-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QnT6lhz840E+MXAq4vGmuyZ4QjZf412cwZHgZM50rytYPsIzvDMXEcusnMMBsKVK EjdUdfByiHB+Ne2pA/RArw== 0000912057-01-517471.txt : 20010627 0000912057-01-517471.hdr.sgml : 20010627 ACCESSION NUMBER: 0000912057-01-517471 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 20010524 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TYCO INTERNATIONAL LTD /BER/ CENTRAL INDEX KEY: 0000833444 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC CONNECTORS [3678] IRS NUMBER: 000000000 STATE OF INCORPORATION: D0 FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: POS AM SEC ACT: SEC FILE NUMBER: 333-57850 FILM NUMBER: 1647293 BUSINESS ADDRESS: STREET 1: 90 PITTS BAY ROAD STREET 2: THE ZURICH CENTRE SECOND FLOOR CITY: PEMROKE HM 08 BERMU STATE: D0 BUSINESS PHONE: 4412928674 MAIL ADDRESS: STREET 1: C/O TYCO INTERNATIONAL (US) INC STREET 2: ONE TYCO PARK CITY: EXETER STATE: NH ZIP: 03833 FORMER COMPANY: FORMER CONFORMED NAME: ADT LIMITED DATE OF NAME CHANGE: 19930601 POS AM 1 a2050395zposam.txt POS AM AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 24, 2001 REGISTRATION NO. 333-57850 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------------ POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-4 REGISTRATION STATEMENT ON FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ TYCO INTERNATIONAL LTD. (Exact name of Registrant as specified in its charter) BERMUDA NOT APPLICABLE (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number)
THE ZURICH CENTRE, SECOND FLOOR 90 PITTS BAY ROAD PEMBROKE HM 08, BERMUDA (441) 292-8674* (Address, including zip code, and telephone number, including area code, of Registrant's 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. ------------------------------ PLEASE SEND COPIES OF ALL COMMUNICATIONS TO: ABBE L. DIENSTAG, ESQ. FATI SADEGHI, ESQ. MEREDITH B. CROSS, ESQ. KRAMER LEVIN NAFTALIS & SENIOR CORPORATE COUNSEL WILMER, CUTLER & PICKERING FRANKEL LLP TYCO INTERNATIONAL (US) INC. 2445 M STREET, N.W. 919 THIRD AVENUE ONE TYCO PARK WASHINGTON, D.C. 20037 NEW YORK, NEW YORK 10022 EXETER, NEW HAMPSHIRE 03833 (202) 663-6000 (212) 715-9100 (603) 778-9700
------------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE. ------------------------------ If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please 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(c) 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 delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / CALCULATION OF REGISTRATION FEE: The filing fee with respect to the 7,129,342 Common Shares registered hereunder has been previously paid in connection with the Registrant's Registration Statement on Form S-4 (File No. 333-57850) (the "S-4 Registration Statement"), as more fully set forth in the introductory note to the S-4 Registration Statement. The S-4 Registration Statement was declared effective by the Commission on April 16, 2001. ------------------------------ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON ANY DATE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT FILES A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE AS DETERMINED BY THE SEC, ACTING PURSUANT TO SECTION 8(A) OF THE SECURITIES ACT OF 1933. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- INTRODUCTORY NOTE This registration statement registers common shares of Tyco International Ltd. deliverable from time to time following the consummation of the merger of The CIT Group, Inc. with and into Tyco Acquisition Corp. XIX (NV), a direct wholly-owned subsidiary of Tyco, upon the exchange of exchangeable shares issued by CIT Exchangeco Inc., an indirect subsidiary of CIT. Prior to the merger, each exchangeable share is exchangeable for one share of common stock of CIT until at least November 1, 2004, subject to earlier redemption in certain circumstances. Each exchangeable share that remains outstanding following the merger will be exchangeable for 0.6907 of a Tyco common share. See the section captioned "CIT Exchangeco Exchangeable Shares" in the proxy statement/prospectus for the merger that forms part of the S-4 Registration Statement. For purposes of the prospectus that forms part of this registration statement, the consummation of the merger with CIT has been assumed. On May 23, 2001, CIT's stockholders approved CIT's merger with Tyco's subsidiary. The merger remains subject to a number of conditions, including the receipt of regulatory clearances. i SUBJECT TO COMPLETION, DATED MAY 24, 2001 PROSPECTUS TYCO INTERNATIONAL LTD. COMMON SHARES We are offering our common shares deliverable upon exchange of the exchangeable shares of our indirect subsidiary, CIT Exchangeco Inc. On , 2001, The CIT Group, Inc. merged with and into a wholly-owned subsidiary of Tyco International Ltd. In the merger, each outstanding share of common stock of CIT was converted into 0.6907 of a Tyco common share. In addition, each outstanding exchangeable share issued by Exchangeco, an indirect subsidiary of CIT, which shares were exchangeable prior to the merger for one share of CIT common stock, became exchangeable for 0.6907 of a Tyco common share. Exchangeco issued the exchangeable shares in connection with CIT's November 1999 acquisition of Newcourt Credit Group Inc. The exchangeable shares were issued to shareholders of Newcourt who elected to receive exchangeable shares rather than shares of CIT common stock. The exchangeable shares provided an opportunity for shareholders of Newcourt who were resident in Canada to achieve Canadian tax deferral for up to five years. CIT's merger with Tyco's subsidiary had no material effect on the rights of the holders of exchangeable shares, except as necessary to reflect that following the merger such shares are functionally and economically equivalent to 0.6907 of a Tyco common share rather than one share of CIT common stock. Tyco's subsidiary has entered into agreements which provide the holders of exchangeable shares with dividend, liquidation and voting rights with respect to Tyco that are functionally and economically equivalent to the rights of holders of Tyco common shares, except that each exchangeable share is the equivalent of 0.6907 of a Tyco common share. Tyco has agreed to support its subsidiary's obligations under these agreements. Unless required otherwise by the context, the terms "Tyco", "we" and "us," as used in this prospectus, refer to Tyco and/or its subsidiary. A holder of exchangeable shares may exchange such shares at any time before the redemption of the exchangeable shares for a number of Tyco common shares equal to 0.6907 multiplied by the number of exchangeable shares to be exchanged. Cash will be paid instead of fractional Tyco common shares when an exchangeable share is exchanged. The 0.6907 of a Tyco common share and fractional share payment are sometimes referred to in this prospectus as the "exchange consideration." The exchange ratio is subject to adjustment in the event of certain changes to Tyco's common shares. On or after November 1, 2004, Exchangeco may redeem any outstanding exchangeable shares for the exchange consideration on a date selected by the Board of Directors of Exchangeco. In certain circumstances, Exchangeco has the right to redeem your exchangeable shares for the exchange consideration before November 1, 2004. We will not receive proceeds from the exchange of the exchangeable shares. We will pay all the costs and fees relating to the registration of the shares covered by this prospectus. Our common shares trade on the New York Stock Exchange and the Bermuda Stock Exchange under the symbol "TYC" and on the London Stock Exchange under the symbol "TYI". The last sale price as reported on the New York Stock Exchange of our common shares on , 2001 was $ . Unless otherwise indicated, all "dollar" or "$" references in this prospectus are to United States dollars. Holders of exchangeable shares should consider carefully the risk factors relating to the exchangeable shares beginning on page . ------------------------ Neither the United States Securities and Exchange Commission nor any state or provincial securities commission has approved the securities offered in this prospectus or determined that this prospectus is accurate or complete. Any representation to the contrary is a criminal offense. The date of this prospectus is , 2001. TABLE OF CONTENTS
PAGE -------- RISK FACTORS RELATING TO THE EXCHANGEABLE SHARES............ 3 WHERE YOU CAN FIND MORE INFORMATION......................... 4 FORWARD LOOKING STATEMENTS.................................. 5 TYCO........................................................ 6 USE OF PROCEEDS............................................. 6 PLAN OF DISTRIBUTION........................................ 7 TAX CONSEQUENCES REGARDING EXCHANGEABLE SHARES AND TYCO COMMON SHARES............................................. 13 EXPERTS..................................................... 19 LEGAL MATTERS............................................... 20
2 RISK FACTORS RELATING TO THE EXCHANGEABLE SHARES You should consider carefully the following factors, in addition to the other information contained in this prospectus, before exchanging your exchangeable shares for Tyco common shares. THE EXCHANGE OF EXCHANGEABLE SHARES FOR TYCO COMMON SHARES WILL BE A TAXABLE EVENT IN CANADA. The exchange of exchangeable shares for our common shares is generally a taxable event in Canada. Your tax consequences can vary depending on a number of factors, including your residency, the length of time that the exchangeable shares were held by you prior to an exchange and, for Canadian tax purposes, the method of the exchange (redemption or purchase). For additional information, see "Tax Consequences Regarding Exchangeable Shares and Tyco Common Shares" on page . You should consult your own tax advisor as to the tax consequences to you of exchanging your exchangeable shares for our common shares. ALTHOUGH EACH EXCHANGEABLE SHARE HAS DIVIDEND, LIQUIDATION, AND VOTING RIGHTS WITH RESPECT TO TYCO THAT ARE FUNCTIONALLY AND ECONOMICALLY EQUIVALENT TO THE RIGHTS OF 0.6907 OF A TYCO COMMON SHARE, THE MARKET PRICE OF AN EXCHANGEABLE SHARE MAY NOT BE THE SAME AS 0.6907 OF THE MARKET PRICE OF A TYCO COMMON SHARE. The exchangeable shares are listed on The Toronto Stock Exchange. Our common shares are listed on the New York, London and Bermuda Stock Exchanges. Although we believe that the market price of the exchangeable shares on The Toronto Stock Exchange and the market price of our common shares on the New York Stock Exchange and any other applicable exchanges will reflect essentially equivalent values appropriately adjusted to reflect the exchange ratio, there can be no assurances that the market price of the exchangeable shares will be identical, or even similar, to the market price of the Tyco common shares. TYCO COMMON SHARES WILL BE FOREIGN PROPERTY IN CANADA AND MAY SUBJECT SOME OTHERWISE TAX EXEMPT ENTITIES HOLDING OUR COMMON SHARES TO TAX. Our common shares will be foreign property in Canada for trusts governed by registered pension plans, registered retirement savings plans, registered retirement income funds and deferred profit sharing plans, for registered pension plans or for certain persons to whom Part XI of the Income Tax Act (Canada) is applicable. Under the Income Tax Act (Canada) Part XI, tax is generally imposed on these trusts, plans or persons where the cost amount of foreign property held by such an entity at the end of a month exceeds 30% of the cost amount of all property held by it at the end of a month. Where there is excess, tax will be imposed at the rate of 1% per month of the amount of the excess. So long as the exchangeable shares are listed on a prescribed stock exchange in Canada (including The Toronto Stock Exchange), and Exchangeco maintains a substantial Canadian presence, they will not be foreign property under the Income Tax Act (Canada) for these trusts, plans and other tax-exempt persons. 3 WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we file with the SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at the SEC's Northeast Regional Office, 7 World Trade Center, Suite 1300, New York, New York 10048. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. We file our SEC materials electronically with the SEC, so you can also review our filings by accessing the web site maintained by the SEC at http://www.sec.gov. This site contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC. Our common shares are listed on the New York Stock Exchange and reports and other information concerning us can also be inspected at the offices of the New York Stock Exchange at 20 Broad Street, New York, New York 10005. You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus. This prospectus is an offer to sell, or a solicitation of offers to buy, our common shares only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of our common shares. The SEC allows us to "incorporate by reference" the information we file with them, which means we can disclose important information to you by referring you to those documents. The information included in the following documents is incorporated by reference and is considered to be a part of this prospectus, except for any information that is superseded by information that is included in this document. The most recent information that we file with the SEC automatically updates and supersedes older information. We have previously filed the following documents with the SEC and are incorporating them by reference into this prospectus: 1. Our Annual Report on Form 10-K for the fiscal year ended September 30, 2000; 2. Our Quarterly Reports on Form 10-Q for the quarters ended December 31, 2000 and March 31, 2001; 3. Our Current Reports on Form 8-K filed on November 1, 2000, November 15, 2000, February 9, 2001, March 15, 2001, March 29, 2001, April 3, 2001 and May 24, 2001; and 4. The description of Tyco common shares as set forth in our Registration Statement on Form 8-A/A filed on March 1, 1999. We also incorporate by reference into this prospectus all reports and other documents subsequently filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until all of the securities being offered in this prospectus are sold or the offering is otherwise completed. We will provide without charge to each person who receives a prospectus, including any beneficial owner of exchangeable shares, a copy of the information that has been incorporated by reference in this prospectus. If you would like to obtain this information from us, please direct your request, either in writing or by telephone, to Tyco International Ltd., The Zurich Centre, Second Floor, 90 Pitts Bay Road, Pembroke HM 08, Bermuda, telephone (441) 292-8674. 4 FORWARD LOOKING STATEMENTS Certain statements contained or incorporated by reference in this document are "forward looking statements" within the meaning of the United States Private Securities Litigation Reform Act of 1995. All forward looking statements involve risks and uncertainties. In particular, any statement contained in this prospectus or in any document incorporated by reference in this prospectus, regarding the consummation and benefits of future acquisitions, as well as expectations with respect to future sales, earnings, cash flows, operating efficiencies, product expansion, backlog, financings and share repurchases, are subject to known and unknown risks, uncertainties and contingencies, many of which are beyond the control of 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: - the impact of fluctuations in the price of Tyco common shares; - overall economic and business conditions; - the demand for Tyco's (including CIT's) goods and services; - competitive factors in the industries in which Tyco (including CIT) competes; - changes in U.S. and non-U.S. government regulation; - changes in tax requirements (including tax rate changes, new tax laws and revised tax law interpretations); - results of litigation; - interest rate fluctuations and other capital market conditions, including foreign currency rate fluctuations; - economic and political conditions in international markets, including governmental changes and restrictions on the ability to transfer capital across borders; - the ability to achieve anticipated synergies in connection with the acquisition of CIT and other acquisitions; - the timing, impact and other uncertainties of future acquisitions by Tyco; and - the timing of construction and the successful operation of the TyCom Global Network, by Tyco's majority owned subsidiary, TyCom Ltd., Tyco's undersea cable communications business. 5 TYCO Tyco is a diversified manufacturing and service company that, through its subsidiaries: - designs, manufactures and distributes electrical and electronic components and multi-layer printed circuit boards; - designs, engineers, manufactures, installs, operates and maintains undersea cable communications systems; - designs, manufactures and distributes disposable medical supplies and other specialty products; - designs, manufactures, installs and services fire detection and suppression systems and installs, monitors and maintains electronic security systems; and - designs, manufactures and distributes flow control products and provides environmental consulting services. In addition, as a result of our acquisition of CIT, we are a leading source of financing and leasing capital for companies in more than 30 industries, including many of today's leading industries and emerging businesses, offering vendor, equipment, commercial, factoring, consumer and structured financing capabilities. CIT commenced operations in 1908 and has developed a broad array of "franchise" businesses that focus on specific industries, asset types and markets, which are balanced by client, industry and geographic diversification. Tyco operates in more than 100 countries around the world and expects revenues for its fiscal year ending September 30, 2001 to exceed $37 billion. Tyco's strategy is to be the low-cost, high quality producer and provider in each of its markets. We promote our leadership position by investing in our existing businesses, developing new markets and acquiring complementary businesses and products. Combining the strengths of our existing operations and our business acquisitions, we seek to enhance shareholder value through increased earnings per share and strong cash flows. Tyco reviews acquisition opportunities in the ordinary course of 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. 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, telephone (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. For additional information regarding the business of Tyco, please see Tyco's Form 10-K and other filings of Tyco with the SEC, which are incorporated by reference into this document. See "Where You Can Find More Information" on page . RECENT DEVELOPMENT On May 17, 2001, Tyco announced that it had entered into a definitive agreement with Cambridge Protection Industries, L.L.C., a portfolio company of GTCR Golder Rauner, L.L.C., to acquire for cash its electronic security systems businesses, which includes SecurityLink, and provides services to approximately one million residential, commercial and government customers. The transaction is valued at approximately $1 billion and is subject to customary regulatory review. The businesses will be integrated within Tyco's Fire and Security Services segment and the transaction will be accounted for as a purchase. USE OF PROCEEDS We will not receive any cash proceeds when you exchange exchangeable shares for our common shares. 6 PLAN OF DISTRIBUTION GENERAL Our common shares may be delivered to you as follows: - you may require at any time that your exchangeable shares be exchanged for the exchange consideration; - Exchangeco may redeem the outstanding exchangeable shares on or after November 1, 2004, on a date selected by the Board of Directors of Exchangeco, for the exchange consideration; - Exchangeco may require an early redemption of your exchangeable shares for the exchange consideration upon the occurrence of certain events as more fully described below in "Early Redemption" on page ; and - upon liquidation of Tyco or Exchangeco, you may be required to, or may elect to, exchange your exchangeable shares for the exchange consideration. Exchangeco is a company limited by shares formed under the laws of the Province of Nova Scotia and a subsidiary of 3026192 Nova Scotia Company, an unlimited company under the laws of the Province of Nova Scotia, referred to in this prospectus as Newco. Newco is an indirect subsidiary of Tyco. We have not engaged any broker, dealer or underwriter in connection with this offering of our common shares. The following is a summary that highlights some of the rights, privileges, restrictions and conditions relating to the terms on which Tyco common shares may be delivered to you in exchange for your exchangeable shares. The specific provisions governing the exchangeable shares are set forth in the Plan of Arrangement, including the Exchangeable Share Provisions, the Voting and Exchange Trust Agreement, the Supplemental Voting and Exchange Trust Agreement, and the Tyco VE Agreement, each of which is included as an exhibit to the registration statement of which this prospectus is a part. You should read these documents, as well as the Exchangeable Share Support Agreement, the Supplemental Exchangeable Share Support Agreement and the Tyco Support Agreement, for a more complete understanding of the exchangeable shares. Unless required otherwise by the context, the terms "Voting and Exchange Trust Agreement" and "Exchangeable Share Support Agreement" as used in this prospectus refer to those agreements as supplemented. ELECTION BY HOLDERS TO EXCHANGE As a holder of exchangeable shares, you have the right at any time to retract (that is, to require Exchangeco to redeem) any or all of the exchangeable shares you hold. If you decide to retract your exchangeable shares, you will receive 0.6907 of a Tyco common share for each exchangeable share. Fractional Tyco common shares will not be issued and you will receive cash in lieu of any fractional common shares to which you may be entitled. You may elect to retract your exchangeable shares by presenting to Exchangeco or its transfer agent: - a certificate or certificates representing the number of exchangeable shares to be retracted; - a written notice of retraction, the form of which you may obtain from Exchangeco or its transfer agent, specifying the number of exchangeable shares you want to retract and the retraction date; and - such other documents as Exchangeco or its transfer agent may require to effect the retraction of the exchangeable shares. 7 The retraction date is the date you indicate in your notice of retraction that you want the retraction to occur. The date you indicate may not be less than 10 nor more than 15 business days after Exchangeco receives your notice of retraction. The address to which you should send your exchangeable shares, notice of retraction and other documents is listed under "Delivery of Our Common Shares" on page . Exchangeco must immediately notify Newco of the receipt of any notice of retraction because Newco has an overriding "retraction call right" to purchase all of the exchangeable shares specified in any notice of retraction for the exchange consideration. Newco will advise Exchangeco within five business days of Newco's receipt of the notice of retraction whether Newco will exercise the retraction call right. Exchangeco will advise you if Newco does not exercise its retraction call right. Unless otherwise requested by you in writing, you will not receive a physical certificate representing your Tyco common shares and the Tyco common shares will be delivered to you under Tyco's Direct Registration System (DRS). You will receive a statement confirming the crediting of the shares to your book-entry account. This system offers a number of benefits for shareholders, including safekeeping and sales features. You may request a physical certificate for your shares at any time. The brochure that will accompany your first DRS statement describes how to obtain a physical certificate. Exchangeco or its transfer agent or Newco, if Newco exercises its retraction call right, will deliver to you at the address recorded in the securities register of Exchangeco or the address you specify in the form of notice of retraction, or hold for pick-up by you at the registered office of Exchangeco or at the office of its transfer agent, your DRS statement or certificates representing your Tyco common shares. You may revoke your notice of retraction at any time prior to the close of business on the business day preceding the retraction date. If you revoke your notice of retraction, your exchangeable shares will not be purchased by Newco or redeemed by Exchangeco. If you do not revoke your notice of retraction, each exchangeable share that you requested Exchangeco to redeem will be, as described above, either: - acquired by Newco if it exercises its retraction call right; or - redeemed by Exchangeco. Exchangeco will not be required to redeem exchangeable shares if the redemption would be contrary to solvency requirements or other provisions of applicable law. In that event, your notice of retraction will be deemed to give notice to Montreal Trust Company of Canada, the trustee under the Voting and Exchange Trust Agreement, to exercise the exchange right and require us to purchase each exchangeable share covered by your notice of retraction, but not redeemed by Exchangeco, for the exchange consideration, provided that Newco does not exercise its retraction call right and the notice of retraction is not revoked. If you do give a notice of retraction, you will continue to be entitled to receive from Exchangeco, on the designated payment date, any declared but unpaid dividends on the exchangeable shares which are the subject of the notice of retraction and which shares were held by you on any dividend record date which occurs prior to the retraction date. If and to the extent the dividend is not paid by Exchangeco on the designated payment date, such dividend in respect of any shares purchased by Newco or redeemed by Exchangeco (as discussed above in this section) will be paid on such date by Newco (if purchased by Newco) or us (if redeemed by Exchangeco), as the case may be, for and on behalf of Exchangeco. REDEMPTION OF EXCHANGEABLE SHARES On or after November 1, 2004, on a date selected by the Board of Directors of Exchangeco, Exchangeco may redeem all, but not less than all, of the then outstanding exchangeable shares by 8 delivering, for each exchangeable share, the exchange consideration. Exchangeco will, at least 60 days prior to the redemption date, provide the registered holders of the exchangeable shares with written notice of the proposed redemption of the exchangeable shares. This redemption is subject to applicable law and to Newco's redemption call right described below. Notwithstanding any proposed redemption of the exchangeable shares, Newco has an overriding redemption call right to purchase, on the redemption date, all but not less than all of the exchangeable shares then outstanding (other than exchangeable shares held by us or our affiliates or subsidiaries). Newco may exercise its redemption call right by notifying Exchangeco and the transfer agent for the exchangeable shares of its intention to exercise such right at least 60 days prior to the redemption date. The transfer agent will notify you whether or not Newco will exercise its redemption call right. If Newco exercises its redemption call right, you will be obligated to sell your exchangeable shares to Newco. Newco will deliver to the transfer agent for payment to you on the redemption date, for each exchangeable share, the exchange consideration. On the redemption date, you will continue to be entitled to receive from Exchangeco, on the designated payment date, any declared but unpaid dividends on such exchangeable shares held by you on any dividend record date which occurred prior to the redemption date. If and to the extent the dividend is not paid by Exchangeco on the designated payment date, such dividend in respect of shares purchased by Newco will be paid on such date by Newco for and on behalf of Exchangeco. EARLY REDEMPTION Exchangeco has the right to redeem your exchangeable shares for the exchange consideration before November 1, 2004 if any of the following occurs: 1. there are fewer than 1,000,000 exchangeable shares outstanding, other than exchangeable shares held by us and our affiliates; 2. there is a merger, tender offer or material sale of shares or similar transaction involving us or any proposal to do so and the Board of Directors of Exchangeco determines, in good faith and in its sole discretion, that it is not reasonably practicable substantially to replicate the terms and conditions of the exchangeable shares and it is necessary to redeem all of the shares to complete the transaction; 3. there is a proposal in which holders of exchangeable shares are entitled to vote as shareholders of Exchangeco (for example, to approve an amalgamation involving Exchangeco) and the Board of Directors of Exchangeco determines, in good faith and in its sole discretion, that it is not reasonably practicable to accomplish the business purpose intended by the proposal in any other commercially reasonable manner; or 4. holders of exchangeable shares fail to take the necessary action on any matter on which they are entitled to vote as shareholders of Exchangeco to approve or disapprove any change in the rights of the holders of the exchangeable shares where the approval or disapproval would be required to maintain the equivalence of the exchangeable shares with our common shares, as adjusted to reflect the exchange ratio. The notice, Newco redemption call right and dividend provisions described under "Redemption of Exchangeable Shares" above apply to an early redemption as well, except that in the case of 2, 3 and 4 above, the 60 day notice periods do not apply and such notices by Exchangeco or Newco, as the case may be, must be delivered upon such number of days' notice as the Board of Directors of Exchangeco determines to be reasonably practicable under the circumstances. 9 LIQUIDATION RIGHTS EXCHANGECO'S LIQUIDATION If Exchangeco liquidates, dissolves, winds-up or otherwise distributes its assets among its shareholders for purposes of winding up its affairs, you will receive from Exchangeco, for each exchangeable share, a liquidation payment equal to the exchange consideration. The liquidation payment will be paid to you as a holder of exchangeable shares before payment is made to any holder of any class of stock ranking junior to the exchangeable shares. The payment of the liquidation payment is subject to applicable law and to Newco's liquidation call right described below. Newco may exercise its liquidation call right by notifying Exchangeco and the transfer agent for the exchangeable shares of its intention to exercise such right at least 45 days prior to the date of Exchangeco's voluntary liquidation, dissolution or winding-up and at least five business days prior to Exchangeco's involuntary liquidation, dissolution or winding-up. The transfer agent will notify you whether or not Newco exercises its liquidation call right. If Newco exercises its liquidation call right, Newco will deliver to the transfer agent for payment to you the exchange consideration for each exchangeable share. If there is an Exchangeco insolvency event, as a holder of exchangeable shares, you may instruct Montreal Trust Company of Canada, the trustee under the Voting and Exchange Trust Agreement, to exercise the exchange right and require us to purchase any or all of your exchangeable shares for the liquidation payment. An Exchangeco insolvency event means: - Exchangeco institutes a proceeding to be adjudicated a bankrupt or insolvent or to be wound up, or Exchangeco consents to the institution of bankruptcy, insolvency or winding-up proceedings against it; - a petition, answer or consent seeking dissolution or winding-up of Exchangeco is filed under any bankruptcy, insolvency or analogous laws, and Exchangeco fails to contest in good faith such proceedings commenced in respect of Exchangeco within 30 days of Exchangeco becoming aware of such proceeding, or Exchangeco consents to the filing of any such petition; - a receiver is appointed for Exchangeco, or Exchangeco makes a general assignment for the benefit of creditors, or Exchangeco admits in writing its inability to pay its debts generally as they become due; or - Exchangeco is not permitted pursuant to the solvency requirements of applicable law to retract any exchangeable shares. Upon notice from the trustee of the exercise of the exchange right, we will deliver to the trustee for payment to you the exchange consideration for each outstanding exchangeable share. Upon the liquidation, dissolution or winding-up of Exchangeco or if there is an Exchangeco insolvency event, you will continue to be entitled to receive from Exchangeco, on the designated payment date, any declared but unpaid dividends on such exchangeable shares held by you on any dividend record date which occurred prior to the purchase of such exchangeable shares by Newco under its liquidation call right or by us by virtue of the exchange right. If and to the extent the dividend is not paid by Exchangeco on the designated payment date, such dividend in respect of shares purchased by Newco (by virtue of the liquidation call right) or by us (pursuant to the exchange right) will be paid on such date by Newco or us, as the case may be, for and on behalf of Exchangeco. 10 TYCO'S LIQUIDATION If there is a Tyco insolvency event, in order for you to participate on an equal basis with the holders of Tyco common shares, each outstanding exchangeable share will be automatically exchanged for the exchange consideration. A Tyco insolvency event means: - Tyco's Board of Directors decides to institute voluntary liquidation, dissolution, or winding-up proceedings, or to effect any other distribution of Tyco's assets among our shareholders for the purpose of winding up our affairs; or - our receipt of notice of, or our otherwise becoming aware of, any threatened or instituted claim, suit or other proceedings with respect to our involuntary liquidation, dissolution or winding-up or to effect any other distribution of our assets among our shareholders for the purpose of winding up our affairs. To effect the automatic exchange of exchangeable shares for our common shares, we will be deemed to have purchased each exchangeable share outstanding on the fifth business day prior to the time of the Tyco insolvency event. If there is an automatic exchange of the exchangeable shares for Tyco common shares, you will continue to be entitled to receive from Exchangeco, on the designated payment date, any declared but unpaid dividends on such exchangeable shares held by you on any dividend record date which occurred prior to the purchase by us (under the automatic exchange right). If and to the extent the dividend is not paid by Exchangeco on the designated payment date, such dividend in respect of shares purchased by us (under the automatic exchange right) will be paid on such date by us for and on behalf of Exchangeco. EXCHANGEABLE SHARE SUPPORT AGREEMENT The Exchangeable Share Support Agreement, as supplemented, provides, among other things, that the subsidiary of Tyco into which CIT is merged will take all actions and do all things reasonably necessary or desirable to enable and permit Exchangeco, in accordance with applicable law, to pay the liquidation payment, the retraction price or the redemption price to holders of exchangeable shares as set out above. In a separate support agreement, Tyco has agreed to support its subsidiary's obligations under the Exchangeable Share Support Agreement, as supplemented. The forms of the Exchangeable Share Support Agreement, the Supplemental Exchangeable Share Support Agreement with Tyco's subsidiary, and the Tyco Support Agreement are included as exhibits to the Registration Statement of which this prospectus constitutes a part. Any description of these documents included in this prospectus is qualified in its entirety by reference thereto. DELIVERY OF OUR COMMON SHARES To retract your exchangeable shares, follow the instructions listed under "Election by Holders to Exchange" on page . As described above, you may also receive our common shares plus any additional cash amount payable if or when: - Exchangeco redeems or Newco exercises its redemption call right to acquire all of the outstanding exchangeable shares on the redemption date; - Exchangeco liquidates or Newco exercises its liquidation call right; or - Tyco liquidates. 11 To receive Tyco common shares and any additional cash amount payable in the above listed circumstances, you must present to Exchangeco or its transfer agent, Montreal Trust Company of Canada: - a certificate or certificates representing the number of exchangeable shares to be exchanged; and - such other documents as Exchangeco or its transfer agent may require to effect the transfer of your exchangeable shares. A DRS statement or certificates representing our common shares plus, where applicable, a cash amount equal to any fractional Tyco common share payment and/or any declared and unpaid dividends to which you may be entitled will be delivered to you by mailing to you at the address recorded in the securities register of Exchangeco or by holding the DRS statement or certificates representing our common shares and a check for any applicable cash payment for pick-up by you at the registered office of Exchangeco or the office of its transfer agent. If you instruct the trustee under the Voting and Exchange Trust Agreement to exercise the trustee's exchange right, in addition to the certificates and other documents described above, you must also present to Montreal Trust Company of Canada, as trustee, a notice of exercise of the exchange right in the form contained on the reverse side of the exchangeable share certificates. The address to which you should mail your certificates and other documents is: Montreal Trust Company of Canada, 100 University Avenue, Toronto, Ontario M5J 2I1. The address to which you should hand deliver, or send by messenger, your certificates and other documents is: Montreal Trust Company of Canada, 100 University Avenue, Ninth Floor, Toronto, Ontario, M5J 2I1. 12 TAX CONSEQUENCES REGARDING EXCHANGEABLE SHARES AND TYCO COMMON SHARES CANADIAN FEDERAL INCOME TAX CONSEQUENCES The following summary sets forth the opinion of our Canadian counsel, McMillan Binch, of the material Canadian federal income tax consequences generally applicable under the Income Tax Act (Canada) to holders of exchangeable shares who acquire our common shares upon the exchange of exchangeable shares. The following summary is generally applicable to you if, under Canadian federal income tax law: - you acquire our common shares upon the exchange of your exchangeable shares; - for purposes of the Income Tax Act (Canada), you hold your exchangeable shares and will hold our common shares as capital property and you deal at arm's length with us, Exchangeco and Newco; and - you are not affiliated with us, Exchangeco or Newco. This summary does not apply to you if we are or will be at any time a "foreign affiliate" of you within the meaning of the Income Tax Act (Canada). The exchangeable shares and our common shares will generally be considered to be capital property to you unless they are held in the course of carrying on a business, in an adventure or concern in the nature of trade or as "mark-to-market" property for purposes of the Income Tax Act (Canada). If you are a holder of exchangeable shares to whom exchangeable shares or our common shares are not capital property, you should consult your own tax advisors regarding your particular circumstances including, in the case of certain "financial institutions" (as defined in the Income Tax Act (Canada)), the potential application to you of the "mark-to-market" rules in the Income Tax Act (Canada), as the following discussion does not apply to you. This summary is based on the Income Tax Act (Canada), the regulations thereunder and our counsel's understanding of the administrative policies and practices published by the Canada Customs and Revenue Agency, all in effect as of the date of this prospectus. This summary takes into account proposed amendments to the Income Tax Act (Canada) and the regulations thereunder publicly announced by the Minister of Finance prior to the date of this prospectus and assumes, except where specifically indicated, that all such proposed amendments will be enacted in their present form. However, we cannot assure you that the proposed amendments will be enacted in the form proposed or at all. This summary does not take into account or anticipate any other changes in law, administrative policy or assessing practice, whether by judicial, governmental or legislative action or decision, nor does it take into account provincial, territorial or foreign income tax legislation or considerations, which may differ from the Canadian federal income tax considerations described herein. No assurances can be given to you that subsequent changes in law or administrative policy will not affect or modify the opinions expressed herein. No advance income tax ruling has been sought or obtained from the Canada Customs and Revenue Agency to confirm the tax consequences of any of the transactions described herein. This summary is of a general nature only and is not intended to be, and should not be construed as, legal, business, or tax advice to any particular shareholder. You should consult your own tax advisors for advice with respect to your particular circumstances. For the purposes of the Income Tax Act (Canada), all amounts must be expressed in Canadian dollars, including dividends, adjusted cost base and proceeds of disposition; amounts denominated in a foreign currency must be converted into Canadian dollars based on the exchange rate for such currency generally prevailing at the time such amounts arise. 13 HOLDERS OF EXCHANGEABLE SHARES RESIDENT IN CANADA The following portion of the summary is applicable to you if you are, and will continue to be, a resident or deemed resident of Canada for purposes of the Income Tax Act (Canada) at all times while you hold exchangeable shares or our common shares. DIVIDENDS DIVIDENDS ON EXCHANGEABLE SHARES. Individuals will be required to include dividends received or deemed to be received on the exchangeable shares in computing income, subject to the gross-up and dividend tax credit rules normally applicable to taxable dividends received from taxable Canadian corporations. Subject to the discussion below as to the denial of the dividend deduction, holders of exchangeable shares that are corporations will be required to include dividends received or deemed to be received on the exchangeable shares in computing income and such dividends will normally be deductible in computing taxable income. We are a "specified financial institution" for purposes of the Income Tax Act (Canada), as defined below. Where we are (or any person with whom we do not deal at arm's length is) a "specified financial institution" at or immediately before the time a dividend is paid or deemed to be paid, the dividend deduction for a corporation will generally not apply unless at the time the dividend is received (or deemed to be received): - the exchangeable shares are listed on a "prescribed stock exchange" (which currently includes The Toronto Stock Exchange); - we are related to Exchangeco and Newco; and - the recipient of the dividend (together with persons with whom the recipient does not deal at arm's length or any partnership or trust of which the recipient or person is a member or beneficiary, respectively) does not receive dividends in respect of more than ten percent of the issued and outstanding exchangeable shares. If you are a specified financial institution for the purposes of the Income Tax Act (Canada), a dividend received or deemed to be received on the exchangeable shares will be deductible in computing your taxable income only if either: - you did not acquire the exchangeable shares in the ordinary course of the business carried on by you within the meaning of the Income Tax Act (Canada); or - at the time you receive or are deemed to receive the dividend, the exchangeable shares are listed on a prescribed stock exchange in Canada (which currently includes The Toronto Stock Exchange) and you, either alone or together with persons with whom you do not deal at arm's length, do not receive (and are not deemed to receive) dividends in respect of more than ten percent of the issued and outstanding exchangeable shares either directly, through a partnership or (in certain cases) through a trust. A corporation is a "specified financial institution" for purposes of the Income Tax Act (Canada) if it is: (a) a bank, a trust company, a credit union, or an insurance corporation; (b) a corporation whose principal business is the lending of money to persons with whom the corporation is dealing at arm's length or the purchasing of debt obligations issued by such persons or a combination thereof, or a corporation prescribed to be a financial institution for purposes of Part I.3 of the Income Tax Act (Canada); or (c) a corporation controlled by one or more such entities. 14 A corporation is also a specified financial institution if it is related to one of the above entities (other than a corporation described in (b) above the principal business of which is the factoring of trade accounts receivable that (1) the particular corporation acquired from a related person, (2) arose in the course of an active business carried on by a person (the "first person") related at that time to the particular corporation, and (3) at no particular time before that time were held by a person other than a person who was related to the first person). Specified financial institutions should consult their own tax advisors. If you are a "private corporation" (as defined in the Income Tax Act (Canada)) or any other corporation resident in Canada and controlled or deemed to be controlled by or for the benefit of an individual (other than a trust) or a related group of individuals (other than trusts), you will generally be liable under Part IV of the Income Tax Act (Canada) to pay a refundable tax of 33 1/3% on dividends received or deemed to be received on the exchangeable shares to the extent that such dividends are deductible in computing your taxable income. If you are a "Canadian-controlled private corporation" (as defined in the Income Tax Act (Canada)), you may be liable to pay an additional refundable tax of 6 2/3% on dividends or deemed dividends that are not deductible in computing your taxable income. The exchangeable shares will be "taxable preferred shares" and "short-term preferred shares" for purposes of the Income Tax Act (Canada). Dividends received or deemed to be received on the exchangeable shares will not be subject to the 10% tax under Part IV.1 of the Income Tax Act (Canada). However, Exchangeco will generally be subject to a 66 2/3% tax under Part VI.1 of the Income Tax Act (Canada) on dividends paid or deemed to be paid on the exchangeable shares and will be entitled to deduct 9/4 of the tax so payable in computing its taxable income under Part I of the Income Tax Act (Canada). DIVIDENDS ON OUR COMMON SHARES. If you receive dividends on our common shares, you must include them in your income for the purposes of the Income Tax Act (Canada). Such dividends received by you as an individual will not be subject to the gross-up and dividend tax credit rules in the Income Tax Act (Canada). If you hold our common shares and you are a corporation, you must include such dividends in computing your income and generally you will not be entitled to deduct the amount of such dividends in computing your taxable income. If you hold our common shares and you are a Canadian-controlled private corporation, you may be liable to pay an additional refundable tax of 6 2/3% on such dividends. REDEMPTION OR EXCHANGE OF EXCHANGEABLE SHARES If Exchangeco redeems an exchangeable share (including on a retraction) (as opposed to Newco purchasing such share as discussed below), you will be deemed to have received a dividend equal to the amount, if any, by which the redemption proceeds (the fair market value at that time of the exchange consideration received from Exchangeco) exceeds the paid-up capital of the exchangeable share (as determined for purposes of the Income Tax Act (Canada)) at the time of the redemption of the exchangeable share. The tax treatment of any such deemed dividend to you will be as discussed above under "Dividends on Exchangeable Shares", except that the non-deductibility of such dividend to a corporation that is a specified financial institution may be limited under subsection 191(4) of the Income Tax Act (Canada). If you are or will be a specified financial institution at the time of redemption of your exchangeable shares, you should consult with your tax advisors for advice with respect to the application of subsection 191(4) of the Income Tax Act (Canada). 15 On the redemption (including a retraction) of exchangeable shares, you will generally be considered to have disposed of the exchangeable shares for proceeds of disposition equal to the redemption proceeds less the amount of such deemed dividend. You will in general realize a capital gain (or a capital loss) equal to the amount by which the adjusted cost base to you is less than (or exceeds) such proceeds of disposition. The general tax treatment of capital gains and capital losses is discussed below under the heading "Taxation of Capital Gain or Capital Loss." If you are a corporation, in some circumstances the amount of any such deemed dividend may be treated as proceeds of disposition and not as a dividend. If an exchangeable share is purchased by Newco or by us pursuant to the exchange rights, as discussed above under "Plan of Distribution", you will in general realize a capital gain (or a capital loss) to the extent that the proceeds of disposition of the exchangeable share, net of any reasonable costs of disposition, exceed (or are less than) the adjusted cost base to you. For these purposes, the proceeds of disposition will be the aggregate of the fair market value, at the time of the exchange, of the exchange consideration received from Newco (or us) on the purchase. See "Taxation of Capital Gain or Capital Loss" below. Because of the existence of Newco's call rights and the exchange rights, as discussed above under "Plan of Distribution", you cannot control whether you will receive the exchange consideration by way of redemption (or retraction) of the exchangeable shares by Exchangeco or by way of purchase of the exchangeable shares by Newco or us. As described above, the Canadian federal income tax consequences of a redemption differ from those of a purchase. ACQUISITION AND DISPOSITION OF OUR COMMON SHARES The cost of Tyco common shares received by you on the retraction, redemption or exchange of exchangeable shares will be equal to the fair market value of such common shares at the time of such event, which amount will generally be averaged with the adjusted cost base of any other Tyco common shares held at that time by you as capital property. A disposition or deemed disposition of Tyco common shares by you will generally result in a capital gain (or capital loss) to the extent that the proceeds of disposition, net of any reasonable costs of disposition, exceed (or are less than) the adjusted cost base to you of our common shares immediately before the disposition. TAXATION OF CAPITAL GAIN OR CAPITAL LOSS One-half of any capital gain (the "taxable capital gain") you realize will be included in your income for the year of disposition. One-half of any capital loss you realize (the "allowable capital loss") may be deducted by you against taxable capital gains for the year of disposition. You may carry back up to three taxation years or forward indefinitely any excess of allowable capital losses over taxable capital gains for the year of disposition and deduct it against net taxable capital gains in those other years to the extent and subject to the limitations prescribed in the Income Tax Act (Canada). Capital gains realized by an individual or trust, other than certain trusts, may give rise to alternative minimum tax under the Income Tax Act (Canada). If you are a Canadian-controlled private corporation, you may be liable to pay an additional refundable tax of 6 2/3% on taxable capital gains. If you are a corporation, the amount of any capital loss arising on a disposition or deemed disposition of any exchangeable share may be reduced by the amount of dividends received or deemed to have been received by you on such exchangeable share to the extent and under circumstances prescribed by the Income Tax Act (Canada). Similar rules may apply where a corporation is a member of a partnership or a beneficiary of a trust that owns exchangeable shares or where a trust or 16 partnership of which a corporation is a beneficiary or a member is a member of a partnership or a beneficiary of a trust that owns any shares. QUALIFIED INVESTMENTS AND FOREIGN PROPERTY Provided the exchangeable shares are listed at all times on a prescribed stock exchange (which includes The Toronto Stock Exchange), the exchangeable shares will be "qualified investments" under the Income Tax Act (Canada), for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans and registered education savings plans under the Income Tax Act (Canada). Provided our common shares are listed on a prescribed stock exchange (which includes the New York Stock Exchange), Tyco common shares will be qualified investments under the Income Tax Act (Canada) for such plans. The acquisition of non-qualified investments by such plans can result in taxes being imposed on either the plan or the annuitant thereunder (depending on the type of plan), which tax is based on the fair market value of the non-qualified investment at the time of its acquisition. In the case of a registered education saving plan, the acquisition of a non-qualified investment may also permit the Minister of National Revenue to seek to revoke the registration of the plan. Based on the conclusion below with respect to the qualified investment status of your right under the Voting and Exchange Trust Agreement to direct the voting of the Special Voting Preference Share and your rights to require us to purchase all of the outstanding exchangeable shares in the event of either the liquidation, dissolution or winding-up of Exchangeco, exchangeable shares are not suitable investments for trusts governed by registered education savings plans. Also, provided the exchangeable shares are listed on a prescribed stock exchange in Canada (which currently includes The Toronto Stock Exchange) and Exchangeco maintains a substantial Canadian presence, the exchangeable shares will not be foreign property under the Income Tax Act (Canada), for trusts governed by registered retirement savings plans, registered retirement income funds and deferred profit sharing plans, for registered pension plans or for certain other persons to whom Part XI of the Income Tax Act is applicable. Our common shares will be foreign property for such plans or persons. Where at the end of any month such an entity as described above in this paragraph holds foreign property and the total cost amount of all such property exceeds 30% of the total cost amount of all property held by it, then a monthly tax of 1% is imposed on such excess amount. Your right under the Voting and Exchange Trust Agreement to direct the voting of the Special Voting Preference Share and your rights to require us to purchase all of the outstanding exchangeable shares in the event of either the liquidation, dissolution or winding-up of Exchangeco or us will not be qualified investments and will constitute foreign property. FOREIGN PROPERTY INFORMATION REPORTING If you are a "specified Canadian entity" for a taxation year or a fiscal period and your total cost amount of "specified foreign property" (which includes the exchangeable shares, your right under the Voting and Exchange Trust Agreement to direct the voting of the Special Voting Preference Share, your rights to require us to purchase all of the outstanding exchangeable shares in the event of either the liquidation, dissolution or winding-up of Exchangeco or us, and our common shares) at any time in the year or fiscal period exceeds C$100,000, you will be required to file an information return in respect of such property which will include disclosing certain information regarding particulars of your investment in such property. A specified Canadian entity means a taxpayer resident in Canada in the year, other than a corporation or a trust exempt from tax under Part I of the Income Tax Act (Canada), a mutual fund corporation, a mutual fund trust and certain other entities. Holders of such specified foreign property should consult their tax advisors. 17 FOREIGN INVESTMENT ENTITY RULES On June 22, 2000, the Minister of Finance introduced draft legislation (the "proposed rules") relating to the income tax treatment of investments by Canadian residents in foreign investment entities ("FIEs"). If the proposed rules are enacted in the form contained in the draft legislation, holders of exchangeable shares or our common shares will be subject to special anti-deferral rules in each taxation year that begins after 2001, if we are a FIE at the end of our last taxation year ended at or before the end of the relevant taxation year. Under these rules, a holder of exchangeable shares or our common shares would be generally required to include (or deduct) in computing income the increase (or decrease) in the value of the subject shares on an annual basis and the full amount any gain realized on the disposition of such shares in the year of the disposition. In simplified terms, a foreign corporation like us will be a FIE within the meaning of the proposed rules at the end of a taxation year if, at that time, the "carrying value" of our "investment property" represents more than 50% of the "carrying value" of all our property. The draft legislation has not been tabled in the House of Commons and its release was accompanied by an invitation from the Minister of Finance for comments from interested parties. It is impossible, therefore, to predict whether the proposed rules will be enacted in the form contained in the draft legislation or what changes to the proposed rules might be made before they are enacted. In light of the present uncertainty with respect to the final form of the proposed rules and our status thereunder, there is a risk that holders of exchangeable shares and our common shares may be subjected to the consequences described in the preceding paragraph with respect to taxation years of such holders beginning after 2001. HOLDERS OF EXCHANGEABLE SHARES NOT RESIDENT IN CANADA This summary applies to you if: - for purposes of the Income Tax Act (Canada), you have not been and will not be resident or deemed to be resident in Canada at any time while you hold or have held the common shares of Newcourt, the exchangeable shares or our common shares; - your shares are not "taxable Canadian property" (as defined in the Income Tax Act (Canada)); and - you do not use or hold and are not deemed to use or hold such shares in connection with carrying on a business in Canada. This summary is not applicable to any non-resident of Canada which carries on an insurance business in Canada and elsewhere, in respect of the exchangeable shares or our common shares that are effectively connected with the non-resident's Canadian insurance business or that are "designated insurance property" as defined in the Income Tax Act (Canada). Generally, the exchangeable shares and our common shares will not be taxable Canadian property if: - you do not use or hold, and you are not deemed to use or hold, such shares in connection with carrying on a business in Canada; and furthermore, - in the case of the exchangeable shares, (1) such shares are listed on a prescribed stock exchange (which currently includes The Toronto Stock Exchange); and (2) you, persons with whom you do not deal at arm's length or you and such persons, have not owned (taking into account any interest in or option in respect of the shares) 25% or more of the issued shares of any class or series of the capital stock of Exchangeco at any time within five years preceding the date of disposition. 18 If you meet the above conditions, you will not be subject to tax under the Income Tax Act (Canada) on the exchange of exchangeable shares for the exchange consideration, except to the extent the exchange results in a redemption (including on a retraction) of an exchangeable share, or on the sale or other disposition of our common shares. If your exchangeable share is redeemed (including on a retraction) by Exchangeco (as opposed to such share being purchased by Newco or us, as discussed above), you will be deemed to receive a dividend as described above for holders of exchangeable shares resident in Canada under the heading "Redemption or Exchange of Exchangeable Shares." The amount of such deemed dividend will be subject to the tax treatment accorded to dividends described below. Dividends paid or deemed to be paid on the exchangeable shares are subject to non-resident withholding tax under the Income Tax Act (Canada) at the rate of 25%, although such rate may be reduced under the provisions of an applicable income tax convention. Under the Canada-United States Income Tax Convention effective August 16, 1984, as amended, the rate is generally reduced to 15% in respect of dividends paid to a person who is the beneficial owner of such shares and who is a resident in the United States for purposes of the said Income Tax Convention. BERMUDA TAX CONSEQUENCES In the opinion of our Bermuda counsel, Appleby Spurling & Kempe, there will be no Bermuda income, corporation or profits tax, withholding tax, capital gains tax, capital transfer tax, estate duty or inheritance tax payable in respect of the delivery of our common shares to holders of exchangeable shares on the exchange of exchangeable shares pursuant to their terms. In addition, as of the date hereof, there is no Bermuda income, corporation or profits tax, withholding tax, capital gains tax, capital transfer tax, estate duty or inheritance tax payable in respect of capital gains realized on a disposition of Tyco common shares or in respect of distributions by us with respect to Tyco common shares. Furthermore, we have received from the Minister of Finance of Bermuda under the Exempted Undertakings Tax Protection Act of 1966 an undertaking that, in the event of there being enacted in Bermuda any legislation imposing any tax computed on profits or income, including any dividend or capital gains withholding tax, or computed on any capital assets, gain or appreciation or any tax in the nature of an estate or inheritance tax or duty, the imposition of such tax shall not be applicable to Tyco nor to any of our operations, our common shares or our obligations until the year 2016. This undertaking applies to our common shares. It does not, however, prevent the application of Bermuda taxes to persons ordinarily resident in Bermuda. The foregoing discussion is intended only as a summary and does not purport to be a complete analysis or listing of all potential tax effects relevant to the exchange of exchangeable shares for Tyco common shares. Holders of exchangeable shares are urged to consult their tax advisors concerning the applicable tax consequences of an exchange to them. EXPERTS The consolidated financial statements and financial statement schedule of Tyco as of September 30, 2000 and 1999, and for each of the three years in the period ended September 30, 2000, included in Tyco's Annual Report on Form 10-K filed on December 21, 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 a certain subsidiary its opinion is based upon the report of other independent accountants, namely Arthur Andersen LLP (as it relates to the consolidated balance sheet of AMP Incorporated and its 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). 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. 19 The consolidated balance sheets as of December 31, 2000 and 1999 and the related consolidated statements of income, changes in stockholders' equity and cash flows of The CIT Group, Inc. and its subsidiaries for each of the years in the three-year period ended December 31, 2000 have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent certified public accountants, also incorporated by reference herein, and upon the authority of KPMG LLP as experts in accounting and auditing. LEGAL MATTERS Appleby Spurling & Kempe, Hamilton, Bermuda, our special Bermuda counsel, is passing for us on the validity of the securities to which this prospectus relates. Our secretary, Michael L. Jones, is a partner in Appleby Spurling & Kempe. Certain federal Canadian tax consequences are being passed upon for us by our special Canadian counsel, McMillan Binch, Toronto, Ontario, Canada and certain Bermuda income tax consequences are being passed upon for us by Appleby Spurling & Kempe. McMillan Binch is passing for us on certain other legal matters in connection with Canadian law and Kramer Levin Naftalis & Frankel LLP, New York, New York, is passing for us on certain other legal matters. 20 PART II. INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth all expenses payable by the Registrant in connection with the issuance and distribution of the securities being registered. All the amounts shown are estimates, except for the registration fee. Registration fee............................................ $ 0 Fees and expenses of accountants............................ 15,000 Fees and expenses of counsel................................ 40,000 Printing and engraving expenses............................. 5,000 Miscellaneous............................................... 5,000 ------- Total..................................................... $65,000 =======
ITEM 15. 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 or her in defending any proceedings, whether civil or criminal, in which judgment is given in his or her favor or in which he or she is acquitted or when other similar relief is granted to him or her. Tyco maintains $250 million of insurance to reimburse the directors and officers of Tyco 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. 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. II-1 ITEM 16. EXHIBITS. 2.1 -- Agreement and Plan of Merger, dated as of March 12, 2001, by and between Tyco Acquisition Corp. XIX (NV) and The CIT Group, Inc., including Guarantee of Tyco International Ltd.(a) 5.1 -- Opinion of Appleby Spurling & Kempe with respect to the legality of the securities registered hereunder, containing the consent of such counsel.(c) 8.1 -- Opinion of McMillan Binch with respect to the tax matters of the securities registered hereunder, containing the consent of such counsel.(c) 8.2 -- Opinion of Appleby Spurling & Kempe with respect to the tax matters of the securities registered hereunder, containing the consent of such counsel.(c) 23.1 -- Consent of PricewaterhouseCoopers.(c) 23.2 -- Consent of Arthur Andersen LLP.(c) 23.3 -- Consent of KPMG LLP.(c) 23.4 -- Consent of Appleby Spurling & Kempe is included in its opinions filed herewith as Exhibits 5.1 and 8.2 to this Registration Statement.(c) 23.4 -- Consent of McMillan Binch is included in its opinion filed herewith as Exhibit 8.1 to this Registration Statement.(c) 24.1 -- Power of Attorney.(a) 99.1 -- Plan of Arrangement, including Exchangeable Share Provisions.(b) 99.2 -- Voting and Exchange Trust Agreement.(b) 99.3 -- Form of Supplemental Voting and Exchange Trust Agreement.(c) 99.4 -- Form of Tyco VE Agreement.(c) 99.5 -- Exchangeable Share Support Agreement.(b) 99.6 -- Form of Supplemental Exchangeable Share Support Agreement.(c) 99.7 -- Form of Tyco Support Agreement.(c) 99.8 -- Resolution designating the Rights of Tyco Special Voting Preference Share.(a)
- ------------------------ (a) Incorporated by reference to the S-4 Registration Statement. (b) Incorporated by reference to the definitive Joint Management Information Circular and Proxy Statement on Schedule 14A, filed by The CIT Group, Inc. (SEC File. No. 001-1861) on September 21, 1999. (c) Filed herewith. II-2 ITEM 17. UNDERTAKINGS. 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(a)(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 the 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 Commission pursuant to Rule 424(b), 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; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purposes of determining any liability under the Securities Act of 1933, as amended, 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 of 1933, as amended, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, 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 Commission such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, 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 of 1933, as amended, and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment to the 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 May, 2001. TYCO INTERNATIONAL LTD. By: /s/ MARK H. SWARTZ ----------------------------------------- Mark H. Swartz EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER (PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER)
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment to the Registration Statement has been signed by the following persons on May 24, 2001 in the capacities indicated below.
NAME TITLE ---- ----- * Chairman of the Board, President, Chief ------------------------------------------- Executive Officer and Director (Principal L. Dennis Kozlowski Executive Officer) * ------------------------------------------- Director Lord Ashcroft KCMG * ------------------------------------------- Director Joshua M. Berman * ------------------------------------------- Director Richard S. Bodman * ------------------------------------------- Director John F. Fort * ------------------------------------------- Director Stephen W. Foss
II-4
NAME TITLE ---- ----- * ------------------------------------------- Director Wendy E. Lane * ------------------------------------------- Director James S. Pasman, Jr. * ------------------------------------------- Director W. Peter Slusser /s/ MARK H. SWARTZ Executive Vice President, Chief Financial ------------------------------------------- Officer and Director (Principal Financial Mark H. Swartz and Accounting Officer) * ------------------------------------------- Director Frank E. Walsh, Jr. ------------------------------------------- Director Joseph F. Welch
*By: /s/ MARK H. SWARTZ -------------------------------------- Mark H. Swartz ATTORNEY-IN-FACT
II-5 EX-5.1 2 a2050395zex-5_1.txt EXHIBIT 5.1 EXHIBIT 5.1 [LETTERHEAD OF APPLEBY SPURLING & KEMPE] 23 May 2001 Tyco International Ltd The Zurich Centre Second Floor 90 Pitts Bay Road Pembroke HM 08 Bermuda Dear Sirs RE: POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-4 ON REGISTRATION STATEMENT ON FORM S-3 We have acted as Bermuda counsel to Tyco International Ltd., a Bermuda company (the "Company") in connection with its filing with the United States Securities and Exchange Commission of the Post-Effective Amendment No. 1 to Form S-4 on Post-Effective Amendment on Form S-3 (File No. 333-57850) (the "Post-Effective Amendment") with respect to the registration under the United States Securities Act of 1933, as amended, of common shares of par value US$0.20 each of the Company (the "Common Shares") deliverable from time to time following the merger of The CIT Group, Inc. ("CIT") with and into Tyco Acquisition Corp. XIX (NV) ("Tyco Acquisition"), a direct wholly-owned subsidiary of the Company, pursuant to the Agreement and Plan of Merger by and between Tyco Acquisition and CIT dated as of March 12, 2001 (the "Merger Agreement"), upon the exchange of exchangeable shares issued by CIT Exchangeco Inc., an indirect subsidiary of CIT (the "Exchangeable Shares"). For the purposes of this opinion we have examined and relied upon the documents listed, and in some cases defined, in the Schedule to this opinion (the "Documents"). The Documents numbered 3 to 9 inclusive in the Schedule are referred to in this opinion as the "Exchangeable Share Agreements". Unless otherwise defined herein, capitalised terms have the meanings assigned to them in the Post-Effective Amendment or in the Schedule to this opinion. ASSUMPTIONS In stating our opinion we have assumed: (a) the authenticity, accuracy and completeness of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, notarised or photostatic copies; (b) the genuineness of all signatures on the documents; (c) the authority, capacity and power of each of the persons signing the documents which we have reviewed (other than the Directors or Officers of the Company); (d) that any factual statements made in any of the Documents are true, accurate and complete; (e) that the records which were the subject of the Company Search were complete and accurate at the time they were made and disclosed all information which is material for the purposes of this opinion and such information has not since the date of the Company Search been materially altered; and (f) that the records which were the subject of the Litigation Search were complete and accurate at the time they were made and disclosed all information which is material for the purposes of this opinion and such information has not since the date of the Litigation Search been materially altered. OPINION Based upon and subject to the foregoing and subject to the reservations set out below and to any matters not disclosed to us, we are of the opinion that: (1) The Company is an exempted company incorporated with limited liability and existing under the laws of Bermuda. The Company possesses the capacity to sue and be sued in its own name and is in good standing under the laws of Bermuda. (2) All necessary corporate action required to be taken by the Company in connection with the issue by the Company of the Common Shares pursuant to Bermuda law has been taken by or on behalf of the Company, and all necessary approvals of Governmental authorities in Bermuda have been duly obtained for the issue by the Company of the Common Shares. (3) When issued and exchanged for the Exchangeable Shares pursuant to and in accordance with the terms and conditions referred to or summarised in the Resolutions, the Merger Agreement and in the Exchangeable Share Agreements and in the circumstances referred to or summarised in the Post-Effective Amendment, and upon completion of the transactions provided for in the Merger Agreement and in the Exchangeable Share Agreements, the Common Shares will be validly issued, fully paid and non-assessable shares in the capital of the Company. (4) The acquisition of the Common Shares by the holders of the Exchangeable Shares in accordance with the Merger Agreement and the Exchangeable Share Agreements will not breach or conflict with and will not constitute a default or violation of any of the terms or provisions of the Company's Constitutional Documents. (5) There are no taxes, duties or other charges payable to or chargeable by the Government of Bermuda, or any authority or agency thereof in respect of the issue of the Common Shares. RESERVATIONS We have the following reservations: (a) We express no opinion as to any law other than Bermuda law and none of the opinions expressed herein relates to compliance with or matters governed by the laws of any jurisdiction except Bermuda. This opinion is limited to Bermuda law as applied by the courts of Bermuda at the date hereof. (b) In paragraph (1) above, the term "good standing" means that the Company has neither failed to make any filing with any Bermuda governmental authority nor to pay any Bermuda government fee or tax, which might make it liable to be struck off the Registrar of Companies and thereby cease to exist under the laws of Bermuda. (c) Any reference in this opinion to shares being "non-assessable" shall mean, in relation to fully paid shares of the Company and subject to any contrary provision in any agreement in writing between such company and the holder of such shares, that no shareholder shall be bound by an alteration to the Memorandum of Association or Bye-laws of the Company after the date on which he became a shareholder, if and so far as the alteration requires him to take, or subscribe for additional shares, or in any way increases his liability to contribute to the share capital of, or otherwise to pay money to, the Company. DISCLOSURE This opinion is addressed to you in connection with the filing by the Company of the Post-Effective Amendment with the United States Securities and Exchange Commission. We consent to the inclusion of this opinion as an exhibit to the Post-Effective Amendment. We also consent to the reference to our firm under the caption "Bermuda Tax Consequences" and "Legal Matters" in the Post-Effective Amendment. This opinion speaks as of its date and is strictly limited to the matters stated herein and we assume no obligation to review or update this opinion if applicable law or the existing facts or circumstances should change. This opinion is governed by and is to be construed in accordance with Bermuda law. It is given on the basis that it will not give rise to any legal proceedings with respect thereto in any jurisdiction other than Bermuda. Yours faithfully /s/ Appleby Spurling & Kempe SCHEDULE 1. a copy of the executed Merger Agreement; 2. a copy of the Post-Effective Amendment No. 1 to the Form S-4 on Form S-3 Post-Effective Amendment (Registration No. 333-57850) to be filed with the Securities and Exchange Commission, as emailed to us on May 21, 2001; 3. a copy of the Plan of Arrangement relating to the arrangement of Newcourt Credit Group Inc., including Exchangeable Share Provisions; 4. a copy of the Voting and Exchange Trust Agreement made as of 15th day of November, 1999 between CIT Exchangeco Inc.("Exchangeco"), CIT and Montreal Trust Company of Canada (the "Trustee"); 5. a copy of the Exchangeable Share Support Agreement made as of 15th day of November, 1999 between CIT, 3026192 Nova Scotia Company ("Newco") and Exchangeco; 6. a draft: May 4, 2001 of a Supplemental Exchangeable Share Support Agreement, between CIT, Tyco Acquisition ("CIT Holdings"), Newco and CIT Exchangeco; 7. a draft: May 4, 2001 of a Supplemental Voting and Exchange Trust Agreement, between CIT, Exchangeco, CIT Holdings, and the Trustee; 8. a draft: May 8, 2001 of a Tyco VE Agreement, between the Company, CIT Holdings, Exchangeco and the Trustee; 9. a draft: May 8, 2001 of a Tyco Support Agreement between the Company, CIT Holdings, Exchangeco and the Trustee; 10. an Officer's Certificate dated 23 May 2001 issued by Mark H. Swartz, Executive Vice President and Chief Financial Officer of the Company (the "Officer's Certificate") in respect of resolutions adopted by the Board of Directors on 12 and 26 March 2001 (collectively, the "Resolutions"); 11. the entries and filings shown in respect of the Company on the file of the Company maintained in the Register of Companies at the office of the Registrar of Companies in Hamilton, Bermuda, as revealed by a search done on 23 May 2001 (the "Company Search"); 12. the entries and filings shown in respect of the Company in the Supreme Court Causes Book maintained at the Registry of the Supreme Court in Hamilton, Bermuda, as revealed by a search done on 23 May 2001 (the "Litigation Search"); 13. certified copies of the Certificate of Incorporation, Memorandum of Association and Bye-laws of the Company incorporating all amendments to 27 March 2001 (collectively referred to as the "Constitutional Documents"); 14. a Certificate of Compliance dated 23 May 2001, issued by the Ministry of Finance in respect of the Company; 15. a copy of the permissions dated 20 April 1999, 29 April 1999 and 11 June 1999 given by the Bermuda Monetary Authority under the Exchange Control Act (1972) and related regulations for the issue of common shares in the capital of the Company; and 16. a copy of the Share Register of the Company as at 30 April 2001. EX-8.1 3 a2050395zex-8_1.txt EXHIBIT 8.1 EXHIBIT 8.1 [LETTERHEAD OF McMILLAN BINCH] May 24, 2001 Tyco International Ltd. The Zurich Centre, 2nd Floor 90 Pitts Bay Road, Pembroke HM08, Bermuda Ladies and Gentlemen: Re: Post-Effective Amendment No.1 to Form S-4 on Registration Statement on Form S-3 (the "Post-Effective Amendment") We have acted as Canadian tax counsel to Tyco International Ltd. ("Tyco"), a Bermuda company (the "Company"), in connection with the issuance by it of its common shares upon the exchange of exchangeable shares ("Exchangeable Shares") of Tyco's indirect subsidiary, CIT Exchangeco Inc., as more fully described in the Post-Effective Amendment filed with the Securities and Exchange Commission (the "Commission") on May 24, 2001 (file No. 333-57850). You have requested our opinion concerning the material Canadian federal income tax consequences to certain persons acquiring the securities described above upon the exchange of Exchangeable Shares as contemplated in the Post-effective Amendment. For purposes of the opinion set forth below, we have reviewed and relied upon (i) the Post-Effective Amendment, and (ii) such other documents, records and instruments as we have deemd necessary or approporiate as a basis for our opinion. We have assumed without investigation or verification that all statements contained in the foregoing documents are true, correct, and complete as of the date hereof and will remain true, correct and complete as of the time the Exchangeable Shares are exchanged. Any inaccruacy in, or breach of, any of the aforementioend statements and assumptions could adversely affect our opinion. We hereby confirm, based on the assumptions and subject to the qualifications and limitations set forth herein and therein, that the statements contained in the section of the Post-Effective Amendment captioned "Tax Consequences Regarding Exchangeable Shares and Tyco Common Shares--Canadian Federal Income Tax Consequences", to the extent that such statements describe Canadian federal income tax law or legal conclusions with respect thereto, are our opinion, as of the date hereof, with respect to the matters set forth therein. No opinion is expressed on matters other than those specifically referred to therein. We assume no obligation to supplement our opinion if any applicable laws change after the date of the Post-Effective Amendment or if we become aware, after the date of the Post-Effective Amendment, of facts that might change the opinions expressed therein. We are opining herein as to the effect on the subject transaction only of the federal income tax laws of Canada and we express no opinion with respect to the applicability thereto, or the effect thereon, of any provincial, territorial or foreign tax legislation. This opinion is provided in connection with the issuance of common shares by Tyco pursuant to the Post-Effective Amendment. This opinion may not be relied upon for any other purpose, shall not insure to the benefit of any other person, including without limitation any successor or assign of Tyco, and is not to be circulated, quoted, or otherwise referred to without our express written permission, except as may be required by applicable law or regulatory authority. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption "Tax Consequences Regarding Exchangeable Shares and Tyco Common Shares--Canadian Federal Income Tax Consequences" as well as the reference to this opinion under the caption "Legal Opinions" in the Registration Statement. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under section 7 of the Securities Act of 1933 or the rules or regulations of the Commission promulgated thereunder. Yours very truly, /s/ McMillan Binch EX-8.2 4 a2050395zex-8_2.txt EXHIBIT 8.2 EXHIBIT 8.2 [LETTERHEAD OF APPLEBY SPURLING & KEMPE] 23 May 2001 Tyco International Ltd. The Zurich Centre Second Floor 90 Pitts Bay Road Pembroke HM 08 Bermuda Dear Sirs RE: POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-4 ON REGISTRATION STATEMENT ON FORM S-3 We have acted as Bermuda counsel to Tyco International Ltd. ("Tyco"), in connection with the issue by it of its common shares of par value US$0.20 each (the "Common Shares") upon the exchange of the exchangeable shares (the "Exchangeable Shares") of Tyco's indirect subsidiary, CIT Exchangeco Inc., as more particularly described in the Post-Effective Amendment No. 1 to Form S-4 on Registration Statement on Form S-3 (Registration No. 333-57850), to be filed by Tyco with the United States Securities and Exchange Commission (the "Post-Effective Amendment"). You have requested our opinion concerning the Bermuda tax consequences of the delivery of Common Shares to holders of Exchangeable Shares upon the exchange thereof as contemplated in the Post-Effective Amendment. In connection therewith, we have reviewed the discussion on the Bermuda tax consequences set forth under the caption "Bermuda Tax Consequences" (the "Discussion") in the Post-Effective Amendment. In rendering our opinion, we have examined and relied upon (i) a draft of the Post-Effective Amendment e-mailed to us on 21 May 2001, and (ii) originals or copies, certified or otherwise identified to our satisfaction, of such corporate records of Tyco maintained at its registered office in Bermuda and such other documents and records as we have deemed necessary or appropriate in connection with this opinion. Terms not otherwise defined herein have the meanings assigned to them in the Post-Effective Amendment. In stating our opinion we have assumed the authenticity, accuracy and completeness of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as certified, conformed, notarised or photostatic copies, the genuineness of all signatures on such documents, that the factual statements in the Post-Effective Amendment are true, correct and complete as of the date hereof and will remain so as at the time the Exchangeable Shares are exchanged and that when filed, the Post-Effective Amendment will not differ in any material respect from the draft which we have examined. It is our opinion that the Bermuda tax consequences of the delivery of Common Shares to holders of Exchangeable Shares on the exchange thereof are as set forth in the Discussion. Our opinion is limited to such matters as of its date, is to be governed by and construed in accordance with the laws of Bermuda and we express no opinion as to the laws of any other territory or jurisdiction. We hereby consent to the filing of this opinion as an exhibit to the Post-Effective Amendment and to the reference to our firm under the caption "Bermuda Tax Consequences" and "Legal Matters" in the Post-Effective Amendment. Yours faithfully /s/ Appleby Spurling & Kempe EX-23.1 5 a2050395zex-23_1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 to the Registration Statement on Form S-4 on Form S-3 of our report dated October 24, 2000, except as to Note 25 which is as of December 4, 2000, relating to the financial statements and financial statement schedule, which appears in Tyco International Ltd.'s Annual Report on Form 10-K for the year ended September 30, 2000. We also consent to the reference to us under the heading "Experts" in such Registration Statement. /s/ PricewaterhouseCoopers Hamilton, Bermuda May 23, 2001 EX-23.2 6 a2050395zex-23_2.txt EXHIBIT 23.2 EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 to the Registration Statement on Form S-4 on Form S-3 of Tyco International Ltd. of our report dated February 12, 1999 (except with respect to the matter disclosed in Note 18 Merger with Tyco International Ltd., as to which the date is April 2, 1999) on our audit of 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, included in the Tyco International Ltd. Form 10-K filed December 21, 2000 and to all references to our Firm included in this Post-Effective Amendement No. 1 to the Registration Statement. /s/ Arthur Andersen LLP Philadelphia, Pennsylvania May 23, 2001 EX-23.3 7 a2050395zex-23_3.txt EXHIBIT 23.3 EXHIBIT 23.3 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS The Board of Directors The CIT Group, Inc.: We consent to the use of our report dated January 25, 2001, except as to Note 25, which is as of March 13, 2001, relating to the consolidated balance sheets of The CIT Group, Inc. and subsidiaries as of December 31, 2000 and 1999, and the related consolidated statements of income, changes in stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 2000, incorporated by reference in the Post-Effective Amendment No. 1 to the Registration Statement on Form S-4 on Form S-3 of Tyco International Ltd., which report appears in the April 3, 2001 Current Report on Form 8-K of Tyco International Ltd., which is also incorporated by reference herein, and to the reference to our firm under the heading "Experts" in the Registration Statement. /s/ KPMG LLP Short Hills, New Jersey May 23, 2001 EX-99.3 8 a2050395zex-99_3.txt EXHIBIT 99.3 Exhibit 99.3 FORM OF SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT Dated as of the o day of o, 2001, among The CIT Group, Inc. ("CIT"), CIT Exchangeco Inc. ("EXCHANGECO"), Tyco Acquisition Corp. XIX (NV) ("CIT HOLDINGS") and Montreal Trust Company of Canada (interchangeably, the "TRUSTEE" or "MONTREAL TRUST"). RECITALS A. Pursuant to an amended and restated agreement and plan of reorganization dated as of August 5, 1999 between Newcourt Credit Group Inc. ("NEWCOURT") and CIT (the "NEWCOURT REORGANIZATION AGREEMENT"), CIT caused Exchangeco to issue exchangeable shares (the "EXCHANGEABLE SHARES") to certain holders of common shares of Newcourt pursuant to a plan of arrangement (the "NEWCOURT PLAN OF ARRANGEMENT"). B. Pursuant to the Newcourt Reorganization Agreement, Exchangeco, CIT and the Trustee entered into a voting and exchange trust agreement dated as of November 15, 1999 (the "VETA"). C. Section 11.1 of the VETA provides that, in the event of a merger or other transaction whereby all or substantially all of CIT's undertaking, property and assets become the property of another person or, in the case of a merger, the continuing corporation resulting from the merger, such person or continuing corporation (the "CIT SUCCESSOR") shall execute a supplemental trust agreement to evidence the assumption by the CIT Successor of liability for all moneys payable and property deliverable under the VETA and the covenant of such CIT Successor to pay and deliver or cause to be delivered the same and its agreement to observe and perform all the covenants and obligations of CIT under the VETA. D. Pursuant to an agreement and plan of merger made as of March 12, 2001 between CIT Holdings, a wholly-owned subsidiary of Tyco International Ltd. ("TYCO"), and CIT (the "TYCO PLAN OF MERGER"), CIT will merge with and into CIT Holdings, and CIT Holdings shall continue as the surviving corporation. It is intended that following the merger, CIT Holdings will change its corporate name to "CIT Holdings (NV) Inc.". E. The Tyco Plan of Merger provides that each Exchangeable Share will remain outstanding, that, after the effective time of the merger, each Exchangeable Share shall, subject to the Tyco Plan of Merger, be exchangeable for 0.6907 of a Tyco Common Share and that CIT Common Stock shall, for all purposes under the VETA, mean Tyco Common Shares, proportionally adjusted. F. CIT Holdings intends to become the CIT Successor within the meaning of Section 11.1 of the VETA. G. The parties wish to restate certain provisions of the VETA to reflect events that have occurred since the original date thereof. SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -2- H. Pursuant to an agreement in writing made as of the date hereof (the "TYCO VE AGREEMENT"), Tyco is supporting the obligations of CIT Holdings under the VETA, as supplemented by this Agreement. I. The above recitals and statements of fact are made by CIT, Exchangeco and CIT Holdings and not by the Trustee. FOR VALUE RECEIVED, the parties agree, pursuant to Sections 11.1, 12.2(b), 12.4 and 12.5(b) and (c) of the VETA, to supplement and partially restate the VETA with effect from the date hereof as follows: ARTICLE 1 - DEFINITIONS AND INTERPRETATION 1.1 NATURE OF AGREEMENT This Agreement is a supplemental agreement within the meaning of Sections 11.1, 12.2(b), 12.4 and 12.5(b) and (c) of the VETA. 1.2 DEFINITIONS Capitalized terms used in this Agreement without definition shall have the meanings assigned to them in the VETA or otherwise applicable to such terms in the VETA. In addition: (1) ESSA means the exchangeable share support agreement made as of November 15, 1999 among Exchangeco, CIT and Newco as supplemented by an agreement among those parties and CIT Holdings made as of the date hereof. (2) FRACTIONAL CASH AMOUNT means the cash payment to a holder of Exchangeable Shares in lieu of a fractional interest in a Tyco Common Share upon the exchange of such holder's Exchangeable Shares, which amount shall be equal to such fractional interest multiplied by the closing price of Tyco Common Shares on the New York Stock Exchange (as reported by Bloomberg Financial Markets (or if such service is unavailable, a service providing similar information)) on the trading day immediately preceding the date of surrender for exchange. (3) NEWCO means 3026192 Nova Scotia Company, an unlimited company existing under the laws of Nova Scotia and a wholly-owned subsidiary of CIT. (4) TYCO means Tyco International Ltd., a Bermuda company, and its successors. (5) TYCO AFFILIATES means Affiliates of Tyco. (6) TYCO COMMON SHARES means the common shares of Tyco, par value US$0.20 per share, in the capital of Tyco, and any other securities into which such shares may be changed. (7) TYCO CONSENT means written consents sought by Tyco from its shareholders including the holders of Tyco Common Shares. SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -3- (8) TYCO MEETING means all meetings of shareholders of Tyco at which holders of Tyco Common Shares are entitled to vote. (9) TYCO SVP SHARE means the special voting preference share of Tyco, par value US$1.00, which entitles the holder of record to a number of votes at meetings of holders of Tyco Common Shares equal to the number of Tyco Common Shares for which Exchangeable Shares outstanding from time to time are exchangeable (other than Exchangeable Shares (a) held by Tyco and Tyco Affiliates and (b) in respect of which no instructions are received), which share is to be issued to, deposited with and voted by the Trustee as described in the VETA. 1.3 SUCCESSOR CONCEPTS (1) Except as otherwise provided herein, the existing references in the VETA to: (a) "CIT" are restated by substituting therefor references to "CIT Holdings"; (b) "CIT Affiliates" are restated by substituting therefor references to "Tyco Affiliates"; (c) "CIT Common Stock", "one share of CIT Common Stock" and "a share of CIT Common Stock" are restated by substituting therefor references to "Tyco Common Shares" when referred to in the aggregate and "0.6907 of a Tyco Common Share, subject to adjustment in accordance with the provisions of the ESSA", when referred to individually; (d) "CIT Consent" are restated by substituting therefor references to "Tyco Consent"; (e) "CIT Meeting" are restated by substituting therefor references to "Tyco Meeting"; (f) "CIT Special Voting Share" are restated by substituting therefor references to "Tyco SVP Share"; and (g) "CIT Successor" are restated by substituting therefor references to "Tyco Successor". (2) References in this Agreement to substitutions are applicable whether the existing references are contained in the VETA or are incorporated therein by reference to the Exchangeco Share Provisions or the terms of the Newcourt Plan of Arrangement. 1.4 RULES OF INTERPRETATION The provisions on construction and interpretation set forth in Sections 1.2, 1.3, and 1.4 of the VETA shall apply to this Agreement. The provisions of Sections 14.1, 14.2, 14.5, 14.6 and 14.7 of the VETA are incorporated by reference into and form part of this Agreement as if fully restated herein. SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -4- ARTICLE 2 - VOTING AND EXCHANGE TRUST AGREEMENT 2.1 ARTICLE 1 The definitions in Section 1.1 are restated: (a) notwithstanding Section 1.3(1)(a) of this Agreement, by substituting "Tyco" for the reference to "CIT" in the definitions of "Beneficiaries" and "Board of Directors"; (b) without the definitions of "CIT Affiliates", "CIT Common Stock", "CIT Consent", "CIT Meeting", "CIT Special Voting Share", "CIT Successor" and "Support Agreement". (c) notwithstanding Section 1.3(1)(c) of this Agreement, by substituting "Tyco Common Shares" or "a Tyco Common Share", as the context requires, for all references to "CIT Common Stock" in the definition of "Current Market Price"; and (d) substituting "Exchangeco" for the reference to "Newcourt" in the definition of "Insolvency Event". 2.2 ARTICLE 3 The first two sentences in Section 3.1 are restated as follows: "CIT Holdings will cause Tyco to take all corporate action necessary to issue to and deposit with the Trustee the Tyco SVP Share to be hereafter held of record by the Trustee as trustee for and on behalf of, and for the use and benefit of, the Beneficiaries and in accordance with the provisions of this trust agreement. CIT Holdings hereby acknowledges on behalf of Tyco receipt from the Trustee as trustee for and on behalf of the Beneficiaries of good and valuable consideration (and the adequacy thereof) for the issuance of the Tyco SVP Share by Tyco to the Trustee." 2.3 ARTICLE 4 (1) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 4.1 is restated by substituting "Tyco" for the reference therein to "CIT". (2) Section 4.2 is restated as follows: "With respect to each Tyco Meeting and each Tyco Consent, each Beneficiary shall be entitled to instruct the Trustee to cast and exercise in the manner instructed 0.6907 of the votes, subject to adjustment in accordance with the provisions of the ESSA, comprised in the Voting Rights for each Exchangeable Share owned of record by such Beneficiary on the record date established by Tyco or by applicable law for such Tyco Meeting or Tyco Consent, as the case may be (the "BENEFICIARY VOTES"), in respect of each matter, SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -5- question, proposal or transaction to be voted on or at such Tyco Meeting or Tyco Consent." (3) Notwithstanding Section 1.3(1)(a) of this Agreement, Sections 4.3 and 4.4(a) and (b) are restated by substituting "Tyco" for references therein to "CIT", except with respect to the last sentence of Section 4.3 which is restated as follows: "CIT Holdings will cause Tyco to notify the Trustee of any decision of the board of directors of Tyco with respect to the calling of any Tyco Meeting and provide all necessary information and materials to the Trustee in each case promptly and in any event in sufficient time to enable the Trustee to perform its obligations contemplated by this section 4.3.". (4) The first sentence of Section 4.5 is restated as follows: "As soon as reasonably practicable after receipt by Tyco or shareholders of Tyco (if such receipt is known by Tyco) of any material sent or given by or on behalf of a third party to holders of Tyco Common Shares generally, including without limitation, dissident proxy and information circulars (and related information and material) and tender and exchange offer circulars (and related information and material), CIT Holdings shall cause Tyco to use its reasonable efforts to obtain and deliver to the Trustee copies thereof in sufficient quantities so as to enable the Trustee to forward such material (unless the same has been provided directly to Beneficiaries by such third party) to each Beneficiary as soon as possible thereafter." (5) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 4.6 is restated by substituting "Tyco" for the first reference therein to "CIT". (6) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 4.9 is restated by substituting "Tyco" for the reference therein to "CIT". (7) The phrase in parenthesis in Section 4.10 is restated as follows: "(unless in either case, CIT Holdings shall not have delivered the requisite Tyco Common Shares and a cheque for any Fractional Cash Amount issuable in exchange therefor to the Trustee for delivery to the Beneficiaries)". 2.4 ARTICLE 5 (1) Section 5.4 is restated as follows: "The purchase price payable by CIT Holdings for each Exchangeable Share to be purchased by CIT Holdings under the Exchange Right shall be in an amount per share equal to the Current Market Price of 0.6907 of a Tyco Common Share (subject to adjustment in accordance with the provisions of the ESSA) on the last Business Day prior to the date of closing of the purchase and sale of such Exchangeable Shares under the SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -6- Exchange Right, which shall be satisfied in full by CIT Holdings causing to be sent to such holder 0.6907 of a Tyco Common Share (subject to adjustment in accordance with the provisions of the ESSA) except that, where the aggregate purchase price payable to the holder of such Exchangeable Shares would otherwise entitle the holder to receive delivery of a fractional share, CIT Holdings shall pay the Fractional Cash Amount to such holder in lieu of such fractional share. For greater certainty, it is hereby confirmed that such holders will also be entitled to continue to receive from Exchangeco, on the designated payment date therefor, the full amount of all declared but unpaid dividends on each such Exchangeable Share held by such holder on any dividend record date which occurred prior to the closing of the purchase and sale and, to the extent such amount is not paid by Exchangeco on the designated payment date therefor, such amount shall be paid by CIT Holdings on such date for and on behalf of Exchangeco. The purchase price for each such Exchangeable Share so purchased may be satisfied only by CIT Holdings causing Tyco to issue and deliver or cause to be delivered to the Trustee, on behalf of the relevant Beneficiary, 0.6907 of a Tyco Common Share (subject to adjustment in accordance with the provisions of the ESSA) and, where the holder of such Exchangeable Share would otherwise be entitled to receive delivery of a fractional share, as aforesaid, the Fractional Cash Amount in lieu of such fractional share. On the applicable payment date, CIT Holdings shall deliver or cause to be delivered to the Trustee, on behalf of the relevant Beneficiary, a cheque for the amount, if any, of the declared but unpaid dividends referred to above, without interest (but less any amounts withheld pursuant to section 5.13)." (2) Section 5.6 is restated as follows: "Promptly after receipt of the certificates representing the Exchangeable Shares which the Beneficiary desires CIT Holdings to purchase under the Exchange Right, together with such documents and instruments of transfer and a duly completed form of notice of exercise of the Exchange Right (and payment of taxes, if any, payable as contemplated by section 5.8 or evidence thereof), duly endorsed for transfer to CIT Holdings, the Trustee shall notify CIT Holdings and Exchangeco of its receipt of the same, which notice to CIT Holdings and Exchangeco shall constitute exercise of the Exchange Right by the Trustee on behalf of the holder of such Exchangeable Shares, and CIT Holdings shall cause Tyco to promptly thereafter deliver or cause to be delivered to the Trustee, for delivery to the Beneficiary of such Exchangeable Shares (or to such other persons, if any, properly designated by such Beneficiary) certificates representing the number of Tyco Common Shares issuable in connection with the exercise of the Exchange Right (and, where such holder of the Exchangeable Shares is entitled to receive delivery of a fractional share, payment of the Fractional Cash Amount in lieu of such fractional share), which shares shall be duly issued as fully paid and non-assessable and shall be free and clear of any liens, and, on the applicable payment date, cheques for the amount, if any, of the declared but unpaid dividends referred to in section 5.6 without interest (but less any amounts withheld pursuant to section 5.13); provided, however, that no such delivery shall be made unless and until the Beneficiary requesting the same have paid (or provided evidence satisfactory to the Trustee, Exchangeco and CIT of the payment of ) the taxes (if SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -7- any) payable as contemplated by section 5.8 of this trust agreement. Immediately upon the giving of notice by the Trustee to CIT Holdings and Exchangeco of the exercise of the Exchange Right as provided in this section 5.6, the closing of the transaction of purchase and sale contemplated by the Exchange Right shall be deemed to have occurred, and the holder of such Exchangeable Shares shall be deemed to have transferred to CIT Holdings all of such holder's right, title and interest in and to such Exchangeable Shares and the related interest in the Trust Estate and shall cease to be a holder of such Exchangeable Shares and shall not be entitled to exercise any of the rights of a holder in respect thereof, other than the right to receive any declared but unpaid dividends as provided in section 5.6 and other than the right to receive his proportionate part of the total purchase price therefor, unless the requisite number of Tyco Common Shares is not allotted and issued by Tyco and delivered by CIT Holdings to the Trustee (and the Fractional Cash Amount payable in lieu of any fractional shares is not paid) within five Business Days of the date of the giving of such notice by the Trustee, in which case the rights of the Beneficiary shall remain unaffected until such Tyco Common Shares are so allotted and issued by Tyco and delivered by CIT Holdings and payment of the Fractional Cash Amount in lieu of any fractional share is paid by CIT Holdings. Upon delivery by CIT Holdings to the Trustee of such Tyco Common Shares and payment of the Fractional Cash Amount in lieu of any fractional shares, the Trustee shall deliver such Tyco Common Shares and payment of such Fractional Cash Amount in lieu of any fractional share to such Beneficiary (or to such other persons, if any, properly designated by such Beneficiary). Concurrently with such Beneficiary ceasing to be a holder of Exchangeable Shares, the Beneficiary shall be considered and deemed for all purposes to be the holder of Tyco Common Shares delivered to it pursuant to the Exchange Right. The Trustee shall not be responsible or liable in any manner whatsoever for the sufficiency, correctness, genuiness or validity of any security deposited with it. The Trustee shall incur no liability with respect to the delivery or non-delivery of any certificate or certificates, whether delivered by hand, mailed or other means." (3) Section 5.8 is restated by removing the reference to "Newcourt". (4) Section 5.10 is restated as follows: "CIT Holdings covenants that, if any Tyco Common Shares to be issued and delivered pursuant to the Exchange Right or the Automatic Exchange Rights require registration or qualification with or approval of or the filing of any document, including any prospectus or similar document, or the taking of any proceeding with or the obtaining of any order, ruling or consent from any governmental or regulatory authority under any Canadian, Bermudian or United States federal, provincial or state law or regulation or pursuant to the rules and regulations of any regulatory authority or the fulfilment of any other Canadian, Bermudian or United States federal, provincial or state legal requirement before such shares may be issued and delivered by Tyco to the initial holder thereof or in order that such shares may be freely traded thereafter (other than any restrictions of general application on transfer by reason of a holder being a "control person" of Tyco for purposes of Canadian provincial securities law or an "affiliate" of SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -8- Tyco for purposes of United States federal or state securities law), CIT Holdings will cause Tyco to in good faith expeditiously take all such actions and do all such things as are necessary or desirable to cause such Tyco Common Shares to be and remain duly registered, qualified or approved. CIT Holdings will cause Tyco to in good faith expeditiously take all such actions and do all such things as are reasonably necessary or desirable to cause all Tyco Common Shares to be delivered pursuant to the Exchange Right or the Automatic Exchange Rights to be listed, quoted or posted for trading on all stock exchanges and quotation systems on which outstanding Tyco Common Shares have been listed by Tyco and remain listed and are quoted or posted for trading at such time." (5) Section 5.11 is restated as follows: "CIT Holdings hereby represents, warrants and covenants to cause Tyco to take all action required so that the Tyco Common Shares issuable as described herein will be duly authorized and validly issued as fully paid and non-assessable and free and clear of any lien, claim or encumbrance." (6) Sections 5.12(a)(i) and (ii) are restated as follows: "AUTOMATIC EXCHANGE ON LIQUIDATION OF TYCO CIT Holdings will give the Trustee notice of each of the following events at the time set forth below: (i) in the event of any determination of the Board of Directors of Tyco to institute voluntary liquidation, dissolution or winding-up proceedings with respect to Tyco or to effect any other distribution of assets of Tyco among its shareholders for the purpose of winding-up its affairs, at least 60 days prior to the proposed effective date of such liquidation, dissolution, winding-up or other distribution; and (ii) as soon as practicable following the earlier of (A) receipt by Tyco of notice of, and (B) Tyco otherwise becoming aware of, any threatened or instituted claim, suit, petition or other proceedings with respect to the involuntary liquidation, dissolution or winding-up of Tyco or to effect any other distribution of assets of Tyco among its shareholders for the purpose of winding-up its affairs." (7) Section 5.12(c) is restated as follows: "In order that the Beneficiaries will be able to participate on a PRO RATA basis with the holders of Tyco Common Shares in the distribution of assets of Tyco in connection with a Liquidation Event, on the fifth Business Day prior to the Effective Date (the "LIQUIDATION EVENT EFFECTIVE DATE") of a Liquidation Event, all of the then outstanding Exchangeable Shares shall be automatically exchanged for Tyco Common Shares or, to SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -9- the extent that the holder of Exchangeable Shares is entitled to receive delivery of a fractional share, payment of the Fractional Cash Amount in lieu of such fractional share. To effect such automatic exchange, CIT Holdings shall purchase on the fifth Business Day prior to the Liquidation Event Effective Date each Exchangeable Share then outstanding and held by the Beneficiaries, and each Beneficiary shall sell the Exchangeable Shares held by it at such time, for a purchase price per share equal to the Current Market Price of 0.6907 of a Tyco Common Share (subject to adjustment in accordance with the provisions of the ESSA) on the fifth Business Day prior to the Liquidation Event Effective Date, which shall be satisfied in full by CIT Holdings causing Tyco to issue and deliver or caused to be delivered 0.6907 of a Tyco Common Share (subject to adjustment in accordance with the provisions of the ESSA) except that, where the aggregate purchase price payable to the holder of such Exchangeable Shares would otherwise entitle the holder to receive delivery of a fractional share, CIT Holdings shall pay the Fractional Cash Amount to such holder in lieu of such fractional share. For greater certainty, it is hereby confirmed that such holder shall also continue to be entitled to receive from Exchangeco, on the designated payment date therefor, the full amount of all declared but unpaid dividends on each such Exchangeable Share held by such holder on any dividend record date which occurred prior to the date of the exchange and, to the extent such amount is not paid by Exchangeco on the designated payment date therefor, such amount shall be paid by CIT Holdings on such date for and on behalf of Exchangeco." (8) Section 5.12(d) is restated as follows: "On the fifth Business Day prior to the Liquidation Event Effective Date, the closing of the transaction of purchase and sale contemplated by the automatic exchange of Exchangeable Shares for Tyco Common Shares (and payment of the Fractional Cash Amount in lieu of any fractional share) shall be deemed to have occurred, and each Beneficiary shall be deemed to have transferred to CIT Holdings all of the Beneficiary's right, title and interest in and to such Beneficiary's Exchangeable Shares and the related interest in the Trust Estate and shall cease to be a holder of such Exchangeable Shares and CIT Holdings shall cause Tyco to issue to the Beneficiary the Tyco Common Shares issuable upon the automatic exchange of Exchangeable Shares for Tyco Common Shares (and CIT Holdings shall pay to the Beneficiary the Fractional Cash Amount in lieu of any fractional share), and, on the applicable payment date, shall deliver to the Trustee for delivery to the Beneficiary a cheque for the amount, if any, of the declared but unpaid dividends as aforesaid for such Exchangeable Shares, without interest but less any amounts withheld pursuant to section 5.13. Concurrently with such Beneficiary ceasing to be a holder of Exchangeable Shares, CIT Holdings shall cause Tyco to consider and deem the Beneficiary for all purposes to be the holder of the Tyco Common Shares issued pursuant to the automatic exchange of Exchangeable Shares for Tyco Common Shares and the certificates held by the Beneficiary previously representing the Exchangeable Shares exchanged by the Beneficiary with CIT Holdings pursuant to such automatic exchange shall thereafter be deemed to represent Tyco Common Shares issued to the Beneficiary by Tyco pursuant to such automatic exchange. Upon the request of a SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -10- Beneficiary and the surrender by the Beneficiary of Exchangeable Share certificates deemed to represent Tyco Common Shares, duly endorsed in blank and accompanied by such instruments of transfer as CIT Holdings may reasonably require, CIT Holdings shall cause Tyco to deliver or cause to be delivered to the Beneficiary certificates representing Tyco Common Shares of which the Beneficiary is the holder and, where the Beneficiary is entitled to receive a fractional share to fully satisfy the automatic exchange obligation, CIT Holdings shall pay to such Beneficiary the Fractional Cash Amount in lieu of any such fractional share." 2.5 ARTICLE 6 Section 6.1 is restated as follows: "During the term of this trust agreement, CIT Holdings will ensure that Tyco does not, without the consent of the holders at the relevant time of Exchangeable Shares, given in accordance with section 10.2 of the Share Provisions, issue more than one Tyco SVP Share." 2.6 ARTICLE 7 (1) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 7.1 is restated by substituting "Tyco" for the reference to "CIT" in Section 7.1(a). (2) Section 7.3 is restated as follows: "(1) CIT Holdings will cause Tyco to take all corporate action necessary to irrevocably authorize the Trustee, from time to time, to: (a) consult, communicate and otherwise deal with Tyco's registrar and transfer agent, and with any such subsequent registrar or transfer agent, of the Tyco Common Shares; and (b) requisition, from time to time: (i) from any such registrar or transfer agent any information readily available from the records maintained by it which the Trustee may reasonably require for the discharge of its duties and responsibilities under this trust agreement; and (ii) from the transfer agent of Tyco Common Shares, and any subsequent transfer agent of such shares, the share certificates issuable upon the exercise from time to time of the Exchange Right and pursuant to the Automatic Exchange Rights. (2) CIT Holdings will cause Tyco to take all corporate action necessary to irrevocably authorize its registrar and transfer agent to comply with all requests under Section 7.3(1). CIT Holdings will cause Tyco to supply its transfer agent with duly executed share certificates, upon the request of a holder of Exchangeable Shares, for the purpose of completing the exercise from time to time of the Exchange Right and the Automatic Exchange Rights. SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -11- (3) Exchangeco irrevocably authorizes the Trustee, from time to time, to: (a) consult, communicate and otherwise deal with its registrar and transfer agent, and with any such subsequent registrar or transfer agent, of the Exchangeable Shares; and (b) requisition, from time to time from any such registrar or transfer agent any information readily available from the records maintained by it which the Trustee may reasonably require for the discharge of its duties and responsibilities under this trust agreement. (4) Exchangeco irrevocably authorizes its registrar and transfer agent to comply with all requests under Section 7.3(3). Exchangeco will supply its transfer agent with duly executed share certificates for the purpose of completing the exercise from time to time of the Exchange Right and the Automatic Exchange Rights." (3) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 7.4 is restated by substituting "Tyco" for the reference to "CIT" in Section 7.4(b). 2.7 ARTICLE 11 (1) Notwithstanding Section 1.3(1)(a) of this Agreement, the title of Article 11 is restated by substituting "Tyco" for the reference to "CIT". (2) Section 11.1 is restated as follows: "CIT Holdings will cause Tyco not to consummate any transaction (whether by way of reconstruction, reorganization, consolidation, merger, transfer, sale, lease or otherwise) whereby all or substantially all of its undertaking, property and assets would become the property of any other Person or, in the case of a merger, of the continuing corporation resulting therefrom unless, but may do so if: (a) such other Person or continuing corporation (herein called the "TYCO SUCCESSOR"), by operation of law, becomes, without more, bound by the terms and provisions of this trust agreement and the Tyco VE Agreement or, if not so bound, executes, prior to or contemporaneously with the consummation of such transaction, an agreement supplemental hereto and such other instruments (if any) as are satisfactory to the Trustee, acting reasonably, and in the opinion of legal counsel to the Trustee are reasonably necessary or advisable to evidence the assumption by the Tyco Successor of liability for all moneys payable and property deliverable under this trust agreement and the Tyco VE Agreement and the covenant of such Tyco Successor to pay and deliver or cause to be delivered the same and its agreement to observe and perform all the covenants and obligations of CIT Holdings under this trust agreement and Tyco under the Tyco VE Agreement; and SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -12- (b) such transaction shall, to the satisfaction of the Trustee, acting reasonably, and in the opinion of legal counsel to the Trustee, be upon such terms and conditions as substantially to preserve and not to impair in any material respect any of the rights, duties, powers and authorities of the Trustee or of the Beneficiaries under this trust agreement and the Tyco VE Agreement." (3) Section 11.2 is restated as follows: "Whenever the conditions of Section 11.1 have been duly observed and performed, the Trustee and, if required by Section 11.1, Tyco Successor and Exchangeco shall execute and deliver the supplemental agreement provided for in Article 12, and thereupon Tyco Successor shall possess and from time to time may exercise each and every right and power of Tyco or CIT Holdings under this trust agreement in the name of CIT Holdings or otherwise, the Tyco VE Agreement in the name of Tyco or otherwise, and any act or proceeding by any provision of this trust agreement or the Tyco VE Agreement, as the case may be, required to be done or performed by the respective boards of directors of CIT Holdings or Tyco or any officers of CIT Holdings or Tyco may be done and performed with like force and effect by the directors or officers of such Tyco Successor." (4) Section 11.3 is restated as follows: "Nothing herein shall be construed as presenting the amalgamation or merger of any wholly-owned direct or indirect subsidiary of Tyco with or into Tyco or the winding-up, liquidation or dissolution of any wholly-owned subsidiary of Tyco provided that all of the assets of such subsidiary are transferred to Tyco or another wholly-owned direct or indirect subsidiary of Tyco, Tyco or another wholly-owned direct or indirect subsidiary of Tyco assumes liability for all monies payable and property deliverable hereunder and agrees to observe and perform all the covenants and obligations of CIT Holdings under this trust agreement and any such transactions are expressly permitted by this Article 11." 2.8 ARTICLE 12 (1) Section 12.4 is restated as follows: "CHANGES IN CAPITAL OF TYCO AND EXCHANGECO At all times after the occurrence of any event contemplated pursuant to Section 2.7 or Section 2.8 of the ESSA, or otherwise, as a result of which either Tyco Common Shares or the Exchangeable Shares or both are in any way changed, this trust agreement and the Tyco VE Agreement shall forthwith be amended and modified as necessary in order that they shall apply with full force and effect, MUTATIS MUTANDIS, to all new securities into which Tyco Common Shares or the Exchangeable Shares or both are so changed, and the parties hereto shall execute and deliver supplemental agreements giving effect to and evidencing such necessary amendments and modifications." SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -13- (2) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 12.5 is restated by substituting "Tyco, CIT Holdings" for the reference to "CIT" in Section 12.5(b). 2.9 ARTICLE 14 (1) Section 14.2 is restated as follows: "This trust agreement and the Tyco VE Agreement shall be binding upon and enure to the benefit of the parties hereto, the Tyco Successor and their respective successors and assigns and to the benefit of the Beneficiaries. The parties hereto acknowledge and agree, and any Beneficiaries hereunder are hereby deemed to have acknowledged and agreed, that: (a) Montreal Trust has sold its corporate trust business and that such business is, as of the date of this trust agreement, owned and operated by Computershare Trust Company of Canada ("COMPUTERSHARE"); and (b) Montreal Trust may assign this trust agreement, the Tyco VE Agreement and any ancillary agreements executed in connection herewith, and all rights and obligations thereunder, to Computershare. Any such assignment shall be effective upon notice to without the need for any further approval of any other person and without any further act or formality whatsoever." (2) Sections 14.3 (a), (b) and (c) are restated as follows: (a) if to CIT Holdings: c/o Tyco International (US) Inc. One Tyco Park Exeter, NH 03833 USA Attention: Secretary Fax.: (603) 778-7700 With a copy (which shall not constitute notice) to: McMillan Binch Suite 3800, South Tower, Royal Bank Plaza Toronto, Ontario M5J 2J7 Canada Attention: David Dunlop Fax: (416) 865-7048 SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -14- (b) if to Exchangeco: c/o The CIT Group, Inc. 650 CIT Drive Livingston, NJ 07039 USA Attention: General Counsel Fax: (973) 740-5264 (c) if to the Trustee: Montreal Trust Company of Canada 100 University Avenue 11th Floor, South Tower Toronto, Ontario M5J 2Y1 Canada Attention: Manager, Client Services Fax: (416) 981-9777" ARTICLE 3 - GENERAL 3.1 CONFIRMATION Except as otherwise provided by this Agreement, the VETA remains in full force and effect. 3.2 EFFECTIVE DATE Notwithstanding the date of execution and delivery of this Agreement, it shall only come into force and become effective as of the Effective Time as defined in Section 1.02 of the Tyco Plan of Merger. If the Tyco Plan of Merger is terminated and the transactions contemplated therein have been abandoned pursuant to Section 7.01 of the Tyco Plan of Merger, then this Agreement shall be terminated and shall be of no further force or effect. SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT -15- The parties have executed this Agreement. MONTREAL TRUST COMPANY OF CANADA By: -------------------------------------- Authorized Signatory -------------------------------------- Authorized Signatory THE CIT GROUP, INC. By: -------------------------------------- Name: Title: CIT EXCHANGECO INC. By: -------------------------------------- Name: Title: TYCO ACQUISITION CORP. XIX (NV) By: -------------------------------------- Name: Title: SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT EX-99.4 9 a2050395zex-99_4.txt EXHIBIT 99.4 Exhibit 99.4 FORM OF TYCO VE AGREEMENT 1. FOR VALUE RECEIVED, Tyco International Ltd. ("TYCO") irrevocably covenants and agrees with Tyco Acquisition Corp. XIX (NV) ("CIT HOLDINGS"), CIT Exchangeco Inc. ("EXCHANGECO") and Montreal Trust Company of Canada (the "TRUSTEE") that each and every: (a) representation and warranty of CIT Holdings contained in that certain voting and exchange trust agreement made as of November 15, 1999 among Exchangeco, The CIT Group, Inc. ("CIT") and the Trustee (the "VETA") as supplemented by agreement in writing made as of the date hereof among CIT Holdings, CIT, Exchangeco and the Trustee (the "SUPPLEMENTAL VETA"): (i) contains no untrue statement; and (ii) does not omit to state a fact that is required to be stated or that is necessary to make such representation or warranty not misleading in the light of the circumstances; and (b) covenant, agreement or other obligation of CIT Holdings contained in the VETA shall be fully performed in the manner and at the time required for payment or performance thereof. 2. Tyco acknowledges and agrees that: (a) its obligations hereunder are full and unconditional; and (b) no release or extinguishment of the obligations or liabilities of CIT Holdings (other than in accordance with the terms of the VETA), whether by decree in any bankruptcy proceeding or otherwise, shall affect the continuing validity and enforceability of this Agreement, as well as any provision requiring or contemplating performance by Tyco. 3. Tyco hereby waives, for the benefit of CIT Holdings, Exchangeco and the Trustee: (a) any right to require Exchangeco or the Trustee, as a condition of payment or performance by Tyco, to proceed against CIT Holdings or pursue any other remedy whatsoever; and (b) to the fullest extent permitted by law, any defences or benefits that may be derived from or afforded by law which limit the liability of or exonerate sureties, except to the extent that any such defence is available to CIT Holdings. 4. Without limiting in any way the foregoing, Tyco covenants and agrees to take all action to enable CIT Holdings to adhere to each of the provisions of the VETA and the Supplemental VETA which requires an act or omission on the part of Tyco or any of its subsidiaries to enable CIT Holdings to comply with its obligations under the VETA and the Supplemental VETA. -2- 5. The provisions of Articles 1 and 12 and Sections 14.1, 14.2, 14.3, 14.6 and 14.7 of the VETA are incorporated herein, MUTATIS MUTANDIS, except that notices and other communications hereunder to Tyco shall be delivered to: Tyco International Ltd. The Zurich Centre, Second Floor 90 Pitts Bay Road Pembroke, HM08 Bermuda Attention: Chief Corporate Counsel Fax: (441) 295 - 9647 Confirm No.: (441) 292 - 8674 with a copy (which shall not constitute notice) to: McMillan Binch Suite 3800 South Tower, Royal Bank Plaza Toronto, Ontario M5J 2J7 Canada Attention: David Dunlop Fax: (416) 865-7048 6. Tyco understands that CIT Holdings, Exchangeco and the Trustee are relying on this Agreement in entering into the Supplemental VETA and may enforce this Agreement as if Tyco were a party thereto. 7. Notwithstanding the date of execution and delivery of this Agreement, it shall only come into force and become effective as of the Effective Time as defined in Section 1.02 of the agreement and plan of merger made as of March 12, 2001 between CIT Holdings and CIT (the "TYCO PLAN OF MERGER"). If the Tyco Plan of Merger is terminated and the transactions contemplated herein have been abandoned pursuant to Section 7.01 of the Tyco Plan of Merger, then this Agreement shall be terminated and shall be of no further force and effect. Tyco has executed this Agreement as of the ___ day of _____, 2001. TYCO INTERNATIONAL LTD. By: ------------------------------- Name: Title: TVCO SUPPORT AGREEMENT EX-99.6 10 a2050395zex-99_6.txt EXHIBIT 99.6 Exhibit 99.6 FORM OF SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT Dated as of the _____ day of ____, 2001 among The CIT Group, Inc. ("CIT"), Tyco Acquisition Corp. XIX (NV) ("CIT HOLDINGS"), 3026192 Nova Scotia Company ("NEWCO") and CIT Exchangeco Inc. ("EXCHANGECO"). RECITALS A. Pursuant to an amended and restated agreement and plan of reorganization dated as of August 5, 1999 between Newcourt Credit Group Inc. ("NEWCOURT") and CIT (the "NEWCOURT REORGANIZATION AGREEMENT"), CIT caused Exchangeco to issue exchangeable shares (the "EXCHANGEABLE SHARES") to certain holders of common shares in Newcourt pursuant to a plan of arrangement (the "NEWCOURT PLAN OF ARRANGEMENT"). B. Pursuant to the Newcourt Reorganization Agreement, Exchangeco, Newco and CIT entered into an exchangeable share support agreement dated as of November 15, 1999 (the "ESSA"). C. Section 3.1 of the ESSA provides that, in the event of a merger or other transaction whereby all or substantially all of CIT's undertaking, property and assets become the property of another person or, in the case of a merger, the continuing corporation resulting from the merger, such person or continuing corporation (the "CIT SUCCESSOR") shall execute a supplemental agreement to evidence the assumption by the CIT Successor of liability for all moneys payable and property deliverable under the ESSA and the covenant of such CIT Successor to pay and deliver or cause to be paid and delivered the same and its agreement to observe and perform all the covenants and obligations of CIT under the ESSA. D. Pursuant to an agreement and plan of merger made as of March 12, 2001 between CIT Holdings, a wholly-owned subsidiary of Tyco International Ltd. ("TYCO"), and CIT (the "TYCO PLAN OF MERGER"), CIT will merge with and into CIT Holdings, and CIT Holdings shall continue as the surviving corporation. It is intended that following the merger CIT Holdings will change its corporate name to "CIT Holdings (NV) Inc.". E. The Tyco Plan of Merger provides that each Exchangeable Share will remain outstanding, that, after the effective time of the merger, each Exchangeable Share shall, subject to the Tyco Plan of Merger, be exchangeable for 0.6907 of a Tyco Common Share and that CIT Common Stock shall, for all purposes under the ESSA, mean Tyco Common Shares, proportionately adjusted. F. CIT Holdings intends to become the CIT Successor within the meaning of Section 3.1 of the ESSA. G. The parties hereto wish to restate certain provisions of the ESSA to reflect events that have occurred since the original date thereof. -2- H. Pursuant to an agreement in writing made as of the date hereof (the "TYCO SUPPORT AGREEMENT"), Tyco is supporting the obligations of CIT Holdings under the ESSA, as supplemented by this Agreement. FOR VALUE RECEIVED, the parties agree, pursuant to Sections 3.1, 4.2 and 4.5(b) of the ESSA, to supplement and partially restate the ESSA with effect from the date hereof as follows: ARTICLE 1 - DEFINITIONS AND INTERPRETATION 1.1 NATURE OF AGREEMENT This Agreement is a supplemental agreement within the meaning of Sections 3.1, 4.2 and 4.5(b) of the ESSA. 1.2 DEFINITIONS Capitalized terms used in this Agreement without definition shall have the meanings assigned to them in the ESSA or otherwise applicable to such terms in the ESSA unless the context requires otherwise. In addition: (1) EQUIVALENT DIVIDEND means: (a) in the case of a cash dividend declared on the Tyco Common Shares, an amount in cash for each Exchangeable Share in U.S. dollars, or, at the option of the board of directors of Exchangeco, the Canadian Dollar Equivalent thereof payable on the Tyco Dividend Declaration Date, in each case equal to the cash dividend declared on each Tyco Common Share multiplied by the number of Tyco Common Shares for which outstanding Exchangeable Shares may be exchanged in accordance with the VETA and divided by the number of Exchangeable Shares then issued and outstanding (the "CONVERSION RATIO"); (b) in the case of a stock dividend declared on the Tyco Common Shares to be paid in additional Tyco Common Shares, additional Exchangeable Shares in the same ratio as the number of Tyco Common Shares issued by way of such stock dividend are to the total number of Tyco Common Shares issued and outstanding immediately preceding such stock dividend; and (c) in the case of a dividend declared on the Tyco Common Shares in property other than cash or additional Tyco Common Shares, such type and amount of property for each Exchangeable Share as is the same as or economically equivalent to (to be determined by the board of directors of Exchangeco as provided in Sections 2.7(a), (b), (d) and (e)) the type and amount of property declared as a dividend on each Tyco Common Share multiplied by the Conversion Ratio. (2) TYCO means Tyco International Ltd., a Bermuda company, and its successors. SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -3- (3) TYCO COMMON SHARES means the common shares of Tyco, par value U.S. $0.20 per share, in the capital of Tyco, and any other securities into which such shares may be changed. (4) TYCO CONTROL TRANSACTION means any merger, amalgamation, tender offer, material sale of shares or rights or interests therein or thereto or similar transactions involving Tyco, or any proposal to do so. (5) TYCO DIVIDEND DECLARATION DATE means the date on which the board of directors of Tyco declares any dividend on the Tyco Common Shares. (6) VETA means the voting and exchange trust agreement made as of November 15, 1999 among Exchangeco, CIT and Montreal Trust Company of Canada as supplemented by an agreement made as of the date hereof. 1.3 SUCCESSORS CONCEPTS (1) Except as otherwise provided herein, the existing references in the ESSA to: (a) "CIT" are restated by substituting therefor references to "CIT Holdings"; (b) "CIT Common Stock" are restated by substituting therefor references to "Tyco Common Shares" when referred to in the aggregate and "0.6907 of a Tyco Common Share, subject to the Tyco Plan of Merger", when referred to individually; and (c) "CIT Control Transaction" are restated by substituting therefor references to "Tyco Control Transaction". (2) References in this Agreement to substitutions are applicable whether the existing references are contained in the ESSA or are incorporated therein by reference to the Exchangeco Share Provisions or the terms of the Newcourt Plan of Arrangement. 1.4 RULES OF INTERPRETATION The provisions on construction and interpretation set forth in Sections 1.2, 1.3 and 1.4 of the ESSA shall apply to this Agreement. The provisions of Sections 4.3, 4.7, 4.10, 4.11 and 4.12 of the ESSA are incorporated by reference into and form part of this Agreement as if fully restated herein. ARTICLE 2 -EXCHANGEABLE SHARE SUPPORT AGREEMENT 2.1 ARTICLE 2 (1) Section 2.1(a), (b) and (c) are restated as follows: SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -4- "Subject to the prior rights of holders of Class B Preference Shares in the capital of Exchangeco, Exchangeco (as provided for in the Share Provisions) shall, subject to applicable law, on each Tyco Dividend Declaration Date, declare a dividend on each Exchangeable Share as provided for in this Section 2.1(1). So long as any Exchangeable Shares not owned by Tyco or its Affiliates are outstanding, CIT Holdings will: (a) ensure that Tyco does not declare or pay any dividend on the Tyco Common Shares, unless (i) Exchangeco shall simultaneously declare or pay, as the case may be, an Equivalent Dividend on the Exchangeable Shares and (ii) Exchangeco shall have sufficient money or other assets or authorized but unissued securities available to enable the due declaration and the due and punctual payment, in accordance with applicable law, of any such dividend on the Exchangeable Shares; (b) advise Exchangeco sufficiently in advance of the declaration by Tyco of any dividend on Tyco Common Shares and take all such other actions as are reasonably necessary, in cooperation with Exchangeco, to ensure that the respective declaration date, record date and payment date for a dividend on the Exchangeable Shares shall be the same as the declaration date, record date and payment date for the corresponding dividend on the Tyco Common Shares; and (c) ensure that the record date for any dividend declared on Tyco Common Shares is not less than 10 Business Days after the declaration date of such dividend." (2) Section 2.3 is restated as follows: "CIT Holdings hereby represents, warrants and covenants in favour of Exchangeco and Newco that Tyco has reserved for issuance and will, at all times while any Exchangeable Shares (other than Exchangeable Shares held by Tyco or its Affiliates) are outstanding, keep available, free from pre-emptive and other rights, out of its authorized and unissued capital stock such number of Tyco Common Shares (or other shares or securities into which Tyco Common Shares may be reclassified or changed as contemplated by Section 2.7 hereof): (a) as is equal to the sum of (i) the number of Tyco Common Shares deliverable on the exchange of Exchangeable Shares issued and outstanding from time to time; and (ii) the number of Tyco Common Shares deliverable on the exchange of Exchangeable Shares issuable upon the exercise of all rights to acquire Exchangeable Shares outstanding from time to time; and (b) as are now and may hereafter be required to enable and permit CIT Holdings to meet its obligations under the VETA and under any other security or SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -5- commitment pursuant to which Tyco may now or hereafter be required to issue Tyco Common Shares, to enable and permit Newco to meet its obligations under each of the Liquidation Call Right, the Retraction Call Right and the Redemption Call Right and to enable and permit Exchangeco to meet its respective obligations hereunder and under the Share Provisions. CIT Holdings further represents, warrants and covenants in favour of Exchangeco and Newco that Tyco has reserved for issuance and will, at all times while any replacement options issued pursuant to CIT's Transition Option Plan ("REPLACEMENT OPTIONS") are outstanding, keep available out of its authorized and unissued capital stock such number of Tyco Common Shares as is equal to the number of Tyco Common Shares issuable upon exercise of Replacement Options, as adjusted in accordance with the Tyco Plan of Merger." (3) Section 2.4(e) is restated without the phrase "(other than the issuance of Exchangeable Shares and rights to acquire Exchangeable Shares in exchange for outstanding Newcourt Common Shares pursuant to the Arrangement)". (4) Section 2.5 is restated by substituting therefor the following: "In furtherance of its obligations under sections 2.1(d) and (e) hereof, upon notice from Exchangeco or Newco of any event that requires Exchangeco or Newco to cause to be delivered Tyco Common Shares to any holder of Exchangeable Shares, CIT Holdings shall cause Tyco to forthwith issue and deliver or cause to be delivered to Exchangeco or Newco the requisite number of Tyco Common Shares to be received by, and issued to or to the order of, the former holder of the surrendered Exchangeable Shares, as Exchangeco or Newco shall direct. All such Tyco Common Shares shall be duly authorized and validly issued as fully paid and non-assessable and shall be free and clear of any lien, claim or encumbrance. In consideration of the issuance and delivery of each such Tyco Common Share, Exchangeco or Newco, as the case may be, shall issue to CIT Holdings, or as CIT Holdings shall direct, common shares of Exchangeco or Newco having equivalent value." (5) Section 2.6 is restated by substituting therefor the following: "CIT Holdings covenants that, if any Tyco Common Shares (or other shares or securities into which Tyco Common Shares may be reclassified or changed as contemplated by section 2.7 hereof) to be issued and delivered hereunder require registration or qualification with or approval of or the filing of any document, including any prospectus or similar document or the taking of any proceeding with or the obtaining of any order, ruling or consent from any governmental or regulatory authority under any Canadian, Bermudian or United States federal, provincial or state securities or other law or regulation or pursuant to the rules and regulations of any securities or other regulatory authority or the fulfillment of any other Canadian, Bermudian or United States legal requirement SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -6- before such shares (or such other shares or securities) may be issued and delivered by Tyco at the direction of CIT HOLDINGS, Newco or Exchangeco, if applicable, to the holder of surrendered Exchangeable Shares or in order that such shares (or such other shares or securities) may be freely traded thereafter (other than any restrictions of general application on transfer by reason of a holder being a "control person" for purposes of Canadian provincial securities law or an "affiliate" of Tyco for purposes of United States federal or state securities law), CIT Holdings will cause Tyco to in good faith expeditiously take all such actions and do all such things as are necessary or desirable to cause such Tyco Common Shares (or such other shares or securities) to be and remain duly registered, qualified or approved under Bermudian, United States and/or Canadian law, as the case may be. CIT Holdings will cause Tyco to in good faith expeditiously take all such actions and do all such things as are reasonably necessary or desirable to cause all Tyco Common Shares (or such other shares or securities) to be delivered hereunder to be listed, quoted or posted for trading on all stock exchanges and quotation systems on which outstanding Tyco Common Shares (or such other shares or securities) have been listed by Tyco and remain listed and are quoted or posted for trading at such time". (6) Section 2.7(a) is restated by substituting therefor the following: "CIT Holdings will ensure that Tyco does not without the prior approval of Exchangeco and the prior approval of the holders of the Exchangeable Shares given in accordance with Section 10.2 of the Share Provisions: (i) issue or distribute Tyco Common Shares (or securities exchangeable for or convertible into or carrying rights to acquire Tyco Common Shares) to the holders of all or substantially all of the then outstanding Tyco Common Shares by way of stock dividend or other distribution, other than an issue of Tyco Common Shares (or securities exchangeable for or convertible into or carrying rights to acquire Tyco Common Shares) to holders of Tyco Common Shares who exercise an option to receive dividends in Tyco Common Shares (or securities exchangeable for or convertible into or carrying rights to acquire Tyco Common Shares) in lieu of receiving cash dividends; (ii) issue or distribute rights, options or warrants to the holders of all or substantially all of the then outstanding Tyco Common Shares entitling them to subscribe for or to purchase Tyco Common Shares (or securities exchangeable SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -7- for or convertible into or carrying rights to acquire Tyco Common Shares); or (iii) issue or distribute to the holders of all or substantially all of the then outstanding Tyco Common Shares: (A) shares or securities of Tyco of any class other than Tyco Common Shares (other than shares convertible into or exchangeable for or carrying rights to acquire Tyco Common Shares); (B) rights, options or warrants other than those referred to in Section 2.7(a)(ii); (C) evidences of indebtedness of Tyco; or (D) assets of Tyco, unless the economic equivalent on a per share basis of such rights, options, securities, shares, evidences of indebtedness or other assets is issued or distributed simultaneously to holders of the Exchangeable Shares; provided that, for greater certainty, the above restrictions shall not apply to any securities issued or distributed by Tyco in order to give effect to and to consummate the transactions contemplated by, and in accordance with, the Tyco Plan of Merger." (7) Section 2.7(b) is restated by substituting therefor the following: "CIT Holdings will ensure that Tyco does not without the prior approval of Exchangeco and the prior approval of the holders of the Exchangeable Shares given in accordance with Section 10.2 of the Share Provisions: (i) subdivide, redivide or change the then outstanding Tyco Common Shares into a greater number of Tyco Common Shares; (ii) reduce, combine, consolidate or change the then outstanding Tyco Common Shares into a lesser number of Tyco Common Shares; or (iii) reclassify or otherwise change Tyco Common Shares or effect an amalgamation, merger, reorganization or other transaction affecting Tyco Common Shares, unless the same or an economically equivalent change shall simultaneously be made to, or in the rights of the holders of, the Exchangeable Shares." (8) Section 2.7(c) is restated by substituting therefor the following: "CIT Holdings will ensure that the record date for any event referred to in Sections 2.7(a) or 2.7(b), or (if no record date is applicable for such event) the effective date for any such event, is not less than five Business Days SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -8- after the date on which such event is declared or announced by Tyco (with contemporaneous notification thereof by Tyco to Exchangeco)." (9) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 2.7 is restated by substituting "Tyco" for the references to "CIT" in Section 2.7(d)(iii). (10) Section 2.8 is restated by substituting therefor the following: "If a tender offer, share exchange offer, issuer bid, take-over bid or similar transaction with respect to Tyco Common Shares (an "OFFER") is proposed by Tyco or is proposed to Tyco or its shareholders and is recommended by the board of directors of Tyco, or is otherwise effected or to be effected with the consent or approval of the board of directors of Tyco, and the Exchangeable Shares are not redeemed by Exchangeco or purchased by Newco pursuant to the Redemption Call Right, CIT Holdings will cause Tyco to use its reasonable efforts expeditiously and in good faith to take all such actions and do all such things as are necessary or desirable to enable and permit holders of Exchangeable Shares to participate in such Offer to the same extent and on an economically equivalent basis as the holders of Tyco Common Shares, without discrimination. Without limiting the generality of the foregoing, CIT Holdings will cause Tyco to use its reasonable efforts expeditiously and in good faith to ensure that holders of Exchangeable Shares may participate in all such Offers without being required to retract Exchangeable Shares as against Exchangeco (or, if so required, to ensure that any such retraction, shall be effective only upon, and shall be conditional upon, the closing of the Offer and only to the extent necessary to tender or deposit to the Offer). Nothing herein shall affect the rights of Exchangeco to redeem (or Newco to purchase pursuant to the Redemption Call Right) Exchangeable Shares, as applicable, in the event of a Tyco Control Transaction." (11) Section 2.9 is restated by substituting therefor the following: "Without the prior approval of Exchangeco and the prior approval of the holders of the Exchangeable Shares, voting as a separate class, CIT Holdings covenants and agrees in favour of Exchangeco that, as long as any outstanding Exchangeable Shares are owned by any Person other than Tyco or any of its Affiliates, CIT Holdings will cause Tyco to be and remain the direct or indirect beneficial owner of all issued and outstanding voting shares in the capital of Exchangeco and Newco." (12) Section 2.10 is restated by substituting therefor the following: "TYCO AND AFFILIATES NOT TO VOTE EXCHANGEABLE SHARES CIT Holdings covenants and agrees that it will cause Tyco to appoint and cause to be appointed proxyholders with respect to all Exchangeable SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -9- Shares held by Tyco and its Affiliates for the sole purpose of attending each meeting of holders of Exchangeable Shares in order to be counted as part of the quorum for each such meeting. CIT Holdings further covenants and agrees that it will cause Tyco not to, and will cause Tyco to cause its Affiliates not to, exercise any voting rights which may be exercisable by holders of Exchangeable Shares from time to time pursuant to the Share Provisions or pursuant to the provisions of the COMPANIES ACT (Nova Scotia) (or any successor or other corporate statute by which Exchangeco may in the future be governed) with respect to any Exchangeable Shares held by Tyco or by its Affiliates in respect of any matter considered at any meeting of holders of Exchangeable Shares". (13) Section 2.11 is restated by substituting therefor the following: "For certainty, nothing contained in this Agreement, including without limitation the obligations of CIT Holdings contained in section 2.8 hereof, shall limit the ability of Tyco or Exchangeco to make a "Rule 10b-18 Purchase" of Tyco Common Shares pursuant to Rule 10b-18 of the U. S. Securities Exchange Act of 1934, as amended, or any successor provisions thereof." (14) Section 2.12 is restated by substituting therefor the following: "CIT Holdings covenants and agrees in favour of Exchangeco that, as long as any outstanding Exchangeable Shares are owned by any person or entity other than Tyco or any of its Affiliates, CIT Holdings will cause Tyco to use its reasonable best efforts to maintain a listing for such Exchangeable Shares on the Toronto Stock Exchange." 2.2 ARTICLE 3 (1) Notwithstanding Section 1.3(1)(a) of this Agreement, the title of Article 3 is restated by substituting "Tyco" for the reference to "CIT". (2) Section 3.1 is restated by substituting therefor the following: "CIT Holdings shall ensure that Tyco does not consummate any transaction (whether by way of reconstruction, reorganization, consolidation, merger, transfer, sale, lease or otherwise) whereby all or substantially all of its undertaking, property and assets would become the property of any other person or, in the case of a merger, of the continuing corporation resulting therefrom unless: (a) such other person or continuing corporation (the "TYCO SUCCESSOR") by operation of law, becomes, without more, bound by the terms and provisions of this Agreement and the Tyco SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -10- Support Agreement or, if not so bound, executes, prior to or contemporaneously with the consummation of such transaction, an agreement supplemental hereto and such other instruments (if any) as are reasonably necessary or advisable to evidence the assumption by the Tyco Successor of liability for all moneys payable and property deliverable under this Agreement and the Tyco Support Agreement and the covenant of such Tyco Successor to pay and deliver or cause to be delivered the same and its agreement to observe and perform all the covenants and obligations of CIT Holdings under this Agreement and of Tyco under the Tyco Support Agreement; and (b) such transaction shall be upon such terms and conditions as substantially to preserve and not to impair in any material respect any of the rights, duties, powers and authorities of the other parties under this Agreement and the Tyco Support Agreement." (3) Section 3.2 is restated by substituting therefor the following: "Whenever the conditions of section 3.1 have been duly observed and performed, the parties, if required by section 3.1, shall execute and deliver a supplemental agreement hereto and thereupon the Tyco Successor shall possess and from time to time may exercise each and every right and power of CIT Holdings under this Agreement in the name of CIT Holdings or otherwise and each and every right and power of Tyco under the Tyco Support Agreement in the name of Tyco or otherwise, and any act or proceeding by any provision of this Agreement or the Tyco Support Agreement, as the case may be, required to be done or performed by the board of directors of CIT Holdings or Tyco or any officers of CIT Holdings or Tyco may be done and performed with like force and effect by the directors or officers of such Tyco Successor." (4) Section 3.3 is restated by substituting therefor the following: "Nothing herein shall be construed as presenting the amalgamation or merger of any wholly-owned direct or indirect subsidiary of Tyco with or into Tyco or the winding-up, liquidation or dissolution of any wholly-owned subsidiary of Tyco provided that all of the assets of such subsidiary are transferred to Tyco or another wholly-owned direct or indirect subsidiary of Tyco, Tyco or another wholly-owned direct or indirect subsidiary of Tyco assumes liability for all monies payable and property deliverable hereunder and agrees to observe and perform all the covenants and obligations of CIT Holdings under this Agreement and any such transactions are expressly permitted by this Article 3." SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -11- 2.3 ARTICLE 4 (1) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 4.1 is restated by substituting "Tyco" for the reference to "CIT". (2) Section 4.2 is restated by substituting therefor the following: "CHANGES IN CAPITAL OF TYCO AND EXCHANGECO At all times after the occurrence of any event contemplated pursuant to Sections 2.7 or 2.8 or otherwise, as a result of which either Tyco Common Shares or the Exchangeable Shares or both are in any way changed, this Agreement and the Tyco Support Agreement shall forthwith be amended and modified as necessary in order that they shall apply with full force and effect, MUTATIS MUTANDIS, to all new securities into which Tyco Common Shares or the Exchangeable Shares or both are so changed, and the parties hereto shall execute and deliver an agreement in writing giving effect to and evidencing such necessary amendments and modifications." (3) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 4.5 is restated by substituting "Tyco" and "CIT Holdings" for the references to "CIT". (4) Section 4.8 is restated by substituting therefor the following: "This Agreement and the Tyco Support Agreement shall be binding upon and enure to the benefit of the parties hereto, the Tyco Successor and their respective successors and assigns." (5) Sections 4.9(a) and (b) are restated by substituting therefor the following: "(a) if to CIT Holdings: c/o Tyco International (US) Inc. One Tyco Park Exeter, NH 03833 USA Attention: Secretary Fax: (603) 778-7700 With a copy (which shall not constitute notice) to: McMillan Binch Suite 3800 South Tower, Royal Bank Plaza Toronto, Ontario M5J 2J7 SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -12- Attention: David Dunlop Fax: (416) 865-7048 (b) if to Exchangeco: c/o The CIT Group, Inc. 650 CIT Drive Livingston, NJ 07039 USA Attention: General Counsel Fax: (973) 740-5264 (c) if to Newco: 650 CIT Drive Livingston, NJ 07039 USA Attention: General Counsel Fax: (973) 740-5264" ARTICLE 3 - GENERAL 3.1 CONFIRMATION Except as otherwise provided by this Agreement, the ESSA remains in full force and effect. 3.2 EFFECTIVE DATE Notwithstanding the date of execution and delivery of this Agreement, it shall only come into force and become effective as of the Effective Time as defined in Section 1.02 of the Tyco Plan of Merger. If the Tyco Plan of Merger is terminated and the transactions contemplated therein have been abandoned pursuant to Section 7.01 of the Tyco Plan of Merger, then this Agreement shall be terminated and be of no further force or effect. SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT -13- The parties have executed this Agreement. THE CIT GROUP, INC. By: ------------------------------------ Name: Title: TYCO ACQUISITION CORP. XIX (NV) By: ------------------------------------ Name: Title: 3026192 NOVA SCOTIA COMPANY By: ------------------------------------ Name: Title: CIT EXCHANGECO INC. By: ------------------------------------ Name: Title: SUPPLEMENTAL EXCHANGEABLE SHARE SUPPORT AGREEMENT EX-99.7 11 a2050395zex-99_7.txt EXHIBIT 99.7 Exhibit 99.7 FORM OF TYCO SUPPORT AGREEMENT 1. FOR VALUE RECEIVED, Tyco International Ltd. ("TYCO") irrevocably covenants and agrees with Tyco Acquisition Corp. XIX (NV) ("CIT HOLDINGS"), 3026192 Nova Scotia Company ("NEWCO") and CIT Exchangeco Inc. ("EXCHANGECO") that each and every: (a) representation and warranty of CIT Holdings contained in that certain exchangeable share support agreement dated November 15, 1999 among The CIT Group, Inc. ("CIT"), Newco and Exchangeco (the "ESSA") as supplemented by agreement in writing made as of the date hereof among CIT, Newco, Exchangeco and CIT Holdings (the "SUPPLEMENTAL ESSA"): (i) contains no untrue statement; and (ii) does not omit to state a fact that is required to be stated or that is necessary to make such representation or warranty not misleading in the light of the circumstances; and (b) covenant, agreement or other obligation of CIT Holdings contained in the ESSA shall be fully performed in the manner and at the time required for payment or performance thereof. 2. Tyco acknowledges and agrees that: (a) its obligations hereunder are full and unconditional; and (b) no release or extinguishment of the obligations or liabilities of CIT Holdings (other than in accordance with the terms of the ESSA), whether by decree in any bankruptcy proceeding or otherwise, shall affect the continuing validity and enforceability of this Agreement, as well as any provision requiring or contemplating performance by Tyco. 3. Tyco hereby waives, for the benefit of Exchangeco: (a) any right to require Exchangeco, as a condition of payment or performance by Tyco, to proceed against CIT Holdings or pursue any other remedy whatsoever; and (b) to the fullest extent permitted by law, any defences or benefits that may be derived from or afforded by law which limit the liability of or exonerate sureties, except to the extent that any such defence is available to CIT Holdings. 4. Without limiting in any way the foregoing, Tyco covenants and agrees to take all action to enable CIT Holdings to adhere to each of the provisions of the ESSA and the Supplemental ESSA which requires an act or omission on the part of Tyco or any of its subsidiaries to enable CIT Holdings to comply with its obligations under the ESSA and the Supplemental ESSA. TYCO SUPPORT AGREEMENT -2- 5. The provisions of Article 1 and Sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.11 and 4.12 of the ESSA are incorporated herein, MUTATIS MUTANDIS, except that notices and other communications hereunder to Tyco shall be delivered to: Tyco International Ltd. The Zurich Centre, Second Floor 90 Pitts Bay Road Pembroke, HM08 Bermuda Attention: Chief Corporate Counsel Fax: (441) 295 - 9647 Confirm No. (441) 292 - 8674 with a copy (which shall not constitute notice) to: McMillan Binch Suite 3800 South Tower, Royal Bank Plaza Toronto, Ontario M5J 2J7 Canada Attention: David Dunlop Fax: (416) 865-7048 6. Tyco understands that CIT Holdings, Newco and Exchangeco are relying on this Agreement in entering into the Supplemental ESSA and may enforce this Agreement as if Tyco were a party thereto. 7. Notwithstanding the date of execution and delivery of this Agreement, it shall only come into force and become effective as of the Effective Time as defined in Section 1.02 of the agreement and plan of merger made as of March 12, 2001 between CIT Holdings and CIT (the "TYCO PLAN OF MERGER"). If the Tyco Plan of Merger is terminated and the transactions contemplated herein have been abandoned pursuant to Section 7.01 of the Tyco Plan of Merger, then this Agreement shall be terminated and shall be of no further force and effect. Tyco has executed this Agreement as of the day of , 2001. ---------- -- TYCO INTERNATIONAL LTD. By: -------------------------- Name: Title: TYCO SUPPORT AGREEMENT -----END PRIVACY-ENHANCED MESSAGE-----