SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549
SCHEDULE 13D Amendment No. 7
Under the Securities Exchange Act of 1934
Tyco International Ltd.
(Name of Issuer)
Common Stock, par value $.50 per share
(Title of Class and Securities)
90212-01-0(CUSIP Number of Class of Securities)
William Shannon
Company Secretary
Tyco Investments (Australia) Limited
(ACN 000 079 078)
Suite 1
133 Alexander Street
Crows Nest N.S.W. 2065
Australia
61-2-965-7255
(Name, Address and Telephone Number of Person
Authorizedto Receive Notices and Communications)
Copy to:
Alan C. Myers, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
(212) 735-3000
March 23, 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 Schedule 13D and is filing this schedule
because of Rule 13d-1(b)(3) or (4), check the following
box: ___
|___|
Check the following box if a fee is being paid with this
statement: ___
|___|
Exhibit Index is on Page
SCHEDULE 13D
CUSIP NO. 90212-01-0 PAGE 2
NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
1
Tyco Investments (Australia) Limited (ACN
000 079 078)
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP.*
2 (a) ( )
(b) ( )
3 SEC USE ONLY
4 SOURCE OF FUNDS*
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
5 REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
CITIZENSHIP OR PLACE OF ORGANIZATION
6 New South Wales, Australia
SOLE VOTING POWER
7 0
NUMBER OF
SHARES SHARED VOTING POWER
BENEFICIALLY 8 9,650,000
OWNED BY
EACH SOLE DISPOSITIVE POWER
REPORTING 9 0
PERSON
WITH
SHARED DISPOSITIVE POWER
10 9,650,000
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
11 REPORTING PERSON
9,650,000
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
12 EXCLUDES CERTAIN SHARES* ( )
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
13 18.79%
TYPE OF REPORTING PERSON*
14 HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
NAMES OF REPORTING PERSONS
1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Netherlands Engineering Services B.V.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP.*
2 (a) ( )
(b) ( )
3 SEC USE ONLY
4 SOURCE OF FUNDS*
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
5 REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ( )
CITIZENSHIP OR PLACE OF ORGANIZATION
6 The Netherlands
SOLE VOTING POWER
7 0
NUMBER OF
SHARES SHARED VOTING POWER
BENEFICIALLY 8 9,650,000
OWNED BY
EACH SOLE DISPOSITIVE POWER
REPORTING 9 0
PERSON
WITH
SHARED DISPOSITIVE POWER
10 9,650,000
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
11 REPORTING PERSON
9,650,000
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
12 EXCLUDES CERTAIN SHARES* ( )
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
13 18.79%
TYPE OF REPORTING PERSON*
14 HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
1 Braeshore Pty Limited (ACN 004 000 300)
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP.*
2 (a) ( )
(b) ( )
3 SEC USE ONLY
4 SOURCE OF FUNDS*
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
5 REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ( )
CITIZENSHIP OR PLACE OF ORGANIZATION
6 New South Wales, Australia
SOLE VOTING POWER
7 0
NUMBER OF
SHARES SHARED VOTING POWER
BENEFICIALLY 8 9,650,000
OWNED BY
EACH
REPORTING SOLE DISPOSITIVE POWER
PERSON 9 0
WITH
SHARED DISPOSITIVE POWER
10 9,650,000
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
11 REPORTING PERSON 9,650,000
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11
12 EXCLUDES CERTAIN SHARES* ( )
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
13 18.79%
TYPE OF REPORTING PERSON*
14 HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
This Amendment No. 7 amends the Statement on
Schedule 13D dated June 5, 1990, as amended (the
"Schedule 13D"), filed by Tyco Investments (Australia)
Limited ("TIAL") and joined in by Netherlands Engineering
Services B.V. ("NES") and Braeshore Pty Limited
("Braeshore"), relating to the common stock, par value
$.50 per share (the "Common Stock"), of Tyco
International Ltd., a Massachusetts corporation (the
"Issuer"). This Amendment is filed by TIAL, NES and
Braeshore (collectively, the "Reporting Persons").
Capitalized terms used and not defined herein shall have
the respective meanings ascribed thereto in the Schedule
13D.
Item 4. Purpose of Transaction.
Item 4 is amended as follows:
In connection with the Reporting Persons'
ongoing review of its investment in the Issuer, on March
23, 1994, the Board of Directors of TIAL resolved to
proceed with a selective reduction in capital and a
scheme of arrangement (the "Proposed Transaction")
pursuant to which TIAL, subject to various consents,
would distribute to its ordinary shareholders, preference
shareholders and optionholders the Common Stock and
surplus cash, and the ordinary shares, preference shares
and options to purchase ordinary shares, as the case may
be, held by such persons would be cancelled. The number
of shares of Common Stock to be distributed for each
ordinary share, preference share and option to purchase
ordinary shares will be determined immediately prior to
the consummation of the Proposed Transaction.
Pursuant to the terms of the Proposed
Transaction, Lang Corporation Limited ("Lang"), the owner
of approximately 32% of the outstanding ordinary shares,
approximately 30% of the outstanding preference shares,
and approximately 70% of the outstanding options to
purchase ordinary shares, would not participate in the
Proposed Transaction in respect of its ordinary shares.
As a result, TIAL would become a wholly owned subsidiary
of Lang and, immediately following the Proposed
Transaction, TIAL would continue to hold Lang's
proportional interest in the Common Stock in respect of
such ordinary shares.
In connection with the Proposed Transaction,
TIAL has entered into an Agreement for Sale and Purchase
of Shares, dated March 24, 1994 (the "Sale Agreement"),
with Towerbridge B.V. ("Towerbridge") pursuant to which
TIAL has the right to sell NES and certain related
companies (collectively, the "Companies") to Towerbridge
for the net asset value of the Companies less NLG
1,000,000. TIAL intends to sell the Companies as soon as
practicable following the consummation of the Proposed
Transaction. TIAL's right to sell the Companies to
Towerbridge is conditioned upon, among other things, at
the time of such sale neither TIAL nor Lang beneficially
owning any shares of Common Stock. As a result, in order
to consummate the sale of the Companies, following the
consummation of the Proposed Transaction TIAL, as the
holder of Lang's proportional interest in the Common
Stock, would be required to sell such shares of Common
Stock or, if the Proposed Transaction is not consummated,
TIAL must sell the Common Stock and the Warrants in order
to consummate the sale of the Companies. No arrangements
have been made by the Reporting Persons for the sale of
the shares of Common Stock or Warrants in connection with
the sale of the Companies, and any such sale may be made
in any manner or subject to such conditions as determined
by TIAL or Lang on TIAL becoming a subsidiary of Lang
upon consummation of the Proposed Transaction. A copy of
the Sale Agreement is attached hereto as Exhibit J and is
incorporated herein by reference.
Prior to the consummation of the Proposed
Transaction, TIAL intends to sell the Warrants and a
sufficient number of shares of Common Stock in order to
satisfy the residual liabilities of TIAL, including
contingent liabilities. In addition, in the Proposed
Transaction, certain ordinary shareholders, preference
shareholders and optionholders of TIAL who own a small
number of shares or options in TIAL, as the case may be,
may be entitled to receive an "unmarketable parcel" of
Common Stock, and certain ordinary shareholders,
preference shareholders and optionholders of TIAL, may be
entitled to receive a fractional share of Common Stock.
Therefore, in the Proposed Transaction, TIAL will sell on
behalf of such security holders such "unmarketable
parcel" and all fractional shares of Common Stock and
distribute to such ordinary shareholders, preference
shareholders or optionholders, as the case may be, the
net proceeds of such sales. TIAL has not yet determined
what number of shares of Common Stock will constitute an
"unmarketable parcel".
The Proposed Transaction is subject to the
approval of the ordinary shareholders, preference
shareholders and optionholders of TIAL at (i) a general
meeting of ordinary shareholders and preference
shareholders and (ii) separate meetings of each of the
ordinary shareholders, preference shareholders and each
class of optionholders. Lang has informed the Board of
Directors of TIAL that it will abstain from voting on the
Proposed Transaction in respect of its ordinary shares at
the general meeting of ordinary shareholders and
preference shareholders and at the separate meeting of
ordinary shareholders. In addition, the Proposed
Transaction is subject to court approval and the consent
of the Issuer and TIAL's creditors. The Proposed
Transaction is also subject to the provisions of the
Standstill Agreement, the Registration Rights Agreement
and the Warrant Agreement. A copy of the press release
announcing the Proposed Transaction is attached hereto as
Exhibit K and is incorporated herein by reference.
Item 5. Interest in Securities of the Issuer.
(a), (c) On December 2, 1993, Braeshore
declared a trust in favor of TIAL over 200,000 shares of
Common Stock and acted as trustee for such trust. During
the period December 5, 1993, through December 15, 1993,
Braeshore, as trustee for TIAL, sold 200,000 shares of
Common Stock pursuant to Rule 144 under the Securities
Act of 1933, as amended ("Securities Act"). A copy of
the Deed of Trust is attached hereto as Exhibit L and is
incorporated herein by reference. On March 15, 1993,
Braeshore declared a trust in favor of TIAL over 150,000
shares of Common Stock and acted as trustee. During the
period March 16, 1994 through March 18, 1994, Braeshore,
as trustee for TIAL, sold 150,000 shares of Common Stock
pursuant to Rule 144 under the Securities Act. A copy of
the Deed of Trust is attached hereto as Exhibit M and is
incorporated herein by reference.
As a result of such sales, the Reporting
Persons are the beneficial owner of 9,650,000 shares of
Common Stock (which includes the 5,000,000 shares of
Common Stock deliverable upon exercise of the Warrants to
purchase an additional 5,000,000 shares of Common Stock),
representing approximately 18.79% of the total of the
46,354,193 shares of Common Stock outstanding as of
February 4, 1994 (as reported by the Issuer in its
Quarterly Report on Form 10-Q for the quarter ended
December 31, 1993) plus the 5,000,000 shares of Common
Stock that would be outstanding if the Common Stock
deliverable upon the exercise of the Warrants were issued
and outstanding.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the
Issuer.
Item 6 is amended as follows:
As part of the Proposed Transaction, Lang has
advised TIAL that it would not participate in the
Proposed Transaction with respect to its ordinary shares
in TIAL. Lang, however, will participate in the Proposed
Transaction with respect to Lang's preference shares and
options to purchase ordinary shares in TIAL.
Please see the disclosure under Item 4 with
respect to the sale of the Companies.
Item 7. Material to be Filed as an Exhibit.
The following documents are attached hereto as
Exhibits:
Exhibit J Agreement for Sale and Purchase of Shares,
dated March 24, 1994.
Exhibit K Press Release, dated March 28, 1994.
Exhibit L Deed of Trust, dated December 2, 1993.
Exhibit M Deed of Trust, dated March 15, 1994.
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
Tyco Investments
(Australia) Limited
Dated: March 28, 1994 By: /s/ William Shannon
Name: William Shannon
Title: Company Secretary
SIGNATURE
After reasonable inquiry and to the best of our knowledge
and belief, we certify that the information set forth in this
statement is true, complete and correct.
Netherlands Engineering
Services B.V.
Dated: March 28, 1994 By: /s/ Rokin Corporate Services
Name: Rokin Corporate Services
Title: Managing Director
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Braeshore Pty Limited
Dated: March 28, 1994 By: /s/ William Shannon
Name: William Shannon
Title: Director and Secretary
EXHIBIT INDEX
Exhibit Page
Exhibit J Agreement for Sale and Purchase of
Shares, dated March 24, 1994
Exhibit K Press Release, dated March 28, 1994
Exhibit L Deed of Trust, dated December 2, 1993
Exhibit M Deed of Trust, dated March 15, 1994
EXHIBIT J
AGREEMENT FOR SALE AND PURCHASE OF SHARES
MADE BY AND BETWEEN
TYCO INVESTMENTS (AUSTRALIA) LIMITED
AS SELLER
AND
TOWERBRIDGE B.V.
AS PURCHASER
AGREEMENT FOR SALE/PURCHASE OF SHARES
THE UNDERSIGNED:
1. Tyco Investments (Australia) Limited (ACN 000 079 078), a
company incorporated under the laws of New South Wales
Australia, with registered offices in Suite 1, 133
Alexander Street, Crows Nest, NSW Australia 2065,
hereinafter referred to as: Seller;
2. Towerbridge B.V., a private company with limited
liability, incorporated under the laws of the
Netherlands, with registered offices in Utrecht,
Croeselaan 18, the Netherlands, hereinafter referred to
as: Purchaser;
3. a. Wilgroup Norther N.V., a public company with limited
liability incorporated under the laws of the
Netherlands Antilles, with registered office in
Willemstad, CuraCao, the Netherlands Antilles,
hereinafter referred to as: Norther;
b. Wilgroup N.V., a public company with limited
liability incorporated under the laws of the
Netherlands Antilles, with registered office in
Willemstad, CuraCao, the Netherlands Antilles,
hereinafter referred to as: Wilgroup;
c. Netherlands Engineering Services B.V., a private
company with limited liability, incorporated under
the laws of the Netherlands, with registered offices
in Amsterdam, the
Netherlands, hereinafter referred to as: NES;
d. Wilgroup International Finance N.V., a private
company with limited liability, incorporated under
the laws of the Netherlands Antilles, with registered
offices at Willemstad, CuraCao, Netherlands Antilles,
hereinafter referred to as: WIF;
Norther, Wilgroup, NES and WIF hereinafter jointly
referred to as: the Companies;
and:
4. Cooeperatieve Centrale Raiffeisen-Boerenleenbank B.A., a
cooperative incorporated under the laws of the
Netherlands, with registered offices in Utrecht,
Croeselaan 18, the Netherlands hereinafter referred to as:
Rabobank Nederland.
WHEREAS:
- Purchaser wishes to hold title to shares in private and/or
public companies with limited liability for its business
activities;
- prior to the Completion Date (as defined in Article 1.2.
below), Seller shall acquire title to the entire issued
share capital in both Norther and Wilgroup, which jointly
hold title to the entire issued share capital of NES
which, in its turn holds title to the entire issued share
capital in WIF;
- the authorized share capital of Norther amounts to USD
50,000 divided into 50 shares with a nominal value of USD
1,000 each; 10 shares have been issued and fully paid up
and are, according to the shareholders' register, numbered
1 up to and including 10 hereinafter referred to as: the
"Norther Shares";
- the authorized share capital of Wilgroup amounts to AUD
50,000 divided into 50 shares with a nominal value of AUD
1,000 each; 20 shares have been issued and fully paid up
and are, according to the shareholders' register, numbered
1 up to and including 20 hereinafter referred to as: the
"Wilgroup Shares";
- the authorized share capital of NES amounts to NLG
125,000, divided into 125 shares, with a nominal value of
NLG 1,000 each; 50 shares have been issued and fully paid
up and are, according to the shareholders' register,
numbered A1 to A15 inclusive and B1 to B35 inclusive,
hereinafter referred to as: the NES Shares;
- the authorized share capital of WIF amounts to USD 60,000,
divided into 60 shares, with a nominal value of USD 1,000
each; 12 shares have been issued and fully paid up and
are, according to the shareholders' register, numbered 1
to 12 inclusive and, hereinafter referred to as: the WIF
Shares;
- no shares have been repurchased by either Norther,
Wilgroup, NES or WIF;
- Norther is registered at the Commercial Register of the
Chamber of Commerce in CuraCao under number 45.135;
Wilgroup is registered at the Commercial Register of the
Chamber of Commerce in CuraCao under number 14.1131; NES
is registered at the Commercial Register of the Chamber of
Commerce in Amsterdam, under number BV 153.294; WIF is
registered at the Commercial Register of the Chamber of
Commerce in CuraCao under number 21.034;
- Purchaser and Seller have entered into discussions
concerning the sale, subject to the acquisition thereof by
Seller, of the Norther Shares and the Wilgroup Shares
(hereinafter jointly referred to as: the Holding Shares)
as per the Completion Date;
- Norther was incorporated by virtue of a notarial deed
dated October 16, 1986, executed before Mr. G.C.A. Smeets,
civil-law notary at Willemstad, CuraCao, Netherlands
Antilles; Wilgroup was incorporated by virtue of a
notarial deed dated February 13, 1978, executed before Mr.
G.C.A. Smeets, civil-law notary at Willemstad, CuraCao,
Netherlands Antilles; NES's articles of association were
last amended by virtue of a notarial deed dated 7 April
1992, executed before Mr. N.M.J. Damen, civil-law notary
at Amsterdam; WIF's articles of association were last
amended by virtue of a notarial deed dated July 23, 1991,
executed before Ms. Adele Pauline van der Pluym-Vrede,
candidate civil notary acting for Mr. G.C.A. Smeets,
civil-law notary at Willemstad, CuraCao, Netherlands
Antilles;
- Seller has agreed to adopt a shareholder resolution, after
acquisition of the Holding Shares and prior to the
Completion Date, authorizing the transfer of the Holding
Shares to Purchaser, in order to comply with the
restrictions on transfers of shares pursuant to the
articles of association of Norther respectively Wilgroup;
- Rabobank Nederland, being the ultimate parent of
Purchaser, is prepared to guarantee the obligations of
Purchaser arising from or in connection with this
Agreement;
HAVE AGREED AS FOLLOWS:
ARTICLE 1 SALE AND PURCHASE
1.1 Subject to the prior acquisition of the Holding Shares,
Seller sells the Holding Shares to Purchaser who purchases
the same from Seller as per the Completion Date.
1.2 For the purpose of this Agreement, "Completion Date" shall
mean the date to be set by Seller at (i) no earlier than 5
(five) business days after the Conditions for Completion
(as described in Article 14 hereof) have been fulfilled,
and (ii) no later than the date falling seven (7) calendar
months after the date of signing of this Agreement.
1.3 Seller shall acquire the Holding Shares by virtue of a
private deed of transfer, to be executed no later than two
(2) days prior to the Completion Date; Seller shall
procure that Norther and Wilgroup shall acknowledge the
respective transfers in the transfer instrument.
ARTICLE 2 PURCHASE PRICE
2.1 The purchase price (the "Purchase Price") for the Holding
Shares is equal to the net asset value of the Companies
less an amount of NLG 1,000,000 (one million Netherlands
Guilders). This net asset value will be calculated by
Price Waterhouse & Co. Nederland on the basis of the
audited balance sheets of the Companies as per the
Completion Date (the "Financial Statements"), prepared in
accordance with and subject to Article 4. A copy of the
Financial Statements will be attached to the deed of
transfer as Annex I.
ARTICLE 3 TRANSFER OF THE HOLDING SHARES
3.1 Subject to the terms of this Agreement Seller shall
transfer title to the Holding Shares to Purchaser.
3.2 Purchaser irrevocably undertakes to accept title to the
Holding Shares upon fulfillment by Seller of the
Conditions for Completion as listed in Article 14.A and
Article 14.B or Article 14.C, as appropriate.
3.3 The transfer of the Holding Shares will be effected on the
Completion Date by virtue of a notarial deed of transfer
to be executed by one of the notaries of Stibbe Simont
Monahan Duhot, lawyers and civil-law notaries in
Amsterdam.
3.4 The notarial deed of transfer will contain the conditions
which are set forth in the draft notarial deed of
transfer, which is annexed to this agreement as Exhibit A
hereto.
Article 4 FINANCIAL STATEMENTS
4.1 The Financial Statements consist of:
a. NES's audited balance sheet as per the Completion
Date expressed in Netherlands Guilders, prepared by
Price Waterhouse & Co. Nederland, except as stated in
Article 4.2. hereafter, in accordance with the
requirements of the laws of the Netherlands,
including but not limited to the law regarding the
annual accounts ("Wet op de Jaarrekening") and in
accordance with generally accepted accounting
principles and practice in the Netherlands, and
b. Norther's, Wilgroup's and WIF's audited balance sheet
as per the Completion Date expressed in Netherlands
Guilders, prepared by Price Waterhouse & Co. in the
Netherlands or in Sydney, Australia, in accordance
with generally accepted and consistently applied
accounting principles and practice in the Netherlands
Antilles,
each of the documents listed in a. and b. above
accompanied by an unqualified report of Norther's,
Wilgroup's, NES's and WIF's chartered accountants
("accountantsverklaring"), respectively, expressing their
opinion, subject to the matters set forth in Article 4.2,
that the Financial Statements give a true and fair view of
the financial position of each of Norther, Wilgroup, NES
and WIF, respectively, as per the Completion Date.
4.2 To the Financial Statements the following principles will
be applied casu quo the following facts must follow
therefrom:
1. Norther's balance sheet shall consist solely of (i)
thirty-five (35) NES Shares (category B) and (ii)
equity capital and share premium;
2. Wilgroup's balance sheet shall consist solely of (i)
fifteen (15) NES Shares (category A) and (ii) bank
balances, equity capital and share premium;
3. NES's assets consist only of (i) NES's shares in WIF,
valued at the net asset value; WIF's assets will
consist of bank balances only; and (ii) accounts
receivable from banks with a credit rating of A-
(Standard & Poor's) or A3 (Moody's Investor Service)
or better, which accounts receivable are denominated
in
Netherlands Guilders only and valued at their nominal
value;
4. the liabilities are valued at their nominal value,
except that no provision liability will be included
in the Financial Statements with regard to any
liability, whether existing, future or contingent, of
the Companies on account of dividend withholding tax
(to be) imposed by virtue of the Dutch Dividend
Withholding Tax Act 1965 ("Wet op de
didivendbelasting 1965") which may arise from or in
connection with the sale, purchase and transfer of
the Holding Shares and the indirect transfer of NES
or WIF (for the avoidance of doubt: this provision
will not apply to situations where Purchaser proves
that the dividend withholding tax assessment is
imposed solely as a consequence of the TIAL Scheme of
Arrangement as referred to in Article 13
hereinafter);
5. all tax liabilities, both current and deferred, are
entered at their nominal value in accordance with
current tax rates;
6. the provisions for the invoices (including V.A.T.) of
the accountant and/or the tax advisor of the
Companies are adequate for covering their outstanding
accounts; insofar as no provision has been included
in the Financial Statements, no additional invoices
will be honored;
7. the financial results in respect of the years and the
period prior to the Completion Date will be reduced
with the amount of Netherlands corporate income tax
("vennootschapsbelasting") (with respect to NES)
respectively Netherlands Antilles corporate income
tax ("winstbelasting") (with respect to Norther and
Wilgroup (if any) and WIF) due, in accordance with
the respective current tax rates.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES
5.1 Seller hereby represents and warrants to Purchaser
as of the Completion Date as follows:
1. Norther has not issued any shares other than
the Norther Shares; Wilgroup has not issued any
shares other than the Wilgroup Shares; NES has
not issued any shares other than the NES Shares
and WIF has not issued any other shares than
the WIF Shares and there are no commitments nor
resolutions to issue any shares; neither are
there any rights to acquire any of the Norther
Shares, the Wilgroup Shares, the NES Shares or
the WIF Shares or any other shares in the
Companies granted to Seller or third parties.
2. There are no share certificates/depository
receipts in respect of any of the Norther
Shares, the Wilgroup Shares, the NES Shares or
the WIF Shares.
3. The Norther Shares, the Wilgroup Shares, the
NES Shares and the WIF Shares have been validly
issued and are fully paid up; neither Norther,
Wilgroup, NES nor WIF has repurchased any
shares in its own share capital, nor is there
any contractual obligation to do so.
4. Subject to the provisions of Article 5.2
hereof, each of Norther, Wilgroup, NES and WIF
have fulfilled all tax obligations and have
paid all their taxes which have become due or
which have been assessed, except for those
taxes for which provisions have been included
in the Financial Statements.
5. The information as submitted to the respective
Commercial Registers with regard to the
respective articles of association of Norther,
Wilgroup, NES and WIF, their managing directors
and share capital, are complete and correct.
There are no other persons who are in any
manner entitled to represent or act on behalf
of either Norther, Wilgroup, NES or WIF in any
respect.
6. All formal requirements to the sale and
transfer of the Holding Shares, arising under
the articles of association of each of Norther
and Wilgroup have been duly observed.
7. Norther has acquired the NES Shares held by it
at the date hereof by virtue of a deed of
transfer executed October 6, 1986, and Wilgroup
has acquired the NES Shares held by it at the
date hereof by virtue of acquisition upon issue
at incorporation with a notarial deed dated
June 27, 1990, in which (notarial) deeds NES
has acknowledged the transfer respectively the
acquisition upon issue. NES has acquired the
WIF Shares by virtue of a notarial deed of
transfer executed before Ms. Adele Pauline van
der Pluym-Vrede, candidate civil notary, acting
for Mr. G.C.A. Smeets on October 6, 1986, in
which notarial deed WIF has acknowledged such
transfer.
Neither the Norther Shares, the Wilgroup
Shares, the NES Shares nor the WIF Shares are
encumbered with a right of usufruct or a right
of pledge, nor with any other security or other
right, nor can any party require such rights
and there are no other special burdens or
limitations relating to the Norther Shares, the
Wilgroup Shares, the NES Shares or the WIF
Shares.
8. No guarantees or security have been given by
either Norther, Wilgroup, NES or WIF to any
third party with respect to any overdraft, loan
or other financing facility granted to Norther
and/or Wilgroup and/or NES and/or WIF, nor has
either Norther, Wilgroup, NES or WIF given any
guarantee or security with respect to any
financing facility granted to a third party.
9. The Financial Statements have been prepared
(save as set forth in Article 4.2. hereinabove)
in accordance with the requirements of the laws
of the Netherlands (with respect to NES),
including but not limited to the law regarding
the annual accounts ("Wet op de Jaarrekening"),
and the laws of the Netherlands Antilles (with
respect to Norther, Wilgroup and WIF) and in
accordance with accounting principles and
practices generally accepted in the Netherlands
respectively the Netherlands Antilles. Subject
to Article 4.2, the Financial Statements give a
true and fair view of the assets and
liabilities of each of Norther, Wilgroup, NES
and WIF as at the Completion Date. Such
Financial Statements contain adequate
provisions for inter alia the fees of
accountants involved in the preparation of the
Financial Statements. Insofar as no provision
has been included in the Financial Statements,
no additional obligation will occur.
10. a. The retained earnings of NES until June
30, 1993 originate as disclosed in Exhibit
B hereto.
b. The increase respectively decrease of the
retained earnings of NES originating in
the period starting on July 1, 1993, and
ending on the Completion Date shall arise
solely from interest income, either
directly or indirectly and/or disposal of
assets, including subsidiaries, to non-
related parties, less operating expenses
incurred in such period.
11. Neither Norther, Wilgroup, NES nor WIF have
conducted any business beyond the "objects-
clause" contained in their articles of
association.
12. There are no resolutions of the managing
directors, proxy holders and/or any other legal
representatives of either Norther, Wilgroup,
NES or WIF which are to be executed.
13. There has been no resolution of the general
meeting of shareholders to liquidate either
Norther, Wilgroup, NES or WIF, nor are there
any other shareholders' resolutions which are
to be executed. No resolution of the general
meeting of shareholders has been passed for the
distribution of an interim dividend, nor of any
other distribution of the retained earnings of
either Norther, Wilgroup, NES or WIF.
14. Neither Norther, Wilgroup, NES nor WIF employ
any personnel, and all claims arising from
former contracts of employment, or otherwise,
have been settled; neither Norther, Wilgroup,
NES nor WIF have any obligations with respect
to pension agreements or accession rights.
15. Subject to the provisions of Article 5.2, no
legal actions, suits or proceedings are pending
nor are there any grounds known on the basis
whereof these could be litigated against the
Companies before any court.
16. Seller has disclosed all such information with
respect to the Companies which Seller may
expect to be of interest to Purchaser to form
an adequate opinion as to the purchase of the
Holding Shares.
5.2 Notwithstanding anything that might otherwise be
expressed or implied in Article 5.1 above, Seller
makes no representation or warranty to Purchaser
with respect to the liability of NES, Purchaser or
another person to dividend withholding tax (to be)
imposed by virtue of the Dutch Dividend Tax Act 1965
("Wet op de dividendbelasting 1965"), which may
arise from or in connection with the sale, purchase
and transfer of the Holding Shares and the indirect
transfer of the NES Shares and the WIF Shares (for
the avoidance of doubt: this provision will not
apply to situations where Purchaser proves that the
dividend withholding tax assessment is impose solely
as a consequence of the TIAL Scheme of Arrangement
as referred to in Article 13 hereinafter).
ARTICLE 6 INDEMNITY/BREACH OF REPRESENTATIONS AND
WARRANTIES
6.1 Seller is liable for and shall indemnify and hold
harmless Purchaser and the Companies from and
against any loss, liability, damage or expense
resulting from Seller's breach of any of the
representations and warranties in Article 5 hereof,
subject to the limitations of and compliance with
Article 9 hereunder. Any dividend withholding tax
liability (including any liability for taxes, costs,
charges or expenses arising from or incurred in
connection with such dividend withholding tax
liability pursuant to the Dutch Dividend Tax Act
1965 ("Wet op de dividendbelasting 1965"), which may
arise from or in connection with the sale, purchase
and transfer of the Holding Shares and the indirect
transfer of the NES Shares and the WIF Shares, is
explicitly excluded from this indemnity and will be
fully for the account of Purchaser. Purchaser will
hold Seller harmless from any such liability. (For
the avoidance of doubt: this provision will not
apply to situations where Purchaser proves that the
dividend withholding tax assessment is imposed
solely as a consequence of the TIAL Scheme of
Arrangement as referred to in Article 13
hereinafter.)
6.2 It is agreed and understood that indemnification by
virtue of this Article 6 by Seller of Purchaser and
the Companies for any loss, liability, damages or
expenses suffered or incurred by the latter shall
bar Purchaser's and the Companies' right to demand
settlement of that same claim on the basis of
Article 7 hereof.
ARTICLE 7 FINANCIAL SETTLEMENT/REFUND OF TAXES
7.1 Should it appear at a later point in time that the
Companies' actual net asset value (the net
difference between assets and liabilities,
calculated in accordance with the accounting
principles set forth in Article 4 hereinabove) as at
the Completion Date differs from the net asset value
as calculated in the Financial Statements, the
difference, after being ascertained by the parties
hereto, shall be settled between the parties within
one month after either party has been given notice
of such difference by the other party.
7.2 In the event of disagreement between the parties
hereto with respect to the difference between the
actual net asset value of the Companies as at the
Completion Date and the Companies' net asset value
as calculated in the Financial Statements, the
parties hereto shall negotiate in good faith with a
view to agreeing on an amicable solution to such
disagreement.
If no such solution can be found within one month
after the communication of the difference, revised
Financial Statements (hereafter referred to as: the
"Revised Statements") will be drawn up by a
chartered accountant, nominated by the accountants
of Seller and Purchaser jointly (and, in the absence
of agreement between such accountants on the
accountant to be so nominated, nominated by the
Chairman of the Netherlands Institute of Chartered
Accountants ("Nederlands Instituut van Register
Accountants") ("NIVRA")). The Revised Statements
will be deemed to reflect an opinion binding on both
parties ("bindend advies"). The costs of this
binding opinion will be allocated between Seller and
Purchaser by the chartered accountant at his
discretion.
7.3 The difference in actual net asset value as at the
Completion Date and the net asset value as
calculated in the Financial Statements, after having
been agreed upon on the basis of Article 7.1 hereof
or, as the case may be, after having been determined
on the basis of Article 7.2 hereof, will be payable
by Seller on first demand in writing by Purchaser,
or, as the case may be, by Purchaser on first demand
in writing by Seller, with additional payment of
interest accrued on such difference at a rate equal
to the Amsterdam Interbank Bid Rate ("AIBID") for
similar amounts and periods of one month calculated
over the actual number of days elapsed since the
Completion Date up to the actual date of payment of
such difference.
7.4 Notwithstanding the procedure for settlement as
outlined in Articles 7.1 through 7.3 above, Seller
shall, if it receives a refund of corporate income
tax ("vennootschapsbelasting") or any other revenues
(including possible imposition interest
("heffingsrente")) and collection interest
("invorderingsrente") destined for the Companies,
but inadvertently paid to Seller, remit the amount
received as soon as practicably possible to bank
account number 3000.70.578 in the name of Purchaser.
Such refund shall be increased with interest at a
rate equal to AIBID calculated over the actual
number of days elapsed since the date of receipt by
Seller up to the date of actual remittance of the
refund to Purchaser.
ARTICLE 8 SETTLEMENT OF MISCELLANEOUS MATTERS
Without any charge being made to Purchaser or the
Companies, Seller shall, with regard to the Companies,
ensure the following, as soon as possible but preferably
prior to the Completion Date:
8.1 drawing up and adopting of the Companies' annual
accounts in respect of the financial years ending
prior to the Completion Date;
8.2 filing the Companies' corporate income tax return in
respect of financial years ending prior to the
Completion Date;
8.3 timely registration of the Companies' annual
accounts in respect of the financial years ending
prior to the Completion Date with the respective
Commercial Registers where the Companies are
registered;
8.4 settlement, to the extent possible, of all questions
or matters with regard to fiscal matters relating to
the Companies regarding the period prior to the
Completion Date.
ARTICLE 9 (LIMITATION OF) LIABILITY OF SELLER
9.1 Claims pursuant to Article 7 hereof shall only be
made upon occurrence of differences of at least NLG
5,000 (five thousand Netherlands Guilders) for each
individual claim. In case of settlement of such
claim, the entire amount of such difference shall be
settled between parties.
9.2 Claims (which, for the purpose of this Article 9.2,
include any notice as referred to in Article 7.1)
arising from Article 5, 6 or 7 must be notified to
Seller within two (2) years after the Completion
Date, with the exception of claims in respect of the
representations and warranties referred to in item 4
of Article 5.1, which shall be filed within five (5)
years) after the Completion Date.
After the lapse of the respective periods mentioned
in the previous sentence any (potential) liability
of Seller shall terminate.
9.3 Purchaser shall immediately notify Seller of the
occurrence of any fact or circumstances which may
give rise to any liability of Seller under Articles
5, 6 or 7 upon receipt by Purchaser, or any of the
Companies, of relevant information addressed to it,
such notice indicating, to the extent such
information allows Purchaser to do so, the amount
involved.
9.4 After having given notice to Seller of a potential
liability Purchaser shall, on first request of
Seller, cause the Companies to take such action in
relation to such potential liability as Seller may
reasonably require and/or Purchaser shall cause the
Companies to:
(i) authorize Seller, or persons designated by
Seller for that purpose, to contest any such
potential liability on behalf of the Companies
in such manner as Seller may deem fit but
always in close consultation with Purchaser
and/or the Companies and with due regard to the
reasonable interests of Purchaser and the
Companies including but not limited to
contesting such potential liability in civil or
administrative proceedings before the courts
including appellate courts and the Supreme
Court ("Hoge Raad") or other authorities; and
(ii) provide Seller on its first request with copies
of documents and with all further information
the possession of which, at the discretion of
Seller, is necessary or useful to conduct such
proceedings in a proper manner.
Seller shall reimburse Purchaser for any and
all costs incurred by Purchaser in connection
with the foregoing, if any, such reimbursement
to be made upon first demand and upon
presentation of a specification in reasonable
detail of the costs so incurred.
9.5 Any existing or future liability of Seller pursuant
to Articles 5, 6 and 7 of this Agreement, shall
terminate upon the sale and transfer of any of the
Holding Shares, the NES Shares or the WIF Shares
(whether existing at the Completion Date or newly
issued thereafter) to a third party and/or if NES
and/or WIF is liquidated and/or merges with another
entity and/or seeks a moratorium of payment and/or
is declared bankrupt, provided, however, that such
existing or future liability shall remain in full
force and effect in the event that:
(i) Purchaser sells and transfers any or all of
such shares to an entity directly or indirectly
wholly owned by Rabobank Nederland; and/or
(ii) Purchaser has, before effecting a proposed sale
and transfer of all Holding Shares, all NES
Shares or all WIF Shares, requested and
obtained the prior written consent of Seller
for such proposed sale and transfer, which
consent shall not be unreasonably withheld.
ARTICLE 10 NONLIQUIDATION
10.1 Purchaser undertakes towards Seller to cause NES not
to be liquidated prior to seven (7) years after the
date of transfer, unless liquidation is prescribed
by law. However, Purchaser is not entitled to
reduce the equity of NES unless such a reduction is
deemed appropriate by the Purchaser if future
circumstances arise (which are presently not known
to the parties), the occurrence of which would make
the continuation of the activities of NES in the
same way and to the same extent no longer desirable.
10.2 Always subject to the provisions of Article 10.3, in
the event that Purchaser transfers directly or
indirectly any of the NES Shares within the seven-
year period indicated in Article 10.1, Purchaser
shall be obliged to impose on the subsequent
transferee(s) the same obligation as stipulated in
Article 10.1, also by means of a third-party
beneficiary clause to the benefit of Seller. Seller
herewith accepts the benefit of such third-party
beneficiary clause and, to the extent necessary,
herewith authorizes Purchaser to accept the same on
its behalf.
10.3 Purchaser herewith undertakes towards Seller that in
the event of a transfer of the NES Shares (other
than to an entity as defined in Article 9.5(i)
above), it shall request the prior written consent
of Seller for such sale and transfer, which consent
shall not be unreasonably withheld.
In case Seller, for valid reasons, withholds its
consent and Purchaser nevertheless proceeds with the
proposed sale and transfer, as well as in case
Purchaser does not wish to request such prior
consent, Purchaser shall guarantee the performance
of the buyer/transferee of the latter's obligations
towards Seller pursuant to this Article 10.
ARTICLE 11 AMENDMENT OF ARTICLES OF ASSOCIATION
11.1 After the transfer of the Holding Shares,
Purchaser shall:
a. change the name of NES through an
amendment of the articles of association,
in such a way that the words "Engineering
Services" will no longer appear in NES's
name; and
2. change the name of WIF through an
amendment of the articles of association,
in such a way that the word "Wilgroup"
will no longer appear in WIF's name.
Purchaser is not entitled to sell and transfer
the NES shares or the WIF Shares to parties
other than those defined in Article 9.5(i) as
long as the respective amendment has not been
effected.
11.2 Purchaser shall, in the event that Norther
and/or Wilgroup have/have not been liquidated
within one year after the Completion Date,
change the name of Norther and/or Wilgroup
through an amendment of the articles of
association, in such a way that the words
"Wilgroup" and "Norther" will no longer appear
in Norther's or Wilgroup's name(s).
ARTICLE 12 CHANGE OF MANAGEMENT
12.1 Purchaser declares that, by resolution of the
respective general meetings of shareholders
respectively boards or directors, to be held on
the Completion Date immediately after transfer
of the Holding Shares:
- Norther's and Wilgroup's present managing
directors will be dismissed, under
appointment of Rabobank Trust Company
CuraCao N.V., having it registered at
Scharlooweg 55, Willemstad, CuraCao, the
Netherlands Antilles, as sole managing
director of Norther and Wilgroup effective
the day after the Completion Date;
- Norther's and Wilgroup's registered
address will be changed to the above-
mentioned address, as per the day after
the Completion Date;
- NES's present managing director(s) will be
dismissed, under appointment of Rabobank
Management B.V., having its registered
offices at Utrecht, as sole managing
director of NES effective the day after
the Completion Date;
- NES's registered address will be changed
to Croeselaan 18, 3521 CB Utrecht, as per
the day after the Completion Date;
- the articles of association of NES will be
amended in accordance with Article 11
hereof;
- any powers of attorney and proxies granted
by either Norther, Wilgroup, NES will be
revoked, effective the day after the
Completion Date;
To the extent necessary or desirable the
procedure outlined above will be followed with
respect to WIF.
12.2 Purchaser undertakes towards Seller to notify
in writing the respective Commercial Registers
in the manner prescribed by law and the tax
authorities of the resolutions mentioned in
Article 12.1.
ARTICLE 13 TIAL SCHEME OF ARRANGEMENT
13.1 Purchaser acknowledges that Seller is
considering a proposal whereby it would seek
the approval of its shareholders and creditors
and of the Australian courts to a Scheme of
Arrangement (the "TIAL Scheme of Arrangement")
and selective reduction of capital with a view
to making in effect a distribution of
approximately two-thirds (2/3) of its net
assets as at the effective date of the TIAL
Scheme of Arrangement.
13.2 Purchaser, in its capacity as a contingent
creditor of Seller and its related companies by
virtue of this Agreement, hereby:
a. consents, to the extent such consent is
required, to the proposed TIAL Scheme of
Arrangement; and
b. undertakes, subject to any practice,
statute, law or order of a competent
authority binding on Purchaser, to keep
confidential the existence of the proposed
TIAL Scheme of Arrangement until such time
(if at all) as the proposal is made public
in Australia. Seller undertakes to
immediately notify Purchaser in writing of
the withdrawal or publication of the TIAL
Scheme of Arrangement.
ARTICLE 14 CONDITIONS FOR COMPLETION
In this Agreement, each of the documents referred to in
Article 14.A, Article 14.B and Article 14.C shall be a
"Completion Document."
14.A The obligation of Purchaser to accept title to
the Holding Shares, and consequently the
indirect title to the NES Shares and the WIF
Shares, casu quo to pay the Purchase Price, is
conditional upon the receipt by, or the
confirmation of receipt on behalf of, as the
case may be, Purchaser in the period commencing
on the date of signing hereof and ending two
days prior to the Completion Date of each of
the following Completion Documents:
1. a draft of the unaudited Financial
Statements, as defined in Article 4
hereof;
2. an original excerpt from the Trade
Register of the Chamber of Commerce of
each of the Companies, not older than one
week prior to the Completion Date;
3. resolutions of the general meetings of
shareholders of the Companies regarding
the appropriation of retained earnings of
the preceding financial year, if
available;
4. copies of the corporate income tax returns
and corporate income tax assessments over
the past four financial years of the
Companies as well as the preliminary tax
assessments for the year 1993/1994 (as far
as sent c.q. received between the date of
signing of this Agreement and the
Completion Date);
5. copies of dividend tax returns of the
Companies for the year 1993/1994 (as far
as received between the date of signing of
this Agreement and the Completion Date);
and
6. ledgers, vouchers and bank statements of
the current financial year of the
Companies.
14.B In addition to the Completion Documents listed
in Article 14.A above, Seller shall, in the
event of effectuation of the TIAL Scheme of
Arrangement, procure the receipt by Purchaser
one week prior to the Completion Date each of
the following:
a. a copy of the court order, approving the
TIAL Scheme of Arrangement, certified as a
true copy thereof by a notary public;
b. a letter from TIAL and Lang Corporation
Limited (ACN 008 860 124), a company
incorporated under the laws of Australia
Capital Territory and with registered
offices in c/o KMPG Peat Marwick, 80
Northbourne Avenue, Canberra 2601,
Australia (hereinafter: "Lang"); in the
form of Exhibit C hereto, duly signed by
its respective authorized officers and
notarized in evidence thereof; and
c. a letter from Price Waterhouse, TIAL's
c.q. Lang's (respective) independent
auditors, unconditionally confirming the
correctness of the letter of TIAL c.q.
Lang as per item b., duly signed by its
(respective) relevant authorized officers
and notarized in evidence thereof.
14.C In addition to the Completion Documents listed
in Article 14.A above, Seller shall, in the
event that no approval is obtained for the
effectuation of the TIAL Scheme of Arrangement,
procure the receipt by Purchaser one week prior
to the Completion Date each of the following:
(i) a letter from TIAL and Lang, certifying
that neither TIAL nor Lang has any longer
direct or indirect beneficial ownership in
any of the shares in TYCO International
Limited, a company incorporated under U.S.
State law and with registered offices in
One Tyco Park, Exeter, New Hampshire 03833
U.S., such letter being substantially in
the form of Exhibit D hereto, duly signed
by TIAL's c.q. Lang's respective
authorized officers and notarized in
evidence thereof;
(ii) a letter from Price Waterhouse, TIAL's
c.q. Lang's (respective) independent
auditors, unconditionally confirming the
correctness of the letter of TIAL c.q.
Lang as per item (i) above, duly signed by
its (respective) relevant authorized
officers and notarized in evidence
thereof.
ARTICLE 15 GUARANTEE RABOBANK NEDERLAND
Rabobank Nederland, as ultimate parent of Purchaser,
herewith guarantees towards Seller the due and punctual
fulfillment by Purchaser of all of Purchaser's
obligations arising from or in connection with this
Agreement.
ARTICLE 16 NOTICES
16.1 Notices to be given by any of the parties
hereto in connection with this agreement shall
be made by letter, sent by regular mail or by
facsimile.
16.2 Notices to Seller will be sent to:
Mr. W.K.B. Shannon
Tyco Investments (Australia) Limited
Suite 1, 133 Alexander Street, Crows Nest
NSW, Australia 2065
Fax: 61.2.439.5334
16.3 Notices to Purchaser will be sent to:
Towerbridge B.V.
P.O. Box 2790
3500 GT Utrecht, the Netherlands
Fax: 31.30.90.19.44
16.4 Notices to Rabobank Nederland will be sent to:
Cooeperatieve Centrale Raiffeisen-Boerenleenbank
B.A.
Attention: Towerbridge B.V.
P.O. Box 17100
3500 HG Utrecht, the Netherlands
Fax: 31.30.90.19.44
16.5 A copy of all notices will be sent to:
Rokin Corporate Services B.V.
Mr. M. de Boer
Strawinskylaan 2001
1077 ZZ Amsterdam, the Netherlands
Fax: 31.20.546.0717
ARTICLE 17 RESCISSION
In the notarial transfer deed parties will waive the
right to ask for a rescission of the subject agreement
and the transfer agreement, in the manner as set forth in
the notarial transfer deed.
ARTICLE 18 MISCELLANEOUS
18.1 Each party thereto shall bear its own legal
costs and legal expenses in connection with or
arising from this transaction. Civil law
notary costs and expenses in relation to this
transaction shall be for the account of Seller.
18.2 Seller shall keep all the financial records of
the Company for a period of five (5) years
after the Completion Date and will submit such
records to Purchaser on first request in case
of a tax audit.
18.3 a. Purchaser shall not disclose and shall, to the
extent possible, cause the Companies not to
disclose, any information with respect to the
Companies or their affairs to third parties
(including any governmental authority or body)
without the prior written consent of Seller,
save where such disclosure is mandatory. In
the event of mandatory disclosure, such
disclosure shall only be made after
consultation with Seller. Seller shall not
unreasonably withhold its consent to disclose
information to third parties.
b. Notwithstanding the foregoing, Purchaser is at
liberty to disclose any information with
respect to the Companies to any legal, tax or
other advisor of Purchaser, provided, however,
that in such event Purchaser shall procure that
such advisor shall give its prior written
consent of nondisclosure in the manner and to
the extent as provided in subclause a. above.
ARTICLE 19 IRREVOCABLE POWER OF ATTORNEY
As an integrated part of this Agreement, Seller herewith
grants an irrevocable power of attorney to each of the
civil law notaries of Stibbe Simont Monahan Duhot to
execute the notarial deed of transfer of the Holding
Shares, in the form of Exhibit A hereto and furthermore
to do anything which the attorney deems necessary in
connection with the aforementioned all this with the
power of substitution. As far as the Seller is
concerned, this irrevocable power of attorney can be used
after Purchaser has notified Stibbe Simont Monahan Duhot
that the Purchase Price has been irrevocably remitted as
specified in Article 2.2.
ARTICLE 20 GOVERNING LAW
This Agreement and all consequences and results thereof
is governed by and construed in accordance with the laws
of the Netherlands. Any disputes arising from or in
connection with this Agreement, shall be submitted to the
competent court in Utrecht.
IN WITNESS WHEREOF this agreement was executed by the
duly authorized representatives of the parties hereto in
seven counterparts, this 24th day of March 1994.
1. Seller:
Tyco Investments (Australia) Limited
/s/ William Shannon
2. Purchaser:
Towerbridge B.V.
/s/ Carola M. M. Oomen
3. a. Wilgroup Norther N.V.
/s/ William Shannon
b. Wilgroup N.V.
/s/ William Shannon
c. Netherlands Engineering Services B.V.
/s/ Rokin Corporate Services
d. Wilgroup International Finance N.V.
/s/ William Shannon
4. Cooeperatieve Centrale Raiffeisen-Boerenleenbank B.A.
/s/ Inga M. de Gruijter
************
EXHIBIT K
STOCK EXCHANGE AND MEDIA RELEASE
SELECTIVE REDUCTION OF CAPITAL
28 March, 1994
The board of Tyco Investments (Australia) Limited
("TIAL") announced today a proposal to distribute the
shares of common stock it holds in Tyco International
Limited (formerly Tyco Laboratories Inc.) ("Tyco") and
surplus cash, on a proportional basis, to its
shareholders and optionholders.
The proposal is to be implemented via a selective
reduction of capital and a scheme of arrangement. Lang
Corporation Limited ("Lang"), the company's largest
shareholder, will not participate in the reduction of
capital in respect of its ordinary shares in TIAL. The
TIAL securities held by all ordinary shareholders other
than Lang, by preference shareholders and by
optionholders will be cancelled on completion of the
proposal. As a result, TIAL will become a wholly owned
subsidiary of Lang and, immediately after the scheme,
will hold Lang's proportional entitlement to Tyco shares
in respect of its ordinary shares.
The board has monitored closely during the last three
years the alternative ways to release to shareholders the
full value of the company's underlying net assets. Over
that period, the company's share price has consistently
traded at a discount to the underlying net assets. The
reduction of capital and scheme will enable TIAL
shareholders and optionholders to realise the full value
of their investment.
The board considers the distribution of Tyco shares,
rather than the distribution of the cash proceeds of the
sale of those shares, to be the fairest and most
appropriate mechanism of releasing value to its security
holders. In particular, the board has chosen to
distribute the Tyco shares, other than those attributable
to Lang's ordinary shares, in order to:
* enable shareholders to maintain their investment in
Tyco directly or to determine individually the most
appropriate method and time of selling their Tyco
shares;
* avoid the time and expense which would be involved
in the liquidation of the TIAL corporate structure
if all of the Tyco shares were distributed or if all
of the Tyco shares were sold and the proceeds
distributed to shareholders; and
* avoid the significant underwriting fees and
substantial discount to market which would be
incurred on a sale of a parcel of shares the size of
TIAL's shareholding in Tyco.
The precise ratios of Tyco shares and surplus cash to be
distributed will be determined on completion of the
scheme and will take into account the number of Tyco
shares TIAL then owns and the company's other assets and
liabilities at that time.
Given that shareholders and optionholders who have small
holdings in TIAL would not receive a readily marketable
parcel of Tyco shares, the company proposes to sell under
the scheme the Tyco shares on their behalf and those
shareholders and optionholders will receive the net cash
proceeds of the sale. Similarly, fractional entitlements
to Tyco shares will be sold by the company and will be
paid in cash to shareholders and optionholders.
To meet actual and contingent liabilities and the costs
of implementing the proposal, the company will sell the
Tyco warrants and a small proportion of its Tyco shares
before the distribution. TIAL expects that the group's
exposure to contingent liabilities will be substantially
eliminated.
The reduction of capital and scheme requires approvals at
a general meeting of ordinary and preference shareholders
and approvals at separate meetings of ordinary
shareholders, preference shareholders and optionholders.
The scheme also requires court orders to convene the
meetings and court confirmation on completion of the
meetings. Lang proposes not to vote at the general
meeting or the separate ordinary shareholders' meeting.
The implementation of the proposal will also require the
consent of Tyco and the company's creditors. The board
expects that these consents will be granted.
Shareholders and optionholders will be sent notices of
meeting and an explanatory memorandum which will explain
the proposal in detail as soon as possible. The
explanatory memorandum will also include an independent
expert's report.
TIAL has also entered into a conditional??? contract to
sell four dormant overseas subsidiaries which are surplus
to the group's requirements. This will become effective
following the disposition of all Tyco shares held by
TIAL. TIAL has also sold 150,000 Tyco shares at
approximately $US $54.00 each, to fund in part the
payment of the interim dividend of seven cents per share
fully??? banked on 15 April 1994.
TIAL received the Tyco shares and warrants, together with
US$350 million in cash, as consideration for the sale of
its fire protection businesses to Tyco. The cash
received from the sale was distributed to TIAL
shareholders in the form of a cash payment of $1.90 per
share in December 1990. The proposed sale of the Tyco
warrants and pro rata distribution of the Tyco shares
represents the final stage in the sale of the fire
protection businesses of Wormald International Limited
(the previous name of TIAL).
For further information please contact:
TELEPHONE
Vickki McFadden or Bruce McLennan
Centaurus Corporate Finance Pty Limited (02) 251 4477
EXHIBIT L
THIS DEED is made on 2nd December, 1993
BY: BRAESHORE PTY LIMITED (A.C.N. 004 000 800) having its
registered office at Suite 1, 133 Alexander Street, Crown
Nest, NSW 2065 ("Trustee")
RECITALS:
20.1 The Trustee is the holder of 5,000,000 shares of common
stock ("Stock") in Tyco International Limited ("TIL").
20.2 Trustee desires to hold 200,000 of the Stock on trust for
Tyco Investments (Australia) Limited ("TIAL").
OPERATIVE PROVISIONS:
a. Trustee hereby declares that it holds 200,000 of the Stock
in TIL on trust for TIAL.
b. Trustee will, if required by TIAL, cause a new share
certificate for the Stock the subject of the trust in clause
1 to be issued in the name of the Trustee.
c. Trustee hereby declares that it will act as bare Trustee of
the Trust.
d. TIAL may replace the Trustee (or any replacement of that
Trustee) and appoint a replacement trustee by giving notice
accordingly to the Trustee (or replacement).
e. This deed is governed by the law in force in the Australian
Capital Territory, Australia.
EXECUTED as a deed in
Netherlands
SIGNED, SEALED AND DELIVERED )
by William Shannon )
)
as attorney for BRAESHORE PTY )
LIMITED under power of attorney )
dated )
)
in the presence of: )
/s/ Graeme Bailey )
.............................. )
Signature of witness )
)
........Graeme Bailey......... )
Name of witness (block letters) ) .....William Shannon.....
) By executing this deed
c/o Hotel de L'Europe ) the attorney states that
............................... ) the attorney has received
Address of Witness ) no notice of revocation
....Chartered Accountant....... ) of the power of attorney.
Occupation of witness )
EXHIBIT M
THIS DEED is made on 15 March, 1994
BY: BRAESHORE PTY LIMITED (A.C.N. 004 000 300) having its registered
office at Suite 1, 133 Alexander Street, Crown Nest, NSW 2065
("Trustee")
RECITALS:
20.3 The Trustee is the holder of certain shares of common stock
("Stock") in Tyco International Limited ("TIL").
20.4 Trustee desires to hold 150,000 of the Stock on trust for Tyco
Investments (Australia) Limited ("TIAL").
OPERATIVE PROVISIONS:
a. Trustee hereby declares that it holds 150,000 of the Stock in
TIL on trust for TIAL.
b. Trustee will, if required by TIAL, cause a new share certificate
for the Stock the subject of the trust in clause 1 to be issued
in the name of the Trustee.
c. Trustee hereby declares that it will act as bare Trustee of the
Trust.
d. TIAL may replace the Trustee (or any replacement of that
Trustee) and appoint a replacement trustee by giving notice
accordingly to the Trustee (or replacement).
e. This deed is governed by the law in force in the Australian
Capital Territory, Australia.
EXECUTED as a deed in New South Wales
SIGNED, SEALED AND DELIVERED )
by E. Anthony Parkes )
)
as attorney for BRAESHORE PTY )
LIMITED under power of attorney )
dated )
)
in the presence of: )
/s/ E. Anthony Parkes )
.............................. )
Signature of witness )
)
......DR.E.A.PARKES........... )
Name of witness (block letters) ) .....William Shannon.....
) By executing this deed
1,133 Alexander St. Crows Nest ) the attorney states that
............................... ) the attorney has received
Address of Witness ) no notice of revocation
....Director................... ) of the power of attorney.
Occupation of witness )
Pursuant to Item 101(a)(2)(ii) of Regulation S-T, the
following sets forth the Schedule 13D, dated June 5, 1990, and all
amendments thereto.
[END AMENDMENT NO. 7]
[BEGIN AMENDMENT NO. 6]
This Amendment No. 6 amends the Statement on
Schedule 13D dated June 5, 1990, as heretofore amended (the
"Schedule 13D"), filed by Tyco Investments (Australia)
Limited (formerly known as Wormald International Limited)
("TIAL") and joined in by Netherlands Engineering Services
B.V. ("NES") and Braeshore Pty Limited ("Braeshore"),
relating to the common stock, par value $.50 per share, of
Tyco Laboratories, Inc., a Massachusetts corporation (the
"Issuer"). This Amendment is filed by TIAL, NES and
Braeshore (collectively, the "Reporting Persons").
Capitalized terms used and not defined herein shall have the
meanings ascribed thereto in the Schedule 13D.
Item 4. Purpose of Transaction.
On March 29, 1993, the shareholders of TIAL
approved a resolution empowering the directors for a period
of 2 years from March 29, 1993, to sell, if they so decide,
all or a portion of the Common Stock or Warrants upon terms
determined by the Board of Directors of TIAL. If the Board
of Directors determines to proceed with a sale, such sale
may be in any manner determined by the Board of Directors.
Any such sale will be subject to the provisions of the
Standstill Agreement, the Registration Rights Agreement
and/or the Warrant Agreement.
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this Statement is true, complete and correct.
Tyco Investments
(Australia) Limited
Dated: March 31, 1993 By: /s/ William Shannon
Name: William Shannon
Title: Company Secretary
SIGNATURE
After reasonable inquiry and to the best of our
knowledge and belief, we certify that the information set
forth in this Statement is true, complete and correct.
Dated: March 31, 1993
NETHERLANDS ENGINEERING SERVICES B.V.
/s/ Rokin Corporate Services B.V.
By: Rokin Corporate Services B.V.
Title: Managing Director
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this Statement is true, complete and correct.
Braeshore Pty Limited
Dated: March 31, 1993 By: /s/ William Shannon
Name: William Shannon
Title: Director and Secretary
[END AMENDMENT NO. 6]
[BEGIN AMENDMENT NO. 5]
This Amendment No. 5 amends the Statement on
Schedule 13D dated June 5, 1990, as heretofore amended
(the "Schedule 13D"), filed by Tyco Investments
(Australia) Limited (formerly known as Wormald
International Limited) ("TIAL") and joined in by
Netherlands Engineering Services B.V. ("NES") and
Braeshore Pty Limited ("Braeshore"), relating to the
common stock, par value $.50 per share, of Tyco
Laboratories, Inc., a Massachusetts corporation (the
"Issuer"). This Amendment is filed by TIAL, NES and
Braeshore (collectively, the "Reporting Persons").
Capitalized terms used and not defined herein shall have
the meanings ascribed thereto in the Schedule 13D.
Item 2. Identity and Background.
Item 2 is hereby amended by adding the
following:
(a)-(c), (f) Lang Corporation Limited, a
corporation incorporated under the laws of New South
Wales, Australia ("Lang"), is the successor to a portion
of the business of AFP Group PLC (now known as Chiltern
Capital PLC) including AFP's interest in TIAL. Lang is
the beneficial owner of-approximately 32% of the
outstanding voting stock of TIAL. Lang is primarily
engaged in the business of investing in, and, where
appropriate, managing, a variety of major companies, and
its principal business address is World Trade Centre,
Level 31, Jamison Street, Sydney N.S.W. 2000, Australia.
Schedule II to the Schedule 13D setting forth the
directors and executive officers of AFP is hereby deleted
and replaced in its entirety by Schedule II attached
hereto, which contains information relating to the
directors and executive officers of Lang.
Schedule I to the Schedule 13D setting forth
information relating to the directors and executive
officers of TIAL is hereby deleted and replaced in its
entirety by the Schedule I attached hereto. Schedule III
to the Schedule 13D relating to the directors and
officers of NES is hereby deleted and replaced in its
entirety by Schedule III attached hereto. Schedule IV to
the Schedule 13D relating to the directors and officers
of Braeshore is hereby deleted and replaced in its
entirety by Schedule IV attached hereto.
(d)-(e) During the last five years, neither
Lang nor any director or executive officer of Lang, nor
any director or executive officer of TIAL, NES or
Braeshore listed on new Schedules I, II, III and IV
attached hereto, has been (i) convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors), or (ii) 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 4. Purpose of Transaction.
In connection with the Reporting Person's
ongoing review of its investment in the Issuer, TIAL has
submitted to its shareholders for their approval a
resolution empowering the directors, for a period of 2
years from the date of shareholder approval of such
resolution, to sell, if they so decide, all or a portion
of the Common Stock or Warrants upon such terms
determined by the Board of Directors of TIAL. Such
resolution provides that the net proceeds of any sale
must be placed on deposit with an Australian or foreign
bank or Australian Federal or State Government or
Statutory Authority or invested in fixed interest
securities issued or guaranteed by such a bank or
Australian Federal or State Government or Statutory
Authority. Such resolution also provides that the net
proceeds may only be used by the Board of Directors to
satisfy the liabilities of TIAL and that any other use of
the net proceeds must be approved of by the shareholders
of TIAL. If the Board of Directors determines to proceed
with a sale, such sale may be in any manner determined by
the Board of Directors. Any such sale will be subject to
the provisions of the Standstill Agreement, the
Registration Rights Agreement and/or the Warrant
Agreement.
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this Statement is true, complete and correct.
Tyco Investments
(Australia) Limited
Dated: March 10, 1993 By:/s/ William Shannon
Name: William Shannon
Title: Company Secretary
SIGNATURE
After reasonable inquiry and to the best of our
knowledge and belief, we certify that the information set forth
in this Statement is true, complete and correct.
Dated: 10 March, 1993
NETHERLANDS ENGINEERING SERVICES B . V.
/s/ Rokin Corporate Services B.V.
By: Rokin Corporate Services B.V.
Title: Managing Director
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this Statement is true, complete and correct.
Braeshore Pty Limited
Dated: March 10, 1993 By: /s/ William Shannon
Name: William Shannon
Title: Director and Secretary
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
TYCO INVESTMENTS (AUSTRALIA) LIMITED
The following table sets forth the name, business
address and present principal occupation or employment of each of
the directors and executive officers of Tyco Investments
(Australia) Limited. Unless otherwise indicated, the business
address of each person listed below is Tyco Investments
(Australia) Limited, 6th Floor, 601 Pacific Highway, St. Leonards
N.S.W. 2065, Australia. Each individual listed below is a citizen
of Australia unless otherwise indicated.
Position, Present Principal
Name Occupation or Employment
Robert C. Mansfield Director; Director and Chief
Executive Officer of Optus
Communications Pty Ltd.
Edward A. Parkes Director; Chairman of Lloyds
c/o Lloyds Corporate Advisory Corporate Advisory Services
Services Pty Limited Pty Limited; Chairman of 35
Pitt Street Lloyds Bank NZA Limited;
Sydney N.S.W. 2000 Chairman of Parbury Limited
Australia
William K. B. Shannon Secretary
John F. Fort Director
c/o Tyco Laboratories, Inc.
One Tyco Park
Exeter, New Hampshire 03833
U.S.A.
David J.J. Vaux Director; Executive Director
c/o Lang Corporation Limited of Lang Corporation Limited
World Trade Centre
Jamison Street
Level 31
Sydney N.S.W. 2000
Australia
Christopher D. Corrigan Director; Managing Director of
c/o Lang Corporation Lang Corporation; Managing
World Trade Centre Director of Jamison Equity
Jamison Street Limited
Level 31
Sydney N.S.W. 2000
Australia
SCHEDULE II
DIRECTORS AND EXECUTIVE OFFICERS
F LANG CORPORATION LIMITED
The following table sets forth the name, business
address and present principal occupation or employment of each of
the directors and executive officers of Lang Corporation Limited.
Unless otherwise indicated, the business address of each person
listed below is Lang Corporation Limited, World Trade Centre,
Level 31, Sydney N.S.W. 2000, Australia. Each individual listed
below is a citizen of Australia unless otherwise indicated.
Position, Present Principal
Name Occupation or Employment
Peter D. Scanlon Director
Evan J. Williams Secretary
Christopher D. Corrigan Managing Director; Managing
Director of Jamison Equity
Limited
David J.J. Vaux Executive Director
Gilles T. Kryger Chairman and Director
SCHEDULE III
DIRECTORS AND EXECUTIVE OFFICERS OF
ROKIN CORPORATE SERVICES B.V.
The following table sets forth the name, business
address and present principal occupation or employment of each of
the directors and executive officers of Rokin Corporate Services
B.V. Unless otherwise indicated, the business address of each
person listed below is Strawinskylaan 2001, 1077 zz Amsterdam,
the Netherlands (b.a.). Each individual listed below is a citizen
of the Netherlands.
Position, Present Principal
Name Occupation or Employment
Muus De Boer Managing Director
Theodor R. Bremer Managing Director; lawyer at
Stibbe Simont Monahan Duhot
(law firm)
Herbert B.A. Verhagen Managing Director; lawyer at
Stibbe Simont Monahan Duhot
(law firm)
Leendert P. van den Blink Managing Director; lawyer at
Stibbe Simont Monahan Duhot
(law firm)
Jacobus C. S. Van Breukelen Managing Clerk; Managing
Director at Stibbe Simont
Monahan Dubot (law firm)
SCHEDULE IV
DIRECTORS AND EXECUTIVE OFFICERS OF
BRAESHORE PTY LIMITED
The following table sets forth the name, present
principal occupation or employment and citizenship of each of the
directors and executive officers of Braeshore Pty Limited. The
business address of each person listed below is c/o Tyco
Investments (Australia) Limited, 6th Floor, 601 Pacific Highway,
St. Leonards N.S.W. 2065, Australia. Each individual listed below
is a citizen of Australia unless otherwise indicated.
Position, Present Principal
Name Occupation or Employment
William K. B. Shannon Secretary and Director;
Secretary of Tyco Investments
(Australia) Limited
Kim Van Dyke Director; Executive of Tyco
Investments (Australia)
Limited
[END AMENDMENT NO. 5]
[BEGIN AMENDMENT NO. 4]
This Amendment No. 4 amends the Statement on
Schedule 13D dated June 5, 1990, as heretofore amended
(the "Schedule 13D"), filed by Tyco Investments
(Australia) Limited (formerly known as Wormald
International Limited) ("TIAL") and joined in by
Netherlands Engineering Services B.V. ("NES"), relating
to the common stock, par value $.50 per share, of Tyco
Laboratories, Inc., a Massachusetts corporation (the
"Issuer"). This Amendment is filed by TIAL, NES, and
TIAL's wholly owned subsidiary Braeshore Pty Limited, a
company incorporated under the laws of New South Wales,
Australia ("Braeshore" and together with TIAL and NES,
the "Reporting Persons"). Capitalized terms used and not
defined herein shall have the meanings ascribed thereto
in the Schedule 13D.
Item 2. Identity and Background.
Item 2 is hereby amended by adding the
following:
(a)-(c), (f) On November 9, 1990 TIAL's name
was changed from Wormald International Limited to Tyco
Investments (Australia) Limited.
Braeshore Pty Limited is a company incorporated
under the laws of New South Wales, Australia, and is
primarily engaged in the business of being an investment
holding company. Its principal business address is 7th
Floor, 601 Pacific Highway, St. Leonards, N.S.W. 2065,
Australia. TIAL owns all of the outstanding common
stock, representing .001% of the outstanding voting
power, of Braeshore and NES owns all of the outstanding
voting redeemable preference stock, representing 99.999%
of the outstanding voting power, of Braeshore.
Information relating to the directors and executive
officers of Braeshore is contained in Schedule IV
attached hereto, which is incorporated herein by
reference. Schedule I to the Schedule 13D setting forth
information relating to the directors and executive
officers of TIAL is hereby deleted and replaced in its
entirety by the Schedule I attached hereto. Schedule II
to the Schedule 13D setting forth information relating to
the directors and executive officers of NES is hereby
deleted and replaced in its entirety by the Schedule II
attached hereto. Schedule III to the Schedule 13D is
amended to change the reference therein to Stibbe,
Blaisse & De Jong with Stibbe & Simont.
TIAL, NES, and Braeshore have entered into a
joint filing agreement dated October 11, 1991 (the "Joint
Filing Agreement") pursuant to Rule 13d-1(f) promulgated
under the Securities Exchange Act of 1934. The Joint
Filing Agreement authorizes each other party to file on
its behalf all amendments to the Schedule 13D. A copy of
the Joint Filing Agreement is attached hereto as Exhibit
F and is incorporated herein by reference. The foregoing
summary of the Joint Filing Agreement is qualified in its
entirety by reference to the Joint Filing Agreement.
(d)-(e) During the last five years, neither
Braeshore nor any director or executive officer of
Braeshore, nor any director or executive officer of TIAL
or NES listed on new Schedules I and II attached hereto,
has been (i) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors),
or (ii) 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.
Item 3 is hereby amended by adding the
following:
On October 2, 1991, NES and Braeshore entered
into a Deed of Sale and Transfer (the "Deed of Sale and
Transfer") pursuant to which NES is to transfer the
5,000,000 shares of Common Stock, and the Warrants to
acquire an additional 5,000,000 shares of Common Stock,
owned by it to Braeshore in consideration for 269,654
shares of voting redeemable preference stock, par value
$1.00 per share, of Braeshore (the "Redeemable Preference
Shares"). A copy of the Deed of Sale and Transfer is
attached hereto as Exhibit G.
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended by adding the
following:
(a) Pursuant to the Deed of Sale and Transfer,
ownership of the 5,000,000 Shares of Common Stock plus
the Warrants to purchase an additional 5,000,000 shares
of Common Stock are being transferred by NES to
Braeshore, in exchange for the Redeemable Preference
Shares. As a result, Braeshore is the beneficial owner
of 10,000,000 shares of Common Stock (which includes the
5,000,000 shares of Common Stock deliverable upon
exercise of the Warrants), representing approximately
19.21% of the total of the 47,058,168 shares of Common
Stock outstanding as of August 5, 1991 (as reported by
the Issuer in its Annual Report on Form 10-K for the year
ended June 31, 1991) plus the 5,000,000 shares of Common
Stock that would be outstanding if the Common Stock
deliverable upon the exercise of the Warrants were issued
and outstanding. Because NES owns more than 51% of the
voting power of Braeshore, NES may be deemed to control
Braeshore and therefore may be deemed to beneficially own
all shares of Common Stock beneficially owned by
Braeshore. As the parent company of NES, TIAL may be
deemed to beneficially own all shares of Common Stock
beneficially owned by Braeshore.
(b) Except to the extent restricted by the
Standstill Agreement as previously described in the
Schedule 13D, Braeshore has the power to dispose or
direct the disposition of, and to vote or direct the vote
of, all shares of Common Stock beneficially owned by it,
and NES, as the beneficial owner of 99.999% of the
outstanding voting power of Braeshore, and TIAL, as the
ultimate parent company of NES, may each be deemed to
share with Braeshore the power to dispose or direct the
disposition of, and to vote or direct the vote of, all
shares of Common Stock beneficially owned by Braeshore.
(c) See the response to Item 3 above.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer.
Item 6 is hereby amended by adding the
following:
On October 2, 1991, NES and Braeshore entered
into the Deed of Sale and Transfer pursuant to which NES
is transferring the 5,000,000 shares of Common Stock and
the Warrants to acquire an additional 5,000,000 shares of
Common Stock to Braeshore in consideration for 269,654
shares of Braeshore's Redeemable Preference Stock. The
Deed of Sale and Transfer requires that the transfer be
consummated in accordance with all requirements of
applicable law and the Standstill Agreement, the Warrant
Agreement and the Registration Rights Agreement. A copy
of the Deed of Sale and Transfer is attached hereto as
Exhibit G and is incorporated by reference. The
foregoing summary of the Deed of Sale and Transfer is
qualified in its entirety by reference to the Deed of
Sale and Transfer.
The Standstill Agreement provides that NES may
dispose of Voting Stock and Warrants without the prior
written consent of the Issuer in a disposition to a
corporation of which TIAL owns, directly or indirectly,
50% of the voting power (a "Controlled Corporation"),
provided that the Controlled Corporation agrees to be
bound by the Standstill Agreement (the "Controlled
Corporation Agreement"), as more fully described below,
and TIAL executes a guaranty agreement (the "Guaranty
Agreement") as more fully described below.
On October 2, 1991, Braeshore, as a Controlled
Corporation, and the Issuer entered into an agreement
(the "Controlled Corporation Agreement") pursuant to
which Braeshore has agreed (i) to hold Voting Stock and
Warrants subject to and to be bound by the Standstill
Agreement, other than Section 6 of the Standstill
Agreement (which relates to the obligation of the Issuer
to exercise all authority under applicable law (subject
to its Board of Directors' fiduciary duty) to cause one
person, or under certain circumstances two persons,
designated by TIAL to be included in the slate of
nominees recommended by the Issuer's Board of Directors
and to be elected to the Issuer's Board of Directors and
(ii) to transfer the Voting Stock and/or Warrants to TIAL
or another Controlled Corporation if Braeshore ceases to
be a Controlled Corporation. A copy of the Controlled
Corporation Agreement is attached hereto as Exhibit H and
is incorporated herein by reference. The foregoing
summary of the Controlled Corporation Agreement is
qualified in its entirety by reference to the Controlled
Corporation Agreement.
On October 9, 1991, TIAL and the Issuer entered
into an agreement (the "Guaranty Agreement") whereby TIAL
unconditionally guarantees the performance by Braeshore
of all covenants and obligations under the Controlled
Corporation Agreement and any document delivered by the
Controlled Corporation under the Controlled Corporation
Agreement or the Standstill Agreement. Pursuant to the
Guaranty Agreement, TIAL also agrees to pay all expenses
(including reasonable attorneys fees) of the Issuer
incurred in enforcing its rights under the Guaranty
Agreement. A copy of the Guaranty Agreement is attached
hereto as Exhibit I and is incorporated herein by
reference. The foregoing summary of the Guaranty
Agreement is qualified in its entirety by reference to
the Guaranty Agreement.
As a result of the transfer of the 5,000,000
shares of Common Stock and the Warrants to purchase an
additional 5,000,000 shares of Common Stock, Braeshore
has become a holder of Registrable Securities under the
Registration Rights Agreement and a holder of the
Warrants under the Warrant Agreement.
Item 7. Material to be Filed as Exhibit.
The following documents are appended hereto as
Exhibits:
Exhibit F Joint Filing Agreement dated October 11, 1991
between TIAL, NES and Braeshore.
Exhibit G Deed of Sale and Transfer dated October 2,
1991 between NES and Braeshore.
Exhibit H Controlled Corporation Agreement dated
October 2, 1991, between the Issuer and
Braeshore
Exhibit I Guaranty Agreement dated October 9, 1991,
between the Issuer and TIAL
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.
Tyco Investments
(Australia) Limited
Dated: October 11, 1991 By: /s/ Robert C. Mansfield
Title: Managing Director
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.
Netherlands Engineering
Services B.V.
Dated: October 11, 1991 By: /s/ Rokin Corporate Services B.V.
Title: Managing Director
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.
Braeshore Pty Limited
Dated: October 11, 1991 By: /s/ Robert C. Mansfield
Title: Managing Director
EXHIBIT INDEX
Exhibit Page
F Joint Filing Agreement N/A
dated October 11, 1991 by
and among TIAL, NES and
Braeshore.
G Deed of Sale and Transfer N/A
dated October 2, 1991
between NES and Braeshore.
H Controlled Corporation N/A
Agreement dated October 2,
1991, between the Issuer
and Braeshore.
I Guaranty Agreement dated N/A
October 9, 1991, between
the Issuer and TIAL.
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF TYCO INVESTMENTS
(AUSTRALIA) LIMITED
The following table sets forth the name, business
address and present principal occupation or employment of each
of the directors and executive officers of Tyco Investments
(Australia) Limited. Each individual listed below is a
citizen of Australia unless otherwise indicated.
POSITION, PRESENT PRINCIPAL
NAME OCCUPATION OR EMPLOYMENT
Peter Damian Scanlon Joint Chairman, AFP Group PLC,
Business Address: Director and Chairman of Tyco
C/- AFP Management Limited Investments (Australia) Limited
Level 30
367 Melbourne VIC 3000
Australia
Robert Cecil Mansfield Managing Director of Tyco
Business Address: Investments (Australia) Limited
C/- Tyco Investments (Australia)
Limited
7th Floor, 601 Pacific Highway
St. Leonards NSW 2065
Australia
Edward Anthony Parkes Chairman, Lloyds Corporate
Business Address: Advisory Services Pty Limited
C/- Lloyds Corporate Advisory and Director of Tyco
Services Pty Limited Investments (Australia) Limited
35 Pitt Street
Sydney NSW 2000
Australia
Basil Alfred Darrell Sellers Managing Director, AFP Group
Business Address: PLC and Director of Tyco
C/- AFP Management Limited Investments (Australia) Limited
66 Chiltern Street
London W1M 2AP
England
William Keith Baxter Shannon Secretary of Tyco Investments
Business Address: (Australia) Limited
C/- Tyco Investments (Australia)
Limited
7th Floor, 601 Pacific Highway
St. Leonards NSW 2065
Australia
John Rennick Allerton General Manager - Finance of
Business Address: Tyco Investments (Australia)
C/- Tyco Investments (Australia) Limited
Limited
7th Floor, 601 Pacific Highway
St. Leonards NSW 2065
Australia
John Franklin Fort Chairman and Chief Executive
Business Address: Officer of Tyco Laboratories,
C/- Tyco Laboratories, Inc. Inc. and Director of Tyco
One Tyco Park Investments (Australia) Limited
Exeter, New Hampshire 03833
U.S.A.
Leo Dennis Kozlowski President and Chief Operating
Business Address: Officer of Tyco Laboratories,
C/- Tyco Laboratories, Inc. Inc., and Director of Tyco
One Tyco Park Investments (Australia) Limited
Exeter, New Hampshire 03833
U.S.A.
David J.J. Vaux Executive, AFP Management
Business Address: Limited and Director of Tyco
C/- AFP Management Limited Investments (Australia) Limited
Level 31
Qantas International Center
Jamison Street Sydney 2000
Australia
SCHEDULE II
DIRECTORS AND EXECUTIVE OFFICERS OF AFP GROUP PLC
The following table sets forth the name, business
address and present principal occupation or employment of each
of the directors and executive officers of AFP Group PLC.
Each individual listed below is a citizen of Australia unless
otherwise indicated.
POSITION, PRESENT PRINCIPAL
NAME OCCUPATION OR EMPLOYMENT
William John Gerahty Joint Chairman, AFP Group PLC,
Business Address: Company Director
C/- AFP Group PLC
Geroge V
14 Avenue de Grande Bretagne
Monaco MC 98000
Peter Damian Scanlon Joint Chairman, AFP Group PLC,
Business Address: Company Director
C/- AFP Management Limited
Level 30, 367 Collins Street
Melbourne VIC 3000
Australia
Basil Alfred Darrell Sellers Managing Director, AFP Group
Business Address: PLC, Company Director
C/- AFP Management Limited
66 Chiltern Street
London W1M 2AP
England
David Fitzsimmons Director, AFP Group PLC,
Business Address: Company Director
C/- AFP Management Limited
66 Chiltern Street
London W1M 2AP
England
Ronald Gregory Melgaard Director, AFP Group PLC,
Business Address: Company Director
C/- AFP Management Limited
66 Chiltern Street
London W1M 2AP
England
Brian Copsey Director, AFP Group PLC,
Business Address: Company Director
C/- AFP Group PLC
Le George V
14 Avenue de Grande Bretaqne
Monaco MC 98000
SCHEDULE IV
DIRECTORS AND EXECUTIVE OFFICERS OF BRAESHORE PTY LIMITED
The following table sets forth the name, present
principal occupation or employment and citizenship of each of
the directors and executive officers of Braeshore Pty Limited.
The business address of each person listed below is 7th Floor,
601 Pacific Highway, St. Leonards, NSW 2065, Australia. Each
individual listed below is a citizen of Australia unless
otherwise indicated.
POSITION, PRESENT PRINCIPAL
NAME OCCUPATION OR EMPLOYMENT
Robert Cecil Mansfield Director of Braeshore, Managing
Director of Tyco Investments
(Australia) Limited
John Rennick Allerton Director of Braeshore, General
Manager-Finance of Tyco
Investments (Australia) Limited
William Keith Baxter Shannon Secretary of Braeshore,
Secretary of Tyco Investments
(Australia) Limited
[END AMENDMENT NO. 4]
[BEGIN AMENDMENT NO. 3]
This Amendment No. 3 amends the Statement on
Schedule 13D dated June 5, 1990, as heretofore amended
(the "Schedule 13D"), filed by Wormald International
Limited ("Wormald"), relating to the common stock, par
value $.50 per share, of Tyco Laboratories, Inc., a
Massachusetts corporation (the "Issuer"). This Amendment
is filed by Wormald and its wholly owned subsidiary
Netherlands Engineering Services B.V. ("NES" and,
together with Wormald, the "Reporting Persons").
Capitalized terms used and not defined herein shall have
the meanings ascribed thereto in the Schedule 13D.
Item 2. Identity and Background.
(a)-(c), (f). Netherlands Engineering Services
B.V. is a holding company incorporated in the
Netherlands. Its principal business address is Rokin 92-
96, 1012 KZ, Amsterdam, The Netherlands (b.a.). NES is a
wholly owned subsidiary of Wormald. The sole Managing
Director of NES is Rokin Corporate Services B.V., a trust
company incorporated in The Netherlands ("Rokin").
Rokin's principal business address is Rokin 92-96, 1012
KZ, Amsterdam, The Netherlands (b.a.). NES has no other
directors or executive officers. Information relating to
the directors and executive officers of Rokin is
contained in Schedule III attached hereto, which is
incorporated herein by reference.
(d)-(e). During the last five years, none of
NES, Rokin, or any executive officer or director of
either of them has been (i) convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors), or (ii) 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 5. Interest in Securities of the Issuer.
(a) The 5,000,000 Shares of Common Stock plus
the Warrants to purchase an additional 5,000,000 shares
of Common Stock previously reported as beneficially owned
by Wormald (as a result of Wormald's right to acquire the
same upon consummation of the sale of Wormald's fire
protection systems and related businesses to the Issuer
and the Buying Subsidiaries, pursuant to the Purchase
Agreement), were issued on August 2, 1990 to Wormald's
subsidiary NES, as a Selling Subsidiary, at the Closing
of the transactions contemplated by the Purchase
Agreement. As a result, NES is the beneficial owner of
10,000,000 shares of Common Stock, representing
approximately 19.2% of the 42,036,138 shares of Common
Stock outstanding as of April 30, 1990 plus the 5,000,000
Shares issued to NES and plus the 5,000,000 shares of
Common Stock that would be outstanding if the Common
Stock deliverable upon the exercise of such Warrants were
issued and outstanding. As the parent company of NES,
Wormald may be deemed to beneficially own all shares of
Common Stock beneficially owned by NES.
(b) Except to the extent restricted by the
Standstill Agreement, NES has the power to dispose or
direct the disposition of, and to vote or direct the vote
of, all shares of Common Stock beneficially owned by it,
and Wormald, as the parent company of NES, my be deemed
to share with NES the power to dispose or direct the
disposition of, and to vote or direct the vote of, all
shares of Common Stock beneficially owned by it.
(c) The Shares and Warrants previously
reported as beneficially owned by Wormald, as a result of
Wormald's right to acquire the same upon consummation of
the transactions contemplated by the Purchase Agreement,
were issued to NES at the Closing of such transactions on
August 2, 1990.
Item 6. Contracts, Arrangements, Understanding or
Relationships with Respect to Securities of the
Issuer.
On August 1, 1990, the Issuer and the Buying
Subsidiaries and Wormald and the Selling Subsidiaries
(including NES) entered into a letter agreement (the
"Second Letter Amendment") pursuant to which certain
terms of the Purchase Agreement, as previously amended,
were amended. Such amendments principally relate to the
structure of the sale to the Issuer and the Buying
Subsidiaries of Wormald's German subsidiary Wormald
Deutschland GmbH, assumption by the Issuer or a
designated Buying Subsidiary of certain receivables, and
the reduction of the cash portion of the consideration to
be paid at the closing by approximately $5.76 million, as
a result of certain bonus payments to be made to certain
employees of the Transferred Subsidiaries. A copy of the
Second Letter Amendment is attached hereto as Exhibit E
and is incorporated herein by reference. The foregoing
summary of the Second Letter Amendment is qualified in
its entirety by reference to the Second Letter Amendment.
On August 2, 1990, the transactions
contemplated by the Purchase Agreement, as amended, were
consummated. As contemplated by the Purchase Agreement,
the Issuer, Wormald and NES entered into the Standstill
Agreement and the Registration Rights Agreement
previously described in the Schedule 13D.
Item 7. Material to be Filed as Exhibits.
The following documents are appended hereto as
Exhibits:
Exhibit E Letter Agreement, dated August 1, 1990,
between the Issuer and the Buying
Subsidiaries, and Wormald and the Selling
Subsidiaries (including NES).
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.
Wormald International Limited
Dated: August 6, 1990 By: /s/ John L. Willson
Title: Director
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.
Netherlands Engineering
Services B.V.
Dated: August 6, 1990 By: /s/ John L. Willson
Title: Attorney-in-Fact
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: By: ___________________
Title:
EXHIBIT INDEX
Exhibit Page
E Letter Agreement, dated August 1, N/A
1990, between the Issuer and the
Buying Subsidiaries, and Wormald
and the Selling Subsidiaries
(including NES).
SCHEDULE III
DIRECTORS AND EXECUTIVE OFFICERS
OF ROKIN CORPORATE SERVICES B.V.
The following table sets forth the name,
business address and present principal occupation or
employment of each of the directors and executive
officers of Rokin Corporate Services B.V. Unless
otherwise indicated, the business address of each person
listed below is Rokin 92-96, 1012 KZ Amsterdam, The
Netherlands (b.a.). Each individual listed below is a
citizen of The Netherlands.
NAME: PRESENT PRINCIPAL OCCUPATION:
Muus De Boer Managing Director.
Theodor Rutger Bremer Managing Director; lawyer at
Stibbe, Blaisee & De Jong
(law firm).
Johan George Jozef Managing Director; lawyer at
Janssen Stibbe, Blaisse & De Jong
(law firm).
Herbert Bernard Albert Managing Director.
Verhagen
Leendert Pierter Managing Director; lawyer at
Van Den Blink Stibbe, Blaisse & De Jong
Strawinskylaan 3009, (law firm).
Tower 1,
5th Floor,
1077 ZX,
Amsterdam,
The Netherlands (b.a.)
Jacobus Clemens Managing Clerk; Managing
Sebastianus Director at Stibbe,
Van Breukelen Blaisse & De Jong
(law firm).
[END AMENDMENT NO. 3]
[BEGIN AMENDMENT NO. 2]
This Amendment No. 2 amends the Statement on
Schedule 13D dated June 5, 1990, as heretofore amended
(the "Schedule 13D"), filed by Wormald International
Limited (the "Reporting Person"), relating to the common
stock, par value $.50 per share, of Tyco Laboratories,
Inc., a Massachusetts corporation (the "Issuer").
Capitalized terms used and not defined herein shall have
the meanings ascribed thereto in the Schedule 13D.
Item 6. Contracts, Arrangements,
Understanding or Relationships with
Respect to Securities of the Issuer.
Item 6 is hereby amended as follows:
On June 29, 1990, the Issuer, the Reporting
Person and the Selling Subsidiaries entered into a Letter
Agreement (the "Letter Amendment"), pursuant to which
certain terms of the Purchase Agreement have been
amended. Such amendments principally relate to the
reorganization of the structure of the holding of certain
Transferred Subsidiaries by the Reporting Person and the
Selling Subsidiaries, and certain other actions to be
taken by the Reporting Person and certain of its
subsidiaries, prior to the Closing. A copy of the Letter
Amendment is attached hereto as Exhibit D and is
incorporated herein by reference. The foregoing summary
of the Letter Amendment is qualified in its entirety by
reference to the Letter Amendment.
Item 7. Material to be Filed as Exhibit.
Item 7 is hereby amended as follows:
Exhibit D Letter Amendment, dated June 29, 1990, by and
among among the Issuer, the Reporting Person
and the Selling Subsidiaries.
EXHIBIT INDEX
Exhibit Page
D Letter Amendment, dated June N/A
29, 1990, by and among the
Issuer, the Reporting Person
and the Selling Subsidiaries
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.
Wormald International Limited
Dated: July 3, 1990 By: /s/ John L. Willson
Title: Director
[END AMENDMENT NO. 2]
[BEGIN AMENDMENT NO. 1]
This Amendment No. 1 amends the Statement on
Schedule 13D dated June 5, 1990 (the "Schedule 13D")
filed by Wormald International Limited, relating to the
common stock, par value $.50 per share, of Tyco
Laboratories, Inc., a Massachusetts corporation.
Item 2. Identity and Background.
Item 2 is hereby amended as follows:
(f) Schedule I to the Schedule 13D is hereby
amended to state that John L. Willson is a citizen of the
United Kingdom.
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.
Wormald International Limited
Dated: June 7, 1990 By: /s/ John L. Willson
Title: Director
[END AMENDMENT NO. 1]
[BEGIN SCHEDULE 13D]
Item 1. Security and Issuer.
The class of securities to which this Statement
on Schedule 13D (this "Statement") relates is the common
stock, par value $.50 per share (the "Common Stock"), of
Tyco Laboratories, Inc., a Massachusetts corporation (the
"Issuer"). The principal executive offices of the Issuer
are located at One Tyco Park, Exeter, New Hampshire
03833.
Item 2. Identity and Background.
(a)-(c), (f). This Statement is being filed by
Wormald International Limited, a company incorporated in
the State of New South Wales, Australia (the "Reporting
Person"), which is primarily engaged in the business of
designing, installing and servicing fire protection
systems and related businesses (collectively, the
"Business"). The principal business address of the
Reporting Person is 5th Floor, 601 Pacific Highway, St.
Leonards, N.S.W. 2065, Australia. Information relating
to the directors and executive officers of the Reporting
Person is contained in Schedule I attached hereto, which
is incorporated herein by reference. AFP Group PLC, a
United Kingdom corporation ("AFP"), which beneficially
owns approximately 33.7% of the outstanding voting stock
of the Reporting Person, may be regarded as a controlling
person of the Reporting Person. AFP is primarily engaged
in the business of investing in a variety of major
companies, and its principal business address is c/o
Alliance Maritime Investments, S.A.M., 14 Avenue de
Grande Bretagne, MC 98000, Monaco. Information relating
to the directors and executive officers of AFP is
contained in Schedule II attached hereto, which is
incorporated herein by reference.
(d)-(e). During the last five years, none of
the Reporting Person, AFP, or any executive officer or
director of either of them has been (i) convicted in a
criminal proceeding (excluding traffic violations or
similar misdemeanors), or (ii) 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.
The Issuer, the Reporting Person and certain
subsidiaries of the Reporting Person have entered into a
Purchase Agreement dated as of May 28, 1990 (the
"Purchase Agreement") pursuant to which the Reporting
Person and certain of its subsidiaries (the "Selling
Subsidiaries") have agreed to sell to the Issuer and/or
certain of its subsidiaries (the "Buying Subsidiaries")
the stock of substantially all the Reporting Person's
subsidiaries engaged in the Business (the "Transferred
Subsidiaries"), in consideration for US$350 million in
cash, 5,000,000 shares of Common Stock (the "Shares") and
warrants, exercisable for five years from the closing of
the transactions contemplated by the Purchase Agreement
(the "Closing"), representing the right to acquire an
aggregate of an additional 5,000,000 shares of Common
Stock at an initial exercise price of US$70 per share
(the "Warrants"). A copy of the Purchase Agreement is
attached as Exhibit A hereto and is incorporated herein
by reference. A summary of certain of the terms of the
Purchase Agreement is set forth in Item 6 hereof, which
is incorporated herein by reference. The summary of the
Purchase Agreement set forth herein is qualified in its
entirety by reference to the Purchase Agreement.
Item 4. Purpose of Transaction.
The Reporting Person is acquiring the Shares
and Warrants for purposes of investment. The Reporting
Person intends to review its investment in the Issuer on
a continuing basis and, depending upon various factors,
including the business affairs, prospects and financial
position of the Issuer, the price level of the shares of
Common Stock, conditions in the securities markets, the
availability of other investment and business
opportunities, availability of funds, general economic
and industry conditions and any other facts and
circumstances that may hereafter become known to the
Reporting Person regarding its investment in the Issuer,
the Reporting Person may in the future take such actions
with respect to its investment as it deems appropriate in
light of circumstances existing at such time. Such
actions may, subject to the restrictions set forth in the
Standstill Agreement (defined and described below),
include the purchase of additional shares of Common Stock
in the open market or in privately negotiated
transactions, or the sale of all or a portion of the
shares of Common Stock or Warrants now or hereafter
beneficially owned by the Reporting Person in the open
market, in privately-negotiated transactions to one or
more purchasers or otherwise.
Pursuant to the Purchase Agreement, at the
Closing the Issuer and the Reporting Person and those
Selling Subsidiaries receiving Common Stock or Warrants
will enter into a Standstill Agreement, in the form of
the Standstill Agreement appended to the Purchase
Agreement as Exhibit B thereto (the "Standstill
Agreement"). As more fully described at Item 6 of this
Statement, the Standstill Agreement will provide, among
other things, that during the term thereof, so long as
the Reporting Person and its Affiliates (as defined in
the Standstill Agreement) beneficially own and/or have
the right to acquire, in the aggregate, Voting Stock
having voting power equal to at least 7-1/2% of the total
voting power of Issuer's then outstanding Voting Stock,
the Issuer shall be obligated to exercise all authority
under applicable law (subject to its Board of Directors'
fiduciary duties to the Issuer's shareholders) to cause
one person designated by the Reporting Person and
reasonably satisfactory to a majority of the Issuer's
Board (the "First Nominee") to be included in the slate
of nominees recommended by the Issuer's Board to the
Issuer's shareholders for election as directors of the
Issuer and to be elected to the Issuer's Board of
Directors. If on the fifth anniversary following the
execution of the Standstill Agreement the Reporting
Person and its Affiliates own, in the aggregate, at least
9 million shares of the Issuer's outstanding Common
Stock, then the Issuer shall be obligated to exercise all
authority under applicable law (subject to its Board of
Directors' fiduciary duties to the Issuer's shareholders)
to cause two persons (including the First Nominee)
designated by the Reporting Person and reasonably
satisfactory to a majority of the Issuer's Board of
Directors to be included in the slate of nominees
recommended by the Issuer's Board to the Issuer's
shareholders for election as directors of the Issuer and
to be elected to the Issuer's Board of Directors. If the
Issuer becomes subject to paragraph (a) of Section 50A of
Chapter 156B of the General Laws of the Commonwealth of
Massachusetts (the "Massachusetts Statute") and pursuant
thereto establishes a classified Board of Directors, then
one nominee of the Reporting Person will be required to
be designated as a Class III nominee (as defined in the
Massachusetts Statute), and the other nominee, if any,
will be required to be designated a Class II nominee (as
defined in the Massachusetts Statute). If, other than
pursuant to the Massachusetts Statute, the Issuer
establishes a classified Board of Directors, then one
nominee of the Reporting Person shall be nominated for
election with a term equivalent to such a Class III
director, and the other nominee of the Reporting Person,
if any, shall be nominated for election with a term
equivalent to such a Class II director. "Voting Stock"
is defined in the Standstill Agreement generally (subject
to certain specified exceptions) to mean any outstanding
securities having the ordinary power to vote in the
election of directors of the Issuer, excluding securities
issued by the Issuer having such power only upon the
happening of a contingency.
The Standstill Agreement also will require
that, so long as a majority of the members of the
Issuer's Board of Directors are "Continuing Directors",
the Reporting Person cause all shares of Voting Stock
beneficially owned by it and its Affiliates to be voted
(except to the extent expressly prohibited by applicable
law) (i) for the persons nominated by the Issuer's
management to the Issuer's Board of Directors and (ii) in
accordance with the recommendation of the Issuer's
management with respect to any proposal by a shareholder
(other than a director or member of management) of the
Issuer to amend the Issuer's Certificate of Incorporation
or By-Laws. In addition, if the Reporting Person and its
Affiliates beneficially own, in the aggregate,
outstanding shares of Voting Stock representing in excess
of 19.99% of the total voting power of the Issuer's
outstanding Voting Stock, the Reporting Person will be
required to cause all such excess shares beneficially
owned by it and its Affiliates to be voted (except to the
extent expressly prohibited by applicable law) with
respect to all other matters in the same manner as the
majority of votes cast by the other holders of Voting
Stock with respect to such matter, unless the Issuer
otherwise consents in writing. The term "Continuing
Director" is defined in the Standstill Agreement to mean
each member of the Issuer's Board in office on the date
of the Purchase Agreement and any person subsequently
designated (before such person's initial election) as a
Continuing Director by a majority of the then Continuing
Directors. Dispositions of Voting Stock and Warrants
will also be subject to certain restrictions set forth in
the Standstill Agreement (including, in certain
circumstances, a right of first refusal on the part of
the Issuer to purchase shares or Warrants proposed to be
disposed of) which are described in Item 6 hereof.
Concurrently with execution of the Purchase
Agreement, the Issuer and the Reporting Person also
entered into a letter agreement (the "Letter Agreement")
which provides that, in connection with the parties'
desire for an orderly transition of the Business, so long
as Bob Mansfield is an executive officer of the
international operations of the Issuer, the Issuer will
use its best efforts to cause Mr. Mansfield to be
nominated and elected as a Director of the Issuer. If,
for any reason, within five years from the Closing Mr.
Mansfield ceases to be an executive officer of the
Issuer, the Issuer will be obligated to use its best
efforts to cause Mr. Mansfield or such other person
nominated by the Reporting Person and reasonably
satisfactory to the Issuer, to be nominated and elected
to the Issuer's Board for the remainder of such five-year
period. A copy of the Letter Agreement is attached as
Exhibit B hereto and is incorporated herein by reference.
The summary of the Letter Agreement set forth herein is
qualified in its entirety by reference to the Letter
Agreement.
Except as described above, the Reporting Person
has no present plans or proposals which relate to or
would result in (a) the acquisition by any person of
additional securities of the Issuer or the disposition of
additional securities of the Issuer, (b) an extraordinary
corporate transaction, such as a merger, reorganization
or liquidation, involving the Issuer or any of its
subsidiaries, (c) the sale or transfer of a material
amount of assets of the Issuer or any of its
subsidiaries, (d) a change in the present board of
directors or management of the Issuer, (e) a material
change in the present capitalization or dividend policy
of the Issuer, (f) a material change in the Issuer's
business or corporate structure, (g) a change in the
Issuer's By-Laws or Certificate of Incorporation or other
actions which may impede the acquisition of control of
the Issuer by any person, (h) the delisting from a
national securities exchange of any class of securities
of the Issuer, (i) a class of equity securities becoming
eligible for termination of registration pursuant to
Section 12(g)(4) of the Securities Exchange Act of 1934
(the "Exchange Act"), or (j) any action similar to any of
those enumerated in clauses (a) through (i) above.
A copy of the Standstill Agreement is attached
as an exhibit to the Purchase Agreement which is attached
hereto and is incorporated herein by reference. The
summary of the Standstill Agreement set forth herein is
qualified in its entirety by reference to the Standstill
Agreement.
Item 5. Interest in Securities of the Issuer.
(a) As a result of its right to acquire the
Shares and the Warrants pursuant to the Purchase
Agreement, the Reporting Person may be deemed to own
beneficially 10,000,000 shares of Common Stock,
representing approximately 19.2% of the 42,036,138 shares
of Common Stock outstanding as of April 30, 1990 plus the
10,000,000 shares of Common Stock that would be
outstanding if all such Shares and the Common Stock
deliverable upon the exercise of such Warrants were
issued and outstanding. Upon allocation of the cash, the
Shares and the Warrants comprising the purchase price for
the Business among the Reporting Person and its Selling
Subsidiaries as of the Closing, such Selling Subsidiaries
which receive Common Stock or Warrants will be added to
this Statement as reporting persons.
(b) Except to the extent restricted by the
Standstill Agreement, as described in Items 4 and 6
hereof (the text of which is incorporated in this Item
5(b) by this reference), and except to the extent that
additional reporting persons are added to this Statement,
as contemplated by Item 5(a) above, the Reporting Person
would have the sole power to dispose or direct the
disposition of, and to vote or direct the vote of, all
shares of Common Stock beneficially owned by it.
(c) None.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understanding or
Relationships with Respect to Securities of the
Issuer.
Pursuant to the Purchase Agreement, upon the
terms and subject to the satisfaction or waiver of the
conditions set forth therein, the Reporting Person and
the Selling Subsidiaries have agreed to sell to the
Issuer and/or the Buying Subsidiaries the stock of the
Transferred Subsidiaries, in consideration for US$350
million in cash, 5,000,000 Shares of Common Stock, and
Warrants, exercisable during the five years following the
Closing, to purchase an aggregate of 5,000,000 additional
shares of Common Stock at an initial exercise price of
US$70 per share. In addition, if the Closing has not
occurred by August 1, 1990, the purchase price will be
increased by US$80,800 per day from August 1, 1990
through the earlier of the Closing and September 3, 1990.
A portion of the cash consideration delivered by the
Issuer and/or the Buying Subsidiaries at the Closing will
be allocated to the satisfaction of intercompany
obligations owing by the Transferred Subsidiaries to the
Reporting Person and certain of its subsidiaries not
being sold.
Consummation of the transactions contemplated
by the Purchase Agreement is subject to the satisfaction
or waiver of certain conditions specified therein,
including ratification by the Reporting Person's
stockholders of the sale of the Reporting Person's
business in accordance with the Purchase Agreement and
related agreements and their approval of any change in
the Reporting Person's activities arising as a result
thereof (the "Shareholder Approval"), the receipt of
required governmental consents and approvals and the
making of certain governmental filings, the receipt of
certain third party consents required under agreements to
which the Issuer, the Reporting Person or one of their
respective subsidiaries is a party, the accuracy of the
parties' representations, the performance of the parties'
covenants and the absence of pending litigation or
injunctions. Each of the Issuer and the Reporting Person
will have the right to terminate the Purchase Agreement
if the contemplated transactions are not consummated by
September 3, 1990, subject to the Reporting Person's
right to extend such date of termination to October 31,
1990.
The Reporting Person is obligated to use its
reasonable commercial efforts to hold a meeting of its
stockholders not later than July 2, 1990 in order to
obtain the Shareholder Approval. The Reporting Person
shall not be required to recommend the contemplated
transactions to its stockholders if the average closing
price of the Common Stock for the 10 consecutive trading
days prior to the shareholder meeting is less than
US$42.50 per share. If the Reporting Person does not
recommend the transactions contemplated by the Purchase
Agreement to its stockholders as a result of such event,
the Issuer shall have the right to terminate the Purchase
Agreement prior to such stockholder ratification. In
addition, the Reporting Person will have the right, prior
to such stockholder ratification, to engage in
negotiations with and provide information to any person
who has made or may make a proposal more favorable to the
Reporting Person, viewed as a whole, if the Reporting
Person's board of directors reasonably believes that the
failure to do so is likely to involve a breach of the
board's legal duties. The Reporting Person may terminate
the Purchase Agreement prior to such stockholder
ratification in the event that a third party makes a
proposal more favorable to the Reporting Person, viewed
as a whole, and the Issuer fails to make a new proposal
which the Reporting Person's Board, after consultation
with its legal and financial advisors, determines is
superior to such third party's offer.
Concurrently with the execution of the Purchase
Agreement, the Issuer and the Reporting Person entered
into the Letter Agreement. A summary of the terms of the
Letter Agreement is set forth in Item 4 above, which is
incorporated in this Item 6 by reference.
At the Closing, the Issuer and the Reporting
Person and those Selling Subsidiaries receiving Common
Stock or Warrants will enter into a Standstill Agreement,
pursuant to which the Reporting Person will agree that it
will not, and will cause its Affiliates not to, acquire
or otherwise possess, directly or indirectly, beneficial
ownership of Voting Stock or securities convertible into
or exercisable for, or other rights to acquire, Voting
Stock with voting power in excess of 19.99% of total
voting power of the Issuer's Voting Stock outstanding
determined on a fully diluted basis (excluding the
"Excluded Employee Option Shares", as defined in the
Standstill Agreement). In the event that shares of
outstanding Voting Stock beneficially owned by the
Reporting Person and its Affiliates represent in excess
of 19.99% of the total voting power of all outstanding
Voting Stock, the Reporting Person will be required to
vote such shares in the manner described in Item 4 above.
Pursuant to the Standstill Agreement (except as
otherwise expressly permitted therein), the Reporting
Person will agree not to and to cause each of its
Affiliates not to (without the Issuer's express prior
written consent), (i) propose to enter into any
restructuring, recapitalization, merger or business
combination involving, or a purchase of a material
portion of the assets of, the Issuer or any subsidiary of
the Issuer; (ii) solicit proxies with respect to any
Voting Stock or be a "participant" in a "solicitation" or
"election contest" (as such terms are used in Regulation
14A promulgated under Section 14 of the Exchange Act)
inconsistent with or in opposition to a recommendation of
the majority of the directors of the Issuer, or otherwise
seek to influence any person with respect to the voting
of any Voting Stock; (iii) have on deposit any Voting
Stock in a voting trust or subject the Voting Stock to
any arrangement or agreement with respect to such Voting
Stock; (iv) be a partner or member of a partnership,
syndicate or other group, or be a party to any agreement,
arrangement, understanding or relationship, implicit or
explicit, or otherwise act in concert with any other
person, for the purpose of acquiring, holding, voting or
disposing of Voting Stock or Warrants, or otherwise
becoming a "person" within the meaning of Section
13(d)(3) of the Exchange Act; (v) otherwise act, alone or
in concert with others, to seek to affect or influence
the management, Board, business, operations or affairs of
the Issuer or any of its subsidiaries; (vi) initiate or
propose, or induce or attempt to induce, advise, assist
or otherwise encourage, any other person to initiate or
propose, a tender offer for shares of any Voting Stock or
other securities of the Issuer, a shareholder proposal
with respect to the Issuer or any of its subsidiaries or
any of the foregoing actions; or (vii) disclose any
intention, plan or arrangement inconsistent with the
foregoing.
The Standstill Agreement will require that, for
so long as a majority of the members of the Issuer's
Board of Directors are Continuing Directors, the
Reporting Person cause all shares of Voting Stock
beneficially owned by it and its Affiliates to be voted
(except to the extent expressly prohibited by applicable
law) (i) for the persons nominated by the Issuer's
management to the Issuer's Board of Directors and (ii) in
accordance with the recommendation of the Issuer's
management with respect to any proposal by a shareholder
(other than one who is a director or member of
management) of the Issuer to amend the Certificate of
Incorporation or By-Laws of the Issuer. The Standstill
Agreement will also require that all Voting Stock
beneficially owned by the Reporting Person or any
Affiliate be present either by proxy or in person at the
shareholders' meetings of the Issuer such that all stock
beneficially owned by the Reporting Person and its
Affiliates entitled to vote thereat will be counted for
the purpose of determining the presence of a quorum.
The Standstill Agreement will provide that the
Reporting Person will not, and will cause each of its
Affiliates not to, dispose of any Voting Stock without
the prior written consent of the Issuer, except for (i)
dispositions to the Issuer or any person approved by the
Issuer, or in response to a tender or exchange offer by
or on behalf of the Issuer or one that is approved of or
not opposed by the Board of Directors of the Issuer; (ii)
dispositions to a corporation of which the Reporting
Person owns, directly or indirectly, not less than 50% of
the voting power entitled to be cast in the election of
directors of such corporation, subject to the
satisfaction of certain specified conditions; (iii)
subject to the Issuer's right of first refusal to
purchase shares and Warrants proposed to be sold
(described below), dispositions in response to any bona
fide tender or exchange offer by any person for Voting
Stock or Warrants (other than offers referred to in
clause (i) above); (iv) subject to the Issuer's right of
first refusal, dispositions pursuant to a public offering
of securities pursuant to the Registration Rights
Agreement (defined and described below), provided such
disposition is a broad distribution whereby, immediately
thereafter, to the knowledge of the Reporting Person and
its Affiliates after due inquiry, no person together with
its Affiliates will beneficially own Voting Stock with
voting power representing more than 7-1/2% of the total
voting power of the Voting Stock then outstanding; (v)
subject to the Issuer's right of first refusal,
dispositions pursuant to Rule 144 of the Securities Act
of 1933 or, if not required under Rule 144, brokerage
transactions in the open market within the volume
limitations contained in such Rule 144, provided that, to
the knowledge of the Reporting Person and its Affiliates
after due inquiry, immediately after such distribution no
person together with its Affiliates will beneficially own
Voting Stock with voting power representing more than 7-
1/2% of the total voting power of the Voting Stock then
outstanding; (vi) dispositions in connection with a
merger, consolidation, liquidation or dissolution of the
Reporting Person, provided that any successor or
distributee (other than AFP) who, together with its
Affiliates, owns, after the disposition, more than 4% of
the total voting power of the outstanding Voting Stock,
agrees to be bound by the provisions of the Standstill
Agreement (excluding the provision relating to the
election of the Reporting Person's nominee to the
Issuer's Board of Directors), and if AFP is a successor
or 4% distributee or if AFP controls such a successor or
4% distributee, AFP agrees to be bound by all provisions
of the Standstill Agreement (including the provisions
relating to such board nominee rights); (vii) a bona fide
pledge or granting of a security interest in any Voting
Stock or Warrants to an institutional lender for money
borrowed, provided the lender agrees to be bound by the
provisions of the Standstill Agreement (excluding the
provisions relating to such board nominee rights); and
(viii) subject to the Issuer's right of first refusal,
dispositions made to a person or such person's Affiliates
if, to the knowledge of the Reporting Person or its
Affiliates after due inquiry, such person and its
Affiliates would not after such disposition beneficially
own, nor have expressed publicly the intent to acquire or
possess, Voting Stock with voting power representing more
than 7-1/2% of the total voting power of the Voting Stock
then outstanding.
The rights of first refusal referred to above
will require that, in the event the Reporting Person or
any of its Affiliates desires to dispose of Voting Stock
or Warrants under certain of the circumstances described
above, the Reporting Person or such Affiliate provide the
Issuer (or its designee) with the right to purchase, at
the proposed sale price (or, in the case of a sale into a
tender or exchange offer, at the price proposed to be
paid in the tender or exchange offer on the date the
Issuer purchases such securities), the shares or Warrants
proposed to be so disposed of. The Reporting Person or
such Affiliate would be entitled to rescind any notice to
the Issuer regarding a proposed tender of shares under a
tender or exchange offer any time up to the day before
the day on which the closing of the Issuer's purchase,
pursuant to its rights of first refusal, of the tendered
shares is scheduled to take place (or, in the event the
Issuer announces that it has approved, proposed or
entered into an agreement with respect to a
recapitalization, reorganization or business combination
with respect to the Issuer and/or substantially all its
assets, any time prior to such purchase).
The obligations of the parties under the
Standstill Agreement, which will have a duration of ten
years, will be suspended during such times as the
Reporting Person and its Affiliates beneficially own or
have the right to acquire Voting Stock having voting
power representing, in the aggregate, less than 7-1/2% of
the total voting power of the then outstanding Voting
Stock. The Standstill Agreement will be reinstated if
during the 10-year term the Reporting Person and its
Affiliates again beneficially own or have the right to
acquire Voting Stock having voting power representing, in
the aggregate, 7-1/2% or more of the total voting power
of the then outstanding Voting Stock. The restrictions
on the Reporting Person's ability to make a proposal
relating to a restructuring, recapitalization, merger or
business combination involving, or a purchase of a
material portion of the assets of, the Issuer or any
subsidiary of the Issuer shall be suspended during the
30-day period following the date on which the Issuer
notifies the Reporting Person that a written or formal
proposal relating to a Management Buyout has been made to
the Issuer's Board of Directors, and the Standstill
Agreement shall terminate upon the mailing of proxy
material to shareholders relating to a proposed
Management Buyout or the making of a tender or exchange
offer with respect to a proposed Management Buyout.
"Management Buyout" is defined in the Standstill
Agreement to mean the acquisition of all or substantially
all of the outstanding capital stock or assets of the
Issuer by a Person (the "Acquiror") such that members of
senior management of the Issuer who participate in such
Management Buyout and who are members of senior
management of the surviving entity or the Acquiror would,
immediately after giving effect to the transaction,
beneficially own capital stock (including rights to
acquire capital stock) of the surviving entity or the
Acquiror representing that percentage of the Acquiror's
or the surviving entity's capital stock (determined on a
fully diluted basis) equal to at least the sum of 10% and
that percentage of the Issuer's capital stock (determined
on a fully diluted basis) that such senior management
owned or had the right to acquire immediately prior to
such transaction.
Pursuant to the Purchase Agreement, at the
Closing the Issuer and the Reporting Person and the
Selling Subsidiaries which receive Common Stock or
Warrants will also enter into a Registration Rights
Agreement in the form of the Registration Rights
Agreement appended to the Purchase Agreement as Exhibit A
thereto (the "Registration Rights Agreement"), which will
obligate the Issuer to register with the U.S. Securities
and Exchange Commission (the "SEC") the Shares, the
Warrants and the Common Stock issuable upon exercise of
the Warrants (and, under certain circumstances,
securities issuable to the holders thereof as a result of
any stock dividend, stock split, recapitalization, merger
or other pro rata distribution or similar events or as a
result of the anti-dilution provisions of the Warrant
Agreement (defined and described below)) (collectively,
the "Registrable Securities"). Registration rights will
apply until all but a certain minimum amount of the
Registrable Securities initially included in the "shelf"
registration described below are registered with the SEC
and sold to the public, or are sold or distributed to the
public pursuant to an exemption from such registration.
Persons to whom the Reporting Person or the Selling
Subsidiaries transfer or sell at least a certain minimum
amount of Registrable Securities in compliance with the
Standstill Agreement will also be entitled to the
benefits of the Registration Rights Agreement.
Under the Registration Rights Agreement, the
Issuer will be required to file with the SEC, within 90
days after the Closing, a "shelf" registration statement
covering the Registrable Securities, and use its
reasonable best efforts to keep such registration
statement continuously effective (and to file additional
"shelf" registration statements, if necessary) until the
earlier of the date when all but a certain minimum amount
of Registrable Securities included in the initial "shelf"
registration have been sold or distributed to the public
and the date when the Issuer is no longer eligible to use
SEC Form S-3. If the Issuer is no longer obligated to
file "shelf" registration statements (other than by
reason of all but the minimum amount of "shelf"
registered securities having been sold), the holders of a
certain minimum amount of Registrable Securities will be
entitled to request that the Issuer file a registration
statement with the SEC covering such securities proposed
to be sold. Holders of Registrable Securities will not
be entitled to effect more than two such "demand"
registrations in any twelve-month period. The Issuer's
obligation to honor such requests for registration will
terminate when all but a certain minimum amount of
Registrable Securities included in the initial "shelf"
registration have been sold or distributed to the public.
The Registration Rights Agreement will also
include limitations on the ability of holders of
Registrable Securities to effect public sales of such
securities (i) during certain periods when the Board of
Directors of the Issuer determines, in its reasonable
good faith business judgment, that such sales would
interfere in a material respect with a material
transaction or corporate development, (ii) when the
managing underwriter of an underwritten primary or
secondary offering of securities of the Issuer requests
that such sales not be made (provided that, in the case
of such a request by a managing underwriter, the holders
of Registrable Securities would have the right (subject
to certain cut-back provisions) to include their
Registrable Securities in the registration statement
covering such underwritten offering, except if the
underwritten offering relates to a secondary offering of
securities of other persons covered by a "shelf"
registration statement) and (iii) during certain periods
when the Issuer intends to bid for or purchase shares of
Common Stock, if the Issuer's Board reasonably determines
(based upon the advice of counsel experienced in
securities law) that such limitation would be required
under Rule 10b-6 promulgated under the Exchange Act.
Holders of Registrable Securities may not (except in
certain limited circumstances relating to the Company's
purchase of shares pursuant to its rights of first
refusal under the Standstill Agreement) be held back
pursuant to such provisions for more than 100 consecutive
days (including, within such 100-day period, periods of
up to five business days between any such events) or more
than 150 days in any 12-month period.
The Issuer would also be required to refrain
from publicly selling its securities during certain
periods of time if requested to do so by the managing
underwriter administering any underwritten offering of
Registrable Securities.
A copy of the Registration Rights Agreement is
attached as an exhibit to the Purchase Agreement which is
attached hereto and is incorporated herein by reference.
The summary of the Registration Rights Agreement set
forth herein is qualified in its entirety by reference to
such agreement.
At the Closing, the Issuer will issue the
Warrants to the Reporting Person and certain Selling
Subsidiaries (to be determined as of the Closing),
pursuant to a Warrant Agreement to be entered into
between the Issuer and Mellon Bank, N.A., as warrant
agent ("Warrant Agreement"), which will cover the
Warrants issued under the Purchase Agreement. The
Warrants will entitle the holders thereof to purchase
5,000,000 shares of Common Stock at an initial exercise
price per share of US$70 in cash (the "Exercise Price"),
exercisable at any time and from time to time for a
period of five years from the Closing.
The Warrant Agreement provides holders of
Warrants with anti-dilution protection in the event the
Issuer issues or modifies the terms of certain equity
securities. The Exercise Price, and the number and kind
of shares issuable upon exercise of a Warrant, will be
adjusted for (i) stock dividends, stock splits,
reclassifications or other distributions of capital
stock, (ii) the issuance of Common Stock or securities
convertible into or exercisable or exchangeable for
Common Stock at less than 95% of the current market value
of the Common Stock at the time of issuance, (iii) the
modification of the terms of existing securities that are
convertible into or exercisable or exchangeable for
Common Stock if, after such modification, the issue price
for the Common Stock subject to such securities is less
than 95% of the Common Stock's then current market value,
and (iv) a dividend or distribution to all holders of
Common Stock of any other asset, property or security
(except as set forth below).
If the Issuer issues (without receipt of any
consideration) to all holders of Common Stock any rights,
options or warrants to purchase capital stock of the
Issuer, having a term shorter than the remaining term of
the Warrants, then such securities will also be
distributed to holders of Warrants.
In the event of a merger or consolidation in
which the Issuer is not the surviving corporation, or the
sale of all or substantially all the assets of the
Issuer, the Issuer must provide that holders of Warrants
will receive the same consideration as holders of Common
Stock as if the Warrants had been converted immediately
prior to the merger or consolidation.
A copy of the Warrant Agreement is attached as
an exhibit to the Purchase Agreement which is attached
hereto and is incorporated herein by reference. The
summary of the Warrant Agreement set forth herein is
qualified in its entirety by reference to the Warrant
Agreement.
Item 7. Material to be Filed as Exhibits.
The following documents are appended hereto as
Exhibits:
Exhibit A Purchase Agreement, dated May 28, 1990,
between the Issuer and the Reporting
Person and the Selling Subsidiaries
(including as Exhibits thereto the
Standstill Agreement, the Registration
Rights Agreement and the Warrant
Agreement)
Exhibit B Letter Agreement, dated May 28, 1990,
between the Issuer and the Reporting
Person
Exhibit C Press Release issued by the Reporting
Person on May 29, 1990
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.
Wormald International Limited
Dated: June 5, 1990 By: /s/ John L. Willson
Title: Director
EXHIBIT INDEX
Exhibit Page
A Purchase Agreement, N/A
dated May 28, 1990,
between the Issuer and
the Reporting Person and
the Selling Subsidiaries
(including as Exhibits
thereto the Standstill
Agreement, the
Registration Rights
Agreement and the
Warrant Agreement)
B Letter Agreement, dated N/A
May 28, 1990, between
the Issuer and the
Reporting Person
C Press Release issued by N/A
the Reporting Person on
May 29, 1990
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF WORMALD
The following table sets forth the name,
business address and present principal occupation or
employment of each of the directors and executive
officers of Wormald. Each individual listed below is a
citizen of Australia unless otherwise indicated.
Position; Present Principal
Name Occupation or Employment
Peter Damian Scanlon Joint Chairman, AFP Group
BUSINESS ADDRESS: PLC and Director and
C/- AFP Management Limited Chairman of Wormald
Level 30 International Limited.
367 Collins Street,
Melbourne, VIC 3000
Australia
P. J. Cave Managing Director of
BUSINESS ADDRESS: Minstar Corporation Limited
C/- Minstar Corporation (invests in and manages
Limited operating businesses in
14th Floor Australia), and Director of
213 Miller Street, Wormald International
North Sydney Limited.
Australia
Neil H. Gamble Managing Director Europe of
BUSINESS ADDRESS: Wormald International
C/- Wormald Europe SA Limited.
Rue de Stalle 63,
Brussels
Belgium
W. J. Gerahty Joint Chairman, AFP Group
BUSINESS ADDRESS: PLC, and Director of
C/- AFP Management Limited Wormald International
Level 31 Limited.
Qantas International
Centre,
Jamison Street,
Sydney N.S.W 2000
Australia
J.A. Iliffe Chairman and Managing
BUSINESS ADDRESS: Director of AWA Limited
C/- AWA Limited (electronics company), and
422 Lane Cove Road, Director of Wormald
North Ryde, N.S.W International Limited.
Australia
K. J. Kirby Chairman of James N. Kirby
BUSINESS ADDRESS: Group of Companies
C/- James N. Kirby Group (refrigeration and
of Companies electrical engineering
2nd Floor company), and Director of
Position; Present Principal
Name Occupation or Employment
86-90 Bag Street, Wormald International
Broadway, N.S.W Limited.
Australia
R. C. Mansfield Managing Director of
BUSINESS ADDRESS: Wormald International
C/- Wormald International Limited.
Limited
5th Floor
601 Pacific Highway,
St. Leonards, N.S.W 2065
Australia
R. G. Melgaard Director of AFP Group PLC,
BUSINESS ADDRESS: and Director of Wormald
C/- AFP Management Limited International Limited.
60 Chiltern Street,
London W1M 2AP
England
E. A. Parkes Chairman Lloyds Corporate
BUSINESS ADDRESS: Advisory Services Pty
C/- McDonald's System of Limited (corporate advisory
Australian Pty Limited services), and Director of
35 Pitt St, Wormald International
Sydney, N.S.W, Limited.
Australia
Position; Present Principal
Name Occupation or Employment
P. D. Ritchie Chief Executive of
BUSINESS ADDRESS: McDonald's System of
C/- McDonald's System of Australia Pty Limited (fast
Australia Pty Limited food restaurants), and
21-29 Central Avenue, Director of Wormald
Thornleigh, N.S.W. International Limited.
Australia
B. A. Sellers Managing Director, AFP
BUSINESS ADDRESS: Group PLC, and Director of
C/- AFP Management Limited Wormald International
66 Chiltern Street, Limited.
London, W1M 2AP
England
William Keith Baxter Secretary of Wormald
Shannon International Limited.
BUSINESS ADDRESS:
C/- Wormald International
Limited
5th Floor
601 Pacific Highway,
St. Leonards, N.S.W. 2065
Australia
John L. Willson Position; Present Principal
BUSINESS ADDRESS: Occupation or Employment
5th Floor
601 Pacific Highway,
St. Leonards, N.S.W, 2065
Australia
Executive Director of
Wormald International
Limited.
SCHEDULE II
DIRECTORS AND EXECUTIVE OFFICERS OF AFP GROUP PLC
The following table sets forth the name, business address
and present principal occupation or employment of each of
the directors and executive officers of AFP Group PLC.
Each individual listed below is a citizen of Australia
unless otherwise indicated.
POSITION, PRESENT PRINCIPAL
NAME OCCUPATION OR EMPLOYMENT
William John Gerahty, Joint Chairman, AFP Group
BUSINESS ADDRESS: Company PLC,
Director.
C/-AFP Management Limited,
Level 31,
Qantas International Centre,
Jamison Street,
Sydney N.S.W. 2000
Australia
Peter Damian Scanlon, Joint Chairman, AFP Group
BUSINESS ADDRESS: PLC, Company Director
C/-AFP Management Limited
Level 30, 367 Collins Street,
Melbourne VIC 3000
Australia
Basil Alfred Darrell Sellers, Joint Chairman, AFP Group
BUSINESS ADDRESS: PLC, Company
C/-AFP Management Limited, Director.Managing Director,
66 Chiltern Street, AFP Group
London W1M 2AP PLC, Company Director.
England
Robin Anthony Crawford, Director, AFP Group PLC,
BUSINESS ADDRESS Company Director
C/-AFP Management Limited,
Level 31,
Qantas International Centre,
Jamison Street,
Sydney N.S.W. 200
Australia
POSITION, PRESENT PRINCIPAL
NAME OCCUPATION OR EMPLOYMENT
David Fitzsimons, Director, AFP Group PLC, Company
BUSINESS ADDRESS: Director
C/-AFP Management Limited,
66 Chiltern Street,
London W1M 2AP
England
Ronald Gregory Melgaard, Director, AFP Group PLC, Company
BUSINESS ADDRESS: Director
C/-AFP Management Limited,
66 Chiltern Street,
London W1M 2AP
England
Richard Frederick Wiesener, Director, AFP Group PLC, Company
BUSINESS ADDRESS: Director
C/-Alliance Maritime,
"Le George V",
14 Avenue De Grande Bretagne,
Monaco MC9800
