SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
TYCO INTERNATIONAL LTD.
(Name of Issuer)
COMMON STOCK
(Title of Class and Securities)
902120 10
(CUSIP Number of Class of Securities)
Paul S. Levy
Joseph Littlejohn & Levy
450 Lexington Avenue - Suite 3350
New York, New York 10017
212-286-8600
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copy to:
J. Gregory Milmoe, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
212-735-3000
October 19, 1994
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the
subject of this Statement because of Rule 13d-1(b)(3) or
(4), check the following: ( )
Check the following box if a fee is being paid with this
Statement: (X)
SCHEDULE 13D
CUSIP No. 902120 10
(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
JOSEPH LITTLEJOHN & LEVY FUND, L.P. E.I.N. 13-3599396
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
OO (See item 3)
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
_________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
(7) SOLE VOTING POWER
NUMBER OF
SHARES 3,771,491 (See item 4)
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH _________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON
WITH 3,747,605 (See item 4)
(10) SHARED DISPOSITIVE POWER
23,886 (See item 4)
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,771,491 (See item 4)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.12%
(14) TYPE OF REPORTING PERSON*
PN
SCHEDULE 13D
CUSIP No. 902120 10
(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
JLL ASSOCIATES, L.P. E.I.N. 13-3599395
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
OO (See item 3)
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
_________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
(7) SOLE VOTING POWER
NUMBER OF
SHARES 3,771,491 (See item 4)
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH _________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON
WITH 3,747,605 (See item 4)
(10) SHARED DISPOSITIVE POWER
23,886 (See item 4)
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,771,491 (See item 4)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.12%
(14) TYPE OF REPORTING PERSON*
PN
SCHEDULE 13D
CUSIP No. 902120 10
(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
PETER A. JOSEPH ###-##-####
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
OO (See item 3)
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
_________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
(7) SOLE VOTING POWER
NUMBER OF
SHARES 3,771,491 (See item 4)
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH _________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON
WITH 3,747,605 (See item 4)
(10) SHARED DISPOSITIVE POWER
23,886 (See item 4)
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,771,491 (See item 4)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.12%
(14) TYPE OF REPORTING PERSON*
IN
SCHEDULE 13D
CUSIP No. 902120 10
(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
ANGUS C. LITTLEJOHN ###-##-####
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
OO (See item 3)
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
_________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
(7) SOLE VOTING POWER
NUMBER OF
SHARES 3,771,491 (See item 4
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH _________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON
WITH 3,747,605 (See item 4)
(10) SHARED DISPOSITIVE POWER
23,886 (See item 4)
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,771,491 (See item 4)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.12%
(14) TYPE OF REPORTING PERSON*
IN
SCHEDULE 13D
CUSIP No. 902120 10
(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
PAUL S. LEVY ###-##-####
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
OO (See item 3)
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
_________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
(7) SOLE VOTING POWER
NUMBER OF
SHARES 3,771,491 (See item 4)
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH _________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON
WITH 3,747,605 (See item 4)
(10) SHARED DISPOSITIVE POWER
23,886 (See item 4)
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,771,491 (See item 4)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.12%
(14) TYPE OF REPORTING PERSON*
IN
SCHEDULE 13D
CUSIP No. 902120 10
(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
YVONNE CLIFF ###-##-####
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
OO (See item 3)
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
_________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
(7) SOLE VOTING POWER
NUMBER OF
SHARES 3,771,491 (See item 4)
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH _________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON
WITH 3,747,605 (See item 4)
(10) SHARED DISPOSITIVE POWER
23,886 (See item 4)
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,771,491 (See item 4)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.12%
(14) TYPE OF REPORTING PERSON*
IN
Item 1. Security and Issuer.
This Statement relates to the common stock
("Company Common Stock"), par value $.50 per share, of Tyco
International Ltd., a Massachusetts corporation (the
"Company"), which has its principal executive offices at One
Tyco Park, Exeter, New Hampshire 03833.
Item 2. Identity and Background.
This Statement is being filed by Joseph Littlejohn
& Levy Fund, L.P., a Delaware limited partnership (the "Fund"),
JLL Associates, L.P., a Delaware limited partnership ("JLL
Associates"), Peter A. Joseph, Angus C. Littlejohn, Jr., Paul S.
Levy and Yvonne Cliff (collectively, the "Reporting Persons").
JLL Associates is the general partner of the Fund. Messrs.
Joseph, Littlejohn and Levy and Ms. Cliff are each United
States citizens and are the general partners of JLL Associates.
Each of the Reporting Persons is engaged principally in the
business of investing in securities. The principal business
address of each of the Reporting Persons is 450 Lexington
Avenue - Suite 3350, New York, New York 10017.
During the last five years, none of the Reporting
Persons has been convicted in any criminal proceeding
(excluding traffic violations or similar misdemeanors) or has
been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
Pursuant to the Merger (as defined in Item 4),
which took place on October 19, 1994, the Fund received 1.29485
shares of Company Common Stock for each share of Kendall common
stock owned by the Fund at the time of the Merger. As a result
of the Merger, the Fund received 3,747,605 shares of Company
Common Stock (net of the Company Escrowed Shares (as defined in
Item 4)) having a market value of $49.375 per share in exchange
for the surrender of 2,894,239 shares of Kendall common stock
(net of the Kendall Escrowed Shares (as defined in Item 4)).
Item 4. Purpose of Transaction.
As further described in the Joint Proxy Statement,
dated September 21, 1994, of Kendall and the Company (the
"Joint Proxy Statement"), and the Agreement and Plan of Merger,
dated as of July 13, 1994, by and among the Company, T
Acquisition Corp., a wholly owned subsidiary of the Company
("Acquisition"), and Kendall (the "Merger Agreement"), on
October 19, 1994, Acquisition merged with and into Kendall (the
"Merger"), as a result of which Kendall became a wholly owned
subsidiary of the Company. In consideration of the Merger, the
Fund acquired 3,771,491 (inclusive of the Company Escrowed
Shares, as defined below), or approximately 5.12% of the
outstanding Company Common Stock (based upon a total of
73,591,207 shares of Company Common Stock issued and
outstanding as of October 19, 1994, such number derived from
the number of Company and Kendall shares outstanding as of
September 12, 1994 as reported in the Joint Proxy Statement,
plus the amount of shares of Company Common Stock issued upon
the approval of the Company's 1994 Restricted Stock Plan and
the exercise of Kendall warrants prior to the Merger).
Immediately prior to the consummation of the
Merger, 18,446 shares (the "Kendall Escrowed Shares") of
Kendall common stock beneficially owned by the Fund were held
of record by an escrow agent and were subject to an Equity
Reallocation Agreement, dated July 7, 1992 (the "Equity
Reallocation Agreement"), among Kendall, certain stockholders
of Kendall and such escrow agent, which required such shares to
be transferred to third parties upon the exercise of rights
("Equity Reallocation Rights") to purchase such shares pursuant
to the Equity Reallocation Agreement. Pursuant to the Merger,
the Equity Reallocation Rights were converted to rights to
purchase 23,886 shares of Company Common Stock (the "Company
Escrowed Shares") which were placed into escrow with Mellon
Bank, N.A., as successor escrow agent and which remain subject
to the terms of the Equity Reallocation Agreement. The
foregoing summary of the provisions of the Equity Reallocation
Agreement is qualified in its entirety by reference to the
Equity Reallocation Agreement attached hereto as Exhibit A.
The securities of the Company to which this
Statement relates are held by the Fund as an investment.
Except as otherwise set forth herein, the Reporting Persons do
not presently have any plans or proposals which relate to or
would result in (i) the acquisition by any person of additional
securities of the Company or the disposition of securities of
the Company; (ii) an extraordinary corporate transaction such
as a merger, reorganization or liquidation, involving the
Company or any of its subsidiaries; (iii) a sale or transfer of
a material amount of assets of the Company or any of its
subsidiaries; (iv) any change in the present Board of Directors
or to fill existing vacancies on the Board; (v) any material
change in the present capitalization or dividend policies of
the Company; (vi) any other material change in the Company's
business or corporate structure; (vii) changes in the Company's
Certificate of Incorporation or By-Laws or other actions which
may impede the acquisition of control of the Company by any
person; (viii) causing a class of securities of the Company to
be delisted from a national securities exchange or to cease to
be authorized to be quoted on an inter-dealer quotation system
of a registered national securities association; (ix) causing a
class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934; or (x) any action similar to
any of those enumerated above.
Subject to applicable law and the terms of the
Stockholder Agreement (as defined in Item 6), the Reporting
Persons may, individually or jointly, acquire shares of Company
Common Stock or sell some or all of the shares of Company
Common Stock which may be owned by them from time to time,
depending on their evaluation of the Company's business,
prospects and financial condition, the market for the shares,
other opportunities available to the Reporting Persons, general
economic conditions, money and stock market conditions and
other future developments.
Item 5. Interest in Securities of the Issuer.
The Fund is the record owner of 3,747,605 shares of
Company Common Stock (the "JLL Shares") and as such has the
power to vote and dispose of the JLL Shares. In addition, the
Fund has the power to vote, but not the power to dispose of,
23,886 shares of Company Common Stock held in escrow on its
behalf by the record owner, Mellon Bank, N.A., as Trustee (See
Item 3). The JLL Shares, plus the Company Escrowed Shares,
constitute 5.12% of the outstanding shares of Company Common
Stock (based upon a total of 73,591,207 shares of Company
Common Stock issued and outstanding as of October 19, 1994,
such number derived from the number of Company and Kendall
shares outstanding as of September 12, 1994 as reported in the
Joint Proxy Statement, plus the amount of shares of Company
Common Stock issued upon the approval of the Company's 1994
Restricted Stock Plan and the exercise of Kendall warrants
prior to the Merger).
JLL Associates, as general partner of the Fund, and
Messrs. Joseph, Littlejohn and Levy and Ms. Cliff, as general
partners of JLL Associates, may be deemed to have voting and
dispositive power with respect to the JLL Shares and voting
power with respect to the Company Escrowed Shares and, pursuant
to Rule 13d-3(a) promulgated under the Securities Exchange Act
of 1934 (the "Exchange Act"), each may be deemed to be the
beneficial owner of all the JLL Shares and the Company Escrowed
Shares. However, the filing of this Statement shall not be
construed as an admission for the purposes of Section 13(d) and
13(g) or under any other provision of the Exchange Act or the
rules promulgated thereunder or for any other purpose that JLL
Associates, Messrs. Joseph, Littlejohn or Levy or Ms. Cliff is
a beneficial owner of any JLL Shares or Company Escrowed
Shares.
Except as described in Item 4 hereof with respect
to the Merger, the Reporting Persons have not effected any
transactions in shares of Company Common Stock during the past
60 days.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer.
Concurrently with the execution of the Merger
Agreement, the Company and the Fund entered into a Stockholder
Agreement (as subsequently amended by the Stockholder Agreement
Modification, dated October 13, 1994, the "Stockholder
Agreement"). The Stockholder Agreement provides, in relevant
part, that the Fund may only transfer Company Common Stock to
its partners (each a "Partner Transferee") in accordance with
its partnership agreement as in effect on the date of the
Stockholder Agreement or as in effect from time to time after
the Publication Time and with the written consent of the
Company, not to be unreasonably withheld; provided, that the
Partner Transferees may not engage in any sale, exchange,
transfers pledges, dispositions or any other transactions
which would result in a reduction in the risk of ownership (any
such transaction, a "Sale") of Company Common Stock (other than
to an affiliate of such Partner Transferee who agrees to be
bound by the terms of the Stockholder Agreement) prior to the
earlier to occur of the Publication Time or termination of the
Stockholder Agreement; provided, further that such restrictions
on Sales apply, in relevant part, only to shares of Company
Common Stock obtained by a Partner Transferee (i) from the Fund
or (ii) in the Merger in exchange for Kendall common stock
obtained by the Partner Transferee from the Fund. Other than
such distributions to Partner Transferees, the Fund has agreed
not to engage in any sale of securities of the Company until
after the Publication Time.
"Publication Time" is defined as the time at which
the Company has published financial results covering at least
30 days of combined operations of the Company and Kendall after
the effective time of the Merger.
The Stockholder Agreement provides that the Company
will take such action as is necessary to cause Paul S. Levy, or
such other person as may be designated by the Fund who is
reasonably satisfactory to the Company, to be elected to serve
as a director of the Company. The Company has also agreed that
for so long as the Fund continues to hold at least 20% of the
shares of Company Common Stock received by it in the Merger,
the Company will include one person designated in writing by
the Fund and reasonably satisfactory to the Company in the
slate of nominees recommended by the Board of Directors of the
Company to its stockholders for election at each annual meeting
of stockholders of the Company and use its reasonable best
efforts to cause such designee to be elected as a director of
the Company.
Under the Stockholder Agreement, the Company agreed
to assume and perform the obligations of Kendall under the
Registration Rights Agreement, dated as of July 7, 1992, among
Kendall and certain securityholders of Kendall (as amended by
Amendment No. 1 to Registration Rights Agreement, dated July
11, 1994, the "Registration Rights Agreement"), including the
Fund, and evidenced such agreement by executing an Assumption
Agreement, dated October 19, 1994 (the "Assumption Agreement").
Pursuant to the Registration Rights Agreement, the Fund may,
subject to certain conditions, require the Company to register
upon request the shares of Company Common Stock owned by it
under the Securities Act of 1933. In addition, the Fund has
certain "piggyback" rights to participate in other
registrations of common stock by the Company.
The Stockholder Agreement also contains provisions
relating to the restrictions on sales of Company Common Stock
received in the Merger by affiliates of Kendall pursuant to
Rule 145 under the Securities Act of 1933, as they may apply to
the Fund.
The foregoing summary of provisions of the
Stockholder Agreement, the Stockholder Agreement Modification,
the Registration Rights Agreement, Amendment No. 1 to
Registration Rights Agreement and the Assumption Agreement is
qualified in its entirety by reference to the Stockholder
Agreement, the Stockholder Agreement Modification, the
Registration Rights Agreement, Amendment No. 1 to Registration
Rights Agreement and the Assumption Agreement attached hereto
as Exhibits B, C, D, E and F respectively.
Item 7. Material to be Filed as Exhibits.
Exhibit A Equity Reallocation Agreement, dated July
7, 1992, among Tyco International, Ltd. (as
successor to Kendall International, Inc.),
certain stockholders of Tyco (formerly
stockholders of Kendall International,
Inc.) and Mellon Bank, N.A., as successor
Escrow Agent. [Incorporated by reference to
Exhibit 10.46.5 to the Registration
Statement on Form 10 of Kendall
International, Inc. File 0-20602]
Exhibit B Stockholder Agreement, dated as of July 13,
1994, between Joseph Littlejohn & Levy
Fund, L.P. and Tyco International Ltd.
[Incorporated by reference to Exhibit 10(c)
to the Current Report on form 8-K of Tyco
International Ltd., filed July 26, 1994]
Exhibit C Stockholder Agreement Modification, dated
October 13, 1994, between Joseph Littlejohn
& Levy Fund, L.P. and Tyco International
Ltd.
Exhibit D Registration Rights Agreement, dated as of
July 7, 1992, among CDK Holding Corporation
[now known as Kendall International, Ltd.]
and certain securityholders thereof.
[Incorporated by reference to Exhibit 4.42
to the Registration Statement on Form 10 of
Kendall International, Inc. File No. 0-
20602]
Exhibit E Amendment No. 1 to Registration Rights
Agreement, dated as of July 11, 1994, among
CDK Holding Corporation [now known as
Kendall International, Ltd.] and certain
securityholders thereof.
Exhibit F Assumption Agreement, dated October 19,
1994, of Tyco International Ltd.
Exhibit G Joint Filing Agreement, by and among Joseph
Littlejohn & Levy Fund, L.P., JLL
Associates, L.P., Messrs. Joseph,
Littlejohn and Levy and Ms. Cliff.
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete and
correct.
Dated: November 3, 1994
JOSEPH LITTLEJOHN & LEVY
FUND, L.P.
By: JLL ASSOCIATES, L.P.
General Partner
By: /s/ Paul S. Levy
Paul S. Levy
General Partner
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete and
correct.
Dated: November 3, 1994
JLL ASSOCIATES, L.P.
By: /s/ Paul S. Levy
Paul S. Levy
General Partner
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete and
correct.
Dated: November 3, 1994
/s/ Paul S. Levy
Paul S. Levy
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete and
correct.
Dated: November 3, 1994
/s/ Yvonne Cliff
Yvonne Cliff
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete and
correct.
Dated: November 3, 1994
/s/ Peter A. Joseph
Peter A. Joseph
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete and
correct.
Dated: November 3, 1994
/s/ Angus C. Littlejohn, Jr.
Angus C. Littlejohn, Jr.
EXHIBIT C
October 3, 1994
Joseph Littlejohn & Levy Fund, L.P.
450 Lexington Avenue
Suite 3350
New York, New York 10017
Attention: Paul S. Levy
Stockholder Agreement Modification
Ladies and Gentlemen:
Reference is hereby made to the Stockholder
Agreement, dated as of July 13, 1994 (as such agreement may be
amended, supplemented, waived or otherwise modified from time
to time, the "Stockholder Agreement"), between Joseph
Littlejohn & Levy Fund, L.P. and Tyco International Ltd.
("Tyco").
In accordance with Section 11 of the Stockholder
Agreement, Tyco hereby agrees that Section 3 of the Stockholder
Agreement is hereby amended as follows:
1. Section 3(a)(iii) is hereby amended and restated
in its entirety to read as follows:
"iii. The Holder may only distribute Company
Common Stock and Parent Shares, and Warrants and
Reallocation Certificates (as such terms are defined in
Section 5), to its Partner Transferees in accordance with
the Holder's partnership agreement as in effect on the
date hereof or as from time to time in effect after the
Publication Time (as hereinafter defined); provided,
however, that each such Partner Transferee shall not
engage in any Sale (other than to an affiliate of such
Partner Transferee, which affiliate shall be bound hereby
to the same extent as such Partner Transferee) of Company
Common Stock, Warrants, Reallocation Certificates, Company
Common Stock issued upon exercise of any Warrants or
Reallocation Certificates, Parent Shares received by the
Holder or such Partner Transferee in the Merger or Parent
Shares issued upon exercise of the Warrants or
Reallocation Certificates, prior to the earlier to occur
of the Publication Time or the Termination Date; provided,
further, that the foregoing restrictions upon Sales by
Partner Transferees of Company Common Stock or Parent
Shares shall apply only to Company Common Stock or Parent
Shares obtained by a Partner Transferee (x) from the
Holder, (y) upon exercise of Warrants or Reallocation
Certificates distributed to a Partner Transferee by the
Holder or (z) in the Merger in exchange for Company Common
Stock obtained by a Partner Transferee from the Holder or
upon exercise of Warrants or Reallocation Certificates
distributed to a Partner Transferee by the Holder."
2. The first sentence of Section 3(a)(iv) is hereby
amended and restated in its entirety to read as follows:
"iv. It shall be a condition of any distribution
to a Partner Transferee that, prior to or concurrently
with such distribution, the Holder shall inform such
Partner Transferee that it shall be bound by all terms and
provisions of this Section 3(a) applicable to a Partner
Transferee, including that it will be subject to the stop
transfer instructions and legend requirements referred to
in the following sentence."
Except as expressly amended hereby, all of the
terms and provisions of the Stockholder Agreement are and shall
remain in full force and effect.
If you are in agreement with the foregoing, please
indicate your acceptance thereof by signing in the appropriate
space below and returning an executed copy of this letter
agreement to Tyco.
Very truly yours,
TYCO INTERNATIONAL LTD.
By: /s/ Irving Gutin
Name: Irving Gutin
Title: Senior Vice President
Accepted and agreed as of
the date first above written:
JOSEPH LITTLEJOHN & LEVY
FUND, L.P.
By: JLL ASSOCIATES L.P.
General Partner
By: /s/ Paul S. Levy
Name: Paul S. Levy
Title: General Partner
EXHIBIT E
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1, dated as of July 11, 1994 (this
"Amendment"), to the Registration Rights Agreement, dated as of
July 7, 1992 (as amended by this Amendment, the "Registration
Rights Agreement"), among Kendall International, Inc., a
Delaware corporation formerly named CDK Holding Corporation
(the "Company"), and The Clayton & Dubilier Private Equity Fund
IV Limited Partnership, a partnership organized under the laws
of Connecticut, Joseph Littlejohn & Levy Fund, L.P., a
partnership organized under the laws of Delaware, Mutual Series
Fund Inc., FIMA Finance Management Inc., Leeway & Co., Richard
A. Gilleland and Carrie Gilleland, and The Clayton & Dubilier
Private Equity Fund III Limited Partnership, a partnership
organized under the laws of Connecticut.
WHEREAS, one or more of the parties to or
beneficiaries of the Registration Rights Agreement that are
partnerships may distribute Warrants and/or Reallocation
Certificates (as each such term is defined in the Registration
Rights Agreement) held by them to their respective partners;
and
WHEREAS, the parties to the Registration Rights
Agreement desire to extend the rights and obligations under the
Registration Rights Agreement to such partners with respect to
the Warrants, Common Stock issuable upon exercise of Warrants
and Common Stock issuable upon exercise of Reallocation
Certificates that may be held by such partners;
NOW, THEREFORE, in consideration of the premises
and the mutual agreements contained herein, the parties hereto
hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise
defined in this Amendment, terms used herein that are defined
in the Registration Rights Agreement are so used as so defined.
SECTION 2. Amendments to the Registration Rights
Agreement. The Registration Rights Agreement is hereby amended
as follows:
The definition of "Permitted Transferee" in
Section 1.1 of the Registration Rights Agreement is hereby
amended by deleting the word "or" preceding clause (vi) of such
definition, inserting the words "or (vii) with respect to
Warrants, Reallocation Certificates or shares of Common Stock
issuable upon exercise of Warrants or Reallocation
Certificates, the partners of a partnership that is such
Person;" after the semi-colon following clause (vi) thereof and
deleting the words "clauses (i) through (vi)" in the final
proviso to such definition and inserting in lieu thereof the
words "clauses (i) through (vii)".
SECTION 3. Effectiveness of Amendment. This
Amendment shall become effective as of the date hereof upon the
execution of a counterpart of this Amendment by the Holders of
not less than 95% of the Common Stock constituting Registrable
Securities and the Holders of a majority of Warrants.
SECTION 4. Continuing Effect of the Registration
Rights Agreement. This Amendment shall not constitute an
amendment or waiver of any provision of the Registration Rights
Agreement except solely to the extent expressly stated herein.
Except as expressly amended hereby, the provisions of the
Registration Rights Agreement are and shall remain in full
force and effect.
SECTION 5. Miscellaneous. This Amendment may be
executed in any number of counterparts by the parties hereto,
each of which counterparts when so executed shall be an
original, but all counterparts taken together shall constitute
one and the same instrument. The descriptive headings of the
several Sections of this Amendment are inserted for convenience
only and do not constitute a part of this Amendment. The
Registration Rights Agreement as amended hereby contains the
entire understanding of the parties thereto and hereto in
respect of the subject matter contained therein and herein and
the transactions contemplated thereby and hereby. There are no
restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the
subject matter thereof or hereof, other than those expressly
set forth or referred to therein or herein. The Registration
Rights Agreement as amended hereby supersedes all prior
agreements and understandings between the parties thereto and
hereto with respect to the subject matter thereof and hereof.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed and delivered by their respective
duly authorized officers or representatives as of the date
first above written.
JOSEPH LITTLEJOHN & LEVY
FUND, L.P.
By: JLL ASSOCIATES LP.,
General Partner
By: /s/ Paul S. Levy
Name: Paul S. Levy
Title: General Partner
THE CLAYTON & DUBILIER PRIVATE
EQUITY FUND IV LIMITED
PARTNERSHIP
By: CLAYTON & DUBILIER ASSOCIATES
IV LIMITED PARTNERSHIP,
General Partner
By: /s/ Joseph L. Rice III
Name: Joseph L. Rice III
Title: General Partner
FIMA FINANCE MANAGEMENT INC.
By: /s/ Richard S. Borosoff
Name: Richard S. Borosoff
Title: Attorney in fact
LEEWAY & CO.
By: STATE STREET BANK AND TRUST
COMPANY
By:
Name:
Title:
MUTUAL SERIES FUND INC.
By: /s/ E.N. Cohernour
Name: E.N. Cohernour
Title: General Counsel and
Secretary
RICHARD A. GILLELAND
CARRIE GILLELAND
THE CLAYTON & DUBILIER PRIVATE
EQUITY FUND III LIMITED
PARTNERSHIP
By: CLAYTON & DUBILIER
ASSOCIATES III,
LIMITED PARTNERSHIP,
General Partner
By: /s/ Joseph L. Rice III
Name: Joseph L. Rice III
Title: General Partner
ACKNOWLEDGMENT BY THE COMPANY
The undersigned hereby acknowledges the
foregoing Amendment No. 1 to the Registration Rights
Agreement and agrees that it shall be bound by the
Registration Rights Agreement as so amended.
KENDALL INTERNATIONAL, INC.
By: /s/ Richard Gilleland
Name: Richard Gilleland
Title: Chairman, President
and CEO
EXHIBIT F
ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT, dated October 19,
1994, by Tyco International Ltd., a Massachusetts
corporation ("Tyco"), in favor of the parties and
beneficiaries to and under the Registration Rights
Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Kendall International, Inc. (formerly
named CDK Holding Corporation), a Delaware corporation
(the "Company"), is party to a Registration Rights
Agreement, dated as of July 7, 1992, as amended by
Amendment No. 1 thereto dated as of July 11, 1994 (as so
amended, the "Registration Rights Agreement"; capitalized
terms used herein but not defined herein are used as
defined in the Registration Rights Agreement), among the
Company, The Clayton & Dubilier Private Equity Fund IV
Limited Partnership ("Fund IV"), Joseph Littlejohn & Levy
Fund, L.P. ("JLL Fund"), Mutual Series Fund Inc., FIMA
Finance Management Inc., Leeway & Co., Richard A.
Gilleland, Carrie Gilleland, and The Clayton & Dubilier
Private Equity Fund III Limited Partnership ("Fund III");
WHEREAS, Tyco is party to separate Stockholder
Agreements, each dated as of July 13, 1994, as amended by
separate Stockholder Agreement Modifications each dated
as of October 3, 1994 (as so amended, collectively, the
"Stockholder Agreements"), between the Company and each
of Fund IV, JLL Fund and Fund III;
WHEREAS, concurrently with the execution and
delivery of this Assumption Agreement, T Acquisition
Corp., a Delaware corporation and wholly owned subsidiary
of Tyco, is merging with and into the Company (such
merger, the "Merger"), and the Effective Time (as defined
in the Stockholder Agreements) of the Merger has
occurred; and
WHEREAS, pursuant to the Stockholder
Agreements, Tyco has agreed to assume and agree to
perform the obligations of the Company under the
Registration Rights Agreement;
NOW, THEREFORE, Tyco hereby agrees as follows:
1. In accordance with Section 5 of each of the
Stockholder Agreements, for the benefit of each Holder
and each other party to or beneficiary under the
Registration Rights Agreement, Tyco hereby expressly and
irrevocably assumes, confirms, and agrees to be bound by
and to perform and observe, the terms and provisions of
the Registration Rights Agreement, and all of the
covenants, rights, promises, agreements, obligations and
duties of the Company under the Registration Rights
Agreement, provided that Section 2.3(c) of the
Registration Rights Agreement is hereby assumed as
modified to read as follows:
"(c) If any registration of Registrable
Securities shall be in connection with an
Underwritten Offering, the Company agrees, and
will use its reasonable efforts to cause other
Persons (other than any institutional investment
manager subject to Section 13(f) of the Exchange
Act) holding 5% or more of the Common Stock and
who are not otherwise subject to "holdback"
agreements that are at least as favorable to the
Holders as the provisions contained in this
Section 2.3 to agree, not to effect any sale or
distribution of any of its equity securities or
of any security convertible into or exchangeable
or exercisable for any equity security of the
Company during the period beginning seven days
prior to the effective date of such
registration statement and ending on the earlier
of (x) 180 days after such effective date, and
(y) 90 days after such effective date, if the
managing underwriter in such Underwritten
Offering shall permit such earlier sale or
distribution as not materially adversely
affecting the offering, and the Holders
participating in any such offering shall use
their reasonable efforts to obtain such
permission from the managing underwriter."
2. Tyco hereby confirms and agrees that (a)
the Parent Shares (as defined in the Stockholder
Agreements) to be received by any Holder, in the Merger
or pursuant to any exercise of Warrants or Reallocation
Certificates, shall constitute Common Stock and
Registrable Securities entitled to the benefits of the
Registration Rights Agreement, (b) the term "Requisite
Percentage of Common Stock" shall be construed to mean an
amount of Parent Shares (or other securities at any time
constituting Common Stock) equivalent to 12% of the
amount of shares of common stock of the Company
outstanding upon consummation of the Plan, and (c) clause
(iii) of Section 2.1(d) of the Registration Rights
Agreement shall be construed to refer to Warrants
constituting Registrable Securities that represent the
right to acquire upon exercise an amount of Parent Shares
(or other securities) equivalent to less than 3% of the
amount of shares of common stock of the Company
outstanding upon consummation of the Plan. For purposes
of the preceding sentence, (i) as of the Effective Time,
the amount of Parent Shares that is equivalent to a given
amount of shares of common stock of the Company shall be
deemed to be the amount of Parent Shares that a holder of
such shares of common stock of the Company would be
entitled to receive pursuant to the Merger and (ii) after
the Effective Time, the equivalency of an amount of
Parent Shares (or other securities at any time
constituting Common Stock) shall be determined after also
taking into account, in a manner analogous to the
provisions of clause (i) hereof, any relevant
transactions that may have occurred since the Effective
Time in respect of Common Stock (including, without
limitation, any stock split or combination, merger,
consolidation, reclassification, recapitalization or
reorganization), subject to the provisions of Section 2.6
of the Registration Rights Agreement.
3. Tyco hereby confirms and agrees that, with
respect to Section 2.1(g) of the Registration Rights
Agreement, if a requested registration pursuant to
Section 2.1 of the Registration Rights Agreement involves
an Underwritten Offering in which Fund IV and/or JLL Fund
is participating, Fund IV and JLL Fund together (or, if
only one of them is participating in such offering, the
fund so participating) shall have the right to select a
nationally recognized investment banker (or investment
bankers) reasonably acceptable to Tyco that shall manage
such offering.
4. For purposes of this Assumption Agreement,
all references to the "Company" in the Registration
Rights Agreement shall also be deemed to be references to
Tyco.
5. This Assumption Agreement shall be binding
upon Tyco, its successors and assigns, and shall inure to
the benefit of the parties to and other beneficiaries
under the Registration Rights Agreement and their
respective successors and assigns. This Assumption
Agreement shall be effective immediately upon its
execution and delivery by Tyco. This Assumption
Agreement cannot be amended, modified, waived or
supplemented except by a written instrument signed by
each of Fund IV, JLL Fund and Fund III, and (except in
the case of a waiver) by Tyco. Tyco hereby acknowledges
and agrees that irreparable harm would occur in the event
that any of the terms or provisions of this Assumption
Agreement were not performed in accordance with its
specific terms or were otherwise breached, and that
accordingly each of Fund IV, JLL Fund, Fund III and each
other Holder shall be entitled to an injunction or
injunctions to prevent breaches of this Assumption
Agreement and to enforce specifically the terms and
provisions of this Assumption Agreement in any court of
the United States or any state thereof having
jurisdiction, this being in addition to any other remedy
to which they are entitled at law or in equity.
6. THIS ASSUMPTION AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
Tyco hereby irrevocably submits to the jurisdiction of
any New York State or Federal court sitting in the City
of New York in any action or proceeding arising out of or
related to this Assumption Agreement or the Registration
Rights Agreement, and hereby irrevocably agrees that all
claims in respect of such action or proceeding may be
heard and determined in such State or Federal court.
Tyco hereby irrevocably consents to the service of
process, which may be served in any such action or
proceeding by certified mail, return receipt requested,
by delivering a copy of such process to Tyco at its
address specified in Section 9 of the Stockholder
Agreements, or by any other method permitted by law.
IN WITNESS WHEREOF, the undersigned has caused
this Assumption Agreement to be duly executed by its duly
authorized officer on the date hereof.
TYCO INTERNATIONAL LTD.
By /s/ Irving Gutin
Name: Irving Gutin
Title: Senior Vice President
[Seal]
EXHIBIT G
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities
Exchange Act of 1934, as amended, the undersigned hereby
agree to the joint filing with each other of this statement
on Schedule 13D and to all amendments to such Schedule 13D
and that such statement on Schedule 13D and all amendments to
such statement is made on behalf of each of them.
IN WITNESS WHEREOF, the undersigned hereby execute
this agreement this 3rd day of November, 1994.
JOSEPH LITTLEJOHN & LEVY FUND, L.P.
By: JLL ASSOCIATES, L.P.
General Partner
By: /s/ Paul S. Levy
Paul S. Levy
General Partner
JLL ASSOCIATES, L.P.
By: /s/ Paul S. Levy
Paul S. Levy
General Partner
/s/ Paul S. Levy
Paul S. Levy
/s/ Peter A. Joseph
Peter A. Joseph
/s/ Angus C. Littlejohn, Jr.
Angus C. Littlejohn, Jr.
/s/ Yvonne Cliff
Yvonne Cliff
