AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 20, 1996
FILE NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TYCO INTERNATIONAL LTD.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
MASSACHUSETTS 04-2297459
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
</TABLE>
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ONE TYCO PARK
EXETER, NEW HAMPSHIRE 03833
(603) 778-9700
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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MARK H. SWARTZ
VICE PRESIDENT
TYCO INTERNATIONAL LTD.
ONE TYCO PARK
EXETER, NEW HAMPSHIRE 03833
(603) 778-9700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
HOWARD A. SOBEL, ESQ.
KRAMER, LEVIN, NAFTALIS,
NESSEN, KAMIN & FRANKEL
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. X
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / ___________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ___________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / / ___________________
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CALCULATION OF REGISTRATION FEE
[CAPTION]<TABLE>
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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Debt Securities................... $400,000,000 100% $400,000,000 $137,931
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</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
PROSPECTUS
$400,000,000
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TYCO INTERNATIONAL LTD.
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DEBT SECURITIES
-------------------
Tyco International Ltd. (the "Company" or "Tyco") may offer from time to
time, in one or more series, debt securities consisting of debentures, notes
and/or other unsecured evidences of indebtedness (the "Debt Securities") with
an aggregate initial public offering price of up to $400,000,000 on terms to be
determined at the time of sale. The specific terms of the Debt Securities,
including, where applicable, the designation, aggregate principal amount,
denominations (which may be in United States dollars, in any other currency or
in composite currencies), purchase price, maturity, interest rate (which may be
fixed or variable) and time of payment of interest, if any, any terms for
mandatory or optional redemption, any terms for sinking fund payments, any
listing on a securities exchange and any other specific terms in connection
with the sale of the Debt Securities in respect of which this Prospectus is
being delivered are set forth in the accompanying Prospectus Supplement
(the "Prospectus Supplement").
The Company may sell Debt Securities offered hereby to or through
underwriters or dealers, and also may sell Debt Securities directly to other
purchasers or through agents. The Prospectus Supplement sets forth the names of
the underwriters, dealers and agents involved in the sale of the Debt Securities
offered hereby, the principal amounts, if any, to be purchased by the
underwriters or agents and the compensation, if any, of such underwriters or
agents and any applicable commissions or discounts. The net proceeds to the
Company from the sale of the Debt Securities offered hereby are also set out in
the Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-------------------
The date of this Prospectus is February 20, 1996.
<PAGE>
No person has been authorized to give any information or to make any
representation not contained or incorporated by reference in this Prospectus or
the accompanying Prospectus Supplement and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Company or any underwriter, dealer or agent. Neither the delivery of this
Prospectus or the accompanying Prospectus Supplement nor any sale made hereunder
or thereunder shall, under any circumstances, create an implication that the
information contained herein or in the accompanying Prospectus Supplement is
correct as of any date subsequent to the date hereof or thereof or that there
has been no change in the affairs of the Company since the date hereof or
thereof. Neither this Prospectus nor the accompanying Prospectus Supplement
constitutes an offer to sell or a solicitation of an offer to buy Debt
Securities in any jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make such offer or
solicitation.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"), all of which may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549, and at the following Regional Offices of the Commission: Chicago
Regional Office, Suite 1400, Northwest Atrium Center, 500 West Madison Street,
Chicago, Illinois 60661; and New York Regional Office, Seven World Trade Center,
13th Floor, New York, New York 10048. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549. Such material can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, where the Company's Common Stock is listed.
This Prospectus constitutes part of a Registration Statement filed by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus and the accompanying Prospectus Supplement
omit certain of the information contained in the Registration Statement in
accordance with the rules and regulations of the Commission. Reference is hereby
made to the Registration Statement and related exhibits for further information
with respect to the Company and the Debt Securities. Statements contained herein
concerning the provisions of any document are not necessarily complete and, in
each instance, where a copy of such document has been filed as an exhibit to the
Registration Statement or otherwise has been filed with the Commission,
reference is made to the copy so filed. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference in
this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended June
30, 1995; and
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1995 and December 31, 1995.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Debt Securities shall be
deemed to be incorporated by reference into this Prospectus from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this
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<PAGE>
Prospectus to the extent that a statement contained herein or in any Prospectus
Supplement or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, including any beneficial owner of Debt Securities,
upon written or oral request of such person, a copy of any and all of the
documents that have been or may be incorporated by reference herein (other than
exhibits to such documents which are not specifically incorporated by reference
into such documents). Such requests should be directed to David P. Brownell,
Vice President, Tyco International Ltd., One Tyco Park, Exeter, New Hampshire
03833 (telephone: (603) 778-9700).
THE COMPANY
The Company is a major manufacturer and supplier of disposable medical
products, packaging materials, fire protection products and services, flow
control products and electrical and electronic components. The Company is
organized into four business segments: Disposable and Specialty Products
("DSP"), Fire Protection, Flow Control, and Electrical and Electronic Components
("E&EC"). The Company operates in over 50 countries around the world through
manufacturing, distribution and sales offices.
The principal division of the DSP segment is The Kendall Company
("Kendall"), which manufactures disposable medical products for hospitals and
other medical care facilities. Additionally, the DSP segment manufactures
polyethylene film products, casual furniture fabric, precision metal parts,
laminated and coated packaging material, transfer tapes, medical chart paper and
disposable medical electrodes. These products are manufactured by the Company's
Armin Plastics, Twitchell, Accurate Forming, Ludlow Laminating and Coating and
Ludlow Technical Products divisions, respectively.
Tyco's Fire Protection segment is the world's largest manufacturer,
installer, servicer and distributor of fire protection products and services.
The major products of this segment consist of fire sprinkler products and
systems, fire extinguishers and specially engineered suppression systems. The
Company operates its fire protection business around the world under a number of
well-recognized names, such as Grinnell, Wormald, Mather & Platt and Ansul.
The Flow Control segment is a major worldwide manufacturer and distributor
of flow control products for the process/industrial, power generation,
pharmaceutical, chemical, transportation, water/gas utility, plumbing, and
heating, ventilating and air-conditioning markets. The Company manufactures and
distributes its products under various tradenames such as Grinnell, Allied,
Mueller, Hindle, Winn and Neotecha.
The E&EC segment is a major manufacturer of undersea fiberoptic
telecommunication cable and is the only U.S.-owned supplier of this type of
cable. This product is manufactured under the Simplex Technologies tradename.
The E&EC segment also manufactures complex, high-density printed circuit boards
for the electronic industry and is the largest U.S. producer of steel electrical
conduits. These products are manufactured under the Tyco Printed Circuit Group
and Allied Tube and Conduit tradenames, respectively.
The Company's principal executive office is located at One Tyco Park,
Exeter, New Hampshire 03833. Its telephone number is (603) 778-9700.
3
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CURRENT DEVELOPMENTS
The Company reviews acquisition opportunities in the ordinary course of its
business, some of which may be material and some of which are currently under
investigation, discussion or negotiation.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities to
refinance, in part, existing indebtedness and for general corporate purposes.
Funds not required immediately for such purposes may be invested temporarily in
short-term marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the five years in the period ended June 30, 1995 and for the
six-month period ended December 31, 1995:
<TABLE><CAPTION>
SIX MONTHS FISCAL YEAR
ENDED ENDED JUNE 30,
DECEMBER 31, --------------------------------
1995 1995 1994 1993 1992 1991
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<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)(2)............... 6.46 5.42 4.98 2.68 2.78 3.26
</TABLE>
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(1) The merger of the Company with Kendall International, Inc. ("Kendall Inc.")
on October 19, 1994 (the "Merger") has been accounted for using the pooling
of interests basis of accounting. As such, the ratio of earnings to fixed
charges for the years ended June 30, 1995, 1994 and 1993 include the effect
of the Merger. Kendall Inc. undertook a financial restructuring as of June
30, 1992. Accordingly, the ratio of earnings to fixed charges for all
periods prior to and including June 30, 1992 represents Tyco's historical
ratio.
(2) Earnings consist of pre-tax earnings from continuing operations before fixed
charges. Fixed charges consist of interest on indebtedness, amortization of
debt expenses and one-third of rent expense which is deemed representative
of an interest factor.
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<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities offered hereby will be issued under an Indenture dated
as of April 30, 1992, as amended (hereinafter referred to as the "Indenture"),
between the Company and First Trust of New York, National Association, as
successor to BankAmerica National Trust Company pursuant to the Certificate of
Transfer and Assignment of New York Appointments pursuant to Section 604-a of
the New York Banking Law, as Trustee (hereinafter referred to as the "Trustee").
The following statements are subject to the detailed provisions of the
Indenture, a copy of which is filed as an exhibit to the Registration Statement
and which is also available for inspection at the office of the Trustee. Section
references are to the Indenture. Wherever particular provisions of the Indenture
are referred to, such provisions are incorporated by reference as part of the
statements made and the statements are qualified in their entirety by such
reference.
GENERAL
The Indenture does not limit the aggregate principal amount of debt
securities which may be issued thereunder and provides that the debt securities
may be issued from time to time in one or more series. Except as otherwise
specified, references to Debt Securities in this section include, in addition to
the Debt Securities offered hereby, any other debt securities that have been or
in the future may be issued under the Indenture. As of the date of this
Prospectus, $200,000,000 principal amount of the Company's 9 1/2% Debentures due
2022, $50,000,000 principal amount of the Company's 8% Debentures due 2023,
$105,000,000 principal amount of the Company's 6 3/8% Notes due 2004 and
$145,000,000 principal amount of the Company's 8 1/8% Notes due 1999 have been
issued and are outstanding under the Indenture.
The Debt Securities offered hereby will be direct, unsecured and
unsubordinated obligations of the Company and will rank equally with any other
unsecured and unsubordinated obligations of the Company for borrowed money.
Except as described under "Certain Covenants," the Indenture does not limit
other indebtedness or securities which may be incurred or issued by the Company
or any of its subsidiaries or contain financial or similar restrictions on the
Company or any of its subsidiaries. The Company's rights and the rights of its
creditors, including holders of Debt Securities, to participate in any
distribution of assets of any subsidiary upon the latter's liquidation or
reorganization or otherwise are effectively subordinated to the claims of the
subsidiary's creditors, except to the extent that the Company or any of its
creditors may itself be a creditor of that subsidiary.
The Prospectus Supplement which accompanies this Prospectus sets forth where
applicable the following terms of and information relating to the Debt
Securities offered thereby: (i) the designation of the Debt Securities; (ii) the
aggregate principal amount of the Debt Securities; (iii) the date or dates on
which principal of, and premium, if any, on the Debt Securities is payable; (iv)
the rate or rates at which the Debt Securities shall bear interest, if any, or
the method by which such rate shall be determined, the date or dates from which
interest will accrue and on which such interest will be payable and the related
record dates; (v) if other than the offices of the Trustee, the place where the
principal of and any premium or interest on the Debt Securities will be payable;
(vi) any redemption, repayment or sinking fund provisions; (vii) if other than
denominations of $1,000 or multiples thereof, the denominations in which the
Debt Securities will be issuable; (viii) if other than the principal amount
thereof, the portion of the principal amount due upon acceleration; (ix) whether
the Debt Securities shall be issued in the form of a global security or
securities; (x) any other specific terms of the Debt Securities (which may, for
example, include the currency, and any index used to determine the amount, of
payment of principal of and any premium and interest on the Debt Securities);
and (xi) if other than the Trustee, the identity of any trustees, paying agents,
transfer agents or registrars with respect to the Debt Securities. (Section
2.3).
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<PAGE>
The Debt Securities offered hereby will be issued either in certificated,
fully registered form, without coupons, or as global notes under a book-entry
system, as specified in the accompanying Prospectus Supplement.
Unless otherwise specified in the accompanying Prospectus Supplement,
principal and premium, if any, will be payable, and the Debt Securities offered
hereby will be transferable and exchangeable without any service charge, at the
office of the Trustee. However, the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
with any such transfer or exchange. (Section 2.8).
Interest on any series of Debt Securities offered hereby will be payable on
the interest payment dates set forth in the accompanying Prospectus Supplement
to the persons in whose names the Debt Securities are registered at the close of
business on the related record date and may be paid by checks mailed to such
persons. (Sections 2.7 and 3.1).
If the Debt Securities offered hereby are issued as original issue discount
securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at more than a de minimis discount
below their stated principal amount, the federal income tax consequences and
other special considerations applicable to such original issue discount
securities will be as described in the Prospectus Supplement.
Unless otherwise described in the accompanying Prospectus Supplement, there
are no covenants or provisions contained in the Indenture which afford the
holders of the Debt Securities offered hereby protection in the event of a
highly leveraged transaction, reorganization, restructuring, merger or similar
transaction involving the Company. The consummation of any highly leveraged
transaction, reorganization, restructuring, merger or similar transaction could
cause a material decline in the credit quality of the outstanding Debt
Securities.
BOOK-ENTRY SYSTEM
If so specified in the accompanying Prospectus Supplement, Debt Securities
of any series offered hereby may be issued under a book-entry system in the form
of one or more global securities ("Global Securities"). Each Global Security
will be deposited with, or on behalf of, a depositary, which, unless otherwise
specified in the accompanying Prospectus Supplement, will be The Depository
Trust Company, New York, New York (the "Depositary"). The Global Securities will
be registered in the name of the Depositary or its nominee.
The Depositary has advised the Company as follows: The Depositary is a
limited purpose trust company organized under the laws of the State of New York,
a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of section 17A of the Exchange Act. The
Depositary was created to hold securities of persons who have accounts with the
Depositary ("participants") and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of certificates. The Depositary's
participants include securities brokers and dealers, banks, trust companies and
clearing corporations, and may include certain other organizations. Indirect
access to the Depositary's book-entry system is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly.
Upon the issuance of a Global Security, the Depositary or its nominee will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of participants. The accounts to be credited will be designated by
6
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the underwriters or agents, if any, or by the Company, if such Debt Securities
are offered and sold directly by the Company. Ownership of beneficial interests
in the Global Security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests by
participants in the Global Security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in the Global Security by persons that hold through participants will
be shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to transfer beneficial interests in a Global
Security.
So long as the Depositary or its nominee is the registered owner of a Global
Security, it will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture. Except
as set forth below, owners of beneficial interests in such Global Security will
not be entitled to have the Debt Securities represented thereby registered in
their names, will not receive or be entitled to receive physical delivery of
certificates representing the Debt Securities and will not be considered the
owners or holders thereof under the Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities represented by a Global Security will be made to the Depositary or
its nominee, as the case may be, as the registered owner or the holder of the
Global Security. None of the Company, the Trustee, any paying agent or registrar
for such Debt Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in the Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal, premium, if any, or
interest on the payment date thereof in amounts proportionate to their
respective beneficial interests in the principal amount of the Global Security
as shown on the records of the Depositary. The Company expects that payments by
participants to owners of beneficial interests in the Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers registered in "street name," and will be the responsibility of such
participants.
A Global Security may not be transferred except as a whole to a nominee or
successor of the Depositary. If the Depositary is at any time unwilling or
unable to continue as depositary and a successor depositary is not appointed by
the Company within ninety days, the Company will issue certificates in
registered form in exchange for the Global Security or securities representing
the Debt Securities. In addition, the Company may at any time and in its sole
discretion determine not to have Debt Securities of a series represented by a
Global Security and, in such event, will issue certificates in definitive form
in exchange for the Global Security representing such Debt Securities. (Section
2.12).
CERTAIN COVENANTS
Limitations on Liens. The Company covenants that, so long as any Debt
Securities remain outstanding (but subject to defeasance, as provided in the
Indenture), it will not, and will not permit any Restricted Subsidiary (as
defined below) to, issue, assume or guarantee any Indebtedness (as defined
below) which is secured by a mortgage, pledge, security interest, lien or
encumbrance (each a "lien") upon any Principal Property (as defined below), or
any shares of stock or Indebtedness issued by any Restricted Subsidiary, without
effectively providing that, for so long as such lien shall continue in existence
with respect to such secured Indebtedness, the Debt Securities (together with,
if the Company shall so determine, any other Indebtedness of the Company ranking
equally with the Debt Securities) shall be equally and ratably secured with (or
at the Company's option prior to) such secured
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Indebtedness, except that the foregoing covenant shall not apply to (a) liens
existing on the date of the Indenture; (b) liens on the stock, assets or
Indebtedness of a corporation existing at the same time such corporation becomes
a Restricted Subsidiary; (c) liens on the assets or Indebtedness of a
corporation existing at the time such corporation is merged into the Company or
a Subsidiary; (d) liens on any Principal Property existing at the time of
acquisition thereof, or to secure the payment of the purchase price of such
Principal Property, or to secure Indebtedness incurred, assumed or guaranteed by
the Company or a Restricted Subsidiary for the purpose of financing all or any
part of the purchase price of such Principal Property or improvements or
construction thereon, which Indebtedness is incurred, assumed or guaranteed
prior to, at the time of, or within one year after such acquisition (or in the
case of real property, completion of such improvement or construction or
commencement of full operation of such property, whichever is later); (e) liens
securing Indebtedness owing by any Restricted Subsidiary to the Company or a
Subsidiary; (f) liens in favor of the United States or any State thereof or any
other country, or political subdivision thereof, to secure partial, progress,
advance or other payments pursuant to any contract, statute, rule or regulation
or to secure any Indebtedness incurred or guaranteed for the purpose of
financing all or any part of the purchase price (or, in the case of real
property, the cost of construction or improvement) of the Principal Property
subject to such liens (including but not limited to, liens incurred in
connection with pollution control, industrial revenue or similar financings);
(g) pledges, liens or deposits under worker's compensation or similar
legislation, or in connection with bids, tenders, contracts (other than for the
payment of money) or leases to which the Company or any Restricted Subsidiary is
a party, or to secure the public or statutory obligations of the Company or any
Restricted Subsidiary, or in connection with self-insurance, or to obtain the
benefits of any law pertaining to unemployment insurance, old age pensions,
social security or similar matters, or to secure surety, performance, appeal or
customs bonds to which the Company or any Restricted Subsidiary is a party, or
in litigation or other proceedings in connection with the matters heretofore
referred to in this clause(s), such as, but not limited to, interpleader
proceedings, and other similar pledges, liens or deposits made or incurred in
the ordinary course of business; (h) certain liens in connection with legal
proceedings, including certain liens arising out of judgments or awards, to the
extent such proceedings are being contested or appealed in good faith, or liens
incurred for the purpose of obtaining a stay or discharge in the course of any
litigation or other proceeding; (i) liens for certain taxes or assessments,
landlord's liens and liens and charges incidental to the conduct of the business
of the Company or any Restricted Subsidiary, or the ownership of their assets,
which were not incurred in connection with the borrowing of money and which do
not, in the opinion of the Board of Directors of the Company, materially impair
the use of such Principal Property in the operation of the business of the
Company or such Restricted Subsidiary or the value of such Principal Property
for the purposes thereof; (j) liens to secure the Company's or any Restricted
Subsidiary's obligations under agreements with respect to spot, forward, future
and option transactions, entered into in the ordinary course of business; (k)
liens not permitted by the foregoing clauses (a) to (j), inclusive, if at the
time of, and after giving effect to, the creation or assumption of such lien,
the aggregate amount of all outstanding Indebtedness of the Company and its
Restricted Subsidiaries (without duplication) secured by all liens not so
permitted by the foregoing clauses (a) through (j), inclusive, together with the
Attributable Debt (as defined below) in respect of Sale and Lease-Back
Transactions (as defined below) permitted by paragraph (a) under "Limitation on
Sale and Lease-Back Transactions" below does not exceed the greater of
$100,000,000 and 10% of Consolidated Net Worth (as defined below); and (l) any
extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part, of any lien referred to in the foregoing
clauses (a) to (k), inclusive. (Section 3.9).
Limitation on Sale and Lease-Back Transactions. The Company will not, and
will not permit any Restricted Subsidiary to, enter into any Sale and Lease-Back
Transaction with respect to a Principal Property unless (a) the Company or such
Restricted Subsidiary would, at the time of entering into a Sale and Lease-Back
Transaction, be entitled to incur Indebtedness secured by a lien on the
Principal Property to be leased in an amount at least equal to the Attributable
Debt in respect of such transaction, without equally and ratably securing the
Debt Securities pursuant to the provisions described under
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"Limitations on Liens" above, or (b) the direct or indirect proceeds of the sale
of the Principal Property to be leased are at least equal to their fair value
(as determined by the Company's Board of Directors) and an amount equal to the
net proceeds is applied, within 180 days of the effective date of such
transaction, to the purchase or acquisition (or, in the case of real property,
commencement of the construction) of property or assets or to the retirement
(other than at maturity or pursuant to a mandatory sinking fund or mandatory
redemption provision) of Debt Securities, or of Funded Indebtedness (as defined
below) of the Company that ranks on a parity with the Debt Securities or of
Funded Indebtedness of a consolidated Subsidiary of the Company (subject to
credits for certain voluntary retirement of Funded Indebtedness and certain
delivery of Debt Securities to the Trustee for retirement and cancellation).
(Section 3.10).
Definitions. "Attributable Debt" means in connection with a Sale and
Lease-Back Transaction, as of any particular time, the aggregate of present
values (discounted at a rate per annum equal to the average interest borne by
all outstanding Debt Securities determined on a weighted average basis and
compounded semi-annually) of the obligations of the Company or any Restricted
Subsidiary for net rental payments during the remaining term of the applicable
lease (including any period for which such lease has been extended or may, at
the option of the lessor, be extended). The term "net rental payments" under any
lease of any period shall mean the sum of the rental and other payments required
to be paid in such period by the lessee thereunder, not including, however, any
amounts required to be paid by such lessee (whether or not designated as rental
or additional rental) on account of maintenance and repairs, reconstruction,
insurance, taxes, assessments, water rates or similar charges required to be
paid by such lessee thereunder or any amounts required to be paid by such lessee
thereunder contingent upon the amount of sales, maintenance and repairs,
reconstruction, insurance, taxes, assessments, water rates or similar charges.
"Consolidated Net Worth" means, at any date, the total assets less the total
liabilities, each as appearing on the most recently prepared consolidated
balance sheet of the Company and its subsidiaries as of the end of a fiscal
quarter of the Company, prepared in accordance with generally accepted
accounting principles.
"Consolidated Tangible Assets" means, at any date, the total assets less all
intangible assets appearing on the most recently prepared consolidated balance
sheet of the Company and its subsidiaries as of the end of a fiscal quarter of
the Company, prepared in accordance with generally accepted accounting
principles. "Intangible Assets" means the value (net of any applicable
reserves), as shown on or reflected in such balance sheet of: (i) all trade
names, trademarks, licenses, patents, copyrights and goodwill; (ii)
organizational costs; and (iii) deferred charges (other than prepaid items such
as insurance, taxes, interest, commissions, rents and similar items and tangible
assets being amortized); but in no event shall the term "intangible assets"
include product development costs.
"Funded Indebtedness" means any Indebtedness maturing by its terms more than
one year from the date of the determination thereof, including any Indebtedness
renewable or extendible at the option of the obligor to a date later than one
year from the date of the determination thereof.
"Indebtedness" means, without duplication, the principal or face amount of
(i) all obligations for borrowed money, (ii) all obligations evidenced by
debentures, notes or other similar instruments, (iii) all obligations in respect
of letters of credit or bankers acceptances or similar instruments (or
reimbursement obligations with respect thereto), (iv) all obligations to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (v) all obligations as lessee which
are capitalized in accordance with generally accepted accounting principles, and
(vi) all Indebtedness of others guaranteed by the Company or any of its
Subsidiaries or for which the Company or any of its Subsidiaries is legally
responsible or liable (whether by agreement to purchase indebtedness of, or to
supply funds or to invest in, others).
9
<PAGE>
"Principal Property" means (i) certain manufacturing, processing or assembly
plants and facilities, warehouse facilities and distribution facilities
specified in the Indenture and (ii) any manufacturing, processing or assembly
plant or facility or any warehouse or distribution facility which is located
within the United States and is used by the Company or any Subsidiary after the
date hereof, other than any such plants, facilities, warehouses or portions
thereof, which in the opinion of the Board of Directors, are not collectively of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries as an entirety, or which, in each case, has a book
value, on the date of the acquisition or completion of the initial construction
thereof by the Company, of less than 1.5% of Consolidated Tangible Assets.
"Restricted Subsidiary" means any Subsidiary organized under the laws of the
United States or any State thereof or the District of Columbia (i) substantially
all of the property of which is located, or substantially all of the business of
which is carried on, within the United States and (ii) which owns or leases a
Principal Property.
"Sale and Lease-Back Transaction" means an arrangement with any person
providing for the leasing by the Company or a Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Company or a Restricted Subsidiary to such person; provided,
however, that the foregoing shall not apply to any such arrangement involving a
lease for a term, including renewal rights, for not more than three years.
"Subsidiary" means any corporation of which at least a majority of the
outstanding securities having voting power under ordinary circumstances for the
election of the board of directors of said corporation shall at the time
directly or indirectly be owned or controlled by the Company or by one or more
Subsidiaries or by the Company and one or more Subsidiaries or by one or more
Subsidiaries. (Section 1.1).
MERGER, CONSOLIDATION, SALE, LEASE OR CONVEYANCE
The Indenture provides that the Company will not merge or consolidate with
any other corporation and will not sell, lease or convey all or substantially
all of its assets to any person, unless the Company
shall be the continuing corporation, or the successor corporation or person that
acquires all or substantially all of the assets of the Company shall be a
corporation organized under the laws of the United States or a State thereof or
the District of Columbia and shall expressly assume the payment of principal of,
premium, if any, and interest on the Debt Securities and the observance of all
the covenants and agreements under the Indenture to be performed or observed by
the Company, and immediately after such merger, consolidation, sale, lease or
conveyance, the Company, such person or such successor corporation shall not be
in default in the performance of the covenants and agreements of the Indenture
to be performed or observed by the Company. Notwithstanding the foregoing, the
Company may engage in a transaction or series of related transactions for the
purpose of causing (w) the Company to become a direct or indirect wholly-owned
subsidiary of a corporation (the "Foreign Parent") organized under a
jurisdiction other than the United States or any State thereof or the District
of Columbia, (x) the public shareholders of the Company to become shareholders
of the Foreign Parent, (y) one or more Subsidiaries of the Company organized
under a jurisdiction other than the United States or any State thereof or the
District of Columbia (the "Foreign Subsidiaries") to cease to be Subsidiaries of
the Company and to become subsidiaries of the Foreign Parent, and (z)
intercompany debt of the Foreign Subsidiaries held by one or more Subsidiaries
of the Company to be held by the Foreign Parent or one or more of its
subsidiaries; provided, however, that (i) the Company shall remain incorporated
under the laws of the United States or a State thereof or the District of
Columbia, (ii) the Company shall remain the obligor on the Debt Securities,
(iii) the Consolidated Net Worth of the Company immediately after giving effect
to and solely as a result of the transaction or transactions referred to in this
sentence shall not be materially less than the Consolidated Net Worth of the
Company immediately prior to giving effect to such transaction or transactions,
and (iv) immediately following consummation of the
10
<PAGE>
transaction or transactions referred to in this sentence the Company shall not
be in default in the performance of the covenants and agreements of the
Indenture to be performed or observed by the Company. (Section 8.1).
EVENTS OF DEFAULT
An Event of Default with respect to Debt Securities of any series issued
under the Indenture is defined in the Indenture as being: default for 30 days in
payment of any interest upon any Debt Securities of such series; default in any
payment of principal of or premium, if any, on any Debt Securities of such
series (including any sinking fund payment); default by the Company in
performance of any other of the covenants or agreements in respect of the Debt
Securities of such series or the Indenture which shall not have been remedied
for a period of 90 days after written notice to the Company by the Trustee or
the holders of at least 25% of the principal amount of all Debt Securities of
all affected series, specifying that such notice is a "Notice of Default" under
the Indenture; default by the Company in the payment at the final maturity
thereof, after the expiration of any applicable grace period, of principal of,
premium, if any, or interest on indebtedness for money borrowed (other than
Non-Recourse Indebtedness, as defined) in the principal amount then outstanding
of $25,000,000 or more, or acceleration of any indebtedness in such principal
amount so that it becomes due and payable prior to the date on which it would
otherwise have become due and payable and such acceleration is not rescinded
within ten business days after notice to the Company by the Trustee or the
holders of at least 25% of the principal amount of all of the Debt Securities at
the time outstanding (treated as one class); certain events involving
bankruptcy, insolvency or reorganization of the Company; or any other Event of
Default established for the Debt Securities of such series set forth in the
accompanying Prospectus Supplement. (Section 4.1). The Indenture provides that
the Trustee shall transmit notice of any uncured default under the Indenture
with respect to any series, within 90 days after the occurrence of such default,
to the holders of Debt Securities of each affected series, except that the
Trustee may withhold notice to the holders of any series of the Debt Securities
of any default (except in payment of principal of, premium, if any, or interest
on, such series of Debt Securities) if the Trustee considers it in the interest
of the holders of such series of Debt Securities to do so. (Section 4.11).
The Indenture provides that (a) if an Event of Default due to the default in
payment of principal of, premium, if any, or interest on, any series of Debt
Securities issued under the Indenture or due to the default in the performance
or breach of any other covenant or agreement of the Company applicable to the
Debt Securities of such series but not applicable to all outstanding Debt
Securities issued under the Indenture shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
the Debt Securities of each affected series issued under the Indenture and then
outstanding (each such series voting as a separate class) may declare the
principal of all Debt Securities of such affected series and interest accrued
thereon to be due and payable immediately; and (b) if an Event of Default due to
a default in the performance of any other of the covenants or agreements in the
Indenture applicable to all outstanding Debt Securities issued thereunder and
then outstanding, or due to a default in payment at final maturity upon or
acceleration of indebtedness for money borrowed in the principal amount then
outstanding of $25,000,000 or more, or to certain events of bankruptcy,
insolvency and reorganization of the Company shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in principal
amount of all Debt Securities issued under the Indenture and then outstanding
(treated as one class) may declare the principal of all such Debt Securities and
interest accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be waived
(except a continuing default in payment of principal of, premium, if any, or
interest on such Debt Securities) by the holders of a majority in principal
amount of the Debt Securities of all such affected series then outstanding (each
such series voting as a separate class or all such Debt Securities voting as a
single class, as the case may be). (Sections 4.1 and 4.10).
11
<PAGE>
The holders of a majority in principal amount of the Debt Securities of each
series then outstanding and affected (with each series voting as a separate
class) shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee with respect to the Debt
Securities of such series under the Indenture, subject to certain limitations
specified in the Indenture, provided that the holders of such Debt Securities
shall have offered to the Trustee reasonable indemnity against expenses and
liabilities. (Sections 4.9 and 5.2(d)).
The Indenture provides that no holder of Debt Securities of any series may
institute any action against the Company under the Indenture (except actions for
payment of overdue principal, premium, if any, or interest) unless such holder
previously shall have given to the Trustee written notice of default and
continuance thereof and unless the holders of not less than 25% in principal
amount of the Debt Securities of each affected series (with each series voting
as a separate class) issued under the Indenture and then outstanding shall have
requested the Trustee to institute such action and shall have offered the
Trustee reasonable indemnity, and the Trustee shall not have instituted such
action within 60 days of such request, and the Trustee shall not have received
direction inconsistent with such written request by the holders of a majority in
principal amount of the Debt Securities of each affected series (with each
series voting as a separate class) issued under such Indenture and then
outstanding. (Sections 4.6 and 4.7).
The Indenture requires the annual filing by the Company with the Trustee of
a written statement as to compliance with the covenants and agreements contained
in the Indenture. (Section 3.5).
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company may discharge or defease its obligations under the Indenture as
set forth below.
Under terms satisfactory to the Trustee, the Company may discharge this
Indenture with respect to any series of Debt Securities issued under the
Indenture which have not already been delivered to the Trustee for cancellation
and which have either become due and payable or are by their terms due and
payable within one year (or which may be called for redemption within one year)
by irrevocably depositing with the Trustee cash or direct obligations of the
United States as trust funds in an amount certified to be sufficient to pay at
maturity (or upon redemption) the principal of, premium, if any, and interest on
such Debt Securities. However, the Company may not thereby avoid its duty to
register the transfer or exchange of such series of Debt Securities, to replace
any mutilated, destroyed, lost or stolen Debt Securities of such series or to
maintain an office or agency in respect of such series of Debt Securities.
(Section 9.1).
In the case of any series of Debt Securities in respect of which the exact
amounts of principal of and interest due on such series can be determined at the
time of making the deposit referred to below, the Company at its option at any
time may also (i) discharge any and all of its obligations to holders of such
series of Debt Securities issued under the Indenture ("defeasance"), but may not
thereby avoid its duty to register the transfer or exchange of such series of
Debt Securities, to replace any mutilated, destroyed, lost, or stolen Debt
Securities of such series or to maintain an office or agency in respect of such
series of Debt Securities or (ii) be released with respect to any outstanding
series of Debt Securities issued under the Indenture from the obligations
imposed by the covenants described under the captions "Covenants" and "Merger,
Consolidation, Sale, Lease, or Conveyance" above and omit to comply with such
covenants without creating an Event of Default ("covenant defeasance").
Defeasance or covenant defeasance may be effected only if, among other things:
(i) the Company irrevocably deposits with the Trustee cash and/or direct
obligations of the United States, as trust funds in an amount certified by a
nationally recognized firm of independent public accountants to be sufficient to
pay each installment of principal of, premium, if any, and interest on all
outstanding Debt Securities of such series issued under the Indenture on the
dates such installments of principal, premium, if any, and interest are due;
(ii) no default or Event of Default shall have occurred and be continuing on the
date of the deposit referred to
12
<PAGE>
in clause (i) or, in respect of certain events of bankruptcy, insolvency or
reorganization, during the period ending on the 121st day after the date of such
deposit (or any longer applicable preference period); and (iii) the Company
delivers to the Trustee an opinion of counsel to the effect that the holders of
such series of Debt Securities will not recognize income, gain or loss for
United States federal income tax purpose as a result of such defeasance or
covenant defeasance and will be subject to United States federal income tax on
the same amounts and in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred (in the case
of defeasance, such opinion must be based on a ruling of the Internal Revenue
Service or a change in United States federal income tax law occurring after the
date of the Indenture). (Sections 9.2, 9.3, 9.4 and 9.5).
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority of principal amount
of the Debt Securities at the time outstanding of all series affected (voting as
one class), to modify the Indenture or any supplemental indenture or the rights
of the holders of the Debt Securities, except that no such modification shall
(i) extend the final maturity of any of the Debt Securities or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or reduce
the amount of any original issue discount security payable upon acceleration or
provable in bankruptcy or impair or affect the right of any holder of the Debt
Securities to institute suit for the payment thereof without the consent of the
holder of each of the Debt Securities so affected or (ii) reduce the aforesaid
percentage in principal amount of Debt Securities, the consent of the holders of
which is required for any such modification, without the consent of the holders
of all Debt Securities then outstanding. (Section 7.2).
The Indenture contains provisions permitting the Company and the Trustee,
without the consent of any holders of Debt Securities, to enter into a
supplemental indenture, among other things, for purposes of curing any ambiguity
or correcting or supplementing any provision contained in the Indenture or in
any supplemental indenture or making other provisions in regard to the matters
or questions arising under the Indenture or any supplemental indenture as the
Board of Directors of the Company deems necessary or desirable and which does
not adversely affect the interests of the holders of Debt Securities in any
material respect. The Company and the Trustee, without the consent of any
holders of Debt Securities, may also enter into a supplemental indenture to
establish the form or terms of any series of Debt Securities as are not
otherwise inconsistent with any of the provisions of the Indenture. (Section
7.1).
CONCERNING THE TRUSTEE
The Trustee may hold Debt Securities, act as a depository for funds of, make
loans to, or perform other services for, the Company and its Subsidiaries as if
it were not the Trustee. (Section 5.4).
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<PAGE>
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters or dealers,
and also may sell Debt Securities directly to other purchasers or through
agents. Each Prospectus Supplement will describe the method of distribution of
the offered Debt Securities.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions, or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions, or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers, and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Debt Securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the Prospectus Supplement.
Underwriters and agents who participate in the distribution of Debt
Securities may be entitled under agreements which may be entered into by the
Company to indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase offered Debt Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the offered Debt Securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other agents will not have any responsibility in respect
of the validity or performance of such contracts.
EXPERTS
The Consolidated Financial Statements of the Company for the years ended
June 30, 1995 and 1994 and the combination of the financial statements of the
Company and Kendall Inc. for the year ended June 30, 1993 incorporated by
reference in this Prospectus have been so incorporated by reference in reliance
on the report of Coopers & Lybrand L.L.P., independent accountants, given on the
authority of that firm as experts in accounting and auditing.
The Consolidated Financial Statements of the Company for the year ended June
30, 1993 (prior to retroactive restatement to account for the pooling of
interests with Kendall on October 19, 1994) incorporated by reference in this
Prospectus have been so incorporated by reference in reliance on the report
(which includes an explanatory paragraph relating to the fact that the Company
changed its method of accounting for incomes taxes and for post-retirement
benefits other than pensions in fiscal 1993) of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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<PAGE>
LEGAL OPINIONS
The validity of the Debt Securities offered hereby will be passed upon for
the Company by M. Brian Moroze, Esq., General Counsel of the Company, and
Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, New York, New York. Joshua M.
Berman, a director and the Secretary of the Company, is counsel to the law firm
of Kramer, Levin, Naftalis, Nessen, Kamin & Frankel and owns 36,000 shares of
Common Stock of the Company. As of the date of this Prospectus, Mr. Moroze holds
20,945 shares of the Common Stock of the Company.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and distribution of
the Debt Securities covered by this Registration Statement are as follows:
<TABLE>
<S> <C>
SEC registration fee (actual)................................... $137,931
Printing and engraving expenses................................. 25,000
Legal fees and expenses......................................... 150,000
Accounting fees and expenses.................................... 30,000
Miscellaneous................................................... 27,069
--------
Total..................................................... $370,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Articles of Organization of the Company provide that the
Company shall indemnify certain persons, including directors and officers,
against liabilities, amounts paid in settlement and professional fees and other
disbursements incurred by each such person in connection with any action, suit
or proceeding, civil or criminal, brought or threatened in or before any court,
tribunal, administrative or legislative body or agency in which he is involved
as a result of his serving or having served in such position or, at the request
of the Company, in certain positions of any other corporation in which the
Company owns shares or of which it is a creditor. No indemnification shall be
provided to an individual with respect to a matter as to which it shall have
been adjudicated that he did not act in good faith in the reasonable belief that
his action was in the best interests of the Company. In the event that any
action, suit or proceeding is compromised or settled so as to impose any
liability or obligation upon a person eligible for indemnification by the
Company, no indemnification shall be provided to him with respect to such matter
if the Company has obtained an opinion of its counsel that with respect to said
matter he did not act in good faith in the reasonable belief that his action was
in the best interests of the Company. The Restated Articles of Organization of
the Company further provide that nothing in them shall limit any lawful rights
to indemnification existing independently of them.
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts provides that a corporation may indemnify any director or officer
(among others) except as to any matter as to which he is adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interests of the corporation or to the extent that such
matter relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan.
Section 67 further provides that a corporation has the power to purchase and
maintain insurance policies on behalf of any such officer or director against
liability incurred by him in such capacity or arising out of his status as such,
whether or not the corporation has the power to indemnify such officer or
director against such liability.
The Company maintains $35,000,000 of insurance to reimburse its directors
and officers for charges and expenses incurred by them for wrongful acts claimed
against them by reason of their being or having been directors or officers of
the Company or any subsidiary thereof. Such insurance specifically excludes
reimbursement of any director or officer for any charge or expense incurred in
connection with various designated matters, including libel or slander,
illegally obtained personal profits, profits recovered by the Company pursuant
to Section 16(b) of the Exchange Act and deliberate dishonesty.
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<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<S> <C> <C>
4.1 -- Indenture, dated as of April 30, 1992 [incorporated by reference to Exhibit 4 to
Registrant's Registration Statement on Form S-3, File No. 33-46626]
4.2 -- First Supplemental Indenture, dated as of April 30, 1992 [incorporated by reference
to Exhibit 4(b) to Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1992]
4.3 -- Second Supplemental Indenture, dated as of March 8, 1993 [incorporated by reference
to Exhibit 4(c) to Registrant's Current Report on Form 8-K, dated March 12, 1993]
5 -- Opinion of M. Brian Moroze
12 -- Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Price Waterhouse LLP
24 -- Power of Attorney (contained in the signature page hereto)
25 -- Statement of Eligibility of Trustee on Form T-1
99.1 -- Form of Certificate of Transfer and Assignment of New York Appointments pursuant to
Section 604-a of the New York Banking Law
99.2 -- Form of Instrument of Transfer and Assignment between First Trust of New York,
National Association and BankAmerica National Trust Company
</TABLE>
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
II-2
<PAGE>
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Exeter, State of New Hampshire, on the 20th day of
February, 1996.
TYCO INTERNATIONAL LTD.
By: /s/ MARK H. SWARTZ
..................................
Mark H. Swartz
Vice President--Chief Financial
Officer
(Principal Financial
and Accounting Officer)
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes and
appoints L. DENNIS KOZLOWSKI AND MARK H. SWARTZ, and each of them, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement (including all pre-effective and
post-effective amendments), and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS ON FEBRUARY 20,
1996 IN THE CAPACITIES INDICATED BELOW.
<TABLE><CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ L. DENNIS KOZLOWSKI Chairman of the Board, President, Chief
............................................. Executive Officer and Director (Principal
L. Dennis Kozlowski Executive Officer)
/s/ JOSHUA M. BERMAN
............................................. Director
Joshua M. Berman
/s/ RICHARD S. BODMAN
............................................. Director
Richard S. Bodman
/s/ JOHN F. FORT
............................................. Director
John F. Fort
/s/ STEPHEN W. FOSS
............................................. Director
Stephen W. Foss
/s/ RICHARD A. GILLELAND
............................................. Director
Richard A. Gilleland
/s/ PHILIP M. HAMPTON
............................................. Director
Philip M. Hampton
/s/ MARK H. SWARTZ Vice President and Chief Financial Officer
............................................. (Principal Financial and Accounting
Mark H. Swartz Officer)
/s/ FRANK E. WALSH, JR.
............................................. Director
Frank E. Walsh, Jr.
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE><CAPTION>
EXHIBIT DESCRIPTION PAGE
- ------- ----------- ----
<S> <C> <C> <C>
4.1 -- Indenture, dated as of April 30, 1992 [incorporated by reference to
Exhibit 4 to Registrant's Registration Statement on Form S-3, File No.
33-46626]
4.2 -- First Supplemental Indenture, dated as of April 30, 1992 [incorporated by
reference to Exhibit 4(b) to Registrant's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1992]
4.3 -- Second Supplemental Indenture, dated as of March 8, 1993 [incorporated by
reference to Exhibit 4(c) to Registrant's Current Report on Form 8-K,
dated March 12, 1993]
5 -- Opinion of M. Brian Moroze
12 -- Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Price Waterhouse LLP
24 -- Power of Attorney (contained in the signature page hereto)
25 -- Statement of Eligibility of Trustee on Form T-1
99.1 -- Form of Certificate of Transfer and Assignment of New York Appointments
pursuant to Section 604-a of the New York Banking Law
99.2 -- Form of Instrument of Transfer and Assignment between First Trust of New
York, National Association and BankAmerica National Trust Company
</TABLE>
EXHIBIT 5
February 20, 1996
Tyco International Ltd.
One Tyco Park
Exeter, New Hampshire 03833
Gentlemen:
I am General Counsel of Tyco International Ltd., a Massachusetts
corporation (the "Company"). I have acted as counsel to the Company in
connection with its Registration Statement on Form S-3, (the "Registration
Statement"), filed with the Securities and Exchange Commission under the
Securities Act of 1933, for the purpose of registering $400,000,000
aggregate principal amount of direct, unsecured and unsubordinated debt
securities of the Company (the "Debt Securities").
I have made such inquiries and reviewed such documents and records as
I have deemed necessary to enable me to express an opinion on the matters
covered hereby, and I have also examined and relied upon representations,
statements or certificates of public officials and officers and
representatives of the Company.
Based on the foregoing, I am of the opinion that, when issued in
accordance with the terms and conditions of the Indenture, dated as of
April 30, 1992, as amended, between the Company and First Trust of New
York, National Association, as successor to BankAmerica National Trust
Company pursuant to the Certificate of Transfer and Assignment of New York
Appointments pursuant to Section 604-a of the New York Banking Law, as
Trustee, a form of which has been filed as an exhibit to the Registration
Statement, the Debt Securities will be legally issued and constitute
binding obligations of the Company.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to my name under the caption
"Legal Opinions" in the Prospectus which forms a part thereof.
Very truly yours,
/s/ M. Brian Moroze
M. Brian Moroze
General Counsel
<TABLE><CAPTION>
EXHIBIT 12
TYCO INTERNATIONAL LTD.
Computation of Ratio of Earnings to Fixed Charges
(In thousands)
Six Months
Ended
December Year Ended June 30,
-------------------------------------------------
31,
1995 1995 1994 1993 1992 1991
----------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Net income before extraordinary
item and cumulative effect of
accounting changes $136,435 $216,593 $189,191 $94,458 $95,266 $117,485
Income taxes 96,787 168,285 138,999 84,837 45,884 84,307
------------ ---------- --------- ----------- --------- ---------
233,222 384,878 328,190 179,295 141,150 201,792
------- -------- --------- ---------- --------- --------
Fixed charges:
Interest expense (1) 30,337 63,385 62,431 85,785 63,261 73,856
Rentals (2) 12,353 23,767 19,932 21,021 15,856 15,600
------------ ---------- --------- -------- ---------- ---------
42,690 87,152 82,363 106,806 79,117 89,456
--------- --------- --------- --------- --------- ---------
Earnings before income taxes and
fixed charges $275,912 $472,030 $410,553 $286,101 $220,267 $291,248
======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges 6.46 5.42 4.98 2.68 2.78 3.26
======== ========= ========= ========= ========= =========
</TABLE>
- ----------------------------------------
(1) Interest expense consists of interest on indebtedness and amortization
of debt expense.
(2) One-third of net rental expense is deemed representative of the
interest factor.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-3 of our report dated August 1, 1995 on our audit of the
consolidated financial statements of Tyco International Ltd. for the years
ended June 30, 1995 and 1994, the combination of the financial statements
of Tyco International Ltd. and Kendall International, Inc. for the year
ended June 30, 1993 and the consolidated statements of income and cash
flows of Kendall International, Inc. and subsidiaries for the year ended
June 30, 1993, prior to their restatement for pooling of interests, which
report is included in the Annual Report on Form 10-K of Tyco International
Ltd. for the year ended June 30, 1995. We also consent to the reference to
our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
February 14, 1996
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our reports
dated August 3, 1993 appearing on pages 20 and S-2 of the Annual Report on
Form 10-K of Tyco International Ltd. for the year ended June 30, 1995. We
also consent to the reference to us under the heading "Experts" in such
Prospectus.
Price Waterhouse LLP
Boston, Massachusetts
February 16, 1996
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
---------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)_____
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I.R.S. Employer Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
---------------------------
For information, contact:
Dennis Calabrese, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
(212) 361-2502
--------------------------
Tyco International Ltd.
(Exact name obligor as specified in its charter)
Massachusetts 04-2297459
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
One Tyco Park 03833
Exeter, New Hampshire (Zip Code)
(Address of principal executive offices)
---------------------------------------
Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
---- -------
Comptroller of the Currency Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with Obligor
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
Item 16. List of Exhibits
Exhibit 1 Articles of Association of First Trust of New York,
National Association, incorporated herein by
reference to Exhibit 1 of Form T-1, Registration
No. 33-83774.
Exhibit 2 Certificate of Authority to Commence Business for
First Trust of New York, National Association,
incorporated herein by reference to Exhibit 2 of
Form T-1, Registration No. 33-83774.
Exhibit 3 Authorization of the Trustee to exercise corporate
trust powers for First Trust of New York, National
Association, incorporated herein by reference to
Exhibit 3 of Form T-1, Registration No. 33-83774.
Exhibit 4 By-Laws of First Trust of New York, National
Association, Incorporated herein by reference to
Exhibit 4 of Form T-1, Registration No. 33-55851.
Exhibit 5 Not applicable.
Exhibit 6 Consent of First Trust of New York, National
Association, required by Section 321(b) of the Act,
incorporated herein by reference to Exhibit 6 of
Form T-1, Registration No. 33-83774.
Exhibit 7 Report of Condition of First Trust of New York,
National Association, as of the close of business on
December 31, 1995, published pursuant to law or the
requirements of its supervising or examining
authority.
-2-
<PAGE>
Exhibit 8 Not applicable.
Exhibit 9 Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, First Trust of New York, National
Association, a national banking association organized and existing under
the laws of the United States of America, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 20th
day of February, 1996.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By /s/ Geovanni Barris
--------------------------------
Geovanni Barris
Assistant Vice President
-3-
<PAGE>
Exhibit 7
---------
First Trust of New York, N.A.
Statement of Financial Condition
As of 12/31/95
($000's)
Assets 12/31/95
-----------------
Cash and Due From Depository Institutions $23,195
Federal Reserve Stock 3,150
Fixed Assets 694
Intangible Assets 85,060
Other Assets 8,658
-----------------
Total Assets $120,757
=================
Liabilities
Other Liabilities 2,162
-----------------
Total Liabilities 2,162
Equity
Common and Preferred Stock 1,000
Surplus 119,000
Undivided Profits (1,405)
-----------------
Total Liabilities and Equity Capital $120,757
=================
================================================================================
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
First Trust of New York, N.A.
By: /s/ Geovanni Barris
------------------------------------
Geovanni Barris
Assistant Vice President
Date: February 20, 1996
EXHIBIT 99.1
CERTIFICATE
OF
TRANSFER AND ASSIGNMENT
OF
NEW YORK APPOINTMENTS
THIS CERTIFICATE OF TRANSFER AND ASSIGNMENT OF NEW YORK APPOINTMENTS
PURSUANT TO SECTION 604-a OF THE NEW YORK BANKING LAW (this "CERTIFICATE")
is being executed as of December 15, 1995 by the undersigned on behalf of
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, a national association
("First Trust").
WITNESSETH
----------
WHEREAS, First Trust and BankAmerica National Trust Company, a
national association ("BANTCO"), each of which is a banking institution
located in New York, have entered into that certain Instrument of Transfer
and Assignment (the "Transfer and Assignment"), dated as of the date
hereof, which is attached as Attachment I and pursuant to which the New
------------
York Appointments (as defined in Attachment I) of BANTCO are being
------------
transferred to First Trust;
WHEREAS, First Trust and BANTCO understand and agree that the New
York Appointments constitute substantially all of BANTCO's assets within
the meaning Section 604-a of the New York Banking Law ("Section 604-a");
WHEREAS, BANTCO conducts its trust, agency and escrow services
pursuant to authority granted by appropriate bank regulatory authorities,
and holds the New York Appointments;
WHEREAS, First Trust wishes to succeed BANTCO with respect to the
New York Appointments in the manner authorized by Section 604-a and is
qualified to so succeed BANTCO under applicable New York and federal law
and regulations;
WHEREAS, BANTCO does not have any deposit liabilities, and,
accordingly, there are no such liabilities for First Trust to assume.
<PAGE>
NOW THEREFORE, the undersigned does certify as follows:
1. I, Dennis J. Calabrese, am President of First Trust.
2. First Trust has, in accordance with the provisions of
Section 604-a of the New York Banking Law and the Transfer
and Assignment, assumed all fiduciary relationships of BANTCO
identified in Exhibit A of Attachment I.
--------- ------------
[The remainder of this page is intentionally left blank]
-2-
<PAGE>
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By /s/ Dennis J. Calabrese
---------------------------------
[SEAL] Dennis J. Calabrese
President
I do hereby approve the attached Certificate of Transfer and
Assignment of New York Appointments made by and on behalf of First Trust of
New York, National Association and authorize the filing of such Certificate
with the New York State Banking Department as of December 15, 1995.
/s/
------------------------------------
Deputy Superintendent of Banks
NEW YORK STATE BANKING
DEPARTMENT
-3-
EXHIBIT 99.2
ATTACHMENT 1
------------
TRANSFER AND ASSIGNMENT
OF
NEW YORK APPOINTMENTS
THIS INSTRUMENT OF TRANSFER AND ASSIGNMENT OF NEW YORK APPOINTMENTS (this
"Transfer and Assignment") is entered into on December 15, 1995 by and
between BANKAMERICA NATIONAL TRUST COMPANY, a national association (the
"Transferor"), and FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, a
national association (the "Transferee").
RECITALS
WHEREAS, the Transferor and certain of its Affiliates and the
Transferee and certain of its Affiliates (as defined in Section 1.1 of the
Purchase and Assumption Agreement) have entered into that certain Purchase
and Assumption Agreement dated August 21, 1995 (as supplemented to date,
the "Purchase and Assumption Agreement") pursuant to which the New York
Appointments (as defined herein) and certain Purchased Assets (as defined
in Section 2.1 of the Purchase and Assumption Agreement) of the Transferor
are being transferred to the Transferee;
WHEREAS, the Transferor conducts its trust, agency and escrow services
pursuant to authority granted by appropriate state or federal bank
regulatory authorities, and holds those certain trust and agency
appointments and the open escrows listed on Exhibit A of this Transfer and
---------
Assignment (the "New York Appointments"); and
WHEREAS, the Transferee, wishes to succeed the Transferor with respect
to the New York Appointments in the manner authorized by Section 604-a of
the New York Banking Law (the "Act") and is qualified to so succeed the
Transferor under applicable New York and federal law and regulations.
WHEREAS, the parties intend that the Transferee will file a
Certificate (as defined in the Act) with respect to the New York
Appointments with the office of the Superintendent (the "Superintendent")
of the New York State Banking Department (the "Department"), which
Certificate, upon endorsement by the Superintendent and filing with the
Department, shall effect the transfer and assignment authorized by the Act
and contemplated in this Transfer and Assignment (the time of such filing
being referred to herein as the "Effective Time").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and in the Purchase and Assumption Agreement,
the parties hereby agree as follows:
<PAGE>
ARTICLE 1
DEFINITIONS AND CONSTRUCTION
----------------------------
Section 1.1 Certain Definitions. Capitalized terms used herein
--------------------
without definitions have the meanings assigned thereto in Section 1.1. of
the Purchase and Assumption Agreement.
Section 1.2 Construction. Section 1.2 of the Purchase and Assumption
------------
Agreement is incorporated herein by reference.
ARTICLE 2
ASSIGNMENT AND TRANSFER
-----------------------
Section 2.1 Purchased Assets; Excluded Assets.
---------------------------------
(a) At the Effective Time, the Transferor does hereby sell,
transfer, assign, convey and deliver as hereinafter provided, without
representation or warranty of any kind, express or implied (except to the
extent expressly provided for in this Transfer and Assignment and in the
Purchase and Assumption Agreement) to the Transferee, and the Transferee
shall purchase, accept, assume and acquire as hereinafter provided, without
representation or warranty of any kind, express or implied (except to the
extent expressly provided for in this Transfer and Assignment and in the
Purchase and Assumption Agreement) from the Transferor, all of the
following:
(i) The New York Appointments set forth on Exhibit A of this
---------
Transfer and Assignment and all ongoing rights, obligations and duties of
the Transferee under such Appointments.
(ii) All other Purchased Assets attributable or related to
such New York Appointments.
(b) Notwithstanding the foregoing, the Transferor does not
transfer to the Transferee any "Excluded Assets" as defined in Section
2.1(b) of the Purchase and Assumption Agreement.
Section 2.2 Assumption of Liabilities; Retained Liabilities. At the
-----------------------------------------------
Effective Time, the Transferee does hereby assume the Assumed Liabilities
of the Transferor existing as of the Effective Time and attributable or
related to the New York Appointments, but does not assume any Retained
Liabilities.
Section 2.3 Effect of Transfer and Assumption. As and to the extent
---------------------------------
herein set forth, and subject to the provisions of the Purchase and
Assumption Agreement, immediately prior to the Effective Time (a)
Transferee shall ipso facto and by operation of law and, without further
----------
transfer, substitution, act or deed, succeed to (i) all rights, duties,
obligations, agreements and
<PAGE>
relations in the capacities of trustee and/or agent with respect to the New
York Appointments existing at the Effective Time, subject to the rights of all
trustors and beneficiaries under such New York Appointments so transferred
thereafter to nominate another or succeeding trustee (or other fiduciary or
agent) for such New York Appointment to the extent provided by applicable law
and the Governing Agreements therefor, and (ii) all Purchased Assets and all
rights and claims which the Transferor may have thereunder, to the same extent
as though the Transferee had originally assumed, acquired or owned them, and
(b), (i) neither the rights of creditors nor any liability or obligation
for the payment of money nor any claim or cause of action against the
Transferor in its separate corporate capacity, existing as of the Effective
Time, shall in any manner be released or impaired by the transfer of the
New York Appointments hereunder and (ii) the rights, obligations and
relations of all creditors, depositors, trustors and beneficiaries of the
New York Appointments and of all other Persons with regard to the New York
Appointments, existing as of the Effective Time, shall remain unimpaired by
the transfer, and (c) Transferee shall be liable to perform all such
Appointments in the same manner as if the Transferee itself had assumed the
relation of trust or agency originally, and the Transferee shall succeed to
all rights, offsets and defenses of the Transferor in connection therewith
(except to the extent such rights, offsets or defenses relate to any of the
Excluded Assets or Retained Liabilities of the Transferor).
Section 2.4 Instrument of Transfer; Payment of Purchase Price;
--------------------------------------------------
Transfer of Custodial Assets.
- ----------------------------
(a) This Transfer and Assignment is an instrument of
transfer described in Section 3.4(a) of the Purchase and Assumption
Agreement, which Section is incorporated by reference.
(b) This Transferor acknowledges its receipt in full of the
Purchase Price payable by the Transferee with respect to the New York
Appointments and the related Purchased Assets.
(c) Immediately following the Effective Time, the Transferor
shall transfer to the Transferee possession and control of all Custodial
Assets (including, without limitation, Payment Pending Cash) of the kinds
and in the amounts required by the Governing Agreements related to the New
York Appointments. Until such time each of the Purchased Assets is so
transferred, the Transferor shall hold the same as custodian for the
benefit of the Transferee.
(d) Following the Effective Time, at the Request of the
Transferee, the Transferor shall deliver any further instruments of
transfer and take all reasonable action as may be necessary or appropriate
to vest in the Transferee, all right and title to and interest in the New
York Appointments and the related Purchased Assets.
<PAGE>
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR
------------------------------------------------
The Transferor hereby makes each representation and warranty to the
Transferee (except as otherwise disclosed in the Disclosure Schedule)
contained in Article 4 of the Purchase and Assumption Agreement as of the
date hereof and such representations and warranties are incorporated by
reference herein, mutatis mutandis.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE TRANSFEREE
------------------------------------------------
The Transferee hereby makes each representation and warranty to the
Transferor contained in Article 5 of the Purchase and Assumption Agreement
as of the date hereof and such representations and warranties are
incorporated by reference herein, mutatis mutandis.
ARTICLE 5
Article 9 of the Purchase and Assumption Agreement is incorporated
herein by reference, mutatis mutandis.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized corporate officers this 15th day of December, 1995.
BANKAMERICA NATIONAL FIRST TRUST OF NEW YORK
TRUST COMPANY NATIONAL ASSOCIATION
By/s/ John R. Lloyd By/s/ Matthew P. Wagner
------------------------ ------------------------
Name: John R. Lloyd Name: Matthew P. Wagner
Title: President and Chief Title: Chairman
Executive Officer
<PAGE>
Exhibit A
---------
New York Appointments
---------------------
<PAGE>
[Other open escrows]
77168502 TYCO INTL LTD 6 3/8% NT S
77168601 TYCO INTL LTD 8 1/8% NT D
77168604 TYCO LABS INTL 8% DEBS DU
77168605 TYCO LABS INTL 9.50% DEBS
77168603 TYCO LABS INTL M/T/N SER
77169600 TYCO LABS INTL SHELF REGI
