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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(AMENDMENT NO. 5)
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
sentence to the end of the eighth full paragraph under "Certain Litigation":
This motion has been fully briefed and awaits a decision of the Court.
The response to Item 8 is hereby amended by replacing the last sentence
of the tenth full paragraph under "Certain Litigation" with the following:
On April 7, 1997, the Company and the Board filed an opposition to WCI's
motion for a preliminary injunction.
The response to Item 8 is hereby amended by adding the following after
the final paragraph of the prior response to Item 8:
Demand for Western Stockholder List
On March 28, 1997, ADT Investments, Inc. ("ADT Investments"), a wholly
owned subsidiary of ADT and a record holder of Western common stock, served a
demand on Western, pursuant to Section 17-6510 of the Kansas General
Corporation Code, that Western provide ADT Investments with, among other
things, a complete record or list of stockholders of Western as of the record
date for determining stockholders entitled to vote (the "Record Date") at the
special meeting of Western's stockholders then scheduled for April 24, 1997 or
as of a recent date if a Record Date list was not available.
By letter dated April 4, 1997, Western responded to ADT Investments'
request, stating that Western no longer planned to hold a special stockholders
meeting on April 24, 1997, but rather planned to hold the meeting on June 17,
1997, and that no record date had yet been set for the June 17, 1997 meeting.
Western stated that, in its view, ADT Investments' demand for a list of
stockholders was therefore moot.
ADT Investments responded to Western, by letter dated April 4, 1997,
that its demand had not been mooted by the change of meeting date since (i) at
the time the demand was delivered, there was a special meeting scheduled for
April 24 and the "as of" date did not depend upon whether that meeting was
actually held and (ii) even if a Record Date list was unavailable because
Western had canceled the April 24 meeting, Western was still obligated to
permit the requested inspection of the stockholder list and other records as
of a recent date. ADT Investments' response requested compliance with its
demand by noon on Monday, April 7, 1997.
By letter dated April 7, 1997, Western reiterated its position that ADT
Investments' demand for a list of stockholders was, in its view, moot until a
record date for the rescheduled June 17, 1997 special meeting of stockholders
has been set.
ADT Investments is pursuing its remedies under Section 17-6510 of the
Kansas General Corporation Code, including, on Tuesday, April 8, 1997, filing
a petition in the District Court of Shawnee County, Kansas for a summary order
to compel Western to comply with ADT Investments' demand.
Item 9. Material to be Filed as Exhibits.
The response to Item 9 is hereby amended by adding the following new
exhibits:
Exhibit 99.41 ADT Investments, Inc.'s demand for Western Resources,
Inc.'s stockholder list dated March 28, 1997.
Exhibit 99.42 Letter dated April 4, 1997 from Western Resources, Inc.
to Blackwell Sanders Matheny Weary & Lombardi L.C.
Exhibit 99.43 Letter dated April 4, 1997 from Blackwell Sanders
Matheny Weary & Lombardi L.C. to Western Resources, Inc.
Exhibit 99.44 Letter dated April 7, 1997 from Western Resources, Inc.
to Blackwell Sanders Matheny Weary & Lombardi L.C.
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: April 8, 1997
EXHIBIT 99.41
ADT INVESTMENTS, INC.
March 28, 1997
Western Resources, Inc.
818 Kansas Avenue
Topeka, KS 66612
Attention: J.K. Rosenberg
Executive Vice President
and General Counsel
Re: Demand for Stockholder List
Dear Sir:
The undersigned, ADT Investments, Inc., a record holder of
shares of common stock, par value $5.00 per share (the "Common Stock"), of
Western Resources, Inc., a Kansas corporation (the "Company"), hereby demands,
pursuant to Section 17-6510 of the Kansas General Corporation Code ("KGCC"),
that (1) original or attested copies of the following corporate records be made
immediately available for inspection and copying by the undersigned or its
attorneys or agents at the Company's principal place of business during usual
business hours and in no case later than 5:00 p.m. on April 4, 1997, and from
day to day thereafter during usual business hours until the inspection may be
completed, or (2) the Company deliver copies of such records to Gary Gilson at
the offices of Blackwell Sanders Matheny Weary & Lombardi L.C. located at 2300
Main Street, Kansas City, Missouri 64108, to be updated from time to time
thereafter as set forth below:
Pursuant to Section 17-6510 of the KGCC, the undersigned is
entitled to and demands as part of the foregoing inspection:
1. A complete record or list of stockholders of the Company
certified by its transfer agent showing the name and
address of each stockholder and the number of shares of
stock registered in the name of each stockholder as of
the record date for determining stockholders entitled to
vote (the "Record Date") at the special meeting of the
Company's stockholders now scheduled for April 24, 1997
(the "Special Meeting") or as of a recent date if a
Record Date list is unavailable.
2. A magnetic computer tape list of the stockholders of the
Company as of the date of the list described in
paragraph 1 above, showing the name and address of and
the number of shares held by each stockholder and such
computer processing data as is necessary to make use
of such magnetic computer tape, including, without
limitation, a record layout and a computer printout of
such magnetic computer tape list for verification
purposes.
3. All information in or which comes into the possession or
control of the Company or its transfer agent, proxy
solicitor or other agents, or which can be reasonably
obtained from nominees of any central certificate
depository system, broker, dealer, bank, clearing agency
or voting trustee or any other nominees concerning the
number and identity of the actual beneficial owners of
the Company's Common Stock, including a breakdown of any
holders in the name of Cede & Co. and any other similar
securities depository or nominee.
4. All information in or which comes into the possession or
control of the Company or its transfer agent, proxy
solicitor or other agents concerning the name, address
and number of shares of Common Stock attributable to any
beneficial owner or employee of the Company entitled to
direct the voting of any Company Common Stock pursuant
to any dividend reinvestment, employee stock ownership,
incentive, profit sharing, savings, retirement, stock
option, stock purchase, restricted stock or other
comparable plan and a copy of the material request form
from ADP-Proxy Services. All information in or which
comes into the possession or control of the Company or
its transfer agent, proxy solicitor or other agents
concerning the mechanism by which the beneficial owners
or employees of the Company direct the voting of the
shares of Common Stock of the Company pursuant to the
plans referred to in this paragraph 4.
5. All information in or which comes into the possession or
control of the Company or its transfer agent, proxy
solicitor or other agents, or which can reasonably be
obtained from brokers, dealers, banks, clearing agencies
or voting trustees or their nominees or other nominees
relating to the names of non-objecting beneficial owners
of the Company's Common Stock in the format of a
magnetic computer tape list and printout in descending
order balance (such information being readily available
to the Company under Rule 14b-1(b) of the Securities
Exchange Act of 1934 from ADP-Proxy Services), including
(but not limited to) all lists of such beneficial owners
of Common Stock available to the Company pursuant to
Rule 14b-1(b).
The undersigned demands that modifications, additions or
deletions to any and all information referred to in paragraphs 1 through 5
above as of the date of the stockholder list referred to above up to and
through the date of the upcoming special meeting of the Company's stockholders
be immediately furnished to the undersigned as soon as modifications,
additions or deletions become available to the Company or its agents or
representatives.
The undersigned will bear the reasonable costs of the Company
in connection with the production of the requested information.
The purpose of this demand is to permit the undersigned to
communicate with other stockholders of the Company on matters relating to
their interests as stockholders, including communicating with such
stockholders regarding a solicitation of proxies in connection with the
Special Meeting and furnishing to such stockholders copies of the
undersigned's solicitation materials.
This demand should receive your immediate attention so that all
of your stockholders will have the benefit of information concerning the
solicitation made by the undersigned as promptly as possible.
The undersigned hereby designates and authorizes Blackwell
Sanders Matheny Weary & Lombardi L.C. and D.F. King & Co. Inc., their partners,
employees, and any person designated by them to receive, as its agents, the
information herein requested. A power of attorney is enclosed herewith.
Please advise Gary D. Gilson promptly at (816) 274-6998, and in
any event on or prior to the expiration of five business days after the date
of this demand, when and where the items demanded above will be made available
to the undersigned and its designated agents. If the Company has not
contacted Mr. Gilson by such date, we will assume that it does not intend to
comply with our demand for the information outlined above and we intend to
pursue an appropriate recourse to obtain such information.
Please sign and date a copy of this letter to indicate your
receipt hereof and return it to the undersigned.
Very truly yours,
ADT INVESTMENTS, INC.
By: /s/ Nicole V. Gersch
--------------------------------------
Nicole V. Gersch
Attorney-in-Fact
WESTERN RESOURCES, INC.
By: __________________________
Name:
Title:
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
Nicole V. Gersch, having first been duly sworn, deposes and
says that she is authorized to execute the foregoing demand for a stockholder
list and to make the demand, designations, authorizations and representations
contained therein, and that the facts and statements contained in the
foregoing demand for a stockholder list are true and correct.
/s/ Nicole V. Gersch
-----------------------------
Nicole V. Gersch
SWORN TO AND SUBSCRIBED before me
this 28th day of March, 1997.
Angela L. Ray
- ---------------------------------
Notary Public
EXHIBIT 99.42
[Letterhead of John K. Rosenberg,
Executive Vice President and General Counsel,
Western Resources, Inc.]
April 4, 1997
Mr. Gary Gilson
Blackwell Sanders Matheny Weary & Lombardi L.C.
2300 Main Street
Kansas City, MO 64108
Re: Demand for Stockholder List
Dear Mr. Gilson:
This responds to your "Demand for Stockholder List" delivered
to me on March 28, 1997. In your letter you request information with respect
to shareholders entitled to vote at the Company's April 24, 1997, special
meeting.
Without conceding the adequacy or propriety of your demand, you
should be aware that Western Resources is no longer planning to hold a special
shareholders meeting on April 24, 1997. Current plans are to hold a meeting
on June 17, 1997 and the record date for that meeting has not been set.
In view of the above, your demand for a list of shareholders as
of the record date for an April 24 meeting is moot. If you have any questions
in this regard, please feel free to contact me.
Sincerely,
/s/ John K. Rosenberg
EXHIBIT 99.43
[Letterhead of Blackwell Sanders
Matheny Weary & Lombardi L.C.]
April 4, 1997
John K. Rosenberg
Western Resources, Inc.
818 Kansas Avenue
Topeka, KS 66612
Re: Demand for Stockholder List
Dear Mr. Rosenberg:
We received your letter faxed to Mr. Gary Gilson at 4:49 p.m.
today in which you state that the "demand for a list of shareholders as of the
record date for an April 24 meeting is moot" because "Western Resources is no
longer planning to hold a special shareholders meeting on April 24, 1997."
Your assertion is incorrect for two reasons. First, the Demand
for Stockholder List demands "[a] complete record or list of stockholders of
the Company . . . as of the record date for determining stockholders entitled
to vote the ("Record Date") at the special meeting of the Company's
stockholders now scheduled for April 24, 1997 . . ." The "as of" date does
not depend upon whether the meeting is actually held. At the time the Demand
for Stockholder List was delivered, there was a special meeting scheduled for
April 24. Furthermore, there was a record date for that scheduled meeting,
even though you represent that the meeting has been canceled. Accordingly,
the Demand has not been mooted.
Second, the Demand further states that "if a Record Date list is
unavailable" then the demand is for "[a] complete record or list of
stockholders of the Company . . . as of a recent date." Thus, even if a
Record Date list is unavailable because you have canceled the April 24
meeting, you are still obligated to permit the requested inspection of the
stockholder list and other records "as of . . . a recent date."
Please tell us by noon Monday, April 7, 1997, whether Western
Resources will comply with the Demand or if we must pursue ADT's remedies
under K.S.A. Section 17-6510.
Yours truly,
/s/ Floyd R. Finch, Jr.
-----------------------
Floyd R. Finch, Jr.
EXHIBIT 99.44
[Letterhead of John K. Rosenberg,
Executive Vice President and General Counsel,
Western Resources, Inc.]
April 7, 1997
SENT VIA FAX AND MAILED
Floyd R. Finch, Jr.
Blackwell Sanders Matheny Weary
& Lombardi L.C.
Two Pershing Square, Suite 1100
2300 Main Street
Kansas City, MO 64108
Dear Mr. Finch:
In response to your letter of April 4, 1997, be advised that
Western Resources announced last Friday that the shareowner meeting which had
previously been scheduled for April 24, 1997, and to which your March 28 letter
relates, has been rescheduled to June 17, 1997. You may not have been aware of
that announcement when you sent your April 4 letter. Since your stated purpose
for demanding the Western Resources shareowner list is to communicate with
shareowners regarding "a solicitation of proxies in connection with the Special
Meeting" - a point ignored in your April 4 letter - your request would appear
moot until a record date for the meeting is set. If you renew your request
when the record date is set, we will give it due consideration.
Second, your March 20 request is somewhat incomplete because it
ignores the reality of Western Resources' outstanding exchange offer for your
client's parent company, ADT, Ltd. Under Kansas law, K.S.A. 17-6510 (1996), a
court has the equitable power to impose such limitations and conditions with
reference to an inspection as may be just and proper under the circumstances.
In order for Western Resources to be able to determine whether such
limitations may be appropriate, we need you to explain in any new request for
a shareholder list how the demand relates to your client's status as a Western
Resources shareholder as opposed to an ADT, Ltd. subsidiary.
Sincerely,
/s/ John K. Rosenberg
