-----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, KyG6bS7TpLl/rKLIyt3qjU7oyLwpcaC/cbJa9a34PNCI/O8Wi7u7NA3BoKJqbUoi vmQ9R1HhQc/MVDh/zc2jKQ== 0000950130-99-002638.txt : 19990505 0000950130-99-002638.hdr.sgml : 19990505 ACCESSION NUMBER: 0000950130-99-002638 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990504 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: S-3/A SEC ACT: SEC FILE NUMBER: 333-42325 FILM NUMBER: 99609674 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 S-3/A 1 AMENDMENT #4 TO FORM S-3 As filed with the Securities and Exchange Commission on May 4, 1999 Registration No. 333-42325 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM S-3 AMENDMENT NO. 4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- MALLINCKRODT INC. (formerly Mallinckrodt Group Inc.) (Exact name of registrant as specified in its charter) --------------- New York 675 McDonnell Boulevard 36-1263901 (State or other jurisdiction of P.O. Box 5840 (I.R.S. Employer incorporation or organization) St. Louis, MO 63134 Identification No.) (314) 654-2000
(Address, including zip code, and telephone number, including area code, of registrant's Principal Executive Offices) Roger A. Keller Mallinckrodt Inc. 675 McDonnell Boulevard P.O. Box 5840 St. Louis, MO 63134 (314) 654-2000 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: John M. Reiss Michael A. Campbell White & Case Mayer, Brown & Platt 1155 Avenue of the Americas 190 South LaSalle Street New York, New York 10036 Chicago, Illinois 60603 (212) 819-8200 (312) 782-0600 --------------- Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as the registrant shall determine. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] --------------- If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] --------------- If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] --------------- The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. The following statement sets forth the estimated amounts of expenses, other than underwriting discounts and commissions, to be borne by Registrant in connection with the distribution of the Securities. Securities and Exchange Commission Registration Fee............ $147,500 Trustee's Fees................................................. 16,000* Printing Expenses.............................................. 100,000* Rating Agency Fees............................................. 100,000* Accounting Fees and Expenses................................... 40,000* Legal Fees and Expenses........................................ 75,000* Blue Sky Fees and Expenses..................................... 5,000* Miscellaneous.................................................. 15,000* -------- Total Expenses............................................... $498,500* ========
- -------- *(Estimated) Item 15. Indemnification of Directors and Officers. The Corporation's Bylaws provide for indemnification, to the fullest extent permitted by applicable law, of any of its directors and officers who are, or have been, or are threatened to be, made a party to an action or proceeding, whether civil or criminal, by reason of the fact that such director or officer is a director or officer of the Corporation, against any judgments, fines, amounts paid in settlement and expenses, including attorneys' fees, or any appeal therein. The Bylaws also provide that additional indemnification may be provided by the Corporation to other persons to the extent permitted by applicable law. The Corporation's Certificate of Incorporation provides that a current or former director shall not be liable to the Corporation or its shareholders for damages for any breach of duty except where liability is imposed by New York State law. The Corporation has insurance to indemnify its directors and officers, within the limits of the Corporation's insurance policies, for those liabilities in respect of which such indemnification insurance is permitted under the laws of the State of New York. In addition, indemnity agreements are in effect with each officer of the Corporation who serves on its Employee Benefits Committee. Reference is made to Sections 721-726 of the New York Business Corporation Law ("B.C.L."), which are summarized below. Section 721 of the B.C.L. provides that indemnification pursuant to the B.C.L. shall not be deemed exclusive, provided that no indemnification may be made if a judgment or other final adjudication adverse to the director or officer established that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty, and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Section 722 of the B.C.L. provides that a corporation may indemnify a director or officer made, or threatened to be made, a party to any action, whether derivative or nonderivative, or whether civil or criminal, against judgments, fines, amounts paid in settlement and reasonable expenses actually and II-1 necessarily incurred as a result of such action, if such director or officer acted in good faith, for a purpose which he reasonably believed to be in the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful. In derivative actions, the statute provides that no indemnification shall be made in respect of (1) a threatened action, or a pending action which is settled or otherwise disposed of, or (2) any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and to the extent an appropriate court determines that the person is fairly and reasonably entitled to indemnification. Section 723 of the B.C.L. specifies the manner in which payment of such indemnification may be authorized by the corporation. It provides that indemnification by a corporation is mandatory in any case in which the director or officer has been successful, whether on the merits or otherwise, in defending an action. In the event that the director or officer has not been successful or the action is settled, indemnification may be made by the corporation (unless ordered by a court under Section 724 of the B.C.L.) only if authorized by the appropriate corporate action as set forth in such Section 723. Section 724 of the B.C.L. provides that upon proper application by a director or officer, indemnification shall be awarded by a court to the extent authorized under Sections 722 and 723 of the B.C.L. Section 725 of the B.C.L. contains certain other miscellaneous provisions affecting the indemnification of directors and officers, including provision for the return of amounts paid as indemnification if any such person is ultimately found not to be entitled thereto. Section 726 of the B.C.L. authorizes the purchase and maintenance of insurance to indemnify (1) a corporation for any obligations which it incurs as a result of the indemnification of directors and officers under the above sections, (2) directors and officers in instances in which they may be indemnified by a corporation under such sections, and (3) directors and officers in instances in which they may not otherwise be indemnified by a corporation under such sections, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the New York State Superintendent of insurance, for a retention amount and for co- insurance. Such insurance may not provide for the indemnification, other than defense costs, of any director or officer whose deliberate and active dishonesty is held to be material to an adjudicated cause of action in a judgment adverse to the insured nor of any director or officer who personally gained in fact a financial profit or other advantage to which he was not legally entitled. Item 16. Exhibits. NO. 1.1 Form of Underwriting Agreement** 1.2 Form of Distribution Agreement** 4.1 Form of Indenture dated as of March 15, 1985, as amended and restated as of February 15, 1995, between the Company and First Trust Company of New York, National Association, as Trustee, including Form of Securities (incorporated by reference to the Company's Registration Statement on Form S-3 (No. 33-52821)) 5.1 Opinion of White & Case** 12.1 Computation of Ratio of Earnings to Fixed Charges** 23.1 Consent of Ernst & Young LLP* 23.2 Intentionally Omitted 23.3 Intentionally Omitted 23.4 Intentionally Omitted 23.5 Consent of White & Case (included in Exhibit 5.1)** 25.1 Form T-1, Statement of Eligibility under Trust Indenture Act of 1939**
- -------- *Filed herewith **Previously filed II-2 Item 17. Undertakings. The undersigned registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i)to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii)to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii)to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1) (i) and (1) (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; (2) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for the liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in such Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused Amendment No. 4 to this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in St. Louis, Missouri, on the 4th day of May, 1999. Mallinckrodt Inc. /s/ C. Ray Holman By: _________________________________ C. Ray Holman Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, Amendment No. 4 to this Registration Statement has been signed below by the following Persons, in the capacities indicated, on May 4, 1999.
Signature Title --------- ----- /s/ C. Ray Holman Chairman of the Board and ____________________________________ Chief Executive Officer C. Ray Holman (Principal Executive Officer) /s/ Michael A. Rocca Senior Vice President and ____________________________________ Chief Financial Officer Michael A. Rocca (Principal Financial Officer) /s/ Douglas A. McKinney Vice President and ____________________________________ Controller (Principal Douglas A. McKinney Accounting Officer) /s/ Raymond F. Bentele Director ____________________________________ Raymond F. Bentele Director ____________________________________ Gareth C.C. Chang /s/ William L. Davis, III Director ____________________________________ William L. Davis, III Director ____________________________________ Ronald G. Evens /s/ Roberta S. Karmel Director ____________________________________ Roberta S. Karmel
II-4
Signature Title --------- ----- /s/ Claudine B. Malone Director ____________________________________ Claudine B. Malone /s/ Anthony Viscusi Director ____________________________________ Anthony Viscusi /s/ Brian M. Rushton Director ____________________________________ Brian M. Rushton /s/ Daniel R. Toll Director ____________________________________ Daniel R. Toll
II-5 INDEX TO EXHIBITS Exhibit Sequential Page No. 1.1 Form of Underwriting Agreement** 1.2 Form of Distribution Agreement** 4.1 Form of Indenture dated as of March 15, 1985, as amended and restated as of February 15, 1995, between the Company and First Trust Company of New York, National Association, as Trustee, including Form of Securities (incorporated by reference to the Company's Registration Statement on Form S-3 (No. 33-52821)) 5.1 Opinion of White & Case** 12.1 Computation of Ratio of Earnings to Fixed Charges** 23.1 Consent of Ernst & Young LLP* 23.2 Intentionally Omitted 23.3 Intentionally Omitted 23.4 Intentionally Omitted 23.5 Consent of White & Case (included in Exhibit 5.1)** 25.1 Form T-1, Statement of Eligibility under Trust Indenture Act of 1939**
- -------- * Filed herewith ** Previously filed EX-23.1 2 CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in Amendment No. 4 to the Registration Statement (Form S-3) and related Prospectus of Mallinckrodt Inc. for the registration of debt securities and to the incorporation by reference therein of our report dated August 12, 1998 (except for the restatement related to purchased research and development referred to in Note 2, as to which the date is January 26, 1999), with respect to the consolidated financial statements and schedules of Mallinckrodt Inc. included in its Annual Report on Form 10-K for the year ended June 30, 1998, as amended by Form 10-K/A filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP St. Louis, Missouri April 30, 1999 -----END PRIVACY-ENHANCED MESSAGE-----