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Exhibit 5
16 August 2000
Tyco International Ltd.
The Zurich Centre, Second Floor
90 Pitts Bay Road
Pembroke HM 08
Bermuda
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[ ], (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 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.
(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 Registration Statement or which would have any implication in
relation to the
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Tyco International Ltd. -2- 16 August 2000
opinion expressed herein and that, in so far as any obligation under, or
action to be taken under, the Registration Statement 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 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.
(g) 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.
(h) That the Signature Pages as defined in the Schedule evidence the approval
of all of the Directors of the Company of all matters relating to the
Company set out in the Registration Statement including, without limiting
the generality of the foregoing, the issue of the Shares to the Selling
Shareholders.
(i) 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.
(j) 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.
(k) That the Shares are or were issued pursuant to the terms of the Company's
Plan.
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
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Tyco International Ltd. -3- 16 August 2000
authorities in Bermuda have been duly obtained for the issue by the Company
of the Shares.
(3) When duly 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 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) whether an application to the Supreme Court for a winding up
petition or for the appointment of a receiver or manager has
been prepared but not yet been presented or has been presented
but does not appear in the Causes Book at the date and time
the Search is concluded;
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Tyco International Ltd. -4- 16 August 2000
(ii) whether any arbitration or administrative proceedings are
pending or whether any proceedings are threatened, or whether
any arbitrator has been appointed;
(iii) 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;
(iv) details of matters which should have been lodged for
registration but have not been lodged for registration at the
date the search is concluded; or
(v) whether a receiver or manager has been appointed privately
pursuant to the provisions of a debenture or other security,
unless notice of the fact has been entered in the Register of
Charges in accordance with the provisions of the Companies Act
1981.
Furthermore, in the absence of a statutorily defined system for the
registration of charges created by companies incorporated outside
Bermuda ("overseas companies") over their assets located in Bermuda, it
is not possible to determine definitively from searches of the Register
of Charges maintained by the Registrar of Companies in respect of such
overseas companies what charges have been registered over any of their
assets located in Bermuda or whether any one charge has priority over
any other charge over such assets.
(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.
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.
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Tyco International Ltd. -5- 16 August 2000
We hereby 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 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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APPLEBY SPURLING & KEMPE
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Tyco International Ltd. -6- 16 August 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
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. The Long Term Incentive Plan of the Company approved by the Board of
Directors on 21 October 1998 (the "Plan").
