As filed with the Securities and Exchange Commission on August 21, 1997
Registration No. 333-33779
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1 TO
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)
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BERMUDA NOT APPLICABLE
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(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
CEDAR HOUSE
41 CEDAR AVENUE
HAMILTON HM12 BERMUDA
(441) 292-2033
(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)
*Tyco International Ltd. maintains its registered offices at Cedar House, 41
Cedar Avenue, Hamilton HM12 Bermuda. The executive office of the subsidiary that
supervises the activities of the subsidiaries of Tyco International Ltd. in
North America is located at One Tyco Park, Exeter, New Hampshire 03833. The
telephone number there is (603) 778-9700.
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COPIES TO:
JOSHUA M. BERMAN, ESQ. NEIL ANDERSON, ESQ.
KRAMER, LEVIN, NAFTALIS & FRANKEL SULLIVAN & CROMWELL
919 THIRD AVENUE 125 BROAD STREET
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10004
<PAGE>
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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 pur-
suant 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. [ ]
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, AS AMENDED, OR UNTIL THIS 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
12,517,072 Common Shares
21,910 A Warrants
13,657 B Warrants
TYCO INTERNATIONAL LTD.
This Prospectus relates to the offering of 12,517,072 common shares
(the "Shares"), par value $.20 per share (the "Common Shares"), of Tyco
International Ltd., a Bermuda company ("Tyco" or the "Company"), 21,910 A
Warrants (the "A Warrants") and 13,657 B Warrants (the "B Warrants", and
together with the A Warrants, the "Warrants"; the Warrants together with the
Shares, the "Securities") to acquire Common Shares, by certain security holders
of the Company. 92,108 of the Shares (the "Warrant Shares") constitute Common
Shares issuable upon exercise of the Warrants. The Warrants were originally
issued by Kendall International, Inc. ("Kendall") to certain security holders of
the Company (the "Kendall Selling Securityholders") and assumed by the Company
pursuant to the terms of the merger of Kendall with a subsidiary of the Company
on October 19, 1994.
12,424,964 of the Shares may be offered from time to time by Westar
Capital, Inc. (the "Westar Selling Shareholder", and together with the Kendall
Selling Securityholders, the "Selling Shareholders") in one or more underwritten
public offerings at prevailing market prices or in privately negotiated block
trades, subject to certain limitations. The Warrants and/or the Warrant Shares
may be offered from time to time by the Kendall Selling Securityholders through
ordinary brokerage transactions on the New York Stock Exchange (Warrant Shares
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 Shareholders. The Company will pay certain expenses
related to the offering of the Securities, estimated at $185,000. The Company
may receive $5.97 per Common Share in connection with the exercise of A Warrants
(or up to an aggregate of $338,737) and $7.96 per Common Share in connection
with the exercise of B Warrants (or up to an aggregate of $281,529). See
"Selling Shareholders."
The resale of the Securities by the Selling Shareholders is subject to
prospectus delivery and other requirements of the Securities Act of 1933, as
amended ("Securities Act"). The Selling Shareholders and any agents or
broker-dealers that participate with the Selling Shareholders 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 SECURITIES COMMISSION NOR HAS
THE 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 AUGUST , 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 Shares are listed.
This Prospectus constitutes part of a Registration Statement on Form
S-3 (the "Registration Statement") 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
December 31, 1996.
The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997.
The Company's Current Reports on Form 8-K dated March 25, 1997 and July
10, 1997.
In addition, the following documents, which have been filed by Tyco
International (US) Inc., a Massachusetts corporation (formerly Tyco
International Ltd.; "Old Tyco") with the Commission pursuant to the Exchange
Act, are hereby incorporated by reference in this Prospectus:
Old Tyco's Annual Report on Form 10-K for the fiscal year ended June
30, 1996.
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<PAGE>
Old Tyco's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1996, December 31, 1996 and March 31, 1997.
Old Tyco's Current Reports on Form 8-K dated October 29, 1996, March 4,
1997, March 25, 1997 and March 28, 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 Shares 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 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, c/o Tyco International (US) Inc., One Tyco Park, Exeter, New
Hampshire 03833 (telephone: (603) 778-9700).
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<PAGE>
THE COMPANY
Tyco International Ltd., a Bermuda company, is the continuing public
company resulting from the business combination (the "ADT Merger") on July 2,
1997 of Tyco International Ltd., a Massachusetts corporation ("Old Tyco"), and
ADT Limited, a Bermuda company ("ADT"). In the ADT Merger, Old Tyco merged with
a subsidiary of ADT, and ADT changed its name to Tyco International Ltd.
Tyco is the largest contractor in the world for design, installation
and servicing of fire protection systems and is a leading manufacturer and
distributor of fire detection and fire suppression products. Tyco is also the
largest provider of electronic security services in North America and the United
Kingdom. These services include the sale, installation, monitoring and
maintenance of electronic security devices and systems for intrusion detection,
surveillance and access control. Tyco manufactures and distributes flow control
products, disposable medical supplies and other specialty products, electrical
and electronic components and underwater telecommunication systems. Tyco also
operates a network of vehicle auction centers in the United States.
Tyco's strategy is to be a low-cost, high quality producer and provider
in each of its markets. It promotes its leadership position by investing in
existing businesses, developing new markets and acquiring complementary
businesses and products. Combining the strengths of its existing operations and
its business acquisitions, Tyco seeks to enhance shareholder value through
increased earnings per share and strong cash flows.
The Company is a Bermuda company. Its registered offices are located at
Cedar House, 41 Cedar Avenue, Hamilton HM12 Bermuda, and its telephone number is
(441) 292-2033. The executive office of the subsidiary that supervises the
activities of the subsidiaries of Tyco International Ltd. in North America is
located at One Tyco Park, Exeter, New Hampshire 03833, and its telephone number
is (603) 778-9700.
CURRENT DEVELOPMENTS
PROPOSED TRANSACTIONS
On May 12, 1997, Old Tyco entered into a definitive merger agreement
for the acquisition of INBRAND Corporation ("INBRAND") in a stock for stock
transaction (the "INBRAND Transaction") valued at approximately $410 million.
INBRAND, with annual revenues of approximately $240 million, is a producer of
adult incontinence products, feminine hygiene products and baby diapers. INBRAND
products are sold to the clinical and retail markets in North America and
Europe. In the INBRAND Transaction, which will be accounted for as a pooling of
interests, INBRAND shareholders will receive 0.43 of a Common Share for each
share of INBRAND common stock outstanding. As of July 11, 1997, INBRAND had
11,772,523 shares of common stock outstanding. The INBRAND Transaction is
contingent upon approval by the INBRAND shareholders at a meeting scheduled for
August 27, 1997 and other customary conditions.
On May 20, 1997, Old Tyco entered into a definitive merger agreement
for the acquisition of Keystone International, Inc. ("Keystone") in a stock for
stock transaction (the "Keystone Transaction") valued at approximately $1.2
billion. Keystone, with annual revenues of approximately $700 million,
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<PAGE>
designs, manufactures and markets on a worldwide basis, industrial valves,
actuators and accessories used to control the flow of liquids, gases and solid
materials. Keystone products are sold to the food and beverage, water and
sewage, petroleum production and refining, natural gas, chemical power, and pulp
and paper industries. In the Keystone Transaction, which will be accounted for
as a pooling of interests, Keystone shareholders will receive Common Shares in
exchange for their shares of Keystone common stock. The exchange ratio will
depend upon the average daily trading price for Common Shares on the New York
Stock Exchange for the ten trading days ending five trading days prior to the
meeting of Keystone shareholders to vote on the transaction. For an average
daily trading price of between $57.21 and $68.29 the exchange ratio would be
0.54183 of a Common Share for each share of Keystone common stock outstanding.
The exchange ratio will be higher or lower for an average daily trading price
below or above this range. As of August 6, 1997, Keystone had 35,798,296 shares
of common stock outstanding. The Keystone Transaction is contingent upon
approval by the Keystone shareholders at a meeting scheduled for August 28, 1997
and other customary conditions. The Antitrust Division of the United States
Department of Justice (the "Antitrust Division") has raised certain concerns
regarding the Keystone Transaction that relate to certain specific flow control
products of Tyco and Keystone. Such products accounted for less than 2% of the
total revenues of Keystone in it most recent fiscal year. Tyco and Keystone do
not intend to consummate the Keystone Transaction unless and until the concerns
of the Antitrust Division have been resolved.
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.
OPERATING RESULTS OF OLD TYCO FOR THE FISCAL YEAR ENDED JUNE 30, 1997
The Company has announced results of operations of Old Tyco for the
fiscal year ended June 30, 1997 ("fiscal 1997"). Net income increased 35% to
$419.0 million, or $2.61 per share, for fiscal 1997, compared to $310.1 million,
or $2.03 per share for the fiscal year ended June 30, 1996 ("fiscal 1996").
Sales increased 30% to $6.6 billion in fiscal 1997 from $5.1 billion in fiscal
1996. The increases reflect internal growth as well as growth through
acquisitions. The internal growth was enhanced by continued worldwide expansion
of products and services coupled with productivity enhancements which improved
profit margins. Earnings of the Disposable and Specialty Products group
increased 25% to $364.4 million in fiscal 1997, compared to $291.7 million in
fiscal 1996. Earnings of the Fire Protection group increased 55% to $198.9
million in fiscal 1997, compared to $128.1 million in 1996. The increase
reflects improved margins in all geographic areas, particularly North America.
Earnings of the Flow Control group increased 37% to $156.3 million in fiscal
1997, compared to $114.1 million in fiscal 1996. The increase reflects higher
earnings at each of the group's operating units, as well as recent acquisitions.
Earnings of the Electrical and Electronic Components group increased 24% to
$109.3 million in fiscal 1997, compared to $88.5 million in fiscal 1996. The
increase reflects higher earnings at each of the group's operating units. The
earnings of the four business groups set forth above are stated before deduction
for general corporate expenses, interest expense and taxes.
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<PAGE>
The following table sets forth the announced summary results of
operations of Old Tyco for fiscal 1997 compared to fiscal 1996.
<TABLE>
<CAPTION>
For the year ended
June 30, 1997 June 30, 1996
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(In thousands except per share
amounts)
<S> <C> <C>
Sales................................................................ $6,597,629 $5,089,828
========== ==========
Income before income taxes ..........................................
$ 687,889 $ 523,897
Income taxes......................................................... (268,887) (213,750)
----------- -----------
Net Income........................................................... $ 419,002 $ 310,147
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Earnings Per Share................................................... $2.61 $2.03
===== =====
Common equivalent shares............................................. 160,268 152,862
========= ==========
</TABLE>
For information on the operating results of ADT Limited (since renamed
Tyco International Ltd.) for the quarter and six months ended June 30, 1997,
please refer to the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997.
USE OF PROCEEDS
All of the Securities offered hereby are being offered by the Selling
Shareholders. The Company will not receive any of the proceeds from the sale of
the Securities 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 from the
exercise of A Warrants and B Warrants for working capital and general corporate
purposes. See "Selling Shareholders."
SELLING SHAREHOLDERS
WESTAR SELLING SHAREHOLDER
As used in this section, the term "Selling Shareholder" refers to the
Westar Selling Shareholder.
GENERAL
The Selling Shareholder is a wholly-owned subsidiary of Western
Resources, Inc. ("Western"). Western is an investor-owned holding company that
is engaged principally in the production, purchase, transmission, distribution
and sale of electricity and the delivery and sale of natural gas. Western's
non-utility subsidiaries market natural gas primarily to large commercial and
industrial customers, provide
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<PAGE>
electronic monitoring security services, and provide other energy-related
products and services. On February 7, 1997, Kansas City Power & Light Company
("KCPL") and Western entered into an agreement whereby KCPL would be merged with
and into Western.
The Selling Shareholder initially purchased Common Shares in January
and March 1996 from Laidlaw Inc., a corporation continued under the laws of
Canada, and has from time to time purchased and sold Common Shares and the
Company's Liquid Yield Option NotesTM ("LYONs") exchangeable into Common Shares
in the open market. Neither the Selling Shareholder nor Western has had any
representative on the Board of Directors or in the management of the Company. As
of the date of this Prospectus, the Selling Shareholder beneficially owns
12,424,964 Shares, or approximately 5% of the outstanding Common Shares. The
number of Shares sold and the timing of any such sales will depend on market
conditions and other factors. In the event that Western or any other subsidiary
of Western acquires any or all of the Shares from the Selling Shareholder,
Western or such subsidiary may be substituted for the Selling Shareholder, in
whole or in part, as a selling shareholder under this Prospectus.
THE SETTLEMENT AGREEMENT
In December 1996, Western announced its intention to offer to exchange
cash and Western stock for the outstanding common shares of the Company not
already owned by the Selling Shareholder (the "Western Offer"). At the same
time, Western filed a notice with the Company requisitioning a special general
meeting of ADT's shareholders to consider proposals (the "Western Proposals") to
remove the then current members of ADT's board, reduce the size of the board to
two and elect two officers of Western as directors of ADT. In March 1997, ADT
entered into an Agreement and Plan of Merger with Old Tyco, providing for the
merger of a subsidiary of ADT with Old Tyco. Western announced the withdrawal of
the Western Offer on July 2, 1997, the date the ADT Merger was consummated. The
Western Proposals were voted down at a special general meeting of shareholders
of the Company on July 8, 1997, at which the Common Shares held by the Selling
Shareholder were not represented.
In connection with the Western Offer, the Selling Shareholder filed an
action against ADT in U.S. District Court for the Southern District of Florida
alleging breaches of duties of ADT's directors to its shareholders. The Selling
Shareholder also filed a petition with the Supreme Court of Bermuda, which, as
amended, sought a payment in cash for the fair value of its Shares. Certain
subsidiaries of ADT which hold shares in Western and KCPL filed actions against
Western in the District Court of Shawnee County, Kansas, and against KCPL in the
Circuit Court of Jackson County, Missouri, seeking exercise of shareholder
rights to inspect books and records of Western and KCPL, respectively.
On August 14, 1997, Western, the Selling Shareholder and the Company
entered into a Settlement Agreement, dated as of July 16, 1997, providing for
the withdrawal or discontinuance of all outstanding litigation between the
parties, including the litigation involving KCPL, mutual releases and the
execution of the Western Registration Rights Agreement described below. A copy
of the Settlement Agreement is filed as an exhibit to the Registration Statement
and reference is made to such agreement for a complete statement of its
provisions.
WESTERN REGISTRATION RIGHTS AGREEMENT
The Selling Shareholder, Western and the Company have entered into a
Registration Rights Agreement, dated as of August 14, 1997 (the "Western
Registration Rights Agreement"). The Shares offered pursuant to this Prospectus
have been registered under the Securities Act and are being so offered in
accordance with the terms of the Western Registration Rights Agreement. A copy
of the Western
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<PAGE>
Registration Rights Agreement is filed as an exhibit to the Registration
Statement, and the following description of the terms of the Western
Registration Rights Agreement is qualified by reference to such agreement.
General. The Western Registration Rights Agreement provides for the
registration of the Shares under the Registration Statement, which is a "shelf
registration statement" filed in accordance with the Securities Act. The Company
has agreed to use its best efforts to maintain the effectiveness of the
Registration Statement until the earlier of (i) the date that is twenty-four
(24) months from the effective date of the Registration Statement; and (ii) the
date when no more than 500,000 of the aggregate number of Registrable Securities
(as defined below) initially included in the Registration Statement
(appropriately adjusted for any stock dividend, stock split, reverse stock
split, combination, recapitalization, reclassification, exchange or similar
transaction with respect to the Common Shares) continue to constitute
Registrable Securities. The Western Registration Rights Agreement also provides
for certain "piggyback rights" for the registration and distribution of
Registrable Securities. Demand and piggyback rights under the Western
Registration Rights Agreement may be exercised by the Selling Shareholder and
any other person that constitutes a Holder (as defined below).
Definitions. The following definitions are used in the description of
the Western Registration Rights Agreement in this section:
"Block Trade" means the disposition at a single time in a single
transaction, including through one or more placement agents, by one or more
Holders, of any or all of the Registrable Securities to one or more
Institutional Investors. "Institutional Investor" means any insurance company,
pension fund, mutual fund, investment company, commercial bank, savings bank,
savings and loan association, investment banking company, trust company or any
finance or credit company, or any portfolio or investment fund managed by any of
the foregoing.
"Exclusive Period" means the period beginning on the date of the
Western Registration Rights Agreement and ending on the later of (i) October 3,
1997 and (ii) sixty (60) days from the date that the Shelf Registration
Statement is first declared effective by the SEC, not including any days during
which a Material Development Election (as defined) is in effect.
"Holder" means any person that owns Registrable Securities, provided
that no person other than Western, the Selling Shareholder and any other
wholly-owned, direct or indirect subsidiary of Western may be a Holder.
"Registrable Securities", as used in this section means (i) the Common
Shares owned by the Selling Shareholder as of the date of the Registration
Agreement; and (ii) any other securities issued or issuable as a result of or in
connection with any stock dividend, stock split or reverse stock split,
combination, recapitalization, reclassification, merger or consolidation,
exchange or distribution in respect of the securities referred to in clause (i)
above; provided that any Registrable Security ceases to be such after either (x)
the later of (1) July 16, 1998 and (2) such time as such security has become an
Unrestricted Security, or (y) such time as such security has been transferred,
with or without consideration, to any person other than a Holder.
"Unrestricted Securities" mean Common Shares that may be sold pursuant
to Rule 144(k) under the Securities Act, or any similar successor rule thereto
that may be promulgated by the Commission.
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<PAGE>
"Western," as used in the Western Registration Rights Agreement, means
Western Resources, Inc. and any successor corporation to Western Resources, Inc.
by way of merger, consolidation, exchange procedure or other business
combination pursuant to which all of the shareholders of Western Resources, Inc.
immediately prior to such business combination (other than shareholders
exercising statutory appraisal rights) are shareholders of the successor
immediately following such combination.
Demand Rights. Upon the written request of one or more Holders, the
Company will facilitate an underwritten offering of Shares under the
Registration Statement (a "Demand Underwritten Offering"), provided that the
Company is not obligated to facilitate any Demand Underwritten Offering for less
than 500,000 Shares (appropriately adjusted for any stock dividend, stock split,
reverse stock split, combination, recapitalization, reclassification, exchange
or similar transaction with respect to the Common Shares). One or more Holders
may also effect a Block Trade under the Registration Statement, provided that no
Unrestricted Securities may be sold in a Block Trade under the Registration
Statement. The total number of Demand Underwritten Offerings and Block Trades
under the Registration Statement may not exceed three in the aggregate.
Piggyback Rights of the Company in Demand Underwritten Offerings and of
the Holders in Underwritten Offerings of the Company for its Own Account. The
following provisions apply only after the end of the Exclusive Period.
If the Holders deliver a notice of a proposed Demand Underwritten
Offering, the Company, by notice to the Holders, may elect to participate in the
sale of Common Shares in such underwritten offering. If the Company delivers
such a notice, the Demand Underwritten Offering will be consummated as soon as
practicable after the earlier to occur of (x) the time any amendment to the
Registration Statement or any new Registration Statement required for the sale
of Common Shares by the Company becomes effective under the Securities Act, and
(y) thirty calendar days from the date of delivery by the Company to the Holders
of the notice of the Company's participation election.
If the Company proposes to file a registration statement with respect
to an underwritten offering of Common Shares for its own account, the Company is
required to give the Holders notice of such registration. The notice must offer
the Holders the opportunity to have any or all of the Registrable Securities
then held by them included in the registration statement. If any such
registration is not a shelf registration, the Registrable Securities that the
Holders elect to include will be offered in the underwritten offering together
with the offering of Common Shares by the Company. If any such registration is a
shelf registration, the Registrable Securities will be included in the
registration statement only for distribution in an underwritten offering
together with an underwritten offering of Common Shares by the Company.
If the Company proposes to effect an underwritten offering of Common
Shares for its own account under a previously effective registration statement,
the Company is required to give notice of such proposed offering to the Holders.
The notice must offer the Holders the opportunity to have any or all of the
Registrable Securities then held by them included in such underwritten offering,
to the extent such Registrable Securities have previously been registered either
under the Registration Statement or a registration statement filed pursuant to
the prior paragraph.
If the managing underwriter or underwriters of any underwritten
offering referred to in the prior three paragraphs advises the Company in
writing that the total amount of Common Shares of the Holders, the Company and
any other persons intended to be included in such underwritten offering is
sufficiently large to materially adversely affect the success of such offering,
then the amount of Common Shares to be offered in such public offering will be
allocated as follows:
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<PAGE>
(i) first, to the Company, in the amount the Company
proposes to offer, up to an amount equal to one-half of the
maximum amount (the "Maximum Amount") of Common Shares that the
managing underwriter or underwriters have advised can be sold in
the underwritten offering;
(ii) next, to the Holders, in the amount the Holders propose
to offer, up to an amount equal to one-half of the Maximum
Amount;
(iii) next, if the sum of the Common Shares allocated
pursuant to clauses (i) and (ii) above is less than the Maximum
Amount, to the Company or the Holders, whichever shall have
Common Shares proposed to be offered in the underwritten offering
which have not been allocated under clauses (i) or (ii) above, up
to an amount equal to the difference between the Maximum Amount
and the amount of Common Shares allocated under clauses (i) and
(ii) above; and
(iv) thereafter, if the sum of the Common Shares allocated
pursuant to clauses (i), (ii) and (iii) above is less than the
Maximum Amount, to any other Person entitled to participate in
the underwritten offering, up to an amount equal to the
difference between the Maximum Amount and the amount of Common
Shares allocated under clauses (i), (ii) and (iii) above.
Piggyback Rights of the Holders in Underwritten Offerings for the
Account of Third Parties. If the Company proposes to file a registration
statement with respect to the underwritten offering of any class of its equity
securities for the account of a holder of securities of the Company pursuant to
registration rights granted by the Company (a "Requesting Shareholder"), the
Company is required to give written notice of such proposed filing to the
Holders. Such notice must offer to all Holders the opportunity to have any or
all of the Registrable Securities held by them included in such registration
statement, provided that if any such registration is a shelf registration,
Registrable Securities will be included therein only for distribution in an
underwritten offering.
If the managing underwriter or underwriters of any such underwritten
offering advises the Company in writing that the total amount or kind of
securities of the Holders, the Company and any other persons intended to be
included in such underwritten offering is sufficiently large to materially
adversely affect the success of such offering, then the amount or kind of
securities to be offered for the accounts of Holders will be reduced pro rata,
together with the amount or kind of securities to be offered for the accounts of
any other persons exercising piggyback rights, to the extent necessary, before
the securities offered by the Company or any Requesting Shareholder are so
reduced.
Hold-back Election. In the case of any underwritten offering by the
Company, whether for its own account or for the account of a holder of
securities of the Company pursuant to registration rights granted by the
Company, the Holders agree, if and to the extent requested in writing by the
managing underwriter or underwriters administering such offering (a "Hold-Back
Election"), not to effect any public sale or distribution of securities of the
Company, except as part of such underwritten offering, during the period
beginning seven days prior to the closing date of such underwritten offering and
during the period ending on the earlier of (i) 45 days after such closing date
and (ii) the date such sale or distribution is permitted by such managing
underwriter or underwriters, provided that, if and to the extent it is
reasonable to do so, the Company will request of the managing underwriter or
underwriters to permit such sale or distribution prior to the date permitted
under clause (i) above. These hold-back provisions will cease to be of any
effect following the time that Western and its subsidiaries hold, in the
aggregate,
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less than three percent 3% of the outstanding Common Shares. The Company has
agreed to be subject to similar hold-back provisions with respect to any Demand
Underwritten Offering. Moreover, the Holders will not be subject to the forgoing
hold-back provisions in respect of an underwritten offering for the account of
any other holder of Common Shares that has not similarly agreed to be subject to
the hold-back provisions set forth in this paragraph in respect of a Demand
Underwritten Offering for the benefit of the Holders.
Material Development Election. The Company is entitled, for a period of
time not to exceed 30 consecutive days, to require that the Holders refrain from
effecting any distribution of their Registrable Securities pursuant to the
Registration Statement if the chief executive officer of the Company determines
in his reasonable good faith judgment that, in accordance with his understanding
of the disclosure requirements of applicable securities law, such distribution
would require disclosure of any financing (other than an underwritten secondary
offering of any securities of the Company), acquisition, corporate
reorganization or other transaction or development involving the Company or any
subsidiary of the Company that is or would be material to the Company and that,
in the reasonable good faith business judgment of such chief executive officer,
such disclosure would not at that time be in the best interests of the Company
(a "Material Development Election").
The Western Registration Rights Agreement provides that in no event may
the restrictions pursuant to one or more Hold-Back Elections or Material
Development Elections remain in effect for more than 75 days in the aggregate in
any calendar year. Also, the restrictions pursuant to two or more Material
Development Elections may not remain in effect for more than 45 days in the
aggregate in calendar year 1997.
Exclusive Period. The Company has agreed not to effect any underwritten
offering of Common Shares during the Exclusive Period, other than (x) an
underwritten offering of Registrable Securities and (y) an underwritten offering
of Common Shares for the benefit of a shareholder in satisfaction of
registration rights granted by the Company to such shareholder prior to the date
of the Western Registration Rights Agreement. The Company has also agreed that a
Hold-Back Election may not be effected during the Exclusive Period.
Expenses. Except as otherwise set forth below, each of the Company, on
the one hand, and the Holders, on the other, will bear it own costs in
connection with the Western Registration Rights Agreement, including without
limitation, internal expenses, fees and disbursements of its outside counsel and
its independent public accountants and fees and expenses of any other experts or
advisors. The Company is required to pay all printing expenses (including
expenses of printing and disseminating Prospectuses or any other necessary
documentation). The Holders are required to pay all registration and filing fees
and fees and expenses of compliance with state securities or blue sky laws and
all expenses incurred by the Company in connection with the participation in any
"road show" by members of the Company's management up to $100,000.
Underwriters. The Western Registration Rights Agreement provides that
each underwriter for any Demand Underwritten Offering will be mutually
acceptable to the Company and the Holders. The Company has no right to select or
approve any investment banking firm to act on behalf of the Holders in respect
of any Block Trade.
Other Provisions. The Western Registration Rights Agreement contains
other provisions typically found in agreements of this type, including
provisions with respect to indemnification and contribution.
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THE KENDALL SELLING SECURITYHOLDERs
As used in this section, the term "Selling Securityholders" refers to
the Kendall Selling Securityholders.
GENERAL
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 Shares as a result of the merger of Kendall with Old
Tyco on October 19, 1994 (the "Kendall Merger") and the subsequent ADT Merger.
Of the Shares being offered hereby, 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 Common Shares are also being registered. The
identities and certain other information with respect to the Selling
Securityholders will be set forth in a Prospectus Supplement.
KENDALL REGISTRATION RIGHTS AGREEMENT
The Company 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 "Kendall 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 Kendall Registration Rights Agreement,
the "Holders", which term includes the Selling Securityholders). The following
summary of certain terms of the Kendall Registration Rights Agreement does not
purport to be complete and is subject in all respects to the provisions of the
Kendall 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 Kendall Registration Rights Agreement gives
the right to each Institutional Investor to demand that the Company 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 Shares. 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.
As used in this section, Registrable Securities include the Common
Shares received as a result of the Kendall Merger (and the subsequent ADT
Merger) in exchange for shares of Kendall common stock that prior to the Kendall
Merger were entitled to registration rights under the Kendall Registration
Rights Agreement; Warrants received as a result of the Kendall Merger (and the
subsequent ADT
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Merger) in exchange for warrants to acquire shares of Kendall common stock that
prior to the Kendall Merger were entitled to registration rights, and Common
Shares issuable upon exercise of such Warrants; Common Shares issuable upon
exercise of Reallocation Rights (as defined); and securities issuable with
respect to such Common Shares 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 Kendall Registration Rights Agreement
provides that if the Company proposes to register any of its equity securities,
whether or not for its own account (subject to certain exceptions), the Company
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, the Company will use its
best efforts to effect the registration under the Securities Act of all the
Registrable Securities that the Holder requests the Company to register,
provided that the Company 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 the
Company or the other selling securityholders participating in such registration.
If the registration involves an underwritten offering and the managing
underwriter advises the Company that, in its opinion, the number of securities
proposed to be registered must be limited due to market conditions, the Company
will include in such registration first, the number of securities the Company
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.
The Company 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 Kendall 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 Kendall Registration Rights Agreement provides
that, if any registration of Common Shares 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 Shares 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, the Company agrees, and will use reasonable
efforts to cause other persons holding 5% or more of the Common Shares (other
than institutional investment managers) to agree, not to effect any sale or
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distribution of any of the Company's equity securities or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company during the period beginning seven days prior to the effective date of
such registration statement and ending on the earlier of (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 Kendall 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.
Certain Other Provisions. All expenses incident to the Company's
performance of its registration obligations under the Kendall 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 the Company. 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 Kendall Registration Rights Agreement contains customary
indemnification provisions whereby the Company 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 the Company
and certain related parties, in each case in connection with liabilities
relating to the registration of the Registrable Securities. The Kendall
Registration Rights Agreement also provides for certain rights of contribution
in the event that such indemnity is unavailable.
DESCRIPTION OF CAPITAL STOCK
The summary of the terms of the share capital of Tyco set forth below
does not purport to be complete and is qualified by reference to the Tyco
Memorandum of Association (the "Tyco Memorandum") and the Bye-laws of Tyco (the
"Tyco Bye-Laws"). Copies of the Tyco Memorandum and the Tyco Bye-Laws are filed
as exhibits to the Registration Statement.
AUTHORIZED SHARE CAPITAL
Tyco's authorized share capital consists of 750,000,000 Common Shares,
par value $0.20 per share, 125,725,000 convertible cumulative redeemable
preference shares, par value $1 per share, divided into three classes (the
"Convertible Preference Shares") (including a class of first preference shares
(the "First Preference Shares")), and 25,000 exchangeable cumulative redeemable
preference shares, par value $1 per share (the "Exchangeable Preference Shares")
(the Convertible Preference Shares and the Exchangeable Preference Shares,
collectively, the "Preference Shares"). As of August 6, 1997, there were
243,231,006 Common Shares outstanding and no Preference Shares outstanding.
COMMON SHARES
Dividends. The Board of Directors of Tyco may declare dividends out of
profits of Tyco available for that purpose as long as there are no reasonable
grounds for believing that Tyco is, or after such dividend would be, unable to
pay its liabilities as they became due or if the realizable value of Tyco's
assets would thereby be less than the aggregate of its liabilities and its
issued share capital and
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<PAGE>
share premium accounts. Subject to such special rights as may be attached to any
other shares in Tyco, all dividends are payable according to the amounts paid or
credited as paid on Common Shares. Dividends are normally payable in U.S.
dollars, but holders with a registered address in the United Kingdom and other
countries outside the United States may receive payment in another currency. Any
dividend which is unclaimed may be invested or otherwise made use of by the
Board of Directors of Tyco and after a period of 12 years is forfeited and
reverts to Tyco.
Voting Rights. At any general meeting of Tyco, votes may be given in
person or by proxy and each holder of Common Shares is entitled, on a show of
hands, to one vote and, on a poll, to one vote for each Common Share held by
him. Any proxy must be a shareholder of Tyco.
Liquidation. On a liquidation of Tyco, holders of Common Shares are
entitled to receive any assets remaining after the payment of the Tyco's debts
and the expenses of the liquidation, subject to such special rights as may be
attached to any other class of shares.
Suspension of Rights. In certain circumstances, the rights of a
shareholder to vote and to receive any payment or income or capital in respect
of a Common Share may be suspended. Those circumstances include failure to
provide information about ownership of and other interests in Common Shares, if
so required in accordance with Tyco Bye-Laws.
Variation of Rights. If at any time the share capital of Tyco is
divided into different classes of shares, the rights attached to any class
(unless otherwise provided by the terms of the issue of the shares of that
class) may be varied with the consent in writing of the holders of three-fourths
of the issued shares of that class or with the sanction of a resolution passed
at a separate general meeting of the holders of the shares of that class by a
majority of three-fourths of such holders voting in person or by proxy.
Transfers. Common Shares may be transferred in any manner the Tyco
Board of Directors may approve. The Board of Directors may require the transfer
to be by an instrument signed by the transferor and, in the case of a partly
paid share, also by the transferee. The instrument must be in writing in the
usual common form or in any other form which the Board of Directors may approve
and must be lodged at the office of the registrar of Tyco for registration. The
Tyco Board of Directors may decline to register any transfer of shares on which
Tyco has a lien, any transfer of shares not fully paid up to a transferee of
whom they do not approve and any transfer of shares by a transferor or to a
transferee on whom Tyco has duly served a notice under the provisions of the
Tyco Bye-Laws during a period of suspension of voting rights.
Registrar and Transfer Agent. AS&K Services Limited is Tyco's
Registrar. ChaseMellon Shareholder Services, L.L.C. is the transfer agent for
Common Shares.
Two-for-One Stock Split. On August 1, 1997, Tyco announced a
two-for-one stock split on its Common Shares. The split will be in the form of a
100 percent stock distribution payable on October 22, 1997 to shareholders of
record on October 1, 1997.
TYCO PREFERENCE SHARES
Under the Tyco Bye-Laws, the Tyco Board of Directors, in its sole
discretion, may designate, allot and issue one or more series of First
Preference Shares from the authorized and unissued First
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Preference Shares. Subject to limitations imposed by law, the Tyco Memorandum or
the Tyco Bye-Laws, the Board of Directors is empowered to determine the
designation of, and the number of shares constituting, each series of First
Preference Shares, the dividend rate for each series, the terms and conditions
of any voting and conversion rights for each series, the amounts payable on each
series on redemption or return of capital and the preference and relative rights
among each series of First Preference Shares. At present, 7,500,000 First
Preference Shares have been designated as Series A First Preference Shares and
are reserved for issue upon exercise of the Rights under the Tyco Shareholder
Rights Plan.
WARRANTS
The A Warrants and the B 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. Upon consummation of
the Kendall Merger and the subsequent ADT Merger, the Warrants became
exercisable for Common Shares and the Company assumed the obligations of Kendall
under the Warrant Agreements. 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
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) and the subsequent ADT Merger, each A Warrant entitles the holder thereof
to purchase 2.5897 Common Shares at an exercise price of $5.97 per share, and
each B Warrant entitles the holder thereof to purchase 2.5897 Common Shares 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 the Company until such holders properly exercise
the Warrants and acquire Common Shares.
SHAREHOLDER RIGHTS PLAN
In 1996, Tyco adopted a Shareholders Rights Plan (the "Tyco Shareholder
Rights Plan"). The Tyco Shareholders Rights Plan provides that unless certain
actions are taken by the Tyco Board of Directors, upon the Distribution Date (as
defined therein) each right other than those rights owned by an Acquiring Person
(as defined therein) will become exercisable. Each right entitles its holder,
among other things, to purchase Common Shares from Tyco at a 50% discount from
the market price of Common Shares on the Distribution Date.
STOCK EXCHANGE LISTING
The Common Shares are listed on the New York Stock Exchange, the London
Stock Exchange and the Bermuda Stock Exchange.
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PLAN OF DISTRIBUTION
The 12,424,964 Shares owned by the Westar Selling Shareholder may be
offered in one or more underwritten offerings or in one or more Block Trades,
provided that the total number of Demand Underwritten Offerings and Block Trades
may not exceed three in the aggregate. Shares that are Unrestricted Securities
may not be offered in a Block Trade pursuant to this Prospectus.
None of the Shares owned by the Westar Selling Shareholder may be
offered pursuant to this Prospectus after such time as the Shares owned by the
Westar Selling Shareholder cease to be Registrable Securities, or, if earlier,
24 months from the date of the Western Registration Rights Agreement. See
"Selling Shareholders--Westar Selling Shareholder--Western Registration Rights
Agreement."
The Warrants and/or Warrant Shares may be offered and sold from time to
time by the Kendall Selling Securityholders on the New York Stock Exchange
(Warrant Shares 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 Warrants and/or Warrant Shares 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 connection with the sale of Securities, underwriters may receive
compensation in the form of discounts, concessions, or commissions. Underwriters
may sell 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 Securities may be deemed to be underwriters, and any discounts or commissions
received by them and any profit on the resale of 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 will be described, in the Prospectus Supplement.
The Selling Shareholders and any broker-dealers who act in connection
with the sale of the Securities may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
them and profit on any resale of the Securities as principal might be deemed to
be underwriting discounts and commissions.
The Company has agreed to indemnify the Selling Shareholders against
certain liabilities, including liabilities under the Securities Act.
Underwriters and agents who participate in the distribution of 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.
The Company will pay expenses related to the Registration Statement and
this Prospectus (including registration fees with respect to the Warrant Shares)
estimated to be approximately $185,000. The Selling Shareholder will pay
expenses related to the Registration Statement and the Prospectus
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(including registration fees with respect to the Shares other than the Warrant
Shares) estimated to be approximately $345,680.
LEGAL MATTERS
The validity of the Common Shares to be sold pursuant to this
Prospectus will be passed upon by Appleby, Spurling & Kempe, Hamilton, Bermuda,
special counsel to Tyco.
EXPERTS
The supplemental consolidated financial statements of Tyco as of
December 31, 1996 and 1995 and for each of the three years in the period ended
December 31, 1996 included in Tyco's Current Report on Form 8-K and incorporated
by reference in this Prospectus give retroactive effect to the merger between
ADT Limited and Tyco International Ltd. (now Tyco International (US) Inc.) and
have been examined by Coopers & Lybrand. The consolidated financial statements
of ADT Limited as of December 31, 1996 and 1995 and for each of the three years
in the period ended December 31, 1996 (not separately presented, but
incorporated herein) have been audited by Coopers & Lybrand. The consolidated
financial statements of Tyco International Ltd (now Tyco International (US)
Inc.) as of December 31, 1996 and for the year then ended (not separately
presented or incorporated herein) and as of June 30, 1996 and 1995 and for each
of the three years in the period ended June 30, 1996 (not separately presented,
but incorporated herein) have been audited by Coopers & Lybrand L.L.P. Such
reports are incorporated by reference herein in reliance on the authority of
said firms as experts in accounting and auditing.
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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)............................. $287,800
Printing and engraving expenses........................... 25,000
Legal fees and expenses................................... 150,000
Accounting fees and expenses.............................. 45,000
Miscellaneous............................................. 25,000
--------
Total................................................. $532,800*
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* Includes $285,680 in registration fees, $50,000 in legal fees and expenses and
$10,000 in accounting fees and expenses paid by the Westar Selling Shareholder.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Bye-Law 102 of the Tyco Bye-Laws provides, in part, that Tyco shall
indemnify its directors and other officers for all costs, losses and expenses
which they may incur in the performance of their duties as director or officer,
provided that such indemnification is not otherwise prohibited under the
Companies Act 1981 (as amended) of Bermuda. Section 98 of the Companies Act 1981
(as amended) prohibits such indemnification against any liability arising out of
the fraud or dishonesty of the director or officer. However, such section
permits Tyco to indemnify a director or officer against any liability incurred
by him in defending any proceedings, whether civil or criminal, in which
judgment is given in his favor or in which he is acquitted or when other similar
relief is granted to him.
The Registrant maintains $75,000,000 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 Registrant 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
Registrant pursuant to Section 16(b) of the Exchange Act and deliberate
dishonesty.
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ITEM 16. EXHIBITS
3.1 --Memorandum of Association of Registrant (previously filed as an
Exhibit to Registrant's Annual Report on Form 10-K for the Year Ended
December 31, 1996)
3.2 --Certificate of Incorporation on Change of Name (previously filed as an
Exhibit to the Registrant's Current Report on Form 8-K filed July 10,
1997 ("July 10, 1997 8-K")
3.3 --Bye-Laws of the Registrant (previously filed as an Exhibit to the July
10, 1997 Form 8-K))
4.1 --Rights Agreement between Registrant and Citibank, N.A. dated as of
November 6, 1996 (previously filed as an Exhibit to Registrant's Form
8-A dated November 12, 1996)
4.2 --First Amendment between Registrant and Citibank, N.A. dated as of
March 3, 1997 to Rights Agreement between Registrant and Citibank, N.A.
dated as of November 6, 1996 (previously filed as an Exhibit to
Registrant's Form 8-A/A dated March 3, 1997)
4.3 --Second Amendment between Registrant and Citibank, N.A. dated as of
July 2, 1997 to Rights Agreement between Registrant and Citibank N.A.
dated as of November 6, 1996 (previously filed as an Exhibit to
Registrant's Form 8-A/A dated July 2, 1997)
5 --Opinion of Appleby, Spurling & Kempe regarding the validity of the
securites registered*
10.1 --Settlement Agreement, dated as of July 16, 1997, between Registrant
and Western Resources, Inc.**
10.2 --Registration Rights Agreement, dated August 14, 1997, among Westar
Capital, Inc., Western Resources, Inc. and Registrant**
10.3 --Registration Rights Agreement, dated as of July 7, 1992 (the "Kendall
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")).
10.4 --Amendment No. 1 to the Kendall Registration Rights Agreement, dated
July 11, 1994 (incorporated by reference to Exhibit 10(b) to Tyco
International (US) Inc. (formerly Tyco International Ltd., "Old Tyco")
Registration Statement on Form S-3, File No. 33-57509).
10.5 --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).
10.6 --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).
23.1 --Consent of Coopers & Lybrand*
23.2 --Consent of Coopers & Lybrand L.L.P.*
23.3 --Consent of Appleby, Spurling & Kempe (contained in Exhibit 5)*
24 --Power of Attorney*
- --------------------
*filed herewith
** previously filed
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
II-2
<PAGE>
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.
(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
II-3
<PAGE>
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.
The undersigned Registrant hereby undertakes that: (1) for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this Registration Statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this Registration Statement as of the time it was
declared effective; and (2) for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus 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 Amendment
No. 1 to the 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 21 day of August 1997.
TYCO INTERNATIONAL LTD.
By: /s/ MARK H. SWARTZ
-------------------
Mark H. Swartz
Executive Vice President-
Chief Financial Officer
(Principal Financial and
Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on August 21
1997 in the capacities indicated below.
SIGNATURE TITLE
- --------- -----
* Chairman of the Board, President, Chief
- ----------------------- Executive Officer and Director (Principal
L. Dennis Kozlowski Executive Officer)
* Director
- -----------------------
Michael A. Ashcroft
* Director and Vice President
- -----------------------
Joshua M. Berman
* Director
- -----------------------
Richard S. Bodman
* Director
- -----------------------
John F. Fort
II-5
<PAGE>
* Director
- -----------------------
Stephen W. Foss
* Director
- -----------------------
Richard A. Gilleland
* Director
- -----------------------
Philip M. Hampton
* Director
- -----------------------
James S. Pasman, Jr.
* Director
- -----------------------
W. Peter Slusser
/s/ MARK H. SWARTZ Executive Vice President-Chief Financial Officer
- ----------------------- (Principal Financial and Accounting Officer)
Mark H. Swartz
* Director
- -----------------------
Frank E. Walsh, Jr.
*/s/ MARK H. SWARTZ
- -----------------------
Attorney-in-Fact
II-6
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
- ------ ----------- ----
3.1 --Memorandum of Association of Registrant (previously filed as an Exhibit
to Registrant's Annual Report on Form 10-K for the Year Ended December 31,
1996)
3.2 --Certificate of Incorporation on Change of Name (previously filed as an
Exhibit to the Registrant's Current Report on Form 8-K filed July 10, 1997
("July 10, 1997 8-K")
3.3 --Bye-Laws of the Registrant (previously filed as an Exhibit to the July
10, 1997 Form 8-K))
4.1 --Rights Agreement between Registrant and Citibank, N.A. dated as of
November 6, 1996 (previously filed as an Exhibit to Registrant's Form 8-A
dated November 12, 1996)
4.2 --First Amendment between Registrant and Citibank, N.A. dated as of March
3, 1997 to Rights Agreement between Registrant and Citibank, N.A. dated as
of November 6, 1996 (previously filed as an Exhibit to Registrant's Form
8-A/A dated March 3, 1997)
4.3 --Second Amendment between Registrant and Citibank, N.A. dated as of July
2, 1997 to Rights Agreement between Registrant and Citibank N.A. dated as
of November 6, 1996 (previously filed as an Exhibit to Registrant's Form
8-A/A dated July 2, 1997)
5 --Opinion of Appleby, Spurling & Kempe regarding the validity of the
securities registered*
10.1 --Settlement Agreement, dated as of July 16, 1997, between Registrant and
Western Resources, Inc.**
10.2 --Registration Rights Agreement, dated August 14, 1997, among Westar
Capital, Inc., Western Resources, Inc. and Registrant**
10.3 --Registration Rights Agreement, dated as of July 7, 1992 (the "Kendall
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")).
10.4 --Amendment No. 1 to the Kendall Registration Rights Agreement, dated July
11, 1994 (incorporated by reference to Exhibit 10(b) to Tyco International
(US) Inc. (formerly Tyco International Ltd., "Old Tyco") Registration
Statement on Form S-3, File No. 33- 57509).
10.5 --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).
10.6 --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).
23.1 --Consent of Coopers & Lybrand*
23.2 --Consent of Coopers & Lybrand L.L.P.*
23.3 --Consent of Appleby, Spurling & Kempe (contained in Exhibit 5)*
24 --Power of Attorney*
- -----------------
*filed herewith
** previously filed
II-7
August 16, 1997
Tyco International Ltd.
Cedar House
41 Cedar Avenue
Hamilton HM 12
Bermuda
re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as attorneys in Bermuda for Tyco International Ltd., a
Bermuda limited liability company ("Tyco") in connection with the sale of
12,517,072 Common Shares of Tyco (the "Shares") including 12,424,964 Shares held
by Westar Capital, Inc. ("Westar") and 21,910 A Warrants and 13,657 B Warrants,
(the "Warrants") assumed by Tyco Company, (which will entitle the holders
thereof to acquire up to 92,108 of the Shares pursuant to a prospectus forming
part of the Registration Statement on Form S-3, filed with the Securities and
Exchange Commission on the 15th August, 1997.
This opinion is based upon and confined to the laws of Bermuda
presently in force as currently applied by the Courts of Bermuda. We have made
no investigation of, nor do we express any opinion as to, the laws of any
jurisdiction other than Bermuda.
In order to render this opinion, we have been supplied with and have
reviewed and relied upon the following documents:
<PAGE>
(a) the Certificate of Incorporation, Memorandum of Association and
Bye-laws of Tyco;
(b) a copy of the resolutions adopted by the Board of Directors of
Tyco as at 2nd July, 1997 (the "Board Resolution");
(c) a copy of resolutions adopted by the Shareholders at a Special
General Meeting of Tyco held 2nd July 1997;
(d) a copy of the draft dated August 15, 1997 of a Prospectus (the
"Prospectus") that is to form part of the Registration Statement on
Form S-3 (the "Registration Statement") to be filed with the
Securities and Exchange Commission on August 15, 1997;
(e) a copy of the pages of the Registration Statement signed by all of
the Directors of Tyco (the "Signature Pages:);
(f) a copy of an executed Assumption Agreement dated as of July 1st,
1997 and made between Tyco (then named ADT Limited) and Tyco
International Ltd. a Massachusetts corporation, relating to the
assumption by Tyco (Old Tyco) of the Warrant Agreements (as defined
below) and acknowledged by ChaseMellon Shareholder Services, LLC
("ChaseMellon") as Warrant Agent;
(g) a copy of the Register of Members and an extract from the Branch
Registrar of Members maintained by ChaseMellon (together "the
Registrars"); and
(h) a copy of permissions given by the Bermuda Monetary Authority
under the Exchange Control Act (1972) and related regulations for the
issue of Tyco Common Shares.
We have also relied upon our searches of documents of public record
maintained by the Registrar of Companies in Bermuda and of the Causes Book of
the Supreme Court of Bermuda made on 22nd July, 1997 (the "Searches").
We have assumed:
- 2 -
<PAGE>
(i) that there is no provision of the law, regulation or public policy
of any jurisdiction, other than Bermuda, which might have a material
effect on any of the opinions herein expressed;
(ii) that all representations appearing in the Prospectus are true and
complete in all material respects;
(iii) the genuineness of all signatures on the documents examined by
us;
(iv) the conformity to original documents, of all documents produced
to us as copies and the authenticity of all original documents which,
or copies of which, have been submitted to us;
(v) that the information disclosed by our Searches has not been
materially altered and that the Searches did not fail to disclose any
material information which had been delivered for filing or
registration, but was not disclosed or did not appear on the public
file at the time of the Searches;
(vi) the capacity, power and authority of the parties to and the due
authorisation, execution and delivery by all parties thereto of the
Warrant Agreement, dated as of July 7, 1992, between, Kendall
International, Inc., a Delaware corporation (formerly CDK Holding
Corporation, "Kendall"), and Norwest Bank Minnesota, N.A.,
("Norwest"), as Warrant Agent, with respect to certain A Warrants and
the Warrant Agreement, dated as of July 7, 1992, between Kendall and
Norwest, as Warrant Agent, with respect to certain B Warrants
(together the "Warrant Agreements");
(vii) the capacity, power and authority of the parties to and the due
authorisation, execution and delivery by all parties thereto of an
Assumption Agreement dated as of October 19th, 1994 between Old Tyco
and Kendall and acknowledged by Norwest as Warrant Agent, relating to
the Assumption by Old Tyco of the Warrant Agreements (the "First
Agreement");
(viii) that each of the Warrant Agreements and the First Agreement is
valid, binding and enforceable in accordance with its terms under the
laws by which it is expressed to be governed; and
(ix) that the Signature Pages evidence the approval of the Directors
of all matters relating to Tyco set out in the Registration Statement.
Unless otherwise defined herein, terms defined in the Registration
Statement and the Prospectus have the same meanings when used in this opinion.
Based on and subject to the foregoing, subject to the reservations set
out below, and to any matters not disclosed to us, we are of the opinion that:
- 3 -
<PAGE>
(1) Tyco has been duly incorporated as a limited liability company and
is validly existing and in good standing under the laws of Bermuda and
has all requisite corporate power and authority to issue the Shares.
(2) All necessary action required to be taken by Tyco pursuant to
Bermuda law has been taken by or on behalf of Tyco and all the
necessary authorisations and approvals of Governmental authorities in
Bermuda have been duly obtained for
(i) the acquisition by Westar of and the transfer from the
beneficial ownership of Westar of 12,424,964 of the Shares
(ii) the assumption by the Company of the Warrants, and
(iii) the issue by the Company of the other 92,108 Shares
referred to in the Prospectus.
(3) The 12,424,964 Shares held by Westar have been validly issued and
are outstanding as fully paid non-assessable shares of the Company.
(4) When duly issued and paid for pursuant to and in accordance with
the terms of the Board Resolutions and the Warrant Agreements, the
92,108 Shares will be validly issued, fully paid and non-assessable
shares in the capital of the Company.
(5) There are no taxes, duties or other charges payable to or
chargeable by the Government of Bermuda, or any authority or agency
thereof, in respect of the transfer of 12,424,964 of the Shares
beneficially owned by Westar, the transfer of the Warrants or the
issue or transfer of the other 92,108 of the Shares referred to in the
Prospectus.
Our reservations are:
A. Any reference in this opinion to shares being "non-assessable"
shall mean, in relation to fully paid shares of Tyco and subject to
any contrary provision in any agreement in writing between such
company and the holder of such shares, that no shareholder shall be
bound by an alternation to the Memorandum of Association or Bye- laws
of Tyco after the date on which he became a shareholder, if and so far
as the alternation requires him to take, or subscribe for additional
shares, or in any way increases his liability to contribute to the
share capital of, or otherwise to pay money to, Tyco.
- 4 -
<PAGE>
B. We express no opinion as to any other law other than Bermuda law
and none of the opinions expressed herein relates to compliance with
or matters governed by the laws of any jurisdiction except Bermuda.
This opinion is addressed to you in connection with the registration of
the Shares with the Securities and Exchange Commission and is not to be made
available to, or relied on by any other person or entity, or for any other
purpose, without our prior written consent.
We hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement. We also consent to the reference to our Firm under the
captions "Legal Matters" in the Prospectus.
This opinion is to be governed by and construed in accordance with the
laws of Bermuda and shall not give rise to legal proceedings in any jurisdiction
other than Bermuda.
Yours faithfully,
/s/ Appleby, Spurling & Kempe
- 5 -
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement on Form S-3 of Tyco International Ltd. (formerly named
ADT Limited) of our report dated March 26, 1997, on our audits of the
consolidated financial statements and consolidated financial statement schedules
of ADT Limited as at December 31, 1996 and 1995, and for the years ended
December 31, 1996, 1995 and 1994, which report is included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1996, and of our
report dated July 10, 1997, on our examination of the combination of the
historical consolidated financial statements and consolidated financial
statement schedule of ADT Limited and Tyco International Ltd. (prior to the
merger) after restatement for the pooling of interests as described in Note 1 to
the supplemental consolidated financial statements, which report is included in
the Company's Current Report on Form 8-K dated July 10, 1997. We also consent to
the reference to our firm under the caption "Experts."
COOPERS & LYBRAND
Hamilton, Bermuda
August 21, 1997
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Amendment No. 1 to
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, which reports are included in the Company's
Annual Report on Form 10-K for the year ended June 30, 1996 and of our report
dated July 10, 1997 which is included in the Company's current report on Form
8-K on our audits of the consolidated financial statements and the consolidated
financial statement schedule of Tyco International Ltd. as of December 31, 1996
and June 30, 1995 and for the years ended December 31, 1996, June 30, 1995 and
June 30, 1994 (not presented separately therein). We also consent to the
reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
August 21, 1997
