As filed with the Securities and Exchange Commission on March 7, 1997
File No. 333-___ ___
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Form S-3
Registration Statement
Under
The Securities Act of 1933
---------------
TYCO INTERNATIONAL LTD.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS
(State or other jurisdiction
of incorporation or organization)
04-2297459
(IRS Employer
Identification No.)
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)
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)
Copies to:
JOSHUA M. BERMAN, ESQ.
KRAMER, LEVIN, NAFTALIS & 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]
<PAGE>
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. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Aggregate
Title of Each Class of Amount to Offering Price Offering Registration
Securities to be Registered be Registered(1) Per Unit (1) Price (1) Fee
- --------------------------- ---------------- ---------------- ------------ -------
<S> <C> <C> <C> <C>
Common Stock, $.50 par value 130,600 $59.625 $7,787,025 $ 2,359.70
A Warrants (2) 21,910 15.46 338,729 -- (3)
B Warrants (2) 13,657 20.62 281,607 -- (3)
</TABLE>
- ----------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (g) under the Securities Act of 1933, as
amended. The offering price for the Common Stock is based upon the
average of the high and low prices for the Common Stock reported on
the consolidated reporting system of the New York Stock Exchange on
March 6, 1997. The offering price for the Warrants is based upon the
price at which the Warrants may be exercised.
(2) Each Warrant is exercisable for 2.5897 shares of Common Stock.
(3) Pursuant to Rule 457(g) under the Securities Act, as amended, no
separate fee is being paid with respect to the A Warrants and the B
Warrants, as to which the shares of Common Stock being offered
pursuant thereto are also being registered.
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.
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED MARCH 7, 1997
PROSPECTUS
130,600 Shares of Common Stock
21,910 A Warrants
13,657 B Warrants
TYCO INTERNATIONAL LTD.
This Prospectus relates to the offering of 130,600 shares (the
"Shares") of common stock, par value $.50 per share (the "Common Stock"), of
Tyco International Ltd. ("Tyco" or the "Company") and 92,108 Warrants to acquire
shares of Common Stock (the "Warrants" and, together with the Shares, the
"Securities") by certain securityholders of the Company (the "Selling
Securityholders"). The Shares constitute shares of Common Stock issued or
issuable upon exercise of A Warrants to acquire common stock (the "A Warrants")
and B Warrants to acquire common stock (the "B Warrants") originally issued by
Kendall International, Inc. ("Kendall") and assumed by the Company pursuant to
the terms of the merger of Kendall with a subsidiary of the Company on October
19, 1994. The Warrants include 21,910 A Warrants and 13,657 B Warrants.
The Securities may be offered from time to time by the Selling
Securityholders through ordinary brokerage transactions on the New York Stock
Exchange (shares of Common Stock only), in the over-the-counter market, in
privately negotiated transactions or otherwise, at market prices prevailing at
the time of sale or at negotiated prices. The Company will not receive any of
the proceeds from the sale of Securities by the Selling Securityholders,
although it may receive $5.97 per share in connection with the exercise of A
Warrants (or up to an aggregate of $338,737) and $7.96 per share in connection
with the exercise of B Warrants (or up to an aggregate of $281,529). The Company
will pay the expenses of the offering of the Securities, estimated at $30,000,
and may also be required to make payments to Selling Securityholders in certain
circumstances. See "Selling Securityholders" and "Plan of Distribution." Sales
of Securities pursuant to this Prospectus may only be made to and including
______, 1997.
The resale of the Shares by the Selling Securityholders are subject to
prospectus delivery and other requirements of the Securities Act of 1933, as
amended ("Securities Act"). The Selling Securityholders and any agents or
broker-dealers that participate with the Selling Securityholders in the sale of
the Securities may be deemed "underwriters" under the Securities Act, and
commissions received by them and any profit on the resale of the Securities may
be deemed to be underwriting commissions or discounts under the Securities Act.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE NOR HAS THE COMMISSION OR ANY
STATE PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS [___________, 1997]
<PAGE>
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, Northwestern 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. The
Commission maintains a site on the World Wide Web, and the reports, proxy
statements and other information filed by the Company with the Commission may be
accessed electronically on the Web at http://www.sec.gov. 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 Common Stock is listed.
This Prospectus constitutes part of a Registration Statement on Form
S-3 filed by the Company with the Commission under the Securities Act of 1933,
as amended (the "Securities Act"). This Prospectus omits 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 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 of the applicable document 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:
The Company's Annual Report on Form 10-K for the fiscal year ended June
30, 1996.
The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996.
The Company's Current Report on Form 8-K dated October 29, 1996.
The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1996
The Company's Current Report on Form 8-K dated March 3, 1997
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 Securities made
hereby 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
-2-
<PAGE>
superseded for purposes of this Prospectus to the extent that a statement
contained herein 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 Securities,
upon the written or oral request of any 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 (unless such exhibits are specifically
incorporated by reference into such documents). Such requests should be directed
to David Brownell, Senior Vice President, Tyco International Ltd., One Tyco
Park, Exeter, New Hampshire 03833 (telephone: (603) 778-9700).
-3-
<PAGE>
PROSPECTUS SUMMARY
THE COMPANY
Tyco International Ltd. ("Tyco" or the "Company"), through its
divisions and operating subsidiaries, engages in the manufacture and
distribution of disposable medical supplies and other specialty products, the
design, manufacture, installation and service of fire detection and suppression
systems, and the manufacture and distribution of flow control products and
electrical and electronic components. The Company, which operates in more than
50 countries around the world, had sales of over $5 billion during its fiscal
year ended June 30, 1996.
The Company's strategy is to be the low-cost, high-quality producer in
every business segment in which it competes. The Company has strong leadership
positions in each of its segments of its respective markets. The Company seeks
to enhance its leadership positions in its domestic and international businesses
by investing in its existing businesses, developing new markets and acquiring
complementary products/companies that allow the Company to consolidate the
strengths from both the existing operations and the acquired businesses to
maximize its competitive advantages. The goal of this strategy is to create
value for the Company's shareholders by increasing the Company's earnings per
share.
The Company is a Massachusetts corporation. Its executive offices are
located at One Tyco Park, Exeter, New Hampshire 03833, and its telephone number
is (603) 778-9700.
CURRENT DEVELOPMENTS
On March 5, 1997, the Company consummated the public offering of
10,000,000 shares of Common Stock at a price to the public of $57.75. The
underwriters in the public offering have the option, exercisable through March
28, 1997, to purchase an additional 1,500,000 shares to cover over-allotments.
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.
-4-
<PAGE>
USE OF PROCEEDS
All of the Shares and Warrants offered hereby are being offered by
certain Selling Securityholders. See "Selling Securityholders." The Company will
not receive any of the proceeds from the sale of Shares or Warrants offered
hereby. The Company may receive aggregate proceeds of up to $338,729 (or $5.97
per share) from the exercise of A Warrants and aggregate proceeds of up to
$281,607 (or $7.96 per share) from the exercise of B Warrants that are either
offered pursuant to this Prospectus or whose Shares issuable upon exercise
thereof are so offered. The Company will use any proceeds of the exercise of A
Warrants and B Warrants for working capital and general corporate purposes. The
Company may also be required to make payments to Selling Securityholders in
certain circumstances. See "Selling Securityholders."
SELLING SECURITYHOLDERS
The Selling Securityholders were former holders of A Warrants or B
Warrants to acquire common stock of Kendall that received A Warrants or B
Warrants to acquire Common Stock in the merger of Kendall with a subsidiary of
the Company on October 19, 1994 (the "Kendall Merger"). Of the shares of Common
Stock being offered hereby, 38,488 shares were issued pursuant to previously
exercised A Warrants or B Warrants, 56,740 shares are issuable pursuant to the
exercise of A Warrants and 35,368 shares are issuable pursuant to the exercise
of B Warrants. An aggregate of 21,910 A Warrants and 13,657 B Warrants, each of
which is exercisable for 2.5897 shares of Common Stock, are also being
registered. The Selling Securityholders, as well as other persons, have certain
rights and obligations pursuant to the Registration Rights Agreement (as defined
below.) See "Description of Capital Stock -- Registration Rights Agreement."
On March 5, 1997, the Company consummated an underwritten public
offering of its Common Stock. The Company has agreed that it will reimburse a
Selling Securityholder for the excess if any, of the net offering price per
share received by the Company in the aforesaid underwritten public offering
($57.75) over the net price per share received by such Selling Securityholder
for shares of Common Stock sold in a bona fide market transaction pursuant to
this Prospectus.
The following table sets forth certain information with respect to the
Selling Securityholders and their beneficial ownership of Securities. None of
the Selling Securityholders has had any positions, offices or other material
relationships with the Company or any predecessor or affiliate thereof, other
than as a Securityholder thereof, during the past three years. Unless otherwise
indicated, each Selling Securityholder named has sole voting and dispositive
power with respect to its shares of Common Stock and Warrants.
All information with respect to beneficial ownership has been furnished
by the respective Selling Shareholders.
<TABLE>
<CAPTION>
SECURITIES TO BE
NAME OF SELLING SECURITIES BENEFICIALLY SECURITIES BENEFICIALLY OWNED
SHAREHOLDER OWNED PRIOR TO OFFERINGS BEING OFFERED PRIOR TO OFFERINGS
----------- ------------------------ ------------- ------------------
SECURITY NUMBER PERCENT SECURITY NUMBER SECURITY NUMBER PERCENT
-------- ------ ------- -------- ------ -------- ------ -------
<S> <C> <C>
</TABLE>
-5-
<PAGE>
DESCRIPTION OF CAPITAL STOCK
GENERAL
The description of the Company's capital stock contained in the
Prospectus does not purport to be complete and is qualified in its entirety to
the applicable provisions of the Company's Restated Articles of Organization and
By-Laws, copies of which are filed as exhibits to the Registration Statement.
The authorized capital stock of the Company consists of 2,000,000
shares of preferred stock, par value $1 per share ("Preferred Stock"), of which
no series was authorized or shares outstanding at March 5, 1997, and 500,000,000
shares of Common Stock, of which 166,742,330 shares were issued and outstanding
at March 5, 1997. In addition, up to 1,500,000 additional shares of Common Stock
are issuable pursuant to options granted by the Company to certain underwriters
in a public offering of Common Stock consummated on March 5, 1997. Such options,
which are exercisable for the purpose of covering over-allotments, expire on
March 28, 1997. Preferred Stock is divisible into and issuable in one or more
series. Different series may be established, and the variations in the relative
rights and preferences as between them may be fixed, by the Board of Directors
of the Company.
COMMON STOCK
The holders of Common Stock are entitled to receive dividends when and
as declared by the Company's Board of Directors but only out of funds legally
available for the payment thereof, subject to restrictions imposed by certain
indebtedness of the Company. No cash payment or distribution may be made to
holders of Common Stock until all accrued dividends on all series of Preferred
Stock, if any, have been declared and set apart for payment through the last
preceding dividend date set for all such securities.
Holders of Common Stock are entitled to one vote per share at any
annual or special meeting of shareholders. Holders of Preferred Stock, if any,
are entitled to the voting rights fixed by the Board of Directors of the Company
for their respective series. Voting rights are not cumulative, and therefore
holders of more than 50% of the voting power of the Company could, if they chose
to do so, elect all directors, in which case holders of the remaining voting
power would be unable to elect any director.
Upon the dissolution of the Company or upon any distribution of the
Company's assets, holders of Common Stock are entitled to all of the Company's
assets available for distribution to shareholders after the holders of all
series of Preferred Stock, if any, have received the preference fixed by the
Board of Directors for their respective series. Holders of Common Stock do not
have any preemptive rights to subscribe for additional issues of capital stock,
and they are not liable to further calls or to assessment by the Company.
The Company is not prohibited by its Restated Articles of Organization
from repurchasing shares of its Common Stock. Any such repurchases would be
subject to any limitations on the amount available for such purpose under
applicable corporate law, any applicable restrictions under the terms of any
outstanding Preferred Stock or indebtedness and, in the case of market
purchases, such restrictions on the timing, manner and amount of such purchases
as might apply in the circumstances under applicable securities laws.
The outstanding Common Stock is listed on the New York Stock Exchange
under the symbol "TYC". Any Common Stock offered will be listed, subject to
notice of issuance, on such exchange.
-6-
<PAGE>
ChaseMellon Shareholder Services, L.L.C. is the registrar and transfer
agent of the shares of Common Stock.
Article I, Section 6 of the Company's By-Laws provides that any person
(a "Related Person") who together with its Affiliates and Associates (each as
defined in the Company's By-Laws) owns 5% or more of the outstanding shares of
Voting Stock (defined in the Company's By-Laws to include all outstanding shares
of capital stock of the Company entitled to vote in the election of directors
upon the occurrence of a specified event or condition) of the Company, and any
Affiliate or Associate of such person (other than the Company and its
Subsidiaries (as defined in the Company's By-Laws)), must comply with certain
minimum price and procedural requirements or, in the alternative, obtain the
advance approval of a majority of the Company's Continuing Directors (as defined
in the Company's By-Laws) or holders of not less than 80% of the Company's
Voting Stock in order to effect a merger or other Business Combination involving
the Company. The various transactions in the definition of "Business
Combination" include: any merger or consolidation of the Company or a Subsidiary
with or into a Related Person; any sale, lease, exchange, transfer, or other
disposition, in one transaction or a series of transactions, (i) to a Related
Person or an Affiliate or Associate of a Related Person of any Substantial Part
(as defined in the Company's By-Laws) of the assets of the Company or a
Subsidiary or (ii) from a Related Person or an Affiliate or Associate of a
Related Person, in an amount that would constitute a Substantial Part of the
assets of the Company; any issuance or sale by the Company or a Subsidiary of
any of its securities to a Related Person or an Affiliate or Associate of a
Related Person other than pursuant to an employee plan approved by a majority of
the Continuing Directors and the shareholders of the Company; any acquisition by
the Company or a Subsidiary of any securities of a Related Person or Affiliate
or Associate of a Related Person; any adoption of any plan for the liquidation
or dissolution of the Company proposed by or on behalf of a Related Person or
any Affiliate or Associate of a Related Person; and any reclassification of
securities, recapitalization of the Company or any other transaction that has
the effect of increasing the proportion of the outstanding shares of any class
of the Company's or any Subsidiary's equity securities owned by a Related Person
or any Affiliate or Associate of a Related Person. The By-Laws of the Company
confer upon a majority of the Continuing Directors the authority to determine,
among other things, whether a person is a Related Person and whether any
proposed Business Combination complies with the minimum price and procedural
requirements. This section of the By-Laws cannot be repealed or amended, nor may
an inconsistent provision be adopted, without the affirmative vote of a majority
of the Continuing Directors or holders of not less than 80% of the outstanding
shares of the Voting Stock of the Company.
WARRANTS
The A Warrants and the B Warrants (all such Warrants being referred to
in this Section as the "Warrants") were issued pursuant to two Warrant
Agreements, each dated as of July 7, 1992 (the "Warrant Agreements"), between
Kendall and Norwest Bank Minnesota, N.A, as warrant agent (the "Warrant Agent").
Upon consummation of the Kendall Merger, the Warrants became exercisable for
shares of the Common Stock, the Company assumed the obligations of Kendall under
the Warrant Agreements, and ChaseMellon Shareholder Services L.L.C. (as
successor to Mellon Bank, N.A.), the registrar and transfer agent for the Common
Stock, became the successor Warrant Agent. The following summary of certain
provisions of the Warrants does not purport to be complete and is subject in all
respects to the provisions of the Warrant Agreements, copies of which are filed
as exhibits to the Registration Statement, to which reference is hereby made for
a complete statement of such provisions.
The Warrants were issued on July 7, 1992, in connection with the
restructuring of Kendall under Chapter 11 of the United States Bankruptcy Code
(the "Kendall Restructuring") to holders of equity securities of Kendall
outstanding prior to consummation of the Kendall Restructuring. Each A Warrant
-7-
<PAGE>
entitled the holder thereof to purchase one share of common stock of Kendall at
a price of $15.46 per share, and each B Warrant entitled the holder to purchase
one share of common stock of Kendall at a price of $20.62 per share. As a result
of the Kendall Merger (and a two-for-one split of the Common Stock in November
1995), each A Warrant entitles the holder thereof to purchase 2.5897 shares of
Common Stock at an exercise price of $5.97 per share, and each B Warrant
entitles the holder thereof to purchase 2.5897 shares of Common Stock at an
exercise price of $7.96 per share. The applicable exercise price and the number
of shares issuable upon exercise of the Warrants are subject to adjustment in
certain circumstances. Holders of the Warrants are not entitled to any rights as
shareholders of Tyco until such holders properly exercise the Warrants and
acquire shares of Common Stock.
The holders of Warrants exercisable for an aggregate of ______ shares
of Common Stock (including certain holders who exercised their Warrants
subsequent to the Kendall Merger) have elected to include their Warrants and/or
shares of Common Stock issuable upon exercise of Warrants in the Prospectus. The
holders of additional Warrants exercisable for an aggregate of up to
approximately ______ shares of Common Stock have elected not to include their
Warrants, or shares of Common Stock issuable upon exercise thereof, in this
Prospectus. Holders who have elected not to include their Warrants, or shares of
Common Stock issuable upon exercise thereof, in this Prospectus, and holders of
Warrants on Shares included in this Prospectus who do not sell such Warrants or
Shares pursuant hereto, will retain certain piggyback registration rights. See
"Selling Securityholders" and "Description of Capital Stock -Registration Rights
Agreement."
REGISTRATION RIGHTS AGREEMENT
Tyco has agreed generally to assume and perform the obligations of
Kendall under the Registration Rights Agreement, dated as of July 7, 1992, as
amended (the "Registration Rights Agreement"), among Kendall and certain former
institutional securityholders of Kendall (each, an "Institutional Investor") and
certain individual securityholders of Kendall (collectively, together with
certain other former securityholders of Kendall entitled to the benefits, and
bound by the terms of the Registration Rights Agreement, the "Holders"). The
following summary of certain terms of the Registration Rights Agreement does not
purport to be complete and is subject in all respects to the provisions of the
Registration Rights Agreement, a copy of which is filed as an exhibit to the
Registration Statement, to which reference is hereby made for a complete
statement of such provisions.
Demand Registration. The Registration Rights Agreement gives the right
to each Institutional Investor to demand that Tyco file a registration statement
under the Securities Act covering the Registrable Securities requested by such
Institutional Investor and to use its best efforts to cause such registration
statement to become effective. If the Company receives a demand for registration
as provided in the previous sentence, it is required to give notice of such
demand to all Holders and, subject to certain limitations, to use its best
efforts to include in the registration statement Registrable Securities which
any other Holder has requested, within 15 business days after the date of such
notice, to be included. Each Institutional Investor is entitled to make one
demand for registration. However, the Company is not required to file a
registration statement unless the Holders have requested registration of a
prescribed minimum number of shares of Common Stock. The Company is entitled to
postpone such a registration statement for a reasonable period not to exceed 180
days in certain circumstances. The Company does not believe that any of the
Institutional Investors retain the right to demand registration.
Registrable Securities include the Common Stock received in the Merger
in exchange for Kendall Common Stock that prior to the Merger was entitled to
registration rights under the Registration Rights Agreement; Warrants received
in the Merger in exchange for warrants to acquire Kendall Common Stock that
prior to the Merger were entitled to registration rights, and shares of Common
Stock issuable
-8-
<PAGE>
upon exercise of such Warrants; shares of Common Stock issuable upon exercise of
Reallocation Rights (as defined); and securities issuable with respect to such
Common Stock or Warrants by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation, reorganization or otherwise. Securities cease to be Registrable
Securities when disposed of pursuant to an effective registration statement or
sold or distributed to the public in reliance on an exemption from the
registration requirements of the Securities Act.
Piggyback Registration. The Registration Rights Agreement provides that
if Tyco proposes to register any of its equity securities, whether or not for
its own account (subject to certain exceptions), Tyco will give notice of such
registration to the Holders together with certain information concerning the
proposed offering. Upon the written request of any Holder delivered within 15
business days of the notice, Tyco will use its best efforts to effect the
registration under the Securities Act of all the Registrable Securities that the
Holder requests Tyco to register, provided that Tyco will be permitted not to
register or to delay the registration of such Registrable Securities if it
determines not to register or to delay the registration of the securities
otherwise intended to be registered.
If the registration involves an underwritten offering, all Holders
requesting inclusion in the underwritten offering must sell their Registrable
Securities to the underwriters on the same terms and conditions as apply to Tyco
or the other selling securityholders participating in such registration. If the
registration involves an underwritten offering and the managing underwriter
advises Tyco that, in its opinion, the number of securities proposed to be
registered must be limited due to market conditions, Tyco will include in such
registration first, the number of securities Tyco proposes to sell, and second,
the number of Registrable Securities of the Holders and securities of other
persons ("Other Persons") requested to be included in such registration that, in
the opinion of such managing underwriter, can be sold, allocated pro rata among
all such requesting Holders and Other Persons on the basis of the relative
number of securities as to which registration has been requested by each such
Holder and Other Person.
Tyco may not enter into any agreement that will grant any person
piggyback rights with respect to any demand registration of the Holders that
fails to give effect or diminishes the rights of holders with respect to
piggyback registration as provided in the Registration Rights Agreement or that
grants registration rights to any person and does not require such person
expressly to recognize the rights of the Holders under the holdback provisions
referred to below.
Holdback Agreements. The Registration Rights Agreement provides that,
if any registration of Common Stock constituting Registrable Securities is made
in connection with an underwritten offering, the Holders will not effect any
sale or distribution, including in a private placement or pursuant to Rule 144
under the Securities Act, of any Common Stock during the seven days prior to and
during the 90-day period following the effective date of such registration
statement or such shorter period as the managing underwriter of the relevant
underwritten offering agrees to.
If any registration of Registrable Securities is made in connection
with an underwritten offering, Tyco agrees, and will use reasonable efforts to
cause other persons holding 5% or more of the Common Stock (other than
institutional investment managers) to agree, not to effect any sale or
distribution of any of Tyco's equity securities or of any security convertible
into or exchangeable or exercisable for any equity security of Tyco during the
period beginning seven days prior to the effective date of such registration
statement and ending on the earlier of (1) 180 days after such effective date,
and (2) 90 days after such effective date, if the managing underwriter in such
underwritten offering permits such sale or distribution as not materially
adversely affecting the offering. The Registration Rights Agreement provides
that the Holders participating in any such offering will use their reasonable
efforts to obtain such permission from the managing underwriter.
-9-
<PAGE>
Certain Other Provisions. All expenses incident to Tyco's performance
of its registration obligations under the Registration Rights Agreement,
including filing fees and the reasonable fees and expenses of one counsel
retained by the Holders of a majority of the Registrable Securities being
registered, will be paid by Tyco. The foregoing does not include underwriting
commissions or discounts or transfer taxes, if any, attributable to the sale of
Registrable Securities by the Holders.
The Registration Rights Agreement contains customary indemnification
provisions whereby Tyco is obligated to indemnity and hold harmless the Holders
and certain related parties, and the Holders are obligated under certain
circumstances to indemnify and hold harmless Tyco and certain related parties,
in each case in connection with liabilities relating to the registration of the
Registrable Securities. The Registration Rights Agreement also provides for
certain rights of contribution in the event that such indemnity is unavailable.
On March 5, 1997, the Company consummated an underwritten public
offering of its Common Stock. The Company has filed the Registration Statement
to enable Holders of securities that, pursuant to the Registration Rights
Agreement, may have been includable in the underwritten public offering and that
are not freely tradeable to sell their Warrants or Shares in an offering
registered under the Securities Act.
PLAN OF DISTRIBUTION
The Securities may be offered and sold from time to time on the New
York Stock Exchange (shares of Common Stock only), in the over-the-counter
market, in privately negotiated transactions or otherwise, at prices and terms
then prevailing, at prices related to the then-current market price, or in
negotiated transactions, or at negotiated prices. The Securities offered hereby
may be sold by one or more of the following methods, without limitation: (a)
ordinary brokerage transactions and transactions in which the broker solicits
purchasers; (b) a block trade in which a broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (c) purchases by a broker or
dealer or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; and (d) face-to-face transactions between
sellers and purchasers without a broker-dealer. In effecting sales, brokers or
dealers engaged by the Selling Securityholders may arrange for other brokers or
dealers to participate. Such brokers or dealers may receive commissions or
discounts from Selling Securityholders in amounts to be negotiated. Such brokers
and dealers and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act, in connection with such
sales.
In order to comply with the securities laws of certain states, sales of
the Securities to the public in such states may be made only through
broker-dealers who are registered or licensed in such states. Sales of the
Securities must also be made by the Selling Securityholders in compliance with
other applicable state securities laws and regulations.
Sales of Securities pursuant to this Prospectus may only be made
through and including __________, 1997.
-10-
<PAGE>
VALIDITY OF SECURITIES
The validity of the Securities offered hereby will be passed upon for
the Company by M. Brian Moroze, Esq., General Counsel of the Company, Exeter,
New Hampshire. Mr. Moroze holds 20,800 shares of the Company's Common Stock.
Certain other legal matters will be passed upon for the Company by Kramer,
Levin, Naftalis & Frankel, 919 Third Avenue, New York, New York 10022. Joshua M.
Berman, a director and the Secretary of the Company, is counsel to the law firm
of Kramer, Levin, Naftalis & Frankel and owns 36,000 shares of the Company's
Common Stock.
EXPERTS
The Consolidated Financial Statements of the Company incorporated in
this Prospectus by reference to the Annual Report on Form 10-K of the Company as
of June 30, 1996 and 1995 and for the three years in the period ended June 30,
1996 have been incorporated herein 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.
-11-
<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 Securities covered by this Registration Statement are as follows:
SEC registration fee (actual)....................... $ 2,360
Printing and engraving expenses..................... 1,000
Legal fees and expenses............................. 15,000
Accounting fees and expenses........................ 10,000
Miscellaneous....................................... 1,640
---------
Total................................ $30,000
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.
II-1
<PAGE>
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.
ITEM 16. EXHIBITS
3.1 - Restated Articles of Organization, as amended (incorporated by reference
to Exhibit 3(a) to Registrant's Annual Report on Form 10-K for the fiscal
year ended May 31, 1987).
3.2 - Articles of Amendment dated November 9, 1993, effective November 10,
1993 (incorporated by reference to Exhibit 3 to Registrant's Current
Report on Form 8-K filed on November 12, 1993)
3.3 - By-laws (incorporated by reference to Exhibit 3(iii) to Registrant's
Annual Report on Form 10-K for the fiscal year ended June 30, 1996)
4 - Form of Common Stock certificate (incorporated by reference to Exhibit 7
to Registrant's Registration Statement on Form 8-A filed on December 10,
1973).
5 - Opinion of M. Brian Moroze
10.1 - Registration Rights Agreement, dated as of July 7, 1992 (the
"Registration Rights Agreement"), among Kendall International, Inc.
(formerly CDK Holding Corporation; "Kendall") and certain holders of
Kendall securities (incorporated by reference to Exhibit 4.42 to the
Registration Statement on Form 10 of Kendall, as amended (the "Kendall
Form 10")).
10.2 - Amendment No. 1 to the Registration Rights Agreement, dated July 11,
1994 (incorporated by reference to Exhibit 10(b) to the Company's
Registration Statement on Form S-3, File No. 33- 57509).
10.3 - Assignment and Assumption Agreement, dated October 19, 1994, among
Kendall, the securityholders named therein and the Registrant
(incorporated by reference to Exhibit 10(c) to the Company's Registration
Statement on Form S-3, File No. 33-57509).
10.4 - Warrant Agreement, dated as of July 7, 1992, between Holding and Norwest
Bank Minnesota, N.A., as warrant agent (the "Warrant Agent") (including
the form of A Warrant) (incorporated by reference to Exhibit 10.46.1 to
the Kendall Form 10).
10.5 - Warrant Agreement, dated as of July 7, 1992, between Kendall and the
Warrant Agent (including the form of B Warrant), (incorporated by
reference to Exhibit 10.46.3 to the Kendall Form 10).
23 - Consent of Coopers & Lybrand L.L.P.
II-2
<PAGE>
24 - Power of Attorney (contained in the signature page hereto)
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;
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.
II-3
<PAGE>
(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-4
<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 7th day of
March, 1997.
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 MARCH 7, 1997
IN THE CAPACITIES INDICATED BELOW.
Signature Title
--------- -----
/s/ L. Dennis Kozlowski Chairman of the Board, President, Chief
- ----------------------- Executive Officer and Director
L. Dennis Kozlowski (Principal 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/ Director
- ------------------
Stephen W. Foss
/s/ Richard A. Gilleland Director
- ------------------------
Richard A. Gilleland
II-5
<PAGE>
/s/ Philip M. Hampton Director
- ---------------------
Philip M. Hampton
/s/ Mark H. Swartz Vice President and Chief Financial
- ------------------ Officer (Principal Financial and
Mark H. Swartz Accounting Officer)
/s/
- ----------------------
Frank E. Walsh, Jr. Director
II-6
EXHIBIT 5
March 7, 1997
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 (i) 130,600 shares of
common stock, par value $0.50 per share ("Common Stock"), (ii) 21,910 A Warrants
to acquire 56,740 shares of Common Stock at an exercise price of $5.97 per
share, and (iii) 13,657 B Warrants to acquire 35,368 shares of Common Stock at
an exercise price of $7.92 per share (the A Warrants the B Warrants and the
Common Stock are collectively referred to as "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, and subject to the terms of the Securities
being otherwise in compliance with then applicable law and to any required
action of the Board of Directors of the Company being taken, it is my opinion
that, when issued as contemplated in the Registration Statement and any
amendments and Prospectus Supplements thereto, the Securities will be legally
issued, fully paid and non-assessable.
I am an attorney admitted to practice in the Commonwealth of
Massachusetts and the State of New York. I express no opinion with respect to
the laws of any jurisdiction other than the federal laws of the United States,
the laws of the Commonwealth of Massachusetts and the laws of the State of New
York.
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
"Validity of Securities" in the Prospectus which forms a part thereof.
Very truly yours,
/s/ M. Brian Moroze
-------------------
M. Brian Moroze
General Counsel
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-3 of our reports dated July 25, 1996 on our audits of the consolidated
financial statements and financial statement schedule of Tyco International Ltd.
as of June 30, 1996 and 1995 and for the three years in the period ended June
30, 1996. We also consent to the reference to our firm under the caption
"Experts."
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
March 6, 1997
