<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 23, 1998
FILE NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
TYCO INTERNATIONAL LTD. TYCO INTERNATIONAL GROUP S.A.
(Exact name of registrant as specified (Exact name of registrant as specified
in its charter) in its charter)
BERMUDA LUXEMBOURG
(State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or organization)
NOT APPLICABLE NOT APPLICABLE
(IRS Employer (IRS Employer
Identification No.) Identification No.)
THE GIBBONS BUILDING BOULEVARD ROYAL, 26
10 QUEEN STREET, SUITE 301 SIXTH FLOOR
HAMILTON HM11, BERMUDA L-2449 LUXEMBOURG
(441) 292-8674 (352) 22-9999-5204
(Address, including zip code, and (Address, including zip code, and
telephone number, including telephone number, including
area code, of registrant principal area code, of registrant principal
executive offices) executive offices)
</TABLE>
------------------------
MARK H. SWARTZ
C/O TYCO INTERNATIONAL (US) INC.
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)
*The executive offices of the Registrants' principal U.S. subsidiary, Tyco
International (US) Inc., are located at One Tyco Park, Exeter, New Hampshire
03833, and its telephone number is (603) 778-9700.
------------------------------
COPIES TO:
JOSHUA M. BERMAN, ESQ.
KRAMER, LEVIN, NAFTALIS & FRANKEL
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 715-9100
Approximate date of commencement of proposed sale to the public: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
(CALCULATION OF REGISTRATION FEE ON FOLLOWING PAGE)
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE (1) FEE
<S> <C> <C> <C> <C>
Debt Securities $3,750,000,000(2) 100% $3,750,000,000 $1,106,250(4)
Guarantees (3) (3) (5)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended, and
exclusive of accrued interest, if any.
(2) The aggregate principal amount of the Debt Securities to be issued may be
increased, if any Debt Securities are issued at an original issue discount,
by an amount such that the net proceeds to be received by Tyco International
Group S.A. shall be equal to the above amount to be registered. Any offering
of Debt Securities denominated other than in U.S. dollars will be treated as
the equivalent in U.S. dollars based on the exchange rate applicable to the
purchase of such Debt Securities from Tyco International Group S.A.
(3) No separate consideration will be received for the Guarantees.
(4) The amount of registration fee, calculated in accordance with Section 6(b)
of the Securities Act of 1933, as amended, and Rule 457(o) promulgated
thereunder, is 0.000295 of the maximum aggregate offering price at which the
Debt Securities registered pursuant to this Registration Statement are
proposed to be offered.
(5) Under Rule 457(n), no fee is payable with respect to the Guarantees.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO THE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 23, 1998
PROSPECTUS
$3,750,000,000
----------------
TYCO INTERNATIONAL GROUP S.A.
-------------
DEBT SECURITIES
----------------
FULLY AND UNCONDITIONALLY GUARANTEED BY
TYCO INTERNATIONAL LTD.
------------------
Tyco International Group S.A., a Luxembourg company (the "Company"), may
offer from time to time unsecured debt securities ("Debt Securities") consisting
of debentures, notes and/or other evidences of unsecured indebtedness in one or
more series, at an aggregate initial offering price not to exceed
U.S.$3,750,000,000, or its equivalent if some or all of the Debt Securities are
denominated in one or more foreign currencies, at prices and on terms to be
determined at or prior to the time of sale in light of market conditions at the
time of sale. Debt Securities may be issued in registered form without coupons
("Registered Securities"), bearer form with or without coupons attached ("Bearer
Securities") or in the form of one or more global securities (each a "Global
Security"). Unless otherwise specified in the Prospectus Supplement, all Debt
Securities will be fully and unconditionally guaranteed as to payment of
principal, premium, if any, and interest by Tyco International Ltd. ("Tyco"),
the sole shareholder of the Company. Guarantees of the Debt Securities (the
"Guarantees") by Tyco will constitute unsecured and unsubordinated obligations
of Tyco.
Specific terms of the particular Debt Securities in respect of which this
Prospectus is being delivered will be set forth in one or more accompanying
Prospectus Supplements (each a "Prospectus Supplement"), together with the terms
of the offering of the Debt Securities and the initial price and the net
proceeds to the Company from the sale thereof. The Prospectus Supplement will
set forth with regard to the particular Debt Securities, without limitation, the
following: the specific designation, aggregate principal amount, ranking as
senior debt or subordinated debt, authorized denomination, maturity, rate or
method of calculation of interest and dates for payment thereof, any
exchangeability, conversion, redemption, prepayment or sinking fund provisions,
the currency or currencies or currency unit or currency units in which
principal, premium, if any, or interest is payable, any modification of the
covenants and any other specific terms thereof. The amounts payable by the
Company in respect of Debt Securities may be calculated by reference to the
value, rate or price of one or more specified commodities, currencies or indices
as set forth in the Prospectus Supplement. The Prospectus Supplement will also
contain, where applicable, relevant tax considerations relating to the holders
of Debt Securities covered by the Prospectus Supplement.
The Company may sell Debt Securities offered hereby to or through
underwriters or dealers, and also may sell Debt Securities directly to other
purchasers or through agents. The Prospectus Supplement will also set forth the
names of the underwriters, dealers and agents involved in the sale of the Debt
Securities offered hereby, the principal amounts, if any, to be purchased by the
underwriters or agents and the compensation, if any, of such underwriters or
agents and any applicable commissions or discounts. The net proceeds to the
Company from the sale of the Debt Securities offered hereby will also be set
forth in the Prospectus Supplement.
<PAGE>
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------------------
The date of this Prospectus is , 1998.
<PAGE>
No person has been authorized to give any information or to make any
representation not contained or incorporated by reference in this Prospectus or
the accompanying Prospectus Supplement and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Company, Tyco or any underwriter, dealer or agent. Neither the delivery of this
Prospectus or the accompanying Prospectus Supplement nor any sale made hereunder
or thereunder shall, under any circumstances, create an implication that the
information contained herein or in the accompanying Prospectus Supplement is
correct as of any date subsequent to the date hereof or thereof or that there
has been no change in the affairs of the Company or Tyco since the date hereof
or thereof. Neither this Prospectus nor the accompanying Prospectus Supplement
constitutes an offer to sell or a solicitation of an offer to buy Debt
Securities in any jurisdiction in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make such offer or
solicitation.
AVAILABLE INFORMATION
Tyco 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
Tyco with the Commission may be accessed electronically on the Web at
http://www.sec.gov. Such material may also be inspected at the offices of the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, where
Tyco's common shares, par value U.S.$0.20 per share ("Common Shares"), are
listed.
This Prospectus constitutes part of a Registration Statement on Form S-3
filed by the Company and Tyco (together with all amendments, schedules and
exhibits thereto, the "Registration Statement") 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.
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 Tyco with the Commission
pursuant to the Exchange Act, are hereby incorporated by reference in this
Prospectus:
1. Tyco's Transition Report on Form 10-K for the fiscal year ended
September 30, 1997.
2. Tyco's Transition Report on Form 10-K/A for the fiscal year ended
September 30, 1997.
3. Tyco's Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 1997.
4. Tyco's Current Report on Form 8-K filed on March 6, 1998.
5. Tyco's Current Report on Form 8-K filed on March 11, 1998.
6. Tyco's Current Report on Form 8-K filed on April 23, 1998.
2
<PAGE>
All documents filed by Tyco with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of Debt Securities made hereby
shall be deemed to be incorporated by reference into this Prospectus from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or 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.
Tyco and the Company will provide without charge to each person to whom a
copy of this Prospectus is delivered, including any beneficial owner of Debt
Securities, upon 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 J. Brad McGee, Senior Vice President, Tyco International
(US) Inc., One Tyco Park, Exeter, New Hampshire 03833 (telephone: (603)
778-9700).
TYCO INTERNATIONAL LTD.
Tyco International Ltd., a Bermuda company ("Tyco"), through its
subsidiaries, is a diversified manufacturing and service company that, operates
in four segments: (i) the design, manufacture and distribution of disposable
medical supplies and other specialty products, and the conduct of vehicle
auctions and related services; (ii) the design, manufacture, installation and
service of fire detection and suppression systems, and the installation,
monitoring and maintenance of electronic security systems; (iii) the design,
manufacture and distribution of flow control products; and (iv) the design,
manufacture and distribution of electrical and electronic components, and the
design, manufacture, installation and service of undersea cable communication
systems.
Tyco's strategy is to be the 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.
On July 2, 1997, Tyco International Ltd., a Massachusetts corporation
("Former Tyco"), merged with a subsidiary of Tyco, with Tyco being the
continuing public company. In connection with the merger, Tyco changed its name
from ADT Limited ("ADT") to Tyco International Ltd.
Tyco's registered and principal executive offices are located at The Gibbons
Building, 10 Queen Street, Hamilton HM11, Bermuda, and its telephone number is
(441) 292-8674. The executive offices of Tyco's principal United States
subsidiary, Tyco International (US) Inc., are located at One Tyco Park, Exeter,
New Hampshire 03833, and its telephone number is (603) 778-9700.
THE COMPANY
Tyco International Group S.A. (the "Company"), a Luxembourg company, is a
direct wholly-owned subsidiary of Tyco. The registered and principal executive
offices of the Company are located at Boulevard Royal, 26, Sixth Floor, L-2449
Luxembourg and its telephone number is (352) 22-9999-5204. Through its
subsidiaries, the Company owns substantially all of the assets, and engages in
substantially all of the businesses, owned or engaged in by Tyco.
3
<PAGE>
CURRENT DEVELOPMENTS
In March 1998, Tyco sold 25.3 million Common Shares in a public offering at
$50.75 per share. The net proceeds from the sale were used to repay indebtedness
incurred for previous acquisitions. On April 20, 1998, Tyco announced that a
definitive agreement was signed by a subsidiary of Tyco to acquire the Wells
Fargo Alarm business of Borg-Warner Security Corporation for $425 million in
cash.
Tyco and its subsidiaries review 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. There can be no
assurance that any of such acquisitions will be consummated.
TYCO'S RESULTS FOR THE SECOND QUARTER AND SIX MONTHS ENDED MARCH 31, 1998
On April 21, 1998, Tyco announced results of operations for the second
quarter (the "fiscal 1998 second quarter") and the six months ended March 31,
1998. These results, which are presented below, include the Security operations
of ADT Limited ("ADT") now Tyco, Keystone International, Inc. ("Keystone"), and
INBRAND Corporation ("INBRAND"). The merger transactions involving these
entities occurred in fiscal 1997 and were accounted for as a pooling of
interests. Accordingly, the results reflect the operations of ADT, Keystone and
INBRAND for all periods presented, except for the periods prior to January 1,
1997 which do not include INBRAND due to immateriality.
Diluted earnings per share before extraordinary items increased 66% to $0.48
per share for the fiscal 1998 second quarter, compared to $0.29 for the quarter
ended March 31, 1997. Income before extraordinary items increased 88% to $276.2
million in the fiscal 1998 second quarter, compared to $147.3 million in the
quarter ended March 31, 1997. Sales increased 22% to $2.85 billion in the fiscal
1998 second quarter from $2.33 billion in the quarter ended March 31, 1997.
In September 1997, Tyco changed its fiscal year end from December 31 to
September 30. In the discussion below, the results of operations for fiscal 1998
compares the second quarter and six months ended March 31, 1998 with the
corresponding quarter and six months ended March 31, 1997.
The following segment discussion is before non-recurring charges and
extraordinary items. Earnings of Tyco's Disposable and Specialty Products group
increased 35% to $149.4 million in the fiscal 1998 second quarter compared to
$110.7 million in the quarter ended March 31, 1997. Results for the fiscal 1998
second quarter reflect lower costs and an expanded base of product offerings and
include the operations of Sherwood--Davis & Geck since the date of its
acquisition by Tyco in February 1998. Earnings of Tyco's Fire and Security
Services group increased 41% to $149.8 million in the fiscal 1998 second quarter
compared to $106.0 million in the quarter ended March 31, 1997. Results for this
group reflect increased sales and higher operating margins. Earnings of Tyco's
Flow Control group increased 25% to $73.4 million in the fiscal 1998 second
quarter compared to $58.5 million in the quarter ended March 31, 1997. Increased
sales volume in this group was partially offset by the effect of foreign
currency fluctuations. Earnings of Tyco's Electrical and Electronic Components
group were $92.5 million for the fiscal 1998 second quarter, compared to $28.8
million in the quarter ended March 31, 1997. Results for this group for the
fiscal 1998 second quarter include the operations of Tyco Submarine Systems
Ltd., which was acquired from AT&T Corp. in July 1997, and also reflect earnings
increases in Tyco's Printed Circuit Group. The earnings of Tyco's four business
groups are stated herein before deduction for general corporate expenses,
interest expense and taxes.
4
<PAGE>
The following table sets forth the summary results of operations of Tyco for
the three- and six-month periods ended March 31, 1998 compared to the three- and
six-month periods ended March 31, 1997.
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
MARCH 31, MARCH 31,
-------------------- --------------------
1998 1997 1998 1997
--------- --------- --------- ---------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Sales................................................. $ 2,852.0 $ 2,332.9 $ 5,539.5 $ 4,564.9
--------- --------- --------- ---------
--------- --------- --------- ---------
Income before income taxes and extraordinary items.... 406.5 234.4 765.9 333.0
Income taxes.......................................... (130.3) (87.1) (248.9) (117.6)
--------- --------- --------- ---------
Income before extraordinary items..................... $ 276.2 $ 147.3 $ 517.0 $ 215.4
--------- --------- --------- ---------
--------- --------- --------- ---------
Earnings per share before extraordinary items (1):
Basic............................................... $ 0.49 $ 0.29 $ 0.94 $ 0.44
Diluted............................................. $ 0.48 $ 0.29 $ 0.91 $ 0.43
Common equivalent shares:
Basic............................................... 560.1 499.5 552.6 489.6
Diluted............................................. 579.9 529.1 574.1 518.7
</TABLE>
- ------------------------
(1) Earnings per share based on diluted shares assumes conversion of LYONs
notes. Accordingly, net interest expense of $2.1 million and $4.3 million in
the three months and six months, respectively, ended March 31, 1998 and $3.5
million and $6.8 million in the three months and six months, respectively,
ended March 31, 1997 must be added back to income before extraordinary items
in order to compute diluted earnings per share.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities to
refinance, in part, existing indebtedness, to finance recently announced
acquisitions and for general corporate purposes. Funds not required immediately
for such purposes may be invested temporarily in short-term marketable
securities.
RATIO OF EARNINGS TO FIXED CHARGES OF TYCO
The following table sets forth the ratio of earnings to fixed charges for
Tyco for the three months ended December 31, 1997, the nine month transitional
fiscal year ended September 30, 1997, and the years ended December 31, 1996,
1995, 1994 and 1993.
<TABLE>
<CAPTION>
THREE MONTHS FISCAL YEAR YEAR ENDED DECEMBER
ENDED ENDED 31,
DECEMBER SEPTEMBER 30, ----------------------
31, 1997 1997(3) 1996 1995
----------------- ------------------- ----- ---------
<S> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)(2)........................ 6.37 (4) (4) 3.00
<CAPTION>
1994 1993
--------- ---------
<S> <C> <C>
Ratio of earnings to fixed charges(1)(2)........................ 3.33 2.76
</TABLE>
- ------------------------
(1) For purposes of determining the ratio of earnings to fixed charges, earnings
consist of income (loss) before income taxes, cumulative effect of change in
accounting methods and extraordinary items, and fixed charges. Fixed charges
consist of interest on indebtedness, amortization of debt expenses and
one-third of rent expense which is deemed representative of an interest
factor.
(2) On July 2, 1997, a wholly-owned subsidiary of Tyco merged with Former Tyco.
On August 27, 1997, Tyco consummated a merger with INBRAND, and, on August
29, 1997, Tyco consummated a merger with Keystone. Each of the three merger
transactions qualifies for pooling of interests basis of accounting. As
such, the ratio of earnings to fixed charges for the nine months ended
September 30, 1997 and the years ended December 31, 1996, 1995, 1994 and
1993 include the effect of the mergers,
5
<PAGE>
except that the calculation presented above for periods prior to January 1,
1997 does not include INBRAND due to immateriality.
Prior to the respective mergers, ADT and Keystone had calendar year ends and
Former Tyco had a June 30 fiscal year end. The historical results upon which
the ratios are based have been combined using a calendar year end for ADT,
Keystone and Former Tyco for the year ended December 31, 1996. For 1995,
1994, and 1993, the ratio of earnings to fixed charges reflects the
combination of ADT and Keystone with a calendar year end and Former Tyco
with a June 30 fiscal year end.
(3) In September 1997, Tyco changed its fiscal year end from December 31 to
September 30. The fiscal year ended September 30, 1997 represents the nine
month period ended September 30, 1997.
(4) Earnings were insufficient to cover fixed charges by $589.7 million and
$61.2 million in 1997 and 1996, respectively.
Earnings for the nine months ended September 30, 1997 and the year ended
December 31, 1996 included merger, restructuring and other nonrecurring
charges of $917.8 million and $246.1 million, respectively. Earnings also
include a charge for the impairment of long-lived assets of $148.4 million
and $744.7 million, respectively in the 1997 and 1996 periods. The 1997
period also includes a write off of purchased in-process research and
development of $361.0 million.
On a pro forma basis the ratio of earnings to fixed charges excluding merger,
restructuring and other nonrecurring charges, charge for the impairment of
long-lived assets and write off of purchased in-process research and
development would have been 5.44x and 4.68x for the nine months ended
September 30, 1997 and year ended December 31, 1996, respectively.
6
<PAGE>
DESCRIPTION OF THE DEBT SECURITIES AND THE GUARANTEES
The Debt Securities and the Guarantees offered hereby will be issued under
an indenture (hereinafter the "Indenture"), among the Company, Tyco and the
trustee thereunder (hereinafter referred to as the "Trustee"). The following
statements are subject to the detailed provisions of the Indenture, a copy of
which is filed as an exhibit to this Registration Statement. The Indenture is
subject to, and governed by, the Trust Indenture Act of 1939, as amended. The
statements made hereunder relating to the Indenture and the Debt Securities and
the Guarantees to be issued thereunder are summaries of certain provisions
thereof, do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all provisions of the Indenture and such Debt
Securities and Guarantees. Capitalized terms used but not defined herein shall
have the respective meanings set forth in the Indenture.
The particular terms of the Debt Securities and the Guarantees offered by a
Prospectus Supplement will be described in such Prospectus Supplement, along
with any applicable modifications of or additions to the general terms of the
Debt Securities and the Guarantees as described herein and in the Indenture or
in any supplemental indenture thereto and any applicable material federal income
tax considerations. Accordingly, for a description of the terms of any series of
Debt Securities and Guarantees, reference must be made to both the Prospectus
Supplement relating thereto and the description of the Debt Securities and the
Guarantees set forth in this Prospectus.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that the Debt Securities
may be issued from time to time in one or more series unless otherwise provided
in any supplemental indenture and the applicable Prospectus Supplement.
Unless otherwise provided in any supplemental indenture and specified in the
applicable Prospectus Supplement, Debt Securities offered pursuant to this
Prospectus will be direct, unsecured and unsubordinated obligations of the
Company and will rank equally with other unsecured and unsubordinated
obligations of the Company for money borrowed. The Debt Securities will be
effectively subordinated to all existing and future indebtedness and other
liabilities of the Company's subsidiaries. The Debt Securities will be fully and
unconditionally guaranteed by Tyco. Except as described under "Certain
Covenants" and as may be provided in any supplemental indenture and set forth in
the applicable Prospectus Supplement, the Indenture does not limit other
indebtedness or securities which may be incurred or issued by the Company or any
of its subsidiaries or contain financial or similar restrictions on the Company
or any of its subsidiaries. Except as may be provided in any supplemental
indenture and set forth in the applicable Prospectus Supplement, the Company's
rights and the rights of its creditors, including holders of Debt Securities, to
participate in any distribution of assets of any subsidiary upon the latter's
liquidation or reorganization or otherwise will be effectively subordinated to
the claims of the subsidiary's creditors, except to the extent that the Company
or any of its creditors may itself be a creditor of that subsidiary.
A Prospectus Supplement will set forth where applicable the following terms
of and information relating to the Debt Securities offered pursuant to this
Prospectus: (i) the designation of the Debt Securities; (ii) the aggregate
principal amount of the Debt Securities; (iii) the date or dates on which
principal of, and premium, if any, on the Debt Securities is payable; (iv) the
rate or rates at which the Debt Securities shall bear interest, if any, or the
method by which such rate shall be determined, the date or dates from which
interest will accrue and on which such interest will be payable and the related
record dates; (v) if other than the offices of the Trustee, the place where the
principal of and any premium or interest on the Debt Securities will be payable;
(vi) any redemption, repayment or sinking fund provisions; (vii) if other than
denominations of $1,000 or multiples thereof, the denominations in which the
Debt Securities will be issuable; (viii) if other than the principal amount
thereof, the portion of the principal amount due upon acceleration; (ix) whether
the Debt Securities shall be issued in the form of a global
7
<PAGE>
security or securities; (x) any other specific terms of the Debt Securities
(which may, for example, include the currency, and any index used to determine
the amount, of payment of principal of and any premium and interest on the Debt
Securities); and (xi) if other than the Trustee, the identity of any trustees,
paying agents, transfer agents or registrars with respect to the Debt
Securities.
Unless otherwise provided in any supplemental indenture and specified in the
applicable Prospectus Supplement, Debt Securities offered pursuant to this
Prospectus will be issued either in certificated, fully registered form, without
coupons, or as global notes under a book-entry system.
Upon receipt of an authentication order from the Company together with any
other documentation required by the Indenture or any supplemental indenture
thereto, the Trustee will authenticate Debt Securities in the appropriate form
and for the amount specified in the applicable Prospectus Supplement and the
supplemental indenture relating thereto.
Unless otherwise provided in any supplemental indenture and specified in the
applicable Prospectus Supplement, principal and premium, if any, will be
payable, and the Debt Securities offered pursuant to this Prospectus will be
transferable and exchangeable without any service charge, at the office of the
Trustee. However, the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with any such
transfer or exchange.
Interest, if any, on any series of Debt Securities offered pursuant to this
Prospectus will be payable on the interest payment dates set forth in the
accompanying Prospectus Supplement to the persons described in the accompanying
Prospectus Supplement.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, there are no covenants or provisions contained
in the Indenture which afford the holders of Debt Securities offered pursuant to
this Prospectus protection in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar transaction involving the
Company. The consummation of any highly leveraged transaction, reorganization,
restructuring, merger or similar transaction could cause a material decline in
the credit quality of the outstanding Debt Securities.
GUARANTEES
Tyco will unconditionally guarantee the due and punctual payment of the
principal of, premium, if any, and interest and any Additional Amounts (as
defined below under "Payment of Additional Amounts"), if any, on the Debt
Securities when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise. The Guarantees are unsecured and
unsubordinated obligations of Tyco and will rank equally with all other
unsecured and unsubordinated obligations of Tyco. The Guarantees provide that in
the event of a default in payment of principal, premium, if any, or interest on
a Debt Security, the holder of the Debt Security may institute legal proceedings
directly against Tyco to enforce the Guarantees without first proceeding against
the Company. In addition, under certain circumstances described under "Certain
Covenants--Limitation on Indebtedness of Subsidiaries," subsidiaries of the
Company (collectively with Tyco, the "Guarantors") may execute and deliver
additional Guarantees.
The obligations of Tyco and any other Guarantor, if any, under their
respective Guarantees are limited to the maximum amount which, after giving
effect to any collections from or payments made by or on behalf of any other
Guarantors in respect of the obligations of such other Guarantors under their
respective Guarantees or pursuant to their contribution obligations under the
Indenture, will result in the obligations of such Guarantors under their
Guarantees not constituting a fraudulent conveyance or fraudulent transfer under
applicable law. Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor to the
extent permitted by applicable law.
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REDEMPTION UPON CHANGES IN WITHHOLDING TAXES
The Debt Securities of any series may be redeemed, as a whole but not in
part, at the election of the Company, upon not less than 30 nor more than 60
days notice (which notice shall be irrevocable), at a redemption price equal to
100% of the principal amount thereof, together with accrued interest, if any, to
the redemption date and Additional Amounts, if any, if as a result of any
amendment to, or change in, the laws or regulations of Luxembourg or any
political subdivision or taxing authority thereof or therein having power to tax
(a "Taxing Authority"), or any change in the application or official
interpretation of such laws or regulations which amendment or change becomes
effective after the date the applicable Debt Securities are issued, the Company
has become or will become obligated to pay Additional Amounts, on the next date
on which any amount would be payable with respect to the Debt Securities of such
series, and such obligation cannot be avoided by the use of reasonable measures
available to the Company; PROVIDED, HOWEVER, that (a) no such notice of
redemption may be given earlier than 60 days prior to the earliest date on which
the Company would be obligated to pay such Additional Amounts, and (b) at the
time such notice of redemption is given, such obligation to pay such Additional
Amounts remains in effect. Prior to the giving of any notice of redemption
described in this paragraph, the Company shall deliver to the Trustee (i) a
certificate signed by two directors of the Company stating that the obligation
to pay Additional Amounts cannot be avoided by the Company taking reasonable
measures available to it and (ii) a written opinion of independent legal counsel
to the Company of recognized standing to the effect that the Company has or will
become obligated to pay Additional Amounts as a result of a change, amendment,
official interpretation or application described above and that the Company
cannot avoid the payment of such Additional Amounts by taking reasonable
measures available to it.
PAYMENT OF ADDITIONAL AMOUNTS
All payments made by the Company and Tyco under or with respect to the Debt
Securities and the Guarantees will be made free and clear of and without
withholding or deduction for or on account of any present or future taxes,
duties, levies, imposts, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of any Taxing Authority ("Taxes"), unless the
Company or Tyco, as the case may be, is required to withhold or deduct Taxes by
law or by the interpretation or administration thereof. In the event that the
Company or Tyco is required to so withhold or deduct any amount for or on
account of any Taxes from any payment made under or with respect to the Debt
Securities or the Guarantees, as the case may be, the Company or Tyco, as the
case may be, will pay such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by each holder of Debt Securities
(including Additional Amounts) after such withholding or deduction will equal
the amount that such holder would have received if such Taxes had not been
required to be withheld or deducted; provided that no Additional Amounts will be
payable with respect to a payment made to a holder of Debt Securities to the
extent:
(a) that any such Taxes would not have been so imposed but for the
existence of any present or former connection between such holder and the
Taxing Authority imposing such Taxes (other than the mere receipt of such
payment, acquisition, ownership or disposition of such Debt Securities or
the exercise or enforcement of rights under such Debt Securities, the
Guarantees or the Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or personal
property Taxes imposed with respect to such Debt Securities, except as
otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the
presentation of such Debt Securities (where presentation is required) for
payment on a date more than 30 days after the date on which such payment
became due and payable or the date on which payment thereof is duly provided
for, whichever is later, except to the extent that the beneficiary or holder
thereof would have been entitled to Additional Amounts had the Debt
Securities been presented for payment on any date during such 30-day period;
or
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(d) that such holder would not be liable or subject to such withholding
or deduction of Taxes but for the failure to make a valid declaration of
non-residence or other similar claim for exemption, if (x) the making of
such declaration or claim is required or imposed by statute, treaty,
regulation, ruling or administrative practice of the relevant Taxing
Authority as a precondition to an exemption from, or reduction in, the
relevant Taxes, and (y) at least 60 days prior to the first payment date
with respect to which the Company or Tyco shall apply this clause (d), the
Company or Tyco shall have notified all holders of Debt Securities in
writing that they shall be required to provide such declaration or claim.
The Company and Tyco, as applicable, will also (i) make such withholding or
deduction of Taxes and (ii) remit the full amount of Taxes so deducted or
withheld to the relevant Taxing Authority in accordance with all applicable
laws. The Company and Tyco, as applicable, will use their reasonable best
efforts to obtain certified copies of tax receipts evidencing the payment of any
Taxes so deducted or withheld from each Taxing Authority imposing such Taxes.
The Company or Tyco, as the case may be, will, upon request, make available to
the holders of the Debt Securities, within 60 days after the date the payment of
any Taxes so deducted or withheld is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by the Company or Tyco or if,
notwithstanding the Company's or Tyco's efforts to obtain such receipts, the
same are not obtainable, other evidence of such payments by the Company or Tyco.
At least 30 days prior to each date on which any payment under or with
respect to the Debt Securities is due and payable, if the Company or Tyco will
be obligated to pay Additional Amounts with respect to such payment, the Company
or Tyco will deliver to the Trustee an officer's certificate stating the fact
that such Additional Amounts will be payable, the amounts so payable and will
set forth such other information as is necessary to enable such Trustee to pay
such Additional Amounts to holders of Debt Securities on the payment date.
The foregoing provisions shall survive any termination of the discharge of
the Indenture and shall apply mutatis mutandis to any jurisdiction in which any
successor Person to the Company or Tyco, as the case may be, is organized or is
engaged in business for tax purposes or any political subdivisions or taxing
authority or agency thereof or therein.
In addition, the Company will pay any stamp, issue, registration,
documentary or other similar taxes and duties, including interest, penalties and
additional amounts with respect thereto, payable in Luxembourg or the United
States or any political subdivision or taxing authority of or in the foregoing
in respect of the creation, issue, offering, enforcement, redemption or
retirement of the Debt Securities.
Whenever in the Indenture, the Debt Securities, in the "Description of the
Notes and the Guarantees" in any Prospectus Supplement or in this "Description
of the Debt Securities and the Guarantees" there is mentioned, in any context,
the payment of principal (and premium, if any), redemption price, interest or
any other amount payable under or with respect to any Debt Security, such
mention shall be deemed to include mention of the payment of Additional Amounts
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
BOOK-ENTRY SYSTEM
If so specified in the applicable Prospectus Supplement, Debt Securities of
any series offered pursuant to this Prospectus may be issued under a book-entry
system in the form of one or more global securities ("Global Securities"). Each
Global Security will be deposited with, or on behalf of, a depositary, which,
unless otherwise specified in the accompanying Prospectus Supplement, will be
The Depository Trust Company, New York, New York (the "Depositary"). The Global
Securities will be registered in the name of the Depositary or its nominee. The
specific terms of the depositary arrangement with respect to any series of Debt
Securities, or portion thereof, to be represented by a Global Security will be
provided in the supplemental indenture relating thereto and described in the
applicable Prospectus Supplement.
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The Depositary has advised the Company as follows: the Depositary is a
limited purpose trust company organized under the laws of the State of New York,
a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. The
Depositary was created to hold securities of Persons who have accounts with the
Depositary ("participants") and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of certificates. The Depositary's
participants include securities brokers and dealers, banks, trust companies and
clearing corporations, and may include certain other organizations. Indirect
access to the Depositary's book-entry system is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly.
Upon the issuance of a Global Security, the Depositary or its nominee will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of participants. The accounts to be credited will be designated by
the underwriters or agents, if any, or by the Company, if such Debt Securities
are offered and sold directly by the Company. Ownership of beneficial interests
in the Global Security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests by
participants in the Global Security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in the Global Security by persons that hold through participants will
be shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to transfer beneficial interests in a Global
Security.
So long as the Depositary or its nominee is the registered owner of a Global
Security, it will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture. Except
as set forth below, owners of beneficial interests in such Global Security will
not be entitled to have the Debt Securities represented thereby registered in
their names, will not receive or be entitled to receive physical delivery of
certificates representing the Debt Securities and will not be considered the
owners or holders thereof under the Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities represented by a Global Security will be made to the Depositary or
its nominee, as the case may be, as the registered owner or the holder of the
Global Security. None of the Company, the Trustee, any paying agent or registrar
for such Debt Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interest in the Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal, premium, if any, or
interest on the payment date thereof in amounts proportionate to their
respective beneficial interests in the principal amount of the Global Security
as shown on the records of the Depositary. The Company expects that payments by
participants to owners of beneficial interests in the Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the account of
customers registered in "street name," and will be the responsibility of such
participants.
A Global Security may not be transferred except as a whole to a nominee or
successor of the Depositary. If the Depositary is at any time unwilling or
unable to continue as depositary and a successor depositary is not appointed by
the Company within ninety days, the Company will issue certificates in
registered form in exchange for the Global Security or securities representing
the Debt Securities. In
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addition, the Company may at any time and in its sole discretion determine not
to have Debt Securities of a series represented by a Global Security and, in
such event, will issue certificates in definitive form in exchange for the
Global Security representing such Debt Securities.
CERTAIN COVENANTS
Other than the covenants described below, any covenants, including any
restrictive covenants, of the Company with respect to any series of Debt
Securities will be provided in a supplemental indenture and described in the
applicable Prospectus Supplement.
LIMITATIONS ON LIENS. The Company covenants that, so long as any Debt
Securities remain outstanding (but subject to defeasance, as provided in the
Indenture), it will not, and will not permit any Restricted Subsidiary (as
defined below) to, issue, assume or guarantee any Indebtedness (as defined
below) which is secured by a mortgage, pledge, security interest, lien or
encumbrance (each a "lien") upon any Principal Property (as defined below), or
any shares of stock of or Indebtedness issued by any Restricted Subsidiary,
without effectively providing that, for so long as such lien shall continue in
existence with respect to such secured Indebtedness, the Debt Securities
(together with, if the Company shall so determine, any other Indebtedness of the
Company ranking equally with the Debt Securities) shall be equally and ratably
secured with (or at the Company's option prior to) such secured Indebtedness,
except that the foregoing covenant shall not apply to (a) liens existing on the
date of the applicable Debt Securities are issued; (b) liens on the stock,
assets or Indebtedness of a corporation existing at the same time such
corporation becomes a Restricted Subsidiary unless created in contemplation of
such Restricted Subsidiary becoming such; (c) liens on any assets or
Indebtedness of a corporation existing at the time such corporation is merged
into the Company or a Subsidiary or at the time of a purchase, lease or other
acquisition of the assets of a corporation or firm as an entirety or
substantially as an entirety by the Company or a Subsidiary; (d) liens on any
Principal Property existing at the time of acquisition thereof by the Company or
any Restricted Subsidiary, or liens to secure the payment of the purchase price
of such Principal Property, or to secure Indebtedness incurred, assumed or
guaranteed by the Company or a Restricted Subsidiary for the purpose of
financing all or any part of the purchase price of such Principal Property or
improvements or construction thereon, which Indebtedness is incurred, assumed or
guaranteed prior to, at the time of, or within one year after such acquisition
(or in the case of real property, completion of such improvement or construction
or commencement of full operation of such property, whichever is later); (e)
liens securing Indebtedness owing by any Restricted Subsidiary to the Company,
Tyco or a Subsidiary or by the Company to Tyco; (f) liens in favor of the United
States of America or any State thereof or any other country, or political
subdivision thereof, to secure partial, progress, advance or other payments
pursuant to any contract, statute, rule or regulation or to secure any
Indebtedness incurred or guaranteed for the purpose of financing all or any part
of the purchase price (or, in the case of real property, the cost of
construction or improvement) of the Principal Property subject to such liens
(including but not limited to, liens incurred in connection with pollution
control, industrial revenue or similar financings); (g) pledges, liens or
deposits under worker's compensation or similar legislation, or in connection
with bids, tenders, contracts (other than for the payment of money) or leases to
which the Company or any Restricted Subsidiary is a party, or to secure the
public or statutory obligations of the Company or any Restricted Subsidiary, or
in connection with self-insurance, or to obtain the benefits of any law,
regulation or arrangement pertaining to unemployment insurance, old age
pensions, social security or similar matters, or to secure surety, performance,
appeal or customs bonds to which the Company or any Restricted Subsidiary is a
party, or in litigation or other proceedings in connection with the matters
heretofore referred to in this clause, such as, but not limited to, interpleader
proceedings, and other similar pledges, liens or deposits made or incurred in
the ordinary course of business; (h) certain liens in connection with legal
proceedings, including certain liens arising out of judgments or awards, to the
extent such proceedings are being contested or appealed in good faith, or liens
incurred for the purpose of obtaining a stay or discharge in the course of any
litigation or other proceeding; (i) liens for certain taxes or assessments,
landlord's liens and liens and charges incidental to the conduct of the business
of the Company or any Restricted Subsidiary, or the ownership of
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their assets, which were not incurred in connection with the borrowing of money
or the obtaining of advances or credit and which do not, in the opinion of the
Board of Directors of the Company, materially impair the use of such Principal
Property in the operation of the business of the Company or such Restricted
Subsidiary or the value of such Principal Property for the purposes thereof; (j)
liens to secure the Company's or any Restricted Subsidiary's obligations under
agreements with respect to spot, forward, future and option transactions,
entered into in the ordinary course of business; (k) liens not permitted by the
foregoing clauses (a) to (j), inclusive, if at the time of, and after giving
effect to, the creation or assumption of such lien, the aggregate amount of all
outstanding Indebtedness of the Company and its Restricted Subsidiaries (without
duplication) secured by all liens not so permitted by the foregoing clauses (a)
through (j), inclusive, together with the Attributable Debt (as defined below)
in respect of Sale and Lease-Back Transactions (as defined below) permitted by
paragraph (a) under "Limitation on Sale and Lease-Back Transactions" below does
not exceed the greater of $100,000,000 and 10% of Consolidated Net Worth (as
defined below); and (l) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part, of any lien referred
to in the foregoing clauses (a) to (k), inclusive, except that the principal
amount of Indebtedness secured thereby unless otherwise excepted under clauses
(a) through (k) shall not exceed the principal amount of Indebtedness so secured
at the time of such extension, renewal or replacement and that such extension,
renewal or replacement and shall be limited to all or part of the assets (or any
replacement therefor) which secured the lien so extended, renewed or replaced
(plus improvements and construction on real property).
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. The Company will not, and
will not permit any Subsidiary to, enter into any Sale and Lease-Back
Transaction with respect to a Principal Property unless (a) the Company or such
Restricted Subsidiary would, at the time of entering into a Sale and Lease-Back
Transaction, be entitled to incur Indebtedness secured by a lien on the
Principal Property to be leased in an amount at least equal to the Attributable
Debt in respect of such transaction, without equally and ratably securing the
Debt Securities pursuant to the provisions described under "Limitations on
Liens" above, or (b) the direct or indirect proceeds of the sale of the
Principal Property to be leased are at least equal to their fair value (as
determined by the Company's Board of Directors) and an amount equal to the net
proceeds is applied, within 180 days of the effective date of such transaction,
to the purchase or acquisition (or, in the case of real property, commencement
of the construction) of property or assets or to the retirement (other than at
maturity or pursuant to a mandatory sinking fund or mandatory redemption
provision) of Debt Securities, or of Funded Indebtedness (as defined below) of
the Company that ranks on a parity with the Debt Securities or of Funded
Indebtedness of a consolidated Subsidiary of the Company (subject to credits for
certain voluntary retirement of Funded Indebtedness and certain delivery of Debt
Securities to the Trustee for retirement and cancellation).
LIMITATION ON INDEBTEDNESS OF SUBSIDIARIES. (a) The Company will not cause
or permit any Subsidiary (which is not a Guarantor), directly or indirectly, to
create, incur, assume, guarantee or otherwise in any manner become liable for
the payment of or otherwise incur (collectively, "incur"), any Indebtedness
(including any Acquired Indebtedness but excluding any Permitted Subsidiary
Indebtedness) unless such Subsidiary simultaneously executes and delivers a
supplemental indenture providing for a Guarantee of the Debt Securities.
(b) Notwithstanding the foregoing, any Guarantee by a Subsidiary of the
Debt Securities shall provide by its terms that it (and all liens securing
the same) shall be automatically and unconditionally released and discharged
upon (i) any sale, exchange or transfer, to any Person not an Affiliate of
the Company, of all of the Company's equity interests in, or all or
substantially all the assets of, such Subsidiary, which transaction is in
compliance with the terms of the Indenture and such Subsidiary is released
from all guarantees, if any, by it of other Indebtedness of the Company or
any Subsidiaries, (ii) the payment in full of all obligations under the
Indebtedness giving rise to such Guarantee or (iii) with respect to
Indebtedness described in clause (a) above constituting guarantees, the
release by the holders of such Indebtedness of the guarantee by such
Subsidiary (including any deemed release
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upon payment in full of all obligations under such Indebtedness), at such
time as (A) no other Indebtedness (other than Permitted Subsidiary
Indebtedness) has been guaranteed by such Subsidiary, as the case may be, or
(B) the holders of all such other Indebtedness which is guaranteed by such
Subsidiary also release the guarantee by such Subsidiary (including any
deemed release upon payment in full of all obligations under such
Indebtedness).
(c) For purposes of this covenant, any Acquired Indebtedness shall not
be deemed to have been incurred until 180 days from the date (A) the Person
obligated on such Acquired Indebtedness becomes a Subsidiary or (B) the
acquisition of assets in connection with which such Acquired Indebtedness
was assumed is consummated.
DEFINITIONS. "Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Restricted Subsidiary or (ii) assumed
in connection with the acquisition of assets by such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary or such acquisition, as the case may be.
"Affiliate" means, with respect to any specified Person: (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person; (ii) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Capital
Stock or any officer or director of any such specified Person; or (iii) any
other Person 10% or more of the Voting Stock of which is beneficially owned or
held directly or indirectly by such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Attributable Debt" means in connection with a Sale and Lease-Back
Transaction, as of any particular time, the aggregate of present values
(discounted at a rate per annum equal to the average interest borne by all
outstanding Debt Securities determined on a weighted average basis and
compounded semi-annually) of the obligations of the Company or any Restricted
Subsidiary for net rental payments during the remaining term of the applicable
lease (including any period for which such lease has been extended or may, at
the option of the lessor, be extended). The term "net rental payments" under any
lease of any period shall mean the sum of the rental and other payments required
to be paid in such period by the lessee thereunder, not including, however, any
amounts required to be paid by such lessee (whether or not designated as rental
or additional rental) on account of maintenance and repairs, reconstruction,
insurance, taxes, assessments, water rates or similar charges required to be
paid by such lessee thereunder or any amounts required to be paid by such lessee
thereunder contingent upon the amount of sales, maintenance and repairs,
reconstruction, insurance, taxes, assessments, water rates or similar charges.
"Capital Stock" of any Person means any and all shares, interests,
participations, rights in or other equivalents (however designated) of such
Person's capital stock, other equity interests whether now outstanding or issued
after the date of the Indenture, partnership interests (whether general or
limited), any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person and any rights (other than debt securities convertible into
Capital Stock), warrants or options exchangeable for or convertible into such
Capital Stock.
"Consolidated Net Worth" means, at any date, the total assets less the total
liabilities, in each case appearing on the most recently prepared consolidated
balance sheet of the Company and its subsidiaries as of the end of a fiscal
quarter of the Company, prepared in accordance with United States generally
accepted accounting principles as in effect on the date of calculation.
"Consolidated Tangible Assets" means, at any date, the total assets less all
intangible assets appearing on the most recently prepared consolidated balance
sheet of the Company and its subsidiaries as of the end
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of a fiscal quarter of the Company, prepared in accordance with United States
generally accepted accounting principles as in effect on the date of
calculation. "Intangible Assets" means the amount (if any) which would be stated
under the heading "Costs in Excess of Net Assets of Acquired Companies" or under
any other heading relating to intangible assets separately listed, in each case
on the face of the aforesaid consolidated balance sheet.
"Funded Indebtedness" means any Indebtedness maturing by its terms more than
one year from the date of the determination thereof, including any Indebtedness
renewable or extendible at the option of the obligor to a date later than one
year from the date of the determination thereof.
"Guarantee" means the unconditional and unsubordinated guarantee by Tyco or
any Guarantor of the due and punctual payment of the principal of and interest
on the Debt Securities (including premium and Additional Amounts, if any) when
and as the same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption or otherwise, in accordance with the terms of
such Debt Securities and the Indenture.
"Guarantor" means Tyco or any Subsidiary that after the date of the
Indenture executes a guarantee of the Debt Securities contemplated by the
"Limitation on Indebtedness of Subsidiaries" covenant, until a successor
replaces such party pursuant to the applicable provisions of the Indenture and,
thereafter, shall mean such successor.
"Indebtedness" means, without duplication, the principal or face amount of
(i) all obligations for borrowed money, (ii) all obligations evidenced by
debentures, notes or other similar instruments, (iii) all obligations in respect
of letters of credit or bankers acceptances or similar instruments (or
reimbursement obligations with respect thereto), (iv) all obligations to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (v) all obligations as lessee which
are capitalized in accordance with United States generally accepted accounting
principles, and (vi) all Indebtedness of others guaranteed by the Company or any
of its Subsidiaries or for which the Company or any of its Subsidiaries is
legally responsible or liable (whether by agreement to purchase indebtedness of,
or to supply funds or to invest in, others).
"Permitted Subsidiary Indebtedness" means any of the following: (i)
Indebtedness in an aggregate amount, without duplication, not to exceed, as of
the date of determination, 5% of the Consolidated Tangible Assets of the Company
(excluding any Indebtedness described in clauses (ii) through (viii) herein);
(ii) Indebtedness owed to the Company, Tyco or any Subsidiary; (iii) obligations
under standby letters of credit or similar arrangements supporting the
performance of a Person under a contract or agreement in the ordinary course of
business; (iv) obligations as lessee in the ordinary course of business which
are capitalized in accordance with United States generally accepted accounting
principles; (v) Indebtedness that was Permitted Subsidiary Indebtedness at the
time that it was first incurred; (vi) Acquired Indebtedness that by its terms is
not callable or redeemable prior to its stated maturity and that remains
outstanding following such time as the Subsidiary obligated under such Acquired
Indebtedness in good faith has made or caused to be made an offer to acquire all
such Indebtedness on terms which, in the opinion of an investment bank of
national reputation and standing, are consistent with market practices in
existence at the time for offers of a similar nature, provided that the initial
expiration date of any such offer shall be not later than the expiration of the
time period set forth in paragraph (c) of the "Limitation of Indebtedness of
Subsidiaries" covenant; (vii) Indebtedness outstanding on the date of the
Indenture and (viii) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any Indebtedness
referred to in clause (vii) of this definition of "Permitted Subsidiary
Indebtedness" of a Subsidiary organized under a jurisdiction other than the
United States or any State thereof or the District of Columbia, including any
successive refinancings so long as the borrower under such refinancing is such
Subsidiary and the aggregate principal amount of Indebtedness represented
thereby (or if such Indebtedness provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof, the original issue price of such Indebtedness plus any
accreted value attributable thereto since the original issuance of such
Indebtedness)
15
<PAGE>
is not increased by such refinancing plus the lesser of (A) the stated amount of
any premium or other payment required to be paid in connection with such a
refinancing pursuant to the terms of the Indebtedness being refinanced or (B)
the amount of premium or other payment actually paid at such time to refinance
the Indebtedness, plus, in either case, the amount of expenses of such
Restricted Subsidiary incurred in connection with such refinancing.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal Property" means any manufacturing, processing or assembly plant
or facility or any warehouse or distribution facility which is used by any U.S.
Subsidiary after the date hereof, other than any such plants, facilities,
warehouses or portions thereof, which in the opinion of the Board of Directors
of the Company, are not collectively of material importance to the total
business conducted by the Company and its Restricted Subsidiaries as an
entirety, or which, in each case, has a book value, on the date of the
acquisition or completion of the initial construction thereof by the Company, of
less than 1.5% of Consolidated Tangible Assets.
"Restricted Subsidiary" means any Subsidiary which owns or leases a
Principal Property.
"Sale and Lease-Back Transaction" means an arrangement with any Person
providing for the leasing by the Company or a Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Company or a Restricted Subsidiary to such Person; provided,
however, that the foregoing shall not apply to any such arrangement involving a
lease for a term, including renewal rights, for not more than three years.
"Subsidiary" means any corporation of which at least a majority of the
outstanding securities having voting power under ordinary circumstances for the
election of the board of directors of said corporation shall at the time
directly or indirectly be owned or controlled by the Company or by one or more
Subsidiaries or by the Company and one or more Subsidiaries or by one or more
Subsidiaries.
"Voting Stock" of a Person means Capital Stock of such Person of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
MERGER, CONSOLIDATION, SALE OR CONVEYANCE
The Indenture provides that unless otherwise provided in any supplemental
indenture and described in the applicable Prospectus Supplement, neither the
Company, Tyco nor any other Guarantor will merge or consolidate with any other
corporation and will not sell or convey all or substantially all of its assets
to any person, unless the Company, Tyco or such other Guarantor, as the case may
be, shall be the continuing corporation, or the successor corporation or person
that acquires all or substantially all of the assets of the Company, Tyco or
such other Guarantor, as the case may be, and shall expressly assume the payment
of principal of, premium, if any, and interest on the Debt Securities and the
observance of all the covenants and agreements under the Indenture to be
performed or observed by the Company, Tyco or such other Guarantor, as the case
may be, and immediately after such merger, consolidation, sale or conveyance,
the Company, Tyco or such other Guarantor, as the case may be, such person or
such successor corporation shall not be in default in the performance of the
covenants and agreements of the Indenture to be performed or observed by the
Company, Tyco or such other Guarantor, as the case may be; provided that the
foregoing shall not apply to a Guarantor other than Tyco if in connection with
any such merger, consolidation, sale or conveyance the Guarantee of such
Guarantor is released and discharged pursuant to paragraph (b) of the
"Limitation on Indebtedness of Subsidiaries" covenant.
16
<PAGE>
EVENTS OF DEFAULT
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, an Event of Default with respect to Debt
Securities of any series issued under the Indenture is defined in the Indenture
as being: default for 30 days in payment of any interest upon any Debt
Securities of such series; default in any payment of principal of or premium, if
any, on any Debt Securities of such series (including any sinking fund payment);
default by the Company, Tyco or any other Guarantor in performance of any other
of the covenants or agreements in respect of the Debt Securities of such series
or the Indenture which shall not have been remedied for a period of 90 days
after written notice to the Company by the Trustee or the holders of at least
25% of the principal amount of all Debt Securities of all affected series, as
provided in the supplemental indenture relating thereto and described in the
applicable Prospectus Supplement, specifying that such notice is a "Notice of
Default" under the Indenture; default by the Company, Tyco or any other
Guarantor in the payment at the final maturity thereof, after the expiration of
any applicable grace period, of principal of, premium, if any, or interest on
Indebtedness for money borrowed (other than Non-Recourse Indebtedness, as
defined) in the principal amount then outstanding of $50,000,000 or more, or
acceleration of any Indebtedness in such principal amount so that it becomes due
and payable prior to the date on which it would otherwise have become due and
payable and such acceleration is not rescinded within ten business days after
notice to the Company by the Trustee or the holders of at least 25% of the
principal amount of all of the Debt Securities at the time outstanding (treated
as one class); any Guarantee ceases to be, or the Company or any Guarantor
asserts in writing that such Guarantee is not in full force and effect and
enforceable in accordance with its terms; certain events involving bankruptcy,
insolvency or reorganization of the Company, Tyco or any other Guarantor; or any
other Event of Default established for the Debt Securities of such series set
forth in the accompanying Prospectus Supplement. Unless otherwise provided in
any supplemental indenture and described in the applicable Prospectus
Supplement, the Indenture provides that the Trustee shall transmit notice of any
uncured default under the Indenture with respect to any series, within 90 days
after the occurrence of such default, to the holders of Debt Securities of each
affected series, except that the Trustee may withhold notice to the holders of
any series of the Debt Securities of any default (except in payment of principal
of, premium, if any, or interest on, such series of Debt Securities) if the
Trustee considers it in the interest of the holders of such series of Debt
Securities to do so.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, (a) if an Event of Default due to the default
in payment of principal of, premium, if any, or interest on, any series of Debt
Securities issued under the Indenture or due to the default in the performance
or breach of any other covenant or agreement of the Company, Tyco or any
Guarantor applicable to the Debt Securities of such series but not applicable to
all outstanding Debt Securities issued under the Indenture shall have occurred
and be continuing, either the Trustee or the holders of not less than 25% in
principal amount of the Debt Securities of each affected series issued under the
Indenture and then outstanding (each such series voting as a separate class) may
declare the principal of all Debt Securities of such affected series and
interest accrued thereon to be due and payable immediately; and (b) if an Event
of Default due to a default in the performance of any other of the covenants or
agreements in the Indenture applicable to all outstanding Debt Securities issued
thereunder and then outstanding, or due to a default in payment at final
maturity upon or acceleration of indebtedness for money borrowed in the
principal amount then outstanding of $50,000,000 or more, or to certain events
of bankruptcy, insolvency and reorganization of the Company, Tyco or any
Guarantor shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of all Debt Securities issued
under the Indenture and then outstanding (treated as one class) may declare the
principal of all such Debt Securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in payment
of principal of, premium, if any, or interest on such Debt Securities) by the
holders of a majority in principal amount of the Debt Securities of all such
affected series then outstanding (each such series voting as a separate class or
all such Debt Securities voting as a single class, as the case may be).
17
<PAGE>
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the holders of a majority in principal amount
of the Debt Securities of each series then outstanding and affected (with each
series voting as a separate class) shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Debt Securities of such series under the Indenture,
subject to certain limitations specified in the Indenture, provided that the
holders of such Debt Securities shall have offered to the Trustee reasonable
indemnity against expenses and liabilities.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the Indenture provides that no holder of Debt
Securities of any series may institute any action against the Company under the
Indenture (except actions for payment of overdue principal, premium, if any, or
interest) unless such holder previously shall have given to the Trustee written
notice of default and continuance thereof and unless the holders of not less
than 25% in principal amount of the Debt Securities of each affected series
(with each series voting as a separate class) issued under the Indenture and
then outstanding shall have requested the Trustee to institute such action and
shall have offered the Trustee reasonable indemnity, and the Trustee shall not
have instituted such action within 60 days of such request, and the Trustee
shall not have received direction inconsistent with such written request by the
holders of a majority in principal amount of the Debt Securities of each
affected series (with each series voting as a separate class) issued under such
Indenture and then outstanding.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the Indenture requires the annual filing by
the Company with the Trustee of a written statement as to compliance with the
covenants and agreements contained in the Indenture.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the Company may discharge or defease its
obligations under the Indenture as set forth below.
Under terms satisfactory to the Trustee, the Company may discharge this
Indenture with respect to any series of Debt Securities issued under the
Indenture which have not already been delivered to the Trustee for cancellation
and which have either become due and payable or are by their terms due and
payable within one year (or which may be called for redemption within one year)
by irrevocably depositing with the Trustee cash or direct obligations of the
United States as trust funds in an amount certified to be sufficient to pay at
maturity (or upon redemption) the principal of, premium, if any, and interest
and Additional Amounts, if any, on such Debt Securities. However, the Company
may not thereby avoid its duty to register the transfer or exchange of such
series of Debt Securities, to replace any mutilated, destroyed, lost or stolen
Debt Securities of such series or to maintain an office or agency in respect of
such series of Debt Securities.
In the case of any series of Debt Securities in respect of which the exact
amounts of principal of and interest due on such series can be determined at the
time of making the deposit referred to below, the Company at its option at any
time may also (i) discharge any and all of its obligations to holders of such
series of Debt Securities issued under the Indenture ("defeasance"), but may not
thereby avoid its duty to register the transfer or exchange of such series of
Debt Securities, to replace any mutilated, destroyed, lost, or stolen Debt
Securities of such series or to maintain an office or agency in respect of such
series of Debt Securities or (ii) be released with respect to any outstanding
series of Debt Securities issued under the Indenture from the obligations
imposed by the covenants described under the captions "Covenants" and "Merger,
Consolidation, Sale or Conveyance" above and omit to comply with such covenants
without creating an Event of Default ("covenant defeasance"). Defeasance or
covenant defeasance may be effected only if, among other things: (i) the Company
or Tyco irrevocably deposits with the Trustee cash and/or direct obligations of
the United States, as trust funds in an amount certified by a nationally
recognized firm of independent public accountants or a nationally recognized
investment banking firm to be sufficient to pay each installment of principal
of, premium, if any, and interest and Additional Amounts,
18
<PAGE>
if any, on all outstanding Debt Securities of such series issued under the
Indenture on the dates such installments of principal, premium, if any, and
interest are due; (ii) no default or Event of Default shall have occurred and be
continuing on the date of the deposit referred to in clause (i) or, in respect
of certain events of bankruptcy, insolvency or reorganization, during the period
ending on the 91st day after the date of such deposit (or any longer applicable
preference period); and (iii) the Company delivers to the Trustee (A) an opinion
of counsel to the effect that the holders of such series of Debt Securities will
not recognize any income, gain or loss for United States federal income tax
purpose as a result of such deposit and defeasance or covenant defeasance, as
applicable, and will be subject to United States federal income tax on the same
amounts and in the same manner and at the same times as would have been the case
if such deposit and defeasance or covenant defeasance, as applicable, had not
occurred (in the case of defeasance, such opinion must be based on a ruling of
the Internal Revenue Service or a change in United States federal income tax law
occurring after the date of the Indenture) and (B) an opinion of counsel to the
effect that (x) payments from the defeasance trust will be free and exempt from
any and all withholding and other taxes imposed or levied by or on behalf of
Luxembourg or any political subdivision thereof having the power to tax, and (y)
holders of such series of Debt Securities will not recognize any income, gain or
loss for Luxembourg income tax and other tax purposes as a result of such
deposit and defeasance or covenant defeasance, as applicable, and will be
subject to Luxembourg income tax and other tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit and
defeasance or covenant defeasance, as applicable, had not occurred.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company, Tyco and the
Trustee, with the consent of the holders of not less than a majority of
principal amount of the Debt Securities at the time outstanding of all series
affected (voting as one class), to modify the Indenture or any supplemental
indenture or the rights of the holders of the Debt Securities, except that no
such modification shall (i) extend the final maturity of any of the Debt
Securities or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or reduce the amount of any original issue discount security
payable upon acceleration or provable in bankruptcy or impair or affect the
right of any holder of the Debt Securities to institute suit for the payment
thereof without the consent of the holder of each of the Debt Securities so
affected or (ii) reduce the aforesaid percentage in principal amount of Debt
Securities, the consent of the holders of which is required for any such
modification, without the consent of the holders of all Debt Securities then
outstanding.
The Indenture contains provisions permitting the Company, Tyco and the
Trustee, without the consent of any holders of Debt Securities, to enter into a
supplemental indenture, among other things, for purposes of curing any ambiguity
or correcting or supplementing any provision contained in the Indenture or in
any supplemental indenture or making other provisions in regard to the matters
or questions arising under the Indenture or any supplemental indenture as the
Board of Directors of the Company deems necessary or desirable and which does
not adversely affect the interests of the holders of Debt Securities in any
material respect. The Company, Tyco and the Trustee, without the consent of any
holders of Debt Securities, may also enter into a supplemental indenture to
establish the form or terms of any series of Debt Securities as are not
otherwise inconsistent with any of the provisions of the Indenture.
CONCERNING THE TRUSTEE
The Trustee may hold Debt Securities, act as a depository for funds of, make
loans to, or perform other services for, the Company and its Subsidiaries as if
it were not the Trustee.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters or dealers,
and also may sell Debt Securities directly to other purchasers or through
agents. Each Prospectus Supplement will describe the method of distribution of
the offered Securities.
19
<PAGE>
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Securities for whom they may
act as agents in the form of discounts, concessions, or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions, or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers, and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the Prospectus Supplement.
Underwriters and agents who participate in the distribution of Debt
Securities may be entitled under agreements which may be entered into by the
Company to indemnification by the Company and Tyco against certain liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase offered Debt Securities from
the Company pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the offered Debt Securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other agents will not have any responsibility in respect
of the validity or performance of such contracts.
LEGAL MATTERS
Certain U.S. legal matters regarding the Debt Securities and the Guarantees
will be passed upon for Tyco and the Company by Kramer, Levin, Naftalis &
Frankel, New York, New York, counsel to Tyco and the Company. Joshua M. Berman,
a director and vice president of Tyco, is counsel to Kramer, Levin, Naftalis &
Frankel. Mr. Berman owns beneficially 64,000 common shares of Tyco. Certain
matters under the laws of Bermuda related to the Guarantees of Tyco will be
passed upon for Tyco by Appleby, Spurling & Kempe, Hamilton, Bermuda, Bermuda
counsel to Tyco. Certain matters under the laws of Luxembourg related to the
Debt Securities will be passed upon by Zeyen Beghin Feider Loeff Claeys Verbeke,
Luxembourg counsel to the Company.
EXPERTS
The consolidated financial statements and financial statement schedule
included in Tyco's Transition Report on Form 10-K for fiscal year ended
September 30, 1997 and included in Tyco's Current Report on Form 8-K dated April
23, 1998 and incorporated by reference in this prospectus have been audited by
Coopers & Lybrand, independent public accountants, as set forth in their reports
included therein. In those reports, that firm states that with respect to
certain subsidiaries its opinion is based on the reports of other independent
public accountants, namely Coopers & Lybrand L.L.P. and Arthur Andersen LLP. The
consolidated financial statements and financial statement schedule referred to
above have been incorporated herein in reliance upon said reports given upon the
authority of those firms as experts in accounting and auditing.
20
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and distribution of
the Debt Securities covered by this Registration Statement are as follows:
<TABLE>
<S> <C>
SEC registration fee (actual)................................... $1,106,250
Printing and engraving expenses................................. 100,000
Legal fees and expenses......................................... 100,000
Accounting fees and expenses.................................... 50,000
Miscellaneous................................................... 68,750
---------
Total........................................................... $1,425,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Bye-Law 102 of Tyco's 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.
Tyco maintains $75 million 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
Tyco, the Company or any subsidiary thereof. Such insurance specifically
excludes reimbursement of any director or officer for any charge or expense
incurred in connection with various designated matters, including libel or
slander, illegally obtained personal profits, profits recovered by Tyco pursuant
to Section 16(b) of the Exchange Act and deliberate dishonesty.
II-1
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<C> <C> <S>
1.1 -- Form of Underwriting Agreement*
3.1 -- Memorandum of Association (as altered) of Tyco (incorporating all amendments to
May 26, 1992) (incorporated by reference as an Exhibit to Tyco's Annual Report on
Form 10-K for the year ended December 31, 1992)
3.2 -- Certificate of Incorporation on Change of Name (previously filed as an Exhibit to
Tyco's Current Report on Form 8-K filed July 10, 1997)
3.3 -- Bye-Laws of Tyco (incorporating all amendments to March 27, 1998)
3.4 -- Articles of Association of the Company
4.1 -- Form of Indenture
4.2 -- Form of Debt Securities*
5.1 -- Form of Opinion of Appleby, Spurling & Kempe
5.2 -- Form of Opinion of Zeyen Beghin Feider Loeff Claeys Verbeke
5.3 -- Form of Opinion of Kramer, Levin, Naftalis & Frankel
12 -- Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 -- Consent of Coopers & Lybrand
23.2 -- Consent of Coopers & Lybrand L.L.P.
23.3 -- Consent of Arthur Andersen LLP
24 -- Powers of Attorney (contained on the signature pages hereto)
25 -- Statement of Eligibility of Trustee on Form T-1
</TABLE>
- ------------------------
* To be filed by amendment or under cover of Form 8-K and incorporated herein
by reference.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and persons controlling the Registrants
pursuant to the foregoing provisions, the Registrants have been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrants of expenses incurred or paid by a director, officer
or controlling person of the Registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrants will,
unless in the opinion of their 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 Securities Act and will be governed by the final adjudication
of such issue.
Each of the undersigned Registrants 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
II-2
<PAGE>
ITEM 17. UNDERTAKINGS (CONTINUED)
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
Registrants 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.
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Each of the undersigned Registrants 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
Registrants 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-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Exeter, State of New Hampshire, on the 23rd day of
April, 1998.
TYCO INTERNATIONAL LTD.
BY: /S/ MARK H. SWARTZ
-----------------------------------------
Mark H. Swartz
EXECUTIVE VICE PRESIDENT--
CHIEF FINANCIAL OFFICER
(PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER)
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes and
appoints L. DENNIS KOZLOWSKI AND MARK H. SWARTZ, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement (including all pre-effective and
post-effective amendments), and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on April 23,
1998 in the capacities indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ ---------------------------
<C> <S>
Chairman of the Board,
/s/ L. DENNIS KOZLOWSKI President, Chief
- ------------------------------ Executive Officer and
L. Dennis Kozlowski Director (Principal
Executive Officer)
/s/ MICHAEL A. ASHCROFT Director
- ------------------------------
Michael A. Ashcroft
/s/ JOSHUA M. BERMAN Director
- ------------------------------
Joshua M. Berman
/s/ RICHARD S. BODMAN Director
- ------------------------------
Richard S. Bodman
/s/ JOHN F. FORT Director
- ------------------------------
John F. Fort
/s/ STEPHEN W. FOSS Director
- ------------------------------
Stephen W. Foss
/s/ RICHARD A. GILLELAND Director
- ------------------------------
Richard A. Gilleland
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ ---------------------------
/s/ PHILIP M. HAMPTON Director
- ------------------------------
Philip M. Hampton
<C> <S>
/s/ JAMES S. PASMAN, JR. Director
- ------------------------------
James S. Pasman, Jr.
/s/ W. PETER SLUSSER Director
- ------------------------------
W. Peter Slusser
Executive Vice President
/s/ MARK H. SWARTZ and Chief Financial
- ------------------------------ Officer (Principal
Mark H. Swartz Financial and Accounting
Officer)
/s/ FRANK E. WALSH, JR. Director
- ------------------------------
Frank E. Walsh, Jr.
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Luxembourg, on the 23rd day of April, 1998.
TYCO INTERNATIONAL GROUP S.A.
BY: /S/ RICHARD W. BRANN
-----------------------------------------
Richard W. Brann
MANAGING DIRECTOR
(PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER)
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes and
appoints RICHARD W. BRANN AND MARK H. SWARTZ, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement (including all pre-effective and
post-effective amendments), and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on April 23,
1998 in the capacities indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ ---------------------------
<C> <S>
/s/ TEUNIS CH. AKKERMAN Director
- ------------------------------
Teunis Ch. Akkerman
/s/ RICHARD W. BRANN Managing Director
- ------------------------------
Richard W. Brann
/s/ BYRON S. KALOGEROU Managing Director
- ------------------------------
Byron S. Kalogerou
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ----------- -------------------------------------------------------------------------------------------- ---------------
<C> <S> <C>
1.1 --Form of Underwriting Agreement*
3.1 --Memorandum of Association (as altered) of Tyco (incorporating all amendments to May 26,
1992) (incorporated by reference as an Exhibit to Tyco's Annual Report on Form 10-K for
the year ended December 31, 1992)
3.2 --Certificate of Incorporation on Change of Name (previously filed as an Exhibit to Tyco's
Current Report on Form 8-K filed July 10, 1997)
3.3 --Bye-Laws of Tyco (incorporating all amendments to March 27, 1998)
3.4 --Articles of Association of the Company
4.1 --Form of Indenture
4.2 --Form of Debt Securities*
5.1 --Form of Opinion of Appleby, Spurling & Kempe
5.2 --Form of Opinion of Zeyen Beghin Feider Loeff Claeys Verbeke
5.3 --Form of Opinion of Kramer, Levin, Naftalis & Frankel
12 --Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 --Consent of Coopers & Lybrand
23.2 --Consent of Coopers & Lybrand L.L.P.
23.3 --Consent of Arthur Andersen LLP
24 --Powers of Attorney (contained on the signature pages hereto)
25 --Statement of Eligibility of Trustee on Form T-1
</TABLE>
- ------------------------
* To be filed by amendment or under cover of Form 8-K and incorporated herein
by reference.
<PAGE>
EXHIBIT 3.3
BYE-LAWS
OF
TYCO INTERNATIONAL LTD.
(INCORPORATING ALL AMENDMENTS TO 27TH MARCH, 1998)
1. INTERPRETATION
In these Bye-Laws, unless there is something in the subject or context
inconsistent therewith:-
"The Companies Acts" means every Bermuda statute from time to time in force
concerning companies insofar as the same applies to the Company.
"The Company" means ADT Limited(1).
"The Directors" means the Directors for the time being of the Company.
"Dividend" includes bonus.
"Member" means a person or body corporate registered in the Register as the
holder of shares in the Company.
"Month" means calendar month.
"Notice" means written notice unless otherwise specifically stated.
"Paid up" includes credited as paid up.
"The Register" means the Register of Members and includes any branch or
sub-register.
"The Registrar" means any person appointed to perform the duties of
Registrar and if no such person shall be appointed means the Secretary.
"The Seal" means the Common Seal of the Company or any Overseas Seal or any
Securities Seal.
"Secretary" means the person appointed to perform the duties of the
Secretary of the Company and includes any Assistant or Acting Secretary.
__________________
(1) The name of the Company was changed from ADT Limited to Tyco
International Ltd. on 2nd July, 1997.
<PAGE>
"Signed" includes a signature or reproduction of a signature affixed by
mechanical means and cognate expressions shall be construed accordingly.
"Subsidiary" means any company or other legal entity which is for the time
being controlled by the Company. For the purposes of this definition,
control includes the right or power of the Company, whether directly or
through some other company or legal entity which is so controlled:-
(i) to receive more than one-half of all distributions, whether of
capital or revenue, at any time made by the Company or entity; or
(ii) to cast more than one-half of all the votes capable of being cast
at any general meeting of such company or entity (but excluding any
votes which are only exercisable upon the occurrence of any
contingency); or
(iii) to control the composition of the Board of Directors, Board of
Management or equivalent executive body (or, if there is more than
one such Board or body, any one of them) of, or otherwise to direct
the management or policies of, such company or entity.
"In writing" and "written" include printing, lithography, photography and
other modes of representing or reproducing words in visible form.
"May" shall be construed as permissive.
"Shall" shall be construed as imperative.
References in these Bye-Laws to shares or other securities being listed on
a stock exchange shall include their being quoted or publicly traded on a
stock exchange or other securities market, unless the context otherwise
requires.
References in these Bye-Laws to any statute or statutory provision shall
include any statute or statutory provision which amends, extends,
consolidates or replaces the same, or which has been amended, extended,
consolidated or replaced by the same, and shall include any orders,
regulations, instruments or other subordinate legislation made under the
relevant statute.
Words importing the singular number only include the plural number and vice
versa.
Words importing the masculine gender only include the feminine and neuter
genders respectively.
Words importing persons include companies or associations or bodies of
persons, whether corporate or un-incorporate.
2
<PAGE>
SHARE CAPITAL AND VARIATION OF RIGHTS
2. SHARE CAPITAL
The authorised share capital of the Company shall be in the amount and
divided into the classes and having the rights set out in the Schedule to
these Bye-Laws (as amended from time to time), which shall be deemed to be
incorporated in and form part of this Bye-Law 2.
3. ALTERATION OF RIGHTS
If at any time the share capital is divided into different classes of
shares, the rights attached to any class (unless otherwise provided by the
terms of issue of the shares of that class) may, whether or not the Company
is being wound up, 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. To any such separate General Meeting, all the
provisions of these Bye-Laws as to Special General Meetings shall MUTATIS
MUTANDIS apply but so that:-
(a) the necessary quorum shall be three or more persons holding or
representing by proxy not less than one-third of the issued shares of
the class;
(b) every holder of shares of the class shall be entitled on a poll to one
vote for every share of such class held by him;
(c) any holder of shares of the class present in person or by proxy may
demand a poll; and
(d) at any adjourned meeting two holders of the shares of the class
present in person or by proxy (whatever the number of shares held by
them) shall be a quorum.
4. EFFECT OF ISSUING SHARES RANKING PARI PASSU WITH EXISTING SHARES
The rights conferred upon the holders of the shares of any class issued
with preferred or other rights shall not, unless otherwise expressly
provided by the terms of issue of the shares of that class, be deemed to be
varied by the creation or issue of further shares ranking PARI PASSU
therewith.
4A. ISSUE AND PURCHASE OF OWN SHARES
(1) Subject to the rights conferred upon the holders of any class of shares,
the Directors may exercise the powers of the Company to purchase its own
shares and to allot, grant options over or otherwise dispose of shares
which the Directors have been authorised
3
<PAGE>
to allot and issue by the Company in General Meeting upon such terms and
subject to such conditions as they think fit.
(2) The Directors of the Company may, subject to the provisions of the
Companies Acts, at any time exercise the power of the Company to purchase
its own shares conferred by paragraph (1) of this Bye-Law up to the maximum
nominal amount of share capital authorised by resolution of the Company in
General Meeting from time to time. The Directors are hereby authorised
pursuant to Section 42A of The Companies Act 1981 of Bermuda to take all
steps required to effect any such purchase.
4B. REDEEMABLE PREFERENCE SHARES
The terms and manner of redemption of any redeemable preference shares of
the Company shall be either (a) as the Company may in General Meeting
determine or (b) in the event that the Company in General Meeting may have
so authorised, as the Directors or any committee thereof may by resolution
determine before the allotment of such shares, such resolution to be
attached as an appendix to these Bye-Laws.
5. TRUSTS NOT RECOGNISED
Save as herein otherwise provided, the Company shall be entitled to treat
the registered holder of any share as the absolute owner thereof, and
accordingly shall not, except as by statute required, be bound to recognise
any equitable or other claim or interest in such share on the part of any
other person.
5A. RENUNCIATION ON ALLOTMENT
The Directors may at any time after the allotment of any share but before
any person has been entered in the Register of Members as the holder
recognise a renunciation thereof by the allottee in favour of some other
person and may accord to any allottee of a share a right to effect such
renunciation upon and subject to such terms and conditions as the Directors
may think fit to impose.
6. RECEIPTS IN THE CASE OF JOINT HOLDERS
If two or more persons are registered as joint holders of any shares, then
any one of such joint holders may give effectual receipts for dividends or
other monies payable in respect of the shares held by them as joint
holders.
7. CERTIFICATES
Subject to the Companies Acts and to the conditions of issue of any share
or class of shares, every Member shall be entitled to a certificate under
the Seal specifying the shares held by him and whether the same are fully
paid up and, if not, how much has been paid thereon provided that no
certificate shall be issued to any Member who is designated as a nominee of
an internationally recognised stock exchange unless such Member shall
specifically request the Company to issue the same or to any Member
4
<PAGE>
whose shares are of a category designated by the Directors as being
uncertificated. No certificate shall be issued representing shares of more
than one class.
8. NEW CERTIFICATES
If any share certificate be worn out or defaced, then, upon production
thereof to the Registrar, and on such reasonable indemnity as the Directors
deem adequate being given, they shall order the same to be cancelled and
shall issue a new certificate in lieu thereof without charge. If any such
certificate be lost or destroyed, then upon proof thereof to the
satisfaction of the Directors, and on such reasonable indemnity as the
Directors deem adequate being given, a new certificate in lieu thereof
shall be issued without charge. Subject as provided in Bye-Law 7, a Member
who has transferred part of the shares comprised in his registered holding
shall be entitled to a certificate for the balance without charge. Any two
or more certificates representing shares of any one class held by any
Member may at his request be cancelled and a single new certificate for
such shares issued in lieu without charge. In the case of shares held
jointly by several persons any such request may be made by any one of the
joint holders.
9. DELIVERY OF CERTIFICATES
The certificate for shares registered in the names of two or more persons
shall, unless otherwise directed by them in writing delivered to the
Secretary, be delivered to the person first named on the Register.
LIEN
10. COMPANY'S LIEN
The Company shall have a lien on every share (not being a fully paid share)
for all monies (whether presently payable or not) called or payable at a
fixed time in respect of that share, and the Company shall also have a lien
on all shares (other than fully paid shares) standing registered in the
name of a single person, for all monies presently payable by him or his
estate to the Company; but the Directors may at any time declare any share
to be wholly or in part exempt from the provisions of this Bye-Law. The
Company's lien, if any, on a share shall extend to all dividends payable
thereon.
10A. TAXATION
Whenever any law for the time being of any country, state or place imposes
or purports to impose any immediate or future or possible liability upon
the Company to make any payment or empowers any government or taxing
authority or government official to require the Company to make any payment
in respect of any shares registered in any of the Company's registers as
held either jointly or solely by any Member or in respect of any dividends,
bonuses or other monies due or payable or accruing due or which may become
due or payable to such Member by the Company
5
<PAGE>
on or in respect of any shares registered as aforesaid or for or on account
or in respect of any Member and whether in consequence of:-
(a) the death of such Member;
(b) the non-payment of any income tax or other tax by such Member;
(c) the non-payment of any estate, probate, succession, death, stamp, or
other duty by the executor or administrator of such Member or by or
out of his estate;
(d) any other act or thing;
in every such case (except to the extent that the rights conferred upon
holders of any class of shares render the Company liable to make additional
payments in respect of sums withheld on account of the foregoing):-
(i) the Company shall be fully indemnified by such Member or his
executor or administrator from all liability;
(ii) the Company shall have a lien upon all dividends and other monies
payable in respect of the shares registered in any of the Company's
registers as held either jointly or solely by such Member for all
monies paid or payable by the Company in respect of such shares or
in respect of any dividends or other monies as aforesaid thereon or
for or on account or in respect of such Member under or in
consequence of any such law together with interest at the rate of
fifteen per cent. per annum thereon from date of payment to date of
repayment and may deduct or set off against such dividends or other
monies payable as aforesaid any monies paid or payable by the
Company as aforesaid together with interest as aforesaid;
(iii) the Company may recover as a debt due from such Member or his
executor or administrator wherever constituted any monies paid by
the Company under or in consequence of any such law and interest
thereon at the rate and for the period aforesaid in excess of any
dividends or other monies as aforesaid then due or payable by the
Company;
(iv) the Company may if any such money is paid or payable by it under
any such law as aforesaid refuse to register a transfer of any
shares by any such Member or his executor or administrator until
such money and interest as aforesaid is set off or deducted as
aforesaid or in case the same exceeds the amount of any such
dividends or other monies as aforesaid then due or payable by the
Company until such excess is paid to the Company.
Subject to the rights conferred upon the holders of any class of shares
nothing herein contained shall prejudice or affect any right or remedy
which any law may confer or purport to confer on the Company and as between
the Company and every such Member as aforesaid, his executor, administrator
and estate wheresoever constituted
6
<PAGE>
or situate, any right or remedy which such law shall confer or purport to
confer on the Company shall be enforceable by the Company.
11. POWER OF SALE
The Company may sell, in such manner as the Directors may think fit, any
shares on which the Company has a lien, but no sale shall be made unless
some sum in respect of which the lien exists, is presently payable, nor
until the expiration of fourteen days after a notice stating and demanding
payment of such part of the amount in respect of which the lien exists as
is presently payable, has been given to the registered holder for the time
being of the shares, or the person entitled thereto by reason of his death
or bankruptcy.
12. TRANSFER ON SALE UNDER LIEN
To give effect to such sale the Directors may authorise some person to
transfer the shares sold to the purchaser thereof. The purchaser shall be
registered as the holder of the shares comprised in such transfer, and he
shall not be bound to see to the application of the purchase money, nor
shall his title to the shares be affected by any irregularity or invalidity
in the proceedings in reference to the sale.
13. APPLICATION OF PROCEEDS OF SALE
The net proceeds of the sale after payment of the costs of such sale shall
be received by the Company and applied in payment of such part of the
amount in respect of which the lien exists as is presently payable and the
residue, if any, shall (subject to a like lien for sums not presently
payable as existed upon the shares before sale) be paid to the persons
entitled to the shares at the date of the sale.
CALLS ON SHARES
14. CALLS
The Directors may from time to time make calls upon the Members in respect
of any monies unpaid on their shares and not by the conditions of the
allotment thereof made payable at fixed times. A call may be revoked or
postponed as the Directors may determine.
15. WHEN CALLS DEEMED TO BE MADE
A call shall be deemed to have been made at the time when the resolution of
the Directors authorising the call was passed and may be required to be
paid by instalments.
7
<PAGE>
16. INTEREST ON CALLS
If a sum called in respect of a share is not paid before or on the day
appointed for payment thereof, the person from whom the sum is due shall
pay interest on the sum from the day appointed for payment thereof to the
time of actual payment at such rate not exceeding fifteen per cent. per
annum as the Directors may determine, but the Directors shall be at liberty
to waive payment of such interest wholly or in part.
17. SUMS PAYABLE ON ALLOTMENT DEEMED TO BE CALLS
Any sum which by the terms of issue of a share becomes payable on allotment
or at any fixed date shall for the purposes of these Bye-Laws be deemed to
be a call duly made and payable on the date on which by the terms of issue
the same becomes payable, and in case of non-payment all the relevant
provisions of these Bye-Laws as to payment of interest and expenses,
forfeiture or otherwise shall apply as if such sum had become payable by
virtue of a call duly made and notified.
18. DIFFERENTIATION BETWEEN MEMBERS
The Directors may, on the issue of shares, differentiate between the
holders as to the amount of calls to be paid and the times of payment.
19. PAYMENT IN ADVANCE
The Directors may, if they think fit, receive from any Member willing to
advance the same, all or any part of the monies uncalled and unpaid upon
any shares held by him, and upon all or any of the monies so advanced may
pay interest at such rate not exceeding fifteen per cent. per annum as may
be agreed between the Directors and the Member paying such sum in advance.
20. LIABILITY OF JOINT HOLDERS
The joint holders of any share shall be jointly and severally liable to pay
all calls in respect thereof.
REGISTRATION OF MEMBERS
21. REGISTRATION OF MEMBERS
The Directors shall cause to be entered in the Register the particulars
required by law and the Register shall be kept in such manner as to show at
all times the Members for the time being and the shares respectively held
by them. The Register shall be open for inspection at the office of the
Registrar between 10.00 a.m. and 12.00 noon on every working day.
8
<PAGE>
TRANSFER AND TRANSMISSION OF SHARES
22. EXECUTION OF TRANSFER
Subject to the Companies Acts and these Bye-Laws, a share may be
transferred in any manner which the Directors may approve. The Directors
may require a transfer to be effected by an instrument signed by the
transferor and, in the case of a partly paid share, also by the transferee.
The transferor shall be deemed to remain the holder of such share until the
name of the transferee is entered in the Register in respect thereof.
23. FORM OF TRANSFER
The instrument of transfer shall be in writing and in the usual common form
or in any other form which the Directors may approve. The instrument of
transfer may be on the back of the share certificate.
24. IN WHAT CASES DIRECTORS MAY DECLINE TO REGISTER TRANSFERS
(1) The Directors may decline to register any transfer of shares upon which the
Company has a lien, and in the case of shares not fully paid up, may refuse
to register or transfer to a transferee of whom they do not approve.
(2) The Directors may decline to register any transfer of shares by a
transferor or to a transferee on whom the Company has duly served a notice
under Bye-Law 46 or under Bye-Law 104 (not being a transfer in compliance
with such notice) during a period of suspension of voting and other rights
in respect of such shares under Bye-Law 46.
25. TRANSFER TO BE LEFT AT OFFICE AND EVIDENCE TO BE GIVEN
Unless otherwise determined by the Directors, either generally or in such
cases as they may specify, every instrument of transfer shall be left at
the office of the Registrar for registration, accompanied by the
certificate of the shares to be transferred, and such other evidence as the
Registrar may require to prove the title of the transferor, or his right to
transfer the shares.
26. JOINT HOLDERS
Without prejudice to the generality of the provisions of Bye-Law 24, the
Directors may refuse to register any transfer of shares (whether fully paid
or not) in favour of more than four persons jointly.
27. NOTICE OF REFUSAL
If the Directors refuse to register a transfer they shall within two months
after the date on which the transfer was lodged with the Company send to
the transferee a notice of refusal.
9
<PAGE>
28. RECOGNITION OF LEGAL PERSONAL REPRESENTATIVES OF DECEASED MEMBER
In the case of the death of a Member the survivor or survivors where the
deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole holder, shall be the only persons recognised
by the Company as having any title to his interest in the shares; but
nothing in this Bye-Law contained shall release the estate of a deceased
joint holder from any liability in respect of any share which had been
jointly held by him with any other person.
29. RIGHTS ON DEATH
Any person becoming entitled to shares in consequence of the death of a
Member, upon producing such evidence as the Directors may deem sufficient,
may be registered as a Member in respect of such shares, or may, subject to
Bye-Law 24, transfer such shares to some other person by executing an
instrument of transfer in accordance with Bye-Law 23 above.
29A. DESTRUCTION OF RECORDS
The Company shall be entitled to destroy all instruments of transfer which
have been registered at any time after the expiration of six years from the
date of registration thereof and all dividend mandates and notifications of
change of address at any time after the expiration of two years from the
date of recording thereof and all share certificates which have been
cancelled at any time after the expiration of one year from the date of the
cancellation thereof and it shall conclusively be presumed in favour of the
Company that every entry in the Register purporting to have been made on
the basis of an instrument of transfer or other document so destroyed was
duly and properly made and every instrument of transfer so destroyed was a
valid and effective certificate duly and properly cancelled and every other
document hereinbefore mentioned so destroyed was a valid and effective
document in accordance with the recorded particulars thereof in the books
or records of the Company.
Provided always that:-
(a) the provisions aforesaid shall apply only to the destruction of a
document in good faith and without notice of any claim (regardless of
the parties thereto) to which the document might be relevant;
(b) nothing herein contained shall be construed as imposing upon the
Company any liability in respect of the destruction of any such
document earlier than as aforesaid or in any other circumstances which
would not attach to the Company in the absence of this Bye-Law;
(c) references herein to the destruction of any document include
references to the disposal thereof in any manner.
10
<PAGE>
29B. UNTRACED SHAREHOLDERS
The Company shall be entitled to sell at the best price reasonably
obtainable at the time of sale the shares of a Member or the shares to
which a person is entitled by virtue of the transmission on death or
bankruptcy if and provided that:
(i) during the period of six years prior to the date of the publication
of the advertisement referred to in paragraph (ii) below no
dividend (or cash option duly exercised in relation to a
capitalisation issue) in respect of those shares has been claimed
and all share certificates for shares issued under a capitalisation
issue or under a scrip dividend option for which an election has
duly been made have been returned to the Company unclaimed provided
that at least two payments of dividends and/or capitalisation
issues and/or scrip dividend issues have taken place in relation to
the shares in question during such six year period; and
(ii) the Company shall on expiry of the said period of six years have
inserted an advertisement in a newspaper circulating in the area of
the address at which service of notices upon such Member or other
person may be effected in accordance with these Bye-Laws, giving
notice of its intention to sell the said shares; and
(iii) during the said period of six years and the period of three months
following the publication of the said advertisement the Company
shall have received indication neither of the whereabouts nor of
the existence of such Member or person; and
(iv) notice shall have been given to any stock exchange upon which the
shares in question are listed for the time being of its intention
to make such sale.
To give effect to any such sale the Company may appoint any person to
execute as transferor an instrument of transfer of the said shares and such
instrument of transfer shall be as effective as if it had been executed by
the registered holder of or person entitled by transmission to such shares
and the title of the transferee shall not be affected by any irregularity.
The net proceeds of sale shall belong to the Company which shall be obliged
to account to the former Member or other person previously entitled as
aforesaid for an amount equal to such proceeds and shall enter the name of
such former Member or other person in the books of the Company as a
creditor for such amount. No trust shall be created in respect of the
debt, no interest shall be payable in respect of the same and the Company
shall not be required to account for any money earned on the net proceeds,
which may be employed in the business of the Company or invested in such
investments as the Directors may from time to time think fit.
11
<PAGE>
FORFEITURE OF SHARES
30. IF CALL OR INSTALMENT NOT PAID NOTICE MAY BE GIVEN
If any Member fails to pay any call or instalment on or before the day
appointed for payment of the same, the Directors may at any time
thereafter, during such time as the call or instalment remains unpaid,
serve a notice on such Member requiring him to pay the same, together with
any interest that may have accrued, and all expenses that may have been
incurred by the Company by reason of such non-payment.
31. FORM OF NOTICE
The notice shall name a day (not less than fourteen days from the date of
the notice), and a place on and at which such call or instalment and such
interest and expenses as aforesaid are to be paid. The notice shall also
state that in the event of non-payment at or before the time and at the
place appointed, the shares in respect of which the call was made or
instalment is payable will be liable to be forfeited.
32. IF NOTICE NOT COMPLIED WITH, SHARES MAY BE FORFEITED
If the requisitions of any such notice as aforesaid are not complied with,
any shares in respect of which such notice has been given may, at any time
thereafter, before payment of all calls or instalments, interest and
expenses due in respect thereof, be forfeited by resolution of the
Directors to that effect. Such forfeiture shall include all dividends
declared or accruing in respect of the forfeited shares, and not actually
paid before forfeiture.
33. NOTICE OF FORFEITURE
When any share shall have been so forfeited, notice of the resolution shall
be given to the person in whose name it stood immediately before the
forfeiture, and an entry of the forfeiture, with the date thereof, shall
forthwith be made in the Register.
34. FORFEITED SHARE TO BECOME PROPERTY OF COMPANY
Any share so forfeited shall be deemed to be the property of the Company,
and the Directors may sell, re-allot, or otherwise dispose of the same in
such manner as they think fit. A statutory declaration in writing that the
declarant is a Director or the Secretary of the Company and that a share
has been duly forfeited or surrendered or sold to satisfy a lien of the
Company on a date stated in the declaration shall be conclusive evidence of
the facts therein stated as against all persons claiming to be entitled to
the share. Such declaration and the receipt of the Company for the
consideration (if any) given for the share on the sale, re-allotment or
disposal thereof together with the share certificate delivered to a
purchaser or allottee thereof shall (subject to the execution of a transfer
if the same be required) constitute good title to the share and the person
to whom the share is sold, re-allotted or disposed of shall be registered
as the holder of the share and shall not be bound to see to the application
of
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the purchase money (if any) nor shall his title to the share be affected by
any irregularity or invalidity in the proceedings in reference to the
forfeiture, surrender, sale, re-allotment or disposal of the share.
35. POWER TO ANNUL FORFEITURE
The Directors may, at any time before any shares so forfeited shall have
been sold, re-allotted or otherwise disposed of, annul the forfeiture
thereof upon such conditions as they think fit.
36. ARREARS TO BE PAID NOTWITHSTANDING FORFEITURE
Any person whose shares have been forfeited shall, notwithstanding, be
liable to pay, and shall forthwith pay to the Company, all calls,
instalments, interest and expenses owing upon or in respect of such shares
at the time of the forfeiture, together with interest thereon from the time
of forfeiture until payment at seven per cent. per annum, and the Directors
may enforce the payment thereof if they think fit.
ALTERATION OF CAPITAL
37. CONSOLIDATION AND SUB-DIVISION OF CAPITAL
Subject to the provisions of the Companies Acts, the Company in General
Meeting may by resolution:-
(a) consolidate and divide its share capital into shares of a larger par
value than that fixed by the Company's Memorandum of Association;
(b) sub-divide its shares into shares of a smaller par value than that
fixed by the Company's Memorandum of Association;
(c) cancel shares which, at the date of the passing of such resolution
have not been taken or agreed to be taken by any person, and diminish
the amount of its share capital by the amount of the shares so
cancelled.
37A. PROCEDURE ON CONSOLIDATION
Upon any consolidation of fully-paid shares into shares of larger amount
the Directors may settle any difficulty which may arise with regard thereto
and in particular may as between the holders of shares so consolidated
determine which shares are consolidated into each consolidated share and in
the case of any shares registered in the name of one holder (or joint
holders) being consolidated with shares registered in the name of another
holder (or joint holders) may make such arrangements for the allocation,
acceptance or sale of the consolidated share and for the distribution among
the persons entitled thereto of any monies received in respect thereof as
may be thought fit and for the purpose of giving effect thereto may appoint
some person to transfer the consolidated share or any fractions thereof and
to receive the purchase
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price thereof and any transfer executed in pursuance thereof shall be
effective and after such transfer has been registered no person shall be
entitled to question its validity.
38. INCREASE OF CAPITAL
Subject to the provisions of the Companies Acts, the Company in General
Meeting may by resolution increase its share capital to such sum as the
resolution shall prescribe.
39. REDUCTION OF CAPITAL
Subject to the provisions of the Companies Acts, the Company in General
Meeting may by resolution reduce its share capital to such sum not less
than the minimum share capital prescribed by the Company's Memorandum of
Association as the resolution shall prescribe.
MEETINGS OF THE COMPANY
40. ANNUAL GENERAL MEETING
The Annual General Meeting of the Company shall be held once at least in
every calendar year at such place as may be designated in the notice of
meeting and a notice of such meeting shall be given by mail, telex or cable
to each Member at his address as shown in the Register, at least five days
before the meeting takes place, stating the time, date and place and, as
far as practicable, the objects of the meeting.
41. SPECIAL GENERAL MEETING
The Directors may convene a Special General Meeting of the Company at such
place as may be designated in the notice of meeting whenever in their
judgment such a meeting is necessary and such meeting shall be convened by
notice in like manner as the Annual General Meeting, at least five days
before the meeting takes place. Such notice shall state the time, date and
place, and as far as practicable, the objects of the meeting.
42. MEETING CALLED ON REQUISITION
A Special General Meeting of the Company called on the written requisition
of Members holding at the date of the deposit of the requisition not less
than one-tenth part in value of the paid-up capital of the Company as at
the date of the deposit carries the right of voting at General Meetings of
the Company shall be convened by notice in like manner as the Annual
General Meeting.
43. QUORUM
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At any General Meeting of the Company not less than two holders of Common
Shares present either in person or by proxy, shall form a quorum for the
transaction of business and if a quorum does not assemble within half an
hour after the time appointed for the meeting, the meeting, if convened on
the requisition of Members, shall be dissolved and in any other case shall
be adjourned to a future date as determined by the Directors. The
Directors shall give notice of the adjourned meeting in such manner as they
consider expedient.
44. VALIDITY OF MEETING CALLED ON SHORT NOTICE
A meeting of the Company shall, notwithstanding that it is called by
shorter notice than that specified in Bye-Laws 40 and 41, be deemed to have
been duly called if it is agreed (a) in the case of a meeting called as the
Annual General Meeting, by all the Members entitled to attend and vote
thereat and (b) in the case of any other meeting, by a majority in number
of the Members having a right to attend and vote thereat, being a majority
together holding not less than ninety-five per cent. in nominal value of
the shares giving the right to attend and vote at the meeting.
45. POWER TO ADJOURN GENERAL MEETING
The chairman of the meeting may, with the consent of the meeting, and
shall, if so directed by the meeting or (prior to or at the meeting) by the
Board of Directors (or a duly authorised committee thereof), adjourn the
meeting, from time to time and from place to place as the chairman of the
meeting shall determine (subject to any directions from the Board of
Directors or a duly authorised committee thereof). Whenever a meeting is
adjourned for more than five days, the Directors shall give notice of the
adjourned meeting in such manner as they consider expedient. No business
shall be transacted at any adjourned meeting other than the business which
might have been transacted at the meeting from which the adjournment took
place.
VOTING AT MEETINGS
46. VOTING RIGHTS
(1) Subject to any rights or restrictions attached to any class of shares, at
any meeting of the Company, each Member present in person shall be entitled
to one vote on any question to be decided on a show of hands and each
Member present in person or by proxy shall be entitled on a poll to one
vote for each share held by him.
Provided that no Member shall be entitled (save as proxy for another
Member) to be present or vote at any meeting, either personally or by
proxy, or to exercise any privilege in relation to meetings of the Company
conferred by membership, or be reckoned in a quorum:-
(A) in respect of any share held by him (whether alone or jointly with any
other person) on which there shall not have been paid all calls for
the time being due and payable, together with interest and expenses
(if any); or
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(B) in respect of any shares held by him in relation to which he or any
person appearing to be interested in such shares has been duly served
with a notice under paragraph (2) of this Bye-Law which:-
(i) requires him or such other person to give information to the
Company in accordance with such paragraph; and
(ii) contains a statement to the effect that upon failure to supply
such information before the expiry of a period specified in such
notice (being such reasonable period as the Directors shall
determine from the date of service of such notice) the registered
holder of such shares shall not be entitled to vote or otherwise
exercise the rights referred to in this Bye-Law
and the person on whom such notice was served fails to supply such
information within the period so specified.
Provided that:-
(a) the Company shall be entitled to serve a notice under paragraph
(2) of this Bye-Law which fulfils sub-sub-paragraphs (i) and (ii)
above on a person who is not the registered holder of shares in
the Company only if the registered holder of the shares in
question has previously been, or is simultaneously with the
service of such a notice, served by the Company with a notice
under paragraph (2) of this Bye-Law; and
(b) the disqualification provisions of this sub-paragraph (B) shall
take effect only upon the service on the registered holder of the
shares in question of a notice to the effect that he has thereby
become subject to the said disqualification for so long as the
information requested pursuant to this sub-paragraph (B) has not
been supplied to the Company and for a period of ninety days
thereafter; and
(c) for the purpose of this sub-paragraph (B) a person shall be
treated as appearing to be interested in any shares if (after
taking into account any information supplied in response to any
notice under paragraph (2) of this Bye-Law and any other
information) the Company knows or has reasonable cause to believe
that the person in question is or may be interested in the
shares.
(C) in respect of any shares held by him in relation to which he or any
person appearing to be interested in such shares has been duly served
with a notice under Bye-Law 104 which:
(i) requires him or such other person to make an offer in accordance
with, or otherwise comply with the terms of, such Bye-Law; and
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(ii) contains a statement to the effect that upon failure to make such
an offer before the expiry of a period specified in such notice
(being not less than twenty-eight days from the date of service
of such notice) or, having made such an offer or acquired such
shares in contravention of a notice served under that Bye-Law,
otherwise fails to comply with the provisions of Bye-Law 104 the
registered holder of such shares shall not be entitled to vote or
otherwise exercise the rights referred to in this Bye-Law
and the person on whom such notice was served fails to make such an
offer within the period so specified or fails to remedy such
non-compliance.
Provided that:-
(a) the Company shall be entitled to serve a notice under
paragraph (2) of this Bye-Law which fulfils
sub-sub-paragraphs (i) and (ii) above on a person who is not the
registered holder of shares in the Company only if the registered
holder of the shares in question has previously been, or is,
simultaneously with the service of such a notice, served by the
Company with a notice under Bye-Law 104; and
(b) the disqualification provisions of this sub-paragraph (C) shall
take effect only upon the service on the registered holder of the
shares in question of a notice to the effect that he has thereby
become subject to the said disqualification and shall subsist
until an offer is made in accordance with Bye-Law 104 and such
offer becomes or is declared unconditional in all respects in
accordance with its terms.
(D) in respect of any shares in relation to which he and any person
specified in paragraph (3) of this Bye-Law has been duly served with a
notice under paragraph (3) which remains in effect.
(2) (A) The Company may by notice in writing require any person whom the
Company knows or has reasonable cause to believe to be interested in
shares in the Company to indicate whether or not it is the case and,
where that person holds any interest in any such shares, to give such
further information as may be required in accordance with
sub-paragraph (B) below.
(B) Any such notice may require the person to whom it is addressed to give
particulars of his own present interests in shares in the Company.
(C) The particulars referred to above include particulars of the identity
of persons interested in the shares in question and of whether persons
interested in the same shares are parties to any agreement or
arrangement relating to the exercise of any of the rights conferred by
the holding of the shares.
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(D) A notice under this Bye-Law shall require any information given in
response to the notice to be given in writing within such reasonable
time as the Directors may determine and is specified in the notice.
(E) For the purposes of this Bye-Law, a person who is interested in a
right to subscribe for or convert into shares in the Company shall be
deemed to be interested in shares in the Company and references to
interests in shares shall include any interest whatsoever in such
shares including, without limitation, a right to control directly or
indirectly the exercise of any right conferred by the holding of
shares alone or in conjunction with a person deemed to be acting in
concert for the purposes of Bye-Law 104 and the interest of any person
shall be deemed to include the interest of any other person deemed to
be acting in concert as aforesaid.
(F) A notice which has taken effect under this Bye-Law shall remain in
effect in accordance with its terms following a transfer of the shares
to which it relates unless and until the Directors determine otherwise
and notify the registered holder accordingly.
(G) The right to receive payments of income or capital which become due or
payable in respect of any share during a period of disqualification
applicable to such share under this Bye-Law shall be suspended during
such period of disqualification without any liability of the Company
to the Member for late payment or non-payment and the Company may
retain such sums for its own use and benefit during such period of
suspension and the holders of such shares may, in the discretion of
the Directors, be excluded from participation in any further issue of
shares by reference to an existing holding of shares at a point in
time during such period of suspension. No trust shall be created in
respect of any such debt, no interest shall be payable in respect of
the same and the Company shall not be required to account for any
money earned on such amount, which may be employed in the business of
the Company or invested in such investments as the Directors may from
time to time think fit.
(3) (A) Where any person whether alone or in circumstances where for the
purposes of Bye-Law 104 he is acting in concert with other persons
acquires or has acquired interests in shares which (including the
interests of persons with whom he is acting in concert as aforesaid)
amount to three per cent. or more of the issued share capital of any
class of the Company he shall within two days following the date on
which he became aware (or ought reasonably to have become aware) of
the acquisition of such an interest notify the Company of the
existence of such interest and shall in making such notification to
the Company also supply the particulars referred to in
sub-paragraphs (2)(B) and (2)(C) above and so long as his interest as
aforesaid amounts to three per cent. or more of the issued share
capital of any class of the Company he shall notify the Company of any
change in his interests (including the interests of persons with whom
he is acting in concert as aforesaid) amounting to one per cent. or
more of the issued share capital of any class of the Company within
two days
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following the date on which he became aware (or ought reasonably to
have become aware) of such change.
(B) If any person has failed to make a notification in accordance with
sub-paragraph (3)(A) above (notwithstanding that such notification has
been made after the said period of two days) the Directors may serve a
notice on such person stating that the registered holder of the shares
in which that person is interested shall not be entitled to vote or
otherwise exercise the rights referred to in this Bye-Law in respect
of any shares or a number of shares specified in the notice held by
that registered holder during the one hundred and eighty days
following the service of such notice provided that the registered
holder of such shares has previously been, or is simultaneously with
the service of such a notice, served with a notice under this
sub-paragraph.
(C) If the Directors resolve that they have reasonable cause to believe
that a person is or may be interested in shares of the Company or that
any such shares are or may be shares in which any person is interested
and that they have made reasonable enquiries to establish whether a
person is so interested, or whether they are such shares, as the case
may be, such person shall for the purposes of this Bye-Law be deemed
to be interested in shares or, as the case may be, such shares shall
be deemed to be shares in which such person is interested, from the
date of such resolution until any such time as the Directors resolve
otherwise.
(D) Any belief, resolution or decision of the Directors which is held or
made in pursuance or purported pursuance of any of the provisions of
this Bye-Law shall be conclusive, final and binding on all persons
concerned, and the validity of any act or thing which is done or
caused to be done by the Directors in pursuance or purported pursuance
of any of such provisions shall not be capable of being impeached by
anyone on the ground that there was not any basis or reasonable basis
on which the Directors could have arrived at any such belief or made
any such resolution or decision, or on the ground that any conclusion
of fact on which the Directors relied or might have relied for the
purposes of arriving at any such belief or making any such resolution
or decision was incorrect, or on any other ground whatsoever.
(E) In calculating the number of days allowed for any notification to be
made under this Bye-Law 46(3), any day which is a Saturday or Sunday
shall be disregarded.
47. JOINT HOLDERS
When there are joint holders of any shares any one of such persons may
exercise such voting rights as may attach to such shares, either personally
or by proxy, as if he were solely entitled thereto; and if more than one of
such joint holders be present at any General Meeting, personally or by
proxy, that one of the said persons whose name stands first on the Register
in respect of such shares shall alone be entitled to exercise
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the voting rights in respect thereof. Several executors or administrators
of a deceased Member in whose name any share stands shall for the purposes
of this Bye-Law be deemed joint holders thereof.
48. INSTRUMENT APPOINTING PROXY TO BE IN WRITING
(1) The instrument appointing a proxy shall be in writing under the hand of the
appointer or of his attorney, or, if such appointer is a company, either
under the hand of any duly appointed director or officer of such company or
under its common seal. The instrument appointing a proxy shall be in any
usual or common form or any other form which the Directors shall from time
to time approve or accept. No person shall be appointed a proxy who is not
a Member.
(2) The provisions of paragraph (1) of this Bye-Law 48 are in addition to and
not in derogation of any other statutory or other provision enabling a
company (wherever incorporated) which is a Member in this Company to
authorise a person to act as its representative at a meeting of the Members
of this Company.
49. DELIVERY OF PROXY
An instrument either appointing a proxy or evidencing an authorisation made
in the manner referred to in paragraph (2) of Bye-Law 48 shall be left with
the Registrar (or such other person or persons as may be stated in the form
of proxy circulated with the notice of meeting) not less than 24 hours, or
such shorter time as may be stated in the form of proxy circulated with the
notice of the meeting, before the holding of the meeting or adjourned
meeting, as the case may be, at which the person named in such instrument
proposes to vote.
50. METHOD OF DETERMINING QUESTIONS
(1) Subject to the provisions of paragraph (3) of this Bye-Law 50, any question
proposed for consideration of the Members at any meeting shall be decided
on a show of hands and in such case, but subject to Bye-Law 46, every
Member present in person at such meeting shall be entitled to one vote and
shall cast such vote by raising his hand.
(2) At any meeting of the Members a declaration by the chairman that a question
proposed for consideration has, on a show of hands, been carried, or
carried unanimously or by a particular majority or lost then, an entry to
that effect in the minute book shall, subject to the provisions of
paragraph (3) of this Bye-Law 50, be conclusive evidence of that fact
without proof of the number or proportion of the votes recorded in favour
or against such question.
(3) Notwithstanding the provisions of paragraph (1) of this Bye-Law 50 but
subject to Bye-Law 46, at any General Meeting of the Company it shall be
lawful, in respect of any question proposed for consideration of the
Members (whether before or on the declaration of a show of hands as
provided for in paragraph (2) of this Bye-Law 50) for a poll to be demanded
by any of the following persons: -
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(a) the Chairman of such meeting; or
(b) at least three Members present in person or represented by proxy; or
(c) any Member or Members present in person or represented by proxy
holding shares in the Company conferring the right to vote at such
meeting, being shares on which an aggregate sum has been paid up equal
to not less than one-tenth of the total sum paid up on all such shares
conferring such rights.
51. VOTING ON POLL
Where a poll has been demanded, such poll shall be taken in the manner
provided by the Companies Acts.
DIRECTORS
52. NUMBER AND APPOINTMENT OF DIRECTORS
(A) The number of Directors shall be such number not less than two as the
Company in General Meeting may from time to time determine.
(B) No person other than a Director retiring at the meeting shall, unless
recommended by the Directors, be eligible for election to the office of
Director at any general meeting unless, not less than six and not more than
twenty-eight clear days before the day appointed for the meeting, there has
been given to the Secretary notice in writing by some Member (not being the
person to be proposed) entitled to attend and vote at the meeting for which
such notice is given of his intention to propose such person for election
and also notice in writing signed by the person to be proposed of his
willingness to be elected.
53. QUALIFICATION OF DIRECTORS
The qualification of a Director shall be the holding of one share of the
Company.
54. WHEN OFFICE OF DIRECTOR TO BE VACATED
The office of a Director shall IPSO FACTO be vacated:-
(1) if he ceases to be a Member;
(2) if by notice in writing to the Company he resigns his office;
(3) if he shall be removed from office pursuant to the provisions of
Bye-Law 71.
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55. GENERAL POWERS OF COMPANY VESTED IN DIRECTORS
The business of the Company shall be managed outside the United Kingdom by
the Directors, who may pay all expenses incurred in promoting and
incorporating the Company, and who, in addition to the powers and
authorities by these Bye-Laws or otherwise expressly conferred upon them,
may exercise all such powers and do all such acts and things as may be
exercised or done by the Company and are not hereby or by statute expressly
directed to be exercised or done by the Company in General Meeting subject
nevertheless to the provisions of any statute, and of these Bye-Laws.
56. APPOINTMENT OF ATTORNEY
The Directors may from time to time and at any time by power of attorney
appoint any person to be the attorney of the Company for such purposes and
with such powers, authorities and discretions (not exceeding those vested
in the Directors) and for such period and subject to such conditions as
they may think fit, and such powers of attorney may contain such provisions
for the protection and convenience of persons dealing with any such
attorneys as the Directors may think fit and may also authorise any such
attorney to delegate all or any of the powers, authorities and discretions
vested in him.
57. POWER TO FILL CASUAL VACANCIES
The Directors shall have power from time to time and at any time to appoint
any qualified person to fill a casual vacancy in the Board of Directors who
shall hold office until the next following Annual General Meeting, and the
continuing Directors may act notwithstanding any vacancy in their number.
58. POWER TO APPOINT CHIEF EXECUTIVE OFFICER
The Directors may, from time to time, appoint one or more of their body to
be a Chief Executive Officer of the Company, either for a fixed term or
without any limitation as to the period for which he or they is or are to
hold such office, and may from time to time remove or dismiss him or them
from office and appoint another or others in his or their place or places.
59. REMUNERATION OF CHIEF EXECUTIVE OFFICER
The remuneration of a Chief Executive Officer shall from time to time be
fixed by the Directors, and may be by way of salary, or commission, or
participation in profits, or by any or all of those modes.
60. POWERS OF CHIEF EXECUTIVE OFFICER
The Directors may from time to time entrust to and confer upon a Chief
Executive Officer for the time being such of the powers exercisable by the
Directors as they think fit, and may confer such powers for such time, and
to be exercised for such
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objects and purposes, and upon such terms and conditions, and with such
restrictions as they think expedient; and they may confer such powers,
either collaterally with, or to the exclusion of, and in substitution for,
all or any of the powers of the Directors in that behalf; and may from time
to time revoke, withdraw, alter, or vary all or any of such powers.
61. POWER TO APPOINT SUPERVISOR OF FINANCIAL AFFAIRS
The Directors may from time to time appoint a person to exercise a general
supervision over the financial affairs of the Company in accordance with
and subject to the directions of the Directors. Such person shall submit
all accounts and vouchers to the Directors and/or to the Auditors whenever
so required and shall conform to such regulations and directions as the
Directors shall prescribe. Such person shall give to the Company such
security for the faithful performance of his duties in such manner as the
Directors shall from time to time require.
62. DUTIES OF DIRECTORS
The Directors shall exercise a general supervision over the financial
affairs of the Company and shall be responsible for the correct keeping of
the books and for the safe keeping of all monies and securities of the
Company, and shall submit their accounts and vouchers to the Auditors
whenever required so to do.
63. POWER TO DELEGATE TO COMMITTEES
The Directors may delegate any of their powers to committees consisting of
two or more of the Directors and (if thought fit) one or more other persons
co-opted as hereinafter provided but every such committee shall conform to
such directions as the Directors shall impose on them. Any such directions
may provide for or authorise the co-option to the committee of persons
other than Directors and for such co-opted members to have voting rights as
members of the committee but so that (a) the number of co-opted members
shall be less than one half of the total number of members of the committee
and (b) no resolution of the committee shall be effective unless a majority
of the members of the committee present at the meeting are Directors.
64. DIRECTORS' INTERESTS
(1) A Director may hold any other office or place of profit under the Company
(other than the office of Auditor) in conjunction with his office of
Director for such period and on such terms (as to remuneration and
otherwise) as the Company in General Meeting may from time to time
determine.
(2) Any Director may act by himself or his firm in a professional capacity for
the Company, and he or his firm shall be entitled to remuneration for
professional services as if he were not a Director, provided that nothing
herein contained shall authorise a Director or his firm to act as Auditor
to the Company.
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(3) A Director of the Company may be or become a director or other officer of,
or otherwise interested in, any company promoted by the Company or in which
the Company may be interested, and shall not be liable to account to the
Company or the Members for any remuneration, profit or other benefit
received by him as a director or officer of or from his interest in such
other company. The Director may also cause the voting power conferred by
the shares in any other company held or owned by the Company to be
exercised in such manner in all respects as it thinks fit, including the
exercise thereof in favour of any resolution appointing the Directors or
any of them to be directors or officers of such other company, or voting or
providing for the payment of remuneration to the directors or officers of
such other company.
(4) A Director shall not vote or be counted in the quorum on any resolution of
the Directors concerning his own appointment as the holder of any office or
place of profit with the Company or any other company in which the Company
is interested (including the arrangement or variation of the terms thereof,
or the termination thereof).
(5) Where arrangements are under consideration concerning the appointment
(including the arrangement or variation of the terms thereof, or the
termination thereof) of two or more Directors to offices or places of
profit with the Company or any other company in which the Company is
interested, a separate resolution may be put in relation to each Director
and in such case each of the Directors concerned shall be entitled to vote
(and be counted in the quorum) in respect of each resolution except that
concerning his own appointment (or the arrangement or variation of the
terms thereof, or the termination thereof) and except (in the case of an
office or place of profit with any such other company as aforesaid) where
the other company is a company in which the Director owns one per cent. or
more.
(6) Subject to the laws of Bermuda and to the next paragraph of this Bye-Law,
no Director or proposed or intending Director shall be disqualified by his
office from contracting with the Company, either with regard to his tenure
of any office or place of profit or as vendor, purchaser or in any other
manner whatever, nor shall any such contract or any other contract or
arrangement in which any Director is in any way interested be liable to be
avoided, nor shall any Director so contracting or being so interested be
liable to account to the Company or the Members for any remuneration,
profit or other benefits realised by any such contract or arrangement by
reason of such Director holding that office or of the fiduciary
relationship thereby established.
(7) A Director who to his knowledge is in any way, whether directly or
indirectly, interested in a contract or arrangement or proposed contract or
arrangement with the Company shall declare the nature of his interest at
the meeting of the Directors at which the question of entering into the
contract or arrangement is first taken into consideration, if he knows his
interest then exists, or in any other case at the first meeting of the
Directors after he knows that he is or has become so interested. A general
notice to the Directors given by a Director to the effect that he is a
member of a specified company or firm and is to be regarded as interested
in any contract or
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arrangement which may after the date of the notice be made with such
company or firm shall be sufficient declaration of interest under this
Bye-Law in relation to any contract or arrangement so made; provided that
no such notice shall be effective unless either it is given at a meeting of
the Directors or the Director giving the same takes reasonable steps to
secure that it is brought up and read at the next meeting of the Directors
after it is given.
(8) Save as otherwise provided by these Bye-Laws, a Director shall not vote
(nor be counted in the quorum) on any resolution of the Directors in
respect of any contract or arrangement in which he is to his knowledge
materially interested, and if he shall do so his vote shall not be counted,
but this prohibition shall not apply to any of the following matters
namely:-
(i) any contract or arrangement for giving to such Director any
security or indemnity in respect of money lent by him or
obligations undertaken by him at the request of or for the benefit
of the Company or any Subsidiary;
(ii) any contract or arrangement for the giving by the Company of any
security to a third party in respect of a debt or obligation of the
Company or any Subsidiary which the Director has himself guaranteed
or secured in whole or in part;
(iii) any contract or arrangement by a Director to subscribe for shares,
debentures or other securities of the Company issued or to be
issued pursuant to any offer or invitation to shareholders or
debenture holders of the Company or any class thereof or to the
public or any section thereof, or to underwrite any shares,
debentures or other securities of the Company;
(iv) any contract or arrangement in which he is interested by virtue of
his interest in shares or debentures or other securities of the
Company or by reason of any other interest in or through the
Company;
(v) any contract or arrangement concerning any other company (not being
a company in which the Director owns one per cent. or more) in
which he is interested directly or indirectly whether as an
officer, shareholder, creditor or otherwise howsoever;
(vi) any proposal concerning the adoption, modification or operation of
a superannuation fund or retirement, death or disability benefits
scheme which relates both to Directors and employees of the Company
or of any of its Subsidiaries and does not accord to any Director
as such any privilege or advantage not generally accorded to the
employees to which such scheme or fund relates; and
(vii) any arrangement for the benefit of employees of the Company or of
any of its Subsidiaries under which the Director benefits in a
similar manner as the employees and does not accord to any Director
as such any privilege or
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advantage not generally accorded to the employees to whom such
arrangement relates.
(9) A company shall be deemed to be a company in which a Director owns one per
cent. or more if and so long as (but only if and so long as) he is (either
directly or indirectly) the holder of or beneficially interested in one per
cent. or more of any class of the equity share capital of such company or
of the voting rights available to members of such company. For the purpose
of this paragraph there shall be disregarded any shares held by a Director
as bare or custodian trustee and in which he has no beneficial interest,
any shares comprised in a trust in which the Director's interest is in
reversion or remainder if and so long as some other person is entitled to
receive the income thereof, and any shares comprised in an authorised unit
trust scheme in which the Director is interested only as a unit holder.
(10) Where a company in which a Director holds one per cent. or more is
materially interested in a transaction, then that Director shall also be
deemed materially interested in such transaction.
(11) If any question shall arise at any meeting of the Directors as to the
materiality of the interest of a Director (other than the chairman of the
meeting) or as to the entitlement of any Director (other than such
chairman) to vote or be counted in the quorum and such question is not
resolved by his voluntarily agreeing to abstain from voting or not to be
counted in the quorum, such question shall be referred to the chairman of
the meeting and his ruling in relation to such other Director shall be
final and conclusive except in a case where the nature or extent of the
interest of the Director concerned as known to such Director has not been
fairly disclosed to the Directors. If any question as aforesaid shall
arise in respect of the chairman of the meeting such question shall be
decided by a resolution of the Directors (for which purpose such chairman
shall be counted in the quorum but shall not vote thereon) and such
resolution shall be final and conclusive except in a case where the nature
or extent of the interest of such chairman as known to such chairman has
not been fairly disclosed to the Directors.
(12) The Company may by resolution suspend or relax the provisions of this
Bye-Law to any extent or ratify any transaction not duly authorised by
reason of a contravention of this Bye-Law.
65. REMUNERATION OF DIRECTORS
(1) Each Director (other than any Director who shall for the time being hold an
executive office or employment under the Company or a Subsidiary of the
Company) shall be paid out of the funds of the Company by way of
remuneration for his services as a Director such sum not exceeding
U.S.$25,000 per annum as the Directors may from time to time determine or
such larger sum as the Company in General Meeting shall from time to time
determine.
(2) The Directors shall also be paid out of the funds of the Company all their
travelling, hotel and other expenses properly incurred by them in and about
the discharge of their
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duties, including their expenses of travelling to and from meetings of the
Directors, or committee meetings, or General Meetings.
(3) The Directors may grant special remuneration to any Director who, being
called upon, shall perform any special or extra services for or at the
request of the Company. Such special remuneration may be made payable to
such Director in addition to or in substitution for his ordinary
remuneration (if any) as a Director, and may be made payable by a lump sum
or by way of salary, or commission on the dividends or profits of the
Company or of any other company in which the Company is interested or other
participation in any such profits or otherwise, or by any or all or partly
by one and partly by another or other of those modes.
66. MEETINGS OF DIRECTORS
(1) The Directors may meet together for the dispatch of business, adjourn, and
otherwise regulate their meetings, as they think fit provided that no
meeting of the Directors may be held in the United Kingdom and any decision
reached or resolution passed at a meeting held in the United Kingdom shall
be void. Questions arising at any meeting shall be decided by a majority
of votes. In the case of an equality of votes the motion shall be deemed
to have been lost. A Director may, and the Secretary on the requisition of
a Director shall, at any time summon a meeting of the Directors. Notice of
meetings of the Directors may be by telephone or otherwise.
(2) Subject to paragraph (1) above and to Bye-Law 64, a Director may
participate in a meeting of the Directors by telephone or any other form of
communications equipment which allows him to hear each of the other
Directors addressing the meeting and to address the other Directors himself
and a Director so participating may be counted in the quorum and shall be
entitled to vote.
67. QUORUM
The quorum necessary for the transaction of the business of the Directors
may be fixed by the Directors, and unless so fixed shall be two.
68. PROCEEDINGS OF COMMITTEE
The meetings and proceedings of any committee of the Directors appointed
under Bye-Law 63 shall be governed by the provisions of these Bye-Laws for
regulating the meetings and proceedings of the Directors, so far as the
same are applicable thereto. Without prejudice to the generality of the
foregoing no meeting of a committee may be held in the United Kingdom and
any decision reached or resolution passed at a meeting held in the United
Kingdom shall be void.
69. VALIDITY OF ACTS WHERE APPOINTMENT DEFECTIVE
All acts done by any meeting of the Directors or by any committee of
Directors, or by any person acting as a Director, shall, notwithstanding
that it be afterwards discovered
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that there was some defect in the appointment of any such Director or
person acting as aforesaid, or that they or any of them were disqualified,
be as valid as if every such person had been duly appointed and was
qualified to be a Director.
70. RESOLUTION WITHOUT MEETING
A resolution in writing signed by all the Directors or any written
resolution as is referred to in paragraph (b) of Bye-Law 71, shall be as
valid and effectual as if it had been passed at a meeting of the Directors
duly called and constituted.
71. REMOVAL OF DIRECTOR
Any Director may at any time be removed from office as a Director of the
Company: -
(a) by resolution of the Members to that effect;
(b) upon a written resolution specifying that a Director has been so
removed signed by all the other Directors of the Company for the
time being having been deposited at the registered office of the
Company for the time being.
Any person who may have been appointed to be an Alternate Director of the
Company to a Director who has been removed from office as hereinbefore
provided, shall cease to be an Alternate Director immediately upon the
removal of such Director as aforesaid. If appointment to an executive
office thereby automatically terminates, such removal shall be deemed to be
an act of the Company and shall have effect without prejudice to any claim
for damages for breach of any contract of service between such Director and
the Company.
72. ALTERNATE DIRECTORS
(1) At any General Meeting of the Company there may be elected a person or
persons to act as Alternate Directors to designated Directors and the
Company may at any such meeting authorise the Directors for the time being
in office to appoint such Alternate Directors.
(2) Any person appointed to be an Alternate Director shall have all the rights
and powers of the Directors to whom he is an alternate, save that he shall
not be entitled to attend and vote at any meeting of the Directors
otherwise than in the absence of such Director.
MINUTES
73. MINUTES TO BE RECORDED
(1) The Directors shall cause minutes to be duly entered in books provided for
the purpose: -
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(a) of all appointments of officers;
(b) of the names of the Directors present at each meeting of the
Directors and of any committee of the Directors;
(c) of all orders made by the Directors and committees of Directors;
and
(d) of all resolutions and proceedings of General Meetings and of
meetings of the Directors and committees.
(2) Any such minutes of any meeting of the Directors, or of any committee, or
of the Company, if purporting to be signed by the chairman of that meeting,
or by the chairman of any succeeding meeting, shall be receivable as PRIMA
FACIE evidence of the matters stated in such minutes.
OFFICERS OTHER THAN DIRECTORS
74. OFFICERS
(1) The officers of the Company shall consist of a President, one or more
Vice-Presidents, a Secretary and such other officers as the Directors may
from time to time determine.
(2) The Directors shall as soon as conveniently may be after the election of
Directors choose or elect one of their number to be the President of the
Company, another to be the Vice-President of the Company and such other
person or persons to hold any other offices (including one or more
additional Vice-Presidencies) which the Directors may from time to time
determine as herein provided. If more than one person is proposed for any
of these offices, the election shall be by ballot or such manner as the
Directors may determine.
(3) The Secretary shall be appointed or elected by the Directors and shall hold
office during the pleasure of the Directors.
(4) A Treasurer may be appointed or elected by the Directors and if so
appointed or elected shall hold office during the pleasure of the
Directors.
(5) The same person may hold the offices of Secretary and Treasurer. A
Vice-President may also be the Secretary or the Treasurer or the
Secretary-Treasurer.
75. WHO TO BE CHAIRMAN OF MEETING
The Chairman of the Board (if any) shall act as chairman at all meetings of
the Members or of the Directors at which he is present. In his absence the
President, if present, shall be chairman and, in the absence of both of
them, a Vice-President shall be appointed or elected as chairman by those
present at the meeting; if none of these is present a chairman shall be
appointed or elected by those present at the meeting.
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76. DUTIES OF SECRETARY
The Secretary shall attend all meetings of the Company and of the Directors
to keep correct minutes of such meetings and enter the same in proper books
provided for the purpose. He shall perform such other duties as are
prescribed by the Companies Acts or these Bye-Laws, or as shall be
prescribed by the Directors. The Secretary shall receive such salary as
the Directors shall from time to time determine.
DIVIDENDS
77. DECLARATION
The Directors may from time to time declare dividends but no dividend shall
be payable except out of the profits of the Company available for the
purpose.
78. REVENUE RESERVES
The Directors may from time to time before declaring a dividend set aside
out of the profits of the Company such sum as they think proper as a
reserve fund to be used to meet contingencies or for equalising dividends
or for any other special purpose.
79. DECLARATION AND PAYMENT ACCORDING TO AMOUNTS PAID OR CREDITED AS PAID ON
SHARES; APPORTIONMENT
Subject to the rights of persons, if any, entitled to shares with special
rights as to dividend, all dividends shall be declared and paid according
to the amounts paid or credited as paid on the shares in respect whereof
the dividend is paid, but no amount paid or credited as paid on shares in
advance of calls shall be treated for the purposes of this Bye-Law as paid
on the shares. All dividends shall be apportioned and paid proportionately
to the amounts paid or credited as paid on the shares during any portion or
portions of the period in respect of which the dividend is paid; but if any
shares are issued on terms providing that they shall rank for dividend as
from a particular date such shares shall rank for dividend accordingly.
80. CASH DIVIDENDS TO BE PAYABLE IN POUNDS STERLING OR U.S. DOLLARS OR OTHER
CURRENCIES
(1) All cash dividends (which in this Bye-Law are referred to as "dividends")
in respect of every class of share of the Company shall be declared in U.S.
dollars.
(2) Unless a Member with a registered address in the United Kingdom of Great
Britain and Northern Ireland (who in these Bye-Laws is referred to as a
"U.K. Member") shall have elected by notice in writing to the Company in
such form as the Company may from time to time require to receive payment
of dividends in U.S. dollars, all dividends shall be paid to such U.K.
Member in pounds Sterling in accordance with the following provisions of
this Bye-Law.
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(3) Subject always to the rights or restrictions attaching to any class of
shares, where a dividend or other cash distribution is payable to a Member
whose registered address is outside the United States of America and the
United Kingdom, the Directors may, in their discretion, determine that such
dividend or other cash distribution be paid in the currency of the country
in which such Member has his registered address and the amount of such
payment shall be determined in accordance with the following provisions of
this Bye-Law.
(4) Subject always to any rights or restrictions attached to any class of
shares and to the provisions of paragraph (3) above, unless a Member with a
registered address outside the United Kingdom of Great Britain and Northern
Ireland (who in these Bye-Laws is referred to as a "non-U.K. Member") shall
have elected by notice in writing to the Company in such form as the
Company may from time to time require to receive payment of dividends in
pounds Sterling, all dividends shall be paid to such non-U.K. Member in
U.S. dollars in accordance with the following provisions of this Bye-Law.
(5) Where any dividends are payable in a currency other than U.S. dollars
pursuant to the preceding provisions of this Bye-Law then the amount of
dividends payable shall be equal to the amount of dividends otherwise
payable in U.S. dollars translated into such other currency at such rate
and calculated on such date as the Directors may, in their discretion,
consider appropriate.
81. DEDUCTION FROM DIVIDENDS
The Directors may deduct from the dividends payable to any Member all
monies due by him to the Company on account of calls or otherwise in
relation to shares of the Company.
82. PAYMENT OTHERWISE THAN IN CASH
The Directors may direct payment of a dividend in whole or in part by the
distribution of specific assets (and in particular of paid up shares or
debentures of any other company), provided always that no distribution
shall be made which would amount to a reduction of capital except in the
manner appointed by law. Where any difficulty, including, without
limitation, any legal or practical problem under the laws of, or the
requirements of any recognised regulatory body or any stock exchange in,
any territory, arises in regard to such distribution, the Directors may
settle the same as they think expedient and in particular may issue
fractional certificates, may fix the value for distribution of such
specific assets or any part thereof, may determine that cash payments shall
be made to any Members upon the footing of the value so fixed in order to
adjust the rights of all parties and may vest any such specific assets in
trustees as may seem expedient to the Directors.
83. UNCLAIMED DIVIDENDS
All unclaimed dividends may be invested or otherwise made use of by the
Directors as they shall think fit, until the same be claimed and so that
the Company shall not
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thereby be constituted as a trustee in respect thereof and any dividend
unclaimed after a period of twelve years from the date for payment of such
dividend shall be forfeited and shall revert to the Company.
CAPITALISATION OF PROFITS AND RESERVES
84. POWER TO CAPITALISE
The Directors may resolve that it is desirable to capitalise such sum as
they may determine out of any undistributed profits of the Company not
required for paying the dividends on any shares carrying a fixed
preferential dividend and any profits or surpluses carried and standing to
the credit of any reserve or reserves or other special account and any
other amounts lawfully available for such purpose and that such sum be
capitalised and appropriated to the Members in the proportions in which
such sum would have been divisible amongst them had the same been applied
in paying dividends instead of being capitalised and that such sum be
applied on their behalf, either in or towards paying up the amounts, if
any, for the time being unpaid on any shares held by such Members
respectively or in paying up in full unissued shares, debentures or
securities of the Company of a nominal amount equal to such profits to be
allotted and distributed credited as fully paid up to and amongst such
Members in the proportions aforesaid, or partly in the one way and partly
in the other.
84A. POWER TO EFFECT A CAPITALISATION ISSUE WITH A CASH OPTION
(1) Where the Directors resolve that a capitalisation issue of Common Shares be
made under Bye-Law 84 they may also resolve that such capitalisation issue
be made with cash option whereunder, subject as herein provided and to the
provisions of The Companies Acts, each Common Shareholder may elect to
forego his entitlement under such capitalisation issue (or such part
thereof as the Directors may determine) and to receive instead a payment in
cash to the extent and within the limits and on the terms and conditions
set out in this Bye-Law. The Directors shall cause an announcement to be
made of any resolution by them pursuant to this paragraph (1) and shall
send to the Common Shareholders affected thereby notices of election as
soon as practicable.
(2) If the Directors resolve as in paragraph (1) above, each holder of Common
Shares may (by notice in writing to the Company given in such form and
within such period as the Directors may from time to time determine) elect
to receive a payment in cash of an amount fixed by the Directors and
specified in the notice in lieu of each additional Common Share to which he
would otherwise be entitled, provided that the Directors may fix a limit on
the extent to which such an election shall be effective, whether by
reference to a part of any Common Shareholder's total entitlement to
additional Common Shares or to the total number of additional Common Shares
in respect of which all such elections may be made on any occasion. Subject
to any such limits, any such election on the part of a Common Shareholder
shall be irrevocable.
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(3) Payments to those Common Shareholders who elect to receive cash instead of
their entitlement to Common Shares under such a capitalisation issue
("Cash Electors") may be made either (a) out of profits of the Company
available for the payment of dividends or (b) out of the net proceeds of
sale of the Common Shares to which the Cash Electors would have been
entitled under such capitalisation issue but for their election to receive
cash, or partly in one way and partly in the other, as the Directors
determine. To the extent that the Directors determine that payment is to
be made as in (b) above, the Directors shall be entitled to sell the
additional Common Shares to which the Cash Electors would have been
entitled, to appoint some person to execute a transfer of those shares in
the names of the Cash Electors and to receive and deliver documents of
title to those shares. Any such transfer shall be as effective as if it
had been executed by the registered holder of such shares. The net
proceeds of sale shall be applied in or towards payment of the amounts due
to Cash Electors in respect of their cash entitlement and, to the extent
that they exceed that entitlement, may be retained by the Company for its
benefit.
(4) The Directors may on occasion determine that Common Shareholders resident
in territories where, in the opinion of the Directors, compliance with
local laws or regulations would be unduly onerous if the shareholders were
to receive additional Common Shares shall be deemed to have exercised
rights of election to receive cash.
(5) Unless a U.K. Member shall have served and not withdrawn such notice as is
referred to in paragraph (2) of Bye-Law 80, any cash sum to be paid to such
U.K. Member pursuant to this Bye-Law shall be paid in pounds Sterling.
Subject always to the provisions of paragraph (3) of Bye-Law 80 which shall
apply, MUTATIS MUTANDIS, to this Bye-Law unless a non-U.K. Member shall
have served and not withdrawn such notice as is referred to in paragraph
(4) of Bye-Law 80, any cash sum to be paid to such non-U.K. Member pursuant
to this Bye-Law shall be paid in U.S. dollars.
(6) For the purpose of resolving the calculation referred to in this Bye-Law,
the Directors may convert U.S. Dollars to pounds Sterling and VICE VERSA at
such rate and calculated on such date as the Directors may, in their
discretion, consider appropriate.
84B. POWER TO GRANT SCRIP DIVIDEND OPTIONS
(1) The Directors may, subject as herein provided and to the provisions of The
Companies Acts, resolve (at the same time as they resolve to declare a
dividend in cash on the Common Shares) that each Common Shareholder may
irrevocably elect to forego his right to participate in such dividend (or
such part thereof as the Directors may determine) and to receive instead an
allotment of further Common Shares to the extent and within the limits and
on the terms and conditions set out in this Bye-Law. The Directors shall
announce any such decision as aforesaid in conjunction with any
announcement of the relevant dividend and shall send to the Common
Shareholders affected thereby notices of election as soon as practicable.
(2) If the Directors resolve as in paragraph (1) above, each holder of Common
Shares may (by notice in writing to the Company given in such form and
within such period
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as the Directors may from time to time determine) irrevocably elect to
forego the dividend in cash which otherwise would have been paid (but only
to the extent determined by the Directors under paragraph (1) above) on all
or so many of his Common Shares as he shall specify in the notice of
election and to receive in lieu such number of further Common Shares to be
allotted to him credited as fully paid as is equal to the number resulting
from resolving the following fraction (but taking any fraction of a further
Common Share to the next higher whole number)
A X B
-----
C
where A equals the number of Common Shares in respect of which such
election has been made;
where B equals the amount per share of the dividend in cash foregone
(expressed in terms of U.S. dollars and cents); and
where C equals the average of the middle market quotations for the Common
Shares on any securities market selected by the Directors and on which
those shares are listed for the five business days immediately prior to the
day on which the Directors' decision is announced after deducting from that
average the amount per share of the dividend declared expressed in terms of
U.S. dollars and cents, fractions of a cent being rounded to the nearest
whole cent and 0.5 cents being rounded downwards.
(3) Following the receipt of a notice or notices of election the Directors
shall capitalise and appropriate out of the profits of the Company
available for distribution in accordance with The Companies Acts an amount
equal to the aggregate nominal value of the number of further Common Shares
required to be allotted to the holders of Common Shares who have given
notice of election as aforesaid and shall apply such amount in paying up in
full such number of further Common Shares.
(4) No scrip dividend option shall be made available unless the Company has
sufficient unissued shares and undistributed profits or reserves or such
other sums as may be lawfully applied for such purpose to give effect to
any elections which could be made thereunder.
(5) The Directors shall have power to authorise any person on behalf of the
electing Common Shareholders to enter into an agreement with the Company
providing for the allotment to them respectively of the Common Shares to
which they are entitled in lieu of their rights to the dividend so foregone
by them respectively and any agreement made under such authority shall be
effective and binding on the Common Shareholders concerned.
(6) The Directors may on any occasion determine that rights of election
hereunder shall not be made available to, or (as the case may be) shall be
deemed to have been exercised by, Common Shareholders resident in
territories where, in the opinion of the Directors, compliance with local
laws and/or regulations would be unduly onerous.
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(7) Unless a U.K. Member shall have served and not withdrawn such notice as is
referred to in paragraph (2) of Bye-Law 80, any cash sum to be paid to such
U.K. Member pursuant to this Bye-Law shall be paid in pounds Sterling.
Subject always to the provisions of paragraph (3) of Bye-Law 80 which shall
apply, MUTATIS MUTANDIS, to this Bye-Law, unless a non-U.K. Member shall
have served and not withdrawn such notice as is referred to in paragraph
(4) of Bye-Law 80, any cash sum to be paid to such non-U.K. Member pursuant
to this Bye-Law shall be paid in U.S. dollars.
(8) For the purpose of resolving the calculation referred to in this Bye-Law,
the Directors may convert U.S. dollars to pounds Sterling and VICE VERSA at
such rate and calculated on such date as the Directors may, in their
discretion, consider appropriate.
85. POWERS INCIDENTAL THERETO
Whenever such a resolution as aforesaid whereunder a capitalisation issue
is or is to be made under Bye-Laws 84 to 84B (inclusive) shall have been
passed, the Directors shall make all appropriations and applications of the
undivided profits resolved to be capitalised thereby, and all allotments
and issues of fully paid shares, debentures or securities, if any, and
generally shall do all acts and things required to give effect thereto,
with full power to the Directors to make such provision by the rounding up
of fractions to the nearest whole number of such shares, debentures or
securities, by the issue of fractional certificates or by payment in cash
or otherwise as they think fit for the case of shares, debentures or
securities becoming distributable in fractions, and also to authorise any
person to enter on behalf of all the Members entitled thereto into an
agreement with the Company providing for the allotment to them
respectively, credited as fully paid up, of any further shares or
debentures to which they may be entitled upon such capitalisation or (as
the case may require) for the payment up by the Company on their behalf, by
the application thereto of their respective proportions of the profits
resolved to be capitalised, of the amounts or any part of the amounts
remaining unpaid on their existing shares, and any agreement made under
such authority shall be effective and binding on all such Members.
BORROWING POWERS
86. POWERS TO BORROW AND ISSUE SECURITIES
The Board may exercise all the powers of the Company to borrow money and to
mortgage or charge all or any part of the undertaking, property and assets
(present and future) and uncalled capital of the Company and to issue
debentures, bonds, notes and other securities, whether outright or as
collateral security for any debt, liability or obligation of the Company or
of any third party.
87. SPECIFIC MORTGAGES TO TRUSTEES
The Directors may, for the purpose of securing the payment of any such
bonds, debentures, or other securities as aforesaid, or the payment with
interest of any money
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so borrowed as aforesaid or payable under contract or otherwise, make and
carry into effect any arrangement which they may deem expedient by
assigning or conveying any property of the Company, including its uncalled
capital, to trustees.
ACCOUNTS
88. PROPER ACCOUNTS TO BE KEPT
The Directors shall cause proper records of account to be kept of all
transactions of the Company in such manner as to show the assets and
liabilities of the Company for the time being and the records of account
shall at all times be kept at the office of the Company or at such place as
the Directors may from time to time determine and shall always be open to
the inspection of the Directors subject always to the provisions of the
Companies Acts.
89. STATEMENT OF INCOME TO BE LAID BEFORE MEMBERS
At the Annual General Meeting in each year, the Directors shall lay before
the Members a Statement of Income.
90. BALANCE SHEET
The Directors shall cause to be made out in every calendar year and to be
laid before the Company in General Meeting a Balance Sheet as at the date
to which the Statement of Income is made up. Every Balance Sheet laid
before the Company in General Meeting shall be signed on behalf of the
Board by two of the Directors and the Auditors' Report shall be attached to
the Balance Sheet and the Auditors' Report shall be read to the meeting and
will be delivered or sent by post to the registered address of every Member
at such time as the Directors may determine, being not less than seven days
prior to the Annual General Meeting at which they are to be considered.
AUDIT
91. AUDITORS
At the Annual General Meeting or at a subsequent Special General Meeting in
each year an independent representative of the Members shall be appointed
by them as Auditors of the accounts of the Company and such Auditors shall
hold office until the Members shall appoint other Auditors. Such Auditors
may be Members but no Directors or officers of the Company shall, during
their continuance in office, be eligible as Auditors.
92. REMUNERATION OF AUDITORS
The remuneration of the Auditors shall be fixed by the Members at the time
of their appointment or subsequently and they may delegate this duty to the
Directors.
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93. VACANCIES IN OFFICE OF AUDITORS
The Directors may fill any casual vacancy in the office of Auditors.
94. DUTY TO EXAMINE BOOKS, ETC.
(1) The Auditors shall examine such books, accounts and vouchers as may be
necessary for the performance of their duties.
(2) The Auditors shall make a report to the Members in respect of the accounts
examined by them and on every Balance Sheet laid before the Company in
General Meeting during their tenure of office, and the report shall state:
-
(a) whether or not they have obtained all the information and
explanations they have required; and
(b) whether in their opinion the Balance Sheet referred to in the
report is properly drawn up so as to present fairly the financial
position of the Company and the results of its operations for the
period under review.
(3) REPORT TO BE READ
The report of the Auditors shall be read at the General Meeting at which
the Balance Sheet is submitted.
(4) AUDITORS TO BE FURNISHED WITH LIST OF BOOKS ETC.
The Auditors of the Company shall be furnished with a list of all books
kept by the Company and shall at all times have the right of access to the
books and accounts and vouchers of the Company, and shall be entitled to
require from the Directors and officers of the Company such information and
explanations as may be necessary for the performance of their duties.
(5) RIGHT TO ATTEND MEETINGS
The Auditors of the Company shall be entitled to attend any General Meeting
of the Company at which any accounts which have been examined or reported
on by them are to be laid before the Company and to make any statement or
explanations they may desire with respect to the accounts, and notices of
every such meeting shall be given to the Auditors in the manner prescribed
for Members.
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NOTICES
95. HOW NOTICE TO BE SERVED
A notice may be served by the Company on any Member either personally or by
sending it through the post prepaid in an envelope addressed to such Member
at his address as registered in the Register.
96. NOTICES TO JOINT HOLDERS
Any notice required to be given to the Members shall with respect to any
shares held jointly by two or more persons be given to the person whose
name appears first in the Register.
97. WHEN DEEMED DELIVERED
Any notice served by post shall be deemed to have been served at the
expiration of twenty-four hours after the envelope containing it was posted
and, in proving such service, it shall be sufficient to prove that the
envelope containing the notice was properly addressed and prepaid and the
time when it was posted.
98. MEMBERS RESIDENT ABROAD
All notices being posted to addresses overseas shall so far as may be
practicable be forwarded by air mail.
98A. NOTICES SERVED ON NON-MEMBERS
Any notice served on non-Members under Bye-Law 46 or 104 may be served at
the last known address of the non-Member concerned and otherwise in
accordance with the provisions of Bye-Laws 95 to 98 inclusive.
WINDING UP
99. DISTRIBUTION IN SPECIE
If the Company shall be wound up the liquidator may, with the sanction of
the Company in General Meeting divide amongst the Members IN SPECIE or kind
the whole or any part of the assets of the Company (whether they shall
consist of property of the same nature or not) and may, for such purpose
set such value as he deems fair upon any property to be divided as
aforesaid and may determine how such division shall be carried out as
between the Members or different classes of Members.
The liquidator may, with like sanction, vest the whole or any part of such
assets in trustees upon such trusts for the benefit of the contributories
as the liquidator, with the like sanction, shall think fit, but so that no
Member shall be compelled to accept any shares or other securities whereon
there is any liability.
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SEAL
100. CUSTODY OF SEAL
(A) The Directors shall provide for the safe custody of the Seal, which shall
only be used by the authority of the Directors or a committee of the
Directors authorised by the Directors in that behalf, and every instrument
to which the Seal shall be affixed shall be signed by a Director and shall
be countersigned by the Secretary or by a second Director or by some other
person appointed by the Directors for the purpose, provided that the
Secretary or any Director may affix the Seal of the Company over his
signature only to any authenticated copies of these Bye-Laws, the Minutes
of meetings or any other documents required to be authenticated by him.
(B) Every certificate for shares or loan stock or representing any other form
of security of the Company (other than letters of allotment, receipts for
securities or certificates of deposit) shall be issued under the Seal or
under any official seal kept by the Company pursuant to Bye-Law 100B.
(C) Each certificate to which the Seal shall be affixed shall bear the
autographic signatures of at least one Director and the Secretary or other
person acting in the place of the Secretary, provided that the Directors
may by resolution determine (either generally or in any particular case or
cases) that such signatures shall be dispensed with, or shall be affixed by
means of some method or system of mechanical signature.
100A. OVERSEAS SEAL
(1) The Company may have for use in any territory, district, or place elsewhere
than in Bermuda an official seal (in these Bye-Laws referred to as an
"Overseas Seal"), which seal shall be a facsimile of the Seal.
(2) A deed or other document to which the Overseas Seal is duly affixed shall
bind the Company as if it had been sealed with the Seal.
(3) The Company having an Overseas Seal for use in any such territory, district
or place may, by writing under its Seal, authorise any person or persons
appointed for the purpose as its agent or agents in that territory,
district or place to affix the Overseas Seal to any deed or other document
to which the Company is party in that territory, district or place.
(4) As between the Company and the person dealing with such an agent or agents,
the authority of such agent or agents continues during the period (if any)
mentioned in the instrument conferring the authority, or if no period is
there mentioned, then until notice of the revocation or determination of
the authority of such agent or agents has been given to the person dealing
with him.
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(5) The person affixing the Overseas Seal shall certify in writing on the deed
or other instrument to which the Overseas Seal is affixed the date on which
it is affixed.
(6) The powers referred to in this Bye-Law shall be vested in the Directors and
whenever in these Bye-Laws reference is made to the Seal the reference
shall, when and so far as may be applicable, be deemed to include any
Overseas Seal and any Securities Seal (as defined in Bye-Law 100B below).
100B. SECURITIES SEAL
(1) The Company may have, for use for sealing securities issued by the Company
and for sealing documents creating or evidencing securities so issued, an
official seal (in these Bye-Laws referred to as a "Securities Seal") which
is a facsimile of the Seal with the addition on its face of the word
"Securities".
(2) Each certificate to which the Securities Seal shall be affixed need not
bear any signature.
ALTERATION OF BYE-LAWS
101. ALTERATION OF BYE-LAWS
The Directors may from time to time revoke, alter, amend or add to these
Bye-Laws provided that no such revocation, alteration, amendment or
addition shall be operative unless and until it is confirmed at a
subsequent General Meeting of the Company.
INDEMNITY
102. INDEMNITY
Every Director, Secretary and other officer of the Company shall be
indemnified by the Company against, and it shall be the duty of the
Directors out of the funds of the Company to pay, all costs, losses and
expenses which any such officer may incur or become liable to by reason of
any contract entered into, or act or thing done by him as such officer, or
in any way in the discharge of his duties Provided always that the
indemnity contained in this Bye-Law shall not extend to any matter which
would render it void pursuant to the Companies Acts.
INDIVIDUAL RESPONSIBILITY OF DIRECTORS
103. INDIVIDUAL RESPONSIBILITY OF DIRECTORS
No Director, Secretary or other officer of the Company shall be liable for
the acts, receipts, neglects, or defaults of any other Director or officer,
or for joining in any receipt or other act for conformity, or for any loss
or expense happening to the Company through the insufficiency or deficiency
of title to any property acquired by order of the Directors for or on
behalf of the Company, or for the insufficiency or
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deficiency of any security in or upon which any of the monies of the
Company shall be invested, or for any loss or damage arising from the
bankruptcy, insolvency, or tortious act of any person with whom any monies,
securities, or effects shall be deposited, or for any loss occasioned by
any error of judgment, omission, default, or oversight on his part, or for
any other loss, damage or misfortune whatever which shall happen in
relation to the execution of the duties of his office or in relation
thereto, unless the same happen through his own wilful negligence, wilful
default, fraud or dishonesty.
TAKE-OVER OFFERS FOR THE COMPANY
104. TAKE-OVER OFFERS FOR THE COMPANY
(1) (A) Where any person is or becomes interested, whether as a result of
transactions over a period of time or not, in shares in the capital of
the Company in circumstances in which he would be obliged to make or
extend an offer or offers to shareholders or holders of other
securities or rights referred to in paragraph (4) below of the Company
under the Rules for the time being of the City Code on Take-overs and
Mergers of the United Kingdom of Great Britain and Northern Ireland
(the "City Code", which expression shall include any revision or
modification thereof) issued by the Panel on Take-overs and Mergers
("the Panel", which expression shall include any body which succeeds
to the functions of the said Panel) if the Company was a company
incorporated in the United Kingdom of Great Britain and Northern
Ireland to which the City Code applied, the Directors may serve upon
that person a notice requiring him to make or extend an offer or
offers in writing in accordance with the requirements of the City Code
in all respects as if the City Code did apply to the Company but so
that references in the City Code to the Panel shall be construed, for
the purposes of this Bye-Law, as if they were references to the Board
of Directors of the Company.
(B) Where any person has acquired, is in the process of acquiring, or
appears to the Directors likely to acquire an interest in shares in
the capital of the Company in circumstances in which he would be
subject to the Rules Governing Substantial Acquisitions of Shares (the
"SARs", which expression shall include any revision or modification
thereof) issued by the Panel, if the Company was a company
incorporated in the United Kingdom of Great Britain and Northern
Ireland to which the SARs applied, the Directors may serve upon that
person a notice requiring him to comply with the provisions of the
SARs in relation to any acquisition made (after the date of adoption
of this paragraph (1)(B)) or proposed to be made by him and if that
person has made (after the date of adoption of this paragraph (1)(B))
or subsequently makes any acquisition in contravention of the
provisions of the SARs such a notice or a further notice issued by the
Directors may require that person to dispose or to procure the
disposal by any person with whom he has acted in concert of any
interest in shares so acquired within twenty-eight days of the date of
such notice.
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(C) If a notice served under paragraph (1)(B) requiring a disposal of
shares is not complied with in accordance with its terms and has not
been withdrawn, the Directors may, so far as they are able, dispose of
the shares to which such notice relates at the best price reasonably
obtainable in all the circumstances in which case they shall give
written notice of such disposal to the person or persons on whom such
notice was served. Except as hereinafter provided such a disposal
shall be completed as soon as reasonably practicable after the giving
of a notice under this paragraph (1)(C) as may in the opinion of the
Directors be consistent with obtaining the best price reasonably
obtainable and in any event within thirty days of expiry of such
notice provided that a disposal under this paragraph (1)(C) shall be
suspended during the period when dealings by the Directors in the
Company's shares are not permitted either by law or by the regulations
of any stock exchange upon which those shares of the Company which are
to be disposed of are listed, but any disposal under this paragraph
which is suspended as aforesaid shall be completed within thirty days
after expiry of the period of such suspension and provided further
that neither the Company nor the Directors shall be liable to any
holder or any person having an interest in any share or other person
for failing to obtain the best price so long as the Directors act in
good faith within the period specified above.
(D) For the purpose of effecting any disposal under paragraph (1)(C)
above, the Directors may authorise in writing any officer or employee
of the Company to execute any necessary transfer on behalf of any
holder and may issue a new certificate to the purchaser. The net
proceeds of such disposal shall be received by the Company, whose
receipt shall be a good discharge for the purchase money, and shall be
paid (without any interest being payable thereon) to the former holder
upon surrender by him of the certificate in respect of the shares sold
and formerly held by him.
(E) The provisions of these Bye-Laws relating to the protection of
purchasers of shares sold under a lien or upon forfeiture shall apply
MUTATIS MUTANDIS to disposals under this Bye-Law.
(2) Any notice served under paragraph (1) above may also require the person on
whom it is served to execute an undertaking under seal in favour of the
Directors (as trustees for all the holders of shares in the capital of the
Company) and in a form satisfactory to the Directors to observe and perform
the rules and requirements of the City Code or the SARs as the case may be
as if the same were applicable to the Company and in the manner prescribed
in paragraph (1) above.
(3) Where any person is interested, whether as a result of a series of
transactions over a period of time or not, in Common Shares which (taken
together with shares held or acquired by persons acting in concert with
him) represent 30 per cent. or more of all the Common Shares for the time
being in issue and the Directors determine that it is not expedient to
serve a notice under paragraph (1)(A) above or if any person upon whom such
a notice is served fails within thirty days to comply with the same, the
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Directors may serve upon that person a notice requiring him to make an
offer in writing (the "Offer"), within 30 days of the date of such notice
on the basis set out in the following paragraphs, to the holders of every
class of share capital of the Company (whether voting or non-voting) to
purchase all such shares for cash on terms that payment in full therefor
will be made within 21 days of the Offer becoming or being declared
unconditional in all respects.
(4) Where the Directors serve a notice upon any person in accordance with
paragraph (3) above, they may also include in that notice a requirement
that such person shall make an appropriate offer or proposal in writing to
the holders of every class of securities convertible into, or of rights to
subscribe for, share capital of the Company (whether such share capital is
voting or non-voting). Such appropriate offer or proposal is referred to
in this Bye-Law as a "Convertible Offer". The Convertible Offer shall be
made at the same time as the Offer. The terms of the Convertible Offer
shall be such terms as the Directors, in their absolute discretion,
consider to be fair and reasonable having regard to the terms of the Offer
and the Directors shall notify such terms to the person specified in
paragraph (3) above (the "Offeror"). The Convertible Offer shall be
conditional only upon the Offer becoming or being declared unconditional in
all respects.
(5) In addition to the Offeror, the Directors may require, in their absolute
discretion, each of the principal members of a group of persons acting in
concert with him and who appear to be interested in any shares in, or
convertible securities of, the Company to make the Offer and/or the
Convertible Offer. For the purposes of this Bye-Law, persons shall be
deemed to be acting in concert if, pursuant to an agreement or
understanding (whether formal or informal) they actively co-operate in
acquiring or seeking to acquire shares in, or convertible securities of,
the Company.
(6) Unless the Directors otherwise agree, an offer made under paragraphs (3),
(4) or (5) of this Bye-Law must, in respect of each class of share capital
or convertible securities involved, be in cash or be accompanied by a cash
alternative offer at not less than the highest price paid by the Offeror or
any person acting in concert with it for shares or convertible securities
of that class within the preceding 12 months. If such price cannot be
ascertained by the Directors or if such shares or convertible securities
have been acquired other than for cash pursuant to a bargain made on any
recognised stock exchange or if the Directors consider that such highest
price is, for any reason, inappropriate, unfair or unreasonable having
regard to the size and timing of the relevant purchases, the relationship
(if any) between the seller and purchaser of such shares or convertible
securities or the number of shares or convertible securities purchased in
the preceding 12 months, the Directors may, in any such case, fix the price
at which the Offer, the Convertible Offer or the cash alternative offer is
to be made. The cash Offer, the cash Convertible Offer or the cash
alternative offer must, in each case, remain open for not less than 14 days
after the date on which the Offer or the Convertible Offer, as the case may
be, has become or is declared to be unconditional as to acceptances.
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(7) Any person who makes or is about to make or who is or can be required to
make an offer under this Bye-Law or who has made such an offer which has
lapsed, shall observe and shall procure that any persons acting in concert
with him shall observe the rules and requirements of the City Code both in
letter and in spirit prior to, during the pursuit of and, if applicable,
after the failure of such an offer.
(8) For the purposes of this Bye-Law, any questions or disputes arising out of
the grant of consent by the Directors, the comparability of offers, the
terms of offers, any question as to whether any person shall be regarded as
acting in concert with another, any question regarding the interpretation
or application of the City Code and the meaning of any terms or phrases
used in this Bye-Law or the City Code shall be determined by the Directors
in their absolute discretion.
___________________
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SCHEDULE
(1) The authorised share capital of the Company is U.S.$425,750,000
divided into 1,503,750,000 Common Shares of the nominal value of
U.S.$0.20 each ("Common Shares") and 125,000,000 Preference Shares of
the nominal value of U.S.$1 each (the "Preference Shares").
(2) The rights attaching to the Preference Shares shall be as follows: -
(i) Each Preference Share shall have attached to it such
preferred, qualified or other rights and be subject to such
restrictions whether in regard to dividend, return of capital,
redemption, conversion into Common Shares or voting or
otherwise as the Directors may determine on or before its
allotment.
(ii) The Directors may allot the Preference Shares in more than one
series and, if they do so, may designate each series in such
manner as they deem appropriate to reflect the particular
rights and restrictions attached to that series, which may
differ in all or any respects from any other series of
Preference Shares.
(iii) The particular rights and restrictions attached to any
Preference Share shall be recorded in a resolution of the
Directors. The Directors may at any time before the allotment
of any Preference Share by further resolution in any way amend
such rights and restrictions or vary or revoke its
designation. A copy of any such resolution or amending
resolution for the time being in force shall be annexed as an
appendix to (but shall not form part of) these Bye-Laws
(iv) A Preference Share shall not have attached to it any right or
restriction which is inconsistent with the special rights and
privileges attached to any other class of preference share for
the time being in issue.
(3) For the avoidance of doubt, the provisions of the Bye-Laws shall have
effect subject to the provisions of this Schedule and to such rights
and restrictions as may be attached to any of the Preference Shares.
(4) Any resolution of the Directors designating the rights attaching to
any Preference Shares which is in effect at the date on which the
provisions of this Schedule become effective shall be deemed to have
been made pursuant to paragraph (2) of this Schedule(2).
_____________________
(2) This Schedule was substituted for the previous version on 27th March, 1998.
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APPENDIX A
TO THE BYE-LAWS OF TYCO INTERNATIONAL LTD.
Extract from the minutes of a
Meeting of the Board of Directors of Tyco International Ltd.
(formerly ADT Limited)
held on November 4, 1996
relating to the creation of a series of
First Preference Shares
(as defined in the Bye-Laws of the Company(3))
"IT WAS RESOLVED THAT, subject to the powers of the directors of the Company or
any duly authorised committee of the board of directors of the Company to revoke
this resolution or in any way amend the rights and restrictions attached to the
Series A First Preference Shares by this resolution at any time before the
allotment of any such shares:
(1) 2,500,000 of the First Preference Shares be and are hereby designated as
Series A First Preference Shares of US$1 each and shall have attached to
them the rights and shall be subject to the restrictions set out in Exhibit
A and Exhibit A shall be attached to these minutes for the purpose of
recording the same in these minutes; and
(2) in accordance with paragraph (2)(iii) of the schedule to the bye-laws of
the Company, a copy of Exhibit A be annexed as an appendix to the bye-laws
of the Company.
EXHIBIT A(4)
The rights attaching to the Series A First Preference Shares shall be as
follows:
Section 1. AS REGARDS INCOME
(A) A holder of a Series A First Preference Share shall be entitled to
receive, when, as and if declared by the Directors out of funds legally
available for the purpose, quarterly dividends payable on March 31, June
30, September 30 and December 31 of each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issue of any
Series A First Preference Share, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) US$1.00 and (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate
amount or value of all cash dividends or other distributions and 100 times
the aggregate amount or value of all non-cash dividends or other
distributions (other than (i) a dividend payable in Common Shares or (ii) a
subdivision of the Common Shares (by
__________________
(3) This class of shares is now designated as "Preference Shares" - see the
Schedule to the Bye-Laws.
(4) As amended by the Resolution set out in Appendix B to the Bye-Laws.
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reclassification or otherwise)), declared on each Common Share since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issue of any
Series A First Preference Share. If the Company shall at any time after
November 4, 1996 (the "Rights Date") pay any dividend on Common Shares
payable in Common Shares or effect a subdivision or consolidation of the
Common Shares (by reclassification or otherwise) into a greater or lesser
number of Common Shares, then in each such case the amount to which a
holder of a Series A First Preference Share is entitled under (b) of the
preceding sentence shall be adjusted by multiplying the amount to which
that holder would have been entitled (absent this adjustment) under (b) of
the preceding sentence by a fraction the numerator of which is the number
of Common Shares in issue immediately after such event and the denominator
of which is the number of Common Shares that were in issue immediately
prior to such event.
(B) The Company shall declare a dividend or distribution on the Series A First
Preference Shares as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Shares (other than as
described in (i) and (ii) of the first sentence of paragraph (A) above);
provided that if no dividend or distribution shall have been declared on
the Common Shares during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date (or, with
respect to the first Quarterly Dividend Payment Date, the period between
the first issue of any Series A First Preference Share and such first
Quarterly Dividend Payment Date), a dividend of US$1.00 per share on each
Series A First Preference Share shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on a Series A First
Preference Share from the Quarterly Dividend Payment Date next preceding
the date of issue of such Series A First Preference Share, unless the date
of issue of such share is on or before the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such share
shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on a Series A First Preference Share in an amount less than
the total amount of such dividends at the time accrued and payable on such
share shall be allocated pro rata among all such shares at the time in
issue. The Directors may fix a record date for the determination of
holders of Series A First Preference Shares entitled to receive payment of
a dividend or distribution declared thereon, which record date shall not be
more than 60 days prior to the date fixed for the payment thereof.
Section 2. AS REGARDS CAPITAL
Upon any liquidation, dissolution or winding up of the Company, no
distribution shall be made (1) to the holders of shares ranking in order of
priority after (either as regards income or capital) the Series A First
Preference Shares unless, prior thereto, the holders of Series A First
Preference Shares shall have received US$1.00 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon,
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whether or not declared, to the date of such payment; provided that the
holders of shares of Series A First Preference Shares shall be entitled to
receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount
to be distributed per share to holders of Common Shares, or (2) to the
holders of shares ranking in order of priority PARI PASSU with the Series A
First Preference Shares (either as regards income or capital), except
distributions made rateably on the Series A First Preference Shares and all
such other shares ranking in order of priority PARI PASSU with the Series A
First Preference Shares in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution
or winding up. If the Company shall at any time after the Rights Date pay
any dividend on Common Shares payable in Common Shares or effect a
subdivision or consolidation of the outstanding Common Shares (by
reclassification or otherwise) into a greater or lesser number of Common
Shares, then in each such case the aggregate amount to which holders of
shares of Series A First Preference Shares is entitled under the proviso in
(1) of the preceding sentence shall be adjusted by multiplying the amount
to which those holders would have been entitled (absent this adjustment)
under the proviso in (1) of the preceding sentence by a fraction the
numerator of which is the number of Common Shares that were outstanding
immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
Section 3. AS REGARDS VOTING
Subject to and in accordance with the provisions of the Companies Acts and
the Bye-laws of the Company (in particular, without limitation,
paragraph (7) of the Schedule to the Bye-laws of the Company) at any
meeting of the Company each holder of a Series A First Preference Share
present in person shall be entitled to one vote on any question to be
decided on a show of hands and each such holder present in person or by
proxy shall be entitled on a poll to one vote for each Series A Preference
Share held by him.
Section 4. AS TO CONVERSION
The Series A First Preference Shares shall not be convertible into all or
any other shares or securities of the Company.
Section 5. AS TO REDEMPTION
The Series A First Preference Shares shall not be redeemable.
Section 6. CERTAIN RESTRICTIONS
(A) Whenever quarterly dividends or other dividends or distributions payable on
the Series A First Preference Shares as provided in Section 1 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on issued Series A First Preference
Shares shall have been paid in full, the Company shall not:
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(i) declare or pay dividends on, or make any other distributions on,
any shares ranking in order of priority after the Series A First
Preference Shares (either as regards income or capital);
(ii) declare or pay dividends on, or make any other distributions on,
any shares ranking in order of priority PARI PASSU with the Series
A First Preference Shares (either as regards income or capital),
except dividends paid rateably on the Series A First Preference
Shares and all such other shares ranking PARI PASSU with them on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem, purchase or otherwise acquire for value any shares ranking
in order of priority after the Series A First Preference Shares
(either as regards income or capital) to the Series A First
Preference Shares; provided that the Company may at any time
redeem, purchase or otherwise acquire shares ranking in order of
priority after the Series A First Preference Shares in exchange for
shares of the Company ranking in order of priority after the Series
A First Preference Shares (either as regards income or capital); or
(iv) purchase or otherwise acquire for value any Series A First
Preference Shares, or any shares ranking PARI PASSU with the Series
A First Preference Shares (either as regards income or capital),
except in accordance with a purchase offer made in writing or by
publication (as determined by the Directors) to all holders of
Series A First Preference Shares and all such other shares ranking
pari passu upon such terms as the Directors, after consideration of
the respective annual dividend rates and other relative rights and
preferences of the respective classes and series, shall determine
in good faith will result in fair and equitable treatment among the
respective classes or series.
(B) The Company shall not enter into any consolidation, amalgamation,
combination or other transaction under any applicable law in which the
Common Shares are exchanged for or changed into other shares or securities,
cash or any other property, unless in any such case the Series A First
Preference Shares shall at the same time be similarly exchanged for or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of shares,
securities, cash or any other property, as the case may be, into which or
for which each Common Share is changed or exchanged. If the Company shall
at any time after the Rights Date pay any dividend on Common Shares payable
in Common Shares or effect a subdivision or consolidation of the Common
Shares (by reclassification or otherwise) into a greater or lesser number
of Common Shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of
Series A First Preference Shares shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of Common Shares
in issue immediately after such event and the denominator of which is the
number of Common Shares that were in issue immediately prior to such event.
49
<PAGE>
Section 7. OTHER RIGHTS
(A) Any Series A First Preference Share purchased or otherwise acquired by the
Company in any manner whatsoever shall be cancelled on acquisition thereof.
(B) The Series A First Preference Shares shall rank in order of priority (as
regards income and capital) after all other classes and series of the
Company's preference shares from time to time except any class or series
that expressly provides that such class or series shall rank in order of
priority after the Series A First Preference Shares. The rights conferred
upon the holders of Series A First Preference Shares shall not be deemed to
be varied by the creation or issue of further shares ranking in order of
priority before, PARI PASSU with or after the Series A First Preference
Shares.
Terms defined in the Bye-Laws (including the Schedule) of the Company shall have
the same meanings in this resolution of the Directors attached as an Appendix to
the Bye-Laws."
50
<PAGE>
APPENDIX B
TO THE BYE-LAWS OF TYCO INTERNATIONAL LTD.
Extract from Resolutions
of the Board of Directors of Tyco International Ltd. (formerly ADT Limited)
effective on July 2, 1997
relating to the creation of further Series A
First Preference Shares
"RESOLVED that, subject to the powers of the Directors or any duly authorized
committee of the Board of Directors of the Company to revoke this resolution or
in any way amend the rights and restrictions attached to the Series A First
Preference Shares at any time before the allotment of any such shares, with
effect from the Effective Time(5):
(i) an additional 5,000,000 of the First Preference Shares be and are hereby
designated as Series A First Preference Shares of US$1.00 each, so as to
form a single series with the 2,500,000 Series A First Preference Shares
designated as such by a resolution of the Board of Directors passed on
November 4, 1996, and shall have attached to them the rights and shall
be subject to the restrictions set out in Exhibit A in Appendix A to the
bye-laws of the Company, as such rights and restrictions are amended by
paragraph (ii) below;
(ii) the rights and restrictions attached to all the Series A First
Preference Shares, as set out in Appendix A to the bye-laws of the
Company, be and are hereby amended by:
(a) deleting from the last sentence of paragraph (A) of Section 1 of
Exhibit A the words "was entitled immediately prior to such event
under (b) of the preceding sentence shall be adjusted by
multiplying such amount" and substituting therefor the words: "is
entitled under (b) of the preceding sentence shall be adjusted by
multiplying the amount to which that holder would have been
entitled (absent this adjustment) under (b) of the preceding
sentence"; and
(b) deleting from the last sentence of Section 2 of Exhibit A the
words "were entitled immediately prior to such event under the
proviso in (1) of the preceding sentence shall be adjusted by
multiplying such amount" and substituting therefor the words "is
entitled under the proviso in (1) of the preceding sentence shall
be adjusted by multiplying the amount to which those holders
would have been entitled (absent this adjustment) under the
proviso in (1) of the preceding sentence"; and
(iii) in accordance with paragraph (2)(iii) of the schedule to the bye-laws of
the Company, a copy of this resolution be annexed as Appendix B to the
bye-laws of the Company."
__________________________
(5) The "Effective Time" was July 2, 1997.
51
<PAGE>
Exhibit 3.4
TYCO INTERNATIONAL GROUP S.A.
Societe anonyme
Siege social: Luxembourg
ARTICLES OF ASSOCIATION
OF
TYCO INTERNATIONAL GROUP S.A.
TITLE I.- DENOMINATION, REGISTERED OFFICE, OBJECT,
DURATION
ARTICLE 1
There is established hereby a societe anonyme under the name of TYCO
INTERNATIONAL GROUP S.A.
ARTICLE 2
The registered office of the corporation is established in Luxembourg.
The registered office may be transferred to any other place in the
municipality by a decision of the board of directors.
If extraordinary political or economic events occur or are imminent,
which might interfere with the normal activities of the registered office, or
with easy communication between the registered office and abroad, the
registered office shall be declared to have been transferred abroad
provisionally, until the complete cessation of such extraordinary events.
Such provisional transfer, shall have no effect on the nationality of the
company. Such declaration of the transfer of the
<PAGE>
registered office shall be made and brought to the attention of third parties
by the organ of the corporation which is best situated for this purpose under
such circumstances.
ARTICLE 3
The corporation is established for an unlimited period.
ARTICLE 4
The corporation may carry out all transactions pertaining directly or
indirectly to the acquiring of participating interests in any enterprises in
whatever form and the administration, management, control and development of
those participating interests.
The corporation may issue bonds, notes and other debt instruments both
in public and private placements, in registered or bearer form, with any
denomination and payable in any currencies.
The corporation may furthermore carry out any commercial, industrial
or financial operations as well as any transactions in respect of real estate
or moveable property.
In particular, the corporation may use its funds whether borrowed or
not for creation, development and control of any enterprise and the grant to
companies in which the corporation has a participating interest or which are
under the same control as the corporation, any support, loans, advances or
guarantees.
TITLE II.- CAPITAL, SHARES
ARTICLE 5
The subscribed capital of the corporation is fixed at FORTY THOUSAND
US DOLLARS (40.000.- USD) represented by twenty thousand (20.000) shares with
a par value of TWO US DOLLARS (2.- USD) each.
Shares may be evidenced at the owners option, in certificates
representing single shares or in certificates representing two or more shares.
<PAGE>
Shares may be issued in registered or bearer form, at the
shareholder's option.
The corporation may, to the extent and under the terms permitted by
law, purchase its own shares.
TITLE III.- MANAGEMENT
ARTICLE 6
The corporation shall be managed by a board of directors composed of
at least three members, either shareholders or not, who shall be appointed
for a term not exceeding six years, by a general meeting of shareholders.
They may be reelected and may be removed at any time by a general meeting of
shareholders.
The number of directors and their term of office shall be fixed by a
general meeting of shareholders.
In the event of a vacancy on the board of directors, the remaining
directors have the right to fill in the vacancy, which decision has to be
ratified by the next general meeting.
ARTICLE 7
The board of directors shall elect from among its members a chairman.
A meeting of the board of directors shall be convened at any time upon
call by the chairman or at the request of not less than two directors.
The board of directors may validly deliberate and act only if the
majority of its members are present or represented, a proxy between
directors, which may be given by letter, telegram, telex or telefax being
permitted. In case of emergency, directors may vote by letter, telegram,
telex or telefax. Resolutions shall require a majority vote.
In case of a tie, the chairman has a casting vote.
ARTICLE 8
The board of directors shall have the broadest powers to perform all
acts of administration and disposition in compliance with the corporate
object stated in Article 4 hereof.
<PAGE>
All powers not expressly reserved by law or by the present articles of
association to a general meeting of shareholders, shall fall within the
competence of the board of directors.
The board of directors may pay interim dividends in compliance with
the legal requirements.
ARTICLE 9
The corporation shall be bound in all circumstances by the joint
signature of two directors or by the sole signature of the managing director,
provided that special arrangements have been reached concerning the
authorized signature in the case of a delegation of powers or proxies given
by the board of directors pursuant to Article 10 hereof.
ARTICLE 10
The board of directors may delegate its powers for the conduct of the
daily management of the corporation, to one or more directors, who will be
called managing directors.
The board of directors may also commit the management of all or part
of the affairs of the corporation, to one or more managers, and give special
powers for determined matters to one or more proxyholders. Such proxyholder
or manager shall not be required to be a director or a shareholder.
Delegation to a member of the board of directors is subject to a prior
authorization of the general meeting.
ARTICLE 11
Any litigation involving the corporation either as plaintiff or as
defendant, will be handled in the name of the corporation by the board of
directors, represented by its chairman or by a director delegated for such
purpose.
TITLE IV.- SUPERVISION
ARTICLE 12
The corporation shall be supervised by one or more statutory auditors,
appointed by a general
<PAGE>
meeting of shareholders which shall fix their number, remuneration, and their
term of office, such office not to exceed six years.
They may be reelected and removed at any time.
TITLE V.- GENERAL MEETING
ARTICLE 13
The annual general meeting of shareholders will be held in the commune
of the registered office at the place specified in the convening notices on
the second Tuesday of February at 10.00 a.m.
If such day is a legal holiday, the annual general meeting will be
held on the next following business day.
If all the shareholders are present or represented and if they declare
that they have had knowledge of the agenda, the general meeting may take
place without previous convening notices. Each share gives the right to one
vote.
TITLE VI.- ACCOUNTING YEAR, ALLOCATION OF PROFITS
ARTICLE 14
The accounting year of the corporation shall begin on the 1st of
October and shall terminate on the 30th of September of the next year.
ARTICLE 15
After deduction of any and all expenses and amortizations of the
corporation, the credit balance represents the net profits of the
corporation. Of such net profit, five percent (5%) shall be compulsorily
appropriated for the legal reserve; such appropriation shall cease when the
legal reserve amounts to ten percent (10%) of the capital of the corporation,
but shall be resumed until the reserve is entirely reconstituted if, at any
time and for whatever reason, the legal reserve has fallen below the required
ten percent of the capital of the corporation (10%).
The balance of the net profit is at the disposal of the general meeting.
TITLE VII.- DISSOLUTION, LIQUIDATION
<PAGE>
ARTICLE 16
The corporation may be dissolved by a resolution of the general
meeting of shareholders. The liquidation will be carried out by one or more
liquidators, appointed by the general meeting of shareholders which will
specify their powers and fix their remuneration.
TITLE VIII.- GENERAL PROVISIONS
ARTICLE 17
All matters not governed by these articles of association are to be
construed in accordance with the law of August 10th 1915 on commercial
companies and the amendments thereto.
<PAGE>
Exhibit 4.1
DRAFT
4/22/98
- --------------------------------------------------------------------------------
TYCO INTERNATIONAL GROUP S.A.,
as Issuer
AND
TYCO INTERNATIONAL LTD.,
as Guarantor
AND
THE BANK OF NEW YORK,
as Trustee
Indenture
Dated as of ________ __, 1998
_______________
- --------------------------------------------------------------------------------
<PAGE>
THIS INDENTURE, dated as of ________ __, 1998, among TYCO
INTERNATIONAL GROUP S.A., a Luxembourg company (the "Issuer"), TYCO
INTERNATIONAL LTD., a Bermuda company ("Tyco International"), and THE BANK OF
NEW YORK, a New York corporation (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, and the Issuer has duly authorized the execution and
delivery of this Indenture;
WHEREAS, Tyco International has duly authorized the execution and
delivery of this Indenture and deems it appropriate from time to time to issue
its guarantees of the Securities on the terms and substantially in the form
herein provided; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer, Tyco International and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities as follows:
ARTICLE ONE
1.
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the terms "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" means such accounting principles as are generally
accepted in the United States at the time of any computation. The words
"HEREIN", "HEREOF" and "HEREUNDER" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person (i) existing at
the time such Person becomes a Restricted Subsidiary of (ii) assumed in
connection with the acquisition of assets of such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary or such acquisition, as the case
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<PAGE>
may be.
"AFFILIATE" means, with respect to any specified Person: (i) any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person; (ii) any other Person
that owns, directly or indirectly, 10% or more of such specified Person's
Capital Stock or any officer or director of any such specified Person; (iii) any
other Person 10% or more of the Voting Stock of which is beneficially owned or
held directly or indirectly by such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"ATTRIBUTABLE DEBT" means in connection with a Sale and Lease-Back
Transaction, as of any particular time, the aggregate of present values
(discounted at a rate per annum equal to the average interest borne by all
outstanding Debt Securities (or, if set forth in a resolution of the Board of
Directors or a supplemental indenture pursuant to Section 2.4 with respect to
one or more series, the Outstanding Securities of such series) determined on a
weighted average basis and compounded semi-annually) of the obligations of the
Issuer or any Restricted Subsidiary for net rental payments during the remaining
term of the applicable lease (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). The term "net
rental payments" under any lease of any period shall mean the sum of the rental
and other payments required to be paid in such period by the lessee thereunder,
not including, however, any amounts required to be paid by such lessee (whether
or not designated as rental or additional rental) on account of maintenance and
repairs, reconstruction, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales,
maintenance and repairs, reconstruction, insurance, taxes, assessments, water
rates or similar charges.
"BOARD " means either the Board of Managers or the Board of Directors,
as applicable of the Issuer, Tyco International or any other Guarantor, as the
case may be, or any committee of such Board duly authorized to act hereunder.
"BUSINESS DAY" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"CAPITAL STOCK" of any Person means any and all shares, interests,
participations, rights in or other equivalents (however designated) of such
Person's capital stock, other equity interests whether now outstanding or issued
after the date of this Indenture, partnership interests, (whether general or
limited), any other interest or participation that confers on a Person that
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person and any rights (other than debt securities
convertible into Capital Stock), warrants or options exchangeable for or
convertible into such Capital Stock.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"CONSOLIDATED NET WORTH" means, at any date, the total assets less the
total
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<PAGE>
liabilities, in each case appearing on the most recently prepared consolidated
balance sheet of the Issuer and its subsidiaries as of the end of a fiscal
quarter of the Issuer, prepared in accordance with United States generally
accepted accounting principles as in effect on the date of calculation.
"CONSOLIDATED TANGIBLE ASSETS" means, at any date, the total assets
less all intangible assets appearing on the most recently prepared consolidated
balance sheet of the Issuer and its subsidiaries as of the end of a fiscal
quarter of the Issuer, prepared in accordance with United States generally
accepted accounting principles as in effect on the date of calculation.
"Intangible Assets" means the amount (if any) which would be stated under the
heading "Costs in Excess of Net Assets of Acquired Companies" or under any other
heading relating to intangible assets separately listed, in each case on the
face of the aforesaid consolidated balance sheet.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 101 Barclay Street, 21 West, New York, New York
10286, Attention: Corporate Trust Administration.
"DEPOSITARY" means, unless otherwise specified by the Issuer pursuant
to either Section 2.4 or 2.15, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered under the Securities Exchange Act of
1934 or other applicable statute or regulation.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 4.1.
"FUNDED INDEBTEDNESS" means any Indebtedness maturing by its terms
more than one year from the date of the determination thereof, including any
Indebtedness renewable or extendible at the option of the obligor to a date
later than one year from the date of the determination thereof.
"GLOBAL SECURITY" means a Security issued to evidence all or part of
any series of Securities which is executed by the Issuer and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and pursuant to an Issuer
order which shall be registered in the name of the Depositary or its nominee.
"GUARANTEE" means the unconditional and unsubordinated guarantee by
Tyco International or any other Guarantor of the due and punctual payment of
principal of, interest on the Securities when and as the same shall become due
and payable, whether at the stated maturity, by acceleration, call for
redemption or otherwise in accordance with the terms of the Securities and this
Indenture.
"GUARANTOR" means Tyco International or any Subsidiary executes a
guarantee of the Debt Securities contemplated by Section 3.11 until a successor
replaces such party pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms mean the registered holder of any Security.
"INDEBTEDNESS" means, without duplication, the principal or face
amount of (i) all obligations for borrowed money, (ii) all obligations evidenced
by debentures, notes or other similar instruments, (iii) all obligations in
respect of letters of credit or bankers acceptances or similar instruments (or
reimbursement obligations with respect thereto), (iv) all obligations to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the
-3-
<PAGE>
ordinary course of business, (v) all obligations as lessee which are capitalized
in accordance with United States generally accepted accounting principles, and
(vi) all Indebtedness of others guaranteed by the Issuer or any of its
subsidiaries or for which the Issuer or any of its subsidiaries is legally
responsible or liable (whether by agreement to purchase indebtedness of, or to
supply funds or to invest in, others).
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"INTEREST" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"ISSUER" means (except as otherwise provided in Article Five) Tyco
International Group S.a., and, subject to Article Eight, its successors and
assigns.
"NON-RECOURSE INDEBTEDNESS" means Indebtedness the enforcement of
which recourse may be had by the holder(s) thereof only to identified assets of
the Issuer, Tyco International or any Subsidiary and not to the Issuer, Tyco
International or any Subsidiary personally.
"OFFICERS' CERTIFICATE" means a certificate signed by the chairman or
any vice chairman of the Board or the president or any vice president and by the
treasurer or any assistant treasurer or the secretary or any assistant secretary
of the Issuer, Tyco International or any other Guarantor, as the case may be,
and delivered to the Trustee. Each such certificate shall comply with
Section 314 of the Trust Indenture Act of 1939 and include the statements
provided for in Section 10.5.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.5, if and to the extent required hereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means a Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1.
"OUTSTANDING", when used with reference to Securities, shall, subject
to the provisions of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer or any
Affiliate thereof) or shall have been set
-4-
<PAGE>
aside, segregated and held in trust by the Issuer or any Affiliate thereof
for the Holders of such Securities (if the Issuer or such Affiliate shall
act as its own paying agent), PROVIDED that if such Securities, or portions
thereof, are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 4.1.
"PERMITTED SUBSIDIARY INDEBTEDNESS" means (i) Indebtedness in an
aggregate amount, but without duplication, not to exceed, as of the date of
determination, 5% of the Consolidated Tangible Assets of the Issuer, (ii)
Indebtedness owed to the Company, Tyco International or any Subsidiary, (iii)
obligations under standby letters of credit or similar arrangements supporting
the performance of a Person under a contract or agreement in the ordinary course
of business, (iv) obligations as lessee in the ordinary course of business which
are capitalized in accordance with United States generally accepted accounting
principles, (v) Indebtedness that was Permitted Subsidiary Indebtedness at the
time that it was first incurred, (vi) Acquired Indebtedness that by its terms is
not calleable or redeemable prior to its stated maturity and that remains
outstanding following such time as the Subsidiary obligated under such Acquired
Indebtedness in good faith has made or caused to be made an offer to acquire all
such Indebtedness on terms which, in the opinion of an independent investment
banking firm of national reputation and standing, are consistent with market
practices in existence at the time for offers of a similar nature, provided that
the initial expiration date of any such offer shall not be later than the
expiration of the time period set forth in paragraph (c) of Section 3.11, (vii)
Indebtedness outstanding on the date of the Indenture and (iii) any renewals,
extensions, substitutions, refundings, refinancings or replacements
(collectively, a "refinancing") of any Indebtedness referred to in clause (ii)
of this definition of "Permitted Subsidiary Indebtedness" of a Restricted
Subsidiary organized under a jurisdiction other than the United States or any
State thereof or the District of Columbia, including any successive refinancings
so long as the borrower under such refinancing is such Restricted Subsidiary and
the aggregate principal amount of Indebtedness represented thereby (or if such
Indebtedness provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity thereof, the
original issue price of such Indebtedness plus any accreted value attributable
thereto since the original issuance of such Indebtedness) is not increased by
such refinancing plus the lesser of (A) the stated amount of any premium or
other payment required to be paid in connection with such a refinancing pursuant
to the terms of the Indebtedness being refinanced or (B) the amount of premium
or other payment actually paid at such time to refinance the Indebtedness, plus,
in either case, the amount of expenses of such Restricted Subsidiary incurred in
connection with such refinancing.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political
-5-
<PAGE>
subdivision thereof.
"PRINCIPAL" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"PRINCIPAL PROPERTY" means (i) any manufacturing, processing or
assembly plant or facility, or any warehouse or distribution facility identified
in Appendix A to this Indenture and (ii) any manufacturing, processing or
assembly plant or facility or any warehouse or distribution facility which is
used by the Issuer or any U.S. Subsidiary after the date hereof, other than any
such plants, facilities, warehouses or portions thereof, which in the opinion of
the Board of the Issuer, are not collectively of material importance to the
total business conducted by the Issuer and its Restricted Subsidiaries as an
entirety, or which, in each case, has a book value, on the date of the
acquisition or completion of the initial construction thereof by the Issuer, of
less than 1.5% of Consolidated Tangible Assets.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any
assistant secretary, any assistant treasurer, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED SUBSIDIARY" means any Subsidiary which owns or leases a
Principal Property.
"SALE AND LEASE-BACK TRANSACTION" means an arrangement with any Person
providing for the leasing by the Issuer or a Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Issuer or a Restricted Subsidiary to such Person; provided,
however, that the foregoing shall not apply to any such arrangement involving a
lease for a term, including renewal rights, for not more than three years.
"SECURITY" or "SECURITIES" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"SUBSIDIARY" means any Person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Issuer or by one or more Subsidiaries or by the Issuer and one
or more Subsidiaries or by one or more Subsidiaries.
"TRUSTEE" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"VICE PRESIDENT" when used with respect to the Issuer, Tyco
International, any
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other Guarantor or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title of
"vice president".
"VOTING STOCK" of a Person means Capital Stock of such Person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
"YIELD TO MATURITY" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of the Issuer, or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2. FORM OF GUARANTEE. The form of Guarantee shall be set
forth on the Securities substantially as follows:
GUARANTEE
For value received, Tyco International and each Person that becomes a
Guarantor after the date of the Indenture (collectively with Tyco International,
the "Guarantors") hereby absolutely, unconditionally and irrevocably guarantees,
jointly and severally, to the holder of this Security the payment of principal
of, interest on and Additional Amounts in respect of this Security upon which
this Guarantee is endorsed in the amounts and at the time when due and payable
whether by declaration thereof, or otherwise, and interest on the overdue
principal and interest, if any, of this Security, if lawful, and the payment or
performance of all other obligations of the Issuer under the Indenture or the
Securities, to the holder of this Security and the Trustee, all in accordance
with and subject to the terms and limitations of this Security and Article
Thirteen of the Indenture. This Guarantee will not become effective until the
Trustee duly executes the certificate of authentication on this Security. This
Guarantee shall be governed by and construed in accordance with the laws of the
State of New York, without regard to conflict of law principles thereof.
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Dated:
TYCO INTERNATIONAL LTD.
By:
------------------------------
Name:
Title:
Attest:
-----------------------------
Name:
Title:
SECTION 2.3 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
BANK OF NEW YORK, as Trustee
By
--------------------------------
Authorized Signatory
SECTION 2.4 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of the Issuer and set
forth in an Officers' Certificate of the Issuer, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.9, 2.10, 2.12 or 11.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;
(5) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
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(6) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(7) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(8) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in bankruptcy pursuant to Section 4.2;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and the
Depositary for Global Security or Securities;
(10) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(11) if other than the Trustee, any trustees, authenticating or paying
agents, transfer agents or registrars or any other agents with respect to
the Securities of such series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board or in any such indenture supplemental hereto.
SECTION 2.5 AUTHENTICATION AND DELIVERY OF SECURITIES. At any time
and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Securities (with Guarantees endorsed thereon) of any series
executed by the Issuer to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the written order
of the Issuer, signed by both (a) the chairman of its Board, or any vice
chairman of its Board, or its president or vice president and (b) its secretary
or any assistant secretary or its treasurer or any assistant treasurer, without
any further action by the Issuer. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 5.1) shall be fully protected in relying upon:
(1) a certified copy of any resolution or resolutions of the Board of
the Issuer authorizing the action taken pursuant to the resolution or
resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of the
Issuer relating to such series, in each case certified by the secretary or
any assistant secretary of the Issuer;
(3) an executed supplemental indenture setting forth the form and
terms of the Securities as required pursuant to Sections 2.1 and 2.4
respectively, if any;
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(4) an Officers' Certificate of the Issuer setting forth the form and
terms of the Securities as required pursuant to Section 2.1 and 2.4,
respectively and prepared in accordance with Section 10.5;
(5) an Opinion of Counsel, prepared in accordance with Section 10.5,
to the effect that
(a)seq level3 \h \r0 seq level4 \h \r0 that the form
or forms and terms of such Securities have been established by or
pursuant to a resolution of the Board of the Issuer or by a
supplemental indenture as permitted by Sections 2.1 and 2.4 in
conformity with the provisions of this Indenture;
(b) that such Securities, when authenticated in
accordance with the terms of this Indenture and delivered by the
Trustee and issued by and delivered by or to the order of the
Issuer, against payment therefor, in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Issuer;
(c) that all laws and requirements in respect of the
execution and delivery by the Issuer of the Securities have been
complied with; and
(d) covering such other matters as the Trustee may
reasonably request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders.
SECTION 2.6 EXECUTION OF SECURITIES. The Securities shall be signed
on behalf of the Issuer by both (a) the chairman of its Board or any vice
chairman of its Board or its president or any vice president and (b) the its
treasurer or any assistant treasurer or its secretary or any assistant
secretary, under its corporate seal which may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such Person was not such an officer.
SECTION 2.7 CERTIFICATE OF AUTHENTICATION. Only such Securities (and
Guarantees endorsed thereon) as shall bear thereon a certificate of
authentication substantially in
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the form hereinbefore recited, executed by the Trustee by the manual signature
of one of its authorized signatories, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of this Indenture.
SECTION 2.8 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities shall be issuable as registered securities without
coupons and in denominations as shall be specified as contemplated by Section
2.4. In the absence of any such specification with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any multiple thereof. The Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.4.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall not
be less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.9 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will
keep or cause to be kept at each office or agency to be maintained for the
purpose as provided in Section 3.2 a Security register or registers in which,
subject to such reasonable regulations as it may prescribe, it will register,
and will register the transfer of, Securities as in this Article provided. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such Security register or registers shall be open for
inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount, and the Issuer shall record or cause to be recorded
the transfer in the Security register or registers.
Any Security or Securities of any series may be exchanged for a
Security or
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Securities of the same series in other authorized denominations, in an equal
aggregate principal amount. Securities of any series to be exchanged shall be
surrendered at any office or agency to be maintained by the Issuer for the
purpose as provided in Section 3.2, and the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor the Security or Securities
of the same series which the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee, duly executed by
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed, or (b) any Securities selected, called or being called for redemption
except, in the case of any Security where public notice has been given that such
Security is to be redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
None of the Issuer, the Trustee or any Paying Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial interests.
SECTION 2.10 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion
may execute, and upon the written request of any officer of the Issuer, the
Trustee shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated or defaced Security, or in lieu of and substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustees) connected therewith. In case any security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Security), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer of the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in
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every case of destruction, loss or theft, the applicant shall also furnish to
the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.11 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Securities held by it and
deliver a certificate of destruction to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.12 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series.
SECTION 2.13 SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Issuer shall establish pursuant to Section 2.4 that the Securities of
a particular series are to be issued in whole or in part in the form of one or
more Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with Section 2.5 and the Issuer order delivered to the Trustee
thereunder, authenticate and deliver, such Global Security or Securities, which
(i) shall
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represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be registered
in the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for the individual Securities represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
(b) Notwithstanding any other provision of this Section 2.13 or of
Section 2.9, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for individual Securities, a Global
Security may be transferred, in whole but not in part and in the manner provided
in Section 2.9, only to another nominee of the Depositary for such Global
Security, or by the nominee of the Depositary to the Depositary, or to a
successor Depositary for such Global Security selected or approved by the Issuer
or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies
the Issuer that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for the Securities for such
series shall no longer be eligible or in good standing under the Securities
Exchange Act of 1934, or other applicable statute or regulation, the Issuer
shall appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the Issuer
within 90 days after the Issuer receives notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.4(9) shall no longer
be effective with respect to such Global Security and the Issuer will execute,
and the Trustee, upon receipt of an Issuer order for the authentication and
delivery of individual Securities of such series in exchange for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in a definitive form in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security.
(ii) The Issuer may at any time and in its sole discretion determine
that the Securities of any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Issuer will execute, and the Trustee, upon
receipt of an Issuer order for the authentication and delivery of individual
Securities of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in a definitive form in an aggregate principal amount equal
to the principal amount of such Global Security or Securities representing such
series in exchange for such Global Security or Securities.
(iii) If specified by the Issuer pursuant to Section 2.4 with respect
to Securities issued or issuable in the form of a Global Security, the
Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the Issuer
and such Depositary. Thereupon the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge, (1) to each Person specified
by such Depositary a new Security or Securities of the same series of like tenor
and terms and of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such person's beneficial
interest in the Global Security; and (2) to such Depositary a new Global
Security of like tenor and terms and in a denomination equal to the difference,
if any, between the
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principal amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Issuer will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Persons in whose names such Securities are so
registered.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each installment of interest on
the Securities of any series may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any of the
Securities remain outstanding, the Issuer will maintain in The Borough of
Manhattan, The City of New York for each series: an office or agency (a) where
the Securities may be presented for payment, (b) where the Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided and (c) where notices and demands to or upon the Issuer in respect of
the Securities or of this Indenture may be served. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Unless otherwise specified in accordance with
Section 2.4, the Issuer hereby initially designates the Corporate Trust Office
of The Bank of New York, 101 Barclay Street, 21 West, New York, New York 10286,
acting as the Issuer's agent, as the office to be maintained by it for each such
purpose. In case the Issuer shall fail to so designate or maintain any such
office or agency or shall fail to give such notice of the location or of any
change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office.
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 5.9, a Trustee, so that
there shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 PAYING AGENT. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section.
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid
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to it by the Issuer or by any other obligor on the Securities of such
series) in trust for the benefit of the Holders of the Securities of such
series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the failure
referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 9.3 and 9.4
SECTION 3.5 CERTIFICATE OF THE ISSUER AND THE GUARANTORS. So long as
any of the Securities remain outstanding, the Issuer, Tyco International and any
other Guarantor will furnish to the Trustee on or before March 31 in each year
(beginning with 1999) a brief certificate (which need not comply with Section
10.5) executed by the principal executive, financial or accounting officer of
each of the Issuer, Tyco International and such Guarantor on their respective
behalf as to his or her knowledge of the Issuer's, Tyco International and such
Guarantor's, as the case may be, compliance with all covenants and agreements
under the Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under the Indenture). Such
certificate need not include a reference to any non-compliance that has been
fully cured prior to the date as of which such certificate speaks.
SECTION 3.6 SECURITYHOLDERS LISTS. If and so long as the Trustee
shall not be the Security registrar for the Securities of any series, the Issuer
will furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.4 for
non-interest bearing securities in each year, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
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SECTION 3.7 REPORTS BY THE ISSUER AND TYCO INTERNATIONAL. So long as
any of the Securities remain outstanding, the Issuer and Tyco International each
covenants to file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of the
information, documents, and other reports which the Issuer and Tyco
International may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934; PROVIDED, HOWEVER, that
the Issuer and Tyco International shall have no obligation to file such reports
with the Trustee as long as no Securities of any series are outstanding.
SECTION 3.8 REPORTS BY THE TRUSTEE. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before July 15 in each year following the date hereof, so long as any
Securities are outstanding hereunder, and shall be dated as of a date convenient
to the Trustee no more than 60 nor less than 45 days prior thereto.
SECTION 3.9 LIMITATIONS ON LIENS. After the date hereof and so long
as any Securities are Outstanding (but subject to defeasance, as provided in the
Indenture), the Issuer will not, and will not permit any Restricted Subsidiary
to, issue, assume or guarantee any Indebtedness which is secured by a mortgage,
pledge, security interest, lien or encumbrance (each a "lien") upon any
Principal Property, or any shares of stock of or Indebtedness issued by any
Restricted Subsidiary, whether now owned or hereafter acquired, without
effectively providing that, for so long as such lien shall continue in existence
with respect to such secured Indebtedness, the Securities (together with, if the
Issuer shall so determine, any other Indebtedness of the Issuer ranking equally
with the Securities, it being understood that for purposes hereof, Indebtedness
which is secured by a lien and Indebtedness which is not so secured shall not,
solely by reason of such lien, be deemed to be of different ranking) shall be
equally and ratably secured by a lien ranking ratably with or equal to (or at
the Issuer's option prior to) such secured Indebtedness; provided, however, that
the foregoing covenant shall not apply to:
(a) liens existing on the date the Securities of the subject series
are issued;
(b) liens on the stock, assets or Indebtedness of a corporation
existing at the same time such corporation becomes a Restricted Subsidiary
unless created in contemplation of such Restricted Subsidiary becoming such;
(c) liens on any assets or Indebtedness of a corporation existing at
the time such corporation is merged into the Issuer or a Subsidiary or at the
time of a purchase, lease or other acquisition of the assets of a corporation or
firm as an entirety or substantially as an entirety by the Issuer or Subsidiary;
(d) liens on any Principal Property existing at the time of
acquisition thereof by the Issuer or any Restricted Subsidiary, or liens to
secure the payment of the purchase price of such Principal Property by the
Issuer or any Restricted Subsidiary, or to secure any Indebtedness incurred,
assumed or guaranteed by the Issuer or a Restricted Subsidiary for the purpose
of financing all or any part of the purchase price of such Principal Property or
improvements or construction thereon, which Indebtedness is incurred, assumed or
guaranteed prior to, at the time of, or within one year after such acquisition
(or in the case of real property, completion of such improvement or construction
or commencement of full operation of such property, whichever is later);
provided, however, that in the case of any such acquisition, construction or
improvement, the lien shall not apply to any Principal Property theretofore
owned by the Issuer or a Restricted Subsidiary, other than the Principal
Property so acquired, constructed or improved;
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(e) liens securing Indebtedness owing by any Restricted Subsidiary to
the Issuer or a Subsidiary;
(f) liens in favor of the United States or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract, statute, rule or regulation or to secure any
Indebtedness incurred or guaranteed for the purpose of financing all or any part
of the purchase price (or, in the case of real property, the cost of
construction or improvement) of the Principal Property subject to such liens
(including but not limited to, liens incurred in connection with pollution
control, industrial revenue or similar financings);
(g) pledges, liens or deposits under worker's compensation or similar
legislation, and liens thereunder which are not currently dischargeable, or in
connection with bids, tenders, contracts (other than for the payment of money)
or leases to which the Issuer or any Restricted Subsidiary is a party, or to
secure the public or statutory obligations of the Issuer or any Restricted
Subsidiary, or in connection with obtaining or maintaining self-insurance, or to
obtain the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar matters, or
to secure surety, performance, appeal or customs bonds to which the Issuer or
any Restricted Subsidiary is a party, or in litigation or other proceedings in
connection with the matters heretofore referred to in this clause, such as, but
not limited to, interpleader proceedings, and other similar pledges, liens or
deposits made or incurred in the ordinary course of business;
(h) liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate proceedings,
including liens arising out of judgments or awards against the Issuer or any
Restricted Subsidiary with respect to which the Issuer or such Restricted
Subsidiary is in good faith prosecuting an appeal or proceedings for review or
for which the time to make an appeal has not yet expired; or final unappealable
judgment liens which are satisfied within 15 days of the date of judgment; or
liens incurred by the Issuer or any Restricted Subsidiary for the purpose of
obtaining a stay or discharge in the course of any litigation or other
proceeding to which the Issuer or such Restricted Subsidiary is a party;
(i) liens for taxes or assessments or governmental charges or levies
not yet due or delinquent; or which can thereafter be paid without penalty, or
which are being contested in good faith by appropriate proceedings; landlord's
liens on property held under lease; and any other liens or charges incidental to
the conduct of the business of the Issuer or any Restricted Subsidiary, or the
ownership of their respective assets, which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit and which do not,
in the opinion of the Board of the Issuer, materially impair the use of such
assets in the operation of the business of the Issuer or such Restricted
Subsidiary or the value of such Principal Property for the purposes of such
business;
(j) liens to secure the Issuer's or any Restricted Subsidiary's
obligations under agreements with respect to spot, forward, future and option
transactions, entered into in the ordinary course of business;
(k) liens not permitted by the foregoing clauses (a) to (j),
inclusive, if at the time of, and after giving effect to, the creation or
assumption of any such lien, the aggregate amount of all outstanding
Indebtedness of the Issuer and its Restricted Subsidiaries (without duplication)
secured by all such liens not so permitted by the foregoing clauses (a) through
(j), inclusive, together with the Attributable Debt in respect of Sale and
Lease-Back Transactions
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permitted by paragraph (a) under Section 3.10 do not exceed the greater of
$100,000,000 and 10% of Consolidated Net Worth; and
(l) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part, of any lien referred to in the
foregoing clauses (a) to (k), inclusive; provided, however, that the principal
amount of Indebtedness secured thereby unless otherwise excepted under clauses
(a) through (k) shall not exceed the principal amount of Indebtedness so secured
at the time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the assets (or any
replacements therefor) which secured the lien so extended, renewed or replaced
(plus improvements and construction on real property).
SECTION 3.10 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. The
Issuer will not, and will not permit any Restricted Subsidiary to, enter into
any Sale and Lease-Back Transaction unless:
(a) the Issuer or such Restricted Subsidiary would, at the time of
entering into a Sale and Lease-Back Transaction, be entitled to incur
Indebtedness secured by a lien on the Principal Property to be leased in an
amount at least equal to the Attributable Debt in respect of such Sale and
Lease-Back Transaction, without equally and ratably securing the Securities
pursuant to Section 3.9; or
(b) the direct or indirect proceeds of the sale of the Principal Property
to be leased are at least equal to the fair value of such Principal Property (as
determined by the Issuer's Board) and an amount equal to the net proceeds from
the sale of the property or assets so leased are applied, within 180 days of the
effective date of any such Sale and Lease-Back Transaction, to the purchase or
acquisition (or, in the case of real property, commencement of the construction)
of property or assets or to the retirement (other than at maturity or pursuant
to a mandatory sinking fund or mandatory redemption provision) of Securities, or
of Funded Indebtedness of the Issuer or a consolidated Subsidiary ranking on a
parity with or senior to the Securities; provided that there shall be credited
to the amount of net worth proceeds required to be applied pursuant to this
clause (b) an amount equal to the sum of (i) the principal amount of Securities
delivered within 180 days of the effective date of such Sale and Lease-Back
Transaction to the Trustee for retirement and cancellation and (ii) the
principal amount of other Funded Indebtedness voluntarily retired by the Issuer
within such 180-day period, excluding retirements of Securities and other Funded
Indebtedness as a result of conversions or pursuant to mandatory sinking fund or
mandatory prepayment provisions.
SECTION 3.11 LIMITATION ON INDEBTEDNESS OF SUBSIDIARIES. (a) The
Issuer will not cause or permit any Subsidiary (which is not a Guarantor),
directly or indirectly, to create, incur, assume, guarantee or otherwise in any
manner become liable for the payment of or otherwise incur (collectively,
"incur"), any Indebtedness (including any Acquired Indebtedness but excluding
any Permitted Subsidiary Indebtedness) unless such Subsidiary simultaneously
executes and delivers a supplemental indenture to the Indenture providing for a
Guarantee of the Securities as provided in Section 3.14.
(b) Notwithstanding the foregoing, any Guarantee by a Subsidiary of the
Securities shall provide by its terms that it (and all liens securing the same)
shall be automatically and unconditionally released and discharged upon (i) any
sale, exchange or transfer, to any Person not an Affiliate of the Issuer, of all
of the Issuer's equity interests in, or all or substantially all the assets of,
such Subsidiary, which transaction is in compliance with the terms of this
Indenture and such Subsidiary is released from all guarantees, if any, by it of
other Indebtedness of the Issuer or
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any Subsidiaries, (ii) the payment in full of all obligations under the
Indebtedness giving rise to such Guarantee and (iii) with respect to
Indebtedness described in clause (a) above constituting guarantees, the release
by the holders of such Indebtedness of the guarantee by such Subsidiary
(including any deemed release upon payment in full of all obligations under such
Indebtedness), at such time as (A) no other Indebtedness (other than Permitted
Subsidiary Indebtedness) has been guaranteed by such Subsidiary, as the case may
be, or (B) the holders of all such other Indebtedness which is guaranteed by
such Subsidiary also release the guarantee by such Subsidiary (including any
deemed release upon payment in full of all obligations under such Indebtedness).
(c) For purposes of this Section 3.11, any Acquired Indebtedness shall not
be deemed to have been incurred until 180 days from the date (A) the Person
obligated on such Acquired Indebtedness becomes a Restricted Subsidiary or (B)
the acquisition of assets in connection with which such Acquired Indebtedness
was assumed is consummated.
SECTION 3.12 NOTICE TO TRUSTEE. The Issuer, Tyco International or
any other Guarantor shall provide written notice to the Trustee within 30 days
of the occurrence of any Event of Default under Section 4.1.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY;
WAIVER OF DEFAULT. "Event of Default" with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body:
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
or
(c) default in the payment of any sinking fund installment as and
when the same shall become due and payable by the terms of the Securities
of such series; or
(d) default in the performance, or breach, of any covenant or
agreement of the Issuer, Tyco International or any other Guarantor in
respect of the Securities of such series and related Guarantees (other than
a covenant or agreement in respect of the Securities of such series and
related Guarantees a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with, and continuance of such
default or breach for a period of 90 days after the date on which there has
been given, by registered or certified mail, to the Issuer by the Trustee
or to the Issuer and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of all series
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affected thereby, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) an event of default, as defined in any indenture, including this
Indenture, or instrument evidencing or under which the Issuer, Tyco
International or any other Guarantor on the date any determination shall be
made under this clause (g), shall have outstanding at least $50,000,000
aggregate principal amount of Indebtedness for borrowed money (other than
Non-Recourse Indebtedness), shall happen and be continuing and such event
of default shall involve the failure to pay the principal of or interest on
such Indebtedness (or any part thereof) on the final maturity date thereof
after the expiration of any applicable grace period with respect thereto,
or such Indebtedness shall have been accelerated so that the same shall be
or become due and payable prior to the date on which the same would
otherwise have become due and payable, and such acceleration shall not be
rescinded or annulled within ten Business Days after notice thereof shall
have been given to the Issuer, Tyco International or such Guarantor, as the
case may be, by the Trustee (if such event be known to it), or to the
Issuer, Tyco International or such Guarantor, as the case may be, and the
Trustee by the Holders of at least 25% in aggregate principal amount of all
of the Securities at the time Outstanding (treated as one class); provided
that, if such event of default under such indenture or instrument shall be
remedied or cured by the Issuer, Tyco International or such Guarantor, as
the case may be, or waived by the requisite holders of such indebtedness,
then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived without further
action upon the part of either the Trustee or any of the Securityholders,
and provided further, however, that subject to the provisions of Sections
5.1 and 5.2, the Trustee shall not be charged with knowledge of any such
event of default unless written notice thereof shall have been given to the
Trustee by the Issuer, Tyco International or such Guarantor, as the case
may be, by the holder of an agent of the holder of any such Indebtedness,
by the trustee then acting under any indenture or other instrument under
which such default shall have occurred, or by the Holders of not less than
25% in the aggregate principal amount of the Securities at the time
Outstanding (treated as one class);
(f) any Guarantor shall for any reason cease to be, or shall for any
reason be asserted in writing by any Guarantor or the Issuer not to be in
full force and effect and enforceable in accordance with its terms except
to the extent contemplated by the Indenture and any such Guarantee;
(g) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer, Tyco International or any
other Guarantor in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer, Tyco International or such Guarantor or
for any substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(h) the Issuer, Tyco International or any other Guarantor shall
commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to
the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Issuer, Tyco International or such Guarantor or for any substantial part of
its property, or make any general assignment for the benefit of creditors;
or
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(i) any other Event of Default provided in the supplemental indenture
or resolution of the Board under which such series of Securities is issued
or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (d), (f) or (i) above
(if the Event of Default under clause (d) or (i), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (d) or
(i) (if the Event of Default under clause (d) or (i), as the case may be, is
with respect to all series of Securities then Outstanding), (e), (g) or (h)
occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Issuer (and the to Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then outstanding and
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein -- then and in every such case the Holders of a majority in aggregate
principal amount of all the Securities of such series, each series voting as a
separate class (or of all the Securities, as the case may be, voting as a single
class), then outstanding, by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
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For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE
DEBT. Each of the Issuer, Tyco International and any other Guarantor covenants
that (a) in case default shall be made in the payment of any installment of
interest on any of the Securities of any series when such interest shall have
become due and payable, and such default shall have continued for a period of 30
days or (b) in case default shall be made in the payment of all or any part of
the principal of any of the Securities of any series when the same shall have
become due and payable, whether upon maturity of the Securities of such series
or upon any redemption or by declaration or otherwise -- then upon demand of the
Trustee, the Issuer, Tyco International and such Guarantor will pay to the
Trustee for the benefit of the Holders of the Securities of such series the
whole amount that then shall have become due and payable on all Securities of
series for principal or interest, as the case may be (with interest to the date
of such payment upon the overdue principal and to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the Holders,
whether or not the principal of and interest on the Securities of such series be
overdue.
In case the Issuer, Tyco International or any other Guarantor shall
fail forthwith to pay such amounts upon such demand, the Trustee, in its own
name and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the collection of
the sums so due and unpaid, and may prosecute any such action or proceedings to
judgment or final decree, and may enforce any such judgment or final decree
against the Issuer, Tyco International, such Guarantor or other obligor upon
such Securities and collect in the manner provided by law out of the property of
the Issuer, Tyco International, such Guarantor or other obligor upon such
Securities, wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer,
Tyco International, any other Guarantor or any other obligor upon the Securities
under Title 11 of the United States Code or any other applicable Federal or
state bankruptcy, insolvency or other similar law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Issuer, Tyco International or such Guarantor or their respective property or
such other obligor or its property, or in case of any other comparable judicial
proceedings relative to the Issuer, Tyco
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International, such Guarantor or other obligor upon the Securities of any
series, or to the creditors or property of the Issuer, Tyco International, such
Guarantor or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer Tyco International, such
Guarantor or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer Tyco International, such Guarantor or
such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith and all other amounts
due to the Trustee or any predecessor Trustee pursuant to Section 5.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities in respect of which such action was
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taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 4.3 APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: in case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
SECTION 4.4 SUITS FOR ENFORCEMENT. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and
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enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted in this Indenture
or to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 4.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No Holder of
any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of such series
then outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 4.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE
CERTAIN SUITS. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security to receive
payment of the principal of and interest on such Security on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 4.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT. Except as provided in Section 4.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or
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otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 4.9 CONTROL BY SECURITYHOLDERS. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time Outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
PROVIDED that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and PROVIDED FURTHER that (subject to the
provisions of Section 5.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 5.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.10 WAIVER OF PAST DEFAULTS. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive any past default or Event of Default described in clause (d) or (h)
of Section 4.1 which relates to less than all series of Securities then
Outstanding, except a default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.2. Prior to a declaration of acceleration of the maturity
of the Securities of any series as provided in Section 4.1, the Holders of
Securities of a majority in principal amount of all the Securities then
Outstanding (voting as one class) may on behalf of all Holders waive any past
default or Event of Default referred to in said clause (d) or (i) which relates
to all series of Securities then Outstanding, or described in clause (e), (g) or
(h) of Section 4.1, except a default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder of
each Security affected as provided in Section 7.2. In the case of any such
waiver, the Issuer, Tyco International, any other Guarantor, the Trustee and the
Holders of the Securities of each series affected shall be restored to their
former positions and rights hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed
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to have been cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 4.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN
CERTAIN CIRCUMSTANCES. The Trustee shall give to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to the Trustee which have occurred with
respect to such series, such notice to be transmitted within 90 days after the
occurrence thereof, unless such defaults shall have been cured before the giving
of such notice (the term "default" or "defaults" for the purposes of this
Section being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default); PROVIDED
that, except in the case of default in the payment of the principal of or
interest on any of the Securities of such series, or in the payment of any
sinking or purchase fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 4.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY
COSTS. All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clauses (d) or (i) of Section 4.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clauses (d) (if the suit relates
to all the Securities then Outstanding), (a), (g) or (h) of Section 4.1, 10% in
aggregate principal amount of all Securities Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as
a
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prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates
or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 4.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and subject
to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
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(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion of counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing so
to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding; PROVIDED
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation reasonably requested by the Holders as aforesaid shall
be paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 5.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS, ETC.
The Trustee or any agent of the Issuer, Tyco International, any other Guarantor
or the Trustee, in its
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individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee or such agent and
may otherwise deal with the Issuer, Tyco International or such Guarantor and
receive, collect, hold and retain collections from the Issuer, Tyco
International or such Guarantor with the same rights it would have if it were
not the Trustee or such agent.
SECTION 5.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of
Section 9.8 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR
CLAIM. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except to the extent
any such expense, disbursement or advance may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each predecessor
trustee for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and the performance of its duties hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in the premises, except to the extent such loss liability
or expense is due to the negligence or bad faith of the Trustee or such
predecessor trustee. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor trustee and to pay or
reimburse the Trustee and each predecessor trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property
and funds hold or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities, and the Securities are
hereby subordinated to such senior claim.
SECTION 5.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE, ETC.
Subject to Sections 5.1 and 5.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.8 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee
for each series of Securities hereunder shall at all times be a corporation
having a combined capital and surplus of at least $50,000,000, and which is
eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of a Federal, State or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital
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and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
SECTION 5.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and by mailing notice thereof
by first class mail to Holders of the applicable series of Securities at their
last addresses as they shall appear on the Security register. Upon receiving
such notice of resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by written instrument
in duplicate, executed by authority of the Board of the Issuer, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 4.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 310(b) of the Trust Indenture Act of 1939 with respect
to any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder
of a Security or Securities of such series for at least six
months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 310(a) of the Trust Indenture Act
of 1939 and shall fail to resign after written request therefor
by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator of the Trustee
or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of the
Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such
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series and appoint a successor trustee with respect to the securities of such
series by delivering to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in Section 6.1 of the
action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.9 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.10.
SECTION 5.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 5.9 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 9.8,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 5.6.
If a successor trustee is appointed with respect to the securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 5.9. If the Issuer fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Issuer.
SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. Any corporation or national banking association into which
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the corporate trust
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business of the Trustee, shall be the successor of the Trustee hereunder,
PROVIDED that such corporation or national banking association shall be eligible
under the provisions of Section 5.8, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; PROVIDED, that the right to adopt the certificate of authentication
of any predecessor trustee or to authenticate Securities of any series in the
name of any predecessor trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Securityholders of any or all series may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 5.1 and 5.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 6.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES; RECORD DATE. Subject to Sections 5.1 and 5.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of
Securities shall be proved by the Security register or by a certificate of the
registrar thereof. The Issuer may set a record date for purposes of determining
the identity of holders of Securities of any series entitled to vote or consent
to any action referred to in Section 6.1, which record date may be set at any
time or from time to time by notice to the Trustee, for any date or dates (in
the case of any adjournment or reconsideration) not more than 60 days nor less
than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, only Holders of
Securities of such series of record on such record date shall be entitled to so
vote or give such consent or revoke such vote or consent.
SECTION 6.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, Tyco
International, any other Guarantor, the Trustee and any agent of the Issuer,
Tyco International, such Guarantor or the Trustee may deem and treat the Person
in whose name any Security shall be registered upon the Security register for
such series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
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thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and none of the Issuer, Tyco International, such
Guarantor or the Trustee or any agent of the Issuer, Tyco International, such
Guarantor or the Trustee shall be affected by any notice to the contrary. All
such payments so made to any such Person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
SECTION 6.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer, Tyco International, any other Guarantor, or any other obligor on the
Securities with respect to which such determination is being made or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer, Tyco International, such Guarantor or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Issuer or any other obligor upon the Securities or any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer, Tyco International, such Guarantor or
any other obligor on the Securities. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer, Tyco International or such Guarantor shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Issuer, Tyco International or such Guarantor to be owned or
held by or for the account of any of the above-described Persons; and, subject
to Sections 5.1 and 5.2, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.
SECTION 6.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 6.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
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ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, Tyco International and any other Guarantor, if
any, when authorized by resolutions of their respective Boards of Directors, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer
or any Guarantor, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer or any Guarantor such
further covenants, restrictions, conditions or provisions as its Board and
the Trustee shall consider to be for the protection of the Holders of
Securities, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein set forth;
PROVIDED, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board may deem necessary or desirable and which shall not
adversely affect the interests of the Holders of the Securities in any
material respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to add a Guarantor pursuant o the requirements of Sections 3.11
and 13.4; and
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 5.10.
The Trustee is hereby authorized to join with the Issuer, Tyco
International and any other Guarantor in the execution of any such supplemental
indenture, to make any further
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appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent (evidenced as provided in Article Six) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, Tyco International and any other Guarantor, when authorized
by resolutions of their respective Boards of Directors, and the Trustee may,
from time to time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of each such series; PROVIDED, that no such supplemental
indenture shall (a) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof or reduce
the amount of the principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof pursuant to Section
4.1 or the amount thereof provable in bankruptcy pursuant to Section 4.2, or
impair or affect the right of any Securityholder to institute suit for the
payment thereof or, if the Securities provide therefor, any right of repayment
at the option of the Securityholder without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid and other documents, if any, required by Section 6.1, the Trustee
shall join with the Issuer, Tyco International and any other Guarantor in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture, or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer, Tyco International, any
other Guarantor and the Trustee of any supplemental indenture pursuant to the
provisions of this Section, the Issuer shall mail a notice thereof by first
class mail to the Holders of Securities of each series affected thereby at their
addresses as they shall appear on the registry books of the Issuer, setting
forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 7.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of
any
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supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, Tyco International, any other
Guarantor and the Holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 7.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject
to the provisions of Sections 5.1 and 5.2, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Seven complies with the applicable provisions
of this Indenture.
SECTION 7.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken at any such meeting. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer, Tyco International
and any other Guarantor, and authenticated by the Trustee and delivered in
exchange for the Securities of such series then outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 ISSUER AND GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS. Each of the Issuer, Tyco International and any other Guarantors, if any,
covenants that it will not merge or consolidate with any other Person or sell or
convey all or substantially all of its assets to any Person, unless (i) either
the Issuer or such Guarantor, as the case may be, shall be the continuing
corporation, or the successor corporation or the Person which acquires by sale
or conveyance substantially all the assets of the Issuer or such Guarantor, as
the case may be (if other than the Issuer or such Guarantor, as the case may be)
shall expressly assume the due and punctual payment of the principal of and
interest on all the Securities or the obligations under the Guarantees, as the
case may be, according to their tenor, and the due and punctual performance and
observance of all of the covenants and agreements of this Indenture to be
performed or observed by the Issuer or such Guarantor, as the case may be, by
supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such corporation, and (ii) the Issuer or such Guarantor, as the
case may be, or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or agreement.
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED. In case of any such
consolidation, merger, sale or conveyance in which the Issuer or any Guarantor,
as the case may be, is not the continuing corporation, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer or such Guarantor, as the case may
be, with the same effect as if it had been named herein. Such successor
corporation may cause to be signed, and may issue either in its own name or in
the name of the Issuer or such Guarantor, as the case may be, prior to such
succession any or all of
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the Securities or Guarantees as the case may be, issuable hereunder which
theretofore shall not have been signed by the Issuer or such Guarantor, as the
case may be, and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer or such Guarantor, as the case may be, and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities or
Guarantees, as the case may be, which previously shall have been signed and
delivered by the officers of the Issuer or such Guarantor, as the case may be,
to the Trustee for authentication, and any Securities or Guarantees, as the case
may be, which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities or Guarantees,
as the case may be, so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities or Guarantees, as the case may
be, theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities or such Guarantees, as the case may
be, had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities or Guarantees thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Issuer or any Guarantor or any successor corporation which
shall theretofore have become such in the manner described in this Article shall
be discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 8.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee, subject to
the provisions of Sections 5.1 and 5.2, may receive an opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 SATISFACTION AND DISCHARGE OF INDENTURE. If at any time
(a) the Issuer or any Guarantor shall have paid or caused to be paid the
principal of and interest on all the Securities of any series outstanding
hereunder (other than Securities of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.10) as
and when the same shall have become due and payable, or (b) the Issuer shall
have delivered to the Trustee for cancellation all securities of any series
theretofore authenticated (other than any Securities of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.10) or (c) (i) all the Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or may,
at the option of the Issuer, be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (ii) the Issuer or any Guarantor shall have irrevocably deposited or caused
to be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Issuer in
accordance with Section 9.8) or direct obligations of the United States of
America, backed by its full faith and credit, maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay at maturity or upon redemption all Securities of such
series
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(other than any Securities of such series which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section
2.10) not theretofore delivered to the Trustee for cancellation, including
principal, interest and Additional Amounts due or to become due on or prior to
such date of maturity as the case may be, and if, in any such case, the Issuer
shall also pay or cause to be paid all other sums payable hereunder by the
Issuer with respect to Securities of such series, then this Indenture shall
cease to be of further effect with respect to Securities of such series (except
as to (i) rights of registration of transfer and exchange of Securities of such
series, and the Issuer's right of optional redemption, if any, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Holders to receive payments of principal thereof and interest thereon upon the
original stated due dates therefor (but not upon acceleration) and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, in
each case solely out of property so deposited with the Trustee, and (iv) the
rights, obligations and immunities of the Trustee hereunder, and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture
with respect to such series; PROVIDED, that the rights of Holders of the
Securities to receive amounts in respect of principal of and interest on the
Securities held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any, services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of
such series.
SECTION 9.2 ISSUER'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE. In addition to discharge of the Indenture pursuant to Section 9.1,
with respect to any series of Securities where the exact amount of principal and
interest due on which can be determined at the time of making the deposit
referred to in Section 9.5(a), the Issuer may at its option by resolution of the
Board elect at any time either (a) to effect a defeasance (as defined in Section
9.3) of the Securities of such series under Section 9.3 or (b) to effect a
covenant defeasance (as defined in Section 9.4) of the Securities of such series
under Section 9.4, in each case upon compliance with the applicable conditions
set forth below in this Article Nine.
SECTION 9.3 DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise of
the option set forth in clause (a) of Section 9.2 with respect to the Securities
of a series, the Issuer and each Guarantor shall be deemed to have been
discharged from its obligations with respect to the Securities of such series on
and after the date the conditions precedent set forth in Section 9.5 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Issuer and each Guarantor shall be deemed to have paid and discharged
the entire Indebtedness represented by the Securities of such series and to have
satisfied all their respective other obligations under the Securities of such
series and under this Indenture relating to the Securities of such series (and
the Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for, (i) rights of registration of transfer and
exchange of Securities of such series, and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities, (iii) rights of Holders to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders to receive mandatory
sinking fund payments, if any, in each case solely from the trust funds
described in Section 9.5(a); and (iv) the rights, obligations and immunities of
the Trustee hereunder. Subject to compliance with this Article Nine, the Issuer
may exercise its option under this Section 9.3 notwithstanding the prior
exercise of its option under Section 9.4 with respect to the Securities of such
series.
SECTION 9.4 COVENANT DEFEASANCE. Upon the Issuer's exercise of the
option set
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forth in clause (b) of Section 9.2 with respect to the Securities of a series,
the Issuer and each Guarantor shall be released from their respective
obligations under Sections 3.9, 3.10 and 8.1 with respect to the Securities of
such series on and after the date the conditions precedent set forth in Section
9.5 are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Securities of such series,
the Issuer and each Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section, whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 4.1, but the remainder of
this Indenture and such Securities shall be unaffected thereby.
SECTION 9.5 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions precedent to the application of either Section
9.3 or Section 9.4 to the Securities of such series:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds
in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the holders of the Securities of such series (i) money in an
amount, or (ii) direct obligations of the United States of America, backed
by its full faith and credit, which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment in
respect of the Securities of such series, money in an amount, or (iii) a
combination thereof, sufficient (without consideration of any reinvestment
of such money, principal or interest), in the opinion of a nationally
recognized firm of independent public accountants or a nationally
recognized investment banking firm expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (A) the principal of, interest
on and Additional Amounts in respect of all Securities of such series on
each date such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of this Indenture and the
Securities of such series. Before such a deposit the Issuer may make
arrangements satisfactory to the Trustee for the redemption of the
Securities of such series at a future date or dates in accordance with
Article Eleven, if applicable to the Securities of such series, which shall
be given effect in applying the foregoing.
(b) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (i) on the date of such
deposit or (ii) insofar as Subsections 4.1(g) and 4.1(h) are concerned, at
any time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the date following the expiration of the
longest preference period applicable to the Issuer in respect of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(c) Such defeasance or covenant defeasance will not (i) cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer or any Guarantor or (ii) result in the trust
arising from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940.
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(d) Such defeasance or covenant defeasance will not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Issuer or any Guarantor is a
party or by which it is bound.
(e) If the Securities of such series are then listed on any national
securities exchange registered under the Securities Exchange Act of 1934,
the Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that the exercise of the option under Section 9.3 or 9.4, as the
case may be, will not cause such Securities to be delisted.
(f) In the case of an election under Section 9.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from the United States Internal Revenue Service (the
"IRS") a private letter ruling, (ii) there has been published by the IRS a
general revenue ruling, or (iii) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in each case to the
effect that, and based thereon such opinion shall confirm that, the Holders
of the Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(g) in the case of an election under Section 9.4, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
holders of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(h) in the case of an election under either Section 9.3 or Section
9.4, the Issuer shall have delivered to the Trustee an Opinion of Counsel
of Luxembourg counsel to the effect that (i) payments from the defeasance
trust will be free and exempt from any and all withholding and other taxes
imposed or levied by or on behalf of Luxembourg or any political
subdivision thereof having the power to tax, and (ii) Holders of the
Securities of such series will not recognize any income, gain or loss for
Luxembourg income tax and other tax purposes as a result of such deposit
and defeasance or covenant defeasance, as applicable, and will be subject
to Luxembourg income tax and other tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit
and defeasance or covenant defeasance, as applicable, had not occurred.
(i) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Issuer in connection therewith pursuant to Section 2.4.
(j) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 9.3
or the covenant defeasance under Section 9.4 (as the case may be) have been
complied with.
SECTION 9.6 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF
SECURITIES. Subject to Section 9.8, all moneys deposited with the Trustee
pursuant to Section 9.1 or 9.5 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular Securities of
such series for the payment or redemption of which such moneys have been
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deposited with the Trustee, of all sums due and to become due thereon for
principal, interest and Additional Amounts; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 9.7 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 9.8 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any Security
of any series and not applied but remaining unclaimed for two years after the
date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Issuer by the Trustee for such series or such paying
agent, and the Holder of the Security of such series shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease.
SECTION 9.9 INDEMNITY FOR DIRECT OBLIGATIONS OF THE UNITED STATES.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the money or the direct obligations of the
United States of America deposited pursuant to Section 9.1 or 9.5 or the
principal or interest received in respect of such obligations.
SECTION 9.10 REINSTATEMENT. If the Trustee or the paying agent is
unable to apply any money or direct obligations of the United States of America
in accordance with Section 9.1 or 9.5 by reason of any legal proceedings or
order or judgment or any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Issuer's and any Guarantor's
obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article Nine until such time as the Trustee or paying agent is permitted to
apply all such money in accordance with this Article Nine; PROVIDED that, if the
Issuer makes any payment of principal of or interest on any such Security
following the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the holders of such Securities to receive such payment from the
money or direct obligations of the United States of America held by the Trustee
or the paying agent.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS OF
ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future shareholder,
officer or director, as such, of the Issuer, any Guarantor or of any successor,
either directly or through the Issuer, such Guarantor or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the
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acceptance of the Securities by the holders thereof and as part of the
consideration for, and as a condition of, the issue of the Securities.
SECTION 10.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES
AND SECURITYHOLDERS. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 10.3 SUCCESSORS AND ASSIGNS OF ISSUER AND GUARANTORS BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer or any Guarantor shall bind
its successors and assigns, whether so expressed or not.
SECTION 10.4 NOTICES AND DEMANDS ON ISSUER, GUARANTORS, TRUSTEE AND
SECURITYHOLDERS. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer or any Guarantor may be given or served by
being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer or
such Guarantor is filed by the Issuer or such Guarantor with the Trustee) to
Tyco International Ltd. at The Gibbons Building, 10 Queen Street, Suite 301,
Hamilton HM 11, Bermuda, Attention: Treasurer, with a copy to Tyco International
(US) Inc. at One Tyco Park, Exeter, New Hampshire 03833, Attention: Treasurer.
Any notice, direction, request or demand by the Issuer or any Guarantor or any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made and received at the Corporate
Trust office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice
to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer, any
Guarantor and the Holders when such notice is required to be given pursuant to
any provision of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
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SECTION 10.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate (other than those provided for in Section 3.5 and
Section 11.5) or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (a) a statement that the Person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 10.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and affect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
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SECTION 10.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this
Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture
Act of 1939 (an "incorporated provision"), such incorporated provision shall
control.
SECTION 10.8 NEW YORK LAW TO GOVERN. This Indenture, each Security
and each Guarantee shall be deemed to be a contract under the laws of the State
of New York, and for all purposes shall be construed in accordance with the laws
of such State, without regard to principles of the conflict of laws thereof.
SECTION 10.9 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Each of
the Issuer and Tyco International agrees that any legal suit, action or
proceeding brought by any party to enforce any rights under or with respect to
this Indenture, any Security and any Guarantee or any other document or the
transactions contemplated hereby or thereby may be instituted in any state or
federal court in The City of New York, State of New York, U.S.A., irrevocably
waives to the fullest extent permitted by law any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding,
irrevocably waives to the fullest extent permitted by law any claim that and
agrees not to claim or plead in any court that any such action, suit or
proceeding brought in such court has been brought in an inconvenient forum and
irrevocably submits to the non-exclusive jurisdiction of any such court in any
such suit, action or proceeding or for recognition and enforcement of any
judgment in respect thereof.
Each of the Issuer and Tyco International hereby irrevocably and
unconditionally designates and appoints CT Corporation System, 1633 Broadway,
New York, New York 10019, U.S.A. (and any successor entity) as its authorized
agent to receive and forward on its behalf service of any and all process which
may be served in any such suit, action or proceeding in any such court and
agrees that service of process upon CT Corporation shall be deemed in every
respect effective service of process upon the Company in any such suit, action
or proceeding and shall be taken and held to be valid personal service upon the
Issuer or Tyco International, as the case may be. Said designation and
appointment shall be irrevocable. Nothing in this Section 10.9 shall affect the
right of the Holders to serve process in any manner permitted by law or limit
the right of the Holders to bring proceedings against the Issuer or Tyco
International in the courts of any jurisdiction or jurisdictions. Each of the
Issuer and Tyco International further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation in full force and effect so long as the Securities are
outstanding. Each of the Issuer and Tyco International hereby irrevocably and
unconditionally authorizes and directs CT Corporation to accept such service on
its behalf. If for any reason CT Corporation ceases to be available to act as
such, each of the Issuer and Tyco International agrees to designate a new agent
in New York City.
To the extent that the Issuer or Tyco International has or hereafter
may acquire any immunity from jurisdiction of any court (including, without
limitation, any court in the United States, the State of New York, Luxembourg,
Bermuda or any political subdivisions thereof) or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its property
or assets, this Indenture, the Securities, the Guarantees or any other documents
or actions to enforce judgments in respect of any thereof, the each of the
Issuer and Tyco International hereby irrevocably waives such immunity, and any
defense based on such immunity, in respect of its obligations under the
above-referenced documents and the transactions contemplated thereby, to the
extent permitted by law.
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SECTION 10.10 JUDGEMENT CURRENCY. If pursuant to a judgment or order
being made or registered against the Issuer or Tyco International, any payment
under or in connection with this Indenture, any Securities or any Guarantees to
a Holder is made or satisfied in a currency (the "Judgment Currency") other than
in United States dollars then, to the extent that the payment (when converted
into United States dollars at the rate of exchange on the date of payment or, if
it is not practicable for such Holder to purchase United States dollars with the
Judgment Currency on the date of payment, at the rate of exchange as soon
thereafter as it is practicable for it to do so) actually received by such
Holder falls short of the amount due under the terms of this Indenture, any
Securities or any Guarantees, each of the Issuer and Tyco International shall,
to the extent permitted by law, as a separate and independent obligation,
indemnify and hold harmless such Holder against the amount of such short fall
and such indemnity shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. For the purpose of this Section, "rate of
exchange" means the rate at which the Holder is able on the relevant date to
purchase United States dollars with the Judgment Currency and shall take into
account any premium and other costs of exchange.
SECTION 10.11 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.12 EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION l1.1 APPLICABILITY OF ARTICLE. The provisions of this
Article and Section 12.1 shall be applicable to the Securities of any series
which are redeemable before their maturity or to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.4 for Securities of such series.
SECTION 11.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is
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to be redeemed in part only the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new Security
or Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is
acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee at least 10 days
before the notice of redemption referred to in the first paragraph of this
Section 11.2 is first mailed to Holders, but no less than 45 days prior to the
date fixed for redemption, an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.5 and 9.8, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; PROVIDED that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.5 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue
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Discount Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 11.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment." The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.8, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the forty-fifth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement (which need not contain the statements required by Section 10.5)
signed by an authorized officer of the Issuer (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series, (b) stating that
none of the Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and,
if so, specifying the amount of such optional sinking fund payment which the
issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its receipt by
the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
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succeeding sinking fund payment date. Failure of the Issuer, on or before any
such forty-fifth day, to deliver such written statement and Securities specified
in this paragraph, if any, shall not constitute a default but shall constitute,
on and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Issuer shall so request) with respect to
the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 or less and the
Issuer makes no such request then it shall be carried over until a sum in excess
of $50,000 is available. The Trustee shall select, in the manner provided in
Section 11.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are (a) owned by the Issuer or an
entity known by the Trustee to be directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer, as
shown by the Security register, and not known to the Trustee to have been
pledged or hypothecated by the Issuer or any such entity or (b) identified in an
officers' Certificate at least 60 days prior to the sinking fund payment date as
being beneficially owned by, and not pledged or hypothecated by, the Issuer or
an entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer shall be excluded from Securities of
such series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 11.2 (and with the
effect provided in Section 11.3) for the redemption of Securities of such series
in part at the option of the Issuer. The amount of any sinking fund payments
not so applied or allocated to the redemption of Securities of such series shall
be added to the next cash sinking fund payment for such series and, together
with such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of
the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when
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any such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Four and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 4.9 or the default cured on or before the
forty-fifth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE TWELVE
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
SECTION 12.1 REDEMPTION UPON CHANGES IN WITHHOLDING TAXES. The
Securities of any series may be redeemed, as a whole but not in part, at the
election of the Issuer, upon not less than 30 nor more than 60 days notice
(which notice shall be irrevocable), at a redemption price equal to 100% of the
principal amount thereof, together with accrued interest, if any, to the
redemption date and Additional Amounts, if any, if as a result of any amendment
to, or change in, the laws or regulations of Luxembourg or any political
subdivision or taxing authority thereof or therein having power to tax (a
"Taxing Authority"), or any change in the application or official interpretation
of such laws or regulations which amendment or change becomes effective after
the date the Securities of such series are issued, the Issuer has become or will
become obligated to pay Additional Amounts (as described below under "Payment of
Additional Amounts"), on the next date on which any amount would be payable with
respect to the Securities of such series, and such obligation cannot be avoided
by the use of reasonable measures available to the Issuer; PROVIDED, HOWEVER,
that (a) no such notice of redemption may be given earlier than 60 days prior to
the earliest date on which the Issuer would be obligated to pay such Additional
Amounts, and (b) at the time such notice of redemption is given, such obligation
to pay such Additional Amounts remains in effect. Prior to the giving of any
notice of redemption described in this paragraph, the Issuer shall deliver to
the Trustee (i) a certificate signed by two directors of the Issuer stating that
the obligation to pay Additional Amounts cannot be avoided by the Issuer taking
reasonable measures available to it and (ii) a written opinion of independent
legal counsel to the Issuer of recognized standing to the effect that the Issuer
has or will become obligated to pay Additional Amounts as a result of a change,
amendment, official interpretation or application described above and that the
Issuer cannot avoid the payment of such Additional Amounts by taking reasonable
measures available to it.
SECTION 12.2 PAYMENT OF ADDITIONAL AMOUNTS. All payments made by the
Issuer, Tyco International and any other Guarantor under or with respect to the
Securities and the Guarantees will be made free and clear of and without
withholding or deduction for or on account of any present or future taxes,
duties, levies, imposts, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of any Taxing Authority ("Taxes"), unless the
Issuer, Tyco International or such Guarantor, as the case may be, is required to
withhold or deduct Taxes by law or by the interpretation or administration
thereof. In the event that the Issuer, Tyco International or such Guarantor is
required to so withhold or deduct any amount for or on account of any Taxes from
any payment made under or with respect to the Securities or the Guarantees, as
the case may be, the Issuer, Tyco International or such Guarantor, as the case
may be, will pay such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by each Holder of Securities
(including Additional Amounts) after such withholding or deduction will equal
the amount that such Holder would have received if such Taxes had not been
required to be withheld or deducted; provided that no Additional Amounts will be
payable with respect to a payment made to a Holder of Securities to the extent:
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(a) that any such Taxes would not have been so imposed but for the
existence of any present or former connection between such holder and the
Taxing Authority imposing such Taxes (other than the mere receipt of such
payment, acquisition, ownership or disposition of such Securities or the
exercise or enforcement of rights under such Securities, the Guarantees or
this Indenture);
(b) of any estate, inheritance, gift, sales, transfer, or personal
property Tax imposed with respect to such Securities, except as otherwise
provided herein;
(c) that any such Taxes would not have been so imposed but for the
presentation of such Securities (where presentation is required) for
payment on a date more than 30 days after the date on which such payment
became due and payable or the date on which payment thereof is duly
provided for, whichever is later, except to the extent that the beneficiary
or Holder thereof would have been entitled to Additional Amounts had the
Securities been presented for payment on any date during such 30-day
period; or (d) that such Holder would not be liable or subject to such
withholding or deduction of Taxes but for the failure to make a valid
declaration of non-residence or other similar claim for exemption, if
(x) the making of such declaration or claim is required or imposed by
statute, treaty, regulation, ruling or administrative practice of the
relevant Taxing Authority as a precondition to an exemption from, or
reduction in, the relevant Taxes, and (y) at least 60 days prior to the
first payment date with respect to which the Issuer, Tyco International or
such Guarantor shall apply this clause (d), the Issuer, Tyco International
or such Guarantor shall have notified all Holders of Securities in writing
that they shall be required to provide such declaration or claim.
The Issuer, Tyco International or such Guarantor, as applicable, will also
(i) make such withholding or deduction of Taxes and (ii) remit the full amount
of Taxes so deducted or withheld to the relevant Taxing Authority in accordance
with all applicable laws. The Issuer, Tyco International or such Guarantor, as
applicable, will use their reasonable best efforts to obtain certified copies of
tax receipts evidencing the payment of any Taxes so deducted or withheld from
each Taxing Authority imposing such Taxes. The Issuer, Tyco International or
such Guarantor, as the case may be, will, upon request, make available to the
Holders of the Securities, within 60 days after the date the payment of any
Taxes so deducted or withheld is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by the Issuer, Tyco International
or such Guarantor or if, notwithstanding the Issuer's, Tyco International's or
such Guarantor's efforts to obtain such receipts, the same are not obtainable,
other evidence of such payments by the Issuer, Tyco International or such
Guarantor.
At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Issuer, Tyco International
or such Guarantor will be obligated to pay Additional Amounts with respect to
such payment, the Issuer, Tyco International or such Guarantor will deliver to
the Trustee an Officer's Certificate stating the fact that such Additional
Amounts will be payable, the amounts so payable and will set forth such other
information as is necessary to enable such Trustee to pay such Additional
Amounts to Holders of Securities on the payment date.
The foregoing provisions shall survive any termination of the discharge of
this Indenture and shall apply mutatis mutandis to any jurisdiction in which any
successor Person to the Issuer, Tyco International or such Guarantor, as the
case may be, is organized or is engaged in business for tax purposes or any
political subdivisions or taxing authority or agency thereof or therein.
In addition, the Issuer will pay any stamp, issue, registration,
documentary or other similar
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taxes and duties, including interest, penalties and additional amounts with
respect thereto, payable in Luxembourg or the United States or any political
subdivision or taxing authority of or in the foregoing in respect of the
creation, issue, offering, enforcement, redemption or retirement of the
Securities.
Whenever in this Indenture or the Securities there is mentioned, in any
context, the payment of principal, redemption price, interest or any other
amount payable under or with respect to any Security, such mention shall be
deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof.
ARTICLE THIRTEEN
GUARANTEES
SECTION 13.1 GUARANTEE. Tyco International and each Person that becomes a
Guarantor after the date of this Indenture (collectively with Tyco
International, the "Guarantors") Guarantor hereby, jointly and severally, fully
and unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee, and to the Trustee on behalf of such Holder, the due
and punctual payment of the principal of and interest on such Security when and
as the same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption or otherwise, in accordance with the terms of
such Security and of this Indenture. In case of the failure of the Issuer
punctually to make any such payment, each Guarantor hereby, jointly and
severally, agrees to cause such payment to be made punctually when and as the
same shall become due and payable, whether at the stated maturity or by
acceleration, call for redemption or otherwise, and as if such payment were made
by the Issuer.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be absolute and unconditional, irrespective of, and
shall be unaffected by, the validity, regularity or enforceability of such
Security or this Indenture, the absence of any action to enforce the same or any
release, amendment, waiver or indulgence granted to the Issuer or any guarantor
or any consent to departure from any requirement of any other guarantee of all
or any of the Securities or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each of the Guarantors hereby waives the benefits of diligence, presentment,
demand for payment, any requirement that the Trustee or any of the Holders
protect, secure, perfect or insure any security interest in or other lien on any
property subject thereto or exhaust any right or take any action against the
Issuer or any other Person or any collateral, filing of claims with a court in
the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to such
Security or the Indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged in respect of such Security
except by complete performance of the obligations contained in such Security and
in such Guarantee. Each Guarantor agrees that if, after the occurrence and
during the continuance of an Event of Default, the Trustee or any of the Holders
are prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, such Guarantor agrees to pay to the Trustee for the account of
the Holders, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
Each Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Guarantee is endorsed against the Issuer in respect of
any amounts paid by such
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Guarantor on account of such Security pursuant to the provisions of its
Guarantee or this Indenture; provided, however, that no Guarantor shall be
entitled to enforce or to receive any payment arising out of, or based upon,
such right of subrogation until the principal of and interest on all Securities
issued hereunder shall have been paid in full.
Each Guarantor that makes or is required to make any payment in respect of
its Guarantee shall be entitled to seek contribution from the other Guarantors
to the extent permitted by applicable law; provided, however, that no Guarantor
shall be entitled to enforce or receive any payments arising out of, or based
upon, such right of contribution until the principal of and interest on all
Securities issued hereunder shall have been paid in full.
Each Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Issuer for liquidation
or reorganization, should the Issuer become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any part of the Issuer's assets, and shall, to the fullest extent permitted by
law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Securities, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
Holder of the Securities, whether as a "voidable preference," "fraudulent
transfer," or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Securities shall, to the fullest extent
permitted by law, be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
Any term or provision of any Guarantee to the contrary notwithstanding, the
aggregate amount of the obligations guaranteed hereunder shall be reduced to the
extent necessary to prevent such Guarantee from violating or becoming voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
SECTION 13.2 EXECUTION AND DELIVERY OF GUARANTEES. The Guarantees to be
endorsed on the Securities shall include the terms of the Guarantee set forth in
Section 13.1 and any other terms that may be set forth in the form established
pursuant to Section 2.2. Each of the Guarantors hereby agrees to execute its
Guarantee, in a form established pursuant to Section 2.2, to be endorsed on each
Security authenticated and delivered by the Trustee.
The Guarantee shall be executed on behalf of each respective Guarantor by
any one of such Guarantor's chairman of the Board, president, vice presidents or
other person duly authorized by the Board of such Guarantor, attested by its
secretary or assistant secretary. The signature of any or all of these persons
on the Guarantee may be manual or facsimile.
A Guarantee bearing the manual or facsimile signature of individuals who
were at any time the proper officers of a Guarantor shall bind such Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of the Security on which such
Guarantee is endorsed or did not hold such offices at the date of such
Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantors and shall bind each Guarantor
notwithstanding the fact that Guarantee does not bear the signature of such
Guarantor. Each of the Guarantors hereby jointly and severally agrees that its
Guarantee set forth in Section 13.1 and in the form of Guarantee established
pursuant to Section 2.2 shall
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remain in full force and effect notwithstanding any failure to endorse a
Guarantee on any Security.
SECTION 13.3 RELEASE OF GUARANTEES. Notwithstanding anything in this
Article Thirteen to the contrary, concurrently with the payment in full of the
principal of, premium, if any, and interest on the Securities, the Guarantors
shall be released from and relieved of their obligations under this Article
Thirteen. Upon the delivery by the Issuer to the Trustee of an Officers'
Certificate and, if requested by the Trustee, an Opinion of Counsel to the
effect that the transaction giving rise to the release of this Guarantee was
made by the Issuer in accordance with the provisions of this Indenture and the
Securities, the Trustee shall execute any documents reasonably required in order
to evidence the release of the Guarantors from their obligations under this
Guarantee. If any of the obligations to pay the principal of, premium, if any,
and interest on the Securities are revived and reinstated after the termination
of this Guarantee, then all of the obligations of the Guarantors under this
Guarantee shall be revived and reinstated as if this Guarantee had not been
terminated until such time as the principal of, premium, if any, and interest on
the Securities are paid in full, and each Guarantor shall enter into an
amendment to this Guarantee, reasonably satisfactory to the Trustee, evidencing
such revival and reinstatement.
This Guarantee shall terminate with respect to the applicable Guarantor and
shall be automatically and unconditionally released and discharged as provided
in Section 3.11(b).
SECTION 13.4 ADDITIONAL GUARANTORS. To the extent required pursuant to
Section 3.11 hereof, the Issuer will cause a Restricted Subsidiary to become a
Guarantor with respect to the Securities by executing and delivering to the
Trustee (a) a supplemental indenture, in form and substance satisfactory to the
Trustee, which subjects such Person to the provisions (including the
representations and warranties) of this Indenture as a Guarantor and (b) an
Opinion of Counsel to the effect that such supplemental indenture has been duly
authorized and executed by such Person and such supplemental indenture and such
Person's obligations under its Guarantee and this Indenture constitute the
legal, valid, binding and enforceable obligations of such Person (subject to
such customary exceptions concerning creditors' rights and equitable principles
as may be acceptable to the Trustee in its discretion).
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of ________ __, 1998.
TYCO GROUP S.A. (LUXEMBOURG), as Issuer
By:
------------------------------------
Name:
Title:
TYCO INTERNATIONAL LTD., as Guarantor
By:
------------------------------------
Name:
Title:
Attest:
By:
--------------------------
BANK OF NEW YORK, as Trustee
By:
------------------------------------
Name:
Title:
Attest:
By:
--------------------------
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TABLE OF CONTENTS
Page
ARTICLE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Certain Terms Defined. . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.1 Forms Generally. . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.2 Form of Guarantee. . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.2 Form of Trustee's Certificate of Authentication. . . . . . . 8
SECTION 2.3 Amount Unlimited; Issuable in Series . . . . . . . . . . . . 8
SECTION 2.4 Authentication and Delivery of Securities. . . . . . . . . . 9
SECTION 2.5 Execution of Securities. . . . . . . . . . . . . . . . . . .10
SECTION 2.6 Certificate of Authentication. . . . . . . . . . . . . . . .11
SECTION 2.7 Denomination and Date of Securities; Payments of Interest. .11
SECTION 2.8 Registration, Transfer and Exchange. . . . . . . . . . . . .11
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. .12
SECTION 2.10 Cancellation of Securities; Destruction Thereof . . . . . .13
SECTION 2.11 Temporary Securities. . . . . . . . . . . . . . . . . . . .13
SECTION 2.12 Securities Issuable in the Form of a Global Security. . . .14
ARTICLE THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 3.1 Payment of Principal and Interest. . . . . . . . . . . . . .15
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . . . . . . . .15
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee . . . . .16
SECTION 3.4 Paying Agent . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 3.5 Certificate of the Issuer and the Guarantors . . . . . . . .16
SECTION 3.6 Securityholders Lists. . . . . . . . . . . . . . . . . . . .17
SECTION 3.7 Reports by the Issuer and Tyco International . . . . . . . .17
SECTION 3.8 Reports by the Trustee . . . . . . . . . . . . . . . . . . .17
SECTION 3.9 Limitations on Liens . . . . . . . . . . . . . . . . . . . .17
SECTION 3.10 Limitation on Sale and Lease-Back Transactions . . . . . . .19
SECTION 3.11 Limitation on Indebtedness of Subsidiaries . . . . . . . . .20
SECTION 3.12 Notice to Trustee. . . . . . . . . . . . . . . . . . . . . .20
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default . . . . . . . . . . . . . . . . . . . . . . . . . . .21
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt . . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 4.3 Application of Proceeds. . . . . . . . . . . . . . . . . . .25
SECTION 4.4 Suits for Enforcement. . . . . . . . . . . . . . . . . . . .26
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. . . . .26
SECTION 4.6 Limitations on Suits by Securityholders. . . . . . . . . . .26
SECTION 4.7 Unconditional Right of Securityholders to Institute Certain
Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 4.9 Control by Securityholders . . . . . . . . . . . . . . . . .27
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Page
SECTION 4.10 Waiver of Past Defaults. . . . . . . . . . . . . . . . . . .28
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. . . . . . . . . . . . . . . . . . . .28
SECTION 4.12 Right of Court to Require Filing of Undertaking
to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . .29
ARTICLE FIVE5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 5.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default . . . . . . . . . . . . . . . . . . . . . .29
SECTION 5.2 Certain Rights of the Trustee. . . . . . . . . . . . . . . .30
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. . . . . . . .31
SECTION 5.4 Trustee and Agents May Hold Securities; Collections, etc . .31
SECTION 5.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . .31
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior
Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . .32
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc . . .32
SECTION 5.8 Persons Eligible for Appointment as Trustee. . . . . . . . .32
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee. .32
SECTION 5.10 Acceptance of Appointment by Successor Trustee . . . . . . .34
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business
of Trustee . . . . . . . . . . . . . . . . . . . . . . . . .34
ARTICLE SIX6.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
SECTION 6.1 Evidence of Action Taken by Securityholders. . . . . . . . .35
SECTION 6.2 Proof of Execution of Instruments and of Holding of
Securities; Record Date. . . . . . . . . . . . . . . . . . .35
SECTION 6.3 Holders to be Treated as Owners. . . . . . . . . . . . . . .35
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. . . . . .36
SECTION 6.5 Right of Revocation of Action Taken. . . . . . . . . . . . .36
ARTICLE SEVEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders .37
SECTION 7.2 Supplemental Indentures With Consent of Securityholders. . .38
SECTION 7.3 Effect of Supplemental Indenture . . . . . . . . . . . . . .39
SECTION 7.4 Documents to Be Given to Trustee . . . . . . . . . . . . . .39
SECTION 7.5 Notation on Securities in Respect of Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . .39
ARTICLE EIGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
SECTION 8.1 Issuer and Guarantors May Consolidate, etc.,
on Certain Terms . . . . . . . . . . . . . . . . . . . . . .39
SECTION 8.2 Successor Corporation Substituted. . . . . . . . . . . . . .39
SECTION 8.3 Opinion of Counsel to Trustee. . . . . . . . . . . . . . . .40
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
SECTION 9.2 Issuer's Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . .41
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SECTION 9.3 Defeasance and Discharge . . . . . . . . . . . . . . . . . .41
SECTION 9.4 Covenant Defeasance. . . . . . . . . . . . . . . . . . . . .42
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance. . . . . . .42
SECTION 9.6 Application by Trustee of Funds Deposited for Payment of
Securities . . . . . . . . . . . . . . . . . . . . . . . . .44
SECTION 9.7 Repayment of Moneys Held by Paying Agent . . . . . . . . . .44
SECTION 9.8 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years. . . . . . . . . . . . . . . . . . . . . . . .44
SECTION 9.9 Indemnity for Direct Obligations of the United States. . . .44
SECTION 9.10 Reinstatement. . . . . . . . . . . . . . . . . . . . . . . .44
ARTICLE TEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
SECTION 10.1 Incorporators, Shareholders, Officers and Directors
of Issuer Exempt from Individual Liability . . . . . . . . .45
SECTION 10.2 Provisions of Indenture for the Sole Benefit
of Parties and Securityholders . . . . . . . . . . . . . . .45
SECTION 10.3 Successors and Assigns of Issuer and Guarantors Bound by
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . .45
SECTION 10.4 Notices and Demands on Issuer, Guarantors Trustee and
Securityholders. . . . . . . . . . . . . . . . . . . . . . .45
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . . . . . . . . .46
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays. . . . . . .47
SECTION 10.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939. . . . . . . . . . . . . . . . .47
SECTION 10.8 New York Law to Govern . . . . . . . . . . . . . . . . . . .47
SECTION 10.8 Consent to Jurisdiction and Service of Process . . . . . . .47
SECTION 10.8 Judgement Currency . . . . . . . . . . . . . . . . . . . . .48
SECTION 10.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . .48
SECTION 10.10 Effect of Headings . . . . . . . . . . . . . . . . . . . .48
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . . . . .48
SECTION 11.2 Notice of Redemption; Partial Redemptions. . . . . . . . . .49
SECTION 11.3 Payment of Securities Called for Redemption. . . . . . . . .50
SECTION 11.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption . . . . . . . . . . . . . . . . . .50
SECTION 11.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . .50
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
SECTION 12.1 Redemption Upon Changes in Withholding Taxes. . . . . . . .52
SECTION 12.2 Payment of Additional Amounts . . . . . . . . . . . . . . .53
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
SECTION 13.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . .54
SECTION 13.2 Execution and Delivery of Guarantees. . . . . . . . . . . .56
SECTION 13.3 Release of Guarantees . . . . . . . . . . . . . . . . . . .56
SECTION 13.4 Additional Guarantors . . . . . . . . . . . . . . . . . . .56
-3-
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF APPLEBY, SPURLING & KEMPE]
April , 1998
Tyco International Ltd.
The Gibbons Building
10 Queen Street
Suite 301
Hamilton HM11
Bermuda
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as Bermuda counsel to Tyco International Ltd., a Bermuda
company ("Tyco"), in connection with the filing by Tyco and Tyco International
Group S.A., a Luxembourg company (the "Issuer"), with the United States
Securities and Exchange Commission of a Registration Statement on Form S-3, as
amended (the "Registration Statement"), with respect to the Issuer's unsecured
debt securities (the "Debt Securities") and the guarantees (the "Guarantees") of
the Debt Securities by Tyco, to be issued from time to time pursuant to Rule 415
under the United States Securities Act of 1933, as amended (the "Securities
Act"), for an aggregate initial offering price not to exceed U.S.$3,750,000,000.
The Debt Securities are to be in one or more series pursuant to an Indenture
among the Issuer, Tyco (as Guarantor) and the trustee thereunder.
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:
(i) a Certificate of Compliance issued by the Registrar of Companies in
Bermuda on April , 1998 in respect of Tyco;
(ii) the Certificate of Incorporation, Memorandum of Association and
Bye-laws of Tyco;
(iii) a copy of resolutions adopted by the Shareholders at a Special General
Meeting of Tyco held on July 2, 1997;
(iv) a copy of the Registration Statement, excluding the documents
incorporated by reference therein;
(v) copies of the pages of the Registration Statement as initially filed
signed by all of the Directors of Tyco (the "Signature Pages");
(vi) a copy of the resolutionS adopted by the Directors of Tyco dated
, 1998 (the "Board Resolutions"); and
(vii) a copy of the form of Indenture.
We have also relied upon our searches of documents of public record in
relation to Tyco maintained by the Registrar of Companies in Bermuda made on
April , 1998 and of the Causes Book maintained by the Registrar of the
Supreme Court made on the same date (the "Searches"); and such other
certificates, agreements, instruments and documents as we have deemed necessary
or advisable for the purposes of this opinion. We have relied, as to factual
matters only, upon such certificates and the representations and warranties made
in such agreements, instruments and other documents.
We have assumed:
(a) 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;
<PAGE>
(b) that all representations and statements of facts appearing in the
Registration Statement and the Board Resolutions are true and complete in
all material respects;
(c) the genuineness of all signatures on the documents which we have
examined;
(d) 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;
(e) that the information disclosed by the Searches has not been materially
altered and that the documents examined in connection with 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; and
(f) that the Signature Pages evidence the approval of all of the Directors
of Tyco of all matters relating to Tyco set out in the Registration
Statement including, without limiting the generality of the foregoing,
the approval of the issue, on the terms set out in the Registration
Statement and the Prospectus therein, of the Guarantees.
Unless otherwise defined herein, terms defined in the Registration Statement
and the Prospectus, have the same meanings when used in this opinion.
Based upon and subject to the foregoing, and subject to the reservations
mentioned below, we are of the opinion that as at the date hereof:
1. Tyco is a limited liability company validly organized and existing and
in good standing under the laws of Bermuda and has all requisite
corporate power and authority to issue the Guarantees.
2. All necessary action required to be taken by Tyco pursuant to Bermuda
law has been taken by or on behalf of Tyco for the issue by Tyco of the
Guarantees.
3. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency in Bermuda is necessary or required to be made or
obtained by Tyco in connection with the issue by Tyco of the Guarantees.
4. 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 issue by Tyco of the Guarantees.
Our reservations are as follows:
(1) We are admitted to practice law in the Islands of Bermuda and we express
no opinion as to any 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.
(2) Any reference in this opinion to Tyco being in "good standing" shall
mean for the purposes of this opinion that it has been issued with a
Certificate of Compliance by the Registrar of Companies as at the date
hereinbefore mentioned.
We hereby consent to the inclusion of the opinion as an exhibit to the
Registration Statement. We also consent to the reference to our firm under the
caption "Legal Matters" in the Prospectus included as part of the Registration
Statement.
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.
Your faithfully,
<PAGE>
EXHIBIT 5.2
On Zeyen Beghin Feider Loeff Claeys Verbeke Letterhead
To: ( )
Luxembourg, ( ), 1998
Dear Sirs,
TYCO INTERNATIONAL GROUP S.A.
(INCORPORATED AS A SOCIETE ANONYME WITH LIMITED LIABILITY UNDER THE LAWS OF THE
GRAND-DUCHY OF LUXEMBOURG)
ISSUE OF U.S.$3,750,000,000 DEBT SECURITIES
UNCONDITIONALLY GUARANTEED BY
TYCO INTERNATIONAL LTD.
We have acted as legal advisers in the Grand-Duchy of Luxembourg
("Luxembourg") to Tyco International Group S.A. (the "Issuer"), a limited
liability company (SOCIETE ANONYME) now organized under the laws of Luxembourg
but formerly a company named "Velum Limited" organized under the laws of
Gibraltar which transferred its registered and principal office to Luxembourg on
March 30, 1998. We are giving this opinion in connection with the filing by Tyco
International Ltd., a Bermuda company ("Tyco") and the Issuer, with the United
States Securities and Exchange Commission of a Registration Statement on Form
S-3, as amended (the "Registration Statement"), with respect to the Issuer's
unsecured debt securities (the "Debt Securities") and the guarantees (the
"Guarantees") of the Debt Securities by Tyco, to be issued from time to time
pursuant to Rule 415 under the United States Securities Act of 1933, as amended
(the "Securities Act"), for an aggregate initial offering price not to exceed
U.S. $3,750,000,000. The Debt Securities are to be in one or more series
pursuant to an Indenture among the Issuer, Tyco (as Guarantor) and the trustee
thereunder.
We have examined copies of the following documents:
(a) the prospectus dated April 23, 1998 (the "Prospectus") in relation to
the Debt Securities which incorporates the definitive form of Security;
(b) the minutes of the extraordinary general meeting of shareholders of the
Company held in notarial form before the notary Jean-Joseph Wagner on
March 30, 1998 (the "Notarial Deed")
(c) the restated articles of incorporation of the Issuer (the "Articles of
Association") in a version dated March 30, 1998 not yet published in the
official Gazette (Memorial C).
(d) an excerpt from the trade and company register at the district court in
Luxembourg as available in the Issuer's file on ( ), 1998.
(e) the board of directors' resolution of the Issuer dated April ( ), 1998
resolving INTER ALIA the issue of the Debt Securities and the entry into
any and all contractual documents in connection therewith (the
"Agreements"): and
(f) all other relevant corporate documents of the Issuer and such further
documents and matters of law as we have considered necessary or
appropriate for the rendering of this option.
For the purposes of this opinion, we have assumed with your consent, and we
have not verified independently, the following:
i. the genuineness of all the signatures and documents submitted to us as
originals the conformity to the originals thereof of the Prospectus and
other documents in respect of the Debt Securities submitted to us as
copies or specimens:
ii. the due authorization, execution and delivery of the Prospectus and
other documents in respect of the Debt Securities by all the parties
thereto (other than the Issuer), as well as the power,
<PAGE>
authority and legal right of all the parties thereto (other than the
Issuer) to enter into, execute, deliver and perform their respective
obligations thereunder, and compliance with all applicable laws and
regulations, other than Luxembourg law;
iii. that all authorizations and consents of any country other than
Luxembourg which may be required in connection with the execution,
delivery and performance of the Agreements and other documents in respect
of the issue of the Debt Securities have been or will be obtained;
iv. the validity and enforceability of the Prospectus and other documents
in respect of the Debt Securities under their governing laws (other than
the laws of Luxembourg);
v. that the Articles of Association have not been amended since March 30,
1998;
vi. that the Debt Securities will not be the subject of a public offering
in Luxembourg, unless the relevant requirements of Luxembourg law
concerning public offerings of securities have been fulfilled; and
vii. that there are no provisions of the laws of any jurisdiction outside
Luxembourg which would have any negative impact on the opinions we
express in this legal opinion.
Subject to the assumptions made above and the qualifications set forth
below, we are of the opinion as at the date hereof that:
1. The Issuer is a limited liability company validly organized and existing
under the laws of Luxembourg and has all requisite corporate power and
authority to issue the Debt Securities.
2. All necessary action required to be taken by the Issuer pursuant to the
laws of Luxembourg has been taken by or on behalf of the Issuer and all
the necessary authorizations and approvals of Government authorities in
Luxembourg have been duly obtained for the issue by the Issuer of the
Debt Securities.
3. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency in Luxembourg is necessary or required to be made or
obtained by Tyco or the Issuer in connection with the issue by the Issuer
of the Debt Securities.
4. There are no taxes, duties, or other charges payable to or chargeable by
the Government of Luxembourg, or any authority or agency thereof, in
respect of the issue by the Issuer of the Debt Securities.
The above opinions are subject to the following qualifications:
a) Although this is rarely done in practice, if any or all Agreements in
respect of the Debt Securities were produced in Luxembourg proceedings or
in front of a Luxembourg official authority, the court could order the
registration thereof, in which case an ad valorem tax on the amount
referred to in the Prospectus of the Debt Securities would be payable at
the rate of 0.24 per cent., unless production was made in an
enforceability claim under the provisions of the European Convention on
Jurisdiction and Enforcement of Judgements in Civil and Commercial
Matters signed at Brussels on 27th September, 1968, as amended.
b) The opinion expressed under 1. is subject to the publication in due
course of the articles of association of the Issuer in the Official
Gazaette (Memorial C), the Issuer being however validly formed as a
Luxembourg company upon execution of the Notarial Deed which was passed
on March 30, 1998.
c) This opinion is limited to matters of Luxembourg law only and we express
no opinion other than with respect to Luxembourg law under the
assumptions and reservations made hereunder.
d) This opinion is as of this date and we undertake no obligation to update
it or advise of changes hereafter occurring. We express no opinion as to
any matters other than those expressly set forth herein, and no opinion
is, or may be, implied or inferred herefrom.
<PAGE>
This opinion shall be construed in accordance with Luxembourg law and
Luxembourg legal concepts are expressed in English terms and not in their
original French terms. The concepts concerned may not be identical to the
concepts described by the same English terms as they exist under the laws of
other jurisdictions.
This opinion may, therefore, only be relied upon under the express condition
that any issues of interpretation arising thereunder will be governed by
Luxembourg law and be brought before a Luxembourg court. Nothing in this opinion
should be taken as expressing an opinion in respect of any representations or
warranties, or other information, contained in the Prospectus or any other
document examined in connection with the opinion except as expressly confirmed
herein. This opinion is given to you solely for your benefit. It is not to be
transmitted to any other person nor is it to be relied upon by any other person
or for any other purpose without our previous written consent.
We hereby consent to the inclusion of the opinion as an exhibit to the
Registration Statement. We also consent to the reference to our firm under the
caption "Legal Matters" in the Prospectus included as part of the Registration
Statement.
Yours faithfully,
ZEYEN BEGHIN FEIDER
LOEFF CLAEYS VERBEKE
by:
------------------------------------------------------------------------
Marc Feider
<PAGE>
EXHIBIT 5.3
[LETTERHEAD OF KRAMER, LEVIN, NAFTALIS & FRANKEL]
April , 1998
Tyco International Ltd.
The Gibbons Building
10 Queen Street
Suite 301
Hamilton HM11
Bermuda
Tyco International Group S.A.
Boulevard Royal, 26
6th Floor
L - 2449 Luxembourg
Ladies and Gentlemen:
We have acted as United States securities counsel for Tyco International
Ltd., a Bermuda company ("Tyco"), and Tyco International Group S.A., a
Luxembourg company (the "Issuer"), in connection with the filing by Tyco and the
Issuer, with the United States Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-3, as amended (the
"Registration Statement"), with respect to the Issuer's unsecured debt
securities (the "Debt Securities") and the guarantees (the "Guarantees") of the
Debt Securities by Tyco, to be issued from time to time pursuant to Rule 415
under the United States Securities Act of 1933, as amended (the "Securities
Act"), for an aggregate initial offering price not to exceed U.S.$3,750,000,000.
The Debt Securities are to be in one or more series pursuant to an Indenture
among the Issuer, Tyco (as Guarantor) and the trustee thereunder (the
"Trustee").
We have examined (i) the form of Indenture filed as Exhibit 4.4 to the
Registration Statement (the "Indenture"), pursuant to which Debt Securities may
be issued; (ii) the Registration Statement; and (iii) originals, photocopies or
conformed copies of all such records of Tyco, the Issuer and their subsidiaries,
all such agreements and certificates of public officials, and such other
documents as we have deemed relevant and necessary as a basis for the opinion
hereinafter expressed. In addition, we have examined and relied upon the
opinions of Appleby, Spurling & Kempe, Bermuda counsel to Tyco, and Loeff Claeys
Verbeke, Luxembourg counsel to the Issuer, of even date.
In connection with this opinion, we have assumed that (i) the Registration
Statement, and any amendments thereto (including post-effective amendments),
will have become effective; (ii) a Prospectus Supplement will have been prepared
and filed with the Commission describing the Debt Securities offered thereby and
the Guarantees; (iii) all Debt Securities will be issued and sold in compliance
with applicable federal and state securities laws and in the manner stated in
the Registration Statement and the appropriate Prospectus Supplement; (iv) the
Indenture and any applicable supplemental indenture will have been duly
authorized, executed and delivered by the Issuer, Tyco and the Trustee, and any
such supplemental indenture will conform to the Indenture and to applicable law;
and (v) a definitive purchase, underwriting or similar agreement with respect to
any Debt Securities offered will have been duly authorized and validly executed
and delivered by the Issuer, Tyco and the other parties thereto.
Based upon and subject to the foregoing, we are of the opinion that:
With respect to Debt Securities to be issued under the Indenture, when (i)
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended; (ii) the Board of Directors of the Issuer has taken all necessary
corporate action to approve the issuance and terms of such Debt Securities, the
terms of the offering thereof and related matters; and (iii) such Debt
Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Indenture, the applicable supplemental
indenture, and the applicable definitive purchase, underwriting or similar
agreement
<PAGE>
approved by the Board of Directors the Issuer upon payment of the consideration
therefor provided for therein, such Debt Securities will be legally issued and
will constitute valid and binding obligations of the Issuer, enforceable against
the Issuer in accordance with their terms, except as such enforcement is subject
to any applicable bankruptcy, insolvency, reorganization or other law relating
to or affecting creditors' rights generally and general principles of equity.
With respect to the Guarantees, when (i) the Board of Directors of Tyco has
taken all necessary corporate action to approve the creation of and the issuance
and terms of the Guarantees and related matters; and (ii) the Guarantees have
been duly authorized by Tyco, such Guarantees will be legally issued and will
constitute valid and binding obligations of Tyco, enforceable against Tyco in
accordance with their terms, except as such enforcement is subject to any
applicable bankruptcy, insolvency, reorganization or other law relating to or
affecting creditors' rights generally and general principles of equity.
Joshua M. Berman, a director and Vice President of the Company, is counsel
to our firm.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the statements made with respect to us under the
caption "Legal Matters" in the Prospectus included as part of the Registration
Statement.
We call your attention to the fact that we are admitted to practice law only
in the State of New York and, in rendering the foregoing opinion, we do not
express an opinion concerning any laws other than the laws of the State of New
York and the federal laws of the United States of America.
Very truly yours,
Kramer, Levin, Naftalis & Frankel
<PAGE>
EXHIBIT 12
TYCO INTERNATIONAL LTD.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (1)
(IN THOUSANDS)
<TABLE>
<CAPTION>
THREE FISCAL YEAR
MONTHS ENDED YEAR ENDED DECEMBER 31,
ENDED SEPT. 30, ------------------------------------------
DECEMBER 31, 1997 1997(5) 1996 1995 1994 1993
----------------- ----------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) before
extraordinary item and
cumulative effect of
accounting changes............................. $ 240,797 $(776,760) $(296,700) $ 267,500 $ 301,472 $ 244,294
Income Taxes..................................... 118,603 187,017 235,500 208,600 193,265 130,322
-------- ----------- --------- --------- --------- ---------
359,400 (589,743) (61,200) 476,100 494,737 374,616
-------- ----------- --------- --------- --------- ---------
Fixed Charges:
Interest expense(2).............................. 49,811 137,453 193,300 187,500 167,746 168,382
Rentals(3)....................................... 17,056 51,167 59,600 50,600 44,899 44,941
-------- ----------- --------- --------- --------- ---------
66,867 188,620 252,900 238,100 212,645 213,323
-------- ----------- --------- --------- --------- ---------
Earnings (loss) before
income taxes and fixed
charges........................................ $ 426,267 $(401,123) $ 191,700 $ 714,200 $ 707,382 $ 587,939
-------- ----------- --------- --------- --------- ---------
-------- ----------- --------- --------- --------- ---------
Ratio of earnings to fixed
charges(4)..................................... 6.37 (4) (4) 3.00 3.33 2.76
</TABLE>
- ------------------------
(1) On July 2, 1997, a wholly-owned subsidiary of ADT Limited ("ADT"; renamed
Tyco International Ltd. ("Tyco")) merged with Tyco International Ltd., a
Massachusetts corporation ("Former Tyco"). On August 27, 1997, Tyco
consummated a merger with INBRAND Corporation ("INBRAND"), and on August 29,
1997, Tyco consummated a merger with Keystone International, Inc.
("Keystone"). Each of the three merger transactions qualifies for pooling of
interests basis of accounting. As such, the ratio of earnings to fixed
charges for the nine months ended September 30, 1997 and the years ended
December 31, 1996, 1995, 1994 and 1993 include the effect of the mergers,
except that the consolidated financial statements for periods prior to
January 1, 1997 do not include INBRAND due to immateriality.
Prior to the respective mergers, ADT and Keystone had calendar year ends and
Former Tyco had a June 30 fiscal year end. The historical results have been
combined using a calendar year end for ADT, Keystone and Former Tyco for the
year ended December 31, 1996. For 1995, 1994 and 1993 the results of
operations and financial position reflect the combination of ADT and
Keystone with a calendar year end and Former Tyco with a June 30 fiscal year
end.
(2) Interest expense consists of interest on indebtedness and amortization of
debt expense.
(3) One-third of net rental expense is deemed representative of the interest
factor.
(4) Earnings were insufficient to cover fixed charges by $589.7 million and
$61.2 million in 1997 and 1996, respectively.
Earnings for the nine months ended September 30, 1997 and the year ended
December 31, 1996 included merger, restructuring and other nonrecurring
charges of $917.8 million and $246.1 million, respectively. Earnings also
include a charge for the impairment of long-lived assets of $148.4 million
and $744.7 million, respectively in the 1997 and 1996 periods. The 1997
period also includes a write off of purchased in-process research and
development of $361.0 million.
On a pro forma basis the ratio of earnings to fixed charges excluding merger,
restructuring and other nonrecurring charges, charge for the impairment of
long-lived assets and write off of purchased in-process research and
development would have been 5.44x and 4.68x for the nine months ended
September 30, 1997 and year ended December 31, 1996, respectively.
(5) In September 1997, Tyco changed its fiscal year end from December 31 to
September 30. The fiscal year ended September 30, 1997 represents the nine
month period ended September 30, 1997.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Tyco International Ltd. ("Tyco") on Form S-3 of our report dated November 21,
1997, which is included in Tyco's Transition Report on Form 10-K for the period
ended September 30, 1997, and our report dated November 21, 1997, except as to
the information presented in Note 25(b) for which the date is April 21, 1998,
which is included in Tyco'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. (formerly named ADT Limited) as of September
30, 1997 and December 31, 1996 and for the nine months ended September 30, 1997
and for each of the two years in the period ended December 31, 1996. We also
consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND
Hamilton, Bermuda
April 21, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Tyco International Ltd. ("Tyco") on Form S-3 of our report dated July 10,
1997, which is included in Tyco's Transition Report on Form 10-K for the period
ended September 30, 1997 and in Tyco'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. (subsequently renamed Tyco
International (US) Inc.) as of December 31, 1996 and for the years ended
December 31, 1996 and June 30, 1995 (not presented separately therein). We also
consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
April 21, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 31, 1997 on
our audits of the consolidated financial statements of Keystone International,
Inc. and subsidiaries as of December 31, 1996 and for each of the two years in
the period then ended, included in Tyco International Ltd. Transition Report on
Form 10-K for the year ended September 30, 1997, and to all references to our
Firm included in this Registration Statement.
ARTHUR ANDERSON LLP
April 21, 1998
Houston, Texas
<PAGE>
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
______________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
TYCO INTERNATIONAL LTD.
(Exact name of obligor as specified in its charter)
Bermuda Not Applicable
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
The Gibbons Building
10 Queen Street, Suite 301
Hamilton, IIM11, Bermuda
(Address of principal executive offices) (Zip code)
______________________
TYCO INTERNATIONAL GROUP S.A.
(Exact name of obligor as specified in its charter)
Luxembourg Not Applicable
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Boulevard Royal, 26
Sixth Floor
L-2449 Luxembourg
(Address of principal executive offices) (Zip code)
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 23rd day of April, 1998.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
--------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
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<PAGE>
EXHIBIT 7
---------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business December 31, 1997, published in accordance
with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................. $ 5,742,986
Interest-bearing balances .......... 1,342,769
Securities:
Held-to-maturity securities ........ 1,099,736
Available-for-sale securities ...... 3,882,686
Federal funds sold and Securities pur-
chased under agreements to resell... 2,568,530
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................35,019,608
LESS: Allowance for loan and
lease losses ..............627,350
LESS: Allocated transfer risk
reserve..........................0
Loans and leases, net of unearned
income, allowance, and reserve 34,392,258
Assets held in trading accounts ...... 2,521,451
Premises and fixed assets (including
capitalized leases) ................ 659,209
Other real estate owned .............. 11,992
Investments in unconsolidated
subsidiaries and associated
companies .......................... 226,263
Customers' liability to this bank on
acceptances outstanding ............ 1,187,449
Intangible assets .................... 781,684
Other assets ......................... 1,736,574
-----------
Total assets ......................... $56,153,587
===========
LIABILITIES
Deposits:
In domestic offices ................ $27,031,362
Noninterest-bearing ......11,899,507
Interest-bearing .........15,131,855
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 13,794,449
Noninterest-bearing .........590,999
Interest-bearing .........13,203,450
Federal funds purchased and Securities
sold under agreements to repurchase. 2,338,881
Demand notes issued to the U.S.
Treasury ........................... 173,851
Trading liabilities .................. 1,695,216
Other borrowed money:
With remaining maturity of one year
or less .......................... 1,905,330
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years ...................... 25,664
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,195,923
Subordinated notes and debentures .... 1,012,940
Other liabilities .................... 2,018,960
-----------
Total liabilities .................... 51,192,576
-----------
EQUITY CAPITAL
Common stock ......................... 1,135,284
Surplus .............................. 731,319
Undivided profits and capital
reserves ........................... 3,093,726
Net unrealized holding gains
(losses) on available-for-sale
securities ......................... 36,866
Cumulative foreign currency transla-
tion adjustments ................... ( 36,184)
-----------
Total equity capital ................. 4,961,011
-----------
Total liabilities and equity
capital ............................ $56,153,587
===========
I, Robert E. Keilman, Senior Vice President and
Comptroller of the above-named bank do hereby declare
that this Report of Condition has been prepared in
conformance with the instructions issued by the Board
of Governors of the Federal Reserve System and is true
to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the
correctness of this Report of Condition and declare
that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
)
Thomas A. Renyi )
Alan R. Griffith ) Directors
J. Carter Bacot )
)
