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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________________________________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
_____________________________________________________________________
Date of Report (Date of earliest event reported): February 22, 2024
BOSTON SCIENTIFIC CORPORATION
(Exact name of registrant as specified in its charter)
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| Delaware | | 1-11083 | | 04-2695240 |
| (State or other jurisdiction of incorporation) | | (Commission File Number) | | (IRS Employer Identification No.) |
300 Boston Scientific Way, Marlborough, Massachusetts 01752-1234
(Address of principal executive offices) (Zip Code)
(508) 683-4000
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: | | | | | |
| ☐ | Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: | | | | | | | | | | | | | | |
| Title of each class | | Trading Symbol | | Name of each exchange on which registered |
| Common Stock, $0.01 par value per share | | BSX | | New York Stock Exchange |
| 0.625% Senior Notes due 2027 | | BSX27 | | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
On February 22, 2024, Boston Scientific Corporation (the “Company”), as guarantor, and American Medical Systems Europe B.V. (“AMS Europe”), its wholly owned finance subsidiary, as issuer, entered into an Underwriting Agreement, (as supplemented by the Terms Agreement, also dated February 22, 2024, the “Underwriting Agreement”), among the Company, AMS Europe and the several underwriters named in the Underwriting Agreement (the “Underwriters”), in connection with AMS Europe’s previously announced pricing of €2,000,000,000 aggregate principal amount of its senior notes. Pursuant to the Underwriting Agreement, the Underwriters agreed to purchase €750,000,000 in aggregate principal amount of 3.375% Senior Notes due 2029 and €1,250,000,000 in aggregate principal amount of 3.500% Senior Notes due 2032 (collectively, the “Notes”) under the shelf registration statement on Form S-3 of the Company and AMS Europe (File No. 333-262937). The Notes are fully and unconditionally guaranteed by the Company. The Underwriting Agreement contains customary representations, warranties and agreements of the Company and AMS Europe and customary conditions to closing, indemnification rights and obligations of the parties and termination provisions. The Underwriters and their affiliates have performed commercial banking, investment banking and advisory services for the Company from time to time for which they have received customary fees and expenses. The Underwriters and their affiliates may, from time to time, engage in transactions with and perform services for the Company and AMS Europe in the ordinary course of their business.
The Notes were issued pursuant to an indenture dated as of March 8, 2022 among AMS Europe, the Company and U.S. Bank Trust Company, National Association, as trustee (the “Indenture”). The Indenture contains covenants that restrict (i) the Company’s and AMS Europe’s ability, with certain exceptions, to merge or consolidate with another entity or transfer all or substantially all of its property and assets, and (ii) the Company’s and its Subsidiaries (as defined in the Indenture) ability, with certain exceptions, to incur liens. These covenants are subject to important exceptions and qualifications, as described in the Indenture. The Indenture also provides for customary events of default. Additional terms of the Notes are set forth in the forms of notes attached hereto as Exhibit 4.2 and 4.3.
On January 8, 2024, the Company entered into a definitive agreement and plan of merger (as such agreement may be amended or modified or any provision thereof waived, the “Merger Agreement”) to acquire Axonics, Inc. (“Axonics”) for cash (the “Axonics Acquisition”). If (i) the Axonics Acquisition is not consummated on or before the later of (x) January 8, 2025 (as such date may be extended in accordance with the Merger Agreement to no later than January 8, 2026) and (y) the date that is five business days after any later date to which the Company and Axonics may agree to extend the “Outside Date” in the Merger Agreement or (ii) AMS Europe notifies the trustee under the Indenture that the Company will not pursue consummation of the Axonics Acquisition, AMS Europe will be required to redeem each series of the notes at a special mandatory redemption price equal to 101% of the aggregate principal amount of such series of notes, plus accrued and unpaid interest, if any, to, but excluding, the date on which the notes will be redeemed.
The foregoing descriptions of the Underwriting Agreement, the Indenture and the Notes are summaries and are qualified in their entirety by reference to such documents, which are attached as Exhibits 1.1, 4.1, 4.2 and 4.3 to this Current Report on Form 8-K, respectively, and all of which are incorporated herein by reference.
ITEM 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OF A REGISTRANT
The information set forth under Item 1.01 is incorporated herein by reference.
ITEM 8.01 OTHER EVENTS
On February 27, 2024, AMS Europe completed the offering of the Notes. The net proceeds from the offering of the Notes, after deducting the underwriting discount and estimated offering expenses payable by us, were approximately €1.980 billion. The Company intends to use the net proceeds from the offering of the Notes, together with borrowings under its commercial paper program and cash on hand, to finance the purchase price of the Axonics Acquisition and to pay related fees and expenses and, to the extent that the net proceeds from the offering of the Notes are not used for such purposes, to fund the repayment at maturity of the Company’s 3.450% senior notes due March 2024 and to pay accrued and unpaid interest with respect to such notes, and for general corporate purposes.
In connection with the offering of the Notes, the Company is filing legal opinions regarding the validity of the Notes, attached as Exhibit 5.1 and Exhibit 5.2 to this Current Report on Form 8-K.
Additionally, on February 22, 2024 and February 27, 2024, the Company issued press releases pertaining to the events described in this Current Report on Form 8-K, copies of which are attached as Exhibit 99.1 and Exhibit 99.2 hereto and are hereby incorporated by reference herein.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits
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| Exhibit No. | Description |
| 1.1 | |
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| 4.1 | |
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| 4.2 | |
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| 4.3 | |
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| 5.1 | |
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| 5.2 | |
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| 23.1 | |
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| 23.2 | |
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| 99.1 | |
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| 99.2 | |
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| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| Date: | February 27, 2024 | BOSTON SCIENTIFIC CORPORATION |
| | | |
| | By: | /s/ Susan Thompson |
| | | Susan Thompson |
| | | Vice President, Chief Corporate Counsel and Assistant Secretary |
Exhibit 1.1
EXECUTION VERSION
AMERICAN MEDICAL SYSTEMS EUROPE B.V.,
as Issuer
Debt Securities
Fully and Unconditionally Guaranteed by
BOSTON SCIENTIFIC CORPORATION
UNDERWRITING AGREEMENT-BASIC PROVISIONS
February 22, 2024
To: The Underwriters named in the within-mentioned Terms Agreement
Ladies and Gentlemen:
American Medical Systems Europe B.V. (the “Issuer”), incorporated as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) in the Netherlands with its statutory seat in Amsterdam, the Netherlands, registered with the Dutch Chamber of Commerce under number 34185686 and an indirect wholly-owned subsidiary of Boston Scientific Corporation (the “Company”), proposes to issue and sell its debt securities having an aggregate principal amount of €2,000,000,000 (the “Securities”). The Securities will be issued under an indenture dated as of March 8, 2022 between the Issuer, the Company, as guarantor, and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented from time to time by supplemental indentures and/or modified from time to time by or pursuant to resolutions of the Board of Managing Directors of the Issuer and an Officer’s Certificate as provided in Section 301 of such indenture (such indenture as so supplemented and/or modified being hereinafter referred to as the “Indenture”). The Securities will be fully and unconditionally guaranteed on a senior basis by the Company (the “Guarantees”).
Whenever the Issuer 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 each Underwriter acting as a “Representative,” manager or co-manager in connection with such offering, if any, 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 underwriting agreement (the “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.
In connection with the issuance of the Securities, the Issuer and the Company will enter into an agency agreement (the “Agency Agreement”) to be dated as of February 27, 2024, among the Issuer, the Company and Elavon Financial Services DAC, as paying agent (the “Paying Agent”).
1.Representations and Warranties. The Company and the Issuer jointly and severally represent and warrant to you that as of the date hereof, as of the Applicable Time and as of the Closing Time (each as hereinafter defined) under such Terms Agreement (in each case, the “Representation Date”) as set forth below. Certain terms used in this Section 1 are defined in paragraphs (C) and (D) 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 the rules and regulations promulgated thereunder (the “Regulations”), and has filed with the Securities and Exchange Commission (the “Commission”) a registration statement (File No. 333-262937) on such Form, including a Basic Prospectus, for registration under the 1933 Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, and may have used a Preliminary Prospectus, each of which has previously been furnished to you. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness under the 1933 Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the 1933 Act or the Securities Exchange Act of 1934, as amended (the “1934 Act”), is called the “Registration Statement.” Such Registration Statement, as so amended, has become effective. The offering of the Securities is a Delayed Offering and, although the Basic Prospectus may not include all the information with respect to the Securities and the offering thereof required by the 1933 Act and the rules thereunder to be included in the Final Prospectus, the Basic Prospectus included all such information required by the 1933 Act and the rules thereunder to be included therein as of the Effective Date. The Company will next file with the Commission pursuant to Rules 415 and 424(b) a Final Prospectus relating to the Securities and the offering thereof. The Final Prospectus shall only contain information in the Disclosure Package (as hereinafter defined) and the Final Term Sheet (as hereinafter defined), except to the extent the Representatives shall agree to any additional information.
(ii)The Company meets the requirements for the use of Form S-3 under the 1933 Act and has filed with the Commission a registration statement (File No. 333-262937) on such Form, including a Basic Prospectus, for registration under the 1933 Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, and including a Preliminary Prospectus, each of which has previously been furnished to you. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness under the 1933 Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the 1933 Act or the 1934 Act, is called the “Registration Statement.” The Company will next file with the Commission either (x) a Final Prospectus relating to the Securities in accordance with Rules 430B and 424(b), or (y) prior to the effectiveness of such Registration Statement, an amendment to such Registration Statement, including the form of Final Prospectus. In the case of clause (x), the Company has included in such Registration Statement, as amended at the Effective Date, all information (other than Rule 430B Information) required by the 1933 Act and the rules thereunder to be included in the Final Prospectus with respect to the Securities and the offering thereof. The Final Prospectus shall only contain information in the Disclosure Package (as hereinafter defined) and the Final Term Sheet (as hereinafter defined), except to the extent the Representatives shall agree to any additional information.
B.On the Effective Date, the Registration Statement did, at the Applicable Time the Preliminary Prospectus did, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and at the Closing Time, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the 1933 Act, the 1934 Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the respective rules thereunder; on the Effective Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; the Indenture complies in all material respects with the requirements of the Trust Indenture Act and the rules thereunder; and
the Final Prospectus will not, on the date such Final Prospectus is first issued 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 and the Issuer make 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 and the Issuer by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto); it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information in Exhibit 1 to the Terms Agreement.
C.The term “Disclosure Package” shall mean (i) the Basic Prospectus, including any preliminary prospectus supplement, as amended or supplemented prior to the Applicable Time, (ii) the Issuer Free Writing Prospectuses (as defined below), if any, identified in Annex A to the Terms Agreement, (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package and (iv) the Final Term Sheet, which shall be identified in Annex B to the Terms Agreement. As of the Applicable Time, the Disclosure Package did not, and at the Closing Time will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Issuer make no representations or warranties as to the information contained in or omitted from the Disclosure Package in reliance upon and in conformity with information furnished in writing to the Company and the Issuer by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Disclosure Package; it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information in Exhibit 1 to the Terms Agreement.
D.The terms which follow, when used in this Agreement, shall have the meanings indicated. The term “the Effective Date” shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or become effective. “Applicable Time” shall mean the date and time on the date of execution of the Terms Agreement (as set forth in the Terms Agreement), which the Issuer has informed the Underwriters as the time when sales of the Securities may be first made by the Underwriters in the offering. “Basic Prospectus” shall mean the prospectus referred to in paragraph (A)(i) above contained in the Registration Statement at the Effective Date including, in the case of a Non-Delayed Offering, any Preliminary Prospectus. “Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Basic Prospectus which describes the Securities and the offering thereof including the Basic Prospectus and is used prior to filing of the Final Prospectus. “Final Prospectus” shall mean the final prospectus supplement relating to the Securities that is filed pursuant to Rule 424(b) after the Applicable Time, together with the Basic Prospectus or, if, in the case of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall mean the form of final prospectus relating to the Securities, including the Basic Prospectus, included in the Registration Statement at the Effective Date. Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Disclosure Package or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the 1934 Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Prospectus, the Disclosure Package or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Disclosure Package or the Final Prospectus shall be deemed to refer to and include the filing of any document under the 1934 Act after the Effective Date or the issue date of the Basic Prospectus, any Preliminary Prospectus, the Disclosure Package or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference; provided that no such document filed after the Applicable Time shall be deemed incorporated into the Disclosure Package. A “Non-Delayed Offering” shall mean an offering of
securities which is intended to commence promptly after the effective date of the Registration Statement, with the result that, pursuant to Rules 415 and 430B, all information (other than Rule 430B Information) with respect to the securities so offered must be included in such Registration Statement at the effective date thereof. A “Delayed Offering” shall mean an offering of securities pursuant to Rule 415 which does not commence promptly after the effective date of the Registration Statement, with the result that only information required pursuant to Rule 415 need be included in such Registration Statement at the effective date thereof with respect to the securities so offered. Whether an offering of the Securities is a Non-Delayed Offering or a Delayed Offering shall be set forth in the relevant Terms Agreement.
E.(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (iii) at the time the Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the 1933 Act, and (iv) at the Applicable Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was, is and will be a “well-known seasoned issuer” as defined in Rule 405 of the 1933 Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the 1933 Act, that initially became effective within three years of the date hereof, and the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration statement form. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act against the Company or the Issuer or related to the offering of the Securities has been initiated or, to the Company’s and the Issuer’s knowledge, threatened by the Commission.
F.(i) At the earliest time after the filing of the Registration Statement relating to the Securities that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the 1933 Act and (ii) as of the Applicable Time, the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of the 1933 Act), without taking account of any determination by the Commission pursuant to Rule 405 of the 1933 Act that it is not necessary that the Company be considered an Ineligible Issuer.
G.Each issuer free writing prospectus as defined in Rule 433 of the 1933 Act (each, an “Issuer Free Writing Prospectus”) (which shall include any electronic road show), as of its issue date and at all subsequent times through the completion of the offering of the Securities or until any earlier date that the Issuer notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, including any document incorporated by reference therein that has not been superseded or modified and, when taken together with the Preliminary Prospectus filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain 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. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Issuer has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company and the Issuer by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such Exhibit 1 to the Terms Agreement.
H.Neither the Company nor the Issuer has distributed and neither will distribute, prior to the later of the Closing Time and the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than the Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in Annex A to the Terms Agreement or the Registration Statement.
I.The consolidated financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus present fairly in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as at the dates indicated and the results of their operations for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved, except as indicated therein; the supporting schedules included or incorporated by reference in the Registration Statement, if any, present fairly the information required to be stated therein; if pro forma financial statements are included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus, the assumptions used in preparing the pro forma financial statements included therein provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts. No pro forma financial information is required to be filed with the Commission pursuant to any acquisitions or dispositions by the Company pursuant to Regulation S-X with respect to any acquisitions or dispositions by the Company since January 1, 2021.
J.The documents incorporated by reference in the Final Prospectus and the Disclosure Package, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations thereunder, and, when read together and with the other information in the Final Prospectus, the Disclosure Package and the Registration Statement, at each Representation Date, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
K.Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Final Prospectus, except as may otherwise be stated therein or contemplated thereby, (i) there has been no material adverse change in the condition (financial or other), earnings, results of operations, business or properties of the Company and its subsidiaries, considered as one enterprise, whether or not arising from transactions in the ordinary course of business and (ii) there have been no material transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business.
L.The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and conduct its business as now being conducted and as described in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition (financial or other), earnings, results of operations, business or properties of the Company and its subsidiaries, considered as one enterprise (a “Material Adverse Effect”).
M.The Issuer is a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and has been duly incorporated and is validly existing under Dutch law with corporate power and authority to own, lease and operate its properties and conduct its business as now being conducted and as described in the Registration Statement, the Disclosure Package and the Final Prospectus.
N.Schedule I hereto sets forth each domestic and foreign subsidiary of the Company which the Company deems to be a “significant subsidiary” (each, a “Material Subsidiary” and collectively, the “Material Subsidiaries”). Each Material Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Final Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be in good standing or to so qualify would not have a Material Adverse Effect, and, except as otherwise disclosed in the Registration Statement, the Disclosure Package or the Final Prospectus, all of the issued and outstanding capital stock of each such Material Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company (except for directors’ qualifying shares and shares held by individuals for the purpose of satisfying the legal requirements of the jurisdiction of incorporation), directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
O.None of the Issuer, the Company or any of its subsidiaries is in violation of its or any of their charters, articles of association or bylaws, 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 (including the issuance, authentication, sale and delivery of the Securities) 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 Issuer, the Company or any of its subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Issuer, 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 Issuer, 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, articles of association or bylaws of the Issuer, the Company or, to the best of the Issuer’s and the Company’s knowledge, any law, administrative regulation or administrative or court decree (except for such violations of any law, administrative regulation or administrative or court decree that would not have a Material Adverse Effect and would not have a material adverse effect on the Issuer’s or the Company’s ability to consummate the transactions contemplated by this Agreement), and no consent, approval, authorization or order of any court or governmental authority or agency is required for the consummation by the Issuer or the Company of the transactions contemplated by this Agreement, (including the issuance, authentication, sale and delivery of the Securities in accordance with the terms and conditions of the Indenture) except such as may be required under the 1933 Act or the Regulations, the Trust Indenture Act or state securities or “blue sky” laws.
P.The Issuer, the Company and the 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 none of the Issuer, the Company nor any of the Material Subsidiaries has, to the knowledge of the Issuer and 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.
Q.Except as set forth in the Registration Statement or the Disclosure Package and the Final Prospectus, there is no action, suit or proceeding before or by any court or governmental agency
or body, domestic or foreign, now pending or, to the knowledge of the Company and the Issuer, threatened against or affecting the Issuer, 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 offering of the Securities.
R.There are no contracts or documents of the Issuer, 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.
S.Each of the Issuer and the Company has full right, power and authority to execute and deliver this Agreement, the Securities, the Indenture and the Agency Agreement (collectively, the “Transaction Documents”), as applicable, and to perform its respective obligations hereunder and thereunder.
T.The Indenture has been duly and validly authorized, when executed and delivered by each of the Company and the Issuer and, assuming due execution and delivery by the Trustee, constitutes a valid and binding agreement of each of the Company and the Issuer, 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.
U.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 Managing Directors of the Issuer or Pricing Certificate pursuant thereto, and delivered to and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, fraudulent transfer, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to principles relating to the availability of equitable remedies to the extent that adequate remedies at law may exist) and will be entitled to the benefits of the Indenture, which will be substantially in the form heretofore delivered to you; and the Securities and the Indenture will conform when executed and delivered in all material respects to all statements relating thereto contained in the Disclosure Package and the Final Prospectus.
V.The Guarantees have been duly authorized for issuance pursuant to this Agreement and the applicable Terms Agreement (or will have been so authorized prior to each issuance of Securities) and, when the Indenture has been executed and delivered, and the Securities have been executed, delivered and authenticated in accordance with the provisions of the Indenture and the Resolutions of the Board of Directors of the Company or Pricing Certificate pursuant thereto 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.
W.The Agency Agreement has been duly and validly authorized, when executed and delivered by each of the Company and the Issuer and, assuming due execution and delivery by each of the other parties thereto, constitutes a valid and binding agreement of each of the Company and the Issuer, 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.
X.Except as disclosed in the Registration Statement or the Disclosure Package and the Final Prospectus, and except as where such failure would not have a Material Adverse Effect, the
Issuer, the Company and its subsidiaries own, possess, license or have the right to use the patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names and other rights or interests in items of intellectual property as are necessary for the operation and conduct of the businesses now operated by them (the “patent and proprietary rights”); and except as disclosed in the Registration Statement or the Disclosure Package and the Final Prospectus, the Issuer and the Company have no knowledge of any infringement of or conflict with asserted rights of others with respect to any patent and proprietary rights which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, and, except as disclosed in the Registration Statement or the Disclosure Package and the Final Prospectus, the Issuer and the Company have 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 Issuer, the Company or any of its subsidiaries and which infringement would have a Material Adverse Effect.
Y.No labor disturbance by the employees of the Issuer, the Company or any subsidiary exists or, to the knowledge of the Issuer and the Company, is imminent which might reasonably be expected to have a Material Adverse Effect.
Z.Neither the Issuer nor the Company is, and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will 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.
AA.Except as described in the Registration Statement or the Disclosure Package and the Final Prospectus and except as could not reasonably be expected to have a Material Adverse Effect, to the knowledge of the Issuer and the Company, the properties, assets and operations of each of the Issuer, 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 Issuer, the Company or any of its subsidiaries of which the Issuer or 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 Issuer, 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 Effect. Except as described in the Registration Statement or the Disclosure Package and the Final Prospectus and except as could not reasonably be expected to have a Material Adverse Effect, (A) to the Issuer’s and the Company’s knowledge, none of the Issuer, 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 Issuer, 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 Issuer and the Company, threatened actions, suits or proceedings against the Issuer, 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.
BB. This Agreement has been duly authorized, executed and delivered by the Issuer and the
Company.
CC. No holders of securities of the Issuer or the Company have rights to the registration of
such securities under the Registration Statement.
DD. The Company maintains “internal control over financial reporting” (as defined in Rule
13a-15(f) of the 1934 Act) that have been designed by, or under the supervision of, the
Company’s principal executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted
accounting principles.
EE. The Company has implemented and maintains in effect policies and procedures
reasonably designed to promote compliance by the Issuer, the Company, its subsidiaries and their
respective directors, officers and employees with Anti-Corruption Laws and Sanctions applicable
to the Issuer, the Company, its subsidiaries and their respective directors, officers and employees,
and the Issuer, the Company, its subsidiaries and, to the knowledge of the Issuer and the
Company, their respective officers and employees and directors are in compliance with Anti-
Corruption Laws and applicable Sanctions in all material respects. As of the Applicable Time and
at the Closing Time, none of (a) the Issuer, the Company, any subsidiary or, to the knowledge of
the Issuer and the Company, any of their respective directors or officers or (b) to the knowledge
of the Issuer and the Company, any of the Issuer’s, the Company’s or such subsidiary’s respective
employees is or will be a Sanctioned Person or organized or resident in a Sanctioned Country. No
use of proceeds of the offering of the Securities hereunder will be used by the Issuer, the
Company or any of its subsidiaries directly or to its knowledge indirectly to violate applicable
Anti-Corruption Laws or applicable Sanctions. The term “Anti-Corruption Laws” shall mean the
United States Foreign Corrupt Practices Act of 1977, as amended, and all similar laws, rules, and
regulations of any jurisdiction applicable to the Issuer, the Company or its subsidiaries
prohibiting bribery or corruption. “Sanctioned Country” shall mean a country or territory, which
is itself a subject or target of any Sanctions (as of the Applicable Time and at the Closing Time,
the non-government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine, the so-
called Donetsk People’s Republic, so-called Luhansk People’s Republic or any other Covered
Region of Ukraine identified pursuant to Executive Order 14065, the Crimea region of Ukraine,
Cuba, Iran, North Korea, and Syria). “Sanctioned Person” shall mean (a) any person listed in any
Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of
the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security
Council, the European Union or the United Kingdom, (b) any person operating, organized or
resident in a Sanctioned Country or (c) any person 50 percent or more owned or controlled by any
such person. “Sanctions” shall mean economic or financial sanctions or trade embargoes
imposed, administered or enforced from time to time by (a) the U.S. government, including those
administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or
the U.S. Department of State or (b) the United Nations Security Council, the European Union or
the United Kingdom.
FF. Except as otherwise disclosed in the Registration Statement or the Disclosure Package
and the Final Prospectus, there are no stamp or other issuance or transfer taxes or duties or other
similar fees or charges required to be paid by or on behalf of the Underwriters in the Netherlands
or any political subdivision or taxing authority thereof in connection with the execution and
delivery of the Transaction Documents or the offer or sale of the Securities.
GG. Except as otherwise disclosed in the Registration Statement or the Disclosure Package
and the Final Prospectus, all payments to be made by the Issuer or the Company to a recipient
that is not (deemed to be) affiliated with the Issuer within the meaning of the Dutch Withholding
Tax Act 2021 (Wet Bronbelasting 2021) on or by virtue of the execution delivery, performance or
enforcement of the Transaction Documents and all interest, principal, premium, if any, additional
amounts, if any, and other payments under the Transaction Documents, under the current laws
and regulations of the United States of America or the Netherlands, any political subdivision
thereof or any applicable taxing jurisdiction (each, a “Taxing Jurisdiction”), will not be subject to
withholding, duties, levies, deductions, charges or other taxes under the current laws and
regulations of the Taxing Jurisdiction and are otherwise payable free and clear of any other
withholding, duty, levy, deduction, charge or other tax in the Taxing Jurisdiction and without the
necessity of obtaining any governmental authorization in the Taxing Jurisdiction.
HH. The Issuer is subject to civil and commercial law in respect of its obligations under the
Transaction Documents, and none of the Issuer or any of its properties, assets or revenues is
subject to any right or immunity under Dutch, U.S. federal or New York state law from any legal
action, suit or proceeding, from the giving of any relief in any such legal action, suit or
proceeding, from set-off or counterclaim, from the jurisdiction of any Dutch, U.S. federal or New
York state court, from service of process, attachment upon or prior to judgment, or attachment in
aid of execution of judgment, or from execution of a judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of a judgment, in any such court
with respect to their respective obligations, liabilities or any other matter under or arising out of
or in connection herewith; and, to the extent that the Issuer, the Company or any of their
respective properties, assets or revenues may have or may hereafter become entitled to any such
right of immunity in any such court in which proceedings arising out of, or relating to the
transactions contemplated by the Transaction Documents, may at any time be commenced, the
Issuer and the Company have, pursuant to Section 21 of this Agreement, waived, and it will
waive, or will cause their respective subsidiaries to waive, such right to the extent permitted by
law.
II. There is no treaty regarding the recognition and enforcement of judicial decisions
between the U.S. and The Netherlands. Therefore, a final judgment against the Issuer rendered by
a court in the U.S. would not be automatically enforceable in The Netherlands. However, any
final judgment for a fixed or determined sum of money rendered by any U.S. federal or New
York state court located in the State of New York having jurisdiction under its own laws in
respect of any suit, action or proceeding against the Issuer or the Company based upon any of the
Transaction Documents would generally be upheld and be regarded by a court of The Netherlands
of competent jurisdiction as conclusive evidence when asked to render a judgement in accordance
with the judgment of which enforcement is sought, without substantive re-examination or re-
litigation of the merits of the subject matter, if that judgment has been rendered by a court of
competent jurisdiction, in accordance with the principles of due justice, its contents and
enforcement do not conflict with Dutch public policy (openbare orde) and that judgement has not
been rendered by default and/or in proceedings of a criminal, revenue or other public law nature.
JJ. The Issuer has the power to submit, and pursuant to Section 16 of this Agreement has
legally, validly, effectively and irrevocably submitted, to the exclusive jurisdiction of the U.S.
federal and New York state courts in the Borough of Manhattan in The City of New York in any
suit or proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby; and the Issuer has the power to designate, appoint and empower, and pursuant to Section
16 of this Agreement, has legally, validly and effectively designated, appointed and empowered
an agent for service of process in any suit or proceeding based on or arising under this Agreement
in any U.S. federal or New York state court located in The City of New York.
KK. It is not necessary under Dutch law that any holder of the Securities, or the Underwriters
should be licensed, qualified or entitled to carry on business in the Netherlands, (i) to enable any
of them to enforce their respective rights under the Transaction Documents or the consummation
of the transactions contemplated hereby or thereby or any other document to be delivered in
connection herewith or therewith or (ii) solely by reason of the execution, delivery or
performance of any such document, except that any party to the Transaction Documents
(including the Underwriters) that provides investment services in The Netherlands must be
licensed, exempt or otherwise authorized pursuant to the Dutch Financial Supervision Act to
provide the relevant services.
LL. This Agreement and the other Transaction Documents are in proper legal form under
Dutch law for the enforcement thereof in the Netherlands against the Issuer and the Company, as
applicable, and to ensure the legality, enforcement or admissibility into evidence of this
Agreement and any other Transaction Document in the Netherlands, it is not necessary for this
Agreement or any such Transaction Document, as the case may be, to be filed or recorded with
any court or other authority in the Netherlands or that any tax or fee be paid in the Netherlands on
or in respect of this Agreement or such Transaction Document, as the case may be, or any other
document, other than court costs (including, without limitation, filing fees).
Any certificate signed by any officer of the Issuer or 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 Issuer, on the second business day (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the applicable Terms Agreement or such other time as shall be agreed upon by the Representatives and the Issuer (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 Issuer 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.
B.Barclays Bank PLC (the “Settlement Bank”) acknowledges that the Securities will initially be credited to an account (the “Commissionaire Account”) for the benefit of the Settlement Bank, the terms of which include a third-party beneficiary clause, with the Issuer as the third-party beneficiary and provide that such Securities are to be delivered to others only against payment of the purchase price for the Securities into the Commissionaire Account on a delivery against payment basis.
C.The Settlement Bank acknowledges that (i) the Securities shall be held to the order of the Issuer as set out above and (ii) the purchase price for the Securities received in the Commissionaire Account will be held on behalf of the Issuer until such time as it is transferred to the Issuer’s order. The Settlement Bank undertakes that the purchase price for the Securities will be transferred to the Issuer’s order promptly following receipt of such purchase price in the Commissionaire Account.
D.The Issuer acknowledges and accepts the benefit of the third-party beneficiary clause in respect of the Commissionaire Account.
E.If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Securities from the Issuer pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto, with such changes therein as the Issuer may approve.
F.As compensation for arranging Delayed Delivery Contracts, the Issuer 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 Issuer 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.
G.The Representatives are to submit to the Issuer, at least two business days prior to Closing Time, the names of any institutional investors with which it is proposed that the Issuer
will enter into Delayed Delivery Contracts and the principal amount of Securities to be purchased by each of them, and the Issuer 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 Issuer and the principal amount of Securities to be covered by each such Delayed Delivery Contract.
H.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 Issuer; 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.
I.The Issuer and the Company acknowledge and agree 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 Issuer and the Company, on the one hand, and the several Underwriters, on the other hand.
3.Covenants of the Issuer and the Company. The Issuer and the Company jointly and severally covenant with each Underwriter as follows:
A.The Company will use commercially reasonable efforts to cause the Registration Statement, if not effective at the Applicable Time, and any amendment thereto, to become effective. Immediately following the execution of each Terms Agreement, the Issuer and 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 Issuer, 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 Issuer 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(b) 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 Issuer and the Company, to further amend or supplement the Disclosure Package or the Final Prospectus in order that the Disclosure Package or the Final Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in the light of circumstances existing at the time it is delivered to a purchaser or if it shall be necessary, in the opinion of either such counsel, at any such time to amend or supplement the Registration Statement, the Disclosure Package or the Final Prospectus in order to comply with the requirements of the 1933 Act or the Regulations, the Issuer and the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and the Disclosure Package comply with such requirements.
C.With respect to each sale of Securities, the Company will make generally available to its security holders and to the Representatives as soon as practicable earnings 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 documents amending or supplementing the Registration Statement, the Disclosure Package or the Final Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish them with copies of any such proposed amendment or supplement or other documents proposed to be filed a reasonable time in advance of filing and will provide the Representatives the opportunity to review and comment on such documents.
E.From the date of a Terms Agreement, and for so long as a prospectus is required by the 1933 Act to be delivered in connection with the sale of Securities covered by such Terms Agreement, the Company will notify the Representatives immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Final Prospectus or any document to be filed pursuant to the 1934 Act which will be incorporated by reference into the Final Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Disclosure Package, the Final Prospectus or any prospectus supplement related thereto, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Disclosure Package or the Final Prospectus or for additional information relating to the offering of the Securities, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose and (vi) the commencement or threat of any Section 8A proceeding against the Issuer or the Company in connection with the Securities. The Issuer and 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 Issuer and 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 Issuer and the Company, may collectively designate and will maintain such qualifications in effect so long as required for the distribution of the Securities, provided, however, that neither the Issuer nor the Company shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
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, neither the Issuer nor the Company will, without the prior consent of the Representatives, offer or sell, or enter into any agreement to sell, any debt securities of the Issuer or the Company with a maturity of more than one year, including additional Securities.
J.The Issuer, the Company and the Representatives will prepare a final term sheet containing only a description of the Securities, in a form agreed between the Issuer, the Company and the Representatives, and the Company will file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such rule (such term sheet, the “Final Term Sheet”).
K.Each of the Issuer and the Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, and each Representative represents that it has not made, and agrees that, unless it obtains the prior written consent of the Issuer, it will not make, any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the 1933 Act) required to be filed with the Commission or retained by the Company under Rule 433 of the 1933 Act; provided that the prior written consent of the Issuer, the Company and the Representatives hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Annex A to the Terms Agreement. Any such free writing prospectus consented to by the Issuer, the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the 1933 Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. Each of the Issuer and the Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 under the 1933 Act or (iii) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet contemplated in Section 3(J) hereof.
L.The Issuer and the Company agree to pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) of the 1933 Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act.
M.The Issuer and the Company agree with each of the Underwriters to make all payments under this Agreement without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever imposed by any taxing jurisdiction in which the Issuer or the Company is organized or resident for tax purposes or from or through which payment is made by or on behalf of the Issuer or the Company (or, in each case, any political subdivision thereof), unless the Issuer or the Company, as the case may be, is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer or the Company, as the case may be, shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction will equal the amounts that would have been received if no withholding or deduction has been made, except to the extent that such taxes, duties or charges (a) were imposed due to some connection of an Underwriter with the applicable taxing jurisdiction other than the mere entering into of this Agreement or receipt of payments or performance of services hereunder or (b) would not have been imposed but for the failure of an Underwriter to comply with any reasonable certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the applicable taxing jurisdiction of the Underwriter if such compliance is timely requested by the Issuer or the Company and required or imposed by law as a precondition to an exemption from, or reduction in, such taxes, duties or other charges. The Issuer and the Company, jointly and severally, further agree to indemnify and hold harmless the Underwriters against any documentary, stamp, transfer, registration or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Securities, and on the execution, delivery, performance and enforcement of the Transaction Documents.
N.The Issuer and the Company shall (i) use their reasonable best efforts to cause the Securities, subject to notice of issuance, to be admitted to the Official List of the Irish Stock Exchange plc trading as Euronext Dublin (the “Exchange”) and admitted to trading on the Global Exchange Market (“GEM”) of the Exchange; (ii) deliver to the Exchange copies of such documents, information and undertakings as may be required in connection with obtaining such listing; and (iii) use commercially reasonable efforts to maintain such listing for as long as any of the Securities are outstanding. If the Securities cease to be listed on the Exchange, the Issuer and the Company shall use their reasonable best efforts to list the Securities on another recognized stock exchange.
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 Issuer and the Company herein contained as of the Applicable Time and Closing Time, to the accuracy of the statements of the Issuer’s and the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by the Issuer and the Company of all of its covenants and other obligations hereunder and to the following further conditions:
A.If the Registration Statement has not become effective prior to the Applicable Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 p.m. New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 p.m., New York City time, on such date or (ii) 12:00 Noon on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 p.m., New York City time, on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b).
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 Issuer’s or the Company’s debt securities by any of Moody’s Investors Service, Inc., S&P Global Ratings, a division of S&P Global, Inc., or Fitch Ratings, Inc. or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change and (iii) there shall not have come to the attention of the Representatives any facts that would cause them reasonably to believe that the Disclosure Package or the Final Prospectus, at the time it was required to be delivered to a purchaser of the Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
C.At the applicable Closing Time you shall have received:
1.The favorable opinion, dated as of the Closing Time, of Shearman & Sterling LLP, counsel of the Issuer and the Company, substantially in the form set forth in Exhibit C.
2.The favorable opinion, dated as of the Closing Time, of Susan Thompson, Vice President, Chief Corporate Counsel and Assistant Secretary of the Company, substantially in the form set forth in Exhibit D.
3.The favorable opinion, dated as of the Closing Time, of Baker & McKenzie Amsterdam N.V., Dutch counsel of the Issuer, substantially in the form set forth in Exhibit E.
4.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 Applicable Time or since the date and time of which information is given in the Disclosure Package, any material adverse change in the condition (financial or otherwise), earnings, results of operations, business or properties of the Company and its subsidiaries considered as one enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), and the
Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, the Chief Executive Officer, the President, the principal financial officer or the principal accounting officer of the Company, dated as of such Closing Time, to the effect that:
1.the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Time with the same effect as if made at the Closing Time and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Time;
2.no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
3.since the date of the most recent financial statements or financial data included or incorporated by reference in the Disclosure Package or the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, results of operations, business or properties of the Company and its subsidiaries, considered as one enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
E.At the applicable Closing Time there shall not have been, since the Applicable Time or since the date and time of which information is given in the Disclosure Package, any material adverse change in the condition (financial or otherwise), earnings, results of operations, business or properties of the Issuer and its subsidiaries considered as one enterprise, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), and the Issuer shall have furnished to the Representatives a certificate of the Issuer, signed by the Chairman of the Board, the Chief Executive Officer, the President, the principal financial officer or the principal accounting officer of the Issuer, dated as of such Closing Time, to the effect that:
1.the representations and warranties of the Issuer 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 Issuer 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; and
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 Issuer’s knowledge, threatened.
F.You shall have received from Ernst & Young LLP or other independent registered public accountants acceptable to the Representatives a letter or letters, dated the date of the applicable Terms Agreement and as of the applicable Closing Time, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certified financial information contained or incorporated by reference in the Disclosure Package and the Final Prospectus; provided that such letters shall use a “cut-off” date no more than five business days prior to the respective dates of such letters.
G.The Securities shall be eligible for clearance and settlement through Euroclear Bank SA/NV and Clearstream Banking S.A.
H.The Representatives shall have received an executed copy of the Agency Agreement appointing Elavon Financial Services DAC as Paying Agent.
I.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 Issuer and 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 Issuer and 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 hereof.
5.Payment of Expenses. The Issuer and the Company, jointly and severally, 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) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of any Blue Sky Survey, (e) the printing or other production and delivery to the Underwriters in quantities as hereinabove stated of copies of the Preliminary Prospectus, any Issuer Free Writing Prospectus and the Final Prospectus and any amendments or supplements thereto, (f) the production and delivery to the Underwriters of copies of the Indenture and any Blue Sky Survey reasonably requested by the Representatives, (g) the fees of rating agencies, (h) the fees and expenses, if any, incurred in connection with the listing of the Securities on any securities exchange, and (i) (x) the fees and expenses, if any, incurred in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority, Inc. and (y) 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) hereof, 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 Issuer or the Company or because of any refusal, inability or failure on the part of the Issuer or the Company to perform any agreement herein or comply with any provision hereof, the Issuer and the Company shall, jointly and severally, 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 Issuer and Company jointly and severally agree 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 (i) 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 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; or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any related Preliminary Prospectus, any Issuer Free Writing Prospectus, the Disclosure Package or the Final Prospectus, or in any supplement thereto or amendment thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Issuer and 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 Issuer and the Company by or on behalf of any Underwriter through the Representatives expressly for use therein; it being understood and agreed that the only such information furnished by any Underwriter consists of the information described in Exhibit 1 to the Terms Agreement. This indemnity will be in addition to any liability which the Company may otherwise have, including under this Agreement.
B.Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless the Issuer and the Company, each of the directors of the Issuer and the Company, each of the officers of the Issuer and the Company who shall have signed the Registration Statement, and each other person, if any, who controls the Issuer or 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 (i) 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 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; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any related Preliminary Prospectus, any Issuer Free Writing Prospectus, the Disclosure Package or the Final Prospectus, or in any supplement thereto or amendment thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, 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 Issuer and the Company by or on behalf of such Underwriter as set forth in Exhibit 1 to the Terms Agreement. It being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in the Terms Agreement. This indemnity will be in addition to any liability which any Underwriter may otherwise have, including under this Agreement.
C.Promptly after receipt by an indemnified party under subsection (A) or (B) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify each party against whom indemnification is to be sought in writing of the commencement thereof (but the failure so to notify an indemnifying party shall not relieve it from any liability which it may have under this Section 6). In case any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party or parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless (i) the employment of such counsel shall have been authorized in writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel reasonably satisfactory to the indemnified parties to have charge of the defense of such action within a reasonable time after notice of commencement of the action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to one or all of the indemnifying parties (in which case the indemnifying parties shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the indemnifying parties. Anything in this subsection to the contrary notwithstanding, an indemnifying party shall not be liable for any settlement of any claim or action effected without its written consent; provided, however, that such consent was not unreasonably withheld. No indemnifying party shall, without the written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnification could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
D.If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(C) hereof 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 hereof 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 Issuer and the Company any contribution received by the Issuer and the Company from persons, other than the Underwriters, who may also be liable for contributions, including persons who control the Issuer or the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, officers of the Issuer and the Company who signed the Registration Statement and directors of the Issuer and the Company) as incurred to which the Issuer and 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 Issuer and the Company, on the one hand, and the Underwriters, on the other hand, 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 Issuer and the Company, on the one hand, and the Underwriters, on the other hand, 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 Issuer and the Company, on the one hand, and the Underwriters, on the other hand, 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 Issuer 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 Issuer and the Company, on the one hand, and of the Underwriters, on the other hand, 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 Issuer and the Company, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Issuer, the Company
and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this Section 7, in no case shall any Underwriter be liable or responsible for any amount in excess of the underwriting discount applicable to the securities purchased by such Underwriter hereunder. Notwithstanding the provisions of this Section 7 and the preceding sentence, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 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 Issuer or the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, each officer of the Issuer and the Company who shall have signed the Registration Statement and each director of the Issuer and the Company shall have the same rights to contribution as the Issuer and 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 Issuer or 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 Issuer 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 Issuer and the Company, at any time at or prior to the applicable Closing Time (i) if there has been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Disclosure Package or the Final Prospectus, any material adverse change in the condition (financial or otherwise), earnings, results of operations, business or properties of the Company and its subsidiaries considered as one enterprise, whether or not from transactions arising in the ordinary course of business, or (ii) if there has occurred any outbreak or escalation of hostilities or other calamity or crisis or change in general domestic or international economic, political or financial conditions either within or outside of the United States the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities, or (iii) if trading in any Securities of the Issuer or 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 Issuer’s or the Company’s debt securities by any of Moody’s Investors Service, Inc., S&P Global Ratings, a division of S&P Global, Inc., or Fitch Ratings, Inc. 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 Issuer.
No action taken pursuant to this Section 10 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 10 which does not result in termination of the applicable Terms Agreement, either the Representatives or the Issuer 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 Issuer and the Company shall be directed to Boston Scientific Corporation, 300 Boston Scientific Way, Marlborough, Massachusetts 01752-1234 (fax: 508-683-4350); Attention of Susan Thompson, Vice President, Chief Corporate Counsel and Assistant Secretary.
12.Parties. The applicable Terms Agreement and this Agreement shall inure to the benefit of and be binding upon the Underwriters, the Issuer 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 hereof 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.Trial by Jury. The Issuer and the Company (each on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
15.Governing Law. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16.Submission to Jurisdiction. The Issuer and the Company hereby submit to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Issuer and the Company waive any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Issuer and the Company agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Issuer and the Company, as applicable, and may be enforced in any court to the jurisdiction of which the Issuer and the Company, as applicable, is subject by a suit upon such judgment. The Issuer irrevocably appoints the Company (Attention: Corporate Secretary), located at the Company’s principal executive offices at 300 Boston Scientific Way, Marlborough, Massachusetts 01752-1234, as its authorized agent upon which process may be served in any such suit or proceeding, and agrees that service of process upon such authorized agent, and written notice of such service to the Issuer by the person serving the same to the address provided in this Section 16, shall be deemed in every respect effective service of process upon the Issuer in any such suit or proceeding. The Issuer hereby represents and warrants that such authorized agent has accepted such appointment and has agreed to act as such authorized agent for service of process. The Issuer further agrees to take any and all action as may be necessary to maintain such designation and appointment of such authorized agent in full force and effect for a period of seven years from the date of this Agreement.
17.Dutch Law Power of Attorney. If the Issuer is represented by (an) attorney(s) in connection with the execution of this Agreement or any agreement or document pursuant hereto, and the relevant power of attorney is expressed to be governed by Dutch law, such choice of law is hereby accepted by each of the parties hereto, in accordance with Article 14 of the Hague Convention on the Law Applicable to Agency of 14 March 1978.
18.Recognition of the U.S. Special Resolution Regimes.
A. In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
B. In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
C. For the purposes of this Section 18:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
1.a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
2.a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
3.a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (1) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (2) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
19.EU Bail-in Clause.
A.Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the Issuer, the Company and any BRRD Party, the Issuer and the Company acknowledge and accept that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(i) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any BRRD Party to the Issuer or the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(A) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(B) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant BRRD Party or another person, and the issue to or conferral on the Issuer or the Company of such shares, securities or obligations;
(C) the cancellation of the BRRD Liability;
(D) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(ii) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
B.For the purposes of this Section 19, the following definitions shall apply:
“Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time;
“Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation;
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended;
“BRRD Liability” means a liability in respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation may be exercised;
“BRRD Party” means any Underwriter which qualifies as an institution or entity referred to in paragraphs (a), (b), (c) or (d) of Article 1 of the BRRD, as implemented in the applicable Bail-in Legislation;
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from
time to time at http://www.lma.eu.com/pages.aspx?p=499 (or any such successor webpage); and
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the relevant BRRD Party.
20.UK Bail-in Clause.
A.Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the Issuer, the Company and any UK Bail-in Party, the Issuer and the Company acknowledge and accept that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts, and agrees to be bound by:
(i) the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of any UK Bail-in Party to the Company or the Issuer under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(A) the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;
(B) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the UK Bail-in Party or another person, and the issue to or conferral on the Company or the Issuer of such shares, securities or obligations;
(C) the cancellation of the UK Bail-in Liability;
(D) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;
(ii) the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority.
B. For the purposes of this Section 20, the following definitions shall apply:
“UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
“UK Bail-in Party” means any Underwriter subject to Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings);
“UK Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to
convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
21.Judgment Currency. The Issuer and the Company, jointly and severally, agree to indemnify each Underwriter, its directors, officers, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any loss incurred by such Underwriter as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “judgment currency”) other than U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the judgment currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such indemnified person is able to purchase U.S. dollars with the amount of the judgment currency actually received by the indemnified person. The foregoing indemnity shall constitute a separate and independent obligation of the Issuer and the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
22.Waiver of Immunity. To the extent that the Issuer or the Company has or hereafter may acquire any immunity (sovereign or otherwise) from jurisdiction of any court of (i) the Netherlands, or any political subdivision thereof, (ii) the United States or the State of New York, (iii) any jurisdiction in which it owns or leases property or assets or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, set-off or otherwise) with respect to themselves or their respective property and assets or this Agreement, the Issuer and the Company hereby irrevocably waive such immunity in respect of its obligations under this Agreement to the fullest extent permitted by applicable law.
23.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.
24.Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
25.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.
[Remainder of this page intentionally left blank]
Very truly yours,
AMERICAN MEDICAL SYSTEMS EUROPE B.V.
By: /s/ Jonathan R. Monson
Name: Jonathan R. Monson
Title: Authorized Signatory
BOSTON SCIENTIFIC CORPORATION
By: /s/ Robert J. Castagna
Name: Robert J. Castagna
Title: Vice President and Treasurer
SCHEDULE I
MATERIAL SUBSIDIARIES
1. Boston Scientific Scimed, Inc.
2. Boston Scientific Group plc
3. Guidant Delaware Holding Corporation
4. Boston Scientific Medical Device Limited
EXHIBIT A
AMERICAN MEDICAL SYSTEMS EUROPE B.V.,
as Issuer
Debt Securities
Fully and Unconditionally Guaranteed by
BOSTON SCIENTIFIC CORPORATION
TERMS AGREEMENT
Dated: February 22, 2024
To: American Medical Systems Europe B.V.
c/o Boston Scientific Corporation
300 Boston Scientific Way
Marlborough, Massachusetts 01752-1234
Boston Scientific Corporation
300 Boston Scientific Way
Marlborough, Massachusetts 01752-1234
Ladies and Gentlemen:
We understand that American Medical Systems Europe B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated in the Netherlands with its statutory seat in Amsterdam, the Netherlands, registered with the Dutch Chamber of Commerce under number 34185686 (the “Issuer”), proposes to issue and sell its Debt Securities having an aggregate principal amount of €2,000,000,000 (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 as of March 8, 2022, among the Issuer, Boston Scientific Corporation (the “Company”), as guarantor, and U.S. Bank Trust Company, National Association, as Trustee, as supplemented from time to time by supplemental indentures and/or modified from time to time by or pursuant to resolutions of the Board of Managing Directors of the Issuer and an Officer’s Certificate as provided in Section 301 of such Indenture, shall have the following terms:
| | | | | | | | |
| Principal amount: | €750,000,000 of 3.375% Senior Notes due 2029 | €1,250,000,000 of 3.500% Senior Notes due 2032 |
| Date of maturity: | March 8, 2029 | March 8, 2032 |
| Currency of denomination: | Euros (€) | Euros (€) |
| Currency of payment: | Euros (€) | Euros (€) |
| Interest rate: | 3.375% | 3.500% |
| | | | | | | | |
| Interest payment dates: | Annually on March 8, beginning March 8, 2025 | Annually on March 8, beginning March 8, 2025 |
| Public offering price: | 99.635% of principal amount | 99.696% of principal amount |
| Purchase price: | 99.335% of principal amount | 99.296% of principal amount |
| Reference to mid-swaps rate: | 2.805% | 2.744% |
| Spread to mid-swaps rate: | Plus 65 basis points | Plus 80 basis points |
| Benchmark bund: | DBR 0.250% due February 15, 2029 | DBR 0.000% due February 15, 2032 |
| Spread to benchmark bund: | Plus 106.7 basis points | Plus 120 basis points |
| Benchmark bund yield/price: | 2.388% / €90.09 | 2.344% / €83.14 |
| Redemption provisions: | As described in the Prospectus Supplement, dated February 22, 2024 | As described in the Prospectus Supplement, dated February 22, 2024 |
| Form and denomination: | Registered form represented by one or more global securities deposited with Clearstream Banking S.A. (“Clearstream”), or Euroclear Bank SA/NV (“Euroclear”), or their respective designated custodian, as the case may be, in denominations of €100,000 and integral multiples of €1,000 in excess thereof. | Registered form represented by one or more global securities deposited with Clearstream Banking S.A. (“Clearstream”), or Euroclear Bank SA/NV (“Euroclear”), or their respective designated custodian, as the case may be, in denominations of €100,000 and integral multiples of €1,000 in excess thereof. |
| Trustee: | U.S. Bank Trust Company, National Association | U.S. Bank Trust Company, National Association |
| Registrar and Paying Agent: | Elavon Financial Services DAC | Elavon Financial Services DAC |
| | | | | | | | |
| Expected Listing: | Application will be made to list the notes on the Official List of the Exchange and to admit the notes to trading on the Global Exchange Market thereof | Application will be made to list the notes on the Official List of the Exchange and to admit the notes to trading on the Global Exchange Market thereof |
| Underwriting discount: | 0.300% | 0.400% |
| Aggregate purchase price to be paid by Underwriters: | €745,012,500 | €1,241,200,000 |
| Closing date and location:1 | February 27, 2024 (T+3) Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017 | February 27, 2024 (T+3) Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017 |
| Representatives: | Barclays Bank PLC, Citigroup Global Markets Europe AG and Société Générale | Barclays Bank PLC, Citigroup Global Markets Europe AG and Société Générale |
| Applicable Time: | 3:50 p.m., New York time, on the date hereof | 3:50 p.m., New York time, on the date hereof |
| Delayed Delivery Contracts: | None | None |
The Settlement Bank (as defined below) acknowledges that the Securities represented by one or more global notes in registered, book-entry form will initially be credited to a Commissionaire Account for the benefit of the Settlement Lead Manager, the terms of which include a third-party beneficiary clause, with the Issuer as the third-party beneficiary and provide that such Securities are to be delivered to others only against payment of the purchase price for the Securities into the Commissionaire Account on a delivery against payment basis.
Each Underwriter represents and warrants that:
(a)it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (as amended, the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Issuer or the Company;
(b)it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom;
* It is expected that delivery of the notes will be made to purchasers on or about February 27, 2024, which is the third business day following the date of pricing of the notes (such settlement cycle referred to as T+3), through Clearstream and Euroclear. Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise.
(c)it has complied and will comply with all applicable provisions of the Dutch Financial Supervision Act with respect to anything done by it in relation to the Securities in, from or otherwise involving the Netherlands;
(d)it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the United Kingdom. For these purposes, a “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or (ii) a customer within the meaning of the provisions of the FSMA and any rules and regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; and
(e)it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the European Economic Area. For these purposes, a “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive (EU) 2016/97 (the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II.
Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the Product Governance Rules:
(a)each of Citigroup Global Markets Europe AG and Société Générale is a MiFID manufacturer (each a “Manufacturer” and together, the “Manufacturers”) acknowledges to each other Manufacturer that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the Final Term Sheet, the Final Prospectus and any announcements in connection with the Securities; and
(b)the Issuer, the Company and each of the Underwriters who is a MiFID distributor notes the application of the Product Governance Rules and acknowledges the target market and distribution channels identified as applying to the Securities by the Manufacturers and the related information set out in the Final Term Sheet, the Final Prospectus and any announcements in connection with the Securities.
Solely for the purposes of the requirements of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance Rules:
(a)each of Barclays Bank PLC and Société Générale is a UK MiFIR manufacturer (a “UK Manufacturer”) and acknowledges that it understands the responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the Final Term Sheet, the Final Prospectus and any announcements in connection with the Securities; and
(b) the Issuer, the Company and each of the Underwriters who is a UK MiFIR distributor notes the application of the UK MiFIR Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Securities by the UK
Manufacturers and the related information set out in the Final Term Sheet, the Final Prospectus and any announcements in connection with the Securities.
Except as provided below, all of the provisions contained in the document entitled Underwriting Agreement-Basic Provisions” (the “Underwriting Agreement”), dated as of February 22, 2024, 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. For purposes of the Underwriting Agreement and this Agreement, “Representative” means each of Barclays Bank PLC, Citigroup Global Markets Europe AG, Société Générale. All other terms defined in the Underwriting Agreements are used herein as therein defined. For the avoidance of doubt, the offering referred to in the Terms Agreement is Non-Delayed Offering, as such term is defined therein.
Each of Barclays Bank PLC, Citigroup Global Markets Europe AG, Société Générale, BofA Securities Europe SA, Wells Fargo Securities Europe S.A., BNP Paribas, Deutsche Bank Aktiengesellschaft, Goldman Sachs & Co. LLC, MUFG Securities (Europe) N.V., RBC Europe Limited, Scotiabank (Ireland) Designated Activity Company, Standard Chartered Bank and TD Global Finance unlimited company agrees that Section 1(EE) of the Underwriting Agreement is not being sought except to the extent that doing so would be permissible pursuant to European Union Council Regulation (EC) 2271/96, as amended.
The execution of this Agreement by all parties will constitute the Underwriters’ acceptance of the International Capital Markets Association Agreement among Managers Version 1/New York Law Schedule (the “ICMA Agreement”) subject to any amendment notified to the Underwriters in writing at any time prior to the execution of this Agreement. For the purposes of the ICMA Agreement, references to the “Managers” shall be deemed to refer to the Underwriters, references to the “Lead Manager” shall be deemed to refer to each of the Representatives, references to “Settlement Bank” shall be deemed to refer to Barclays Bank PLC and references to the “Stabilisation Coordinator” shall be deemed to refer to Barclays Bank PLC. Clause 3 of the ICMA Agreement shall be deemed to be deleted in its entirety and replaced with Section 10 of the Underwriting Agreement.
Each Underwriter named below 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 of 3.375% Senior Notes due 2029 | Principal Amount of 3.500% Senior Notes due 2032 |
| Barclays Bank PLC | € 112,500,000 | € 187,500,000 |
Citigroup Global Markets Europe AG | 112,500,000 | 187,500,000 |
| Société Générale | 112,500,000 | 187,500,000 |
| BofA Securities Europe SA | 56,250,000 | 93,750,000 |
Wells Fargo Securities Europe S.A. | 56,250,000 | 93,750,000 |
| BNP Paribas | 37,500,000 | 62,500,000 |
| Deutsche Bank Aktiengesellschaft | 37,500,000 | 62,500,000 |
| Goldman Sachs & Co. LLC | 37,500,000 | 62,500,000 |
MUFG Securities (Europe) N.V. | 37,500,000 | 62,500,000 |
| RBC Europe Limited | 37,500,000 | 62,500,000 |
| Scotiabank (Ireland) Designated Activity Company | 37,500,000 | 62,500,000 |
| Standard Chartered Bank | 37,500,000 | 62,500,000 |
| TD Global Finance unlimited company | 37,500,000 | 62,500,000 |
Total | € 750,000,000 | € 1,250,000,000 |
Any notice by the Issuer and 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:
Barclays Bank PLC, 1 Churchill Place, London E14 5HP; Tel: +44 (0) 20 7773 9098; Email: LeadManagedBondNotices@barclayscorp.com; Attention: Debt Syndicate.
Citigroup Global Markets Europe AG, Reuterweg 16, 60323 Frankfurt am Main, Germany; Attention: Syndicate Desk.
Société Générale, Immeuble Basalte, 17 Cours Valmy, CS 50318, 92972 Paris La Défense Cedex, France; Tel: +33 (0)1 42 13 32 16; Email: eur-glba-syn-cap@sgcib.com; Attention: Syndicate Desk GLBA/SYN/CAP/BND.
[signature pages follow]
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.
BARCLAYS BANK PLC
By: /s/ Lynda Fleming
Name: Lynda Fleming
Title: Authorised Signatory
CITIGROUP GLOBAL MARKETS EUROPE AG
By: /s/ Simi Alabi
Name: Simi Alabi
Title: Delegated Signatory
By: /s/ Felix Weiss
Name: Felix Weiss
Title: CGME Syndicate
SOCIÉTÉ GÉNÉRALE
By: /s/ Blaise Bourdy
Name: Blaise Bourdy
Title: Managing Director. DCM Corporate France
[Signature Page – Terms Agreement]
BOFA SECURITIES EUROPE SA
By: /s/ Pierre Brette
Name: Pierre Brette
Title: Managing Director
WELLS FARGO SECURITIES EUROPE S.A.
By: /s/ Olivier Gardella
Name: Olivier Gardella
Title: Managing Director, Deputy CEO
SCOTIABANK (IRELAND) DESIGNATED ACTIVITY COMPANY
By: /s/ Pauline Donohoe
Name: Pauline Donohoe
Title: MD, Head CM, SIDAC
By: /s/ Mark Allen
Name: Mark Allen
Title: Chief Financial Officer
RBC EUROPE LIMITED
By: /s/ Elaine S. Murray
Name: Elaine S. Murray
Title: Duly Authorised Signatory
TD GLOBAL FINANCE UNLIMITED COMPANY
By: /s/ Frances Watson
Name: Frances Watson
Title: Director, Transaction Advisory
[Signature Page – Terms Agreement]
BNP PARIBAS
By: /s/ Vikas Katyal
Name: Vikas Katyal
Title: Authorised Signatory
By: /s/ Luke Thorne
Name: Luke Thorne
Title: Authorised Signatory
GOLDMAN SACHS & CO. LLC
By: /s/ Joanna Sedlak
Name: Joanna Sedlak
Title: Vice President
MUFG SECURITIES (EUROPE) N.V.
By: /s/ Yuji Tokuhiro
Name: Yuji Tokuhiro
Title: Authorised Signatory
DEUTSCHE BANK AKTIENGESELLSCHAFT
By: /s/ Kevin Prior
Name: Kevin Prior
Title: Director
By: /s/ Shamit Saha
Name: Shamit Saha
Title: Director
STANDARD CHARTERED BANK
By: /s/ Patrick Dupont-Liot
Name: Patrick Dupont-Liot
Title: Managing Director, Debt Capital Markets
[Signature Page – Terms Agreement]
[Signature Page – Terms Agreement]
Accepted:
AMERICAN MEDICAL SYSTEMS EUROPE B.V.
By: /s/ Jonathan R. Monson
Name: Jonathan R. Monson
Title: Authorized Signatory
BOSTON SCIENTIFIC CORPORATION
By: /s/ Robert J. Castagna
Name: Robert J. Castagna
Title: Vice President and Treasurer
[Signature Page – Terms Agreement]
ISSUER FREE WRITING PROSPECTUSES
The Final Term Sheet, in substantially the form of Annex B hereto.
FORM OF FINAL TERM SHEET
American Medical Systems Europe B.V.
€2,000,000,000
Senior Notes Offering
Terms and Conditions – 5-Year Fixed Rate Notes
| | | | | |
Issuer | American Medical Systems Europe B.V. (the “Issuer”) |
Guarantor | Boston Scientific Corporation (“Boston Scientific”) |
Note Type | Senior Notes |
Form of Offering | SEC Registered |
Ratings1 |
|
Principal Amount | €750,000,000 |
Trade Date | February 22, 2024 |
| Settlement Date (T+3) | February 27, 2024 |
| |
Maturity Date | March 8, 2029 |
Coupon | 3.375% per annum |
Yield to Maturity | 3.455% per annum |
Price to Public | 99.635% |
Reference to Mid-Swaps Rate | 2.805% |
Spread to Mid-Swaps Rate | Plus 65 basis points |
Benchmark Bund | DBR 0.250% due February 15, 2029 |
Spread to Benchmark Bund | Plus 106.7 basis points |
Benchmark Bund Yield/Price | 2.388% / €90.09 |
Interest Payment Dates | Annually on March 8, beginning March 8, 2025 |
Par Call Date | On or after December 8, 2028 (the date that is three months prior to the maturity date) |
Make-whole Call | Plus 20 basis points |
| | | | | |
Special Mandatory Redemption | If (i) the Axonics Acquisition (as defined in the preliminary prospectus supplement related to the notes) is not consummated on or before the later of (x) January 8, 2025 (as such date may be extended in accordance with the Merger Agreement (as defined in the preliminary prospectus supplement related to the notes) to no later than January 8, 2026) and (y) the date that is five business days after any later date to which Boston Scientific and Axonics, Inc. may agree to extend the “Outside Date” in the Merger Agreement or (ii) the Issuer notifies the trustee under the indenture that Boston Scientific will not pursue consummation of the Axonics Acquisition, the Issuer will be required to redeem the notes at a special mandatory redemption price equal to 101% of the aggregate principal amount of the notes, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (as defined in the preliminary prospectus supplement related to the notes). |
Stabilization | Stabilization/FCA |
Day Count Basis | ACTUAL/ACTUAL (ICMA) |
Minimum Denominations | €100,000 and integral multiples of €1,000 in excess thereof |
Common Code / ISIN | Common Code: 277226642 ISIN: XS2772266420 |
Clearing and Settlement | Clearstream Banking S.A. / Euroclear Bank SA/NV |
Trustee | U.S. Bank Trust Company, National Association |
Registrar and Paying Agent | Elavon Financial Services DAC |
Expected Listing | Application will be made to list the notes on the Official List of the Irish Stock Exchange plc for trading as Euronext Dublin and to admit the notes to trading on the Global Exchange Market thereof |
Joint Bookrunners | Barclays Bank PLC Citigroup Global Markets Europe AG Société Générale BofA Securities Europe SA Wells Fargo Securities Europe S.A. BNP Paribas Deutsche Bank Aktiengesellschaft Goldman Sachs & Co. LLC MUFG Securities (Europe) N.V. RBC Europe Limited Scotiabank (Ireland) Designated Activity Company Standard Chartered Bank TD Global Finance unlimited company |
Terms and Conditions – 8-Year Fixed Rate Notes
| | | | | |
Issuer | American Medical Systems Europe B.V. (the “Issuer”) |
Guarantor | Boston Scientific Corporation (“Boston Scientific”) |
Note Type | Senior Notes |
Form of Offering | SEC Registered |
Ratings1 |
|
| | | | | |
Principal Amount | €1,250,000,000 |
Trade Date | February 22, 2024 |
| Settlement Date (T+3) | February 27, 2024 |
| |
Maturity Date | March 8, 2032 |
Coupon | 3.500% per annum |
Yield to Maturity | 3.544% per annum |
Price to Public | 99.696% |
Reference to Mid-Swaps Rate | 2.744% |
Spread to Mid-Swaps Rate | Plus 80 basis points |
Benchmark Bund | DBR 0.000% due February 15, 2032 |
Spread to Benchmark Bund | Plus 120 basis points |
Benchmark Bund Yield/Price | 2.344% / €83.14 |
Interest Payment Dates | Annually on March 8, beginning March 8, 2025 |
Par Call Date | On or after December 8, 2031 (the date that is three months prior to the maturity date) |
Make-whole Call | Plus 20 basis points |
Special Mandatory Redemption | If (i) the Axonics Acquisition (as defined in the preliminary prospectus supplement related to the notes) is not consummated on or before the later of (x) January 8, 2025 (as such date may be extended in accordance with the Merger Agreement (as defined in the preliminary prospectus supplement related to the notes) to no later than January 8, 2026) and (y) the date that is five business days after any later date to which Boston Scientific and Axonics, Inc. may agree to extend the “Outside Date” in the Merger Agreement or (ii) the Issuer notifies the trustee under the indenture that Boston Scientific will not pursue consummation of the Axonics Acquisition, the Issuer will be required to redeem the notes at a special mandatory redemption price equal to 101% of the aggregate principal amount of the notes, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (as defined in the preliminary prospectus supplement related to the notes). |
Stabilization | Stabilization/FCA |
Day Count Basis | ACTUAL/ACTUAL (ICMA) |
Minimum Denominations | €100,000 and integral multiples of €1,000 in excess thereof |
Common Code / ISIN | Common Code: 277226669 ISIN: XS2772266693 |
Clearing and Settlement | Clearstream Banking S.A. / Euroclear Bank SA/NV |
Trustee | U.S. Bank Trust Company, National Association |
Registrar and Paying Agent | Elavon Financial Services DAC |
| | | | | |
Expected Listing | Application will be made to list the notes on the Official List of the Irish Stock Exchange plc for trading as Euronext Dublin and to admit the notes to trading on the Global Exchange Market thereof |
Joint Bookrunners | Barclays Bank PLC Citigroup Global Markets Europe AG Société Générale BofA Securities Europe SA Wells Fargo Securities Europe S.A. BNP Paribas Deutsche Bank Aktiengesellschaft Goldman Sachs & Co. LLC MUFG Securities (Europe) N.V. RBC Europe Limited Scotiabank (Ireland) Designated Activity Company Standard Chartered Bank TD Global Finance unlimited company |
Note:
1 A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
MiFID II and UK MiFIR professional clients and ECPs only/No PRIIPs KID: Manufacturer target market (MiFID II and UK MiFIR product governance) is eligible counterparties and professional clients only (all distribution channels). No PRIIPs key information document (KID) has been prepared as the notes are not available to retail investors in the European Economic Area or the United Kingdom.
The Issuer has filed a registration statement (including a preliminary prospectus supplement and accompanying prospectus) with the U.S. Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the preliminary prospectus supplement and accompanying prospectus and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the preliminary prospectus supplement and accompanying prospectus if you request it by calling Barclays Bank PLC toll-free at (888) 603-5847, Citigroup Global Markets Europe AG toll-free at (800) 831-9146 or Société Générale toll-free at (855)-881-2108.
Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers or other notices were automatically generated as a result of this communication being sent via Bloomberg or another email system.
INFORMATION FURNISHED BY THE UNDERWRITERS
1. the names of the Underwriters on the cover page of the Preliminary Prospectus and the Final Prospectus.
2. the following information under the caption “Underwriting” in the Preliminary Prospectus and the Final Prospectus:
othe names of the Underwriters and their respective allocations
othe second sentence of the fourth paragraph
othe first paragraph under the sub-heading “Commissions and Discounts”
othe fourth and fifth sentences under the sub-heading “New Issue of Notes”
othe three paragraphs under the sub-heading “Price Stabilization and Short Positions”
EXHIBIT B
AMERICAN MEDICAL SYSTEMS EUROPE B.V.
Debt Securities
DELAYED DELIVERY CONTRACT
___________ __, ______
American Medical Systems Europe B.V.
c/o [Name and address of Representatives]
Attention:
Ladies and Gentlemen:
The undersigned hereby agree to purchase from American Medical Systems Europe B.V. (the “Issuer”), and the Issuer agrees to sell to the undersigned on __________ __, ____ (the “Delivery Date”), principal amount of the Issuer’s Debt Securities due ___________ __, ____ (the “Securities”), offered by the 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 Issuer 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 Issuer, 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 Issuer, 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 Issuer will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copies of the opinions of counsel for the Issuer and the Company delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the Issuer 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 Issuer and mailing or delivery of a copy as provided below, this contract will constitute a valid and binding agreement of the undersigned in accordance with its terms.
[Name of Purchaser]
By:
Name:
Title:
Accepted:
AMERICAN MEDICAL SYSTEMS EUROPE B.V.
By:
Name:
Title:
EXHIBIT C
FORM OF OPINION OF SHEARMAN & STERLING LLP
EXHIBIT D
FORM OF OPINION OF SUSAN THOMPSON
EXHIBIT E
FORM OF OPINION OF BAKER & MCKENZIE AMSTERDAM N.V.
THIS GLOBAL SECURITY IS REGISTERED IN THE NAME OF THE ENTITY APPOINTED AS COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE) OR A NOMINEE OF THE COMMON DEPOSITARY. THIS GLOBAL SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE COMMON DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS GLOBAL SECURITY (OTHER THAN A TRANSFER OF THIS GLOBAL SECURITY AS A WHOLE BY THE COMMON DEPOSITARY TO A NOMINEE OF THE COMMON DEPOSITARY OR BY A NOMINEE OF THE COMMON DEPOSITARY TO THE COMMON DEPOSITARY OR ANOTHER NOMINEE OF THE COMMON DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (WHICH SHALL INITIALLY BE ELAVON FINANCIAL SERVICES DAC) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE COMMON DEPOSITARY OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (AND ANY PAYMENT IS MADE TO THE COMMON DEPOSITARY OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE COMMON DEPOSITARY, HAS AN INTEREST HEREIN.
No. [•] ISIN No.: [•]
Common Code: [•]
€[•]
3.375% SENIOR NOTES DUE 2029
AMERICAN MEDICAL SYSTEMS EUROPE B.V. promises to pay USB Nominees (UK) Limited or registered
assigns the aggregate principal sum of
[•] EUROS (€[•]) or such other amount as indicated on the Schedule of Increases or Decreases in the Global Note attached hereto, on
March 8, 2029.
Guaranteed by
BOSTON SCIENTIFIC CORPORATION
Interest Payment Date: March 8 of each year, commencing March 8, 2025.
Regular Record Date: On the Business Day immediately preceding the relevant interest payment date.
Issue Date: February 27, 2024
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.
Dated: February 27, 2024
AMERICAN MEDICAL SYSTEMS EUROPE B.V.
By:
Name: [•]
Title: [•]
Attest:
By:
Name: [•]
Title: [•]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: February 27, 2024
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
U.S. Bank Trust Company, National Association,
as Trustee
By:
Name: [•]
Title: [•]
[REVERSE OF FORM OF SECURITY]
AMERICAN MEDICAL SYSTEMS EUROPE B.V.
3.375% SENIOR NOTES DUE 2029
1.Interest. AMERICAN MEDICAL SYSTEMS EUROPE B.V., incorporated as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) in the Netherlands with its statutory seat in Amsterdam, the Netherlands, registered with the Dutch Chamber of Commerce under number 34185686 (the “Issuer”) and an indirect wholly owned subsidiary of Boston Scientific Corporation (the “Guarantor”), which definitions shall include any successor thereto in accordance with the Indenture (as defined below), promises to pay, until the principal hereof is paid or made available for payment, interest on the principal amount set forth on the reverse side hereof at a rate of 3.375% per annum. Interest on the 3.375% Senior Notes Due 2029 (the “Securities”) will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from February 27, 2024 to but excluding the date on which interest is paid. Interest shall be payable in arrears on March 8 of each year (each an “Interest Payment Date”), commencing March 8, 2025 or, if any such day is not a Business Day, on the next succeeding Business Day and Holders will not be entitled to any further interest or other payment as a result of any such delay. Interest on the Securities will be calculated on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Securities (or February 27, 2024 if no interest has been paid on the Securities), to but excluding the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.
2.Method of Payment. The Issuer will pay interest on the Securities to the Persons who are registered Holders of Securities at the close of business on the immediately preceding March 8 of each year (each, a “Regular Record Date”). Holders must surrender Securities to a Paying Agent to collect principal payments. The Issuer will pay principal, the Redemption Price (pursuant to paragraph 5, paragraph 6 and paragraph 7 herein, as applicable), any Change of Control Payment and interest in Euro. If such currency is unavailable to the Issuer due to the imposition of exchange controls or other circumstances beyond the Issuer’s control or if such currency is no longer being used by the then member states of the European Economic and Monetary Union that have adopted the Euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Securities will be made in U.S. dollars until such currency is again available to the Issuer or so used. In such circumstances, the amount payable on any date in Euro will be converted by the Issuer into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent U.S. dollar/Euro exchange rate published in the Wall Street Journal on or prior to the second Business Day prior to the relevant payment date. Any payment in respect of the Securities so made in U.S. dollars will not constitute an Event of Default under the Securities or the Indenture (as defined below). For purposes of these Securities, “Business Day” means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in The City of New York or London are authorized or required by law, regulation or executive order to close and (2) on which the Trans-European Automated Real-Time Gross Settlement Express Transfer system, or any successor thereto, is open.
3.Paying Agent, Security Registrar. Initially, Elavon Financial Services DAC will act as Paying Agent and as Security Registrar. The Issuer may change any Paying Agent or Security Registrar without notice.
4.Indenture. The Issuer issued the Securities under an Indenture, dated as of March 8, 2022 (the “Indenture”), among Boston Scientific Corporation, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company” or the “Guarantor”), having its principal office at 300 Boston Scientific Way, Marlborough, Massachusetts, USA, 01752, the Issuer and U.S. Bank Trust Company, National Association, as Trustee (the “Trustee”). This Security is one of an issue of Securities of the Issuer issued under the Indenture. The terms of the Securities include those stated herein and in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended from time to time (the “TIA”). The Securities are subject to all such terms, and Holders of the Securities are referred to the Indenture and the TIA for a statement of them. Capitalized terms used herein and not otherwise defined have the meanings set forth in the Indenture. The Securities constitute senior unsecured obligations of the Issuer and, as such, shall be general unsecured and unsubordinated obligations of the Issuer ranking equally in right of payment with all of the Issuer’s other future unsecured and unsubordinated indebtedness and be senior to any future indebtedness of the Issuer that is subordinated to the Securities. The Issuer may, subject to the terms of the Indenture and applicable law, issue additional Securities under the Indenture. The Securities issued on February 27, 2024 and any additional Securities subsequently issued shall be treated as a single class for all purposes of the Indenture. The Indenture contains covenants that restrict the ability of the Company and its Subsidiaries, with certain exceptions, to incur liens and that restrict the ability of the Company and the Issuer to merge or consolidate with another entity or transfer all or substantially all of the property and assets of the Company or the Issuer, as applicable.
5.Special Mandatory Redemption. If (i) the Axonics Acquisition (as defined below) is not consummated on or before the later of (x) January 8, 2025 (as such date may be extended in accordance with the Merger Agreement (as defined below) to no later than January 8, 2026) and (y) the date that is five Business Days after any later date to which the Guarantor and Axonics (as defined below) may agree to extend the Outside Date (as defined in the Merger Agreement) (the “Special Mandatory Redemption End Date”) or (ii) the Issuer notifies the Trustee that the Guarantor will not pursue consummation of the Axonics Acquisition (any such event, a “Special Mandatory Redemption Event”), then the Issuer will be required to redeem the Securities (the “Special Mandatory Redemption”) at a Redemption Price equal to 101% of the aggregate principal amount of the Securities, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (as defined below) (subject to the right of Holders of the Securities of record on the relevant record date to receive interest due on an Interest Payment Date falling prior to the Special Mandatory Redemption Date) (the “Special Mandatory Redemption Price”).
In the event that the Issuer becomes obligated to redeem the Securities pursuant to the Special Mandatory Redemption, the Issuer will promptly, and in any event not more than 10 Business Days after the Special Mandatory Redemption Event, deliver notice of the Special Mandatory Redemption to the Trustee that sets forth the date on which the Securities will be redeemed (the “Special Mandatory Redemption Date”), which date shall be no later than the tenth Business Day following the date of such notice unless a longer minimum period may be required by Clearstream Banking S.A. (“Clearstream”) or Euroclear Bank SA/NV (“Euroclear”) (or any successor depositary), together with a notice of Special Mandatory Redemption for the Issuer or the Trustee, at the Issuer’s request, to deliver to each registered Holder of the Securities in the name and at the expense of the Issuer. The Issuer or the Trustee, at the Issuer’s request, will then reasonably promptly mail or electronically deliver (or otherwise transmit in accordance with the procedures of Clearstream and Euroclear) such notice of Special Mandatory Redemption to each registered Holder of the Securities.
On or before the Special Mandatory Redemption Date, the Issuer will pay to the Paying Agent for payment to each Holder of the Securities the applicable Special Mandatory Redemption Price for such Holder’s Securities.
Failure to make the Special Mandatory Redemption, if required in accordance with the terms described in this paragraph 5 will constitute an Event of Default with respect to the Securities.
Upon the consummation of the Axonics Acquisition, the foregoing provisions described in this paragraph 5 regarding Special Mandatory Redemption will cease to apply. For the purposes of the foregoing, the Axonics Acquisition will be deemed consummated if the closing under the Merger Agreement occurs, including after giving effect to any amendments or modifications to the Merger Agreement or waivers thereunder acceptable to the Guarantor.
For purposes of the foregoing provisions described in this paragraph 5, the following definitions apply:
“Axonics” means Axonics, Inc.
“Axonics Acquisition” means the proposed acquisition of Axonics by the Guarantor, pursuant to the Merger Agreement.
“Merger Agreement” means the Agreement and Plan of Merger, dated January 8, 2024, by and among the Guarantor, Sadie Merger Sub, Inc., a wholly owned subsidiary of the Guarantor, and Axonics, as such agreement may be amended or modified or any provision thereof waived.
6.Optional Redemption. Prior to the Par Call Date (as defined below), the Issuer may redeem the Securities, in whole or in part, at the Issuer’s option, on at least 10 days, but no more than 60 days prior written notice mailed to the registered Holders of the Securities to be redeemed (with a copy to the Trustee), at any time at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Securities being redeemed; or (ii) as determined by a Quotation Agent (as defined below), the sum of the present values of the remaining scheduled payments of principal and interest thereon to the applicable Par Call Date (not including any portion of such payments of interest accrued to the date of redemption) discounted to the date of redemption (the “Redemption Date”) on an annual basis (ACTUAL/ACTUAL(ICMA)) at the Comparable Government Bond Rate (as defined below) plus 20 basis points, plus, in each case, accrued and unpaid interest on the Securities to, but not including, the Redemption Date (subject to the right of Holders as of the close of business on a Regular Record Date to receive interest due on the related Interest Payment Date). At any time and from time to time on or after December 8, 2028 (the date that is three months prior to the maturity date of the Securities) (the “Par Call Date”), the Issuer may redeem the Securities, in whole or in part, at a Redemption Price equal to 100% of the principal amount of the Securities being redeemed plus accrued and unpaid interest to, but not including, the Redemption Date.
“Comparable Government Bond Rate” means, for any Redemption Date, the rate per annum equal to the annual equivalent yield to maturity or interpolated yield to maturity (on a day count basis), computed as the third Business Day immediately preceding that Redemption Date, of the Comparable Government Issue (as defined below), assuming a price for the Comparable Government Issue (expressed as a percentage of its principal amount) equal to the Comparable Price (as defined below) for such Redemption Date.
“Comparable Government Issue” means the euro-denominated security issued by the German federal government selected by a Quotation Agent as having an actual or
interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized (assuming that the Securities matured on the Par Call Date), at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Securities.
“Comparable Price” means, with respect to any Redemption Date, (1) the average of the Reference Dealer Quotations (as defined below) for such Redemption Date, after excluding the highest and lowest such Reference Dealer Quotations, or (2) if the Trustee obtains fewer than three such Reference Dealer Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Dealer (as defined below) appointed by the Trustee after consultation with the Issuer.
“Reference Dealer” means (1) each of Barclays Bank PLC, Citigroup Global Markets Europe AG and Société Générale and their respective successors; provided, however, that, if any of the foregoing shall cease to be a broker or dealer of, and/or a market maker in, German government bonds (a “Primary Bond Dealer”), the Issuer shall substitute therefor another Primary Bond Dealer, and (2) any other Primary Bond Dealers selected by the Trustee after consultation with the Issuer.
“Reference Dealer Quotations” means, with respect to each Reference Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and ask prices for the Comparable Government Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Dealer at 11:00 a.m. London time, on the third Business Day preceding such Redemption Date.
If the Issuer redeems only some of the Securities, the Trustee shall determine by lot the Securities to be redeemed or, in the case of the Securities held in global form, pursuant to applicable procedures of Clearstream and Euroclear.
7.Redemption for Tax Reasons. Subject to a period of not less than ten (10) nor more than sixty (60) days’ prior written notice to the registered Holders of the Securities to be redeemed, the Issuer may redeem the Securities at any time after the issue date and prior to the maturity date, in whole, but not in part, at a Redemption Price equal to 100% of the aggregate principal amount of Securities being redeemed, plus accrued and unpaid interest, if any, to (but not including) the Redemption Date, on the date determined by the Issuer for early redemption, if:
A.as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction (as defined below), or any change in, or amendment to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after February 22, 2024 (or, if a Relevant Taxing Jurisdiction becomes a Relevant Taxing Jurisdiction on a date after February 22, 2024, on or after such later date), the Issuer has become or will become obligated to pay Additional Amounts (as defined below) with respect to the Securities; or
B.any act is taken by a taxing authority of a Relevant Taxing Jurisdiction on or after February 22, 2024 (or, if a Relevant Taxing Jurisdiction becomes a Relevant Taxing Jurisdiction on a date after February 22, 2024, on or after such later date), whether or not such act is taken with respect to the Issuer or any of its affiliates, that results in a substantial probability that the Issuer will be required to pay Additional Amounts on the Securities; provided in each case that the Issuer
determines, in its business judgment (determined in good faith), that the obligation to pay the Additional Amounts cannot be avoided by the use of reasonable measures available to it (including, for the avoidance of doubt, the appointment of a new Paying Agent where this would be reasonable and would not cause the Issuer to incur material additional out-of-pocket costs, but not including assignment of the obligation to make payment with respect to the Securities).
No redemption above may be made unless (i) the Issuer shall have received an opinion of independent counsel to the effect that any such change, amendment or act described in paragraphs (A) or (B) above results in the Issuer’s requirement to pay (in the case of paragraph (A)) or a substantial probability that the Issuer will be required to pay (in the case of paragraph (B)) the Additional Amounts described herein and (ii) the Issuer shall have delivered to the Paying Agent a certificate, signed by a duly authorized officer, stating that based on such opinion, the Issuer is entitled to redeem the Securities pursuant to their terms.
8.Additional Amounts. All payments of principal, premium, if any, and interest by or on behalf of the Issuer or the Guarantor, as the case may be, pursuant to the terms of the Securities shall be made free and clear of, and without deduction or withholding for or on account of, any present or future taxes, duties, assessments or other governmental charges of whatsoever nature required to be deducted or withheld by the Netherlands, the United States or any other jurisdiction in which the Issuer, or the Guarantor, is incorporated, organized or otherwise resident or doing business for tax purposes or through which payment on a Security is made, or any political subdivision or taxing authority therein or thereof (such as any state of the United States or the District of Columbia) (each a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law.
In the event any withholding or deduction on payments in respect of the Securities for or on account of any present or future tax, duty, assessment or other governmental charge is required to be deducted or withheld by a Relevant Taxing Jurisdiction, the Issuer, or the Guarantor, as the case may be, shall remit the full amount required to be deducted or withheld to the relevant authority in accordance with applicable law and pay such additional amounts (the “Additional Amounts”) so that every net payment of the principal of, premium, if any, and interest on the Securities will result in receipt by each Holder of a Security of such amounts (after all such withholding or deduction, including on any additional amounts) as would have been received had no such withholding or deduction been required. The Issuer, or the Guarantor, as the case may be, will not be required, however, to make any payment of Additional Amounts for or on account of:
A.any tax, assessment or other governmental charge that would not have been imposed but for (i) the existence of any present or former connection (other than a connection arising solely from the ownership of those Securities, the receipt of payments in respect of those Securities or exercise or enforcement of rights under the Securities) between the Holder of a Security (or beneficial owner of a Security), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, that Holder or beneficial owner (if that Holder or beneficial owner is an estate, trust, partnership or corporation) and the Relevant Taxing Jurisdiction, including that Holder or beneficial owner, or that fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident or treated as a resident of a Relevant Taxing Jurisdiction or being or having been engaged in trade or business or present in the Relevant Taxing Jurisdiction or having had a permanent establishment in the Relevant Taxing Jurisdiction or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the later of the date on
which that payment becomes due and payable and the date on which payment is duly provided for;
B.any payment to a Holder of a Security that is not the sole beneficial owner of the Security, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or member of the partnership or beneficial owner would not have been entitled to the payment of any such Additional Amounts had the beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share of the payment;
C.any estate, inheritance, gift, sales, transfer, capital gains, excise, personal property, wealth or similar tax, assessment or other governmental charge;
D.with respect to payments by the Guarantor, any tax, assessment or other governmental charge imposed by reason of the beneficial owner’s or Holder’s past or present status as a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or a personal holding company with respect to the United States or as a corporation that accumulates earnings to avoid U.S. federal income tax;
E.any tax, assessment or other governmental charge which is payable otherwise than by withholding or deducting from payment of principal of or premium, if any, or interest on such Securities;
F.any tax, assessment or other governmental charge which would not have been imposed but for the failure of a beneficial owner or any Holder of Securities to comply (to the extent that it is legally able to do so) with a request to satisfy certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the Relevant Taxing Jurisdiction of the beneficial owner or any Holder of Securities (with respect to payments by the Guarantor, including, but not limited to, the requirement to provide Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8ECI, W-9 or any subsequent versions thereof or successor thereto, and, in each case, including, without limitation, any documentation requirement under an applicable income tax treaty);
G.any tax, assessment or other governmental charge imposed by the United States, any state thereof or the District of Columbia (or any political subdivision or taxing authority therein or thereof) on interest received by (1) a 10 percent shareholder (as defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Guarantor, (2) a controlled foreign corporation that is related to the Guarantor within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the beneficial owner’s status as described in subparagraphs (1) through (3) of this paragraph (G);
H.any tax, assessment or other governmental charge required to be withheld or deducted under Sections 1471 through 1474 of the Code (commonly referred to as “FATCA”), any regulations or other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith; or any law, regulation or other official guidance enacted in any
jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
I.any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
J.any tax, assessment or other governmental charge that is imposed or withheld in The Netherlands pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021), which for the avoidance of doubt shall include (without limitation) any such taxes withheld by the Issuer after the first indication that the Dutch revenue service (Belastingdienst) may be of the view that the Dutch Withholding Tax Act 2021 applies in relation to all or some of the Securities; or
K.any combination of the above.
The Issuer, or the Guarantor, as the case may be, will use reasonable efforts to obtain and provide the Paying Agent with the official acknowledgment of the Relevant Taxing Jurisdiction (or, if, notwithstanding such reasonable efforts, such acknowledgment is not available, certified copies or other reasonable documentation) evidencing any payment of any taxes, duties, assessments or other governmental charges in respect of which the Issuer, or the Guarantor, as the case may be, has paid any Additional Amounts. Copies of such documentation will be made available to the holders of the Securities upon reasonable request therefor, and will be made available at the offices of the Paying Agent.
The Issuer, or the Guarantor, as the case may be, will also pay and reimburse the Holders for any present or future stamp, issue, registration, court or documentary taxes or any excise or property taxes, charges or similar levies (including any penalties, interest and other liabilities relating thereto) that arise in any Relevant Taxing Jurisdiction (or, in the case of enforcement of the Securities, the Indenture or the Guarantees, in any jurisdiction) from the execution, issuance, delivery, registration or enforcement of the Securities, the Indenture, the Guarantees or any other document or instrument in relation thereto, or any payments under or with respect to the Securities or the Guarantees (other than, in each case, in connection with a transfer of the Securities after this offering and limited, solely to the extent of such taxes, charges or similar levies that arise from the receipt of any payments of principal or interest on the Securities, to any such taxes, charges or similar levies that are not excluded under clauses (A) through (D) and (F) through (K) above).
Wherever there is mentioned, in any context in this Security, the payment of principal, premium, if any, or interest with respect to the Securities (including payments thereof made pursuant to the Guarantees), such reference shall be deemed to include payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
9.Repurchase at the Option of Holders upon Change of Control Repurchase Event. If a Change of Control Repurchase Event (as defined below) occurs, unless the Issuer has exercised its option to redeem the Securities as described under paragraph 6 or paragraph 7 above or the Issuer has become required to redeem the Securities as described in the paragraph 5 above, each Holder of the Securities will have the right to require the Issuer to purchase all or a portion (equal to €100,000 and any integral multiples of €1,000 in excess thereof) of such Holder’s Securities pursuant to the offer described below (a “Change of Control Offer”) at a purchase price equal to 101% of the aggregate principal amount of such Holder’s Securities that are repurchased, plus accrued and unpaid interest, if any, to, but not including, the date of
repurchase (the “Change of Control Payment”), subject to the rights of Holders of Securities on the relevant record date to receive interest due on the relevant Interest Payment Date.
The Issuer will be required to send a notice to each Holder of the Securities by first class mail, with a copy to the Trustee, within 30 days following the date upon which any Change of Control Repurchase Event occurred, or at the Issuer’s option, prior to any Change of Control (as defined below) but after the public announcement of the pending Change of Control. The notice will govern the terms of the Change of Control Offer and will describe, among other things, the transaction that constitutes or may constitute the Change of Control Repurchase Event and the purchase date. The purchase date will be at least 30 days but no more than 60 days from the date such notice is mailed, other than as may be required by law (a “Change of Control Payment Date”). If the notice is mailed prior to the date of consummation of the Change of Control, the notice will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
On the Change of Control Payment Date, the Issuer will, to the extent lawful:
•accept for payment all properly tendered Securities or portions of Securities not validly withdrawn;
•deposit with the Paying Agent the required payment for all properly tendered Securities or portions of Securities not validly withdrawn; and
•deliver or cause to be delivered to the Trustee the repurchased Securities, accompanied by an Officers’ Certificate stating, among other things, the aggregate principal amount of repurchased Securities.
The Issuer will not be required to make a Change of Control Offer with respect to the Securities upon the occurrence of a Change of Control Repurchase Event if a third party (including the Guarantor) makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and the third party purchases all Securities properly tendered and not withdrawn under its offer. In addition, the Issuer will not repurchase any Securities if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture.
The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable, in connection with the repurchase of Securities as a result of a Change of Control Repurchase Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the Securities, the Issuer will comply with those securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Offer provisions of the Securities by virtue of any such conflict.
For purposes of the foregoing, the following definitions apply:
“Capital Stock” means the capital stock of every class whether now or hereafter authorized, regardless of whether such capital stock shall be limited to a fixed sum or percentage with respect to the rights of the holders thereof to participate in dividends and in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of such corporation.
“Change of Control” means the occurrence of any of the following:
•the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the Guarantor’s assets and the assets of the Guarantor’s Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Guarantor or one of its Subsidiaries;
•the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Guarantor or one of its Subsidiaries, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the Guarantor’s then outstanding Voting Stock or other Voting Stock into which its Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; or
•the adoption of a plan relating to the Guarantor’s liquidation or dissolution.
Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control if (a) the Guarantor becomes a direct or indirect wholly-owned subsidiary of a holding company and (b)(x) immediately following that transaction, the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Guarantor’s Voting Stock immediately prior to that transaction or (y) immediately following that transaction, no person is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Rating Event (as defined below).
“Fitch” means Fitch, Inc. and its successors.
“Investment Grade” means a rating of Baa3 or better by Moody’s (as defined below) (or its equivalent under any successor rating categories of Moody’s), a rating of BBB- or better by S&P (as defined below) (or its equivalent under any successor rating categories of S&P) and a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch); provided, however, that the Issuer shall not be required to maintain a rating by more than two Rating Agencies (as defined below) at any time and if only two Rating Agencies provide a rating with respect to the Securities, then “Investment Grade” with respect to the Securities shall mean the applicable rating described above of such two Rating Agencies with respect to the Securities.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Rating Agencies” means each of Moody’s, S&P and Fitch, or if any of Moody’s, S&P or Fitch ceases to rate the Securities or fails to make a rating of the Securities publicly available, any “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act that is selected by the Guarantor as a replacement agency for Moody’s, S&P or Fitch, or each of them, as the case may be; provided, however, that the Issuer shall not be required to maintain a rating by more than two Rating Agencies at any time.
“Rating Event” means the rating of the Securities shall be decreased by each of the Rating Agencies independently by one or more gradations during the Rating Period (as
defined below). If the rating of the Securities by each of the Rating Agencies is Investment Grade, then “Rating Event” will mean the rating of the Securities shall be decreased by one or more gradations by each Rating Agency so that the ratings of the Securities by all of the Rating Agencies fall below Investment Grade, on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 30-day period following public notice of the occurrence of the Change of Control (the “Rating Period”) (which 30-day period shall be extended by no more than 60 days from the date of the occurrence of the Change of Control if the rating of the Securities is under publicly announced consideration for possible downgrade by any of the Rating Agencies and each other Rating Agency has either downgraded, or publicly announced that it is considering downgrading, the Securities). A Rating Event otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Event for purposes of the definition of “Change of Control Repurchase Event”) if each Rating Agency making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the Trustee under the Indenture in writing at the Issuer’s request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event).
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Voting Stock” means, with respect to any specified Person as of any date, the Capital Stock of such Person that is at the time entitled to vote generally in the election of the board of directors of such Person.
10.Guarantee. The Securities are fully and unconditionally guaranteed by the Guarantor, as provided in Article 17 of the Indenture, on a senior unsecured basis. The Guarantee ranks equally in right of payment with all of the Guarantor’s other existing and future unsecured and unsubordinated indebtedness and is senior to any future indebtedness of the Guarantor that is subordinated to the Guarantee.
11.Sinking Fund. No sinking fund is provided for the Securities.
12.Denominations, Transfer, Exchange. The Securities are in registered form without coupons in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof. A Holder may transfer or exchange Securities in accordance with the Indenture. No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 of the Indenture not involving any transfer.
13.Persons Deemed Owners. The registered Holder of a Security may be treated as the owner of it for all purposes.
14.Unclaimed Money. Subject to any applicable abandoned property laws, if money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Issuer or the Guarantor on Company Request. After that, Holders entitled to the money must look to the Issuer for payment as unsecured general creditors unless an “abandoned property” law designates another Person.
15.Amendment, Supplement, Waiver. The Issuer, the Guarantor and the Trustee may, without the consent of the Holders of any outstanding Securities, amend, waive or
supplement the Indenture or the Securities for certain specified purposes, including, among other things, curing ambiguities, defects or inconsistencies, or making any other change that does not adversely affect the rights of any Holder. Other amendments and modifications of the Indenture or the Securities may be made by the Issuer, the Guarantor and the Trustee with the consent of the Holders of not less than a majority of the aggregate principal amount of the outstanding Securities affected, subject to certain exceptions requiring the consent of the Holders of each Security affected thereby.
16.Successor Corporation. When a successor corporation assumes all the obligations of its predecessor under the Securities and the Indenture and the transaction complies with the terms of Article 8 of the Indenture, the predecessor corporation, subject to certain exceptions, will be released from those obligations.
17.Defaults and Remedies. Events of Default are set forth in the Indenture. Subject to certain limitations in the Indenture, if an Event of Default (other than an Event of Default specified in Section 501(6) or Section 501(7) of the Indenture) occurs and is continuing, then the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities may, or the Trustee may, declare the principal of, plus accrued interest, if any, to be due and payable immediately. If an Event of Default specified in Section 501(6) or Section 501(7) of the Indenture occurs and is continuing, the principal of and accrued interest on all of the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of the Securities may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require reasonable security or indemnity reasonably satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a majority in principal amount of the then Outstanding Securities may direct the Trustee in its exercise of any trust or power. The Issuer and the Company must furnish an annual compliance certificate to the Trustee.
18.No Recourse Against Others. A director, officer, employee, or stockholder, as such, of the Issuer or the Guarantor or any of their respective Affiliates shall not have any liability for any obligations of the Issuer or the Guarantor, respectively, under the Securities or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of the Securities by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
19.Defeasance. The Indenture contains provisions (which provisions apply to this Security) for defeasance at any time of (a) the entire indebtedness of the Issuer in respect of this Security and (b) certain restrictive covenants and Defaults and Events of Default, in each case upon compliance by the Issuer with certain conditions set forth therein.
20.Authentication. This Security shall not be valid until the Trustee signs the certificate of authentication to this Security.
21.Dutch Law Power of Attorney. If the Issuer is represented by (an) attorney(s) in connection with the execution of the Securities or any agreement or document pursuant hereto, and the relevant power of attorney is expressed to be governed by Dutch law, such choice of law is hereby accepted by each of the parties hereto, in accordance with Article 14 of the Hague Convention on the Law Applicable to Agency of 14 March 1978.
22.GOVERNING LAW. THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
23.Submission to Jurisdiction. Each of the Issuer and the Guarantor irrevocably appoints the Guarantor as its agent to receive service of process or other legal summons in any suit, action or proceeding with respect the Securities and the Guarantee and for actions brought under the United States federal or state securities laws brought in any United States federal or state court located in the Borough of Manhattan in the County and City of New York. Each of the Issuer and the Guarantor irrevocably and unconditionally submit to the exclusive jurisdiction of the state and federal courts sitting in the Borough of Manhattan in the County and City of New York over any suit, action or proceeding arising out of or relating to the Securities or the Guarantee and for actions brought under the United States federal or state securities laws. Service of any process, summons, notice or document by registered mail addressed to the Issuer or the Guarantor at the address in Section 105 of the Indenture or in accordance with the second preceding sentence shall be effective service of process against the Issuer or the Guarantor for any suit, action or proceeding brought in any such court. Each of the Issuer and the Guarantor irrevocably and unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. A final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon the Issuer and the Guarantor and may be enforced in any other courts to whose jurisdiction the Issuer or the Guarantor is or may be subject, by suit upon judgment and in accordance with applicable law. Each of the Issuer and the Guarantor further agrees that nothing herein shall affect any Holder's right to effect service of process in any other manner permitted by law or bring a suit action or proceeding (including a proceeding for enforcement of a judgment) in any other court or jurisdiction in accordance with applicable law.
24.WAIVER OF JURY TRIAL. EACH OF THE ISSUER, THE GUARANTOR, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have your signature guaranteed:
I or we assign and transfer this Security to
(Insert assignee’s social security or tax ID number)
(Print or type assignee’s name, address and zip code) and irrevocably appoint
agent to transfer this Security on the books of the Issuer. The agent may substitute another to act for him.
Date: Your signature:
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
NOTATION OF GUARANTEE
Boston Scientific Corporation, a Delaware corporation (the “Guarantor”, which term includes any successor thereto under the Indenture (the “Indenture”) referred to in the security on which this notation is endorsed (the “Security”)), unconditionally guarantees, pursuant to the terms of the Guarantee contained in Article 17 of the Indenture, the due and punctual payment of the principal of, and any premium and interest on this Security, when and as the same shall become due and payable, whether at maturity, redemption, repayment or otherwise, all in accordance with the terms of this Security and the Indenture.
The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article 17 of the Indenture and in the Security and reference is hereby made to the Indenture for the precise terms of the Guarantee and all of the other provisions of the Indenture to which this Guarantee relates.
The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this notation of the Guarantee is endorsed shall have been executed by the Trustee.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed.
Dated: February 27, 2024
BOSTON SCIENTIFIC CORPORATION
By:
Name: [•]
Title: [•]
Attest:
By:
Name: [•]
Title: [•]
SCHEDULE OF INCREASES OR DECREASES IN NOTE
The following increases or decreases in this Note have been made:
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THIS GLOBAL SECURITY IS REGISTERED IN THE NAME OF THE ENTITY APPOINTED AS COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE) OR A NOMINEE OF THE COMMON DEPOSITARY. THIS GLOBAL SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE COMMON DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS GLOBAL SECURITY (OTHER THAN A TRANSFER OF THIS GLOBAL SECURITY AS A WHOLE BY THE COMMON DEPOSITARY TO A NOMINEE OF THE COMMON DEPOSITARY OR BY A NOMINEE OF THE COMMON DEPOSITARY TO THE COMMON DEPOSITARY OR ANOTHER NOMINEE OF THE COMMON DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (WHICH SHALL INITIALLY BE ELAVON FINANCIAL SERVICES DAC) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE COMMON DEPOSITARY OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (AND ANY PAYMENT IS MADE TO THE COMMON DEPOSITARY OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE COMMON DEPOSITARY, HAS AN INTEREST HEREIN.
No. [•] ISIN No.: [•]
Common Code: [•]
€[•]
3.500% SENIOR NOTES DUE 2032
AMERICAN MEDICAL SYSTEMS EUROPE B.V. promises to pay USB Nominees (UK) Limited or registered
assigns the aggregate principal sum of
[•] EUROS (€[•]) or such other amount as indicated on the Schedule of Increases or Decreases in the Global Note attached hereto, on
March 8, 2032.
Guaranteed by
BOSTON SCIENTIFIC CORPORATION
Interest Payment Date: March 8 of each year, commencing March 8, 2025.
Regular Record Date: On the Business Day immediately preceding the relevant interest payment date.
Issue Date: February 27, 2024
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.
Dated: February 27, 2024
AMERICAN MEDICAL SYSTEMS EUROPE B.V.
By:
Name: [•]
Title: [•]
Attest:
By:
Name: [•]
Title: [•]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: February 27, 2024
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
U.S. Bank Trust Company, National Association,
as Trustee
By:
Name: [•]
Title: [•]
[REVERSE OF FORM OF SECURITY]
AMERICAN MEDICAL SYSTEMS EUROPE B.V.
3.500% SENIOR NOTES DUE 2032
1.Interest. AMERICAN MEDICAL SYSTEMS EUROPE B.V., incorporated as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) in the Netherlands with its statutory seat in Amsterdam, the Netherlands, registered with the Dutch Chamber of Commerce under number 34185686 (the “Issuer”) and an indirect wholly owned subsidiary of Boston Scientific Corporation (the “Guarantor”), which definitions shall include any successor thereto in accordance with the Indenture (as defined below), promises to pay, until the principal hereof is paid or made available for payment, interest on the principal amount set forth on the reverse side hereof at a rate of 3.500% per annum. Interest on the 3.500% Senior Notes Due 2032 (the “Securities”) will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from February 27, 2024 to but excluding the date on which interest is paid. Interest shall be payable in arrears on March 8 of each year (each an “Interest Payment Date”), commencing March 8, 2025 or, if any such day is not a Business Day, on the next succeeding Business Day and Holders will not be entitled to any further interest or other payment as a result of any such delay. Interest on the Securities will be calculated on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Securities (or February 27, 2024 if no interest has been paid on the Securities), to but excluding the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.
2.Method of Payment. The Issuer will pay interest on the Securities to the Persons who are registered Holders of Securities at the close of business on the immediately preceding March 8 of each year (each, a “Regular Record Date”). Holders must surrender Securities to a Paying Agent to collect principal payments. The Issuer will pay principal, the Redemption Price (pursuant to paragraph 5, paragraph 6 and paragraph 7 herein, as applicable), any Change of Control Payment and interest in Euro. If such currency is unavailable to the Issuer due to the imposition of exchange controls or other circumstances beyond the Issuer’s control or if such currency is no longer being used by the then member states of the European Economic and Monetary Union that have adopted the Euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Securities will be made in U.S. dollars until such currency is again available to the Issuer or so used. In such circumstances, the amount payable on any date in Euro will be converted by the Issuer into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent U.S. dollar/Euro exchange rate published in the Wall Street Journal on or prior to the second Business Day prior to the relevant payment date. Any payment in respect of the Securities so made in U.S. dollars will not constitute an Event of Default under the Securities or the Indenture (as defined below). For purposes of these Securities, “Business Day” means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in The City of New York or London are authorized or required by law, regulation or executive order to close and (2) on which the Trans-European Automated Real-Time Gross Settlement Express Transfer system, or any successor thereto, is open.
3.Paying Agent, Security Registrar. Initially, Elavon Financial Services DAC will act as Paying Agent and as Security Registrar. The Issuer may change any Paying Agent or Security Registrar without notice.
4.Indenture. The Issuer issued the Securities under an Indenture, dated as of March 8, 2022 (the “Indenture”), among Boston Scientific Corporation, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company” or the “Guarantor”), having its principal office at 300 Boston Scientific Way, Marlborough, Massachusetts, USA, 01752, the Issuer and U.S. Bank Trust Company, National Association, as Trustee (the “Trustee”). This Security is one of an issue of Securities of the Issuer issued under the Indenture. The terms of the Securities include those stated herein and in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended from time to time (the “TIA”). The Securities are subject to all such terms, and Holders of the Securities are referred to the Indenture and the TIA for a statement of them. Capitalized terms used herein and not otherwise defined have the meanings set forth in the Indenture. The Securities constitute senior unsecured obligations of the Issuer and, as such, shall be general unsecured and unsubordinated obligations of the Issuer ranking equally in right of payment with all of the Issuer’s other future unsecured and unsubordinated indebtedness and be senior to any future indebtedness of the Issuer that is subordinated to the Securities. The Issuer may, subject to the terms of the Indenture and applicable law, issue additional Securities under the Indenture. The Securities issued on February 27, 2024 and any additional Securities subsequently issued shall be treated as a single class for all purposes of the Indenture. The Indenture contains covenants that restrict the ability of the Company and its Subsidiaries, with certain exceptions, to incur liens and that restrict the ability of the Company and the Issuer to merge or consolidate with another entity or transfer all or substantially all of the property and assets of the Company or the Issuer, as applicable.
5.Special Mandatory Redemption. If (i) the Axonics Acquisition (as defined below) is not consummated on or before the later of (x) January 8, 2025 (as such date may be extended in accordance with the Merger Agreement (as defined below) to no later than January 8, 2026) and (y) the date that is five Business Days after any later date to which the Guarantor and Axonics (as defined below) may agree to extend the Outside Date (as defined in the Merger Agreement) (the “Special Mandatory Redemption End Date”) or (ii) the Issuer notifies the Trustee that the Guarantor will not pursue consummation of the Axonics Acquisition (any such event, a “Special Mandatory Redemption Event”), then the Issuer will be required to redeem the Securities (the “Special Mandatory Redemption”) at a Redemption Price equal to 101% of the aggregate principal amount of the Securities, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (as defined below) (subject to the right of Holders of the Securities of record on the relevant record date to receive interest due on an Interest Payment Date falling prior to the Special Mandatory Redemption Date) (the “Special Mandatory Redemption Price”).
In the event that the Issuer becomes obligated to redeem the Securities pursuant to the Special Mandatory Redemption, the Issuer will promptly, and in any event not more than 10 Business Days after the Special Mandatory Redemption Event, deliver notice of the Special Mandatory Redemption to the Trustee that sets forth the date on which the Securities will be redeemed (the “Special Mandatory Redemption Date”), which date shall be no later than the tenth Business Day following the date of such notice unless a longer minimum period may be required by Clearstream Banking S.A. (“Clearstream”) or Euroclear Bank SA/NV (“Euroclear”) (or any successor depositary), together with a notice of Special Mandatory Redemption for the Issuer or the Trustee, at the Issuer’s request, to deliver to each registered Holder of the Securities in the name and at the expense of the Issuer. The Issuer or the Trustee, at the Issuer’s request, will then reasonably promptly mail or electronically deliver (or otherwise transmit in accordance with the procedures of Clearstream and Euroclear) such notice of Special Mandatory Redemption to each registered Holder of the Securities.
On or before the Special Mandatory Redemption Date, the Issuer will pay to the Paying Agent for payment to each Holder of the Securities the applicable Special Mandatory Redemption Price for such Holder’s Securities.
Failure to make the Special Mandatory Redemption, if required in accordance with the terms described in this paragraph 5 will constitute an Event of Default with respect to the Securities.
Upon the consummation of the Axonics Acquisition, the foregoing provisions described in this paragraph 5 regarding Special Mandatory Redemption will cease to apply. For the purposes of the foregoing, the Axonics Acquisition will be deemed consummated if the closing under the Merger Agreement occurs, including after giving effect to any amendments or modifications to the Merger Agreement or waivers thereunder acceptable to the Guarantor.
For purposes of the foregoing provisions described in this paragraph 5, the following definitions apply:
“Axonics” means Axonics, Inc.
“Axonics Acquisition” means the proposed acquisition of Axonics by the Guarantor, pursuant to the Merger Agreement.
“Merger Agreement” means the Agreement and Plan of Merger, dated January 8, 2024, by and among the Guarantor, Sadie Merger Sub, Inc., a wholly owned subsidiary of the Guarantor, and Axonics, as such agreement may be amended or modified or any provision thereof waived.
6.Optional Redemption. Prior to the Par Call Date (as defined below), the Issuer may redeem the Securities, in whole or in part, at the Issuer’s option, on at least 10 days, but no more than 60 days prior written notice mailed to the registered Holders of the Securities to be redeemed (with a copy to the Trustee), at any time at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Securities being redeemed; or (ii) as determined by a Quotation Agent (as defined below), the sum of the present values of the remaining scheduled payments of principal and interest thereon to the applicable Par Call Date (not including any portion of such payments of interest accrued to the date of redemption) discounted to the date of redemption (the “Redemption Date”) on an annual basis (ACTUAL/ACTUAL(ICMA)) at the Comparable Government Bond Rate (as defined below) plus 20 basis points, plus, in each case, accrued and unpaid interest on the Securities to, but not including, the Redemption Date (subject to the right of Holders as of the close of business on a Regular Record Date to receive interest due on the related Interest Payment Date). At any time and from time to time on or after December 8, 2031 (the date that is three months prior to the maturity date of the Securities) (the “Par Call Date”), the Issuer may redeem the Securities, in whole or in part, at a Redemption Price equal to 100% of the principal amount of the Securities being redeemed plus accrued and unpaid interest to, but not including, the Redemption Date.
“Comparable Government Bond Rate” means, for any Redemption Date, the rate per annum equal to the annual equivalent yield to maturity or interpolated yield to maturity (on a day count basis), computed as the third Business Day immediately preceding that Redemption Date, of the Comparable Government Issue (as defined below), assuming a price for the Comparable Government Issue (expressed as a percentage of its principal amount) equal to the Comparable Price (as defined below) for such Redemption Date.
“Comparable Government Issue” means the euro-denominated security issued by the German federal government selected by a Quotation Agent as having an actual or
interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized (assuming that the Securities matured on the Par Call Date), at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Securities.
“Comparable Price” means, with respect to any Redemption Date, (1) the average of the Reference Dealer Quotations (as defined below) for such Redemption Date, after excluding the highest and lowest such Reference Dealer Quotations, or (2) if the Trustee obtains fewer than three such Reference Dealer Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Dealer (as defined below) appointed by the Trustee after consultation with the Issuer.
“Reference Dealer” means (1) each of Barclays Bank PLC, Citigroup Global Markets Europe AG and Société Générale and their respective successors; provided, however, that, if any of the foregoing shall cease to be a broker or dealer of, and/or a market maker in, German government bonds (a “Primary Bond Dealer”), the Issuer shall substitute therefor another Primary Bond Dealer, and (2) any other Primary Bond Dealers selected by the Trustee after consultation with the Issuer.
“Reference Dealer Quotations” means, with respect to each Reference Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and ask prices for the Comparable Government Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Dealer at 11:00 a.m. London time, on the third Business Day preceding such Redemption Date.
If the Issuer redeems only some of the Securities, the Trustee shall determine by lot the Securities to be redeemed or, in the case of the Securities held in global form, pursuant to applicable procedures of Clearstream and Euroclear.
7.Redemption for Tax Reasons. Subject to a period of not less than ten (10) nor more than sixty (60) days’ prior written notice to the registered Holders of the Securities to be redeemed, the Issuer may redeem the Securities at any time after the issue date and prior to the maturity date, in whole, but not in part, at a Redemption Price equal to 100% of the aggregate principal amount of Securities being redeemed, plus accrued and unpaid interest, if any, to (but not including) the Redemption Date, on the date determined by the Issuer for early redemption, if:
A.as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of a Relevant Taxing Jurisdiction (as defined below), or any change in, or amendment to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after February 22, 2024 (or, if a Relevant Taxing Jurisdiction becomes a Relevant Taxing Jurisdiction on a date after February 22, 2024, on or after such later date), the Issuer has become or will become obligated to pay Additional Amounts (as defined below) with respect to the Securities; or
B.any act is taken by a taxing authority of a Relevant Taxing Jurisdiction on or after February 22, 2024 (or, if a Relevant Taxing Jurisdiction becomes a Relevant Taxing Jurisdiction on a date after February 22, 2024, on or after such later date), whether or not such act is taken with respect to the Issuer or any of its affiliates, that results in a substantial probability that the Issuer will be required to pay Additional Amounts on the Securities; provided in each case that the Issuer
determines, in its business judgment (determined in good faith), that the obligation to pay the Additional Amounts cannot be avoided by the use of reasonable measures available to it (including, for the avoidance of doubt, the appointment of a new Paying Agent where this would be reasonable and would not cause the Issuer to incur material additional out-of-pocket costs, but not including assignment of the obligation to make payment with respect to the Securities).
No redemption above may be made unless (i) the Issuer shall have received an opinion of independent counsel to the effect that any such change, amendment or act described in paragraphs (A) or (B) above results in the Issuer’s requirement to pay (in the case of paragraph (A)) or a substantial probability that the Issuer will be required to pay (in the case of paragraph (B)) the Additional Amounts described herein and (ii) the Issuer shall have delivered to the Paying Agent a certificate, signed by a duly authorized officer, stating that based on such opinion, the Issuer is entitled to redeem the Securities pursuant to their terms.
8.Additional Amounts. All payments of principal, premium, if any, and interest by or on behalf of the Issuer or the Guarantor, as the case may be, pursuant to the terms of the Securities shall be made free and clear of, and without deduction or withholding for or on account of, any present or future taxes, duties, assessments or other governmental charges of whatsoever nature required to be deducted or withheld by the Netherlands, the United States or any other jurisdiction in which the Issuer, or the Guarantor, is incorporated, organized or otherwise resident or doing business for tax purposes or through which payment on a Security is made, or any political subdivision or taxing authority therein or thereof (such as any state of the United States or the District of Columbia) (each a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law.
In the event any withholding or deduction on payments in respect of the Securities for or on account of any present or future tax, duty, assessment or other governmental charge is required to be deducted or withheld by a Relevant Taxing Jurisdiction, the Issuer, or the Guarantor, as the case may be, shall remit the full amount required to be deducted or withheld to the relevant authority in accordance with applicable law and pay such additional amounts (the “Additional Amounts”) so that every net payment of the principal of, premium, if any, and interest on the Securities will result in receipt by each Holder of a Security of such amounts (after all such withholding or deduction, including on any additional amounts) as would have been received had no such withholding or deduction been required. The Issuer, or the Guarantor, as the case may be, will not be required, however, to make any payment of Additional Amounts for or on account of:
A.any tax, assessment or other governmental charge that would not have been imposed but for (i) the existence of any present or former connection (other than a connection arising solely from the ownership of those Securities, the receipt of payments in respect of those Securities or exercise or enforcement of rights under the Securities) between the Holder of a Security (or beneficial owner of a Security), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, that Holder or beneficial owner (if that Holder or beneficial owner is an estate, trust, partnership or corporation) and the Relevant Taxing Jurisdiction, including that Holder or beneficial owner, or that fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident or treated as a resident of a Relevant Taxing Jurisdiction or being or having been engaged in trade or business or present in the Relevant Taxing Jurisdiction or having had a permanent establishment in the Relevant Taxing Jurisdiction or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the later of the date on
which that payment becomes due and payable and the date on which payment is duly provided for;
B.any payment to a Holder of a Security that is not the sole beneficial owner of the Security, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or member of the partnership or beneficial owner would not have been entitled to the payment of any such Additional Amounts had the beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share of the payment;
C.any estate, inheritance, gift, sales, transfer, capital gains, excise, personal property, wealth or similar tax, assessment or other governmental charge;
D.with respect to payments by the Guarantor, any tax, assessment or other governmental charge imposed by reason of the beneficial owner’s or Holder’s past or present status as a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or a personal holding company with respect to the United States or as a corporation that accumulates earnings to avoid U.S. federal income tax;
E.any tax, assessment or other governmental charge which is payable otherwise than by withholding or deducting from payment of principal of or premium, if any, or interest on such Securities;
F.any tax, assessment or other governmental charge which would not have been imposed but for the failure of a beneficial owner or any Holder of Securities to comply (to the extent that it is legally able to do so) with a request to satisfy certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the Relevant Taxing Jurisdiction of the beneficial owner or any Holder of Securities (with respect to payments by the Guarantor, including, but not limited to, the requirement to provide Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8ECI, W-9 or any subsequent versions thereof or successor thereto, and, in each case, including, without limitation, any documentation requirement under an applicable income tax treaty);
G.any tax, assessment or other governmental charge imposed by the United States, any state thereof or the District of Columbia (or any political subdivision or taxing authority therein or thereof) on interest received by (1) a 10 percent shareholder (as defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Guarantor, (2) a controlled foreign corporation that is related to the Guarantor within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the beneficial owner’s status as described in subparagraphs (1) through (3) of this paragraph (G);
H.any tax, assessment or other governmental charge required to be withheld or deducted under Sections 1471 through 1474 of the Code (commonly referred to as “FATCA”), any regulations or other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith; or any law, regulation or other official guidance enacted in any
jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
I.any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
J.any tax, assessment or other governmental charge that is imposed or withheld in The Netherlands pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021), which for the avoidance of doubt shall include (without limitation) any such taxes withheld by the Issuer after the first indication that the Dutch revenue service (Belastingdienst) may be of the view that the Dutch Withholding Tax Act 2021 applies in relation to all or some of the Securities; or
K.any combination of the above.
The Issuer, or the Guarantor, as the case may be, will use reasonable efforts to obtain and provide the Paying Agent with the official acknowledgment of the Relevant Taxing Jurisdiction (or, if, notwithstanding such reasonable efforts, such acknowledgment is not available, certified copies or other reasonable documentation) evidencing any payment of any taxes, duties, assessments or other governmental charges in respect of which the Issuer, or the Guarantor, as the case may be, has paid any Additional Amounts. Copies of such documentation will be made available to the holders of the Securities upon reasonable request therefor, and will be made available at the offices of the Paying Agent.
The Issuer, or the Guarantor, as the case may be, will also pay and reimburse the Holders for any present or future stamp, issue, registration, court or documentary taxes or any excise or property taxes, charges or similar levies (including any penalties, interest and other liabilities relating thereto) that arise in any Relevant Taxing Jurisdiction (or, in the case of enforcement of the Securities, the Indenture or the Guarantees, in any jurisdiction) from the execution, issuance, delivery, registration or enforcement of the Securities, the Indenture, the Guarantees or any other document or instrument in relation thereto, or any payments under or with respect to the Securities or the Guarantees (other than, in each case, in connection with a transfer of the Securities after this offering and limited, solely to the extent of such taxes, charges or similar levies that arise from the receipt of any payments of principal or interest on the Securities, to any such taxes, charges or similar levies that are not excluded under clauses (A) through (D) and (F) through (K) above).
Wherever there is mentioned, in any context in this Security, the payment of principal, premium, if any, or interest with respect to the Securities (including payments thereof made pursuant to the Guarantees), such reference shall be deemed to include payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
9.Repurchase at the Option of Holders upon Change of Control Repurchase Event. If a Change of Control Repurchase Event (as defined below) occurs, unless the Issuer has exercised its option to redeem the Securities as described under paragraph 6 or paragraph 7 above or the Issuer has become required to redeem the Securities as described in the paragraph 5 above, each Holder of the Securities will have the right to require the Issuer to purchase all or a portion (equal to €100,000 and any integral multiples of €1,000 in excess thereof) of such Holder’s Securities pursuant to the offer described below (a “Change of Control Offer”) at a purchase price equal to 101% of the aggregate principal amount of such Holder’s Securities that are repurchased, plus accrued and unpaid interest, if any, to, but not including, the date of
repurchase (the “Change of Control Payment”), subject to the rights of Holders of Securities on the relevant record date to receive interest due on the relevant Interest Payment Date.
The Issuer will be required to send a notice to each Holder of the Securities by first class mail, with a copy to the Trustee, within 30 days following the date upon which any Change of Control Repurchase Event occurred, or at the Issuer’s option, prior to any Change of Control (as defined below) but after the public announcement of the pending Change of Control. The notice will govern the terms of the Change of Control Offer and will describe, among other things, the transaction that constitutes or may constitute the Change of Control Repurchase Event and the purchase date. The purchase date will be at least 30 days but no more than 60 days from the date such notice is mailed, other than as may be required by law (a “Change of Control Payment Date”). If the notice is mailed prior to the date of consummation of the Change of Control, the notice will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
On the Change of Control Payment Date, the Issuer will, to the extent lawful:
•accept for payment all properly tendered Securities or portions of Securities not validly withdrawn;
•deposit with the Paying Agent the required payment for all properly tendered Securities or portions of Securities not validly withdrawn; and
•deliver or cause to be delivered to the Trustee the repurchased Securities, accompanied by an Officers’ Certificate stating, among other things, the aggregate principal amount of repurchased Securities.
The Issuer will not be required to make a Change of Control Offer with respect to the Securities upon the occurrence of a Change of Control Repurchase Event if a third party (including the Guarantor) makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and the third party purchases all Securities properly tendered and not withdrawn under its offer. In addition, the Issuer will not repurchase any Securities if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture.
The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable, in connection with the repurchase of Securities as a result of a Change of Control Repurchase Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the Securities, the Issuer will comply with those securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Offer provisions of the Securities by virtue of any such conflict.
For purposes of the foregoing, the following definitions apply:
“Capital Stock” means the capital stock of every class whether now or hereafter authorized, regardless of whether such capital stock shall be limited to a fixed sum or percentage with respect to the rights of the holders thereof to participate in dividends and in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of such corporation.
“Change of Control” means the occurrence of any of the following:
•the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the Guarantor’s assets and the assets of the Guarantor’s Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Guarantor or one of its Subsidiaries;
•the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Guarantor or one of its Subsidiaries, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the Guarantor’s then outstanding Voting Stock or other Voting Stock into which its Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; or
•the adoption of a plan relating to the Guarantor’s liquidation or dissolution.
Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control if (a) the Guarantor becomes a direct or indirect wholly-owned subsidiary of a holding company and (b)(x) immediately following that transaction, the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Guarantor’s Voting Stock immediately prior to that transaction or (y) immediately following that transaction, no person is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Rating Event (as defined below).
“Fitch” means Fitch, Inc. and its successors.
“Investment Grade” means a rating of Baa3 or better by Moody’s (as defined below) (or its equivalent under any successor rating categories of Moody’s), a rating of BBB- or better by S&P (as defined below) (or its equivalent under any successor rating categories of S&P) and a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch); provided, however, that the Issuer shall not be required to maintain a rating by more than two Rating Agencies (as defined below) at any time and if only two Rating Agencies provide a rating with respect to the Securities, then “Investment Grade” with respect to the Securities shall mean the applicable rating described above of such two Rating Agencies with respect to the Securities.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Rating Agencies” means each of Moody’s, S&P and Fitch, or if any of Moody’s, S&P or Fitch ceases to rate the Securities or fails to make a rating of the Securities publicly available, any “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act that is selected by the Guarantor as a replacement agency for Moody’s, S&P or Fitch, or each of them, as the case may be; provided, however, that the Issuer shall not be required to maintain a rating by more than two Rating Agencies at any time.
“Rating Event” means the rating of the Securities shall be decreased by each of the Rating Agencies independently by one or more gradations during the Rating Period (as
defined below). If the rating of the Securities by each of the Rating Agencies is Investment Grade, then “Rating Event” will mean the rating of the Securities shall be decreased by one or more gradations by each Rating Agency so that the ratings of the Securities by all of the Rating Agencies fall below Investment Grade, on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 30-day period following public notice of the occurrence of the Change of Control (the “Rating Period”) (which 30-day period shall be extended by no more than 60 days from the date of the occurrence of the Change of Control if the rating of the Securities is under publicly announced consideration for possible downgrade by any of the Rating Agencies and each other Rating Agency has either downgraded, or publicly announced that it is considering downgrading, the Securities). A Rating Event otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Event for purposes of the definition of “Change of Control Repurchase Event”) if each Rating Agency making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the Trustee under the Indenture in writing at the Issuer’s request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event).
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Voting Stock” means, with respect to any specified Person as of any date, the Capital Stock of such Person that is at the time entitled to vote generally in the election of the board of directors of such Person.
10.Guarantee. The Securities are fully and unconditionally guaranteed by the Guarantor, as provided in Article 17 of the Indenture, on a senior unsecured basis. The Guarantee ranks equally in right of payment with all of the Guarantor’s other existing and future unsecured and unsubordinated indebtedness and is senior to any future indebtedness of the Guarantor that is subordinated to the Guarantee.
11.Sinking Fund. No sinking fund is provided for the Securities.
12.Denominations, Transfer, Exchange. The Securities are in registered form without coupons in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof. A Holder may transfer or exchange Securities in accordance with the Indenture. No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 of the Indenture not involving any transfer.
13.Persons Deemed Owners. The registered Holder of a Security may be treated as the owner of it for all purposes.
14.Unclaimed Money. Subject to any applicable abandoned property laws, if money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Issuer or the Guarantor on Company Request. After that, Holders entitled to the money must look to the Issuer for payment as unsecured general creditors unless an “abandoned property” law designates another Person.
15.Amendment, Supplement, Waiver. The Issuer, the Guarantor and the Trustee may, without the consent of the Holders of any outstanding Securities, amend, waive or
supplement the Indenture or the Securities for certain specified purposes, including, among other things, curing ambiguities, defects or inconsistencies, or making any other change that does not adversely affect the rights of any Holder. Other amendments and modifications of the Indenture or the Securities may be made by the Issuer, the Guarantor and the Trustee with the consent of the Holders of not less than a majority of the aggregate principal amount of the outstanding Securities affected, subject to certain exceptions requiring the consent of the Holders of each Security affected thereby.
16.Successor Corporation. When a successor corporation assumes all the obligations of its predecessor under the Securities and the Indenture and the transaction complies with the terms of Article 8 of the Indenture, the predecessor corporation, subject to certain exceptions, will be released from those obligations.
17.Defaults and Remedies. Events of Default are set forth in the Indenture. Subject to certain limitations in the Indenture, if an Event of Default (other than an Event of Default specified in Section 501(6) or Section 501(7) of the Indenture) occurs and is continuing, then the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities may, or the Trustee may, declare the principal of, plus accrued interest, if any, to be due and payable immediately. If an Event of Default specified in Section 501(6) or Section 501(7) of the Indenture occurs and is continuing, the principal of and accrued interest on all of the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of the Securities may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require reasonable security or indemnity reasonably satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a majority in principal amount of the then Outstanding Securities may direct the Trustee in its exercise of any trust or power. The Issuer and the Company must furnish an annual compliance certificate to the Trustee.
18.No Recourse Against Others. A director, officer, employee, or stockholder, as such, of the Issuer or the Guarantor or any of their respective Affiliates shall not have any liability for any obligations of the Issuer or the Guarantor, respectively, under the Securities or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of the Securities by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
19.Defeasance. The Indenture contains provisions (which provisions apply to this Security) for defeasance at any time of (a) the entire indebtedness of the Issuer in respect of this Security and (b) certain restrictive covenants and Defaults and Events of Default, in each case upon compliance by the Issuer with certain conditions set forth therein.
20.Authentication. This Security shall not be valid until the Trustee signs the certificate of authentication to this Security.
21.Dutch Law Power of Attorney. If the Issuer is represented by (an) attorney(s) in connection with the execution of the Securities or any agreement or document pursuant hereto, and the relevant power of attorney is expressed to be governed by Dutch law, such choice of law is hereby accepted by each of the parties hereto, in accordance with Article 14 of the Hague Convention on the Law Applicable to Agency of 14 March 1978.
22.GOVERNING LAW. THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
23.Submission to Jurisdiction. Each of the Issuer and the Guarantor irrevocably appoints the Guarantor as its agent to receive service of process or other legal summons in any suit, action or proceeding with respect the Securities and the Guarantee and for actions brought under the United States federal or state securities laws brought in any United States federal or state court located in the Borough of Manhattan in the County and City of New York. Each of the Issuer and the Guarantor irrevocably and unconditionally submit to the exclusive jurisdiction of the state and federal courts sitting in the Borough of Manhattan in the County and City of New York over any suit, action or proceeding arising out of or relating to the Securities or the Guarantee and for actions brought under the United States federal or state securities laws. Service of any process, summons, notice or document by registered mail addressed to the Issuer or the Guarantor at the address in Section 105 of the Indenture or in accordance with the second preceding sentence shall be effective service of process against the Issuer or the Guarantor for any suit, action or proceeding brought in any such court. Each of the Issuer and the Guarantor irrevocably and unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. A final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon the Issuer and the Guarantor and may be enforced in any other courts to whose jurisdiction the Issuer or the Guarantor is or may be subject, by suit upon judgment and in accordance with applicable law. Each of the Issuer and the Guarantor further agrees that nothing herein shall affect any Holder's right to effect service of process in any other manner permitted by law or bring a suit action or proceeding (including a proceeding for enforcement of a judgment) in any other court or jurisdiction in accordance with applicable law.
24.WAIVER OF JURY TRIAL. EACH OF THE ISSUER, THE GUARANTOR, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have your signature guaranteed:
I or we assign and transfer this Security to
(Insert assignee’s social security or tax ID number)
(Print or type assignee’s name, address and zip code) and irrevocably appoint
agent to transfer this Security on the books of the Issuer. The agent may substitute another to act for him.
Date: Your signature:
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
NOTATION OF GUARANTEE
Boston Scientific Corporation, a Delaware corporation (the “Guarantor”, which term includes any successor thereto under the Indenture (the “Indenture”) referred to in the security on which this notation is endorsed (the “Security”)), unconditionally guarantees, pursuant to the terms of the Guarantee contained in Article 17 of the Indenture, the due and punctual payment of the principal of, and any premium and interest on this Security, when and as the same shall become due and payable, whether at maturity, redemption, repayment or otherwise, all in accordance with the terms of this Security and the Indenture.
The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article 17 of the Indenture and in the Security and reference is hereby made to the Indenture for the precise terms of the Guarantee and all of the other provisions of the Indenture to which this Guarantee relates.
The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this notation of the Guarantee is endorsed shall have been executed by the Trustee.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed.
Dated: February 27, 2024
BOSTON SCIENTIFIC CORPORATION
By:
Name: [•]
Title: [•]
Attest:
By:
Name: [•]
Title: [•]
SCHEDULE OF INCREASES OR DECREASES IN NOTE
The following increases or decreases in this Note have been made:
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599 Lexington Avenue
New York, NY 10022-6069 +1.212.848.4000 |
Exhibit 5.1
February 27, 2024
Boston Scientific Corporation
300 Boston Scientific Way
Marlborough, Massachusetts 01752
American Medical Systems Europe B.V.
Vestastraat 6, 6468 EX Kerkrade
The Netherlands
Boston Scientific Corporation
American Medical Systems Europe B.V.
€750,000,000 3.375% Senior Notes due 2029
€1,250,000,000 3.500% Senior Notes due 2032
Ladies and Gentlemen:
We have acted as counsel to Boston Scientific Corporation, a Delaware corporation (the “Company”) and as counsel to American Medical Systems Europe B.V., incorporated as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) in the Netherlands and an (indirect) wholly-owned subsidiary of the Company (“AMS Europe” and, together with the Company, the “Registrants”), in connection with the issuance and sale of €750,000,000 aggregate principal amount of AMS Europe’s 3.375% Senior Notes due 2029 (the “2029 Notes”) and €1,250,000,000 aggregate principal amount of AMS Europe’s 3.500% Senior Notes due 2032 (the “2032 Notes”, and together with the 2029 Notes, the ”Notes”). The Notes are to be issued pursuant to the Underwriting Agreement—Basic Provisions, dated February 22, 2024, as supplemented by the Terms Agreement dated February 22, 2024 (as so supplemented, the “Underwriting Agreement”), among AMS Europe, the Company and the several underwriters named therein. The Notes are to be issued pursuant to an Indenture dated as of March 8, 2022 (the “Indenture”), among the Company, the Guarantor and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”). The Notes will be fully and unconditionally guaranteed by the Company pursuant to its guarantee (collectively, the “Guarantees” and together with the Notes, the “Securities”) as provided for in the Indenture.
In that connection, we have reviewed originals or copies of the following documents:
(a)The Indenture (including the Guarantee contained therein).
(b)The Notes in global form as executed by AMS Europe.
The documents described in the foregoing clauses (a) and (b) are collectively referred to herein as the “Opinion Documents”.
We have also reviewed the following:
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| SHEARMAN.COM |
| Shearman & Sterling LLP is a limited liability partnership organized in the United States under the laws of the state of Delaware, which laws limit the personal liability of partners. |
(a) The automatic shelf registration statement on Form S-3 (Registration No. 333-262937) filed by the Registrants under the Securities Act of 1933, as amended (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”) on February 23, 2022 (such registration statement, including the documents incorporated by reference therein and the information deemed to be part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, hereinafter referred to as the “Registration Statement”).
(b) The base prospectus, dated February 23, 2022 and forming a part of the Registration Statement with respect to the offering from time to time of the securities described therein, which was included as part of the Registration Statement at the time it became effective on February 23, 2022 (the “Base Prospectus”).
(c) The preliminary prospectus supplement relating to the Securities, dated February 22, 2024, in the form first filed by AMS Europe pursuant to Rule 424(b) under the Securities Act with the Commission, including the documents incorporated by reference therein.
(d) The final prospectus supplement relating to the Securities, dated February 22, 2024 (the “Final Prospectus Supplement”) (the Base Prospectus, as amended and supplemented by the Final Prospectus Supplement, in the form first filed by AMS Europe pursuant to Rule 424(b) under the Securities Act with the Commission, including the documents incorporated by reference therein, hereinafter collectively referred to as the “Prospectus”).
(e) The free writing prospectus of the Company relating to the Securities, dated February 22, 2024, in the form first filed by the Company pursuant to Rule 433 under the Securities Act with the Commission.
(f) The Underwriting Agreement.
(g) The Agency Agreement, dated February 27, 2024, among the Company, AMS Europe, Elavon Financial Services DAC, as paying agent and registrar (the “Registrar”) and the Trustee (the “Agency Agreement”).
(h) The Third Restated Certificate of Incorporation and Amended & Restated By-Laws of the Company, each as amended through the date hereof.
(i) The officers’ certificate of the Company and AMS Europe, dated February 22, 2024, setting forth certain terms of the Securities.
(j) Originals or copies of such other records of the Registrants, certificates of public officials and officers of the Registrants and agreements and other documents as we have deemed necessary as a basis for the opinions expressed below.
In our review of the Opinion Documents and other documents, we have assumed:
(a) The genuineness of all signatures.
(b) The authenticity of the originals of the documents submitted to us.
(c) The conformity to authentic originals of any documents submitted to us as copies.
(d) As to matters of fact, the truthfulness of the representations made in the Underwriting Agreement and the Opinion Documents and in certificates of public officials and officers of the Registrants.
(e) That each of the Opinion Documents is the legal, valid and binding obligation of each party thereto, other than the Registrants, enforceable against each such party in accordance with its terms.
(f) That:
(i) Each Registrant is an entity duly organized under the laws of the jurisdiction of its organization.
(ii) AMS Europe is an entity validly existing under the laws of the jurisdiction of its organization.
(iii) AMS Europe has power and authority (corporate or otherwise) to execute, deliver and perform, and has duly authorized, executed and delivered (except to the extent Generally Applicable Law (as defined below) is applicable to such execution and delivery), the Opinion Documents.
(iv) The execution, delivery and performance by each of the Registrants of the Opinion Documents to which it is a party do not and will not:
(A) except with respect to the Company, contravene its certificate or articles of incorporation, by-laws or other organizational documents;
(B) except with respect to Generally Applicable Law, violate any law, rule or regulation applicable to it; or
(C) result in any conflict with, or breach of, any agreement or document binding on it.
(g) That, except with respect to Generally Applicable Law, no authorization, approval, consent or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by either of the Registrants of the Opinion Documents to which it is a party or, if any such authorization, approval, consent, action, notice or filing is required, it has been duly obtained, taken, given or made and is in full force and effect.
We have not independently established the validity of the foregoing assumptions.
“Generally Applicable Law” means the federal law of the United States of America, and the law of the State of New York (including in each case the rules or regulations promulgated thereunder or pursuant thereto), that a New York lawyer exercising customary professional diligence would
reasonably be expected to recognize as being applicable to the Company, AMS Europe, the Opinion Documents or the transactions governed by the Opinion Documents, and for purposes of assumption paragraphs (f) and (g) above, and our opinions below, the General Corporation Law of the State of Delaware with respect to the Company. Without limiting the generality of the foregoing definition of Generally Applicable Law, the term “Generally Applicable Law” does not include any law, rule or regulation that is applicable to the Company, AMS Europe, the Opinion Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Opinion Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.
Based upon the foregoing and upon such other investigation as we have deemed necessary and subject to the qualifications set forth below, we are of the opinion that:
1.The Company is a corporation validly existing and in good standing under the law of the State of Delaware.
2.The Company (a) has the corporate power to execute, deliver and perform each Opinion Document to which it is a party and (b) has taken all corporate action necessary to authorize the execution, delivery and performance of each Opinion Document to which it is a party.
3. The Indenture, including the Guarantee contained therein, has been duly executed and delivered by the Company and AMS Europe, to the extent such execution and delivery is a matter of New York law, and is the legal, valid and binding obligation of the Company and AMS Europe, enforceable against the Company and AMS Europe in accordance with its terms.
4. The Notes have been duly executed by AMS Europe to the extent such execution is a matter of New York law and, when authenticated by the Trustee in accordance with the Indenture and delivered and paid for as provided in the Underwriting Agreement, the Notes will be the legal, valid and binding obligations of AMS Europe, enforceable against the AMS Europe in accordance with their terms and entitled to the benefits of the Indenture
Our opinions expressed above are subject to the following qualifications:
(a) Our opinions 3 and 4 are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers) and (ii) possible judicial action giving effect to governmental actions or foreign laws affecting creditors’ rights.
(b) Our opinions 3 and 4 are also subject to the effect of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
(c) Our opinions are limited to Generally Applicable Law and we do not express any opinion herein concerning any other law. Where matters of applicable law, other than Generally Applicable Law, are relevant to such opinions, we have without
independent investigation on our part assumed the accuracy and, to the extent necessary in connection with the opinions contained herein, relied upon the opinions, dated the date hereof, furnished to you of Baker McKenzie Amsterdam N.V. delivered to you on the date hereof, and our opinions are subject to the same assumptions, qualifications and limitations with respect to matters of Dutch law expressed in such opinion.
(d) Although the Indenture and the Securities provide for obligations of AMS Europe denominated in a currency other than United States dollars, we express no opinion as to whether a court would award a judgment in a currency other than United States dollars.
(e) We express no opinion with respect to the enforceability of any indemnity against any loss in converting into a specified currency the proceeds or amount of a court judgment in another currency.
(f) We express no opinion with respect to Section 115 of the Indenture and Section 23 of the Notes to the extent that such sections (i) contain a waiver of any objection based on inappropriate venue or forum non conveniens in any federal court of the United States, or (ii) imply that a federal court of the United States has subject matter jurisdiction or (iii) purport to grant any court exclusive jurisdiction.
This opinion letter speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after the date of this opinion letter and which might affect the opinions expressed herein.
We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K, dated the date hereof, filed by the Company and incorporated by reference into the Registration Statement and to the use of our name under the heading “Legal Matters” in the Final Prospectus Supplement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Shearman & Sterling LLP
RA/im/kw
EK
Exhibit 5.2 Baker & McKenzie Amsterdam N.V. has its registered office in Amsterdam, The Netherlands, and is registered with the Trade Register under number 34208804. Baker & McKenzie Amsterdam N.V. is a member of Baker & McKenzie International, a Swiss Verein. Baker & McKenzie Amsterdam N.V. Attorneys at law, Tax advisors and Civil-law notaries P.O. Box 2720 1000 CS Amsterdam The Netherlands Tel: +31 20 551 7555 www.bakermckenzie.nl Asia Pacific Bangkok Beijing Hanoi Ho Chi Minh City Hong Kong Jakarta Kuala Lumpur Manila Melbourne Shanghai Singapore Sydney Taipei Tokyo Europe & Middle East Abu Dhabi Almaty Amsterdam Antwerp Bahrain Baku Barcelona Berlin Brussels Budapest Cairo Doha Dusseldorf Frankfurt/ Main Geneva Istanbul Kyiv London Luxembourg Madrid Milan Munich Paris Prague Riyadh Rome Stockholm Vienna Warsaw Zurich North & South America Bogota Brasilia* Buenos Aires Caracas Chicago Dallas Guadalajara Houston Juarez Mexico City Miami Monterrey New York Palo Alto Porto Alegre* Rio de Janeiro* San Diego San Francisco Santiago Sao Paulo* Tijuana Toronto Valencia Washington, DC *Associated Firm American Medical Systems Europe B.V. Vestastraat 6 6468 EX Kerkrade The Netherlands (the "Addressee") 27 February 2024 10002148-50811343//PHS/DAK2 Re: American Medical Systems Europe B.V. Dear Addressee, I. Introduction We are acting as special Dutch legal counsel (advocaten) to American Medical Systems Europe B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands, having its corporate seat (statutaire zetel) in Amsterdam, The Netherlands, its registered office at Vestastraat 6, 6468 EX Kerkrade, The Netherlands, and registered with the trade register of the Chamber of Commerce ("Chamber of Commerce", Kamer van Koophandel) under number 34185686 ("AMS Europe") in connection with: (i) an issue by AMS Europe of (i) EUR 750,000,000 3.375% senior notes due 2029; and (ii) EUR 1,250,000,000 3.500% senior notes due 2032 (together, the "Notes") and fully and unconditionally guaranteed by Boston Scientific Corporation; and (ii) a Registration Statement on Form S-3, dated 23 February 2022 (the "Registration Statement") filed under the Securities Act of 1933, as amended from time to time (the "Securities Act") by AMS Europe and Boston Scientific Corporation ("Boston Scientific", and together with AMS Europe, the "Registrants") on 23 February 2022.
2 We understand that: a. the Notes will be issued in minimum denominations of EUR 100,000 each and integral multiples of EUR 1,000 in excess thereof; b. the Notes will be represented on issue by one or more global registered notes (the "Global Notes"); and c. the Notes will be admitted to the Official List of the Irish Stock Exchange plc trading as Euronext Dublin and to trading on the Global Exchange Market thereof. As used in this opinion the "Notes" shall include, where the context so permits, the Global Notes and the rights and interests in the Global Notes. II. Role Our role in respect of the Documents (as defined below) has been limited to the issuing of this opinion letter. We have not been involved in drafting or negotiating any documents or agreements cross-referred to in any of the Documents, save for the drafting of the Board Resolution. Accordingly, we assume no responsibility for the adequacy of any of the other Documents. III. Documents For the purposes of this opinion letter, we have examined, and relied solely upon, originals or electronic copies of the documents as listed below, but not any documents or agreements cross-referred to in any such document: a) a scanned copy, received by email, of the prospectus, dated 23 February 2022 (the "Prospectus"); b) a scanned copy, received by email, of the preliminary prospectus supplement with respect to the Notes, dated 22 February 2024 ("Preliminary Prospectus Supplement"); c) a scanned copy, received by email, of the final prospectus supplement with respect to the Notes, dated 22 February 2024 ("Final Prospectus Supplement" and together with the Preliminary Prospectus Supplement the "Prospectus Supplement"); d) a scanned copy, received by email, of the Registration Statement; e) a copy of the executed Global Notes;
3 f) a scanned copy, received by email, of the executed indenture dated 8 March 2022, by and among AMS Europe, Boston Scientific Corporation and U.S. Bank Trust Company, National Association, as trustee; g) a scanned copy, received by email, of the executed written resolutions of the board of managing directors (bestuur) of AMS Europe (the "Board"), dated 20 February 2024, inter alia, authorising the issuance of the Notes and the performance of the transactions contemplated thereby ("Board Resolution"); h) a certified online excerpt (uittreksel), dated 27 February 2024, from the trade register of the Chamber of Commerce regarding the registration of AMS Europe with the Chamber of Commerce under number 34185686 ("AMS Europe Excerpt"); i) a scanned copy of the deed of incorporation (akte van oprichting) of AMS Europe, dated 30 January 2003 ("Deed of Incorporation"); j) a scanned copy of the articles of association (statuten) of AMS Europe, dated 19 April 2021, which, according to the AMS Europe Excerpt, are the articles of association of AMS Europe, which are in force on the date hereof and which have remained unaltered since that date; and k) the power of attorney granted by AMS Europe and incorporated in the Board Resolution authorising any one of Jonathan Richard Monson and Carla Madrid Magalhães Nascimbeni, each acting individually to execute, inter alia, the Global Notes on behalf of AMS Europe ("Power of Attorney"). The documents under a) through k) are hereinafter collectively referred to as "Documents". The Documents under g) through k) are hereinafter collectively referred to as "Corporate Documents". Words importing the plural include the singular and vice versa. Where reference is made to the laws of The Netherlands or to The Netherlands in a geographical sense, reference is made to the laws as in effect in the part of the Kingdom of The Netherlands (Koninkrijk der Nederlanden) that is located in Europe (Europese deel van Nederland) and to the geographical part of the Kingdom of The Netherlands that is located in Europe. Except as stated herein, we have not examined any documents entered into by or affecting AMS Europe or any corporate records of AMS Europe and have not made any other enquiries concerning AMS Europe.
4 IV. Assumptions In examining and describing the Documents and in giving the opinions expressed in this opinion letter, we have, to the extent necessary to form the opinions expressed in this opinion letter, with your permission, assumed the following: genuineness and authenticity (i) the genuineness of all signatures (including electronic signatures) on all Documents of the individual purported to have placed that signature; (ii) the authenticity and completeness of all documents submitted to us as originals and the conformity to originals of all conformed, copied, faxed or specimen documents and that all documents examined by us as draft or execution copy conform to the final and executed documents; (iii) if a Document has been signed electronically by any party using an electronic certification service, (i) the electronic signature solutions of such electronic certification service conform with the requirements of the "advanced electronic signature" under Article 26 of EU Regulation 910/2014 dated 23 July 2014 on electronic identification and trust services for electronic transactions known as "eIDAS" (Electronic Identification And Trust Services) (the "eIDAS Regulation") and as at the date of this opinion, such electronic certification service remains a qualified trust service provided in the European Union, or (ii) their electronic signatures or advanced electronic signatures (both within the meaning of the eIDAS Regulation) qualify as a sufficiently reliable method for signing in accordance with section 3:15a of the Dutch Civil Code (Burgerlijk Wetboek, "DCC"); (iv) that each of the Documents and the Notes accurately records all terms agreed between the parties thereto, there are no supplemental terms and conditions agreed by any party to the Documents and the Notes with third parties and that the documents specified in the Board Resolution are congruent with and accurately specify the Documents; (v) the accuracy and completeness as on the date hereof of the Corporate Documents and all the matters stated, certified or evidenced thereby and that the Prospectus, the Registration Statement, Board Resolution, the Power of Attorney and any other power of attorney used in relation to the Documents have on the date of this opinion letter not been amended, superseded, repealed, rescinded or annulled;
5 due existence, corporate and regulatory authority (vi) nothing in this opinion letter is affected by the provisions of the laws of any jurisdiction other than The Netherlands; (vii) under any applicable law (other than with respect to AMS Europe, the laws of The Netherlands) the Documents have been duly authorised and validly executed by all parties thereto (including AMS Europe); (viii) no works council (ondernemingsraad), nor central, group or European works council has been established, has been requested to be established, must mandatorily be established or is in the process of being established with respect to AMS Europe; (ix) (1) AMS Europe has not passed a resolution to voluntarily dissolve (ontbinden), merge (fuseren), de-merge (splitsen) or convert (omzetten) AMS Europe, (2) no petition has been presented nor an order made by a court for the bankruptcy (faillissement) or moratorium of payment (surseance van betaling) of AMS Europe and that AMS Europe has not been made subject to comparable insolvency proceedings in other jurisdictions, (3) no receiver, trustee, administrator (bewindvoerder) or similar officer has been appointed in respect of AMS Europe or its assets, (4) AMS Europe has not been subjected to measures on the basis of the Financial Institutions (Special Measures) Act (Wet bijzondere maatregelen financiële ondernemingen) and (5) no decision has been taken to dissolve (ontbinden) AMS Europe by (a) the Chamber of Commerce under article 2:19a of the DCC or (b) the competent court (rechtbank) under article 2:21 of the DCC. These assumptions are supported by (i) certifications and confirmation to that effect in the Board Resolution, (ii) confirmations obtained as of the date hereof from (a) the online central insolvency register (Centraal Insolventie Register) and (b) the EU Insolvency Register (EU Insolventieregister), and (iii) the confirmation obtained today from the Chamber of Commerce, that AMS Europe has not been declared bankrupt or dissolved nor a moratorium of payments has been granted, that no administrator (bewindvoerder) has been appointed and that the Chamber of Commerce does not intend to dissolve AMS Europe; (x) none of the managing directors of AMS Europe is nor will be subject to a civil law director disqualification (civielrechtelijk bestuursverbod) or suspension to act as a director (schorsing) imposed by a competent court pursuant to articles 106a through 106e of the Dutch Bankruptcy Act (Faillissementswet) or rule or regulation of similar application, nor have been or will be denied by a regulator
6 the authority to fulfil positions at regulated entities or other enterprises pursuant to article 1:87 of the Financial Supervision Act (Wet op het financieel toezicht); (xi) to the extent that the Documents or the Global Notes were executed by an attorney-in-fact acting pursuant to a power of attorney issued by AMS Europe, under the laws governing the existence and extent of the powers of such attorney-in-fact as determined pursuant to the Hague Convention on the Law Applicable to Agency (other than the laws of The Netherlands), such power of attorney authorises such attorney-in-fact to bind AMS Europe towards the other party or parties thereto; (xii) none of the managing directors of AMS Europe has nor will have a conflict of interest (either direct or indirect) which would preclude any of the managing directors of AMS Europe from participating in the deliberations and the decision-making process concerned in accordance with article 2:239(6) of the DCC; (xiii) that the Board Resolution correctly reflects the resolutions made by the relevant corporate body of AMS Europe in respect of the transactions contemplated by the Notes and that neither a board regulation (bestuursreglement) nor an assignment of duties (taakverdeling) of the Board have been adopted containing provisions that would preclude the Board from validly adopting the written resolutions contained in the Board Resolution; (xiv) the Board has not received and will not receive a written resolution from the general meeting (algemene vergadering) of AMS Europe as referred to in paragraph 1 of article 20 of the articles of association of AMS Europe; (xv) AMS Europe has its "centre of main interests" (as that term is used in article 3(1) of the Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) ("EU Insolvency Regulation")) in The Netherlands and AMS Europe does not have an "establishment" (as defined in article 2(10) of the EU Insolvency Regulation) in an EU Member State (other than The Netherlands); valid notarial deed (xvi) that the Deed of Incorporation is a valid notarial deed (notariële akte), that the contents thereof are correct and complete and that there are no defects in the incorporation of AMS Europe on the basis of which a court may dissolve AMS Europe; and
7 corporate interest (xvii) the execution of the Notes and the performance of the transactions contemplated thereby will be in the best corporate interest of AMS Europe and are not prejudicial to its present and future creditors. We have not investigated or verified and we do not express an opinion on the accuracy of the facts, representations and warranties as to facts set out in the Documents, the Notes and in any other document on which we have relied in giving this opinion letter and for the purpose of this opinion letter, we have assumed that such facts are correct. We do not express an opinion on matters of fact, matters of law of any jurisdiction other than The Netherlands, nor on tax, anti-trust law, insider dealing, data protection, unfair trade practices, market abuse laws, sanctions or international law, including, without limitation, the laws of the European Union, including Directive 2015/2366/EU of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, except to the extent the laws of the European Union (other than anti-trust and tax law) have direct force and effect in The Netherlands. No opinion is given on commercial, accounting or non-legal matters or on the ability of the parties to meet their financial or other obligations under the Documents. V. Opinion Based on and subject to the foregoing (including the assumptions made above) and subject to any matters, documents or events not disclosed to us by the parties concerned and having regard to such legal considerations as we deem relevant and subject to the qualifications listed below, we are of the opinion that: Corporate Status and Power 1. AMS Europe is duly incorporated and validly existing under the laws of The Netherlands as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and has the corporate power to enter into and execute the Global Notes and to issue the Notes and to undertake and perform the obligations expressed to be assumed by it under the Notes. Corporate Action 2. The execution of the Global Notes and the issue of the Notes and the performance of the obligations thereunder by AMS Europe have been duly authorised by all requisite corporate action required by its articles of association and by Dutch corporate law.
8 Execution 3. The Global Notes have been duly executed on behalf of AMS Europe. VI. Qualifications The opinions expressed in this opinion letter are subject to and limited by the following qualifications: general principles of Dutch law (i) The opinions expressed in this opinion letter are subject to and limited by the provisions of any applicable bankruptcy, insolvency, reorganisation or moratorium laws and other laws of general application relating to or affecting generally the enforcement of creditors' rights and remedies (including the doctrine of creditors' prejudice (Actio Pauliana) within the meaning of article 3:45 of the DCC and/or article 42 et. sec. of the Dutch Bankruptcy Act), sanctions and measures pursuant to applicable export control regulations, United Nations, European Community or Netherlands sanctions, implemented, effective or sanctioned in inter alia, The Netherlands Sanction Act 1977 (Sanctiewet 1977), the Economic Offences Act (Wet Economische Delicten), the Environmental Management Act (Wet Milieubeheer), the Financial Transactions Emergency Act (Noodwet financieel verkeer), the Council Regulation (EC) No 2271/96 of 22 November 1996 on protecting against the effects of the extra-territorial application of legislation adopted by a third country (Anti-Boycott Regulation), the Act on Special Measures for Financial Enterprises (Interventiewet). representation (ii) Powers of attorney terminate (1) by revocation (herroeping) by the person issuing any such power of attorney ("Principal"), (2) by notice of termination (opzegging) given by the attorney appointed under such power of attorney ("Attorney"), or (3) upon the death of, the commencement of legal guardianship over (ondercuratelestelling), the bankruptcy (faillissement) of, or the declaration that a debt settlement arrangement (schuldsaneringsregeling) will apply to (a) the Attorney unless otherwise provided or (b) the Principal. Powers of attorney, which are expressed to be irrevocable, are not capable of being revoked and (unless the power of attorney provides otherwise) will not terminate upon the death of or the commencement of legal guardianship of the Principal insofar as they extend to the performance of legal acts (rechtshandelingen) which are in the interest of the Attorney or a third party. However, at the request of the Principal, an heir or a trustee of such person, the court may amend or cancel an irrevocable power of attorney for significant
9 reasons (gewichtige redenen). In the event the Principal is granted a moratorium of payments (surseance van betaling), a power of attorney can only be exercised with the cooperation of the court-appointed administrator (bewindvoerder). Any appointment of a process agent is subject to the rules applicable to powers of attorney set forth herein and to the requirement that there should be a reasonable and balanced interest for each party to the appointment. (iii) Article 2:7 of the DCC entitles companies to invoke the nullity of a legal act (ultra vires) if such legal act (rechtshandeling) cannot serve to realise the objects (doel) of such company and the other parties thereto knew, or should have known without an investigation of their own (wist of zonder eigen onderzoek moest weten), that such objects have been exceeded for which determination not only description of the objects clause is decisive, but all relevant circumstances have to be taken into account such as whether the interests of the company were served by the transaction. The nullity can only be invoked by the company itself (or the trustee (curator) in bankruptcy) and not by the other parties involved, if the aforementioned requirements are met. Most authoritative legal writers agree that acts of a company which are (a) within the objects clause as contained in the articles of association of the company and (b) in the actual interest of the company in the sense that such acts are conducive to the realisation of the objects of the company as laid down in its articles of association, do not exceed the objects of the company and therefore are not subject to nullification pursuant to article 2:7 of the DCC, which view is supported by the Dutch Supreme Court. In practice, the concept of ultra vires has rarely been applied in court decisions in The Netherlands. Only under exceptional circumstances have transactions been considered to be ultra vires and consequently have been annulled. Nullification of a transaction can result in (internal) liability of the managing directors toward the legal entity. miscellaneous provisions (iv) The term "valid" means that the obligations to which this term relates are of a type which under the laws of The Netherlands are generally recognised or are generally enforceable: specific performance, however, may not always be granted by the courts of The Netherlands.
10 VII. Confidentiality and Reliance This opinion is for your benefit in connection with the Registration Statement and the issuance of the Notes thereunder and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. In issuing this opinion letter we do not assume any obligation to notify or to inform you of any developments subsequent to its date that might render its contents untrue or inaccurate in whole or in part at such time. This opinion letter: (a) expresses and describes Dutch legal concepts in English and not in their original Dutch terms. These concepts may not be identical to the concepts described by the English translations; consequently this opinion letter is issued and may only be relied upon on the express condition that any issues of interpretation or liability issues arising under this opinion letter will be governed by the laws of The Netherlands and be brought before a court of The Netherlands; (b) speaks as of the date stated above; (c) is addressed to you and is solely for your benefit; and (d) is strictly limited to the matters set forth herein and no opinion may be inferred or implied beyond that expressly stated herein. We consent to the inclusion of this opinion letter as an exhibit to Boston Scientific’s Current Report on Form 8-K and to its incorporation into the Registration Statement and to the use of our name under the heading "Legal Matters" in the prospectus forming a part of the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933 or the rules and regulations of the SEC thereunder. In giving this consent, we do not imply that we are experts under the U.S. Securities Act of 1933, as amended or the rules and registrations of the SEC issued thereunder with respect to any part of the Registration Statement, including this opinion letter.
11 The opinions expressed in this opinion letter are limited in all respects to and are to be construed and interpreted in accordance with the laws of The Netherlands in force on the date of this opinion letter and as they are presently interpreted under published authoritative case law as at present in effect. This opinion letter is given on behalf of Baker & McKenzie Amsterdam N.V. and not by or on behalf of Baker & McKenzie International (a Swiss Verein) or any other member thereof. In this opinion letter the expressions "we", "us", "our" and similar expressions should be construed accordingly. Yours sincerely, /s/ Ph.J.G. Steffens /s/ T.G.A. Alferink Ph.J.G. Steffens T.G.A. Alferink
Exhibit 99.1
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| Boston Scientific Announces Pricing of €2.0 Billion of Senior Notes |
MARLBOROUGH, Mass., February 22, 2024 – Boston Scientific Corporation (the “Company”) (NYSE: BSX) today announced that American Medical Systems Europe B.V., its wholly owned finance subsidiary, has priced a public offering of €750,000,000 aggregate principal amount of 3.375% notes due 2029 and €1,250,000,000 aggregate principal amount of 3.500% notes due 2032 (collectively, the “Notes”). The Notes will be fully and unconditionally guaranteed by the Company. The offering is being made pursuant to a registration statement filed with the U.S. Securities and Exchange Commission.
The offering is expected to close on February 27, 2024, subject to customary closing conditions. The Company intends to use the net proceeds from the offering, together with borrowings under its commercial paper program and cash on hand, to finance the purchase price of the Company’s previously announced agreement to acquire Axonics, Inc. and to pay related fees and expenses and, to the extent that the net proceeds from the offering of the Notes are not used for such purposes, to fund the repayment at maturity of the Company’s 3.450% senior notes due March 2024 and to pay accrued and unpaid interest with respect to such notes, and for general corporate purposes.
Nothing herein shall constitute an offer to sell or the solicitation of an offer to buy the securities, nor shall there be any sale of the securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to qualification under the securities laws of any such state or jurisdiction. The offering is being made by means of a prospectus and related preliminary prospectus supplement only, copies of which or information concerning this offering may be obtained by contacting the joint book-running managers: Barclays Bank PLC, toll-free at 1-888-603-5847; Citigroup Global Markets Europe AG, toll-free at 1-800-831-9146; or Société Générale, toll-free at 1-855-881-2108.
About Boston Scientific
Boston Scientific transforms lives through innovative medical technologies that improve the health of patients around the world. As a global medical technology leader for more than 40 years, we advance science for life by providing a broad range of high-performance solutions that address unmet patient needs and reduce the cost of health care. Our portfolio of devices and therapies helps physicians diagnose and treat complex cardiovascular, respiratory, digestive, oncological, neurological and urological diseases and conditions. Learn more at www.bostonscientific.com and connect on LinkedIn and X, formerly Twitter.
Cautionary Statement Regarding Forward-Looking Statements
This press release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements may be identified by words like “anticipate,” “expect,” “project,” “believe,” “plan,” “estimate,” “intend” and similar words. These forward-looking statements are based on our beliefs, assumptions and estimates using information available to us at the time and are not intended to be guarantees of future events or performance. These forward-looking statements include, among other things, statements regarding the proposed offering and intended use of proceeds. If our underlying assumptions turn out to be incorrect, or if certain risks or uncertainties materialize, actual results could vary materially from the expectations and projections expressed or implied by our forward-looking statements. These factors, in some cases, have affected and in the future (together with other factors) could affect our ability to implement our business strategy and may cause actual results to differ materially from those contemplated by the forward-looking statements
expressed in this press release. As a result, readers are cautioned not to place undue reliance on any of our forward-looking statements.
Risks and uncertainties that may cause such differences include, among other things: economic conditions, including the impact of foreign currency fluctuations; future U.S. and global political, competitive, reimbursement and regulatory conditions; geopolitical events; manufacturing, distribution and supply chain disruptions and cost increases; disruptions caused by cybersecurity events; disruptions caused by public health emergencies or extreme weather or other climate change-related events; labor shortages and increases in labor costs; variations in outcomes of ongoing and future clinical trials and market studies; new product introductions and the market acceptance of those products; market competition for our products; expected pricing environment; expected procedural volumes; the closing and integration of acquisitions; demographic trends; intellectual property rights; litigation; financial market conditions; the execution and effect of our restructuring program; the execution and effect of our business strategy, including our cost-savings and growth initiatives; our ability to achieve environmental, social and governance goals and commitments; and future business decisions made by us and our competitors. New risks and uncertainties may arise from time to time and are difficult to predict. All of these factors are difficult or impossible to predict accurately and many of them are beyond our control. For a further list and description of these and other important risks and uncertainties that may affect our future operations, see Part I, Item 1A – Risk Factors in our most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission, which we may update in Part II, Item 1A – Risk Factors in Quarterly Reports on Form 10-Q we will file hereafter. We disclaim any intention or obligation to publicly update or revise any forward-looking statements to reflect any change in our expectations or in events, conditions or circumstances on which those expectations may be based, or that may affect the likelihood that actual results will differ from those contained in the forward-looking statements. This cautionary statement is applicable to all forward-looking statements contained in this press release.
CONTACTS:
Emily Anderson
Media Relations
(617) 515-2000 (office)
Emily.Anderson2@bsci.com
Lauren Tengler
Investor Relations
(508) 683-4479
BSXInvestorRelations@bsci.com
Exhibit 99.2
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| Boston Scientific Announces Completion of €2.0 Billion Offering of Senior Notes |
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MARLBOROUGH, Mass., February 27, 2024 – Boston Scientific Corporation (NYSE: BSX) (the “Company”) today announced that American Medical Systems Europe B.V., its wholly owned finance subsidiary, has completed a public offering of €750,000,000 aggregate principal amount of 3.375% notes due 2029 and €1,250,000,000 aggregate principal amount of 3.500% notes due 2032 (collectively, the “Notes”). The Notes are fully and unconditionally guaranteed by the Company. Application has been made for the Notes to be admitted to the Official List of the Irish Stock Exchange plc trading as Euronext Dublin and to trading on the Global Exchange Market thereof.
The Company intends to use the net proceeds from the offering of the Notes, together with borrowings under its commercial paper program and cash on hand, to finance the purchase price of the Company’s previously announced agreement to acquire Axonics, Inc. and to pay related fees and expenses and, to the extent that the net proceeds from the offering of the Notes are not used for such purposes, to fund the repayment at maturity of the Company’s 3.450% senior notes due March 2024 and to pay accrued and unpaid interest with respect to such notes, and for general corporate purposes.
About Boston Scientific
Boston Scientific transforms lives through innovative medical technologies that improve the health of patients around the world. As a global medical technology leader for more than 40 years, we advance science for life by providing a broad range of high-performance solutions that address unmet patient needs and reduce the cost of health care. Our portfolio of devices and therapies helps physicians diagnose and treat complex cardiovascular, respiratory, digestive, oncological, neurological and urological diseases and conditions. Learn more at www.bostonscientific.com and connect on LinkedIn and X, formerly Twitter.
Cautionary Statement Regarding Forward-Looking Statements
This press release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements may be identified by words like “anticipate,” “expect,” “project,” “believe,” “plan,” “estimate,” “intend” and similar words. These forward-looking statements are based on our beliefs, assumptions and estimates using information available to us at the time and are not intended to be guarantees of future events or performance. These forward-looking statements include, among other things, statements regarding the intended use of proceeds. If our underlying assumptions turn out to be incorrect, or if certain risks or uncertainties materialize, actual results could vary materially from the expectations and projections expressed or implied by our forward-looking statements. These factors, in some cases, have affected and in the future (together with other factors) could affect our ability to implement our business strategy and may cause actual results to differ materially from those contemplated by the forward-looking statements expressed in this press release. As a result, readers are cautioned not to place undue reliance on any of our forward-looking statements.
Risks and uncertainties that may cause such differences include, among other things: economic conditions, including the impact of foreign currency fluctuations; future U.S. and global political,
competitive, reimbursement and regulatory conditions; geopolitical events; manufacturing, distribution and supply chain disruptions and cost increases; disruptions caused by cybersecurity events; disruptions caused by public health emergencies or extreme weather or other climate change-related events; labor shortages and increases in labor costs; variations in outcomes of ongoing and future clinical trials and market studies; new product introductions and the market acceptance of those products; market competition for our products; expected pricing environment; expected procedural volumes; the closing and integration of acquisitions; demographic trends; intellectual property rights; litigation; financial market conditions; the execution and effect of our restructuring program; the execution and effect of our business strategy, including our cost-savings and growth initiatives; our ability to achieve environmental, social and governance goals and commitments; and future business decisions made by us and our competitors. New risks and uncertainties may arise from time to time and are difficult to predict. All of these factors are difficult or impossible to predict accurately and many of them are beyond our control. For a further list and description of these and other important risks and uncertainties that may affect our future operations, see Part I, Item 1A – Risk Factors in our most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission, which we may update in Part II, Item 1A – Risk Factors in Quarterly Reports on Form 10-Q we will file hereafter. We disclaim any intention or obligation to publicly update or revise any forward-looking statements to reflect any change in our expectations or in events, conditions or circumstances on which those expectations may be based, or that may affect the likelihood that actual results will differ from those contained in the forward-looking statements. This cautionary statement is applicable to all forward-looking statements contained in this press release.
CONTACTS:
Emily Anderson
Media Relations
(617) 515-2000 (office)
Emily.Anderson2@bsci.com
Lauren Tengler
Investor Relations
(508) 683-4479
BSXInvestorRelations@bsci.com
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