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Opinion of Appleby Spurling & Kempe
Exhibit 5
JMVS/sm/73287.85
Direct Telephone: +441 298 3240
Direct e-mail: [email protected]
8 September 2000
Tyco International Ltd.
The Zurich Centre, Second Floor
90 Pitts Bay Road
Pembroke HM 08
Bermuda
Dear Sirs
REGISTRATION STATEMENT ON FORM S-3
We have acted as attorneys in Bermuda to Tyco International Ltd. (the
"Company"), a Bermuda limited liability company, in connection with its filing
with the United States Securities and Exchange Commission of a Registration
Statement on Form S-3, File No. 333-44102, (the "Registration Statement"), with
respect to 4,703,999 of the Company's common shares, US$0.20 par value per share
(the "Shares"), issuable to the selling shareholders named in the Registration
Statement (the "Selling Shareholders") upon the exercise of certain stock
options, under the United States Securities Act of 1933, as amended, of the
United States.
For the purposes of this opinion we have examined and relied upon the documents
listed which, in some cases, are also defined in the Schedule to this opinion,
(the "Documents").
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 (other than the Directors or Officers
of the Company).
(d) That any factual statements made in any of the Documents are true,
accurate and complete.
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Tyco International Ltd. -2- 8 September 2000
(e) That the records which were the subject of the Company Search were
complete and accurate at the time of such search and disclosed all
information which is material for the purposes of this opinion and such
information has not since the date of the Company Search been
materially altered.
(f) That the records which were the subject of the Litigation Search were
complete and accurate at the time of such search and disclosed all
information which is material for the purposes of this opinion and such
information has not since the date of the Litigation Search been
materially altered.
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 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 Shares.
(3) When issued pursuant to the Resolutions and the Plan and in the
circumstances referred to or summarised under the caption "Selling
Shareholders" in the Registration Statement the Shares will be (or, to
the extent heretofore issued, are) 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 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 only that the
Company has received a Certificate of Compliance from the Registrar of
Companies in Hamilton
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Tyco International Ltd. -3- 8 September 2000
Bermuda which confirms 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.
(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.
(d) Searches of the Register of Companies at the office of the Registrar of
Companies and of the Supreme Court Causes Book at the Registry of the
Supreme Court are not conclusive and it should be noted that the
Register of Companies and the Supreme Court Causes Book do not reveal:
(i) details of matters which have been lodged for filing or
registration which as a matter of general practice of the
Registrar of Companies would have or should have been
disclosed on the public file but have not actually been
registered or to the extent that they have been registered
have not been disclosed or do not appear in the public records
at the date and time the search is concluded; or
(ii) details of matters which should have been lodged for
registration but have not been lodged for registration at the
date the search is concluded.
(e) In order to issue this opinion we have carried out the Company Search
as referred to in the Schedule to this opinion and have not enquired as
to whether there has been any change since the date of such search.
(f) In order to issue this opinion we have carried out the Litigation
Search as referred to in the Schedule to this opinion and have not
enquired as to whether there has been any change since the date of such
search.
(g) As to any facts material to the opinions expressed herein that we have
not independently established or verified, we have relied upon the
Officer's Certificate, and have assumed without independent inquiry the
accuracy of the representations contained therein.
(h) Where an obligation is to be performed in a jurisdiction other than
Bermuda, the courts of Bermuda may refuse to enforce it to the extent
that such performance would be illegal under the laws of, or contrary
to public policy of, such other jurisdiction.
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Tyco International Ltd. -4- 8 September 2000
DISCLOSURE
This opinion is addressed to you in connection with the filing by the Company of
the Registration Statement with the Securities and Exchange Commission. We
consent to the inclusion of this opinion as Exhibit 5 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 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.
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
Appleby Spurling & Kempe
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Tyco International Ltd. -5- 8 September 2000
SCHEDULE
1. The Minutes of the Special General Meeting of the Shareholders of the
Company held on 2 July 1997, and the Written Resolutions of the Board
of Directors of the Company dated 2 July 1997 (the "Resolutions").
2. Certified copies of the Certificate of Incorporation, Memorandum of
Association and Bye-Laws of the Company (collectively referred to as
the "Constitutional Documents").
3. A copy of the Registration Statement.
4. A copy of the pages of the Registration Statement as initially filed,
signed by all of the Directors of the Company (the "Signature Pages").
5. A copy of the permission dated 20 April 1998, given by the Bermuda
Monetary Authority under the Exchange Control Act (1972) and related
regulations for the issue of the Shares.
6. The entries and filings shown in respect of the Company on the file of
the Company maintained in the Register of Companies at office of the
Registrar of Companies in Hamilton, Bermuda, as revealed by a search on
7th September 2000 (the "Company Search").
7. 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 on 7th September, 2000 in
respect of the Company (the "Litigation Search").
8. An Officer's Certificate dated 30 August 2000 issued by Byron S.
Kalogerou, Vice President and Assistant Secretary of the Company (the
"Officer's Certificate") in connection with the Resolutions, and
factual matters relating to the Company and the Registration (the
"Officer's Certificate").
9. The Long Term Incentive Plan of the Company approved by the Board of
Directors on 21 October 1998 (the "Plan").
