
Securities LLC
|
|
|
80,000,000
|
|
|
70,000,000
|
|
|
Banc
of America Securities LLC
|
|
|
28,000,000
|
|
|
24,500,000
|
|
|
LaSalle
Financial Services, Inc.
|
|
|
28,000,000
|
|
|
24,500,000
|
|
|
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
|
|
|
32,000,000
|
|
|
28,000,000
|
|
|
Wachovia
Capital Markets, LLC
|
|
|
28,000,000
|
|
|
24,500,000
|
|
|
BBVA
Securities Inc.
|
|
|
4,000,000
|
|
|
3,500,000
|
|
|
BNP
Paribas Securities Corp.
|
|
|
12,000,000
|
|
|
10,500,000
|
|
|
Daiwa
Securities America Inc.
|
|
|
8,000,000
|
|
|
7,000,000
|
|
|
Greenwich
Capital Markets, Inc.
|
|
|
8,000,000
|
|
|
7,000,000
|
|
|
KeyBanc
Capital Markets, a Division of McDonald Investments Inc.
|
|
|
4,000,000
|
|
|
3,500,000
|
|
|
Lazard
Capital Markets LLC
|
|
|
8,000,000
|
|
|
7,000,000
|
|
|
Total
|
|
$
|
400,000,000
|
|
$
|
350,000,000
|
|
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: J.P.
Morgan
Securities Inc., 270 Park Avenue, New York, New York 10017, Attention:
Investment Grade Syndicate Desk, Tel.: (212) 834-4533, Fax.: (212)
834-6081.
The
Company acknowledges that the names of the Representatives on the cover page,
the names of the Underwriters and their respective allocations of Notes found
in
the first paragraph, the second sentence of the third paragraph, the fourth,
sixth, seventh, eighth and eleventh paragraphs under the caption “Underwriting”
in the Final Prospectus constitute the only information furnished in writing
by
or on behalf of any Underwriter expressly for use in the Registration Statement
relating to the Securities as originally filed or in any amendment thereof,
any
related Preliminary Prospectus or the Final Prospectus or in any amendment
thereof or supplement thereto, as the case may be.
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
DEUTSCHE BANK SECURITIES INC.
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
By
J.P.
MORGAN SECURITIES INC.
By_________________________________
Name:
Title:
By
UBS
SECURITIES LLC
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
Accepted:
BOSTON
SCIENTIFIC CORPORATION
By________________________________
Name:
Title: