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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(AMENDMENT NO. 10)
Solicitation/Recommendation Statement
Pursuant to Section 14(d)(4)
of the Securities Exchange Act of 1934
ADT LIMITED
(Name of Subject Company)
ADT LIMITED
(Name of Person(s) Filing Statement)
Common Shares, par value $0.10 per share
(including the associated preference stock purchase rights)
(Title of Class of Securities)
000915 10 8
(CUSIP Number of Class of Securities)
Stephen J. Ruzika
c/o ADT, Inc.
1750 Clint Moore Road
Boca Raton, FL 33431-0835
(561) 988-3600
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications
on Behalf of the Person(s) Filing Statement)
With a copy to:
David W. Ferguson, Esq.
Davis Polk & Wardwell
450 Lexington Ave.
New York, New York 10017
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INTRODUCTION
The Solicitation/Recommendation Statement on Schedule 14D-9 (the
"Schedule 14D-9") originally filed on March 4, 1997, by ADT Limited, a
Bermuda corporation ("ADT" or the "Company"), relates to an offer by
Western Resources, Inc., a Kansas corporation ("Western"), to exchange a
combination of Western common stock, par value $5.00 per share, and cash
for any and all of the outstanding common shares, par value $0.10 per
share, including the associated preference stock purchase rights, of ADT
(the "Common Shares"). All capitalized terms used herein without
definition have the respective meanings set forth in the Schedule 14D-9.
Item 8. Additional Information to be Furnished.
The response to Item 8 is hereby amended by adding the following
after the final paragraph under "Demand for Western Stockholder List":
By letter dated April 28, 1997, Western responded to ADT Investment's
April 24, 1997 demand for a stockholder list as of the record date for
determining stockholders entitled to vote at the annual meeting of
Western's stockholders scheduled for May 29, 1997, stating among other
things that it viewed this latest demand as "harassment."
By letter dated April 30, 1997, ADT Investments responded to
Western's April 28, 1997 letter stating in more detail its purpose for
seeking the shareholder list and requesting that Western provide the
shareholder list by 12:00 noon on Friday, May 2, 1997. The purpose for
seeking the shareholder list is to enable ADT Investments to communicate
with Western shareholders concerning the proposed transactions with KCP&L
and the Western Offer. These transactions require the approval of
Western's shareholders and, in ADT Investment's view, raise fundamental
questions about the direction of Western and the way it currently is being
managed. In ADT Investment's view, the negative effects on Western's
shareholders include possible reductions in Western's dividends, earnings
per share and credit rating.
On May 2, Western did not respond to ADT Investments' request by the
12:00 noon deadline and ADT Investments filed an amended petition in the
District Court of Shawnee County, Kansas adding its demand under Section
17-6510 of the Kansas General Corporation Code for the stockholder list in
connection with Western's annual stockholders meeting. By letter dated May
2, 1997, Western subsequently responded to ADT Investment's April 30, 1997
letter but did not indicate any intention to provide the stockholder list
to ADT Investments.
The response to Item 8 is hereby amended by adding the following
after the final paragraph under "Demand for Kansas City Power & Light
Stockholder List":
By letter to KCP&L dated May 2, 1997, ADT Investments II reiterated
its demand for a complete record or list of shareholders of KCP&L as of a
recent date. ADT Investments II's letter requested compliance with its
demand by noon on Monday, May 5, 1997. By letter dated May 5, 1997, KCP&L
again denied ADT Investments II's request, reiterating its belief that ADT
Investments II's request was not made in good faith and for a proper
purpose.
The response to Item 8 is hereby amended by adding the following
after the final paragraph of the prior response to Item 8:
Other Information
On April 25, 1997 Western announced first quarter earnings for 1997
of $39.8 million or $0.61 per share of common stock. Among other things,
Western's announcement indicated that warmer winter weather and increased
financing charges resulted in quarterly earnings $0.05 per share lower than
the first quarter of 1996.
On May 5, 1997 ADT issued a press release, attached hereto as Exhibit
99.58 and incorporated herein by reference, announcing that on Saturday,
May 3, the 30-day waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 expired with no action taken by the antitrust
authorities with respect to the transaction between ADT and Tyco
International Ltd.
Item 9. Material to be Filed as Exhibits.
The response to Item 9 is hereby amended by adding the following new
exhibits:
Exhibit 99.53 Letter dated April 28, 1997 from Western Resources, Inc. to
ADT Investments, Inc.
Exhibit 99.54 Letter dated April 30, 1997 from Blackwell Sanders Matheny
Weary & Lombardi L.C. to Berkowitz, Feldmiller, Stanton,
Brandt, Williams & Stueve.
Exhibit 99.55 Letter dated May 2, 1997 from Berkowitz, Feldmiller, Stanton,
Brandt, Williams & Stueve to Blackwell Sanders Matheny Weary &
Lombardi L.C.
Exhibit 99.56 Letter dated May 2, 1997 from Seigfreid, Bingham, Levy, Selzer
& Gee to Kansas City Power & Light Co.
Exhibit 99.57 Letter dated May 5, 1997 from Kansas City Power & Light Company
to Seigfreid, Bingham, Levy, Selzer & Gee.
Exhibit 99.58 ADT Press Release dated May 5, 1997.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
ADT LIMITED
By: /s/ Stephen J. Ruzika
_______________________________________________
Stephen J. Ruzika
Chief Financial Officer, Executive Vice
President and Director (Principal
Financial Officer and Principal Accounting
Officer)
Dated: May 6, 1997
Exhibit 99.53
[Letterhead of John K. Rosenberg,
Executive Vice President and General Counsel
of Western Resources, Inc.]
April 28, 1997
ADT Investments, Inc.
c/o Mr. Gary D. Gilson
Blackwell Sanders Matheny Weary & Lombardi L.C.
2300 Main Street
Kansas City, MO 64108
Dear Gentlemen:
We have received your letter of April 24, 1997 demanding a
shareholders list of Western Resources, Inc. You state that your company
intends to use the list for the purpose of communicating with other
shareholders regarding the solicitation of proxies in connection with the
Annual Meeting, although you intimate that you may have other purposes as
well.
We view this latest demand as harassment. Given the fact that ADT
Investments, Inc., is, in effect, a wholly-owned subsidiary and under the
control of ADT, Ltd., a company Western Resources is seeking to purchase by
an outstanding purchase and exchange offer, we question whether your
company's purpose is more to protect the management of ADT, Ltd. than the
shareholders of Western Resources, Inc. As you mentioned in your letter of
April 24, 1997, your company previously requested a Western Resources
shareholders list and, in fact, filed a lawsuit in the District Court of
Shawnee County, Kansas to compel Western Resources to produce the list.
Your attorney in that case informed Western's attorney that your company
wished to "take another direction," and, therefore, the parties agreed to
cancel the court hearing on April 17, 1997 for the purpose of allowing the
parties to explore ways of mooting the case. However, instead of
contacting Western's attorney to explore ways of mooting the case, you have
now sent your letter of April 24 demanding the shareholder list again, this
time under the pretense of soliciting proxies for the Western Resources
Annual Meeting of May 29, 1997. In light of the fact that your company and
its attorneys have not done what they told the Court and our counsel they
would do, we view this second attempt to demand the shareholder list with
great skepticism.
Further, while you state that your purpose is to solicit proxies for
the May 29 Annual Meeting of Western Resources, as far as Western knows,
your company has not filed proxy materials with the SEC necessary to
solicit proxies from Western Resources shareholders. In addition, the only
issue to be voted on at the Annual Meeting is the election of directors.
ADT Investments, Inc. has not met the requirements under Western Resources'
Articles of Incorporation to nominate someone as a director or place some
other business before the Annual Meeting. The Company has not received an
appropriate or timely notice from ADT Investments, Inc. in that regard.
That leads us to believe that your stated purpose for this second demand
for a shareholder list is highly questionable.
Finally, given your relationship to ADT, Ltd. Western Resources will
not, in any case, produce its shareholder list to your company without
significant limitations and restrictions imposed by the Court as to its use
and by whom as provided by Kansas statute.
Frankly, we are at a loss why your company made this second demand
without contacting our attorney, Lawrence M. Berkowitz, as you represented
to him and to the District Court of Shawnee County you would do.
Very truly yours,
/s/ John K. Rosenberg
--------------------------
John K. Rosenberg
cc: Mr. Floyd R. Finch
Mr. Lawrence M. Berkowitz
Exhibit 99.54
[Letterhead of Blackwell Sanders Matheny Weary & Lombardi L.C.]
April 30, 1997
VIA FACSIMILE AND U.S. MAIL
Lawrence "Barney" Berkowitz, Esq.
Berkowitz, Feldmiller, Stanton,
Brandt, Williams & Stueve
Two Brush Creek Blvd., Suite 550
Kansas City, MO 64112
Re: ADT Investments, Inc. v. Western Resources, Inc.
Case No. 97CV467
Our File No.: 13404-2
Dear Barney:
When we last discussed this matter, you indicated that Western would
seriously consider producing its shareholder list to ADT Investments, Inc.
("ADT"), if ADT would state in more detail its purpose for seeking the
shareholder list and would agree to reasonable restrictions on its use.
Based on those representations, and on the possibility that an agreement
could moot this case, we agreed to postpone the hearing.
I want to address Western's stated concerns, and then respond to John
Rosenberg's letter of April 28, 1997, to Gary Gilson concerning ADT's
request of April 24 for a shareholder list in advance of Western's annual
meeting.
First, before taking the Court's time to resolve this matter, let's
make sure that there is no confusion concerning the purpose of ADT's
requests. ADT confirms that the purpose for its request for the
shareholder list is to enable it to communicate with Western's shareholders
concerning the proposed transactions with KCP&L and the hostile exchange
offer for ADT Ltd. These transactions require the approval of Western's
shareholders and raise fundamental questions about the direction of Western
and the way it currently is being managed.
In this regard, ADT wishes to communicate with other Western
shareholders concerning the effect these proposed transactions would have
on Western's shareholders, and whether the current directors up for re-
election are acting in the best interests of shareholders by pursuing these
transactions.
The negative effects on shareholders include possible reductions in
Western's dividends, earnings per share, and credit rating. ADT's
communications with Western stockholders may involve either the
solicitation of proxies for use at the shareholder meetings or general
correspondence with shareholders in advance. As a Western shareholder, ADT
has an entirely legitimate right to communicate with fellow shareholders on
these matters in advance of the annual and special shareholder meetings and
such communications may very well impact how Western shareholders decide to
vote on these transactions and on the election of new directors.
ADT would agree not to disclose the shareholder list publicly and to
use it only for the purpose of soliciting proxies or communicating with
other shareholders. With this assurance, Western has no legitimate reason
for refusing to produce the list.
Secondly, John Rosenberg's letter of April 28 responds to ADT's April
24 request for the shareholder list of the annual meeting of Western's
shareholders scheduled for May 29. It seems a fair reading of John
Rosenberg's letter that Western will not produce the list in advance of the
annual meeting. Throwing around the word harassment does not diminish
ADT's right as a shareholder to be provided with a copy of the shareholder
list. It seemed to ADT more efficient to deal with both requests together
after Western has had an opportunity to consider the second request.
Please advise me by noon on May 2nd whether Western will provide a
copy of its shareholder list to ADT as requested. Because the annual
meeting is rapidly approaching, if we do not hear from you by then, we will
be forced to consider proceeding immediately with scheduling depositions
and the hearing before the Court.
Yours truly,
/s/ Floyd R. Finch, Jr.
-----------------------------
Floyd R. Finch, Jr.
Exhibit 99.55
[Letterhead of Berkowitz, Feldmiller, Stanton,
Brandt, Williams & Stueve, LLP]
May 2, 1997
via Facsimile - 274-6914
Floyd R. Finch, Jr., Esq.
Blackwell, Sanders, Matheny, Weary
& Lombardi L.C.
2300 Main Street
Suite 1100
P.O. Box 41977
Kansas City, MO 64141
Re: ADT Investments, Inc. v. Western Resources, Inc.
Dear Floyd:
This will acknowledge receipt of your letter to me of April 30, 1997.
It seems to me that your letter is definitely not "a different direction"
as you represented to me your client was taking. It is the same direction,
and your client's second letter of April 24, 1997 to Western Resources,
Inc. demanding the shareholder list is viewed by my client and me to be
totally inconsistent with the tone and substance of the discussions you and
I had concerning these issues. Your way of proceeding merely confirms to
me that what you are doing is highly questionable and should be carefully
scrutinized by the Court.
Your client's letter of April 24, 1997 suggests that it intends to
use the shareholder list to solicit proxies for the Western Resources
annual meeting scheduled for May 29, 1997. Consistent with past practice,
in your letter to me of April 30, you attempt to broaden the purposes by
stating that your client intends to either solicit proxies or have "general
correspondence" with the shareholders before the annual meeting. That
change of position undoubtedly came about because it was pointed out to
your client that it had taken no steps to solicit proxies in regard to the
annual meeting with the U.S. Securities and Exchange Commission, and
somebody realized that relying on that alleged purpose was highly
questionable. In addition, as Mr. Rosenberg pointed out to Mr. Gilson,
the transactions with KCP&L and ADT are not on the agenda for the annual
meeting. That is undoubtedly why your letter to me tries to broaden the
second demand letter of ADT Investments, Inc. dated April 24 to include the
special shareholder's meeting scheduled for June as well as the annual
meeting. That leads us back to the original dispute which is involved in
your lawsuit. There is no change of direction.
The limitations as to the use of the Western Resources shareholders
list by ADT Investments suggested by your letter to me are only part of the
protections we would seek from the Court should it decide that ADT
Investments, Inc. is entitled to the list. In light of the relationship
between ADT Investments and its parent, ADT, Limited and, also, in light of
they way your client has been proceeding in this matter, the so-called
"assurances" you give are hardly sufficient.
Finally, Floyd, if you think writing me letters with unilateral
deadlines as to when we are supposed to agree with you or else is any way
to resolve disputes, you and I have very different ways of proceeding. May
I remind you that it was you who suggested that we put off the hearing, and
it was you who decided that we would get back to the court in two or three
weeks to set another date for a hearing if we were unable to resolve the
matter. It was also you who told me you would get back to me with a
response to Mr. Rosenberg's original letter concerning the June 18 special
meeting to see if we could work things out. I suggest that we discuss this
matter on Monday and try to work out a mutually convenient time for a
hearing before the court. We can then devise a discovery schedule to meet
that hearing date. I am available Monday morning.
Very truly yours,
/s/ Barney
----------------------
Lawrence M. Berkowitz
Exhibit 99.56
[Letterhead of Seigfreid, Bingham, Levy, Selzer & Gee]
May 2, 1997
BY FAX (556-2572) AND U.S. MAIL
Ms. Jeannie Sell Latz
Kansas City Power & Light Co.
1201 Walnut
P.O. Box 418679
Kansas City, MO 64141-9679
Dear Jeannie:
We are writing in response to your April 14, 1997 letter denying ADT
Investments II, Inc. ("ADT") a list of shareholders of Kansas City Power &
Light Co. ("KCP&L") and other related information pursuant to Section
351.215 of the Missouri General and Business Corporation Law and Article
VII of KCP&L's Bylaws.
Before resorting to litigation to resolve this matter, we wanted to
make sure that there is no confusion concerning the purpose of ADT's
request. ADT's purpose in requesting the information is to communicate
with KCP&L's shareholders at or before the May 22, 1997 annual meeting
concerning (i) the proposed merger between KCP&L and Western Resources,
Inc. ("Western") and (ii) Western's hostile share exchange offer for ADT
Ltd. These transactions pose substantial risk to shareholder values and
raise serious questions about whether current KCP&L management is acting in
the best interests of the shareholders they represent. These issues are
obviously relevant to the election of new management at the annual meeting.
We believe that Western's dividends, debt ratings and earnings per
share are all jeopardized by the proposed transactions. Because KCP&L
shareholders will ultimately become shareholders of Western if the KCP&L-
Western merger is consummated, we believe that it is entirely appropriate
that KCP&L's shareholders be fully informed on these issues prior to the
company's annual meeting.
ADT also agrees to not publicly disclose any of the shareholder
information and to use it only for the purposes stated above.
As you know, Missouri law allows you to refuse a shareholder's
request for information only if you can prove the request is for an evil or
unlawful purpose. State ex rel Kennedy v. Continental Boiler Works, Inc.
807 SW2d 164 (Mo. App. E.D. 1991). With ADT's stated purposes for the
information and its assurances the information will not be publicly
disclosed, KCP&L has no lawful basis for refusing to produce the list.
Please advise me at 421-4460 by 12:00 noon on Monday, May 5 whether
KCP&L will provide the information requested in ADT's April 10, 1997 letter
to you. Because the annual meeting is rapidly approaching, if we do not
hear from you by then, we will be forced to consider immediately filing an
action in Circuit Court and scheduling depositions and a hearing before the
Court.
Very truly yours,
SEIGFREID, BINGHAM, LEVY,
SELZER & GEE, P.C.
/s/ James C. Tilden
----------------------------
James C. Tilden
JTC: cme
cc: Robert J. Bjerg
Exhibit 99.57
[Letterhead of Jeanie Sell Latz, Senior Vice President,
Corporate Services, of Kansas City Power & Light Company]
May 5, 1997
SENT VIA FAX
Mr. James C. Tilden, Esq.
Seigfreid, Bingham, Levy,
Selzer & Gee, P.C.
3900 Commerce Tower
911 Main Street
Kansas City, MO 64105
Re: ADT Investments II, Inc. Request for Shareholder List
Dear Mr. Tilden:
This letter is in response to your letter of May 2, 1997. We were
surprised to receive the letter and to read the urgency with which you
demand a response, in light of your client's long silence since its April
10, 1997, request for KCPL's shareholder list and KCPL's response denying
that request, which was transmitted on April 14, 1997.
KCPL denied your client's request for a shareholder list, because it
believes that your client, ADT Investments II, Inc., is acting as a
strawman for a non-shareholder who hopes to disrupt KCPL's planned merger
with Western Resources, Inc. Your client is a subsidiary of ADT Limited,
("ADT"). The management of ADT is presently resisting a merger proposal
from Western Resources, Inc. We believe that your client's acquisition of
KCPL shares and immediate demand for a shareholder list, with the avowed
intent of interfering with KCPL's contractual relationship with Western
Resources, Inc., is a cynical misuse of the rights accorded legitimate
investors. Accordingly, your client's request is not made in good faith
and is not a proper purpose as required under R.S.Mo. 351.215.
In your letter of May 2, 1997, ADT Investments II, Inc. professess to
voice concerns, as a KCPL shareholder, about the welfare of KCPL as a
result of its planned merger with Western Resources, Inc., and you suggest
that your client has "serious questions about whether the current KCPL
management is acting in the best interests of the shareholders." This
attempt to posture your client as a legitimately concerned shareholder is
self-serving and wholly refuted by the facts. ADT Investments II, Inc.
became a record shareholder of 100 shares of KCPL on April 7, 1997, two
months after KCPL's and Western Resources, Inc.'s February 7, 1997,
agreement to enter into a merger. ADT Investments II, Inc. then made an
immediate demand for a shareholder list so that it could communicate with
legitimate KCPL investors in an effort to disrupt KCPL's planned
combination with Western Resources, Inc. The only conclusion that can be
drawn from the facts is that ADT Investments, II, Inc. is acting as a
strawman for ADT's management, which we understand hopes to disrupt the
KCPL merger with Western Resources, Inc. as a tactic to defend against
Western Resources, Inc.'s efforts to acquire ADT.
While we hope that your client will abandon this improper request, we
are not reluctant to defend our position in court. In the event you chose
to attempt litigation, we trust that your client, and ADT, will be prepared
to produce for depositions the witnesses and documents explaining the
reasons why it acquired KCPL stock and the facts supporting the aspersions
made in your May 2, 1997, letter.
If you believe KCPL misunderstands the facts, or if you are in
possession of any other facts which you believe KCPL should consider,
please contact me.
Very truly yours,
/s/ Jeanie Sell Latz
-----------------------
Jeanie Sell Latz
/jmh
Exhibit 99.58
FOR IMMEDIATE RELEASE [ADT LOGO]
ADT Limited ("ADT") Press Release
ADT ANNOUNCES HART-SCOTT-RODINO WAITING PERIOD EXPIRES WITH NO ACTION TAKEN
____________________________________________________________________________
Hamilton, Bermuda, May 5, 1997 -- ADT Limited (NYSE-ADT) announced today
that, on Saturday, May 3, the 30-day waiting period under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976 expired with no action taken by
the antitrust authorities.
The waiting period began on April 3, 1997 with the filing by ADT and Tyco
International, Ltd. of all required forms with respect to the ADT-Tyco
transaction.
ADT, through its subsidiaries, is the largest provider of electronic
security services in North America and the United Kingdom, providing
continuous monitoring of commercial and residential security systems to
over 1.8 million customers.
Contact:
ADT, Inc.
561-988-3600
Note:
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