-----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, Fscw2OCM0wWg1zJ1hxjF5rpyUSHnSCK8dGbXXubwKAgApZO/NJFt2hzj7XxidOjV QArSOXA6CB0OpHfdW+LNMQ== 0000051396-98-000059.txt : 19981111 0000051396-98-000059.hdr.sgml : 19981111 ACCESSION NUMBER: 0000051396-98-000059 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19980930 FILED AS OF DATE: 19981110 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MALLINCKRODT INC /MO CENTRAL INDEX KEY: 0000051396 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 361263901 STATE OF INCORPORATION: NY FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 001-00483 FILM NUMBER: 98743064 BUSINESS ADDRESS: STREET 1: 675 MCDONNELL BLVD STREET 2: PO BOX 5840 CITY: ST LOUIS STATE: MO ZIP: 63134 BUSINESS PHONE: 3146542000 MAIL ADDRESS: STREET 1: 7733 FORSYTH BLVD CITY: ST LOUIS STATE: MO ZIP: 63105-1820 FORMER COMPANY: FORMER CONFORMED NAME: MALLINCKRODT INC /MO DATE OF NAME CHANGE: 19970625 FORMER COMPANY: FORMER CONFORMED NAME: MALLINCKRODT GROUP INC DATE OF NAME CHANGE: 19940322 FORMER COMPANY: FORMER CONFORMED NAME: IMCERA GROUP INC DATE OF NAME CHANGE: 19920703 10-Q 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ______________________________ FORM 10-Q X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF --- THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended September 30, 1998 OR X TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF --- THE SECURITIES EXCHANGE ACT OF 1934 Commission file number 1-483 ______________________________ MALLINCKRODT INC. (Exact name of registrant as specified in its charter) New York 36-1263901 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 675 McDonnell Boulevard St. Louis, Missouri 63134 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: 314-654-2000 ______________________________ Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X. No . Applicable Only To Issuers Involved In Bankruptcy Proceedings During The Preceding Five Years: Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes . No . Applicable Only To Corporate Issuers: Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. 71,341,966 shares excluding 15,774,323 treasury shares as of October 31, 1998. (*) Indicates registered trademark PART I. FINANCIAL INFORMATION Item 1. Financial Statements (Unaudited). The accompanying interim condensed consolidated financial statements of Mallinckrodt Inc. (the Company or Mallinckrodt) do not include all disclosures normally provided in annual financial statements. These financial statements, which should be read in conjunction with the consolidated financial statements contained in Mallinckrodt's 1998 Annual Report to Shareholders, are unaudited but include all adjustments which Mallinckrodt's management considers necessary for a fair presentation. These adjustments consist of normal recurring accruals except as discussed in Notes 1, 2 and 3 of the Notes to Condensed Consolidated Financial Statements. Interim results are not necessarily indicative of the results for the fiscal year. All references to years are to fiscal years ended June 30 unless otherwise stated. CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (In millions, except per share amounts) Three Months Ended September 30, ------------------------ 1998 1997 --------- --------- Net sales $ 591.2 $ 454.6 Operating costs and expenses: Cost of goods sold 318.3 275.8 Selling, administrative and general expenses 171.7 118.8 Purchased research and development 396.3 Research and development expenses 33.9 27.7 Other operating income, net (1.5) --------- --------- Total operating costs and expenses 523.9 817.1 --------- --------- Operating earnings (loss) 67.3 (362.5) Interest and other nonoperating income, net .9 9.2 Interest expense (20.6) (18.3) --------- --------- Earnings (loss) from continuing operations before income taxes 47.6 (371.6) Income tax provision 15.2 9.1 --------- --------- Earnings (loss) from continuing operations 32.4 (380.7) Discontinued operations 22.6 --------- --------- Earnings (loss) before cumulative effect of accounting change 55.0 (380.7) Cumulative effect of accounting change (8.4) --------- --------- Net earnings (loss) 55.0 (389.1) Preferred stock dividends (.1) (.1) --------- --------- Available for common shareholders $ 54.9 $(389.2) ========= ========= Basic earnings per common share: Earnings (loss) from continuing operations $ .44 $ (5.26) Discontinued operations .31 Cumulative effect of accounting change (.11) --------- --------- Net earnings (loss) $ .75 $ (5.37) ========= ========= Diluted earnings per common share: Earnings (loss) from continuing operations $ .44 $ (5.26) Discontinued operations .31 Cumulative effect of accounting change (.11) --------- --------- Net earnings (loss) $ .75 $ (5.37) ========= ========= (See Notes to Condensed Consolidated Financial Statements on pages 4 through 7.) CONDENSED CONSOLIDATED BALANCE SHEETS (In millions, except share and per share amounts) September 30, June 30, 1998 1998 ------------- ----------- ASSETS Current assets: Cash and cash equivalents $ 58.1 $ 55.5 Trade receivables, less allowances of $18.3 at September 30 and $16.7 at June 30 452.1 486.3 Inventories 505.6 470.0 Deferred income taxes 108.9 95.2 Other current assets 69.3 61.5 Net current assets of discontinued operations 4.8 --------- --------- Total current assets 1,194.0 1,173.3 Investments and other noncurrent assets, less allowances of $6.2 at September 30 and $5.8 at June 30 154.7 154.5 Property, plant and equipment, net 903.3 894.9 Goodwill, net 893.5 899.5 Technology, net 351.1 364.3 Other intangible assets, net 284.5 282.1 Net noncurrent assets of discontinued operations 12.4 Deferred income taxes 4.8 4.6 --------- --------- Total assets $3,785.9 $3,785.6 ========= ========= LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Short-term debt $ 373.1 $ 311.4 Accounts payable 181.1 215.0 Accrued liabilities 468.9 532.0 Income taxes payable 114.5 122.3 Deferred income taxes 4.0 1.4 --------- --------- Total current liabilities 1,141.6 1,182.1 Long-term debt, less current maturities 944.4 944.5 Deferred income taxes 401.8 396.2 Postretirement benefits 170.8 169.2 Other noncurrent liabilities and deferred credits 183.2 175.2 --------- --------- Total liabilities 2,841.8 2,867.2 --------- --------- Shareholders' equity: 4 Percent cumulative preferred stock 11.0 11.0 Common stock, par value $1, authorized 300,000,000 shares; issued 87,116,289 shares 87.1 87.1 Capital in excess of par value 314.9 315.2 Reinvested earnings 995.2 952.2 Accumulated other comprehensive expense (53.7) (72.6) Treasury stock, at cost (410.4) (374.5) --------- --------- Total shareholders' equity 944.1 918.4 --------- --------- Total liabilities and shareholders' equity $3,785.9 $3,785.6 ========= ========= (See Notes to Condensed Consolidated Financial Statements on pages 4 through 7.) CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (In millions) Three Months Ended September 30, ------------------------ 1998 1997 --------- --------- CASH FLOWS - OPERATING ACTIVITIES Net earnings (loss) $ 55.0 $ (389.1) Adjustments to reconcile net earnings (loss) to net cash provided (used) by operating activities: Depreciation 28.8 25.5 Amortization 20.2 12.4 Postretirement benefits 1.7 3.3 (Gains)/losses on asset disposals (37.4) .1 Deferred income taxes (7.4) (8.7) Write-off of purchased research and development 398.3 Sale of inventory stepped up to fair value at acquisition 18.8 Write-off of pre-operating costs 12.5 --------- --------- 60.9 73.1 Changes in operating assets and liabilities: Trade receivables 41.5 33.8 Inventories (33.5) (17.4) Other current assets (.8) 43.0 Accounts payable, accrued liabilities and income taxes payable, net (112.1) (152.9) Other noncurrent liabilities and deferred credits 6.0 18.4 Other, net 6.7 2.0 --------- --------- Net cash provided (used) by operating activities (31.3) .0 --------- --------- CASH FLOWS - INVESTING ACTIVITIES Capital expenditures (27.3) (30.3) Acquisition spending (1,734.6) Proceeds from asset disposals 55.1 1.3 --------- --------- Net cash provided (used) by investing activities 27.8 (1,763.6) --------- --------- CASH FLOWS - FINANCING ACTIVITIES Increase in short-term debt 60.5 1,091.8 Proceeds from long-term debt .2 .4 Payments on long-term debt (.4) Issuance of Mallinckrodt common stock .3 10.0 Acquisition of treasury stock (42.5) (9.7) Dividends paid (12.0) (12.1) --------- --------- Net cash provided by financing activities 6.1 1,080.4 --------- --------- Increase (decrease) in cash and cash equivalents 2.6 (683.2) Cash and cash equivalents at beginning of period 55.5 808.3 --------- --------- Cash and cash equivalents at end of period $ 58.1 $ 125.1 ========= ========= (See Notes to Condensed Consolidated Financial Statements on pages 4 through 7.) NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS 1. On August 28, 1997, the Company acquired Nellcor Puritan Bennett Incorporated (Nellcor) through an agreement to purchase for cash all the outstanding shares of common stock of Nellcor. The aggregate purchase price of the Nellcor acquisition was approximately $1.9 billion. The acquisition was accounted for under the purchase method of accounting and, accordingly, the results of operations of Nellcor have been included in the Company's consolidated financial statements since September 1, 1997. The purchase price of the acquisition was allocated to the assets acquired and liabilities assumed based upon estimated fair values at the date of acquisition. Included in earnings for the quarter ended September 30, 1997 are one-time noncash acquisition-related costs of $398.3 million for the write-off of purchased research and development, an identifiable intangible asset of the Nellcor acquisition, which had no tax benefit. Of this amount, $396.3 million related to ongoing operations and $2.0 million related to operations classified as discontinued operations. The sale of Nellcor inventories, which were stepped up to fair value in connection with the allocation of purchase price, resulted in charges of $18.8 million, $11.7 million net of taxes for the quarter ended September 30, 1997. Of this pretax amount, $18.6 million related to ongoing operations and $.2 million related to operations classified as discontinued operations. In connection with the Company's filing of a shelf registration statement for debt securities, Mallinckrodt is engaged in discussions with the staff of the Securities and Exchange Commission (SEC) regarding the purchase price allocation related to its acquisition of Nellcor. The Company and its auditors, Ernst & Young LLP, believe that the allocation and related amortization charges are in accordance with generally accepted accounting principles. Ernst & Young LLP has expressed their opinion that the Company's 1998 annual consolidated financial statements are fairly presented, in all material respects, in conformity with generally accepted accounting principles. Nevertheless, if there are any significant changes as a result of these discussions with the SEC to the amounts allocated to purchased research and development or other intangible assets or changes in the lives over which such amounts are amortized, these changes could have a material impact on the related noncash charges reflected in the 1998 and 1999 results of operations and could materially affect future results of operations as a result of increased amortization expense. During 1998, in connection with management's plan to integrate Mallinckrodt and Nellcor into one successful company, the Company recorded additional purchase liabilities of $50.1 million, $30.8 million net of related tax benefit, which were included in the acquisition cost allocation and related goodwill. The principal actions of the plan included Nellcor employee severance of $37.2 million, Nellcor employee relocation costs of $3.8 million and the elimination of contractual obligations of Nellcor, which had no future economic benefit, of $9.1 million. Approximately $32.1 million of cash expenditures have been incurred through September 30, 1998 and liabilities of $18.0 million related to the Nellcor integration plan remained in accrued liabilities at September 30, 1998. The majority of the remaining cash expenditures will occur in 1999 and, although none are expected, reductions in the estimated liability for these integration activities will be offset against the related goodwill. During 1998, the Company recorded a pretax charge of $19.1 million associated with exiting certain activities related to Mallinckrodt operations that were identified in the Nellcor integration plan. The charge included $17.1 million related to Mallinckrodt employee severance costs and facility exit costs of $2.0 million. Approximately $6.0 million of cash expenditures have been incurred through September 30, 1998. The majority of the remaining cash expenditures will occur in 1999 and no material adjustments to the original reserve are anticipated. 2. The Company sold certain chemical additive product lines in the second quarter of 1998. In the fourth quarter of 1998, the Company sold its catalyst business and Aero Systems division. In June 1998, the Company committed to the sale of the remaining chemical additives business of the catalysts and chemical additives division, and closing of the sale occurred on July 31, 1998. The transaction resulted in a $37.0 million gain on sale, $22.6 million net of taxes, which was included in discontinued operations for the quarter ended September 30, 1998. Earnings from operations were zero for the one month of operations. Included in prior year first quarter discontinued operations are the earnings from operations of the catalysts and chemical additives and Aero Systems divisions, which included $2.2 million of after-tax earnings from operations and a $2.2 million after- tax acquisition accounting charge. 3. The Company elected to early adopt the provisions of the American Institute of Certified Public Accountants SOP 98-5, "Reporting on the Costs of Start-Up Activities" (SOP 98-5), in its financial statements for the year ended June 30, 1998. The effect of adoption of SOP 98-5 was to record a charge of $8.4 million, net of taxes, for the cumulative effect of an accounting change to expense costs that had previously been capitalized prior to July 1, 1997. 4. On October 6, 1994, Augustine Medical, Inc. (Augustine) commenced a patent infringement litigation against Mallinckrodt Inc. and its wholly owned subsidiary, Mallinckrodt Medical, Inc. (collectively, the Company) in the U.S. District Court for the District of Minnesota. Specifically, Augustine alleged that the Company's sale of all five models of its convective warming blankets infringes certain claims of one or more of Augustine's patents. The Company filed counterclaims against Augustine in connection with the above actions alleging unfair competition, antitrust violations, and invalidity of the asserted patents, among other things. The liability phase of the case was tried to a jury in August 1997 and the verdict was that the Company's blankets infringe certain Augustine patents under the doctrine of equivalents, but do not literally infringe the patents. There was also a finding of no willful infringement. On September 22, 1997, the jury awarded damages in the amount of $16.8 million for the period ended September 30, 1997 and the judge put in place an injunction which stopped the Company from manufacturing and selling blankets in the United States. The Company appealed the jury verdicts of liability and damages to the Court of Appeals for the Federal Circuit (a special court for patent appeals that does not involve a jury). The Court of Appeals has stayed the injunction pending the outcome of the Company's appeal, and the Company continues to sell and manufacture blankets in the United States. With the advice of outside counsel, the Company believes there was insufficient evidence of equivalents presented and, consequently, for this and other reasons the verdicts were in error. The Company is working vigorously in the Appeals Court to overturn the verdicts and believes that it has strong arguments that its blankets do not infringe Augustine's patents. Based on all the facts available to management, the Company believes that it is reasonably possible but not probable that the jury verdict and the trial court injunction will be upheld on appeal. If damages were assessed in the same manner as determined by the jury for sales subsequent to September 30, 1997 plus interest on the estimated total, the total liability would approximate $25.1 million at September 30, 1998. The Company has not recorded an accrual for payment of the damages, because an unfavorable outcome in this litigation is, in management's opinion, reasonably possible but not probable. See Part II, Item 1 "Legal Proceedings" for additional information about this and related claims by Augustine against the Company. 5. The Company is subject to various investigations, claims and legal proceedings covering a wide range of matters that arise in the ordinary course of its business activities. In addition, the Company is in varying stages of active investigation or remediation of alleged or acknowledged contamination at 23 currently or previously owned or operated sites and at 15 off- site locations where its waste was taken for treatment or disposal. See Part II, Item 1 "Legal Proceedings" for additional information about legal proceedings involving the Company. Once the Company becomes aware of its potential environmental liability at a particular site, the measurement of the related environmental liabilities to be recorded is based on an evaluation of currently available facts such as the extent and types of hazardous substances at a site, the range of technologies that can be used for remediation, evolving standards of what constitutes acceptable remediation, presently enacted laws and regulations, engineers and environmental specialists' estimates of the range of expected clean-up costs that may be incurred, prior experience in remediation of contaminated sites, and the progress to date on remediation in process. While the current law potentially imposes joint and several liability upon each party at a Superfund site, the Company's contribution to clean up these sites is expected to be limited, given the number of other companies which have also been named as potentially responsible parties and the volumes of waste involved. A reasonable basis for apportionment of costs among responsible parties is determined and the likelihood of contribution by other parties is established. If it is considered probable that the Company will only have to pay its expected share of the total clean-up, the recorded liability reflects the Company's expected share. In determining the probability of contribution, the Company considers the solvency of the parties, whether responsibility is disputed, existence of an allocation agreement, status of current action, and experience to date regarding similar matters. Current information and developments are regularly assessed by the Company, and accruals are adjusted on a quarterly basis, as required, to provide for the expected impact of these environmental matters. The Company has established accruals only for those matters that are in its view probable and estimable. Based upon information currently available, management believes that existing accruals are sufficient to satisfy any known environmental liabilities, and that it is not reasonably possible at this time that any additional liabilities will result from the resolution of these matters that would have a material adverse effect on the Company's consolidated results of operations or financial position. 6. The following table sets forth the computation of basic and diluted earnings (loss) from continuing operations per common share (in millions, except shares and per share amounts). Three Months Ended September 30, ------------------------ 1998 1997 --------- --------- Numerator: Earnings (loss) from continuing operations $ 32.4 $(380.7) Preferred stock dividends (.1) (.1) --------- --------- Numerator for basic and diluted earnings (loss) per share-- income (loss) available to common shareholders $ 32.3 $(380.8) ========= ========= Denominator: Denominator for basic earnings (loss) per share-- weighted-average shares 72,917,133 72,475,530 Potential dilutive common shares--employee stock options 86,766 ---------- ---------- Denominator for diluted earnings (loss) per share--adjusted weighted-average shares 73,003,899 72,475,530 ========== ========== Basic earnings (loss) from continuing operations per common share $ .44 $ (5.26) ====== ======== Diluted earnings (loss) from continuing operations per common share $ .44 $ (5.26) ====== ======== The diluted share base for the three months ended September 30, 1997 excluded incremental shares of 681,423 related to employee stock options. These shares were excluded due to their antidilutive effect as a result of the Company's loss from continuing operations during this period. 7. The components of inventory included the following as of September 30, 1998: (In millions) Raw materials and supplies $ 206.6 Work in process 47.2 Finished goods 251.8 ------- $ 505.6 ======= 8. The Company has authorized and issued 100,000 shares, 98,330 outstanding at September 30, 1998, of par value $100, 4 percent cumulative preferred stock. The Company has authorized 1,400,000 shares, par value $1, of series preferred stock, none of which was outstanding during 1999 and 1998. Shares included in treasury stock were: September 30, June 30, 1998 1998 ------------- ---------- Common stock 15,597,215 13,941,638 4 Percent cumulative preferred stock 1,670 1,670 9. Common shares reserved at September 30, 1998 consisted of the following: Exercise of common stock purchase rights 82,360,270 Exercise of stock options and granting of stock awards 10,841,196 ---------- 93,201,466 ========== 10. Supplemental cash flow information for the three months ended September 30 included: (In millions) 1998 1997 --------- --------- Interest paid $27.7 $12.7 Income taxes paid 43.3 4.8 Noncash investing and financing activities: Assumption of liabilities related to an acquisition 488.5 Issuance of stock for investment plan match 6.0 9.7 Restricted stock award 10.0 11. Effective July 1, 1998, the Company adopted Financial Accounting Standards Board Statement No. 130, "Reporting Comprehensive Income" (SFAS 130). SFAS 130 establishes new rules for the reporting and display of comprehensive income and its components. Comprehensive income includes net income and other comprehensive income/(expense). Other comprehensive income/(expense) includes foreign currency translation adjustments and unrealized gains and losses on investments which prior to adoption were reported separately in shareholders' equity. Total comprehensive income for the three months ended September 30 was as follows: (In millions) 1998 1997 --------- --------- Net earnings (loss) $55.0 $(389.1) Other comprehensive income/(expense): Currency translation adjustment 21.2 (7.0) Net unrealized gain (loss) on investment securities (3.7) 3.4 Tax benefit related to items of other comprehensive income 1.4 --------- --------- Other comprehensive income (expense), net of tax 18.9 (3.6) --------- --------- Total comprehensive income (loss) $73.9 $(392.7) ========= ========= As of September 30, 1998, the cumulative balances for currency translation adjustment loss and the unrealized loss on investment securities were $49.9 million and $3.8 million, respectively. Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations. [1] All references to years are to fiscal years ended June 30 unless otherwise stated. Certain amounts in the prior year have been reclassified to conform to the current year presentation. All earnings per share amounts are calculated on a diluted basis unless otherwise stated. RESULTS OF OPERATIONS General - ------- The Company recorded earnings from continuing operations of $32.4 million, or 44 cents per share for the quarter ended September 30, 1998. Earnings from continuing operations for the same quarter last year, before including $407.8 million of noncash charges related to the acquisition of Nellcor, were $27.1 million, or 37 cents per share. - -------------------- [1] CAUTIONARY STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995: Our discussion and analysis in this quarterly report contain some forward-looking statements. Forward-looking statements do not relate strictly to historical or current facts, but rather give our current expectations or forecasts of future events. Forward-looking statements may be identified by their use of words such as "plans," "expects," "will," "anticipates," "believes," and other words of similar meaning. Such statements may address, among other things, the Company's strategy for growth, product development, regulatory approvals, the outcome of contingencies such as legal proceedings, market position, expenditures, and financial results. Forward-looking statements are based on current expectations of future events. Such statements involve risks and uncertainties and actual results could differ materially from those discussed. Among the factors that could cause actual results to differ materially from those projected in any such forward-looking statements are as follows: the effect of business and economic conditions; the impact of competitive products and continued pressure on prices realized by the Company for its products; constraints on supplies of raw materials used in manufacturing certain of the Company's products; capacity constraints limiting the production of certain products; difficulties or delays in the development, production, testing, and marketing of products; difficulties or delays in receiving required governmental or regulatory approvals; market acceptance issues, including the failure of products to generate anticipated sales levels; difficulties in rationalizing acquired businesses and in realizing related cost savings and other benefits; the effects of and changes in trade, monetary, and fiscal policies, laws, and regulations; foreign exchange rates and fluctuations in those rates; the costs and effects of legal and administrative proceedings, including environmental proceedings and patent disputes involving the Company; difficulties or delays in addressing "Year 2000" problems (as discussed in Item 2, Management's Discussion and Analysis of Financial Condition and Results of Operations); and the risk factors reported from time to time in the Company's SEC reports. The Company undertakes no obligation to update any forward-looking statements as a result of future events or developments. The acquisition of Nellcor was accounted for under the purchase method of accounting and, accordingly, the results of operations of Nellcor have been included in the Company's consolidated financial statements since September 1, 1997. In connection with the Company's filing of a shelf registration statement for debt securities, Mallinckrodt is engaged in discussions with the staff of the Securities and Exchange Commission (SEC) regarding the purchase price allocation related to its acquisition of Nellcor. The Company and its auditors, Ernst & Young LLP, believe that the allocation and related amortization charges are in accordance with generally accepted accounting principles. Ernst & Young LLP has expressed their opinion that the Company's 1998 annual consolidated financial statements are fairly presented, in all material respects, in conformity with generally accepted accounting principles. Nevertheless, if there are any significant changes as a result of these discussions with the SEC to the amounts allocated to purchased research and development or other intangible assets or changes in the lives over which such amounts are amortized, these changes could have a material impact on the related noncash charges reflected in the 1998 and 1999 results of operations and could materially affect future results of operations as a result of increased amortization expense. Net earnings for the first quarter of 1999 were $55.0 million, or 75 cents per share as compared to a net loss of $389.1 million, or $5.37 loss per share for the same period last year. Net earnings for the first quarter of 1999 included a gain of $22.6 million, or 31 cents per share on the sale of a chemical additives business, which related to a division reclassified to discontinued operations in 1998. The net loss for the same quarter of 1998 included a charge of $8.4 million, or 11 cents per share related to the cumulative effect of an accounting change discussed in Note 3 of the condensed consolidated financial statements. Net sales for the quarter were $591.2 million, up 30 percent from the $454.6 million in the same period last year. Sales to customers outside the United States were $181 million or 31 percent of total sales for the first quarter of 1999. A comparison of sales and operating earnings follows: (In millions) Three Months Ended September 30, ------------------------ 1998 1997 --------- --------- Net sales Respiratory $ 256.2 $ 141.9 Imaging 182.9 177.3 Pharmaceuticals 152.1 135.4 --------- --------- $ 591.2 $ 454.6 ========= ========= Operating earnings (loss) Respiratory $ 23.1 $ 22.4 Imaging 30.7 23.1 Pharmaceuticals 20.5 12.4 --------- --------- 74.3 57.9 Corporate expense (7.0) (5.5) --------- --------- 67.3 52.4 Acquisition charges (414.9) --------- --------- $ 67.3 $(362.5) ========= ========= Operating earnings for the quarter ended September 30, 1998 were $67.3 million, which is a 28 percent improvement over the same period of fiscal 1998 before acquisition-related charges. In the first quarter of last year, the Company recorded an operating loss of $362.5 million, which included noncash charges of $396.3 million for the write-off of purchased research and development and $18.6 million related to the sale of Nellcor inventories which were stepped up to fair value in connection with the Nellcor acquisition. The Respiratory Group, of which Nellcor is now a part, had sales of $256.2 million or 81 percent greater than the sales recorded for the same period last year. The prior year results included only one month of Nellcor sales and operating results. The Group's sales increase of $114.3 million was primarily attributable to volume growth (85 percent) due to the inclusion of only one month of Nellcor revenue in 1998, which was offset by price declines primarily involving anesthesia and respiratory devices. Operating earnings for the Group for the quarter were $23.1 million or 3 percent above the prior year. In spite of the benefits of the increased sales, the earnings comparison with prior year was negatively impacted by two months of additional expenses, which included additional amortization of intangibles and goodwill of $7.9 million. The Imaging Group had sales of $182.9 million or 3 percent above the prior year period of $177.3 million. The sales improvement was attributable to a $7.8 million increase in nuclear medicine product volume which offset the $2.2 million decline in the other product lines comprising the Group. Operating earnings for the Group were $30.7 million or 33 percent above the $23.1 million recorded for the same period last year. The operating earnings improvement was attributable to volume growth, lower rebates, expense control and increased manufacturing efficiencies. Although price declines in the x-ray contrast media portion of the business were not a major factor in the year to year comparison of results for the first quarter, it is probable that this will be a factor impacting subsequent quarters of this fiscal year. The demand for price discounts is expected to increase and reduce profitability in 1999, but at a lower rate of decline than was experienced in 1998 and 1997. The Pharmaceuticals Group sales for the quarter ended September 30, 1998 were $152.1 million or 12 percent greater than in the same period last year. The sales increase of $16.7 million was primarily attributable to volume increases in narcotics and drug chemicals of $15 million and $4 million, respectively, offset by volume declines in acetaminophen and lab and microelectronics. Price increases generated 3 percent of the year over year sales increase. Operating earnings for the Group were $20.5 million or 65 percent greater than the $12.4 million recorded in the comparable period last year. The operating earnings improvement was primarily attributable to increased sales of higher margin bulk and dosage narcotics and to improved operating rates at manufacturing facilities. CORPORATE MATTERS Corporate expenses were $7.0 million, or 27 percent above the level reported for the same period last year. Interest and other nonoperating income, net was $.9 million for the quarter as compared with $9.2 million for the same period last year. In 1998, the Company generated interest income on cash proceeds from 1997 divestitures invested in interest bearing securities. These cash equivalents were utilized to acquire Nellcor at the end of August 1997. The Company's effective tax rate was 31.9 percent for the quarter ended September 30, 1998. The tax rate for the same period last year, after excluding the one-time noncash write-off of purchased research and development of $396.3 million which had no tax benefit, was 36.8 percent. The improvement in 1999 was primarily attributable to changes in earnings mix between higher tax rate and lower tax rate entities associated with the acquisition of Nellcor. FINANCIAL CONDITION The Company's financial resources are expected to continue to be adequate to support existing businesses. Since June 30, 1998, cash and cash equivalents increased $2.6 million. Operations utilized $31.3 million of cash, while capital spending totaled $27.3 million. The Company received $55.1 million in proceeds from asset disposals. The Company's current ratio at September 30, 1998 was 1.0:1. Debt as a percentage of invested capital was 58.3 percent. In December 1997, the Company filed a $500 million shelf debt registration statement which has not, as yet, been declared effective. At September 30, 1998, the Company has a $1.0 billion private placement commercial paper program. The program is backed by a $1.0 billion revolving credit facility expiring September 12, 2002. The revolving credit facility was reduced from $1.6 billion to $1.0 billion in September 1998. There was no borrowing outstanding under the revolving credit facility at September 30, 1998. Commercial paper borrowings under this program were $345.0 million as of September 30, 1998. Non-U.S. lines of credit totaling $127.8 million were also available, and borrowings under these lines amounted to $19.2 million at September 30, 1998. The non-U.S. lines are cancelable at any time. The Company's Board of Directors previously authorized repurchase of 47 million shares of common stock and additional repurchases not to exceed cash outlays of $250 million. Share repurchases under these authorizations have totaled 38.7 million shares, including 1.9 million shares during the three months ended September 30, 1998. Estimated capital spending for the year ending June 30, 1999 is approximately $140 million. Year 2000 Update - ---------------- The Year 2000 issue is the result of date-sensitive devices, systems and computer programs that were deployed using two digits rather than four to define the applicable year. Any such technologies may recognize a year containing "00" as the year 1900 rather than the year 2000. This could result in a system failure or miscalculations causing disruptions of operations including, among other things, a temporary inability to process transactions or engage in similar normal business activities. The Company has completed its assessment of its information systems which support business applications and is in the late stages of modifying or replacing those portions of the software that are required. The assessment of products sold to customers has also been completed and necessary remediation is being accomplished. Assessment and remediation of research and development, manufacturing processes and facility management systems are underway. The Company is also assessing the readiness of its key suppliers and business partners to be Year 2000 compliant. Information requests have been distributed and replies are being evaluated. If the risk is deemed material, the Company is prepared to perform on-site visits to those businesses to verify the adequacy of the information received. All of these modification, replacement or conversion efforts should be substantially complete during the first quarter of calendar 1999, which is prior to any anticipated significant impact on Mallinckrodt's operations. Based upon the accomplishments to date, no modification or conversion contingency plans are expected to be needed and therefore none have been developed. Because of substantial progress to date and plans that contemplate being substantially complete in the first quarter of calendar 1999, we believe adequate time will be available to insure modification alternatives could be developed, assessed and implemented prior to a Year 2000 issue having a material negative impact on the operations of the Company. To further recognize potential adverse impact, the Company is developing operating contingency plans to address unanticipated interruptions that could occur in processes, systems and devices that have been assessed, remediated and considered Year 2000 ready by Mallinckrodt and its key suppliers and business partners. Such operating contingency plans are expected to be substantially complete before June 30, 1999. Both internal and external resources are being used to reprogram or replace non-compliant technologies, and to appropriately test Year 2000 modifications. Such modifications are being funded through operating cash flows. The project to address Year 2000 has been underway since February 1997. The pretax costs incurred for this effort were approximately $7 million and $1 million in 1998 and 1997, respectively. The Company anticipates expenses of approximately $13 million will be incurred in 1999 to substantially complete the effort. The cost of the project and the date on which the Company believes it will substantially complete Year 2000 modifications are based on management's best estimates. Such estimates were derived using software surveys and programs to evaluate calendar date exposures and numerous assumptions of future events, including the continued availability of certain resources and other factors. Because none of these estimates can be guaranteed, actual results could differ materially from those anticipated. Specific factors that might cause such differences include, but are not limited to, the availability and cost of personnel trained in this area, the ability to locate and correct all relevant computer codes, and similar uncertainties. If the modifications and conversions are not made or are not completed timely and operating contingency plans developed do not work as anticipated, the result could be an interruption, or a failure, of certain normal business activities or operations. Such failures could materially impact and adversely affect the Company's results of operations, liquidity and financial condition. Readers are cautioned that forward looking statements contained in this Year 2000 Update should be read in conjunction with the Company's disclosures under the heading "CAUTIONARY STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995" on page 7. European Monetary Union (EMU) - ----------------------------- The euro is scheduled to be introduced on January 1, 1999, at which time the eleven participating EMU member countries will establish fixed conversion rates between their existing currencies (legacy currencies) and the euro. The legacy currencies will continue to be valid as legal tender through June 30, 2002; thereafter, the legacy currencies will be canceled and euro bills and coins will be used for cash transactions in the participating countries. The Company's European sales offices and various manufacturing and distribution facilities affected by the euro conversion have established plans to address the systems issues raised by the euro currency conversion and are cognizant of the potential business implications of converting to a common currency. The Company is unable to determine the ultimate financial impact of the conversion on its operations, if any, given that the impact will be dependent upon the competitive situations which exist in the various regional markets in which the Company participates and the potential actions which may or may not be taken by the Company's competitors and suppliers. Item 3. Quantitative and Qualitative Disclosures About Market Risk. The Company has determined that its market risk exposures, which arise primarily from exposures to fluctuations in interest rates and foreign currency rates, are not material to its future earnings, fair value and cash flows. PART II. OTHER INFORMATION Item 1. Legal Proceedings. The Company is subject to various investigations, claims and legal proceedings covering a wide range of matters that arise in the ordinary course of its business activities. In addition, in connection with laws and regulations pertaining to the protection of the environment, the Company is a party to several environmental remediation investigations and clean-ups and, along with other companies, has been named a "potentially responsible party" for certain waste disposal sites. Each of these matters is subject to various uncertainties, and it is possible that some of these matters will be decided unfavorably against the Company. Environmental Matters - --------------------- The Company is actively involved in the investigation or remediation of alleged contamination of 23 currently or previously owned or operated sites and at 15 off-site locations where its waste was taken for treatment or disposal. These actions are in various stages of development and generally include demands for reimbursement of previously incurred costs, or costs for future investigation and/or for remedial actions. In many instances, the dollar amount of the claim is not specified. For some sites, other potentially responsible parties may be jointly and severally responsible, along with the Company, to pay for any past remediation and other related expenses. For other sites, the Company may be solely responsible for remediation and related costs. The Company anticipates that a portion of these costs will be covered by insurance or third party indemnities. A number of the currently pending matters relate to historic and formerly owned operations of the Company. Previously Reported Matters - --------------------------- The following is a brief discussion of material developments in environmental proceedings previously reported in the Company's annual report on Form 10-K for its fiscal year ended June 30, 1998. Orrington, ME - The Company has completed additional supplemental work which was required before submitting the final Site Investigation Plan to the EPA and the State of Maine. The Company anticipates it will submit the supplemental Site Investigation Plan in December 1998. St. Louis, MO/CT Decommissioning - The Company is developing the Phase II Decommissioning and Decontamination Plan (Phase II Plan) to submit to the Nuclear Regulatory Commission. This plan is due in December 1998. The Company, however, intends to request an extension of time for submittal of the Phase II Plan. Raleigh, NC - The Company has worked with federal and state agencies to complete the Resource Conservation Recovery Act Facility Investigation (RFI) and identified certain Solid Waste Management Units (SWMUs). Final approval of the RFI was granted and field work has been completed. The Company is preparing a report to submit to the North Carolina Department of Environment, Health and Natural Resources. Springville, UT - The parties at this site have hired an allocation consultant to assist in identifying historic practices in order to develop a final allocation. Meetings with the allocation consultant are scheduled to be held in November 1998. In October 1996, a resident with property bordering the Springville site filed suit against Ensign Bickford Industries (EBI) in the U.S. District Court for the District of Utah (Don Henrichsen, et al v. The ---------------------------- Ensign-Bickford Company, et al) alleging nuisance and trespass for - ------------------------------ contamination that allegedly migrated onto the resident's property. On January 31, 1997, the Company was added as a defendant. Depositions are being completed and expert reports have been generated. Plaintiffs have made settlement overtures, but the Company has rejected such proposals. The Company and EBI have entered into a confidential settlement of the Kent Gordon Stephens, et al v. Trojan Corporation, et al case. -------------------------------------------------------- Additional Environmental Matters - -------------------------------- Animal Health Business Properties - The Company sold its animal health business in June 1997 to Schering-Plough Corporation (S-P) and provided an environmental indemnity to S-P. This indemnity covered both U.S. facilities and international facilities. The indemnity lasts for a term of fifteen years and is limited to claims arising from activities and uses of the property prior to closing. The Company is working with S-P and the Indiana Department of Environmental Management (IDEM) to resolve certain issues regarding the Resource Conservation and Recovery Act requirements at the Terre Haute, Indiana facility. The facility had begun the RCRA Corrective Action process, but decided to allow the RCRA Part B permit to expire. However, there were continuing negotiations with the IDEM and U.S. Environmental Protection Agency Region V to discuss voluntary remediation activities to obtain a No Further Action letter. The Company and S-P have worked together and submitted reports to IDEM to resolve these issues. The Company and S-P will evaluate IDEM's response and determine the appropriate course of action for this facility. Under the terms of the indemnity, S-P had the option to conduct baseline environmental assessments at all of the properties transferred. S-P has completed initial baseline assessments and has made certain claims against the Company under the indemnity. Several of the properties located outside of the United States are in countries that have no specific environmental laws; therefore, the Company and S-P must determine the appropriate activities. The Company is working closely with S-P to discuss and resolve these claims. The Company has accruals to address potential indemnity claims. The Company intends to vigorously defend its position in connection with the environmental matters in connection with the formerly owned animal health business. Erie, PA (Calsicat) - The Company sold its facility located in Erie, Pennsylvania to Engelhard Corporation (Engelhard) in May 1998. This facility manufactures a variety of specialty catalysts. As part of the transaction, the Company provided an environmental indemnity to Engelhard. This indemnity distinguishes between on-site and off-site liabilities. On-site liabilities are limited to a term of five years. The Company has an obligation to jointly manage any on-site liabilities covered by the indemnity which require remediation. Off- site liabilities for activities arising from pre-closing activities are indemnified without a time limit. The Company and Engelhard are working together to address an ongoing groundwater collection and soil remediation project at the site. This project is being managed under the oversight of the Pennsylvania Department of Environmental Protection. The Company and Engelhard are evaluating including these remediation activities under Pennsylvania's voluntary remediation program. The Company has accruals to address the ongoing remediation projects and potential environmental claims under the indemnity. Allentown, PA (Trimet) - The Company sold its operations in Allentown, Pennsylvania to Geo Specialty Chemicals, Inc. (Geo) in July 1998. This facility currently manufactures formaldehyde and a limited number of specialty chemicals. The facility was historically operated as an explosives manufacturing plant. The Company provided an environmental indemnity to Geo for certain environmental activities which may be required by governmental agencies and a more limited indemnity for potential environmental claims arising from the actions of Geo. In addition to the indemnity, the Company has retained responsibility for completion of two ongoing remediation projects on-site including demolition of certain buildings and closure of a wastewater lagoon, as well as other environmental issues. The Company has established a reserve to address the ongoing remediation projects, potential environmental claims under the indemnity, and other environmental issues. St. Louis, MO/RCRA Corrective Action - The Company's St. Louis plant has a Resource Conservation Recovery Act (RCRA) Part B permit which requires the facility to undergo corrective action. The Company worked with the state agency to complete the RCRA Facility Assessment and identified certain Solid Waste Management Units (SWMUs) and Areas of Concern (AOCs). The Company received its permit and appealed certain provisions. The Company has negotiated a resolution of its appeal. The Missouri Department of Natural Resources has conditionally approved the RCRA Facility Investigation Final Work Plan submitted by the Company, which describes additional investigation of certain SWMUs and AOCs. The Company will be commencing field work in accordance with the Work Plan. Other Litigation - ---------------- The following is a brief discussion of material developments in other pending legal matters previously reported in the Company's annual report on Form 10-K for its fiscal year ended June 30, 1998. OPTISON(*) Patent Litigation - Discovery in the Mallinckrodt/MBI action has been stayed until the court rules on the Company and MBI's motion for summary judgement of invalidity of Nycomed's patent. The motion for summary judgement will be filed shortly. A motion to stay discovery in the Sonus action is pending before the court in the state of Washington. The motion was filed by Sonus. Sonus is asking the court to stay discovery until reexamination proceedings in the Patent Office are concluded. Augustine Medical, Inc. - A hearing before the Court of Appeals in this previously reported proceeding has been set for December 9, 1998. A decision by the Court of Appeals is expected in early calendar year 1999. Item 2. Changes in Securities and Use of Proceeds. Not applicable. Item 3. Defaults Upon Senior Securities. Not applicable. Item 4. Submission of Matters to a Vote of Security Holders. Not applicable. Item 5. Other Information. Not applicable. Item 6. Exhibits and Reports on Form 8-K. (a) Exhibits Exhibit Number Description - ------- -------------------------------------------------------- 10.29 Executive Incentive Compensation Plan for Fiscal 1999 (filed with this electronic submission) (1) 27 Financial data schedule for the quarter ended September 30, 1998 (filed with this electronic submission) - ----------------- (1) Management contract or compensatory plan required to be filed pursuant to Item 601 of Regulation S-K. (b) Reports on Form 8-K. During the quarter and through the date of this report, the following report on Form 8-K was filed. - - Report dated July 6, 1998 under Item 5 regarding the closure of Nellcor Puritan Bennett Incorporated facilities in Lenexa, Kansas. * * * * * * * * * * * * * * SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Mallinckrodt Inc. - --------------------------- Registrant By: MICHAEL A. ROCCA By: DOUGLAS A. MCKINNEY ------------------------ --------------------- Michael A. Rocca Douglas A. McKinney Senior Vice President and Vice President and Chief Financial Officer Controller DATE: November 9, 1998 EX-27 2
5 This schedule contains summary financial information extracted from the consolidated balance sheets and consolidated statements of operations of the Company's Form 10-Q, and is qualified in its entirety by reference to such financial statements. 1,000,000 3-MOS JUN-30-1999 SEP-30-1998 58 0 470 18 506 1194 1450 547 3786 1142 944 0 11 87 846 3786 591 591 318 524 0 0 21 47 15 32 23 0 0 55 .75 .75
EX-10.29 3 Exhibit 10.29 EXECUTIVE INCENTIVE COMPENSATION PLAN FOR FISCAL 1999 1. Purpose. The purpose of the Executive Incentive Compensation ------- Plan (the "Plan") is to further the growth and success of Mallinckrodt Inc. (the "Company") and its subsidiaries by providing key employees of the Company with additional incentives to contribute to the growth and success of the Company as measured by achievement against the objectives set forth in this Plan. 2. Administration. The Plan shall be administered by the -------------- Organization and Compensation Committee of the Board of Directors of the Company (the "Committee"). The Committee is authorized, subject to the provisions of the Plan, to establish from time-to- time such rules and regulations and make such interpretations and determinations as it may deem necessary or advisable for the proper administration of the Plan and all such rules, regulations, interpretations and determinations shall be binding upon all participants in the Plan. 3. Participation. Within three (3) months after the beginning of ------------- the Company's fiscal year beginning July 1, 1998 ("Fiscal 1999"), the Committee shall designate those key employees who are to become participants in the Plan. Notwithstanding the foregoing, the Committee shall have the discretion to designate additional participants in the Plan after such three (3) month period if and to the extent they are key employees whose employment with the Company (or any subsidiary thereof) commences more than three (3) months after the beginning of Fiscal 1999. Each such designation shall be in writing and shall be filed with the Vice President, Human Resources of the Company. 4. Target Incentive Awards. The Target Incentive Award ("Target ----------------------- Award") for a participant in the Plan for Fiscal 1999 shall be the amount (as approved by the Committee) communicated to such participant in writing by the Committee on or before the end of the third month of Fiscal 1999. Such Target Award shall be payable in whole or in part (and if at all) only in accordance with the provisions set forth in this Plan. Notwithstanding the foregoing or any other provision hereof, all Target Awards hereunder shall be indexed against changes in the Company's common stock price from the beginning to the end of Fiscal 1999 as determined in the following manner: the amount of any Target Award to be used in determining the amount payable to a participant hereunder shall be increased or reduced, as appropriate, by the percentage change in the Company's common stock price calculated by comparing the average of the high and low price of the Company's common stock, as reflected on the New York Stock Exchange Composite transactions tape ("NYSE Tape"), during the last fifteen (15) New York Stock Exchange trading dates of Fiscal 1999 against the average of the high and low price of the Company's common stock, as reflected on the NYSE Tape, during the first fifteen (15) New York Stock Exchange trading days prior to the date of approval by the Company of this Plan (August 11, 1998). Unless and to the extent otherwise specifically set forth herein, any and all references to a Target Award in this Plan shall mean and refer to a Target Award as indexed pursuant to the immediately preceding sentence. 5. Performance Objectives. ---------------------- (a) Not later than the end of the second month of Fiscal 1999, the Committee, after consultation with the Chief Executive Officer ("CEO") of the Company, shall establish financial performance objectives for the Plan for Fiscal 1999 (the "Performance Objectives"). (b) Notwithstanding the provisions of paragraph (a) immediately above, the Committee may, after consultation with the CEO, cause adjustments to be made to the Performance Objectives as a consequence of income or loss attributable to any business acquired or divested during Fiscal 1999 or any other transaction or any adjustment on the books of account of the Company occurring during Fiscal 1999 identified by the Committee as being of an unusual and nonrecurring nature, provided that the Committee shall not so exclude any such item unless it shall be satisfied that it was not taken into account in arriving at the Performance Objectives for Fiscal 1999. (c) Not more than three (3) months after the beginning of Fiscal 1999, all participants shall be notified of the Performance Objectives. Such Performance Objectives shall not be changed unless approved by the Committee upon the recommendation of the Chief Executive Officer of the Company ("CEO"). 6. Threshold Percentage; Maximum Percentage. ---------------------------------------- (a) No later than the end of the third month of Fiscal 1999, the Committee, after consultation with the CEO, shall establish for the participants hereunder a minimum percentage of achievement (the "Threshold Percentage") with respect to the Performance Objectives. If the Threshold Percentage is not achieved, there will be no payment of incentive awards hereunder except as provided in Section 6(c) below. (b) No later than the end of the third month of Fiscal 1999, the Committee, after consultation with the CEO, shall establish for the participants hereunder a schedule of incentive awards to be paid hereunder expressed as a percentage of the Target Award for each participant based on the percentage of achievement of the Performance Objectives in excess of the Threshold Percentage; provided that, in no event will any participant be entitled to receive an amount in excess of two hundred percent (200%) of his or her Target Award ("Maximum Percentage"), except as provided in Section 6(c) or Section 8(d) below. (c) If the Threshold Percentage is not met or the Maximum Percentage is exceeded, the Board of Directors may, in either case and upon the Committee's recommendation, establish a special award pool for distribution to the participants in a manner in which the Board of Directors shall determine and in an amount which is reasonably related to the actual performance of the Company and the participants. The special award pool shall be combined with any payment of incentive awards based on achievement of the Maximum Percentage as specified in Section 6(b) above. 7. Payment and Vesting of Incentive Awards. --------------------------------------- (a) Except as otherwise provided in Section 8 hereof following a Change in Control (as hereinafter defined), promptly after the end of Fiscal 1999, the Chief Financial Officer ("CFO") of the Company shall report to the CEO and the Committee the percentage of achievement of the Performance Objectives with respect to the Plan and the stock price indexing of Target Awards as calculated pursuant to Section 4 above. If the Threshold Percentage has been exceeded but the Maximum Percentage has not been exceeded, the Committee shall empower the Vice President, Human Resources and other appropriate officers and employees of the Company to make payment of incentive awards to the participants in accordance with the requirements hereof, including but not limited to the provisions of Section 7(c) below. If either the Threshold Percentage has not been attained or the Maximum Percentage has been exceeded, the Committee, if it determines that it is appropriate to do so, will establish a special award pool in accordance with Section 6(c) above to be allocated for payment to each individual participant in the same proportion as such participant's Target Award bears to the total of all Target Awards established hereunder, with such adjustments as the Committee deems necessary to account for participants who are employed by the Company for less than all of Fiscal 1999. Regardless of when payment of any awards is to be made to participants hereunder, any award to which a participant is entitled hereunder shall, absent a Change in Control, become vested to the account of the participant as follows: 50% on the last day of Fiscal 1999 and 100% on the last day of fiscal year 2000 ("Fiscal 2000"). (b) A participant who is otherwise eligible to receive an incentive award pursuant to the terms of this Plan must be actively employed by the Company (or a subsidiary thereof) on the last day of Fiscal 1999 to be eligible to receive any portion of an incentive award hereunder and must be actively employed by the Company (or a subsidiary thereof) on the last day of Fiscal 2000 to be eligible to receive the entire amount of any award for which such participant is otherwise eligible in accordance with the terms hereof. However, if a participant's employment is terminated prior to the last day of Fiscal 1999 by reason of the participant's death, disability or Qualified Retirement (as defined below), the participant (or the participant's designated beneficiary in the event of his or her death), at the sole discretion of the Committee, shall be entitled to receive an amount determined by multiplying one-half of the incentive award which would otherwise have been payable pursuant to this Plan had the participant remained an employee through the last day of Fiscal 2000 by a fraction, the numerator of which is the number of days during Fiscal 1999 that the participant was employed by the Company (or a subsidiary thereof) and the denominator of which is 365. Further, if a participant's employment is terminated prior to the last day of Fiscal 2000 but after the end of Fiscal 1999 by reason of the participant's death, disability or retirement, the participant (or the participant's designated beneficiary in the event of his or her death), shall be entitled to receive (i) an amount equal to one-half of the incentive award which would otherwise have been payable pursuant to this Plan had the participant remained an employee through the last day of Fiscal 2000 and, (ii) at the sole discretion of the Committee, an additional amount determined by multiplying one-half of the incentive award which otherwise would have been payable pursuant to this Plan had the participant remained an employee through the last day of Fiscal 2000 by a fraction, the numerator of which is the number of days during Fiscal 2000 that the participant was employed by the Company (or a subsidiary thereof) and the denominator of which is 365. For purposes of this Plan, "retirement" means retirement at or after age 55, but shall not include any termination of a participant for Cause (as defined in Section 8(c) hereof). If a participant hereunder begins employment after the first day of Fiscal 1999, the participant's incentive award for Fiscal 1999 shall be determined by an appropriate proration consistent with the intent set forth in this paragraph (b). (c) Unless the participant elects otherwise pursuant to paragraph (d) of Section 7 or unless required otherwise pursuant to the provisions of paragraph (e) of Section 7, payment of incentive awards to participants under the Plan with respect to Fiscal 1999 shall be made in cash in a lump sum (net of any required withholding taxes) within seventy five (75) days after the close of Fiscal 2000. (d) A participant (other than participants that are not either United States citizens or permanently resident in the United States) may elect to defer payment of his or her actual incentive award for Fiscal 1999 by written notice submitted to the Committee not later than thirty (30) days after the date on which a participant has been provided notice of his or her Target Award and the Plan Performance Objectives. A participant electing to defer may have his or her award paid in one of the following ways: (i) with the consent of the Committee, in a lump sum payment or in a series of not less than five (5) nor more than ten (10) installments commencing no earlier that seventy five (75) days after the end of Fiscal 2000 and not later than sixty (60) days after the end of the calendar year in which the participant terminates his employment, whether by death, disability, normal or early retirement, pursuant to the Company's retirement plan, or any other reason; it being understood that the Committee may, upon request by a participant prior to his or her termination of employment, in the Committee's sole discretion, deem that any period of consultancy with the Company which is commenced immediately upon a participant's termination of employment is a continuation of employment for purposes of this subparagraph (i) only; or (ii) with the consent of the Committee, in a lump sum payment on any other date or in a series of not less than five (5) nor more than ten (10) installments commencing on any other date as may be agreed upon by the participant and the Committee; provided however, should a participant terminate employment prior to such agreed upon date, the Committee may, in its sole discretion, pay all such participant's awards deferred pursuant to this subparagraph (ii), plus interest accrued thereon, to such participant no later than sixty (60) days after the date of termination of employment. All incentive awards hereunder, whether deferred or not, shall be payable in cash (net of any required withholding of taxes). Notwithstanding the election to defer made by the participant pursuant to the foregoing, the Committee in its sole discretion may, upon the death or disability of a participant during Fiscal 1999 or Fiscal 2000 and who was still employed at the time of such death or disability, pay such participant's deferred awards under this Plan plus accrued interest thereon to the participant or to such participant's designated beneficiary (as applicable) in a lump sum no later than sixty (60) days after the end of the calendar year in which the participant's death or disability occurs. A participant's deferred compensation account shall not be trusted, nor will such account represent any obligation on the part of the Company other than the contractual obligations specified in the applicable award deferral agreement. The Company agrees to accrue interest on the participant's deferred compensation account at the end of each month at a rate equal to the prime rate being charged or quoted by Citibank on and as of the first day of the particular calendar quarter in which such month occurs. (e) Notwithstanding any other provision of this Plan that may be interpreted to the contrary, the Committee, in its sole judgment and discretion, may determine, because of the adverse impact of any tax or other laws, rules or regulations upon the Company or for the advancement of any other corporate purpose, interest or objective, that it is necessary or desirable that all or some portion of the incentive award otherwise payable to all or any similarly situated group of participants in accordance with this Plan be deferred until such time or times as payment of all or some of such deferred amounts to the participant would not subject the Company to any such adverse impact. Further, it is understood that, with respect to a participant who is a "covered employee" within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended, payments of incentive awards shall be automatically deferred to the extent necessary until such time as either (i) payment of all or a portion of any such deferred incentive awards can be made to such an employee in a manner that will ensure full tax deductibility therefor to the Company or (ii) such employee ceases to be a "covered employee". It is understood that no participant in this Plan shall be entitled to receive payment of any incentive award hereunder or to be a participant in this Plan unless such participant shall execute such documents as the Company shall provide specifying that participation in the Plan is conditional upon the participant's understanding and acceptance of the discretionary authority granted to the Committee pursuant to this Section 7(e) and Section 9 hereof. In the event of an automatic deferral of all or any portion of a participant's incentive award pursuant to this Section 7(e), any such deferred amounts shall accrue interest until paid at the rate set forth in the last sentence of Section 7(d). 8. Change in Control. ----------------- (a) For purposes of the Plan, "Change in Control" means the occurrence of any one of the following events: (i) any "person" (as such term is defined in Section 3(a)(9) of the Securities Exchange Act of 1934 (the "Exchange Act") and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company's then outstanding securities eligible to vote for the election of the Board of Directors (the "Company Voting Securities"); provided, however, that the event described in this subparagraph (i) shall not be deemed to be a Change in Control by virtue of any of the following acquisitions: (A) by the Company or any subsidiary of the Company, (B) by any employee benefit plan sponsored or maintained by the Company or any subsidiary of the Company, (C) by any underwriter temporarily holding securities pursuant to an offering of such securities, (D) pursuant to a Non-Control Transaction (as defined in subparagraph (iii) below), (E) with respect to any specific participant, pursuant to any acquisition by the participant or any group of persons including the participant, or (F) except as provided in subparagraph (iii) below, in which Company Voting Securities are acquired from the Company, if a majority of the Board approves a resolution providing expressly that such acquisition does not constitute a Change in Control under this subparagraph (i); (ii) individuals who, on the date of adoption of this Executive Incentive Compensation Plan, constitute the Board of Directors (the "Incumbent Board") cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to the date of adoption of this Executive Incentive Compensation Plan, whose election, or nomination for election, by the Company's stockholders was approved by a vote of at least a majority of the directors comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) shall be, for purposes of this paragraph (ii), considered as though such person were a member of the Incumbent Board; provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest with respect to directors or any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board of Directors shall be deemed to be a member of the Incumbent Board; (iii)the consummation of a merger, consolidation, share exchange or similar form of corporate reorganization of the Company or any such type of transaction requiring the approval of the Company's stockholders (whether for such transaction or the issuance of securities in the transaction or otherwise), or the consummation of the direct or indirect sale or other disposition of all or substantially all of the assets, of the Company (a "Business Combination"), unless immediately following such Business Combination: (A) more than 50% of the total voting power of the publicly traded corporation resulting from such Business Combination (including, without limitation, any corporation which directly or indirectly has beneficial ownership of 100% of the Company Voting Securities or all or substantially all of the Company's assets) eligible to elect directors of such corporation is represented by shares that were Company Voting Securities immediately prior to such Business Combination (either by remaining outstanding or being converted), and such voting power is in substantially the same proportion as the voting power of such Company Voting Securities immediately prior to the Business Combination, (B) no person (other than any publicly traded holding company resulting from such Business Combination, any employee benefit plan sponsored or maintained by the Company (or the corporation resulting from such Business Combination), or any person which beneficially owned, immediately prior to such Business Combination, directly or indirectly, 20% or more of the Company Voting Securities (a "Company 20% Stockholder")) becomes the beneficial owner, directly or indirectly, of 20% or more of the total voting power of the outstanding voting securities eligible to elect directors of the corporation resulting from such Business Combination and no Company 20% Stockholder increases its percentage of such total voting power, and (C) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the approval of the Board of Directors of the execution of the initial agreement providing for such Business Combination (any transaction satisfying (A), (B) and (C) immediately above a "Non-Control Transaction"); or (iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company. Notwithstanding the foregoing, a Change in Control of the Company shall not be deemed to occur solely because any person acquires beneficial ownership or more than 20% of the Company Voting Securities as a result of the acquisition of Company Voting Securities by the Company which, by reducing the number of Company Voting Securities outstanding, increases the percentage of shares beneficially owned by such person; provided that, if a Change in Control of the Company would occur as a result of such an acquisition by the Company (if not for the operation of this sentence), and after the Company's acquisition such person becomes the beneficial owner of additional Company Voting Securities that increases the percentage of outstanding Company Voting Securities beneficially owned by such person, then a Change in Control of the of the Company shall occur. (b) For purposes of the Plan, "Good Reason" with respect to a participant means, without such participant's express written consent, the occurrence of any of the following events after a Change in Control: (i) (1) the assignment to such participant of any duties or responsibilities (including reporting responsibilities) inconsistent in any material and adverse respect with the participant's duties and responsibilities with the Company immediately prior to such Change in Control (including any material and adverse diminution of such duties or responsibilities), it being understood that Good Reason shall not be deemed to occur upon a change in duties or responsibilities that is solely and directly a result of the Company no longer being a publicly traded entity, and does not involve any other event set forth in this paragraph (b) or (2) a material and adverse change in such participant's titles or offices with the Company as in effect immediately prior to such Change in Control; (ii) a reduction by the Company in such participant's rate of annual base salary or target annual bonus or other incentive compensation opportunity as in effect immediately prior to such Change in Control or as the same may be increased from time to time thereafter; (iii)any requirement of the Company that such participant (1) notwithstanding his or her objection, be based anywhere more than fifty (50) miles from the location where the participant's employment is located at the time of the Change in Control or (2) travel on Company business to an extent substantially greater than the travel obligations of the participant immediately prior to such Change in Control; or (iv) the failure of the Company to (1) continue in effect any employee benefit plan or compensation plan in which such participant is participating immediately prior to such Change in Control (including the taking of any action by the Company which would adversely affect the participant's participation in or materially reduce the participant benefits under any such plan), unless the participant is permitted to participate in other plans providing the participant with substantially comparable benefits, (2) provide such participant and the participant's dependents with welfare benefits in accordance with the most favorable plans, practices, programs and policies of the Company and its affiliated companies in effect for the participant immediately prior to such Change in Control or provide substantially comparable benefits at a substantially comparable cost to the participant, (3) provide fringe benefits in accordance with the most favorable plans, practices, programs and policies of the Company and its affiliated companies in effect for such participant immediately prior to such Change in Control, or provide substantially comparable fringe benefits, or (4) provide such participant with paid vacation in accordance with the most favorable plans, policies, programs and practices of the Company and its affiliated companies as in effect for the participant immediately prior to such Change in Control (including crediting the participant with all service credited to him or her for such purpose prior to the Change in Control), unless the failure to provide such paid vacation is a result of a policy uniformly applied by the entity acquiring the Company to its employees. Notwithstanding the foregoing portions of this paragraph (b), an isolated and inadvertent action taken in good faith and which is remedied by the Company within ten (10) days after receipt of notice thereof given by the participant shall not constitute Good Reason. The participant must notify the Company of an event constituting Good Reason within ninety (90) days following his or her knowledge of its existence or such event shall not constitute Good Reason under the Plan. (c) For purposes of the Plan, "Cause" means with respect to a participant (i) the willful and continued failure of such participant substantially to perform his or her duties with the Company (other than any failure due to physical or mental incapacity) after a demand for substantial performance is delivered to him or her by the Committee which specifically identifies the manner in which the Committee believes he has not substantially performed his or her duties or (ii) willful misconduct materially and demonstrably injurious to the Company. No act or failure to act by a participant shall be considered "willful" unless done or omitted to be done by him or her not in good faith and without reasonable belief that his or her action or omission was in the best interest of the Company. The unwillingness of a participant to accept any condition or event which would constitute Good Reason under paragraph (b) of this Section 8 may not be considered by the Committee to be a failure to perform or misconduct by a participant. The Company must notify the participant of an event constituting Cause within ninety (90) days following its knowledge of the event's existence or such event shall not constitute Cause under the Plan. (d) If a Change in Control of the Company occurs at any time during Fiscal 1999 or Fiscal 2000, and a participant's employment with the Company and its subsidiaries is terminated at any time after such Change of Control but on or prior to the last day of Fiscal 2000 and such termination is effected (i) by the Company (other than for Cause, disability (within the meaning of the Company's long- term disability plan) or mandatory retirement) or (ii) by the participant for Good Reason, then (in event of the foregoing) such participant shall be paid, within thirty (30) days following such termination of employment, a lump sum cash amount (net of any required withholding taxes) equal to such participants Target Award for Fiscal 1999. Further, with respect to a situation in which an incentive award under this Plan has been deferred (whether voluntarily by a participant, by action of the Committee or by operation of the terms of this Plan), if a Change in Control of the Company occurs after the end of Fiscal 2000 but prior to the payment or distribution to a participant of any such incentive award, and a participant's employment with the Company and its subsidiaries is terminated after the end of the Fiscal 2000 and after such Change of Control occurs and such termination is effected (i) by the Company (other than for cause, disability (within the meaning of the Company's long-term disability plan) or mandatory retirement) or (ii) by the participant for Good Reason, then (in the event of all of the foregoing) such participant shall be paid, within thirty (30) days following such termination of employment, a lump sum cash amount (net of any required withholding taxes) equal to such participant's Target Award for Fiscal 1999 notwithstanding any such deferral. (e) In the event a Change in Control of the Company occurs at any time during Fiscal 1999 or Fiscal 2000, each participant who thereafter remains employed by the Company as of the end of Fiscal 2000 shall receive, in lieu of any other amounts payable hereunder, an annual incentive award under this Plan with respect to Fiscal 1999 equal to two (2) times his or her Target Award for Fiscal 1999. (f) Notwithstanding anything in this Plan to the contrary, this Section 8 may not be amended, modified or terminated in a manner adverse to the participants during a period of one year and two (2) months immediately following a Change in Control of the Company. (g) Notwithstanding anything in paragraph (c) of Section 5 to the contrary, in the event a Change in Control of the Company occurs during Fiscal 1999 or Fiscal 2000 then, at any time during or with respect to the remainder of Fiscal 1999 or Fiscal 2000, the Committee may not adjust Performance Objectives or Target Awards hereunder in any manner adverse to any one or more of the participants. (h) Anything in this Plan to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company of an incentive award pursuant to this Section 8 (any such award referred to herein as a "Change of Control Payment") to or for the benefit of a participant (determined without regard to any additional payments required under this paragraph (h)) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties are incurred by a participant with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the participant shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that, after payment by the participant of all taxes, including any interest or penalties imposed with respect to such taxes (including, without limitation, any income and employment taxes, and any interest and penalties imposed with respect thereto, and Excise Tax imposed upon the Gross-Up Payment), the participant retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Change of Control Payment made to the participant pursuant to this Plan. For purposes of determining the amount of the Gross-Up Payment, a participant shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. All determinations required to be made under this paragraph (h), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the "Accounting Firm"), which Accounting Firm shall provide detailed supporting calculations both to the Company and the participant within fifteen (15) business days of the receipt of notice from the Company or the participant that there has been a Change of Control Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the participant may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any reasonable agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this paragraph (h) should be made within thirty (30) days of any Change of Control Payment. If the Accounting Firm determines that no Excise Tax is payable by the participant, it shall furnish the participant with a written opinion that failure to report the Excise Tax on the participant's applicable federal income tax return would not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon the Company and the participant. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross- Up Payments will be made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the participant thereafter is required to make payment of any additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of the participant. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the participant for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by the participant to or for the benefit of the Company. The participant shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax. The provisions of this paragraph (h) shall be coordinated with any substantially similar provisions contained in any plan or agreement covering the participant and calling for payment by the Company (under appropriate circumstances) of any bonus, award, benefit or other compensation, with the intent and effect that the participant shall be made whole for the effect of all Excise Taxes levied on the participant as a consequence of payments made under such plans or agreements but shall not receive any windfall or double payment. (i) Any payments made by the Company to a participant pursuant to either Sections 8(d) or 8(e) above shall be deemed to be in lieu of and not in addition to any amounts a participant might otherwise be entitled to receive pursuant to the provisions of Section 7 hereof. 9. Forfeiture of Awards. The Committee may, in its sole discretion, -------------------- in the event of a serious breach of conduct by a participant (including, without limitation, any conduct prejudicial to or in conflict with the Company or its subsidiaries) or any activity of a participant in competition with the business of the Company or any subsidiary, (i) cancel any incentive award, in whole or in part, whether or not vested or deferred, and/or (ii) if such conduct or activity occurs within one (1) year following the payment of any incentive award, require the participant to repay to the Company some or all of the amount of any incentive award. Such cancellation or repayment obligation shall be effective as of the date specified by the Committee, and the Committee may provide for an offset to any future payments owed by the Company or any subsidiary to the participant under this Plan if necessary to satisfy the repayment obligation. The determination of whether a participant has engaged in a serious breach of conduct or any activity in competition with the business of the Company or any subsidiary shall be determined by the Committee in good faith and in its sole discretion. 10. Miscellaneous. ------------- (a) By action of the Board of Directors, the Plan may be amended at any time and from time to time, or terminated at any time, provided, however, that no such amendment shall divest any participant of rights which have been accrued under the Plan. (b) The rights of a participant under the Plan are personal to the participant and to any person or persons who may become entitled to distributions or payments under the Plan by reason of the death of the participant, and the rights of the participant or any such person under the Plan shall not be subject to voluntary or involuntary alienation, assignment or transfer by the participant or any such person or persons. (c) The obligations of the Company under the Plan shall be binding upon any successor corporation or organization which shall succeed to substantially all of the assets and business of the Company and the term "Company" wherever used in this Plan shall mean and include any such corporation or organization after such succession. (d) No participant shall have any right to be retained in the employ of the Company by virtue of participation in the Plan. (e) If, at any time prior to the payment or delivery of any incentive awards under this Plan, mandatory wage controls are in effect which, in the opinion of counsel to the Company, are applicable to this Plan and would make such incentive awards or the payments or delivery thereof in accordance with the Plan illegal, the Committee shall reduce the amount of such incentive awards, payments or deliveries in such manner and to such extent (including elimination of such incentive awards) as, in its sole judgment, are necessary or advisable in order to comply with such applicable law. If, at any time prior to such payment or delivery under the Plan, voluntary wage controls are in effect under any federal policy with respect to wage controls and if any such incentive awards or the payments or delivery thereof as provided for in the Plan would, in the opinion of counsel to the Company, exceed applicable guidelines established under such voluntary controls, the Committee may, in its absolute discretion and if it deems it to be in the interest of the Company, reduce or eliminate the amount of such incentive awards, payments or deliveries in such manner and to such extent as it deems advisable. (f) This Plan is intended to constitute an "unfunded" plan for incentive and deferred compensation. Nothing contained in this Plan shall give the participants any rights with respect to any incentive award that are greater than those of a general creditor of the Company. (g) This Plan sets forth all of the terms and conditions applicable to its subject matter and no other prior or future plan, agreement or understanding, whether written or oral, shall have any effect on the interpretation, validity or enforceability hereof. (h) Unless the context otherwise requires, words in the singular include the plural and words in the plural include the singular. (i) The Plan shall be governed by and construed in accordance with the laws of the State of New York, regardless of the effect of such state's conflict of laws principles. IN WITNESS WHEREOF, Mallinckrodt Inc. has caused this instrument to be executed, effective as of August 11, 1998. Mallinckrodt Inc. By: C. RAY HOLMAN ---------------------------- Its: Chairman and Chief Executive Officer (Corporate Seal) ATTEST: By: ROGER A. KELLER ------------------------- Its: Vice President, Secretary and General Counsel -----END PRIVACY-ENHANCED MESSAGE-----