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EXHIBIT 5
[Letterhead of Appleby Spurling & Kempe]
8 August 2000
The United States Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
USA
Dear Sirs
TYCO INTERNATIONAL LTD. (THE "COMPANY")
We have been instructed by the Company to address this opinion to you in
connection with common shares (the "Common Shares") of the Company to be
acquired by the shareholders of Mallinckrodt Inc. ("Mallinckrodt") in connection
with the merger (the "Merger") of Mallinckrodt with EVM Merger Corp. ("Merger
Sub"), an indirect wholly owned subsidiary of the Company pursuant to the
Agreement and Plan of Merger dated as of June 28, 2000 among Tyco Acquisition
Corp., a direct wholly owned subsidiary of the Company, Merger Sub and
Mallinckrodt (the "Merger Agreement").
For the purposes of this opinion we have examined and relied upon the
documents listed, and in some cases defined, in the Schedule to this opinion
(the "Documents").
Unless otherwise defined herein, capitalised terms have the meanings
assigned to them in the Merger Agreement.
ASSUMPTIONS
In stating our opinion we have assumed:
(a) the authenticity, accuracy and completeness of all documents submitted
to us as originals and the conformity to authentic original documents of
all documents submitted to us as certified, conformed, notarised or
photostatic copies;
(b) the genuineness of all signatures on the documents;
(c) the authority, capacity and power of each of the persons signing the
documents which we have reviewed;
(d) that any factual statements made in any of the documents are true,
accurate and complete;
(e) that there are no provisions of the laws or regulations of any
jurisdiction other than Bermuda which would be contravened by the
execution or delivery of the Merger Agreement or which would have any
implication in relation to the opinion expressed herein and that, in so
far as any obligation under, or action to be taken under, the Merger
Agreement is required to be performed or taken in any jurisdiction
outside Bermuda, the performance of such obligation or the taking of such
action will constitute a valid and binding obligation of each of the
parties thereto under the laws of that jurisdiction and will not be
illegal by virtue of the laws of that jurisdiction;
(f) that the Searches were complete and accurate at the time they were made
and disclosed all information which is material for the purposes of this
opinion and such information has not since such date been materially
altered;
(g) that the Resolutions are in full force and effect, have not been
rescinded, either in whole or in part, and accurately record the
resolutions passed by the Board of Directors of the Company in a meeting
which was duly convened and at which a duly constituted quorum was
present and voting throughout;
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The United States Securities
and Exchange Commission 8 August 2000
(h) that each Director of the Company, when the Board of Directors of the
Company passed the Resolutions, discharged his fiduciary duty owed to the
Company and acted honestly and in good faith with a view to the best
interests of the Company;
(i) that Parent, Merger Sub and the Company have entered into their
respective obligations under or pursuant to the Merger Agreement, as the
case may be, in good faith for the purpose of carrying on their business
and that, at the time they did so, there were reasonable grounds for
believing that the transactions contemplated by the Merger Agreement
would benefit Parent, Merger Sub and the Company;
(j) that the Merger Agreement will effect, and will constitute legal, valid
and binding obligations of each of the parties thereto, enforceable in
accordance with their terms, under the laws of the States of New York, by
which it is expressed to be governed; and
(k) that when filed the Proxy Statement/Prospectus will not differ in any
material respect from the draft which we have examined for the purpose of
this opinion.
OPINION
Based upon and subject to the foregoing and subject to the reservations set
out below and to any matters not disclosed to us, we are of the opinion that:-
(1) The Company is an exempted company incorporated with limited liability
and existing under the laws of Bermuda. The Company possesses the
capacity to sue and be sued in its own name and is in good standing under
the laws of Bermuda.
(2) All necessary corporate action required to be taken by the Company in
connection with the issue by the Company of the Common Shares pursuant to
Bermuda law has been taken by or on behalf of the Company, and all
necessary approvals of Governmental authorities in Bermuda have been duly
obtained for the issue by the Company of the Common Shares.
(3) When the Common Shares have been duly issued and paid for pursuant to
and in accordance with the terms and conditions referred to or summarised
in the Resolutions, the Merger Agreement and in the Proxy
Statement/Prospectus, and upon completion of the transactions provided
for in the Merger Agreement, the Common Shares will be validly issued,
fully paid and non-assessable shares in the capital of the Company.
(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 of the Common Shares.
RESERVATIONS
We have the following reservations:
(a) 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. This opinion is
limited to Bermuda law as applied by the courts of Bermuda at the date
hereof.
(b) In paragraph (1) above, the term "good standing" means that the Company
has neither failed to make any filing with any Bermuda governmental
authority nor to pay any Bermuda government fee or tax, which might make
it liable to be struck off the Registrar of Companies and thereby cease
to exist under the laws of Bermuda.
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The United States Securities
and Exchange Commission 8 August 2000
(c) Any reference in this opinion to shares being "non-assessable" shall
mean, in relation to fully paid shares of the Company and subject to any
contrary provision in any agreement in writing between such company and
the holder of such shares, that no shareholder shall be bound by an
alteration to the Memorandum of Association or Bye-laws of the Company
after the date on which he became a shareholder, if and so far as the
alteration requires him to take, or subscribe for additional shares, or
in any way increases his liability to contribute to the share capital of,
or otherwise to pay money to, the Company.
DISCLOSURE
This opinion is addressed to you solely for your benefit and is neither to
be transmitted to any other person, nor relied upon by any other person or for
any other purpose nor quoted or referred to in any public document nor filed
with any governmental agency or person, without our prior written consent,
except as may be required by law or regulatory authority. Further, this opinion
speaks as of its date and is strictly limited to the matters stated herein and
we assume no obligation to review or update this opinion if applicable law or
the existing facts or circumstances should change.
We hereby consent to the inclusion of the opinion as an exhibit to the
Registration Statement and to the references to our firm in the Proxy
Statement/Prospectus.
This opinion is governed by and is to be construed in accordance with
Bermuda law. It is given on the basis that it will not give rise to any legal
proceedings with respect thereto in any jurisdiction other than Bermuda.
Yours faithfully
/s/ APPLEBY SPURLING & KEMPE
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SCHEDULE
1. a copy of the executed Merger Agreement;
2. a copy of the Proxy Statement/Prospectus to be filed with the Securities and
Exchange Commission as part of Amendment No. 1 to the Form S-4 Registration
Statement (Registration No. 333-41264 as emailed to us on August 7, 2000 and
dated August 8, 2000;
3. an Officer's Certificate dated August 7, 2000 issued by Byron S. Kalogerou,
Vice President and Assistant Secretary of the Company (the "Officer's
Certificate") in respect of resolutions adopted by the Board of Directors on
22 June 2000 (the "Resolutions");
4. the entries and filings shown in respect of the Company on the file of the
Company maintained in the Register of Companies at the office of the
Registrar of Companies in Hamilton, Bermuda, as revealed by a search done on
August1, 2000 (the "Company Search");
5. the entries and filings shown in respect of the Company in the Supreme Court
Causes Book maintained at the Registry of the Supreme Court in Hamilton,
Bermuda, as revealed by a search done on August 1, 2000 (the "Litigation
Search");
6. certified copies of the Certificate of Incorporation, Memorandum of
Association and Bye-laws of the Company (collectively referred to as the
"Constitutional Documents");
7. a copy of the permissions dated 20 April, 1999, 29 April, 1999 and 11 June,
1999 given by the Bermuda Monetary Authority under the Exchange Control Act
(1972) and related regulations for the issue of Common Shares in the capital
of the Company; and
8. a copy of the Share Register of the Company as at July 31, 2000.
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