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Opinion of Appleby Spurling & Kempe
Exhibit 5
JMV/sm/73287.85
Direct Telephone: +441 298 3240
Direct e-mail: [email protected]
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6 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.
(d) That any factual statements made in any of the Documents are true, accurate
and complete.
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Tyco International Ltd. - 2 - 6 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 - 6 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 - 6 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 is addressed to the Company solely for the benefit of the Company
and (save as referred to in the preceding paragraph) is neither to be
transmitted to any other person, nor relied upon by any other person or for any
other purpose nor quoted nor 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. 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.
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 - 6 September 2000
SCHEDULE
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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 16 August
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 16 August 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").
