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Exhibit 5.1
[Letterhead of Appleby, Spurling & Kempe]
7 December 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 Bermuda counsel to Tyco International Ltd., a Bermuda
company (the "Company"), in connection with its filing with the United States
Securities and Exchange Commission of a Registration Statement on Form S-3 (the
"Registration Statement"), with respect to the registration under the United
States Securities Act of 1933, as amended, of $4,657,500,000 aggregate
principal amount at maturity of Liquid Yield Option (TM) Notes due 2020 (Zero
Coupon--Senior) (each, a "Note") issued by the Company on November 17, 2000 and
the Company's common shares, US$0.20 par value per share (the "Shares"),
issuable upon conversion, and/or purchase by the Company, of the Notes pursuant
to that certain Indenture dated as of November 17, 2000 (the "Indenture"), by
and between the Company and State Street Bank and Trust Company, as trustee.
The Company issued the Notes pursuant to that certain Purchase Agreement, dated
as of November 14, 2000, by and between the Company and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Purchase 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 or in the Schedule to this opinion, terms
defined in the Registration Statement have the same meanings when used in this
opinion.
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,
faxed 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.
(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.
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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 validly organized and existing and
in good standing under the laws of Bermuda.
(2) The Company has all requisite corporate power and authority under its
Constitutional Documents to enter into and perform its obligations
under the Indenture, the Purchase Agreement and the Notes.
(3) The execution, delivery and performance by the Company of the Purchase
Agreement, the Indenture and the Notes, and the transactions
contemplated thereby, have been duly authorized by all necessary
corporate action on the part of the Company.
(4) 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.
(5) When issued pursuant to the Resolutions and the Indenture and in the
circumstances referred to or summarised in the Registration Statement,
the Shares will be validly issued, fully paid and non-assessable shares
in the capital of the Company.
(6) 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 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
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(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.
Disclosure
This opinion is addressed to you in connection with the filing by the
Company of the Registration Statement with the United States 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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SCHEDULE
1. A certificate dated 7 December 2000 (the "Officer's Certificate") issued by
Byron S. Kalogerou, Vice President and Assistant Secretary of Tyco, in
respect of the authorised and issued share capital of the Company and
certifying the resolutions of the Board of Directors Tyco passed on 10
November 2000 (the "Resolutions") and other matters relative to the LYONs.
2. Certified copies of the 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 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.
5. 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 7 December
2000 (the "Company Search").
6. 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 7 December 2000 in respect of the
Company (the "Litigation Search").
7. A Certificate of Compliance, dated 8 December 2000 issued by the Ministry of
Finance in respect of Tyco.
8. The Purchase Agreement.
9. The Indenture.
