As filed with the Securities and Exchange Commission on July 24, 2000
Registration No. 333-o
--------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
7382
(Primary Standard Industrial
Classification Code Number)
<TABLE>
<S> <C>
TYCO INTERNATIONAL
TYCO INTERNATIONAL LTD. GROUP S.A.
(Exact Name of Registrant as Specified in (Exact Name of Registrant as Specified in Its
Its Charter) Charter)
Bermuda Luxembourg
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
Not applicable Not applicable
(I.R.S. Employer (I.R.S. Employer
Identification Number) Identification Number)
The Zurich Centre, Second Floor 6, Avenue Emile Reuter
90 Pitts Bay Road Second Floor
Pembroke HM 08, Bermuda L-2420 Luxembourg
(441) 292-8674* (352) 46-43-40-1
</TABLE>
(Address, including zip code, and (Address, including zip code, and
telephone telephone number, including area code, of number, including area
code, of Registrant's Registrant's principal executive offices) principal
executive offices)
---------------------------
MARK H. SWARTZ
c/o Tyco International (US) Inc.
One Tyco Park
Exeter, New Hampshire 03833
(603) 778-9700
---------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
*Tyco International Ltd. maintains its registered and principal executive
offices at The Zurich Centre, Second Floor, 90 Pitts Bay Road, Pembroke HM
08, Bermuda. The executive offices of Tyco's principal United States
subsidiaries are located at One Tyco Park, Exeter, New Hampshire 03833. The
telephone number there is (603) 778-9700.
---------------------------
Copy to:
FRANCIS J. MORISON, ESQ.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after expiration of the exchange offer described herein.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
Proposed
Maximum Proposed Maximum
Title of Each Class Amount to be Offering Price Per Aggregate Amount of
of Securities to be Registered Registered Unit (1) Offering Price Registration Fee
------------------------------ ---------- -------- -------------- ----------------
<S> <C> <C> <C> <C>
6 1/8% Notes Due 2007 Euro 600,000,000 98.015% Euro 588,090,000 $145,055
Guarantee of 6 1/8% Notes Due 2007 ($549,452,487) (2)
============================================================================================================ ======================
</TABLE>
(1) Determined pursuant to Rule 457(f) under the Securities Act of 1933,
solely for the purpose of calculating the registration fee, on the basis
of the average of the bid and asked price for the securities on July 24,
2000, converted into U.S. dollars as of noon New York City time on
July 21, 2000.
(2) Pursuant to Rule 457(n) under the Securities Act of 1933, no registration
fee is payable with respect to the guarantees.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
--------------------------------------------------------------------------------
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS Subject to Completion, dated o, 2000
Euro 600,000,000
TYCO INTERNATIONAL GROUP S.A.
OFFER TO EXCHANGE
up to Euro 600,000,000 6-1/8% Notes due 2007
for any and all outstanding 6-1/8% Notes due 2007
Fully and Unconditionally Guaranteed by
TYCO INTERNATIONAL LTD.
[LOGO]
---------------------------
Summary of the Exchange Offer
This document and accompanying Letter of Transmittal relate to the proposed
offer by Tyco International Group S.A. (the "Company") to exchange up to Euro
600,000,000 aggregate principal amount of new 6 1/8% notes due 2007 for any and
all of its outstanding 6-1/8% Notes due 2007. The new notes, which are referred
to as the "exchange notes," will be freely transferable. The outstanding notes,
which are referred to as the "restricted notes," have certain transfer
restrictions.
The restricted notes are, and the exchange notes will be, unsecured and
unsubordinated obligations of the Company that are fully and unconditionally
guaranteed on an unsecured and unsubordinated basis by Tyco International
Ltd.("Tyco"), the Company's corporate parent.
o The exchange offer expires at 5:00 p.m. New York City time on o, 2000,
unless extended.
o All restricted notes that are tendered and not withdrawn will be
exchanged promptly upon consummation of the exchange offer.
o There should be no United States federal income tax consequences to
holders of restricted notes who exchange restricted notes for exchange
notes pursuant to the exchange offer.
o Holders of restricted notes do not have any appraisal or dissenters'
rights in connection with the exchange offer.
o Restricted notes not exchanged in the exchange offer will remain
outstanding and be entitled to the benefits of the indenture under
which they were issued, but except under certain circumstances will
not have further exchange or registration rights.
o The exchange notes will be listed on the Luxembourg Stock Exchange.
Each holder of restricted notes wishing to accept the exchange offer must
deliver the restricted notes to be exchanged, together with the Letter of
Transmittal that accompanies this document and any other required documentation,
to the exchange agent identified in this document. Alternatively, you may effect
a tender of restricted notes by book-entry transfer into the exchange agent's
account at Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System ("Euroclear"), Clearstream Banking, societe
anonyme, Luxembourg ("Clearstream, Luxembourg") or the Depository Trust Company
("DTC"). All deliveries are at the risk of the holder. You can find detailed
instructions concerning delivery in the "Exchange Offer" section of this
document and in the accompanying Letter of Transmittal.
---------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE EXCHANGE NOTES OR DETERMINED IF
THIS DOCUMENT IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
YOU SHOULD READ THIS ENTIRE DOCUMENT AND THE ACCOMPANYING LETTER OF
TRANSMITTAL AND RELATED DOCUMENTS AND ANY AMENDMENTS OR SUPPLEMENTS CAREFULLY
BEFORE MAKING YOUR DECISION TO PARTICIPATE IN THE EXCHANGE OFFER.
The date of this prospectus is o, 2000
<PAGE>
YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED OR INCORPORATED BY
REFERENCE IN THIS DOCUMENT. NEITHER THE COMPANY NOR TYCO HAS AUTHORIZED ANYONE
ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS DOCUMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON
THE FRONT OF THIS DOCUMENT. NEITHER THE DELIVERY OF THIS DOCUMENT OR THE
ACCOMPANYING LETTER OF TRANSMITTAL, NOR ANY EXCHANGE MADE PURSUANT TO THIS
DOCUMENT SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THE
INFORMATION CONTAINED IN THIS DOCUMENT IS CORRECT AS OF ANY SUBSEQUENT DATE.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL TENDERS OF RESTRICTED
NOTES BE ACCEPTED FROM, HOLDERS OF RESTRICTED NOTES IN ANY JURISDICTION IN WHICH
THE EXCHANGE OFFER OR ITS ACCEPTANCE IS UNLAWFUL.
---------------------------
TABLE OF CONTENTS
---------------------------
Page
----
Where You Can Find More Information...........................................1
Forward Looking Information...................................................1
Summary.......................................................................2
The Exchange Offer............................................................2
Tyco..........................................................................5
The Company...................................................................6
Recent Developments...........................................................6
Ratio of Earnings to Fixed Charges of Tyco....................................8
Exchange Offer................................................................9
Description of the Notes and the Guarantees..................................20
Enforcement of Civil Liberties...............................................37
Certain Luxembourg, Bermuda and United States Federal Income
Tax Consequences...........................................................37
Plan of Distribution.........................................................41
Legal Matters................................................................41
Experts......................................................................42
Listing and General Information..............................................42
i
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
In connection with the exchange offer, the Company and Tyco have filed
with the United States Securities and Exchange Commission a registration
statement under the Securities Act of 1933, relating to the exchange notes. As
permitted by SEC rules, this document omits certain information included in the
registration statement. For a more complete understanding of the exchange offer,
you should refer to the registration statement, including its exhibits.
Tyco also files annual, quarterly and current reports, proxy statements
and other information with the SEC. These filings are available to the public
over the Internet at the SEC's web site at http://www.sec.gov. You may also read
and copy any document filed by Tyco or the Company with the SEC at the SEC's
public reference rooms in Washington, D.C., New York, New York and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms and their copy charges. Tyco's common shares are listed
on the New York Stock Exchange, as well as on the London and Bermuda Stock
Exchanges. You can obtain information about Tyco from the New York Stock
Exchange at 20 Broad Street, New York, New York 10005.
The SEC allows the Company and Tyco to "incorporate by reference"
information in documents filed with the SEC, which means that they can disclose
important information to you by referring you to those documents. These
incorporated documents contain important business and financial information
about the Company and Tyco that is not included in or delivered with this
document. The information incorporated by reference is considered to be part of
this document, and later information filed with the SEC may update and supersede
this information. The Company and Tyco incorporate by reference the documents
listed below and any future filings made with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the
expiration of the exchange offer.
1. Tyco's Annual Report on Forms 10-K and 10-K/A for the fiscal year
ended September 30, 1999.
2. Tyco's Quarterly Reports on Forms 10-Q and 10-Q/A for the quarters
ended December 31, 1999 and March 31, 2000.
3. Tyco's Current Reports on Form 8-K filed on December 9, 1999, December
10, 1999, January 20, 2000 and July 14, 2000.
4. The description of Tyco's common shares as set forth in Tyco's
Registration Statement on Form 8-A/A filed on March 1, 1999.
All of the documents described above are available free of charge at the
office of Credit Agricole Indosuez Luxembourg S.A., the paying agent in
Luxembourg. See "Listing and General Information".
You may request a copy of these filings at no cost, by writing or calling
Tyco at the following address or telephone number:
Tyco International Ltd.
The Zurich Centre, Second Floor
90 Pitts Bay Road
Pembroke HM 08, Bermuda
(441) 292-8674
Exhibits to the documents will not be sent, unless those exhibits have
specifically been incorporated by reference in this document.
To obtain timely delivery of any copies of filings requested, please write
or telephone no later than o, 2000, ten days prior to the expiration of the
exchange offer.
<PAGE>
FORWARD LOOKING INFORMATION
Certain statements contained or incorporated by reference in this document
are "forward looking statements" within the meaning of the U.S. Private
Securities Litigation Reform Act of 1995. All forward looking statements involve
risks and uncertainties. In particular, any statement contained in this document
or any document incorporated by reference in this document regarding the
consummation and benefits of future acquisitions, as well as expectations with
respect to future sales, operating efficiencies and product expansion, are
subject to known and unknown risks, uncertainties and contingencies, many of
which are beyond the control of the Company and Tyco, which may cause actual
results, performance or achievements to differ materially from anticipated
results, performances or achievements. Factors that might affect such forward
looking statements include, among other things:
o overall economic and business conditions;
o the demand for Tyco's goods and services;
o competitive factors in the industries in which the Company and Tyco
compete;
o changes in government regulation;
o changes in tax requirements, including tax rate changes, new tax laws
and revised tax law interpretations;
o results of litigation;
o interest rate fluctuations, foreign currency rate fluctuations and
other capital market conditions;
o economic and political conditions in international markets, including
governmental changes and restrictions on the ability to transfer
capital across borders;
o the ability to achieve anticipated synergies and other costs savings
in connection with acquisitions;
o the timing, impact and other uncertainties of future acquisitions by
Tyco; and
o the timing of construction and the successful operation of the TyCom
Global Network(TM).
<PAGE>
SUMMARY
The following summary contains basic information about this exchange
offer. It may not contain all the information that is important to you in making
your investment decision. More detailed information appears elsewhere in this
prospectus and in our consolidated financial statements and accompanying notes
that we incorporate by reference. "The Exchange Offer" and the "Description of
the Notes and the Guarantees" sections of this prospectus contain more detailed
information regarding the terms and conditions of the exchange offer and the
exchange notes. Certain capitalized terms used in this prospectus summary are
defined elsewhere in this prospectus. Unless the context clearly implies
otherwise, the word "Company" refers to Tyco International Group S.A., a
Luxembourg corporation, and the word "Tyco" refers to Tyco International Ltd., a
Bermuda corporation.
THE EXCHANGE OFFER
Exchange Notes................. Euro 600,000,000 in principal amount of our
6 1/8% exchange notes due April 4, 2007
The Exchange Offer............. We are offering to issue the exchange notes
in exchange for a like principal amount of
outstanding notes that we issued on April 4,
2000. We are offering to issue the exchange
notes to satisfy our obligations contained
in the registration rights agreement we
entered into when we sold the outstanding
notes in transactions pursuant to Rule 144A
and Regulation S under the Securities Act.
The outstanding notes were subject to
transfer restrictions that will not apply to
the exchange notes so long as you are
acquiring the exchange notes in the ordinary
course of your business, you are not
participating in a distribution of the
exchange notes and you are not an affiliate
of ours.
Maturity Date.................. Each exchange note will mature on April 4,
2007.
Interest Payment Dates......... The exchange notes will pay interest on
April 4 of each year commencing April 4,
2001.
Guarantees..................... Tyco will unconditionally guarantee the due
and punctual payment of the principal of and
premium, if any, and interest on and any
other obligations of the Company under the
indenture with respect to the exchange notes
when and as the same shall become due and
payable, whether at maturity, upon
redemption or otherwise. The guarantees
provide that in the event of a default in
payment of principal or of premium, if any,
or interest on a note, the holder of that
note may institute legal proceedings
directly against Tyco to enforce the
guarantees without first proceeding against
the Company.
Ranking........................ The exchange notes and the guarantees are
direct, unsecured and unsubordinated
obligations of the Company and Tyco,
respectively, and will rank equally with
other unsecured and unsubordinated
obligations of the Company for money
borrowed and of Tyco for guarantees of money
borrowed. The exchange notes will
2
<PAGE>
be effectively subordinated to all existing
and future indebtedness and other
liabilities of the Company's subsidiaries.
Optional Redemption............ The Company may redeem all of the exchange
notes at any time or from time to time at
the redemption price described under the
heading "Description of the Notes and the
Guarantees--Redemption" plus accrued
interest, if any, to the date of redemption.
Certain Covenants.............. The Indenture governing the exchange notes
contains covenants that, among other things,
limit our ability to:
o create liens;
o engage in certain sale/leaseback
transactions;
o merge or consolidate with another
company; or
o transfer substantially all of our
assets.
For more details, see the section under the
heading "Description of the Notes and the
Guarantees--Certain Covenants" in the
prospectus.
Use of Proceeds................ Neither the Company nor Tyco will receive
any proceeds from the issuance of the
exchange notes.
Denominations and Issuance
of exchange notes............ The exchange notes will be issued only in
registered form without coupons, in minimum
denominations of Euro 1,000 and multiples of
Euro 1,000.
Tenders, Expiration Date,
Withdrawal................... The exchange offer will expire at 5:00 p.m.,
New York City time, on o, 2000, unless it is
extended. To tender your outstanding notes
you must follow the detailed procedures
described under the heading "The Exchange
Offer--Procedures for Tendering" including
special procedures for certain beneficial
owners and broker-dealers. If you decide to
exchange your outstanding notes for exchange
notes, you must acknowledge that you do not
intend to engage in and have no arrangement
with any person to participate in a
distribution of the exchange notes. If you
decide to tender your outstanding notes
pursuant to the exchange offer, you may
withdraw them at any time prior to 5:00
p.m., New York City time, on the expiration
date.
Federal Income Tax
Consequences................. Your exchange of outstanding notes for
exchange notes pursuant to the exchange
offer will not result in a gain or loss to
you.
Exchange Agent................. The Bank of New York is the exchange agent
for the exchange offer.
3
<PAGE>
Failure to Exchange Your
outstanding Rule 144A notes
and Trading Market........... If you fail to exchange your outstanding
Rule 144A notes for exchange notes in the
exchange offer, your outstanding notes will
continue to be subject to transfer
restrictions and you will not have any
further rights under the registration rights
agreement, including any right to require us
to register your outstanding notes or to pay
any additional interest. To the extent that
outstanding notes are tendered and accepted
in the exchange offer, your ability to sell
untendered, and tendered but unaccepted,
outstanding notes could be adversely
affected. There may be no trading market for
the outstanding notes.
There can be no assurance that an active
public market for the exchange notes will
develop or as to the liquidity of any market
that may develop for the exchange notes, the
ability of holders to sell the exchange
notes, or the price at which holders would
be able to sell the exchange notes. For more
details, see the sections "Clearing of the
Notes" and "Absence of a Public Market"
under the heading "Exchange Offer".
4
<PAGE>
TYCO
On July 2, 1997, a wholly owned U.S. subsidiary of what was formerly ADT
Limited, a Bermuda company ("ADT"), merged with Tyco International Ltd., a
Massachusetts corporation ("Former Tyco"). Upon consummation of the merger, ADT
(the continuing Bermuda public company) changed its name to Tyco International
Ltd.("Tyco"). Former Tyco became a wholly owned subsidiary of Tyco and changed
its name to Tyco International (US) Inc.
Tyco manages its business based on the following four operating segments:
Telecommunications and Electronics
Tyco's Telecommunications and Electronics segment is comprised of:
o Tyco Electronics, including the company formerly known as AMP
Incorporated, which designs and manufactures electrical connectors,
interconnection systems, touch screens and wireless systems, and the
company formerly known as Raychem Corporation, which develops and
manufactures high-performance electronic components;
o TyCom Ltd., which designs, manufactures, installs and services
undersea communications cable systems; and
o Tyco Printed Circuit Group, which designs and manufactures
multi-layer printed circuit boards, backplane assemblies and similar
components.
Healthcare and Specialty Products
Tyco's Healthcare and Specialty Products segment is comprised of:
o Tyco Healthcare Group, which manufactures and distributes a wide
variety of disposable medical products, including woundcare
products, syringes and needles, sutures and surgical staplers,
incontinence products, electrosurgical instruments and laparoscopic
instruments;
o Tyco Plastics and Adhesives, which manufactures flexible plastic
packaging, plastic bags and sheeting, coated and laminated packaging
materials, tapes and adhesives and plastic garment hangers; and
o ADT Automotive, which provides auto redistribution services in the
United States.
Fire and Security Services
Tyco's Fire and Security Services segment:
o designs, installs and services a broad line of fire detection,
prevention and suppression systems worldwide;
o provides electronic security installation and monitoring services;
and
o manufactures and services fire extinguishers and related products.
Flow Control Products and Services
Tyco's Flow Control Products and Services segment:
o manufactures and distributes pipe, fittings, valves, valve
actuators, couplings and related products which are used to
transport, control and measure the flow of liquids and gases;
5
<PAGE>
o manufactures and distributes fire sprinkler devices, specialty
valves, plastic pipe and fittings used in commercial, residential
and industrial fire protection systems; and
o provides engineering and consulting services focusing on the design,
construction and operation of water and wastewater facilities.
Tyco is a Bermuda company whose registered and principal executive offices
are located at The Zurich Centre, Second Floor, 90 Pitts Bay Road, Pembroke HM
08, Bermuda, and its telephone number is (441) 292-8674. The executive offices
of Tyco's principal United States subsidiaries are located at One Tyco Park,
Exeter, New Hampshire 03833, and the telephone number there is (603) 778-9700.
Tyco's strategy is to be the low-cost, high-quality producer and provider
in each of its markets. It promotes its leadership position by investing in
existing businesses, developing new markets and acquiring complementary
businesses and products. Combining the strengths of its existing operations and
its business acquisitions, Tyco seeks to enhance shareholder value through
increased earnings per share and strong cash flows.
Tyco reviews acquisition opportunities in the ordinary course of its
business, some of which may be material and some of which are currently under
investigation, discussion or negotiation. There can be no assurance that any of
such acquisitions will be consummated.
THE COMPANY
Tyco International Group S.A., a Luxembourg company, was formed on March
30, 1998, as a wholly owned subsidiary of Tyco. The registered and principal
offices of the Company are located at 6, Avenue Emile Reuter, Second Floor,
L-2420 Luxembourg, and its telephone number is (352) 46-43-40-1. The Company is
a holding company whose only business is to own indirectly a substantial portion
of the operating subsidiaries of Tyco. Otherwise, it conducts no independent
business.
RECENT DEVELOPMENTS
On June 28, 2000, Tyco announced that one of its subsidiaries had entered
into a definitive agreement to acquire Mallinckrodt Inc., a global healthcare
company. Mallinckrodt shareholders are expected to receive Tyco shares valued at
$47.50 for each share of Mallinckrodt. The transaction is valued at
approximately $4.2 billion and is contingent upon customary regulatory review
and approval by Mallinckrodt shareholders. Mallinckrodt will be integrated
within Tyco's Healthcare group. Tyco intends to account for the acquisition as a
purchase.
6
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES OF TYCO
The following table sets forth the ratio of earnings to fixed charges of
Tyco for the six months ended March 31, 2000, the years ended September 30, 1999
and 1998, the nine-month transition period ended September 30, 1997 and the
years ended December 31, 1996 and 1995.
<TABLE>
Six Months Nine Months
Ended Ended
March 31, Year Ended Steptember 30, September 30, Year Ended December 31,
--------- ------------------------- ------------- -----------------------
2000 1999 1998 1997(4) 1996 1995
---- ---- ---- ------- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges (1)(2)(3)..............5.66 3.53 5.07 1.00 2.54 4.68
-----------------------
</TABLE>
(1) For purposes of determining the ratio of earnings to fixed charges,
earnings consist of income (loss) before income taxes, extraordinary
items, cumulative effect of accounting changes and fixed charges. Fixed
charges consist of interest on indebtedness, amortization of debt expenses
and one-third of rent expense which is deemed representative of an
interest factor.
(2) On July 2, 1997, Tyco, formerly called ADT Limited, merged with Tyco
International Ltd., a Massachusetts corporation ("Former Tyco"). On April
2, 1999, October 1, 1998, August 29, 1997 and August 27, 1997, Tyco
consummated mergers with AMP Incorporated, United States Surgical
Corporation, Keystone International, Inc. and Inbrand Corporation,
respectively. Each of the five merger transactions qualifies for the
pooling of interests method of accounting. As such, the ratios of earnings
to fixed charges presented above include the effect of the mergers, except
that the calculation presented above for periods prior to January 1, 1997
does not include Inbrand due to immateriality.
Prior to their respective mergers, AMP, US Surgical, Keystone, and ADT had
December 31 year ends and Former Tyco had a June 30 fiscal year end. The
historical results upon which the ratios are based have been combined
using a December 31 year end for AMP, US Surgical, Keystone, ADT and
Former Tyco for the year ended December 31, 1996. For 1995, the ratio of
earnings to fixed charges reflects the combination of AMP, US Surgical,
Keystone and ADT with a December 31 year end and Former Tyco with a June
30 fiscal year end.
(3) Earnings for the six months ended March 31, 2000, the years ended
September 30, 1999 and 1998, the nine months ended September 30, 1997 and
the years ended December 31, 1996 and 1995 include merger, restructuring
and other non-recurring (credits) charges of $(74.4) million (of which
$1.0 million is included in cost of sales), $1,035.2 million (of which
$106.4 million is included in cost of sales), $256.9 million, $947.9
million, $344.1 million and $97.1 million, respectively. Earnings also
include charges for the impairment of long-lived assets of $99.0 million,
$507.5 million, $148.4 million, $744.7 million and $8.2 million in the six
months ended March 31, 2000, the year ended September 30, 1999, the nine
months ended September 30, 1997 and the years ended December 31, 1996 and
1995, respectively. The 1997 period also includes a write-off of purchased
in-process research and development of $361.0 million. The 1995 period
also includes a net loss on the disposal of businesses of $34.4 million.
On a pro forma basis, the ratio of earnings to fixed charges excluding
merger, restructuring and other non-recurring (credits) charges, charges
for the impairment of long-lived assets, the write-off of purchased
in-process research and development and the net loss on the disposal of
businesses would have been 5.71x, 5.82x, 5.68x, 6.81x, 5.76x and 5.09x for
the six months ended March 31, 2000, the years ended September 30, 1999
and 1998, the nine months ended September 30, 1997 and the years ended
December 31, 1996 and 1995, respectively.
(4) In September 1997, Tyco changed its fiscal year end from December 31 to
September 30. Accordingly, the nine-month transition period ended
September 30, 1997 is presented.
7
<PAGE>
EXCHANGE OFFER
Reason for the Exchange Offer
The Company initially sold the restricted notes on April 4, 2000 to
Merrill Lynch International, J.P. Morgan Securities Ltd., ABN AMRO Bank N.V.,
Banca d'Intermediazione Mobiliare IMI Spa, Banque Nationale de Paris, Barclays
Bank PLC, Bayerische Hypo- und Vereinsbank AG, Commerzbank Aktiengesellschaft,
Credit Lyonnais, Credit Suisse First Boston (Europe) Limited, Deutsche Bank
Aktiengesellschaft, Dresdner Bank AG London Branch, HSBC Bank plc, and
Westdeutsche Landesbank Girozentrale, collectively referred to as the
"Managers," pursuant to a Purchase Agreement dated March 30, 2000 among the
Company, Tyco as guarantor, and the Managers. The Managers subsequently resold
or were permitted to resell the restricted notes:
o outside the United States in accordance with the provisions of
Regulation S under the Securities Act; and
o to qualified institutional buyers in accordance with the provisions of
Rule 144A under the Securities Act.
In connection with the offering of the restricted notes, the Company, Tyco
as guarantor, and the Managers entered into a Registration Rights Agreement
dated April 4, 2000, in which the Company agreed, among other things:
o to file with the SEC on or before September 1, 2000, a registration
statement relating to an exchange offer for the restricted notes;
o to use its reasonable best efforts to cause the exchange offer
registration statement to be declared effective under the Securities
Act on or before October 1, 2000;
o upon the effectiveness of the exchange offer registration statement,
to offer the holders of the restricted notes the opportunity to
exchange their restricted notes in the exchange offer for a like
principal amount of exchange notes;
o to keep the exchange offer open for not less than 30 days, or longer,
if required by applicable law, after notice of the exchange offer is
mailed to holders of restricted notes; and
o to use its reasonable best efforts to consummate the exchange offer on
or before October 30, 2000.
The Company also agreed, under certain circumstances:
o to use its reasonable best efforts to file a shelf registration
statement relating to the offer and sale of the restricted notes by
the holders of the restricted notes;
o to use its reasonable best efforts to cause such shelf registration
statement to be declared effective; and
o to use its reasonable best efforts to keep such shelf registration
statement effective for two years after the shelf registration
statement becomes effective or until the restricted notes covered by
the shelf registration statement have been sold or cease to be
outstanding.
The exchange offer being made by this document is intended to satisfy the
Company's exchange and registration obligations under the Registration Rights
Agreement. If the Company fails to fulfill such obligations, holders of
outstanding restricted notes are entitled to receive additional interest at the
rate of 0.25% per annum for each violation of the obligations. The rate will
increase by an additional 0.25% each 90-day period during which the additional
interest continues to accrue. The maximum aggregate increase to the interest
rate under all circumstances is 0.5% per annum. After the Company has cured all
defaults of its registration and exchange obligations, the accrual
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of additional interest on the restricted notes will cease, and the interest rate
for each series of restricted notes will revert to its original rate.
For a more complete understanding of your exchange and registration
rights, please refer to the Registration Rights Agreement, which is included as
Exhibit 4.4 to the registration statement relating to the exchange notes.
Transferability of the Exchange Notes
Based on certain no-action letters issued by the staff of the SEC to
others in unrelated transactions, the Company believes that a noteholder may
offer for resale, resell or otherwise transfer any exchange notes without
compliance with the registration and prospectus delivery requirements of the
Securities Act, unless the noteholder is
o acquiring the exchange notes other than in the ordinary course of
business;
o participating, intends to participate or has an arrangement or
understanding with any person to participate, in a distribution of the
exchange notes;
o an "affiliate" of the Company, as defined in Rule 405 under the
Securities Act; or
o a Manager who acquired restricted notes directly from the Company in
the initial offering to resell pursuant to Regulation S, Rule 144A or
any other available exemption under the Securities Act.
In any of the foregoing circumstances, a noteholder
o will not be able to rely on the interpretations of the staff of the
SEC, in connection with any offer for resale, resale or other transfer
of exchange notes; and
o must comply with the registration and prospectus delivery requirements
of the Securities Act, or have an exemption available, in connection
with any offer for resale, resale or other transfer of the exchange
notes.
The Company is not making this exchange offer to, nor will it accept
surrenders of restricted notes from, holders of restricted notes in any state in
which this exchange offer would not comply with the applicable securities laws
or "blue sky" laws of such state.
Each broker-dealer that receives exchange notes for its own account in
exchange for restricted notes, where such restricted notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such exchange notes. See "Plan of Distribution" on page 41.
Clearing of the Notes
Upon consummation of the Exchange Offer, the exchange notes will have a
different CUSIP number, a different Euroclear and Clearstream, Luxembourg Common
Code and a different ISIN from those under which the Rule 144A notes have traded
(and, to the extent not tendered, will continue to trade).
Regulation S notes not tendered for exchange will continue to clear
through Euroclear and Clearstream, Luxembourg under their original Common Code
(010982758) and their ISIN will remain the same (XS0109827583). Regulation S
notes (unless acquired by a Manager as part of their original distribution) may
now be sold in the United States or to U.S. persons and, upon any such transfer,
a beneficial interest in the Regulation S global note will be able to be
exchanged for an interest in the exchange global note in accordance with
procedures established by Euroclear or Clearstream, Luxembourg and DTC.
Beneficial interests in the restricted Regulation S global note may be
transferred to a person who takes delivery in the form of an interest in the
Regulation S global note upon receipt by the trustee of a written certification
from
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<PAGE>
the transferor, in the form provided in the indenture, to the effect that the
transfer is being made in accordance with Rule 903 or 904 of Regulation S.
The Company and Tyco cannot predict the extent to which beneficial owners
of an interest in the Regulation S global note will participate in the exchange
offer. Beneficial owners should consult their own financial advisors as to the
benefits to be obtained from exchange.
Use of Proceeds
Neither the Company nor Tyco will receive any cash proceeds from the
issuance of the exchange notes. As consideration for the exchange notes, the
Company will receive in exchange an equivalent principal amount of outstanding
restricted notes, the terms of which are substantially identical to the terms of
the exchange notes, except that the exchange notes will be freely transferable
and issued free of any covenants regarding exchange and registration rights.
The Company will retire and cancel the restricted notes surrendered in
exchange for the exchange notes. Accordingly, the issuance of the exchange notes
under the exchange offer will not result in any change in the outstanding
aggregate indebtedness of the Company.
Terms of the Exchange Offer
The restricted notes were issued in a single series of 6 1/8% notes due
2007. As of the date of this document, Euro 600,000,000 aggregate principal
amount of the 6 1/8% notes are outstanding.
Upon the terms and subject to the conditions set forth in this document and
in the accompanying Letters of Transmittal, the Company will accept all
restricted notes validly tendered and not withdrawn prior to 5:00 p.m. New York
City time on o, 2000, the date that the exchange offer expires. This date and
time may be extended. See "Expiration Date; Extensions; Amendments" below. After
authentication of the exchange notes by the trustee under the indenture
governing the notes or an authenticating agent, the Company will issue and
deliver Euro 1,000 principal amount of exchange notes in exchange for each Euro
1,000 principal amount of outstanding restricted notes accepted in the exchange
offer. Holders may tender some or all of their restricted notes pursuant to the
exchange offer in denominations of Euro 1,000 and integral multiples thereof.
The form and terms of the exchange notes are identical in all material
respects to the form and terms of the outstanding restricted notes, except that:
o the offering of the exchange notes has been registered under the
Securities Act;
o the exchange notes will not be subject to transfer restrictions; and
o the exchange notes will be issued free of any covenants regarding
exchange and registration rights.
The exchange notes will be issued under and entitled to the benefits of
the indenture that governs the restricted notes.
In connection with the issuance of the restricted notes, the Company
arranged for the restricted notes to be issued and transferable in book-entry
form through the facilities of Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear"), Clearstream
Banking, societe anonyme, Luxembourg ("Clearstream, Luxembourg") and The
Depository Trust Company, acting as a depositary. The exchange notes will also
be issuable and transferable in book-entry form through Euroclear, Clearstream,
Luxembourg and DTC.
This document, together with the accompanying Letter of Transmittal, is
initially being sent to all registered holders of restricted notes as of the
close of business on o, 2000. The exchange offer for restricted notes is not
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<PAGE>
conditioned upon any minimum aggregate principal amount being tendered. However,
the exchange offer is subject to certain customary conditions which may be
waived by the Company, and to the terms and provisions of the Registration
Rights Agreement. See "Conditions to the Exchange Offer" below.
The exchange agent is The Bank of New York, which also serves as trustee
under the indenture that governs the notes. The Company will be deemed to have
accepted validly tendered restricted notes when, as and if the Company has given
oral or written notice thereof to the exchange agent. The exchange agent will
act as agent of the tendering holders for the purpose of receiving exchange
notes from the Company and as agent of the Company for the purpose of delivering
exchange notes to such holders. See "Exchange Agent" below.
If any tendered restricted notes are not accepted for exchange because of
an invalid tender or the occurrence of certain other events set forth herein,
certificates for any such unaccepted restricted notes will be returned (if in
certificated form) or credited to an account maintained with Euroclear,
Clearstream, Luxembourg or DTC, as the case may be, at the Company's cost, to
the tendering holder as promptly as practicable after the expiration of the
exchange offer.
Holders who tender restricted notes in the exchange offer will not be
required to pay brokerage commissions or fees or, subject to the instructions in
the Letters of Transmittal, transfer taxes with respect to the exchange of
restricted notes pursuant to the exchange offer. The Company will pay all
charges and expenses, other than certain applicable taxes, in connection with
the exchange offer. See "Solicitation of Tenders, Fees and Expenses" below.
Expiration Date; Extensions; Amendments
The exchange offer will expire at 5:00 p.m. New York City time on o, 2000
unless the Company, in its sole discretion, extends the exchange offer. The
Company may extend the exchange offer at any time and from time to time by
giving oral or written notice to the exchange agent and by timely public
announcement.
The Company reserves the right, in its sole discretion, to amend the
terms of the exchange offer in any manner. If any of the conditions set forth
below under "Conditions to the Exchange Offer" has occurred and has not been
waived by the Company, the Company expressly reserves the right, in its sole
discretion, by giving oral or written notice to the exchange agent, to:
o delay acceptance of, or refuse to accept, any restricted notes not
previously accepted;
o extend the exchange offer; or
o terminate the exchange offer.
Any such delay in acceptance, extension, termination or amendment will be
followed as promptly as practicable by oral or written notice thereof by the
Company to the registered holders of the restricted notes. If the exchange offer
is amended in a manner determined by the Company to constitute a material
change, the Company will promptly disclose such amendment in a manner reasonably
calculated to inform the holders of such amendment, and the Company will extend
the exchange offer to the extent required by law. If the exchange offer is
terminated, federal law requires that the Company promptly either exchange or
return all restricted notes that have been tendered.
The Company will have no obligation to publish, advise, or otherwise
communicate any delay in acceptance, extension, termination or amendment of the
exchange offer other than by making a timely press release. The Company may also
publicly communicate these matters in any other appropriate manner of its
choosing.
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Interest on the Exchange Notes
Interest on the exchange notes will accrue from April 4, 2000 (or, if
interest has been paid on the restricted notes, then from the last interest
payment date on which interest was paid on the restricted notes surrendered in
exchange therefor). The exchange notes will bear interest at a rate of 6 1/8%
per annum. Interest on the exchange notes will be payable on April 4(th) of each
year. Assuming that the exchange offer is consummated prior to April 4, 2001, as
anticipated, interest on the exchange notes will first become payable beginning
on April 4, 2001.
Procedures for Tendering
Only a Euroclear participant, Clearstream, Luxembourg participant or a DTC
participant listed on a DTC securities position listing with respect to the
restricted notes may tender its restricted notes in the exchange offer. To
tender restricted notes in the exchange offer:
o holders of restricted notes that are DTC participants may follow the
procedures for book-entry transfer as provided for below under
"Book-Entry Transfer" and in the Letter of Transmittal.
o Euroclear participants and Clearstream, Luxembourg participants on
behalf of the beneficial owners of notes are required to use
book-entry transfer pursuant to the standard operating procedures of
Euroclear or Clearstream, Luxembourg, as the case may be, which
include transmission of a computer-generated message to Euroclear or
Clearstream, Luxembourg, as the case may be, in lieu of a Letter of
Transmittal. See the term "Agent's Message" under "Book-entry
Transfer".
To be effective, a tender must be made prior to the expiration of the
exchange offer.
Any beneficial owner whose restricted notes are registered in the name of
a broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender restricted notes in the exchange offer should contact such registered
holder promptly and instruct such registered holder to tender on such beneficial
owner's behalf. Delivery of documents to Euroclear, Clearstream, Luxembourg or
DTC in accordance with their respective procedures will NOT constitute delivery
to the exchange agent.
The tender by a holder of restricted notes will constitute an agreement
between such holder, the Company and the exchange agent in accordance with the
terms and subject to the conditions set forth herein and in the Letter of
Transmittal. If less than all the restricted notes held by a holder of
restricted notes are tendered, a tendering holder should fill in the amount of
restricted notes being tendered in the specified box on the Letter of
Transmittal. The entire amount of restricted notes delivered to the exchange
agent will be deemed to have been tendered unless otherwise indicated.
The Letter of Transmittal includes representations by the tendering
holder to the Company that, among other things:
o any exchange notes received by the tendering holder will be acquired
in the ordinary course of its business;
o the tendering holder has no arrangement or understanding with any
person to participate in the distribution of the exchange notes; and
o the tendering holder is not an "affiliate," as defined in Rule 405
under the Securities Act, of the Company, or, if it is an affiliate,
that it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable.
A Letter of Transmittal of a broker-dealer that receives exchange notes
for its own account in exchange for restricted notes that were acquired by it as
a result of market-making or other trading activities must also include an
acknowledgment that the broker-dealer will deliver a copy of this document in
connection with the resale of such
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<PAGE>
exchange notes. By so acknowledging and by delivering a prospectus, such
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. See "Plan of Distribution."
The method of delivery of restricted notes and Letters of Transmittal and
all other required documents or transmittal of an Agent's Message, as described
below under "Book-Entry Transfer," to the exchange agent is at the election and
risk of the holders of restricted notes. Instead of delivery by mail, it is
recommended that holders of restricted notes use an overnight or hand delivery
service. In all cases, sufficient time should be allowed to ensure delivery to
the exchange agent prior to the expiration of the exchange offer. No Letters of
Transmittal should be sent to the Company.
Signatures on a Letter of Transmittal or a notice of withdrawal described
in "Withdrawal of Tenders" below must be guaranteed by a member firm of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution" within
the meaning of Rule 17Ad-15 under the Exchange Act (each, an "Eligible
Institution"), unless the corresponding restricted notes are tendered
o by a registered holder who has not completed the box entitled "Special
Registration Instructions" or the box entitled "Special Delivery
Instructions" in the Letter of Transmittal; or
o for the account of an Eligible Institution.
If a Letter of Transmittal is signed by a person other than the registered
holder, the corresponding restricted notes must be endorsed or accompanied by
appropriate bond powers which authorize such person to tender the restricted
notes on behalf of the registered holder, in either case signed as the name of
the registered holder or holders appears on the restricted notes. If a Letter of
Transmittal or any restricted notes or bond powers are signed or endorsed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers or
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and unless waived by the Company,
submit evidence satisfactory to the Company of their authority to so act with
such Letter of Transmittal.
All questions as to the validity, form, eligibility, acceptance and
withdrawal of the tendered restricted notes will be determined by the Company in
its sole discretion, which determination will be final and binding. The Company
reserves the absolute right to reject restricted notes not properly tendered or
any restricted notes the Company's acceptance of which would, in the opinion of
counsel for the Company, be unlawful. The Company also reserves the absolute
right to waive any irregularities or conditions of tender as to particular
restricted notes. The Company's interpretation of the terms and conditions of
the Exchange Offer, including the instructions in the Letters of Transmittal,
will be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of restricted notes must be cured
within such time as the Company shall determine.
Although the Company intends to notify tendering holders of defects or
irregularities with respect to tenders of restricted notes, neither the Company,
the exchange agent nor any other person will be under any duty or obligation to
do so, and no person will incur any liability for failure to give such
notification. Restricted notes will not be validly tendered until such
irregularities have been cured or waived. Any restricted notes received by the
exchange agent that the Company determines are not properly tendered or the
tender of which is otherwise rejected by the Company will be returned by the
exchange agent to the tendering holder or other person specified in the
appropriate Letter of Transmittal as soon as practicable following the
expiration of the exchange offer.
The Company reserves the right in its sole discretion:
o to purchase or make offers for any restricted notes that remain
outstanding subsequent to the expiration of the exchange offer;
o to terminate the exchange offer, as set forth in "Conditions to the
Exchange Offer" below; and
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<PAGE>
o to the extent permitted by applicable law, to purchase restricted
notes during the pendency of the exchange offer in the open market, in
privately negotiated transactions or otherwise.
The terms of any such purchases or offers may differ from the terms of
the exchange offer.
Book-entry Transfer
The Company understands that the exchange agent will make a request
promptly after the date of this document to establish accounts with respect to
the restricted notes at Euroclear, Clearstream, Luxembourg and DTC for the
purpose of facilitating the exchange offer. Any financial institution that is a
participant in DTC's system may make book-entry delivery of restricted notes by
causing DTC to transfer such restricted notes into the Exchange Agent's DTC
account in accordance with DTC's Automated Tender Offer Program procedures for
such transfer. Any participant in Euroclear or Clearstream, Luxembourg may make
book-entry delivery of Regulation S restricted notes by causing Euroclear or
Clearstream, Luxembourg to transfer such notes into the exchange agent's account
in accordance with established Euroclear or Clearstream, Luxembourg procedures
for transfer. The exchange for tendered restricted notes will only be made after
a timely confirmation of a book-entry transfer of the restricted notes into the
exchange agent's account, and timely receipt by the exchange agent of an Agent's
Message.
The term "Agent's Message" means a message, transmitted by Euroclear,
Clearstream, Luxembourg or DTC, as the case may be, and received by the exchange
agent and forming part of the confirmation of a book-entry transfer, which
states that Euroclear, Clearstream, Luxembourg or DTC, as the case may be, has
received an express acknowledgment from a participant tendering restricted notes
and that such participant has received an appropriate Letter of Transmittal and
agrees to be bound by the terms of the Letter of Transmittal, and the Company
may enforce such agreement against the participant. Delivery of an Agent's
Message will also constitute an acknowledgment from the tendering Euroclear,
Clearstream, Luxembourg or DTC participant, as the case may be, that the
representations contained in the appropriate Letter of Transmittal and described
on page 13 above are true and correct.
Guaranteed Delivery Procedures
Holders who wish to tender their restricted notes and:
o whose restricted notes are not immediately available,
o who cannot deliver their restricted notes, the Letter of Transmittal
or any other required documents to the exchange agent prior to the
expiration of the exchange offer, or
o who cannot complete the procedure for book-entry transfer on a timely
basis, may effect a tender if:
1. the tender is made through an Eligible Institution;
2. prior to the expiration of the exchange offer the exchange
agent receives from such Eligible Institution a properly
completed and duly executed Notice of Guaranteed Delivery by
facsimile transmittal, mail or hand delivery; and
3. certificate(s) representing all tendered restricted notes in
proper form for transfer, together with a properly completed
and executed Letter of Transmittal, or a facsimile thereof and
all other documents required by the Letter of Transmittal, or
confirmation of a book-entry transfer into the exchange
agent's account at Euroclear, Clearstream, Luxembourg or DTC,
as the case may be, of restricted notes delivered
electronically, are received by the exchange agent within
three business days after the expiration of the exchange
offer.
A Notice of Guaranteed Delivery must state:
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<PAGE>
o the name and address of the holder;
o if the restricted notes will be tendered by their registered holder,
the certificate number or numbers of such restricted notes;
o the principal amount of such restricted notes tendered;
o that the tender is being made thereby; and
o that the holder guarantees that, within three business days after the
expiration of the exchange offer, a Letter of Transmittal or facsimile
thereof, together with the certificate(s) representing the restricted
notes to be tendered in proper form for transfer and any other
documents required by the Letter of Transmittal, or confirmation of a
book-entry transfer into the exchange agent's account at Euroclear,
Clearstream, Luxembourg or DTC, as the case may be, of restricted
notes delivered electronically, will be deposited by the Eligible
Institution with the exchange agent.
Forms of the Notice of Guaranteed Delivery will be available from the
exchange agent upon request.
Withdrawal of Tenders
Except as otherwise provided herein, tenders of restricted notes may be
withdrawn at any time prior to the expiration of the exchange offer by delivery
of a written or facsimile transmission notice of withdrawal to the exchange
agent at its address set forth in this document.
Any such notice of withdrawal must:
o specify the name of the person having deposited the restricted notes
to be withdrawn;
o identify the restricted notes to be withdrawn, including the
certificate number or number and principal amount of such restricted
notes or, in the case of restricted notes transferred by book-entry
transfer, the name and number of the account at Euroclear,
Clearstream, Luxembourg or DTC, as the case may be, to be credited;
o be signed by the depositor of the restricted notes in the same manner
as the original signature on the Letter of Transmittal by which such
restricted notes were tendered, including any required signature
guarantee, or be accompanied by documents of transfer sufficient to
permit the registrar to register the transfer of such restricted notes
into the name of the party withdrawing the tender or, in the case of
restricted notes transferred by book-entry transfer, be transmitted by
Euroclear, Clearstream, Luxembourg or DTC, as the case may be, and
received by the exchange agent in the same manner as the Agent's
Message transferring the notes; and
o specify the name in which any such restricted notes are to be
registered, if different from that of the depositor of the restricted
notes.
All questions as to the validity, form and eligibility of such withdrawal
notices will be determined by the Company, whose determination shall be final
and binding on all parties. Any restricted notes so withdrawn will be deemed not
to have been validly tendered for purposes of the exchange offer, and no
exchange notes will be issued with respect thereto unless the restricted notes
so withdrawn are validly retendered. Any restricted notes that have been
tendered but are not accepted for exchange will be returned to the holder
thereof without cost to such holder as soon as practicable after withdrawal,
rejection of tender or termination of the exchange offer. Properly withdrawn
restricted notes may be retendered by following one of the procedures described
above under "Procedures for Tendering" at any time prior to the expiration of
the exchange offer.
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<PAGE>
Conditions to the Exchange Offer
The Company will not be required to accept for exchange, or to exchange
notes for, any restricted notes, and may terminate or amend the exchange offer
before the acceptance of such restricted notes if, in the Company's judgment,
any of the following conditions has occurred:
o the exchange offer, or the making of any exchange by a holder of
restricted notes, violates applicable law or the applicable
interpretations of the SEC staff;
o any action or proceeding shall have been instituted or threatened in
any court or by or before any governmental agency or body with respect
to the exchange offer; or
o there has been adopted or enacted any law, statute, rule or regulation
that can reasonably be expected to impair the ability of the Company
to proceed with the exchange offer.
See "Expiration Date; Extensions; Amendments" above for a discussion of
possible Company actions if any of the foregoing conditions occur.
The foregoing conditions are for the sole benefit of the Company. They
may be asserted by the Company regardless of the circumstances giving rise to
any such condition or may be waived by the Company in whole or in part at any
time and from time to time in its sole discretion. The failure by the Company at
any time to exercise any of the foregoing rights will not be deemed a waiver of
any such right, and each such right will be deemed an ongoing right which may be
asserted at any time and from time to time.
Exchange Agent
The Bank of New York has been appointed as exchange agent for the
exchange offer. Requests for assistance and requests for additional copies of
this document or of the Letter of Transmittal should be directed to the exchange
agent addressed as follows:
By Mail By Overnight or Hand Delivery
The Bank of New York The Bank of New York
101 Barclay Street, 7E 101 Barclay Street
New York, New York 10286 Corporate Trust Services Window
Ground Level
Attention: Tolutope Adeyoju New York, New York 10286
Reorganization Department
Attention: Tolutope Adeyoju
Reorganization Department
Facsimile Transmission:
(212) 815-6339
Information or Confirmation by Telephone:
(212) 815-3738
Solicitation of Tenders; Fees and Expenses
The principal solicitation pursuant to the exchange offer is being made by
the Company by mail and through the facilities of DTC, Euroclear and
Clearstream, Luxembourg. Additional solicitations may be made by officers and
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<PAGE>
regular employees of the Company and its affiliates in person or by telegraph,
telephone, facsimile transmission, electronic communication or similar methods.
The Company has not retained any dealer-manager in connection with the
exchange offer and will not make any payments to brokers, dealers or other
persons soliciting acceptances of the exchange offer. The Company will, however,
pay the exchange agent reasonable and customary fees for its services and will
reimburse the exchange agent for its reasonable out-of-pocket costs and expenses
incurred in connection with the exchange offer and will indemnify the exchange
agent for all losses and claims incurred by it as a result of the exchange
offer. The Company may also pay brokerage houses and other custodians, nominees
and fiduciaries the reasonable out-of-pocket expenses incurred by them in
forwarding copies of this document, the Letter of Transmittal and related
documents to the beneficial owners of the restricted notes and in handling or
forwarding tenders for exchange.
The Company will pay all expenses incurred in connection with the exchange
offer, including fees and expenses of the trustee, accounting and legal fees,
including the expense of one counsel for the holders of the restricted notes,
and printing costs.
The Company will pay any transfer taxes applicable to the exchange of
restricted notes pursuant to the exchange offer. If, however, a transfer tax is
imposed for any reason other than the exchange of restricted notes pursuant to
the exchange offer, then the amount of any such transfer taxes, whether imposed
on the registered holder thereof or any other person, will be payable by the
tendering holder.
Accounting Treatment
The exchange notes will be recorded at the same carrying value as the
restricted notes, as reflected in the Company's accounting records on the date
of the exchange. Accordingly, no gain or loss for accounting purposes will be
recognized by the Company as a result of the consummation of the exchange offer.
The expense of the exchange offer will be amortized by the Company over the term
of the exchange notes.
Consequences of a Failure to Exchange Restricted Notes
Following consummation of the exchange offer, assuming the Company has
accepted for exchange all validly tendered restricted notes, the Company will
have fulfilled its exchange and registration obligations under the Registration
Rights Agreement. All untendered restricted notes outstanding after consummation
of the exchange offer will continue to be valid and enforceable debt obligations
of the Company, fully and unconditionally guaranteed by Tyco, subject to the
restrictions on transfer set forth in the indenture governing the notes. Holders
of Rule 144A restricted notes will only be able to offer for sale, sell or
otherwise transfer untendered Rule 144A notes as follows:
o to the Company, although the Company has no obligation to purchase
untendered restricted notes except if they are called for redemption
in accordance with the provisions of the indenture governing the
notes;
o pursuant to a registration statement that has been declared effective
under the Securities Act, although the Company will have no
obligation, and does not intend, to file any such registration
statement;
o for so long as the restricted notes are eligible for resale pursuant
to Rule 144A under the Securities Act, to a person reasonably believed
to be a qualified institutional buyer, or QIB, within the meaning of
Rule 144A, that purchases for its own account or for the account of a
QIB to whom notice is given that the transfer is being made in
reliance on the exemption from the registration requirements of the
Securities Act provided by Rule 144A;
o pursuant to offers and sales that occur outside the United States to
non-U.S. persons in transactions complying with the provisions of
Regulation S under the Securities Act; or
o pursuant to any other available exemption from the registration
requirements of the Securities Act.
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To the extent that restricted notes are tendered and accepted in the
exchange offer, the liquidity of the trading market for untendered restricted
notes could be adversely affected. See also "Clearing of the Notes".
Absence of a Public Market
Although holders of exchange notes who are not "affiliates" of the Company
within the meaning of the Securities Act may resell or otherwise transfer their
exchange notes without compliance with the registration requirements of the
Securities Act, there is no existing market for the exchange notes, and there
can be no assurance as to the liquidity of any markets that may develop for the
exchange notes, the ability of holders of exchange notes to sell their exchange
notes or the prices at which holders would be able to sell their exchange notes.
Future trading prices of the exchange notes will depend on many factors,
including, among other things, prevailing interest rates, Tyco's operating
results and the market for similar securities.
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DESCRIPTION OF THE NOTES AND THE GUARANTEES
The restricted notes, together with their related guarantees by Tyco were
issued and the exchange notes together with their related guarantees by Tyco
will be issued as separate series of securities under the Indenture, dated as of
June 9, 1998, as supplemented by Supplemental Indenture No. 13 thereto, dated as
of April 4, 2000, in each case among the Company, Tyco and The Bank of New York,
as the trustee. The following description is subject to the detailed provisions
of the indenture, a copy of which can be obtained upon request from Tyco. See
"Availability of Information; Incorporation of Certain Documents by Reference."
As used in this "Description of the Notes and the Guarantees," the term "notes"
refers to and includes the restricted and the exchange notes. The terms of the
restricted notes and the exchange notes are identical, except that the exchange
notes are not subject to restrictions on transfer. The indenture is subject to,
and governed by, the United States Trust Indenture Act of 1939. The statements
made in this section relating to the indenture, the notes and Tyco's guarantees
are summaries, do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the indenture,
the notes and Tyco's guarantees. For a full description of the terms of the
notes and their guarantees, noteholders should refer to the indenture as
supplemented by the supplemental indenture. Capitalized terms used but not
defined in this section have the respective meanings set forth in the indenture.
General
The notes, issued in an aggregate principal amount of Euro 600,000,000,
will mature on April 4, 2007. The notes bear interest at 6 1/8% per annum.
Interest on the notes:
o is payable in arrear on April 4 of each year until maturity (each,
an "annual interest payment date"), beginning April 4, 2001 and is
payable to the persons in whose names the notes are registered at
the close of business on the March 20 prior to the payment date.
o payable on each annual interest payment date, will include interest
accrued from and including April 4, 2000 or from and including the
most recent annual payment date to which interest has been paid or
duly provided for to but excluding the next annual interest payment
date, including the maturity date.
o which is required to be calculated for a period of less than one
year will be calculated on the basis of the actual number of days
elapsed divided by the actual number of days in the period from and
including the immediately preceding annual interest payment date to
but excluding the next annual interest payment date.
Payments in respect of the principal of, and premium, if any, and interest
on a global note registered in the name of DTC or its nominee or in the name of
the common depositary for Euroclear and Clearstream, Luxembourg will be payable
to the depositaries in their capacities as the registered holder under the
indenture.
A holder of notes through DTC (other than participants in Euroclear or
Clearstream, Luxembourg) will receive all payments in U.S. dollars, unless that
holder makes an election as described in "Currency Conversion and Foreign
Exchange Risk." The amount payable in U.S. dollars will be equal to the amount
of euro otherwise payable exchanged into U.S. dollars at the U.S.$/euro rate of
exchange prevailing two business days prior to the relevant payment date.
The trustee will act as paying agent, transfer agent, exchange agent and
registrar for the notes.
If an annual interest payment date or the maturity date is not a business
day, the requisite payment shall be made on the next succeeding business day. No
additional interest will accrue as a result of such delay.
"Business day" means any day other than a Saturday, a Sunday or a day on
which commercial banks and foreign exchange markets in the place of presentation
are closed and on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open.
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The notes may not be redeemed by the Company at any time except as
described in "Redemption."
The notes are direct, unsecured and unsubordinated obligations of the
Company and rank equally with other unsecured and unsubordinated obligations of
the Company for money borrowed. The notes are effectively subordinated to all
existing and future indebtedness and other liabilities of the Company's
subsidiaries.
Except as described under "Certain Covenants" below, the indenture does
not limit other indebtedness or securities which may be incurred or issued by
the Company, Tyco or any of their respective subsidiaries or contain financial
or similar restrictions on the Company, Tyco or any of their respective
subsidiaries.
The Company's rights and the rights of its creditors, including holders of
notes, to participate in any distribution of assets of any subsidiary upon the
latter's liquidation or reorganization or otherwise will be effectively
subordinated to the claims of the subsidiary's creditors, except to the extent
that the Company or any of its creditors may itself be a creditor of that
subsidiary.
Principal and premium, if any, on the notes are payable, and the notes are
transferable and exchangeable without any service charge, at the office of the
trustee. However, holders of notes may be required to pay to the Company a sum
sufficient to cover any tax or other governmental charge payable in connection
with any such transfer or exchange.
There are no covenants or provisions contained in the indenture which
afford the holders of notes protection in the event of a highly leveraged
transaction, reorganization, restructuring, merger or similar transaction
involving the Company or Tyco. The consummation of any highly leveraged
transaction, reorganization, restructuring, merger or similar transaction could
cause a material decline in the credit quality of the outstanding notes.
The indenture does not limit the aggregate principal amount of debt
securities which may be issued thereunder. As of the date of this prospectus,
$7.66 billion of debt securities have been issued by the Company and guaranteed
by Tyco and are outstanding under the indenture.
Guarantees
Tyco has agreed to unconditionally guarantee the due and punctual payment
of the principal of and premium, if any, and interest on and any other
obligations of the Company under the indenture with respect to the notes when
and as the same shall become due and payable, whether at maturity, upon
redemption or otherwise. Tyco's guarantees are unsecured and unsubordinated
obligations of Tyco and rank equally with all other unsecured and unsubordinated
obligations of Tyco. The guarantees provide that in the event of a default in
payment of principal of or premium, if any, or interest on a note, the holder of
that note may institute legal proceedings directly against Tyco to enforce the
guarantees without first proceeding against the Company. In addition, as
described below under "Certain Covenants- Limitation on Indebtedness of
Subsidiaries," subsidiaries of the Company may execute and deliver additional
guarantees.
The obligations of Tyco and any other guarantor under their respective
guarantees of any series of notes are limited to the maximum amount which will
not result in the obligations of such guarantors under their guarantees
constituting a fraudulent conveyance or fraudulent transfer under applicable
law. Each guarantor of a series of notes that makes a payment or distribution
under its guarantee shall be entitled to a contribution from each other
guarantor of such notes to the extent permitted by applicable law.
Redemption
Unless earlier redeemed, the notes will mature at par on April 4, 2007.
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Optional Redemption
The notes are redeemable, in whole but not in part at the Company's
option, at any time at a redemption price equal to the greater of (i) 100% of
the principal amount of such notes or (ii) as determined by the Reference
Dealer, (A) the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of such payments of
interest accrued as of the date of redemption) discounted to the redemption date
on an annual basis (based on the actual number of days elapsed divided by 365
(or, if any of those days elapsed fall in a leap year, the sum of (x) the number
of those days falling in a leap year divided by 366 and (y) the number of those
days falling in a non-leap year divided by 365)) at the Reference Dealer Rate
(as defined below), plus 10 basis points, plus (B) in each case, accrued
interest thereon to the date of redemption. The Company must also satisfy the
notice procedures set forth in "-Notice and Payment" below.
"Reference Dealer" means either of Merrill Lynch International or J.P.
Morgan Securities Ltd. or their respective successors.
"Reference Dealer Rate" means with respect to the Reference Dealer and any
redemption date, the midmarket annual yield to maturity, as determined by the
Reference Dealer, of the German Government Bund 6.00% due January 2007 or, if
that security is no longer outstanding, a similar security in the reasonable
judgment of the Reference Dealer, at 11:00 a.m. (London time) on the fifth
business day in London preceding such redemption date quoted in writing to the
trustee by such Reference Dealer.
Redemption Upon Changes in Withholding Taxes
The Company may redeem all, but not less than all, of the notes under the
following conditions:
1. If there is a change or an amendment in the laws or regulations of
Luxembourg or Bermuda or any political subdivisions or taxing authorities
thereof or therein having power to tax (a "Taxing Authority"), or any
change in the application or official interpretation of such laws or
regulations.
2. As a result of such change, the Company or Tyco became or will
become obligated to pay Additional Amounts, as defined below in "Payment of
Additional Amounts," on the next payment date with respect to the notes.
3. The obligation to pay Additional Amounts cannot be avoided through
the Company's or Tyco's reasonable measures.
4. The Company delivers to the trustee:
o a certificate signed by two directors of the Company or two
officers of Tyco, as the case may be, stating that the obligation
to pay Additional Amounts cannot be avoided by the Company or
Tyco taking reasonable measures available to it; and
o a written opinion of independent legal counsel to the Company or
Tyco, as the case may be, of recognized standing to the effect
that the Company or Tyco, as the case may be, has or will become
obligated to pay Additional Amounts as a result of a change,
amendment, official interpretation or application described above
and that the Company cannot avoid the payment of such Additional
Amounts by taking reasonable measures available to it.
5. Following the delivery of the certificate and opinion described in
paragraph 4 above, the Company provides notice of redemption not less than
30 days, but not more than 60 days, prior to the date of redemption. The
notice of redemption cannot be given more than 60 days before the earliest
date on which the Company or Tyco would be otherwise required to pay
Additional Amounts, and the obligation to pay Additional Amounts must still
be in effect when the notice is given.
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Upon the occurrence of each of 1 through 5 above, the Company may redeem
the notes at a redemption price equal to 100% of the principal amount thereof,
together with accrued interest, if any, to the redemption date, plus any
Additional Amounts.
Notice and Payment
The Company must deliver by first-class mail, postage prepaid, to each
holder of notes to be redeemed, a notice of redemption specifying the following:
o the redemption price;
o the redemption date which must be no less than 30 days and no
more than 60 days following the date of the notice;
o the place of payment;
o that payment will be made when the notes are surrendered to the
trustee;
o that interest accrued to the date of redemption will be paid as
specified in the notice; and
o that after the redemption date interest will stop accruing on the
notes, unless the Company defaults in the payment of the
redemption price.
The Company must also publish any advertisements required by the terms of
the notes.
At least one Business Day prior to the redemption date specified in the
notice of redemption, the Company will deposit with the trustee or with one or
more paying agents an amount of money sufficient to redeem on the redemption
date all the notes. Unless the Company defaults on the redemption payments, on
and after the redemption date specified in the notice of redemption:
o interest on the notes will cease to accrue; and
o the holders of such notes will have no right in respect of the
notes except the right to receive the redemption price thereof
and unpaid interest to the date fixed for redemption.
Payment of Additional Amounts
Unless otherwise required by Luxembourg or Bermuda law, neither the
Company, Tyco nor any other guarantor will deduct or withhold from payments made
with respect to the notes and their guarantees on account of any present or
future taxes, duties, levies, imposts, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of any Taxing Authority
("Taxes"). In the event that the Company, Tyco or any other guarantor is
required to withhold or deduct on account of any Taxes from any payment made
under or with respect to the notes or the guarantees, as the case may be, the
Company, Tyco or such other guarantor as the case may be, will pay such
additional amounts so that the net amount received by each holder of notes,
including those additional amounts, will equal the amount that such holder would
have received if such Taxes had not been required to be withheld or deducted.
The amounts that the Company, Tyco or such other guarantor are required to pay
to preserve the net amount receivable by the holders of notes are referred to as
"Additional Amounts."
Additional Amounts will not be payable with respect to a payment made to a
holder of notes to the extent:
1. that any such Taxes would not have been so imposed but for the
existence of any present or former connection between such holder and the
relevant Taxing Authority imposing such Taxes, other than the mere receipt
of such payment, acquisition, ownership or disposition of such notes or the
exercise or enforcement of rights under such notes, their guarantees or the
indenture;
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2. of any estate, inheritance, gift, sales, transfer, or personal
property Taxes imposed with respect to such notes, except as otherwise
provided in the indenture;
3. that any such Taxes would not have been imposed but for the
presentation of such notes, where presentation is required, for payment on
a date more than 30 days after the date on which such payment became due
and payable or the date on which payment thereof is duly provided for,
whichever is later, except to the extent that the beneficiary or holder
thereof would have been entitled to Additional Amounts had the notes been
presented for payment on any date during such 30-day period; or
4. that such holder would not be liable or subject to such withholding
or deduction of Taxes but for the failure to make a valid declaration of
non-residence or other similar claim for exemption, if:
o the making of such declaration or claim is required or imposed by
statute, treaty, regulation, ruling or administrative practice of
the relevant Taxing Authority as a precondition to an exemption
from, or reduction in, the relevant Taxes; and
o at least 60 days prior to the first payment date with respect to
which the Company or Tyco shall apply this clause 4, the Company
or Tyco shall have notified all holders of notes in writing that
they shall be required to provide such declaration or claim.
Each of the Company, Tyco and any other guarantor of the notes, as
applicable, will also:
o withhold or deduct the Taxes as required;
o remit the full amount of Taxes deducted or withheld to the relevant
Taxing Authority in accordance with all applicable laws;
o use its reasonable best efforts to obtain from each relevant Taxing
Authority imposing such Taxes certified copies of tax receipts
evidencing the payment of any Taxes deducted or withheld; and
o upon request, make available to the holders of notes, within 60 days
after the date the payment of any Taxes deducted or withheld is due
pursuant to applicable law, certified copies of tax receipts
evidencing such payment by the Company, Tyco or such other guarantor
or if, notwithstanding the Company's, Tyco's or such other guarantor's
efforts to obtain such receipts, the same are not obtainable, other
evidence of such payments.
At least 30 days prior to each date on which any payment under or with
respect to the notes is due and payable, if the Company, Tyco or such other
guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Company, Tyco or such other guarantor will deliver to the trustee
an officer's certificate stating the fact that such Additional Amounts will be
payable, the amounts so payable and such other information as is necessary to
enable the trustee to pay such Additional Amounts to holders of such notes on
the payment date.
The foregoing provisions shall survive any termination or the discharge of
the indenture and shall apply mutatis mutandis to any jurisdiction in which any
successor to the Company, Tyco or any other guarantor of notes, as the case may
be, is organized or is engaged in business for tax purposes or any political
subdivisions or taxing authority or agency thereof or therein.
In addition, the Company will pay any stamp, issue, registration,
documentary or other similar taxes and duties, including interest, penalties and
Additional Amounts with respect thereto, payable in Luxembourg, Bermuda or the
United States or any political subdivision or taxing authority of or in the
foregoing in respect of the creation, issue, offering, enforcement, redemption
or retirement of the notes.
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Whenever in the indenture, the notes, their guarantees or in this
"Description of the Notes and the Guarantees" there is mentioned, in any
context, the payment of principal, redemption price, interest or any other
amount payable under or with respect to any note, such mention shall be deemed
to include the payment of Additional Amounts to the extent payable in the
particular context.
Book-Entry, Delivery and Form
The exchange notes will be issued in fully registered form. The exchange
notes will be represented by one or more fully registered global notes and will
be deposited on behalf of DTC and registered in the name of Cede & Co., as DTC's
nominee.
The notes are issued in minimum denominations of Euro 1,000 and integral
multiples of Euro 1,000.
Rule 144A and Regulation S Notes
Rule 144A notes are represented by a global note, in definitive, fully
registered form without interest coupons (the "global note") and are deposited
with a custodian for, and registered in the name of, a nominee of DTC.
Regulation S notes are represented by a global note, in fully registered
form without interest coupons (the "Regulation S global note") registered in the
name of a nominee of Euroclear or Clearstream, Luxembourg or both and deposited
with the common depositary, for the accounts of Euroclear and Clearstream,
Luxembourg.
Beneficial interests in the global notes may not be exchanged for notes in
certificated form except in the limited circumstances described below. See
"-Exchanges of Book-Entry Notes for Certificated Notes". In addition, beneficial
interests in the restricted global note may not be exchanged for beneficial
interests in the Regulation S global note or vice versa except in accordance
with the transfer and certification requirements described below under
"-Exchanges Between the Restricted Global Note and the Regulation S Global
Note."
Exchanges Between the Restricted Global Note and the Regulation S Global Note
Beneficial interests in the restricted global note may be exchanged for
beneficial interests in the Regulation S global note and vice versa only in
connection with a transfer of such interest. Such transfers are subject to
compliance with the certification requirements described below.
Prior to the expiration of the Restricted Period, a beneficial interest in
the Regulation S global note may be transferred to a person who takes delivery
in the form of an interest in the restricted global note only upon receipt by
the trustee of a written certification from the transferor, in the form provided
in the indenture, to the effect that the transfer is being made to a person who
the transferor reasonably believes is purchasing for its own account or accounts
as to which it exercises sole investment discretion and that such person and
each such account is a qualified institutional buyer, in each case in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
Beneficial interests in the restricted global note may be transferred to a
person who takes delivery in the form of an interest in the Regulation S global
note, only upon receipt by the trustee of a written certification from the
transferor, in the form provided in the indenture, to the effect that the
transfer is being made in accordance with Rule 903 or 904 of Regulation S, or,
if available, Rule 144.
Any beneficial interest in one of the global notes that is transferred to
a person who takes delivery in the form of an interest in the other global note
will, upon transfer, cease to be an interest in the original global note and
will become an interest in the other global note and, accordingly, will
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in the other global note for as long as it
remains such an interest. In addition, transfers of beneficial interests in the
global notes will be subject to the applicable rules and procedures of
Euroclear, Clearstream, Luxembourg, and DTC which may change from time to time.
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All transfers of interests in the restricted global note will be recorded
in accordance with the book-entry system maintained by DTC, pursuant to
customary procedures established by DTC and its participants. All transfers of
interests in the Regulation S global notes will be recorded in accordance with
the book-entry system maintained by Euroclear or Clearstream, Luxembourg,
pursuant to customary procedures established by Euroclear or Clearstream,
Luxembourg and their participants.
Exchanges of Book-Entry Notes for Certificated Notes
A beneficial interest in a global note may not be exchanged for a note in
certificated form unless
o Euroclear, Clearstream, Luxembourg or DTC are unwilling or unable to
continue as depositary for the global note and the Company fails to
appoint a successor depositary, or Euroclear, Clearstream, Luxembourg,
or DTC as the case may be,
o is closed for business for a continuous period of 14 days (other than
by reasons of statutory or other holidays) or
o announces an intention permanently to cease business or does in fact
do so,
o the Company at its option, notifies the trustee in writing that it
elects to cause the issuance of the certificated notes or
o there shall have occurred and be continuing an Event of Default with
respect to the notes.
In addition, beneficial interests in the global notes may be exchanged for
certificated notes upon request by or on behalf of Euroclear, Clearstream,
Luxembourg or DTC in accordance with the indenture but only upon prior written
notice given to the trustee. In all cases, certificated notes delivered in
exchange for the global notes or beneficial interests in the global notes will
be registered in the names, and issued in any approved denominations, requested
by or on behalf of Euroclear, Clearstream, Luxembourg or DTC (in accordance with
their customary procedures) and will bear the applicable restrictive legend,
unless the Company determines otherwise in compliance with applicable law. Any
such exchange will be effected through the facilities of DTC in the case of
global notes or Euroclear or Clearstream, Luxembourg in the case of Regulation S
notes and an appropriate adjustment will be made in the records of the registrar
to reflect a decrease in the principal amount of the relevant global note. The
notes may not be issued in bearer form.
Depositary Procedures
The following description of the operations and procedures of Euroclear,
Clearstream, Luxembourg and DTC is provided solely as a matter of convenience.
These operations and procedures are solely within the control of the respective
settlement systems and are subject to changes by them from time to time. The
Company and Tyco take no responsibility for these operations and procedures and
urge investors to contact the system or their participants directly to discuss
these matters.
Euroclear and Clearstream, Luxembourg
Euroclear and Clearstream, Luxembourg each holds securities for their
account holders and facilitates the clearance and settlement of securities
transactions by electronic book entry transfer between the respective account
holders, thereby eliminating the need for physical movements of certificates and
any risk from lack of simultaneous transfers of securities.
Euroclear and Clearstream, Luxembourg each provides various services
including safekeeping, administration, clearance and settlement of
internationally traded securities, and securities lending and borrowing.
Euroclear and Clearstream, Luxembourg also deal with domestic securities markets
in several countries through established
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depositary and custodial relationships. Euroclear and Clearstream, Luxembourg
have established an electronic bridge between their two systems across which
account holders may settle trades with each other.
Account holders in Euroclear and Clearstream, Luxembourg are worldwide
financial institutions including underwriters, securities brokers and dealers,
banks, trust companies and clearing corporations. Indirect access to Euroclear
and Clearstream, Luxembourg is available to other institutions that clear
through or maintain a custodial relationship with an account holder of either
system.
Account holders' overall contractual relations with Euroclear and
Clearstream, Luxembourg are governed by the rules and operating procedures of
Euroclear and Clearstream, Luxembourg and any applicable laws. Euroclear and
Clearstream, Luxembourg act under these rules and operating procedures only on
behalf of their account holders, and have no record of or relationship with
persons holding through their account holders.
DTC
DTC has advised the Company and Tyco that DTC is a limited-purpose trust
company created to hold securities for its participating organizations
(collectively, the "Participants") and to facilitate the clearance and
settlement of transactions in those securities between Participants through
electronic book-entry changes in accounts of its Participants. The Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. Access to DTC's system is also
available to other entities such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a Participant,
either directly or indirectly (collectively, the "Indirect Participants").
Persons who are not Participants may beneficially own securities held by or on
behalf of DTC only through the Participants or the Indirect Participants. The
ownership interests in, and transfers of ownership interests in, each security
held by or on behalf of DTC are recorded on the records of the Participants and
Indirect Participants.
DTC has also advised the Company and Tyco that, pursuant to procedures
established by it:
o upon deposit of the global note, DTC will credit the accounts of
Participants designated by the Managers with portions of the
principal amount of the global note; and
o ownership of such interest will be shown on, and the transfer of
ownership thereof will be effected only through, records maintained
by DTC, with respect to the Participants, or by the Participants and
the Indirect Participants, with respect to other owners of
beneficial interest in the global note.
Investors may hold their interests in the global note directly through
DTC, if they are Participants, or indirectly through organizations, including
Euroclear and Clearstream, Luxembourg, which are Participants.
General
The Company understands that, under existing industry practices, if either
the Company or the trustee requests any action of owners of book-entry interests
or if an owner of a book-entry interest desires to give or take any action that
a holder is entitled to give or take under the indenture, the depositories would
authorize their participants owning the relevant book-entry interests to give or
take the action, and the participants would authorize indirect participants to
give or take the action or would otherwise act upon the instructions of the
indirect participants.
Although Euroclear, Clearstream, Luxembourg and DTC have agreed to certain
procedures to facilitate transfers of interests in the global notes among their
account holders, they are under no obligation to perform or to continue to
perform those procedures, and the procedures may be discontinued at any time.
Neither the Company, nor Tyco, nor the trustee, nor any agent of any of them
will have any responsibility for the nonperformance or misperformance (as a
result of insolvency, mistake, misconduct or otherwise) by Euroclear,
Clearstream, Luxembourg or DTC or their respective account holders or
intermediaries of their obligations under the rules and procedures governing
their operations.
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Except as described in this offering circular and the indenture, owners of
interests in the global notes will not have notes registered in their names,
will not receive physical delivery of notes in certificated form and will not be
considered the registered owners or holders of the notes. So long as a nominee
for DTC or Euroclear and Clearstream, Luxembourg or any of them is the
registered holder of the global notes, such registered holder will be considered
the sole owner or holder of the notes represented by such global notes for all
purposes under the indenture and the notes. Accordingly, each person owning a
beneficial interest in the global notes must rely on the procedures of
Euroclear, Clearstream, Luxembourg, or DTC, as the case may be, and their
account holders to exercise any rights and remedies of a holder of notes under
the indenture. Payments of principal and interest on the global notes will be
made to the nominee of DTC or the common depositary on behalf of Euroclear or
Clearstream, Luxembourg, as the case may be, as the registered owners of the
global notes.
The laws of some jurisdictions require that certain persons take physical
delivery in definitive form of securities which they own. Accordingly, the
ability to transfer beneficial interests in the global notes to those persons
may be limited to that extent. Because DTC, Euroclear and Clearstream,
Luxembourg can act only on behalf of their respective account holders, the
ability of a person having beneficial interests in the global notes to pledge
those interests to persons or entities that do not participate in the relevant
clearing system, or otherwise take actions in respect of those interests, may be
affected by the lack of a physical certificate evidencing those interests.
Paying Agents, Transfer Agent, Registrar and Exchange Agent
The Company has initially appointed the trustee at its corporate trust
office as a paying agent, transfer agent, registrar and exchange agent for the
notes. In these capacities, the trustee will be responsible for, among other
things, (1) maintaining a record of the aggregate holdings of notes represented
by the Regulation S global note and the global notes and accepting notes for
exchange and registration of transfer, (2) ensuring that payments of principal
and premium, if any, and interest in respect of the notes received by the
trustee from the Company are duly paid to DTC, Euroclear or Clearstream,
Luxembourg or their nominees, and (3) transmitting to the Company any notices
from the noteholders. The Company has also appointed Credit Agricole Indosuez
Luxembourg S.A. to serve as a paying agent and transfer agent in Luxembourg.
The Company will cause to be kept at the office of each transfer agent a
register in which, subject to such reasonable regulations as the Company may
prescribe, the Company will provide for the registration of the notes and
registration of transfers of the notes. The Company may vary or terminate the
appointment of any paying agent or transfer agent, or appoint additional or
other such agents or approve any change in the office through which any such
agent acts, provided that there shall at all times be a paying agent and a
transfer agent in the Borough of Manhattan, The City of New York, New York and,
as long as the notes are listed on the Luxembourg Stock Exchange, in Luxembourg.
The Company will provide notice of any resignation, termination or appointment
of the trustee or the registrar or any paying agent or transfer agent, and of
any change in the office through which any such agent will act. So long as the
notes are listed on the Luxembourg Stock Exchange and the rules of the
Luxembourg Stock Exchange so require, notice of a change of paying agent or
transfer agent or registrar will be published in a newspaper of general
circulation in Luxembourg.
Certain Covenants
The indenture contains, among others, the covenants described below. Some
capitalized terms used in this section are defined under "Definitions" below.
Limitations on Liens
The Company covenants that, so long as any debt securities issued under
the indenture, including any of the notes, remain outstanding, but subject to
defeasance, as provided in the indenture, it will not, and will not permit any
Restricted Subsidiary to incur any indebtedness which is secured by a mortgage,
pledge, security interest, lien or encumbrance (each a "lien") upon:
o any Principal Property; or
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o any shares of stock of or indebtedness issued by any Restricted
Subsidiary, whether now owned or hereafter acquired, without
effectively providing that, for so long as such lien shall continue in
existence with respect to such secured indebtedness, the debt
securities issued under the indenture, including the notes, together
with, if the Company shall so determine, any other indebtedness of the
Company ranking equally with the notes, shall be equally and ratably
secured with, or at the Company's option prior to, such secured
indebtedness.
The foregoing restriction shall not apply to:
1. liens that exist when the applicable debt securities are issued;
2. liens on the stock, assets or indebtedness of a person that exist
when such person becomes a Restricted Subsidiary unless created in
contemplation of such Restricted Subsidiary becoming such;
3. liens on any assets or indebtedness of a person that exist:
o when such person is merged into the Company or a Restricted
Subsidiary; or
o at the time the Company or a Restricted Subsidiary purchases,
leases or otherwise acquires as an entirety or substantially as
an entirety the assets of such person;
4. liens on any Principal Property that exist:
o when the Company or any Restricted Subsidiary acquired such
property;
o to secure the payment or indebtedness for the financing of the
purchase price of such property; or
o to secure indebtedness incurred for the purpose of the financing
of all or any part of improvements or construction on such
property, which indebtedness in each case is incurred before, at
the time of, or within one year after the acquisition of such
property, or in the case of real property, completion of such
improvement or construction or commencement of full operation of
such property, whichever is later;
5. liens that secure indebtedness owed by any Restricted Subsidiary to
the Company, Tyco or a subsidiary of the Company or by the Company to Tyco;
6. liens in favor of any country or state, or political subdivision
thereof:
o to secure payments pursuant to any contract, statute, rule or
regulation; or
o to secure any indebtedness incurred for the purpose of financing
all or any part of the purchase price, or, in the case of real
property, the cost of construction or improvement, of the
Principal Property subject to such liens, including, but not
limited to, liens incurred in connection with pollution control,
industrial revenue or similar financings;
7. liens or deposits under worker's compensation or similar
legislation, or in connection with bids, tenders, contracts, other than for
the payment of money, or leases to which the Company or any Restricted
Subsidiary is a party, or to secure the public or statutory obligations of
the Company or any Restricted Subsidiary, or in connection with obtaining
or maintaining self-insurance, or to obtain the benefits of any law,
regulation or arrangement pertaining to unemployment insurance, old age
pensions, social security or similar matters, or to secure surety,
performance, appeal or customs bonds to which the Company or any Restricted
Subsidiary is a party, or in litigation or other proceedings in connection
with the matters heretofore referred to
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in this clause, such as, but not limited to, interpleader proceedings, and
other similar pledges, liens or deposits made or incurred in the ordinary
course of business;
8. certain liens in connection with legal proceedings, as provided in
the indenture;
9. liens for certain taxes or assessments, landlord's liens and liens
and charges incidental to the conduct of the business of the Company or any
Restricted Subsidiary, or the ownership of their respective assets, which
were not incurred in connection with the borrowing of money or the
obtaining of advances or credit and which do not, in the opinion of the
Board of Directors of the Company, materially impair the use of such assets
in the operation of the business of the Company or such Restricted
Subsidiary or the value of such Principal Property for the purposes
thereof;
10. liens to secure the Company's or any Restricted Subsidiary's
obligations under agreements with respect to spot, forward, future and
option transactions, entered into in the ordinary course of business;
11. liens not permitted by the foregoing clauses 1 to 10, inclusive,
if at the time of, and after giving effect to, the creation or assumption
of such lien, the aggregate amount of all outstanding indebtedness of the
Company and its Restricted Subsidiaries, without duplication, secured by
all liens not permitted by the foregoing clauses 1 through 10, inclusive,
together with the Attributable Debt in respect of Sale and Lease- Back
Transactions permitted by clause 1 under "Limitation on Sale and Lease-Back
Transactions" below does not exceed the greater of $100,000,000 and 10% of
Consolidated Net Worth; and
12. any total or partial extension, renewal or replacement of any lien
permitted pursuant to clauses 1 through 11, inclusive, except that the
principal amount of indebtedness secured by such extension, renewal or
replacement, unless otherwise excepted under clauses 1 through 11, shall
not exceed the principal amount of indebtedness of the original permitted
lien, and that such extension, renewal or replacement shall be limited to
all or part of the assets, or any replacement therefor, which secured the
original lien, plus improvements and construction on real property.
Limitation on Sale and Lease-Back Transactions
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any Sale and Lease-Back Transaction with respect to a Principal
Property unless;
1. the Company or such Restricted Subsidiary would, at the time of
entering into a Sale and Lease- Back Transaction, be entitled to incur
indebtedness secured by a lien on the Principal Property to be leased in an
amount at least equal to the Attributable Debt in respect of such
transaction, without equally and ratably securing the debt securities
issued under the indenture, including the notes, pursuant to the provisions
described under "Limitations on Liens" above; or
2. the direct or indirect proceeds of the sale of the Principal
Property to be leased are at least equal to their fair value, as determined
by the Company's Board of Directors, and an amount equal to the net
proceeds is applied, within 180 days of the effective date of such
transaction, to the purchase or acquisition, or, in the case of real
property, commencement of the construction, of property or assets or to the
retirement of the debt securities issued under the indenture, other than at
maturity or pursuant to a mandatory sinking fund or a mandatory redemption
provision, or of Funded Indebtedness of the Company or a consolidated
subsidiary of the Company that ranks on a parity with or senior to the debt
securities issued under the indenture, subject to credits for certain
voluntary retirement of Funded Indebtedness and certain delivery of debt
securities issued under the indenture to the trustee for retirement and
cancellation.
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Limitation on Indebtedness of Subsidiaries
1. The Company will not cause or permit any subsidiary of the Company
which is not a guarantor of the notes or any other debt securities issued
under the indenture, directly or indirectly, to create, incur, assume,
guarantee or otherwise in any manner become liable for the payment of or
otherwise incur (collectively, "incur"), any indebtedness, including any
Acquired Indebtedness but excluding any Permitted Subsidiary Indebtedness,
unless such subsidiary simultaneously executes and delivers a supplemental
indenture providing for a guarantee of the debt securities issued under the
indenture, including the notes.
2. Notwithstanding the foregoing, any guarantee by a subsidiary of the
Company of the debt securities issued under the indenture, including any
guarantee by a subsidiary of any of the notes, shall provide by its terms
that it, and all liens securing the same, shall be automatically and
unconditionally released and discharged upon:
o any sale, exchange or transfer, to any person not an Affiliate of
the Company, of all of the Company's equity interests in, or all
or substantially all the assets of, such subsidiary, which
transaction is in compliance with the terms of the indenture and
such subsidiary is released from all guarantees, if any, by it of
other indebtedness of the Company or any subsidiaries of the
Company;
o the payment in full of all obligations under the indebtedness
described in clause 1 above giving rise to such guarantee; or
o with respect to indebtedness described in the clause 1 above
constituting guarantees of indebtedness, the release by the
holders of such indebtedness of the guarantee by such subsidiary,
including any deemed release upon payment in full of all
obligations under such indebtedness, provided that:
(A) no other indebtedness, other than Permitted Subsidiary
Indebtedness, has been guaranteed by such subsidiary; or
(B) the holders of all other indebtedness which is guaranteed by
such subsidiary also release the guarantee by such subsidiary,
including any deemed release upon payment in full of all obligations
under such indebtedness.
3. For purposes of this covenant, any Acquired Indebtedness shall not
be deemed to have been incurred until 180 days from the date
(A) the person obligated on such Acquired Indebtedness becomes a
subsidiary of the Company, or
(B) the acquisition of assets in connection with which such
Acquired Indebtedness was assumed is consummated.
Definitions
"Acquired Indebtedness" means indebtedness of a person:
o existing at the time such person becomes a Restricted Subsidiary; or
o assumed in connection with the acquisition of assets by such person,
in each case, other than indebtedness incurred in connection with, or in
contemplation of, such person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
"Affiliate" means, with respect to any specified person:
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o any other person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified person;
o any other person that owns, directly or indirectly, 10% or more of
such specified person's capital stock or any officer or director of
any such specified person or other person; or
o any other person 10% or more of the voting stock of which is
beneficially owned or held directly or indirectly by such specified
person.
For the purposes of this definition, "control" when used with respect to any
specified person means the power to direct the management and policies of such
person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Attributable Debt" means in connection with a Sale and Lease-Back
Transaction, as of any particular time, the aggregate of present values,
discounted at a rate per annum equal to the average interest borne by all
outstanding debt securities issued under the indenture determined on a weighted
average basis and compounded semiannually, of the obligations of the Company or
any Restricted Subsidiary for net rental payments during the remaining term of
the applicable lease, including any period for which such lease has been
extended or may, at the option of the lessor, be extended. The term "net rental
payments" under any lease of any period shall mean the sum of the rental and
other payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee, whether or
not designated as rental or additional rental, on account of maintenance and
repairs, reconstruction, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales,
maintenance and repairs, reconstruction, insurance, taxes, assessments, water
rates or similar charges.
"Consolidated Net Worth" means, at any date, the total assets less the
total liabilities, in each case appearing on the most recently prepared
consolidated balance sheet of the Company and its subsidiaries as of the end of
a fiscal quarter of the Company, prepared in accordance with United States
generally accepted accounting principles as in effect on the date of
calculation.
"Consolidated Tangible Assets" means, at any date, the total assets less
all Intangible Assets appearing on the most recently prepared consolidated
balance sheet of the Company and its subsidiaries as of the end of a fiscal
quarter of the Company, prepared in accordance with United States generally
accepted accounting principles as in effect on the date of calculation.
"Intangible Assets" means the amount, if any, which would be stated under the
heading "Costs in Excess of Net Assets of Acquired Companies" or under any other
heading relating to intangible assets separately listed, in each case on the
face of the aforesaid consolidated balance sheet.
"Funded Indebtedness" means any indebtedness maturing by its terms more
than one year from the date of the determination thereof, including any
indebtedness renewable or extendible at the option of the obligor to a date
later than one year from the date of the determination thereof.
"Permitted Subsidiary Indebtedness" means any of the following:
1. indebtedness in an aggregate amount, without duplication, not to
exceed, as of the date of determination, 5% of the Consolidated Tangible
Assets of the Company, excluding any indebtedness described in clauses 2
through 8 below;
2. indebtedness owed to the Company, Tyco or any subsidiary of the
Company;
3. obligations under standby letters of credit or similar arrangements
supporting the performance of a Person under a contract or agreement in the
ordinary course of business;
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4. obligations as lessee in the ordinary course of business which are
capitalized in accordance with
United States generally accepted accounting principles;
5. Indebtedness that was Permitted Subsidiary Indebtedness at the time
that it was first incurred;
6. Acquired Indebtedness that by its terms is not, at the time it
became Acquired Indebtedness or within 180 days thereafter, callable or
redeemable prior to its stated maturity and that remains outstanding
following such time as the subsidiary of the Company obligated under such
Acquired Indebtedness in good faith has made or caused to be made an offer
to acquire all such indebtedness, including, without limitation, an offer
to exchange such indebtedness for securities of the Company, on terms
which, in the opinion of an independent investment banking firm of national
reputation and standing, are consistent with market practices in existence
at the time for offers of a similar nature, provided that the initial
expiration date of any such offer shall be not later than the expiration of
the time period set forth in paragraph 3 of the "Limitation on Indebtedness
of Subsidiaries" covenant;
7. indebtedness outstanding on the date of the indenture; and
8. any renewals, extensions, substitutions, refundings, refinancings
or replacements (collectively, a "refinancing") of any indebtedness
referred to in clause 7 of this definition of "Permitted Subsidiary
Indebtedness" of a subsidiary organized under a jurisdiction other than the
United States or any State thereof or the District of Columbia, including
any successive refinancings, so long as the borrower under such refinancing
is such subsidiary and the aggregate principal amount of indebtedness
represented thereby, or if such indebtedness provides for an amount less
than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof, the original issue price of such
indebtedness plus any accreted value attributable thereto since the
original issuance of such indebtedness, is not increased by such
refinancing plus the lesser of (A) the stated amount of any premium or
other payment required to be paid in connection with such a refinancing
pursuant to the terms of the indebtedness being refinanced or (B) the
amount of premium or other payment actually paid at such time to refinance
the indebtedness, plus, in either case, the amount of expenses of such
Subsidiary incurred in connection with such refinancing.
"Principal Property" means any manufacturing, processing or assembly plant
or facility or any warehouse or distribution facility which is used by any U.S.
subsidiary of the Company after the date hereof, other than any such plants,
facilities, warehouses or portions thereof, which in the opinion of the Board of
Directors of the Company, are not collectively of material importance to the
total business conducted by the Company and its Restricted Subsidiaries as an
entirety, or which, in each case, has a book value, on the date of the
acquisition or completion of the initial construction thereof by the Company, of
less than 1.5% of Consolidated Tangible Assets.
"Restricted Subsidiary" means any subsidiary of the Company which owns or
leases a Principal Property.
"Sale and Lease-Back Transaction" means an arrangement with any person
providing for the leasing by the Company or a Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Company or a Restricted Subsidiary to such person; provided,
however, that the foregoing shall not apply to any such arrangement involving a
lease for a term, including renewal rights, for not more than three years.
Merger, Consolidation, Sale or Conveyance
The indenture provides that neither the Company, Tyco nor any other
guarantor will merge or consolidate with any other corporation or sell or convey
all or substantially all of its assets to any person, unless:
1. the Company, Tyco or such other guarantor, as the case may be,
shall be the continuing corporation; or
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2. the successor corporation or person that acquires all or
substantially all of the assets of the Company, Tyco or such other
guarantor, as the case may be, shall expressly assume:
o the payment of principal of, premium, if any, and interest on the
notes and all other debt securities issued under the indenture or
the guarantees thereof, as the case may be; and
o the observance of all the covenants and agreements under the
indenture to be performed or observed by the Company, Tyco or
such other guarantor, as the case may be;
and in either case, immediately after such merger, consolidation, sale or
conveyance, the Company, Tyco or such other guarantor, as the case may be, or
such successor corporation or person, as the case may be, shall not be in
default in the performance of the covenants and agreements of the indenture to
be performed or observed by the Company, Tyco or such other guarantor, as the
case may be; provided that the foregoing shall not apply to a guarantor other
than Tyco if in connection with any such merger, consolidation, sale or
conveyance the guarantee of such guarantor is released and discharged pursuant
to paragraph 2 of the "Limitation on Indebtedness of Subsidiaries" covenant
described above.
Events of Default
An event of default with respect to a series of notes is defined in the
indenture as being:
1. default for 30 days in payment of any interest on any notes of such
series;
2. default in any payment of principal, premium, if any, or sinking
fund installment on any notes of such series;
3. default by the Company, Tyco or any other guarantor in performance
of any other of the covenants or agreements in respect of the notes of such
series and related guarantees or the indenture that continues for 90 days
after the Company receives notice of such failure in accordance with the
indenture;
4. default by the Company, Tyco or any other guarantor in the payment
at the final maturity thereof, after the expiration of any applicable grace
period, of principal of, premium, if any, or interest on indebtedness for
money borrowed, other than non-recourse indebtedness, in the principal
amount then outstanding of $50,000,000 or more, or acceleration of any
indebtedness in such principal amount so that it becomes due and payable
prior to the date on which it would otherwise have become due and payable
and such acceleration is not rescinded within ten business days after
notice to the Company in accordance with the indenture;
5. any guarantee of that series of notes ceases to be, or the Company
or any guarantor asserts in writing that such guarantee is not, in full
force and effect and enforceable in accordance with its terms; or
6. certain events involving bankruptcy, insolvency or reorganization
of the Company, Tyco or any Significant Subsidiary Guarantor (which is
defined below).
The indenture provides that the trustee shall transmit notice of any
uncured default under the indenture with respect to the notes, within 90 days
after the occurrence of such default, to the holders of notes, except that the
trustee may withhold notice to the holders of the notes of any default, except
in payment of principal of, premium, if any, or interest on the notes, if the
trustee considers it in the interest of the holders of the notes to do so.
If an event of default due to:
o the default in the payment of interest, principal, premium, if any, or
sinking fund installment with respect to the notes;
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o the default in the performance or breach of any other covenant or
agreement of the Company, Tyco or any guarantor applicable to the
notes but not applicable to all outstanding debt securities issued
under the indenture;
o a guarantee of the notes ceasing to be, or the Company or any
guarantor asserting that a guarantee of the notes no longer is, in
full force and effect and enforceable in accordance with its terms,
shall have occurred and be continuing, either the trustee or the holders of not
less than 25% in principal amount of the notes then outstanding may declare the
principal of all notes and interest accrued thereon to be due and payable
immediately.
If an event of default due to:
o a default in the performance of any other of the covenants or
agreements in the indenture applicable to all outstanding debt
securities issued thereunder and then outstanding;
o a default in payment at final maturity or upon acceleration of
indebtedness for money borrowed in the principal amount then
outstanding of $50,000,000 or more; or
o certain events of bankruptcy, insolvency and reorganization of the
Company, Tyco or any Significant Subsidiary Guarantor,
shall have occurred and be continuing, either the trustee or the holders of not
less than 25% in principal amount of all debt securities issued under the
indenture then outstanding, including the notes, treated as one class, may
declare the principal of all such debt securities and interest accrued thereon
to be due and payable immediately.
Under certain circumstances, such declarations may be annulled and past
defaults may be waived, except a non- payment of such debt securities which
shall have become due by acceleration, by the holders of a majority in principal
amount of the outstanding notes of an affected series, voting as a separate
class, or all debt securities outstanding under the indenture, voting as a
single class, as the case may be.
The holders of a majority in principal amount of the outstanding notes
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee with respect to the notes,
subject to certain limitations specified in the indenture.
The indenture provides that no holder of notes may institute any action
against the Company under the indenture, except actions for payment of overdue
principal, premium, if any, or interest, unless such holder previously shall
have given to the trustee written notice of default and continuance thereof and
unless the holders of not less than 25% in principal amount of the notes then
outstanding shall have requested the trustee to institute such action and shall
have offered the trustee reasonable indemnity, and the trustee shall not have
instituted such action within 60 days of such request, and the trustee shall not
have received direction inconsistent with such written request by the holders of
a majority in principal amount of the notes then outstanding.
The indenture requires the annual filing by the Company with the trustee
of a written statement as to compliance with the covenants and agreements
contained in the indenture.
"Significant Subsidiary Guarantor" means any one or more guarantors, other
than Tyco, which, at the date of determination, together with its or their
respective subsidiaries in the aggregate,
o for the most recently completed fiscal year of the Company accounted
for more than 10% of the consolidated revenues of the Company; or
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o at the end of such fiscal year, was the owner, beneficial or
otherwise, of more than 10% of the consolidated assets of the Company,
as determined in accordance with United States generally accepted
accounting principles and reflected on the Company's consolidated
financial statements.
Modification of the Indenture
The indenture contains provisions permitting the Company, Tyco and the
trustee, with the consent of the holders of not less than a majority of the
principal amount of all affected series of the debt securities issued under the
indenture at the time outstanding, including the notes, voting as one class, to
modify the indenture or any supplemental indenture or the rights of the holders
of such debt securities. Furthermore, without the consent of each holder of debt
securities, including the notes, so affected the indenture cannot be modified
to:
1. extend the final maturity of any of the notes or reduce the
principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption thereof, or
change the currency thereof, or impair or affect the right of any holder of
the notes to institute suit for the payment thereof without the consent of
each holder of the notes so affected; or
2. reduce the aforesaid percentage in principal amount of debt
securities, the consent of the holders of which is required for any such
modification.
The indenture contains provisions permitting the Company, Tyco and the
trustee, without the consent of any holders of notes, to enter into a
supplemental indenture, among other things, for purposes of curing any ambiguity
or correcting or supplementing any provision contained in the indenture or in
any supplemental indenture or making other provisions in regard to the matters
or questions arising under the indenture or any supplemental indenture as the
Board of Directors of the Company deems necessary or desirable and which does
not adversely affect the interests of the holders of notes in any material
respect. The Company, Tyco and the trustee, without the consent of any holders
of notes, may also enter into a supplemental indenture to establish the form or
terms of any series of debt securities as are not otherwise inconsistent with
any of the provisions of the indenture.
Further Issues
The Company may, without notice to or the consent of the holders of the
notes, issue additional notes of the same tenor as the notes, with the guarantee
of Tyco substantially identical to the guarantee of the notes offered hereby, so
that such additional notes and the notes offered hereby shall form a single
series, and references herein to the notes shall include (unless the context
otherwise requires) any further notes issued as described in this paragraph.
Unclaimed Payments
All money paid by the Company to a paying agent that remains unclaimed at
the end of two years after the amount is due to a holder will be repaid to the
Company. After that two-year period, the holder may look only to the Company for
payment and not to the trustee, any other paying agent or anyone else.
Prescription
Under New York's statute of limitations, any legal action upon the notes
must be commenced within six years after the payment thereof is due.
Notices
Notices to be given by the Company will be given at least once by
publication in a daily newspaper in the English language with general
circulation in London, England, and, so long as the notes are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, in a daily newspaper of general circulation in Luxembourg. If
publication in London or Luxembourg is impractical, notices shall be published
by such means as will, so far as may be reasonably practicable, approximate
publication in such
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newspaper. Publication is expected to be made in the Luxemburger Wort in
Luxembourg and the Financial Times in London. Such notices will be deemed to
have been given on the date of such publication or, if published more than once,
on the date of the first such publication.
Governing Law
The indenture and the notes will be governed by and construed in
accordance with the laws of the State of New York.
Concerning the Trustee
The trustee may hold notes, act as a depository for funds of, make loans
to, or perform other services for, Tyco, the Company and their respective
subsidiaries as if it were not the trustee.
ENFORCEMENT OF CIVIL LIABILITIES
The Company and Tyco have consented in the indenture to jurisdiction in
the United States federal and state courts in The City of New York and to
service of process in The City of New York in any legal suit, action or
proceeding brought to enforce any rights under or with respect to the indenture,
the notes and the guarantees. However, substantially all of the Company's
directly held assets consists of shares in its wholly-owned subsidiary Tyco
Group S.a.r.l., a Luxembourg company which, through its subsidiaries, owns a
substantial majority of the assets of the Company. A substantial majority of
Tyco's directly held assets consists of shares in the Company. Accordingly, any
judgment against the Company or Tyco in respect of the indenture, the notes or
the guarantees, including for civil liabilities under the United States federal
securities laws, obtained in any United States federal or state court may have
to be enforced in the courts of Luxembourg. Investors should not assume that the
courts of Luxembourg would enforce judgments of United States courts obtained
against the Company or Tyco predicated upon the civil liability provisions of
the United States federal securities laws or that such courts would enforce, in
original actions, liabilities against the Company or Tyco predicated solely upon
such laws.
CERTAIN LUXEMBOURG, BERMUDA AND UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES
The following discussion is intended to be a general summary of
Luxembourg, Bermuda and United States federal income tax consequences to holders
of notes. Due to the complexity of the tax laws of these and other taxing
jurisdictions, the uncertainty, in some instances, as to the manner in which
such laws apply to holders and possible changes in law, it is particularly
important that each holder consult with its own tax adviser regarding the tax
treatment of the acquisition, ownership and disposition of notes under the laws
of any federal, state, local or other taxing jurisdiction.
Luxembourg
Under current law, no withholding or deduction is imposed in Luxembourg in
respect of any payment to be made by the Company in respect of the notes.
Holders of notes who are neither resident in Luxembourg nor engaged in a trade
or business through a permanent establishment or permanent representative in
Luxembourg will not be subject to taxes or duties in Luxembourg with respect to
interest payments on, or gains realized on the disposition of, the notes. No
stamp, registration or similar taxes, duties or charges are payable in
Luxembourg in connection with the issue of the notes.
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Bermuda
Under current law, no income, withholding or other taxes or stamp,
registration or other duties are imposed upon the issue, transfer or sale of the
notes or on any payments made in respect of the notes or the guarantees.
United States
The following is a general discussion of certain U.S. federal income tax
consequences of the exchange of restricted notes for exchange notes pursuant to
the exchange offer and the ownership and disposition of the notes to initial
holders who purchased notes at their "issue price." As used in this section, the
term "notes" refers to and includes the restricted notes and the exchange notes.
The "issue price" of the notes equals the first price at which a substantial
amount of the notes were sold for cash to the public, not including the initial
purchasers or other persons acting in the capacity of underwriters, placement
agents or wholesalers. This summary is based upon laws, regulations, rulings and
decisions currently in effect, all of which are subject to change at any time,
possibly with retroactive effect. Moreover, it deals only with purchasers who
hold notes as "capital assets" within the meaning of Section 1221 of the
Internal Revenue Code of 1986, as amended (the "Code"), and does not purport to
deal with persons in special tax situations, such as financial institutions,
insurance companies, regulated investment companies, tax exempt investors,
dealers in securities or currencies, U.S. expatriates, persons holding notes as
a hedge against currency risk or as a position in a "straddle," "hedge,"
"conversion" or another integrated transaction for tax purposes, persons who
own, directly or indirectly, 10 percent or more of the voting power of the
Company, or U.S. Holders, as defined below, whose functional currency is not the
U.S. dollar. Further, this discussion does not address the consequences under
U.S. federal estate or gift tax laws or the laws of any U.S. state or locality.
Finally, this discussion does not address the tax consequences to holders of
notes who did not acquire the notes at their issue price, including the
potential application of the market discount and acquisition premium rules of
the Code to such holders.
Holders of the notes are urged to consult their own tax advisors
concerning the consequences, in their particular circumstances, of ownership of
the notes and the exchange of restricted notes for exchange notes pursuant to
the exchange offer under the U.S. federal tax laws and the laws of any relevant
state, local or non-U.S. taxing jurisdiction.
As used herein, the term "U.S. Holder" means a beneficial owner of notes
that is, for U.S. federal income tax purposes:
o a citizen or resident of the United States;
o a corporation or other entity that has elected to be treated as a
corporation, created or organized in or under the laws of the United
States or of any political subdivision thereof;
o an estate whose income is subject to U.S. federal income tax
regardless of its source; or
o a trust if, in general, a court within the United States is able to
exercise primary jurisdiction over its administration and one or more
U.S. persons have authority to control all of its substantial
decisions.
As used herein, the term "non-U.S. Holder" means a beneficial owner of
notes (other than a partnership) that is not a U.S. Holder for U.S. federal
income tax purposes.
If a partnership is a beneficial owner of notes, the tax treatment of a
partner will generally depend upon the status of the partner and upon the
activities of the partnership. If a Holder is a partner or a partnership holding
notes, such Holder should consult its tax advisor about the U.S. federal income
tax consequences of holding and disposing of notes.
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The Exchange Offer
An exchange of restricted notes for exchange notes pursuant to the
exchange offer will not be treated as an exchange or other taxable event for
U.S. federal income tax purposes. Accordingly, there will be no U.S. federal
income tax consequences to holders of restricted notes who exchange restricted
notes for exchange notes pursuant to the exchange offer, and an exchanging
holder will have the same adjusted tax basis and holding period in the exchange
notes as it had in the restricted notes immediately before the exchange.
U.S. Holders
Interest
The gross amount of interest paid on the notes will be taxable as ordinary
income for U.S. federal income tax purposes when received or accrued by a U.S.
Holder in accordance with such U.S. Holder's method of tax accounting. Any
Additional Amounts paid in respect of withholding taxes and any additional
interest paid as a result of a registration default in general should be taxable
in the same manner. Interest on the notes will be income from sources outside
the United States and, with certain exceptions, will be treated as "passive"
income for purposes of computing the foreign tax credit allowable under U.S.
federal income tax laws. The rules relating to foreign tax credits and the
timing thereof are extremely complex, and U.S. Holders should consult their own
tax advisers with regard to the availability of foreign tax credits and the
application of the foreign tax credit limitations to their particular
situations.
If a U.S. Holder is a cash method taxpayer, such U.S. Holder will be
required to include in income the U.S. dollar value of the interest payments
made in euro. The U.S. dollar value will be determined using the spot rate of
exchange on the date such U.S. Holder receives the payment, regardless of
whether such U.S. Holder converts the euro to U.S. dollars at that time.
If a U.S. Holder is an accrual method taxpayer, such U.S. Holder will be
required to include in income the U.S. dollar value of the interest that it must
accrue during any accrual period, determined by translating the accrued interest
at the average U.S. dollar-euro exchange rate for the accrual period (or, if the
accrual period spans two taxable years, at the average exchange rate for the
partial period within the taxable year). In addition, such U.S. Holder will
recognize U.S. source ordinary income or loss as a result of the exchange rate
fluctuations during the interest accrual periods. This income or loss will be
equal to the difference between:
o the U.S. dollar value of the payment received (determined by using the
spot rate of exchange on the date the U.S. Holder receives the
payment) in respect of the accrual period and
o the U.S. dollar value of interest income that has accrued during that
accrual period (determined as described above or pursuant to the
election described in the next paragraph).
Regardless of the U.S. Holder's general accounting method, it may elect to
translate interest income into U.S. dollars at the spot rate on the last day of
the interest accrual period (or, in the case of a partial accrual period, the
spot rate on the last day of the taxable year), or alternatively, if the date of
receipt is within five business days of the last day of the interest accrual
period, the spot rate on the date of receipt. If a U.S. Holder makes this
election, it will be required to apply it consistently to all debt instruments
that it owns at the beginning of the first taxable year to which the election
applies and to all debt instruments that it acquires afterwards. A U.S. Holder
will not be able to revoke the election without the consent of the Internal
Revenue Service.
A U.S. Holder's tax basis in any euro that it receives will be equal to
the U.S. dollar value of the euro on the day it receives them. Any gain or loss
that a U.S. Holder realizes on the sale or other disposition of the euro will
generally be U.S. source ordinary income.
38
<PAGE>
Disposition
Upon the sale, redemption or other taxable disposition of a note, a U.S.
Holder will recognize capital gain or loss equal to the difference between the
amount realized, excluding any amount attributable to accrued interest not
previously included in income, which will be taxable as ordinary interest income
as described above, and the U.S. Holder's tax basis in the notes, generally the
U.S. Holder's cost. Such gain or loss will be long term capital gain or loss if
the notes are held for more than one year. The deductibility of capital losses
is subject to certain limitations.
To the extent that gain or loss is realized on the sale, redemption or
other taxable disposition attributable to fluctuations in currency exchange
rates, the gain or loss will be treated as U.S. source ordinary income or loss.
This gain or loss will be equal to the difference between:
o the U.S. dollar value of the amount the U.S. Holder paid for the note,
determined at the spot rate on the date of the sale, redemption or
other taxable disposition, and
o the U.S. dollar value of the amount the U.S. Holder paid for the note,
determined on the date it acquired the note.
A U.S. Holder will be required to include this foreign currency gain or
loss in income only to the extent of the total gain or loss it realizes on the
sale, redemption or other taxable disposition of the note.
Any gain a U.S. Holder recognizes in excess of the foreign currency gain
or loss will generally be treated as U.S. source capital gain and loss so
recognized generally will offset income from sources in the United States. It
will be long-term capital gain or loss if the U.S. Holder's holding period for
the note was more than one year at the time of the sale, redemption or other
taxable disposition, and short-term capital gain or loss otherwise.
A U.S. Holder's tax basis in any euro that it receives on the sale or
disposition on a note will be equal to the U.S. dollar value of the euro on the
day it receives them. Any gain or loss a U.S. Holder realizes on the sale or
other disposition of the euro will generally be U.S. source ordinary income or
loss.
Information Reporting and Backup Withholding
Non-exempt U.S. Holders may be subject to information reporting with
respect to payments of interest on, and the- proceeds of the disposition of,
notes. Non-exempt U.S. Holders who are subject to information reporting and who
do not provide appropriate information when requested may be subject to backup
withholding at a 31% rate. U.S. Holders should consult their tax advisors.
Non-U.S. Holders
Interest and Disposition
In general and subject to the discussion below under "Information
Reporting and Backup Withholding," a non- U.S. Holder will not be subject to
U.S. federal income or withholding tax with respect to payments of interest on,
or gain upon the disposition of, notes, unless (i) the income or gain is "U.S.
trade or business income," which means income or gain that is effectively
connected with the conduct by the non-U.S. Holder of a trade or business, or, in
the case of a treaty resident, attributable to a permanent establishment or a
fixed base, in the United States, or (ii) such Non-U.S. Holder is an individual
who is present in the U.S. for 183 days or more in the taxable year of
disposition and certain other conditions are met. U.S. trade or business income
of a non-U.S. holder will generally be subject to regular U.S. income tax in the
same manner as if it were realized by a U.S. Holder. Non-U.S. holders that
realize U.S. trade or business income with respect to the notes should consult
their tax advisors as to the treatment of such income or gain. In addition, U.S.
trade or business income of a non-U.S. holder that is a non-U.S. corporation may
be subject to a branch profits tax at a rate of 30%, or such lower rate provided
by an applicable income tax treaty.
39
<PAGE>
Information Reporting and Backup Withholding
If the notes are held by a non-U.S. Holder through a non-U.S., and
non-U.S. related, broker or financial institution, information reporting and
backup withholding generally would not be required. Information reporting, and
possibly backup withholding, may apply if the notes are held by a non-U.S.
Holder through a U.S., or U.S. related, broker or financial institution and the
non-U.S. Holder fails to provide appropriate information. Holders should consult
their tax advisors.
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange notes for its own account
pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange notes. This document,
as it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of exchange notes or market-making
activities or other trading activities.
The Company will not receive any proceeds from any sale of exchange notes
by broker-dealers. Exchange notes received by broker-dealers for their own
account pursuant to the exchange offer may be sold from time to time in one or
more transaction in the over-the-counter market, in negotiated transactions,
through the writing of options on the exchange notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form commissions or concessions from any
such broker-dealer or the purchasers of any such exchange notes. Any
broker-dealer that resells exchange notes that were received by it for its own
account pursuant to the exchange offer and any broker or dealer that
participates in a distribution of such exchange notes may be deemed to be an
"underwriter" within the meaning of the Securities Act, and any profit on any
such resale of exchange notes and any commission or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
For a period starting on the date of this prospectus and ending on the
close of business on the earlier to occur of:
1. the date on which all exchange notes held by broker-dealers
eligible to use the prospectus to satisfy their prospectus delivery
obligations under the Securities Act have been sold and
2. the date 180 days after the consummation of the exchange offer,
the Company will make this document, as amended or supplemented, available to
any broker-dealer in connection with any such resale and will send additional
copies of this document and any amendment or supplement to this prospectus to
any broker-dealer that requests such documents.
The Company has agreed to pay all expenses incident to the exchange offer,
including the expense of one counsel for the holders of the restricted notes,
other than commissions or concession of any broker-dealers and will indemnify
the holders of the restricted notes, including any broker-dealers, against
certain liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
Certain U.S. legal matters regarding the notes and Tyco's guarantees of
the notes have been passed upon for Tyco by Davis Polk & Wardwell, New York, New
York. Certain matters under the laws of Bermuda related to the guarantees of
Tyco of the notes will be passed upon for Tyco by Appleby Spurling & Kempe,
Hamilton, Bermuda, Bermuda counsel to Tyco. Michael L. Jones, Secretary of Tyco,
is a partner of Appleby Spurling & Kempe. Certain
40
<PAGE>
matters under the laws of Luxembourg related to the notes will be passed upon by
Beghin & Feider in association with Allen & Overy, Luxembourg counsel to the
Company. Davis Polk & Wardwell has relied on Appleby Spurling & Kempe with
respect to matters of Bermuda law and on Beghin & Feider in association with
Allen & Overy with respect to matters of Luxembourg law.
EXPERTS
The consolidated financial statements and financial statement schedule of
Tyco as of September 30, 1999 and 1998, and for the years ended September 30,
1999 and 1998 and the nine months ended September 30, 1997 included in Tyco's
Annual Report on Form 10-K/A filed on June 26, 2000, and incorporated by
reference in this document, have been audited by PricewaterhouseCoopers,
independent accountants, as set forth in their report included therein. In its
report, that firm states that with respect to certain subsidiaries its opinion
is based upon the reports of other independent accountants, namely Deloitte &
Touche LLP (as it relates to the consolidated statements of operations, changes
in stockholders' equity and cash flows of United States Surgical Corporation and
its subsidiaries for the nine-month period ended September 30, 1997 and the
related financial statement schedule for the nine-month period ended September
30, 1997) and Arthur Andersen LLP (as it relates to the consolidated balance
sheet of AMP Incorporated and subsidiaries as of September 30, 1998, and the
related consolidated statements of income, shareholders' equity and cash flows
for the year ended September 30, 1998 and the nine months ended September 30,
1997). The consolidated financial statements and financial statement schedule
referred to above have been incorporated herein in reliance on said reports
given on the authority of such firms as experts in auditing and accounting.
LISTING AND GENERAL INFORMATION
1. In connection with the application to list the exchange notes on the
Luxembourg Stock Exchange, a legal notice relating to the issue of the exchange
notes and copies of the Articles of Incorporation of the Company and the
Memorandum of Association and Bye-Laws of Tyco was deposited with the Chief
Registrar of the District Court of Luxembourg ("Greffier en Chef du Tribunal
d'Arrondissement de et a Luxembourg") where such documents may be examined and
copies obtained.
2. Copies of the indenture, the registration rights agreement, the
documents listed in Item 1 above and the financial statements listed in Item 7
below are available, and copies of Tyco's most recent Annual Report to
Shareholders, Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K may be obtained free of charge, at the specified
office of the paying agent in Luxembourg, if and so long as the exchange notes
are listed on the Luxembourg Stock Exchange. Tyco does not publish
non-consolidated financial statements.
3. The issue of the exchange notes was duly authorized by the Company
pursuant to an authorization of its Board of Directors on March 16, 2000. The
issue of the guarantees was duly authorized by Tyco pursuant to an authorization
of its Board of Directors on November 3, 1999.
4. The most recently available financial statements of the Company have
been filed at the Company Registry in Luxembourg (Registre de Commerce et des
Societes) at the District Court of Luxembourg and such documents are publicly
available at such Registry and copies can be obtained at the Registry.
5. The exchange notes have been accepted for clearance through DTC (Cusip
Number: 902118 AT5) and the Euroclear System and Clearstream Luxembourg (Common
Code o). The ISIN for the exchange notes is US902118AT52. The Regulation S notes
have been accepted for clearance through the Euroclear and Clearstream,
Luxembourg systems (Common Code 010982758). The ISIN for the Regulation S notes
is XS0109827583.
41
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Bye-Law 102 of Tyco's Bye-Laws provides, in part, that Tyco shall
indemnify its directors and other officers for all costs, losses and expenses
which they may incur in the performance of their duties as director or officer,
provided that such indemnification is not otherwise prohibited under the
Companies Act 1981 (as amended) of Bermuda. Section 98 of the Companies Act 1981
(as amended) prohibits such indemnification against any liability arising out of
fraud or dishonesty of the director or officer. However, such section permits
Tyco to indemnify a director or officer against any liability incurred by him in
defending any proceedings, whether civil or criminal, in which judgment is given
in his favor or in which he is acquitted or when other similar relief is granted
to him.
Tyco maintains $100 million of insurance to reimburse the directors and
officers of Tyco and its subsidiaries, including the Company and its
subsidiaries, for charges and expenses incurred by them for wrongful acts
claimed against them by reason of their being or having been directors or
officers of Tyco or any of its subsidiaries, including the Company and its
subsidiaries. Such insurance specifically excludes reimbursement of any director
or officer for any charge or expense incurred in connection with various
designated matters, including libel or slander, illegally obtained personal
profits, profits recovered by Tyco pursuant to Section 16(b) of the Exchange Act
and deliberate dishonesty.
Item 21. Exhibits and Financial Statement Schedules
<TABLE>
Exhibit
Number Description
--------- ------------
<S> <C> <C>
3.1 -- Memorandum of Association of Tyco (as altered) (Incorporating all amendments to May 26,
1992) (previously filed as an Exhibit to Tyco's Annual Report on Form 10-K for the year
ended December 31, 1992)
3.2 -- Certificate of Incorporation on change of name of Tyco dated July 2, 1997 (previously filed as
an Exhibit to Tyco's Current Report dated July 2, 1997 on Form 8-K filed July 10, 1997)
3.3 -- Bye-Laws of Tyco (incorporating all amendments to April 1, 1999) (previously filed as
Exhibit 3.3 to the Registrant's Form S-3 (File Nos. 333-50855 and 333-50855-01 filed June 9,
1998) and Current Report dated September 10, 1999 on Form 8-K filed September 14, 1999)
3.4 -- Restated Articles of Association of the Company (previously filed as Exhibit 3.4 to the
Registrant's Form S-4 (File Nos. 333-93307 and 333-93307-1 filed June 26, 2000))
4.1 -- Indenture (previously filed as Exhibit 4.1 to the Registrants' Form S-3 (File Nos. 333-50855
and 333-50855-01))
4.2 -- Supplemental Indenture No. 13 with respect to the 6
4.3 -- Purchase Agreement, dated March 30, 2000, among the Company, Tyco as guarantor, and
Merrill Lynch International, J.P. Morgan Securities Ltd., ABN AMRO Bank N.V., Banca
d'Intermediazione Mobiliare IMI Spa, Banque Nationale de Paris, Barclays Bank PLC,
Bayerische Hypo- und Vereinsbank AG, Commerzbank Aktiengesellschaft, Credit Lyonnais,
Credit Suisse First Boston (Europe) Limited, Deutsche Bank Aktiengesellschaft, Dresdner
Bank AG London Branch, HSBC Bank plc, and Westdeutsche Landesbank Girozentrale*
4.4 -- Registration Rights Agreement, dated as of April 4, 2000, among the Company, Tyco as
guarantor, and Merrill Lynch International, J.P. Morgan Securities Ltd., ABN AMRO Bank
N.V., Banca d'Intermediazione Mobiliare IMI Spa, Banque Nationale de Paris, Barclays Bank
PLC, Bayerische Hypo- und Vereinsbank AG, Commerzbank Aktiengesellschaft, Credit
Lyonnais, Credit Suisse First Boston (Europe) Limited, Deutsche Bank Aktiengesellschaft,
Dresdner Bank AG London Branch, HSBC Bank plc, and Westdeutsche Landesbank
Girozentrale*
5.1 -- Opinion of Appleby Spurling & Kempe**
5.2 -- Opinion of Beghin & Feider in association with Allen & Overy**
II-1
<PAGE>
5.3 -- Opinion of Davis Polk & Wardwell**
12 -- Tyco International Ltd. Statement of Computation of Ratio of Earnings to Fixed Charges*
23.1 -- Consent of PricewaterhouseCoopers*
23.2 -- Consent of Deloitte & Touche LLP*
23.3 -- Consent of Arthur Andersen LLP*
24 -- Powers of Attorney*
25 -- Statement of Eligibility of Trustee on Form T-1**
99.1 -- Form of Letter of Transmittal**
99.2 -- Form of Notice of Guaranteed Delivery**
</TABLE>
-----------------------
* Filed herewith.
** To be filed by amendment.
Item 22. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the maximum aggregate offering
price may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) under the Securities Act, if in the aggregate,
the changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement.
(2) That, for purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-2
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant, pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town of Exeter,
State of New Hampshire, on the 24th day of July, 2000.
TYCO INTERNATIONAL LTD.
By /s/ MARK H. SWARTZ
-------------------------------
Mark H. Swartz
Executive Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes
and appoints L. Dennis Kozlowski and Mark H. Swartz, and each of them, his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him/her and in his/her name, place and stead, in any and all
capacities, to sign this registration statement (including all pre-effective and
post-effective amendments thereto and all registration statements filed pursuant
to Rule 462(b) which incorporate this registration statement by reference), and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he/she might or
could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on July 24, 2000
in the capacities indicated below.
Signature Title
--------- -----
/s/ L. Dennis Koslowski
---------------------------- Chairman of the Board, President,
L. Dennis Kozlowski Chief Executive Officer and
Director (Principal Executive Officer)
/s/ Michael A. Ashcroft
----------------------------
Michael A. Ashcroft Director
/s/ Joshua M. Berman
----------------------------
Joshua M. Berman Vice President and Director
/s/ Richard S. Bodman
----------------------------
Richard S. Bodman Director
II-4
<PAGE>
Signature Title
--------- -----
/s/ John F. Fort
---------------------------- Director
John F. Fort
/s/ Stephen W. Foss
---------------------------- Director
Stephen W. Foss
/s/ Philip M. Hampton
---------------------------- Director
Philip M. Hampton
/s/ Wendy E. Lane
---------------------------- Director
Wendy E. Lane
/s/ James S. Pasman, Jr.
---------------------------- Director
James S. Pasman, Jr.
/s/ W. Peter Slusser
---------------------------- Director
W. Peter Slusser
/s/ Mark H. Swartz
---------------------------- Executive Vice President and Chief
Mark H. Swartz Financial Officer (Principal
Financial and Accounting Officer)
/s/ Frank E. Walsh, Jr.
---------------------------- Director
Frank E. Walsh, Jr.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Luxembourg, on the 24th
day of July, 2000.
TYCO INTERNATIONAL GROUP S.A.
By /s/ RICHARD W. BRANN
------------------------------------------
Richard W. Brann
Managing Director
(Principal Financial and Accounting Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes
and appoints Richard W. Brann and Mark H. Swartz, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this registration statement (including all pre-effective and
post-effective amendments thereto and all registration statements filed pursuant
to Rule 462(b) which incorporate this registration statement by reference), and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on July 24, 2000
in the capacities indicated below.
/s/ RICHARD W. BRANN
-------------------------------- Managing Director
Richard W. Brann
/s/ ERIK D. LAZAR
-------------------------------- Managing Director
Erik D. Lazar
/s/ ALASTAIR MACGOWAN
-------------------------------- Director
Alastair Macgowan
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
Exhibit Description Page
--------- ----------- ---------
<S> <C> <C> <C>
3.1 -- Memorandum of Association of Tyco (as altered) (Incorporating all
amendments to May 26, 1992) (previously filed as an Exhibit to Tyco's Annual
Report on Form 10-K for the year ended December 31, 1992)
3.2 -- Certificate of Incorporation on change of name of Tyco dated July 2, 1997
(previously filed as an Exhibit to Tyco's Current Report dated July 2, 1997 on
Form 8-K filed July 10, 1997)
3.3 -- Bye-Laws of Tyco (incorporating all amendments to April 1, 1999) (previously
filed as Exhibit 3.3 to the Registrant's Form S-3 (File Nos. 333-50855 and
333-50855-01 filed June 9, 1998) and Current Report dated September 10, 1999
on Form 8-K filed September 14, 1999)
3.4 -- Restated Articles of Association of the Company (previously filed as Exhibit 3.4
to the Registrant's Form S-4 (File Nos. 333-93307 and 333-93307-1 filed June
26, 2000))
4.1 -- Indenture (previously filed as Exhibit 4.1 to the Registrants' Form S-3 (File
Nos. 333-50855 and 333-50855-01))
4.2 -- Supplemental Indenture No. 13 with respect to the 6 1/8% Notes due 2007*
4.3 -- Purchase Agreement, dated March 30, 2000, among the Company, Tyco as
guarantor, and Merrill Lynch International, J.P. Morgan Securities Ltd., ABN
AMRO Bank N.V., Banca d'Intermediazione Mobiliare IMI Spa, Banque
Nationale de Paris, Barclays Bank PLC, Bayerische Hypo- und Vereinsbank
AG, Commerzbank Aktiengesellschaft, Credit Lyonnais, Credit Suisse First
Boston (Europe) Limited, Deutsche Bank Aktiengesellschaft, Dresdner Bank
AG London Branch, HSBC Bank plc, and Westdeutsche Landesbank
Girozentrale*
4.4 -- Registration Rights Agreement, dated as of April 4, 2000, among the Company,
Tyco as guarantor, and Merrill Lynch International, J.P. Morgan Securities
Ltd.,
ABN AMRO Bank N.V., Banca d'Intermediazione Mobiliare
IMI Spa, Banque Nationale de Paris, Barclays Bank PLC,
Bayerische Hypo- und Vereinsbank AG, Commerzbank
Aktiengesellschaft, Credit Lyonnais, Credit Suisse
First Boston (Europe) Limited, Deutsche Bank
Aktiengesellschaft, Dresdner Bank AG London Branch,
HSBC Bank plc, and Westdeutsche Landesbank
Girozentrale*
5.1 -- Opinion of Appleby Spurling & Kempe**
5.2 -- Opinion of Beghin & Feider in association with Allen & Overy**
5.3 -- Opinion of Davis Polk & Wardwell**
12 -- Tyco International Ltd. Statement of Computation of Ratio of Earnings to Fixed
Charges*
23.1 -- Consent of PricewaterhouseCoopers*
23.2 -- Consent of Deloitte & Touche LLP*
23.3 -- Consent of Arthur Andersen LLP*
24 -- Powers of Attorney*
25 -- Statement of Eligibility of Trustee on Form T-1**
99.1 -- Form of Letter of Transmittal**
99.2 -- Form of Notice of Guaranteed Delivery**
</TABLE>
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* Filed herewith.
** To be filed by amendment.
II-7
