ADT 2011 Annual Report Download - page 127

Risks Relating to Our Jurisdiction of Incorporation in Switzerland
Swiss laws differ from the laws in effect in the United States and may afford less protection to holders of
Tyco’s securities.
Because of differences between Swiss law and U.S. state and federal laws and differences between
the governing documents of Swiss companies and those incorporated in the U.S., it may not be possible
to enforce in Switzerland, court judgments obtained in the United States against Tyco based on the civil
liability provisions of the federal or state securities laws of the United States. As a result, in a lawsuit
based on the civil liability provisions of the U.S. federal or state securities laws, U.S. investors may find
it difficult to:
• effect service within the United States upon Tyco or its directors and officers located outside the
United States;
• enforce judgments obtained against those persons in U.S. courts or in courts in jurisdictions
outside the United States; and
• enforce against those persons in Switzerland, whether in original actions or in actions for the
enforcement of judgments of U.S. courts, civil liabilities based solely upon the U.S. federal or
state securities laws.
Switzerland and the United States do not have a treaty providing for reciprocal recognition of and
enforcement of judgments in civil and commercial matters. The recognition and enforcement of a
judgment of the courts of the United States in Switzerland is governed by the principles set forth in the
Swiss Federal Act on Private International Law. This statute provides in principle that a judgment
rendered by a non-Swiss court may be enforced in Switzerland only if:
• the foreign court had jurisdiction pursuant to the Swiss Federal Act on Private International
Law;
• the judgment of such foreign court has become final and non-appealable;
• the judgment does not contravene Swiss public policy;
• the court procedures and the service of documents leading to the judgment were in accordance
with the due process of law; and
• no proceeding involving the same position and the same subject matter was first brought in
Switzerland, or adjudicated in Switzerland, or that it was earlier adjudicated in a third state and
this decision is recognizable in Switzerland.
As a result of our change of domicile from Bermuda to Switzerland and the increase in the par value of
our shares, we may have less flexibility with respect to certain aspects of capital management.
In connection with our change of domicile from Bermuda to Switzerland, we significantly increased
the par value of our shares. Currently the par value of our shares is CHF 6.70 (or approximately $7.44
based on the exchange rate in effect on November 7, 2011). Under Swiss law, we generally may not
issue registered shares for an amount below par value. As of November 7, 2011 the closing price of our
ordinary shares on the New York Stock Exchange (‘‘NYSE’’) was $46.47. In the event there is a need
to raise common equity capital at a time when the trading price of our registered shares is below our
par value, we would need to obtain approval of our shareholders to decrease the par value of our
registered shares. We cannot provide assurance that we would be able to obtain such shareholder
approval in a timely manner. Obtaining shareholder approval would require filing a preliminary proxy
statement with the SEC and convening a meeting of shareholders which would delay any capital raising
plans. If we were to receive shareholder approval to reduce the par value of our registered shares, the
24 2011 Financials