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, 1996
OR
___ 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.)
7733 Forsyth Boulevard
St. Louis, Missouri 63105-1820
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 314-854-5200
______________________________
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.
73,942,271 shares excluding 13,174,018 treasury shares as of October
31, 1996.
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited).
The accompanying interim condensed consolidated financial statements
of Mallinckrodt Inc. (formerly known as Mallinckrodt Group Inc. and
hereinafter referred to as 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 1996 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 and 2 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 STATEMENT OF OPERATIONS
(In millions, except per share amounts)
Three Months Ended
September 30,
------------------
1996 1995
---- ----
Net sales $541.4 $492.1
Operating costs and expenses:
Cost of goods sold 296.3 268.3
Selling, administrative and general expenses 146.4 138.9
Research and development expenses 36.0 24.1
Other operating income, net (3.5) (3.2)
------- -------
Total operating costs and expenses 475.2 428.1
------- -------
Operating earnings 66.2 64.0
Equity in pre-tax earnings of joint venture 7.9 7.3
Interest income and other nonoperating income
(expense), net 4.5 (.4)
Interest expense (21.3) (13.8)
------- -------
Earnings from continuing operations before
income taxes 57.3 57.1
Income tax provision 21.2 21.4
------- -------
Earnings from continuing operations 36.1 35.7
Discontinued operations (.7) 3.5
------- -------
Net earnings 35.4 39.2
Preferred stock dividends (.1) (.1)
------- -------
Available for common shareholders $ 35.3 $ 39.1
======= =======
Earnings per common share:
Continuing operations $.48 $.46
Discontinued operations (.01) .04
------- -------
Net earnings $.47 $.50
======= =======
(See Notes to Condensed Consolidated Financial Statements on pages 5
and 6.)
<PAGE>
CONDENSED CONSOLIDATED BALANCE SHEET
(In millions, except share and per share amounts)
September 30, June 30,
1996 1996
------------- --------
Assets
Current assets:
Cash and cash equivalents $ 566.1 $ 546.2
Trade receivables, less allowances
of $14.2 at September 30 and $12.8
at June 30 431.2 453.9
Inventories 474.0 470.2
Deferred income taxes 41.7 42.9
Other current assets 57.7 57.7
-------- --------
Total current assets 1,570.7 1,570.9
Investments and long-term receivables,
less allowances of $9.2 at September 30
and $8.1 at June 30 154.6 150.0
Property, plant and equipment, net 1,026.7 1,036.4
Intangible assets 628.9 647.5
Deferred income taxes 1.1 1.1
-------- --------
Total assets $3,382.0 $3,405.9
======== ========
Liabilities and Shareholders' Equity
Current liabilities:
Short-term debt $ 622.5 $ 622.2
Accounts payable 163.4 194.6
Accrued liabilities 310.8 314.8
Income taxes payable 55.6 38.5
Net current liabilities of
discontinued operations 38.1 38.4
Deferred income taxes 3.4 3.3
-------- --------
Total current liabilities 1,193.8 1,211.8
Long-term debt, less current maturities 575.6 575.8
Deferred income taxes 92.8 97.9
Postretirement benefits 158.8 156.0
Other noncurrent liabilities and
deferred credits 115.3 132.2
-------- --------
Total liabilities 2,136.3 2,173.7
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 as of September 30 and June 30 87.1 87.1
Capital in excess of par value 285.4 283.5
Reinvested earnings 1,174.4 1,150.7
Foreign currency translation (12.5) (15.3)
Treasury stock, at cost (299.7) (284.8)
--------- ---------
Total shareholders' equity 1,245.7 1,232.2
--------- ---------
Total liabilities and shareholders' equity $3,382.0 $3,405.9
======== ========
(See Notes to Condensed Consolidated Financial Statements on pages 5
and 6.)
<PAGE>
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(In millions)
Three Months Ended
September 30,
------------------
1996 1995
---- ----
Cash Flows - Operating Activities
Net earnings $ 35.4 $ 39.2
Adjustments to reconcile net earnings to
net cash provided by operating activities:
Depreciation and amortization 39.1 34.4
Postretirement benefits 2.8 2.2
Undistributed equity in earnings of
joint venture (5.6) (5.6)
Deferred income taxes (3.7) (4.6)
Gains on disposals of assets (.4)
------- -------
68.0 65.2
Changes in operating assets and liabilities:
Trade receivables 15.5 23.9
Inventories (7.4) (38.3)
Other current assets (.2) (.8)
Accounts payable, accrued liabilities
and income taxes payable, net (21.8) (5.2)
Net current liabilities of discontinued
operations (.3) (13.1)
Other noncurrent liabilities and deferred
credits (16.8) 3.4
Other, net (1.1) (12.5)
------- -------
Net cash provided by operating activities 35.9 22.6
Cash Flows - Investing Activities
Capital expenditures (22.9) (36.8)
Acquisition spending (4.1) (2.1)
Proceeds from asset disposals 33.6 .6
Other, net 2.0 (7.9)
------- -------
Net cash provided (used) by investing activities 8.6 (46.2)
Cash Flows - Financing Activities
Increase in short-term debt .4 76.7
Proceeds from long-term debt 1.6 98.8
Payments on long-term debt (1.9) (101.5)
Issuance of Mallinckrodt common stock 9.5 8.1
Acquisition of treasury stock (22.5) (20.0)
Dividends paid (11.7) (10.9)
------- -------
Net cash provided (used) by financing
activities (24.6) 51.2
------- -------
Increase in cash and cash equivalents 19.9 27.6
Cash and cash equivalents at beginning
of period 546.2 60.6
------- -------
Cash and cash equivalents at end of period $ 566.1 $ 88.2
======== =======
(See Notes to Condensed Consolidated Financial Statements on pages 5
and 6.)
<PAGE>
CONDENSED CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
(In millions, except per share amounts)
1996 1995
---- ----
4 Percent cumulative preferred stock:
Balance at June 30 and September 30 $ 11.0 $ 11.0
Common stock:
Balance at June 30 and September 30 87.1 87.1
Capital in excess of par value:
Balance at June 30 283.5 274.1
Stock options exercised 1.9 2.8
------ ------
Balance at September 30 285.4 276.9
Reinvested earnings:
Balance at June 30 1,150.7 984.5
Net earnings 35.4 39.2
Dividends
4 Percent cumulative preferred stock
($1.00 per share) (.1) (.1)
Common stock ($.155 per share in 1996
and $.14 per share in 1995) (11.6) 10.8)
-------- --------
Balance at September 30 1,174.4 1,012.8
Foreign currency translation:
Balance at June 30 (15.3) (9.3)
Translation adjustment 2.8 (4.4)
-------- --------
Balance at September 30 (12.5) (13.7)
Treasury stock:
Balance at June 30 (284.8) (175.9)
Purchase of common stock (22.5) (20.0)
Stock options exercised 7.6 5.3
-------- --------
Balance at September 30 (299.7) (190.6)
-------- --------
Total shareholders' equity $1,245.7 $1,183.5
======== =========
(See Notes to Condensed Consolidated Financial Statements on pages 5
and 6.)
<PAGE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. Included in earnings from continuing operations for the three
months ended September 30, 1996, is a one-time research and
development expense of $6.0 million, $3.8 million after taxes or
$.05 per share resulting from a strategic alliance to develop new
magnetic resonance imaging technology.
2. Included in discontinued operations for the three months ended
September 30, 1995, are earnings, net of taxes, from the divested
Feed Ingredients business of $4.4 million.
3. Provisions for income taxes were based on estimated annual
effective tax rates for each fiscal year. The Company's
effective tax rate for the first three months was 37.0 percent,
compared to last year's 37.5 percent. This decrease reflects an
earnings mix toward lower statutory tax rate jurisdictions and
the utilization of certain foreign net operating losses.
4. 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.
The Company has established accruals for matters that are in
its view probable and reasonably estimable. Based on information
presently available, management believes that existing accruals
are sufficient to satisfy any known environmental liabilities.
Further, any additional liability that may ultimately result from
the resolution of these matters is not expected to have a
material effect on Mallinckrodt's business, financial condition
or results of operations.
5. Earnings per common share were based on the weighted average
number of common and common equivalent shares outstanding
(75,501,070 and 77,924,740 for the three months ended September
30, 1996 and 1995, respectively).
6. The components of inventory include the following as of September
30,1996:
(In millions)
Raw materials and supplies $ 152.8
Work in process 103.5
Finished goods 217.7
-------
$ 474.0
=======
7. The Company adopted the provisions of Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of"
effective July 1, 1996. The Company regularly assesses all of
its long-lived assets for impairment. No material adverse effect
on its results of operations or financial position occurred upon
adoption.
8. As of September 30, 1996, the Company has authorized and issued
100,000 shares, par value $100, 4 Percent cumulative preferred
stock of which 98,330 shares are outstanding. Mallinckrodt also
has authorized 1,400,000 shares, par value $1, of Series
preferred stock, none of which is outstanding.
Shares included in treasury stock were:
September 30, June 30,
1996 1996
------------- ----------
Common stock 13,056,760 12,835,721
4 Percent cumulative preferred stock 1,670 1,670
<PAGE>
9. At September 30, 1996, common shares reserved were:
Exercise of common stock purchase
rights 83,629,897
Exercise of stock options and
granting of stock awards 9,570,368
----------
Total 93,200,265
==========
10. Supplemental cash flow information for the three months ended
September 30 included:
(In millions)
1996 1995
---- ----
Interest paid $22.2 $10.6
Income taxes paid $ 6.4 $4.9
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations. [1]
Results of Operations
General
- -------
Earnings from continuing operations for the first quarter ended
September 30, 1996 were $36.1 million, or 48 cents per share. This
represents a 4 percent increase in per-share earnings from continuing
operations compared with $35.7 million, or 46 cents per share, during
the same period a year ago. These earnings reflect a one-time,
pretax research and development expense of $6.0 million incurred in
conjunction with a strategic alliance with METASYN, Inc., to develop
new magnetic resonance imaging technology. Without this expense,
earnings from continuing operations would have been 53 cents per
share, a 15 percent increase over the prior year. Net sales for the
quarter were up 10 percent to $541.4 million, compared to $492.1
million a year earlier. Net earnings for the first quarter were $35.4
million, or 47 cents per share, compared with $39.2 million, or 50
cents per share, during the same period a year ago. Prior year net
earnings include results from the divested animal feed ingredients
business.
- -----------------
[1] The Private Securities Litigation Reform Act of 1995 provides a
"safe harbor" for forward-looking statements, so long as those
statements are identified as forward-looking and are accompanied by
meaningful cautionary statements identifying important factors that
could cause actual results to differ materially from those discussed
in the forward-looking statements. Certain statements contained
herein are forward-looking, particularly the statements appearing
under Part I. Item 2, Management's Discussion and Analysis of
Financial Condition and Results of Operations" and Part II. Item 1,
"Legal Proceedings."
Factors that could cause actual results to differ materially from
those expressed or implied by the forward-looking statements include
but are not limited to the following: the effect of business and
economic conditions; constraints on supplies and/or changes in the
cost of raw materials used in the manufacturing of certain of the
Company's products; capacity 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; the effects of, and changes in, trade,
monetary and fiscal policies, laws and regulations; risks associated
with investments and operations in foreign jurisdictions, including
those related to foreign regulatory requirements, exchange rate
fluctuations, and local political, social, and economic factors;
changes in governmental laws and regulations affecting environmental
compliance, taxes, and other matters impacting the Company; the costs
and effects of legal and administrative proceedings, including the
environmental proceedings involving the Company; the ability of the
Company to develop and execute effective marketing and sales
strategies for its products; the potential erosion of prices for
certain of the Company's products as a result of increased
competition in its markets; and the risk factors reported from time
to time in the Company's SEC reports.
<PAGE>
A comparison of sales and operating earnings follows:
(In millions)
Three Months Ended
September 30,
------------------
1996 1995
---- ----
Sales
- -----
Human healthcare $ 361.7 $ 316.1
Specialty chemicals 80.5 75.1
Animal health 99.4 101.0
Intersegment sales (.2) (.1)
-------- --------
$ 541.4 $ 492.1
======== ========
Operating earnings
- ------------------
Human healthcare $ 67.4 $ 62.0
Specialty chemicals 5.5 4.6
Animal health (.1) 5.0
Corporate (6.6) (7.5)
Eliminations (.1)
-------- --------
$ 66.2 $ 64.0
======== ========
Business Segments
- -----------------
Human Healthcare
Net Sales Three Months Ended
(In millions) September 30,
------------------
1996 1995
---- ----
Imaging agents $ 198.6 $ 161.2
Critical care products 77.3 76.9
Pharmaceutical specialties 85.8 78.0
------- -------
$ 361.7 $ 316.1
======= =======
Human healthcare's operating earnings for the quarter increased to
$67.4 million, up 9 percent compared to the first quarter of last
year. These operating earnings reflect a one-time research and
development expense of $6.0 million incurred in conjunction with a
strategic alliance with METASYN, Inc., to develop new magnetic
resonance imaging technology. Without this expense, human
healthcare's operating earnings would have been $73.4 million, an 18%
increase over the prior year first quarter. Net sales for the first
quarter improved 14 percent over the prior year first quarter. A
major contributor to the sales growth was strong demand for imaging
agents. Sales for imaging agents were up 23 percent, primarily from
increased market share in the U.S. and the acquisition of
Liebel-Flarsheim in January 1996. Critical care products sales
were up 1 percent, primarily on sales gains in respiratory products,
partially offset by lower sales of instruments and systems to analyze
blood gases and electrolytes. The blood gas and electrolyte business
was divested as of September 30, 1996. Pharmaceutical specialties
sales increased 10 percent primarily due to increased volume.
Specialty Chemicals
Net Sales Three Months Ended
(In millions) September 30,
------------------
1996 1995
---- ----
$ 80.5 $ 75.1
====== ======
Specialty chemicals' operating earnings for the quarter increased to
$5.5 million, up 20% compared to the first quarter of last year.
Improved plant performance and cost containment initiatives
contributed to the increased earnings. Net sales for the quarter
improved 7% over the prior year first quarter, primarily as a result
of volume increases in plastic additives.
Animal Health
Net Sales Three Months Ended
(In millions) September 30,
------------------
1996 1995
---- ----
$ 99.4 $ 101.0
====== =======
Animal health had an operating loss of $.1 million, compared with
$5.0 million of operating earnings for the first quarter of last
year. Declining sales margins and higher research and development
expenses were primary causes of the lower year to year results.
Lower volumes in North America and Europe were the primary reasons
for the quarter net sales decline of 2% as compared to the prior year
first quarter. The sales decline in Europe is due to BSE, or "mad
cow disease" in the United Kingdom. Mallinckrodt has concluded that
the animal health business will have greater potential and be more
successful through alignment with a company that possesses core
technology more directly related to the development of animal health
products. Therefore, on August 29, 1996, the Company announced that
it has decided to explore all strategic options related to this
business.
Corporate Matters
- -----------------
Earnings for Tastemaker, the Company's flavor joint venture, were
$7.9 million for the quarter, up 8% compared to the first quarter of
last year. On August 29, 1996, Mallinckrodt announced that it is
prepared to sell its interest in Tastemaker in cooperation with its
joint venture partner, Hercules, Inc., if an acceptable offer is
received. The Company's effective tax rate for the first quarter was
37.0 percent, compared to last year's 37.5 percent. This rate
decrease reflects an earnings mix toward lower statutory tax rate
jurisdictions and the utilization of certain foreign net operating
losses.
Financial Condition
The Company's financial resources are expected to continue to be
adequate to support existing businesses and fund new opportunities.
Since June 30, 1996, cash and cash equivalents increased $19.9
million. Operations provided $35.9 million of cash, while acquisition
and capital spending totaled $27.0 million. The Company received
$33.6 million in proceeds from asset disposals, primarily from the
blood gas and electrolyte business. The Company's current ratio at
September 30, 1996, was 1.3:1. Debt as a percentage of invested
capital was 49 percent. Net of cash and cash equivalents, this
percentage would have been 34 percent.
The Company's Board of Directors previously authorized repurchase of
a total of 42 million shares of its common stock. Thirty three and a
half million shares have been repurchased under this authorization,
.6 million during the quarter ended September 30, 1996.
In September 1995 and November 1995, the Company issued $100 million
of 6.75% notes due September 15, 2005, and $100 million of 6.5% notes
due November 15, 2007, respectively, from the $250 million shelf
registration statement filed in February of 1995. As of September
30,1996, $50 million of securities under this shelf and $50 million
of securities under a shelf registration statement filed with the SEC
in 1992 remain unissued.
The Company has a $550 million private-placement commercial paper
program. This program is backed by $550 million of U.S. lines of
credit, available until May 2001. At September 30, 1996, no amounts
were outstanding under the commercial paper program or the credit
agreement. In addition, Fries & Fries, Inc., a wholly-owned
subsidiary, has a $600 million committed line of credit available
until May 1997, which is unconditionally guaranteed by the Company.
Borrowings under the credit agreement were $600 million at September
30, 1996. Non-U.S. lines of credit totaling $213.9 million were also
available and borrowings under these lines amounted to $18.6 million
at September 30, 1996. The non-U.S. lines are cancelable at any
time.
Estimated capital spending for the year ending June 30, 1997, is
approximately $190 million.
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. The Company has
established accruals for matters that are in its view probable and
reasonably estimable. Based on information presently available,
management believes that existing accruals are sufficient to satisfy
any known environmental liabilities. Further, any additional
liability that may ultimately result from the resolution of these
matters is not expected to have a material effect on Mallinckrodt's
business, financial condition or results of operations.
Previously Reported Matters
- ---------------------------
The following is a discussion of material developments in proceedings
previously reported in the Company's Form 10-K for its fiscal year
ended June 30, 1996:
Springville, Utah -- The Company and Ensign-Bickford Industries, Inc.
(EBI) have identified two additional parties who could possibly share
in remediation costs. The Company, EBI and the other parties are
currently negotiating an interim allocation to address remedial
activities at this site.
Pierce County, Washington -- The Company, Olin Corporation, Boeing
Company, and Centrum Properties, Inc. negotiated a settlement and the
lawsuit has been dismissed. Centrum did not recover its past costs,
but Mallinckrodt and Olin agreed to take over future remedial actions
at the site. Since the Company and Olin have been named "potentially
responsible parties" for this site by the Washington Department of
Ecology, the Company and Olin are negotiating an order that would
govern remedial activities at the site with the Department of
Ecology.
Item 2. Changes in Securities.
Not applicable.
Item 3. Defaults Upon Senior Securities.
Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders.
On October 16, 1996, the Company held its Annual Meeting of
Stockholders in St. Louis, Missouri, for the purposes of: (a)
electing four directors for terms expiring in 1999; (b) ratifying the
appointment of independent auditors for fiscal 1997; (c) acting upon
an amendment to Article First of the Company's Restated Certificate
of Incorporation to change the name of the Company from Mallinckrodt
Group Inc. to Mallinckrodt Inc.; and (d) transacting such other
business as may have properly come before the meeting or any
adjournment thereof.
The following table sets forth the directors elected at the Annual
Meeting and the number of votes cast for and withheld from each
director:
Director For Withheld
- -------- --- --------
Raymond F. Bentele 62,342,400 1,022,944
Gareth C. C. Chang 61,412,342 1,953,002
Dr. Ronald G. Evens 62,378,644 986,700
Mack G. Nichols 61,490,798 1,874,546
The following directors continued in office after the Annual Meeting,
having been previously elected:
William L. Davis, III
C. Ray Holman
Roberta S. Karmel
Claudine B. Malone
Morton Moskin
Brian M. Rushton, Ph.D.
Daniel R. Toll
Anthony Viscusi
The appointment of Ernst & Young, LLP as independent auditors for
fiscal 1997 was ratified at the Annual Meeting. The following table
sets forth the number of votes for and against, as well as
abstentions, on this matter:
For.......................63,200,779
Against.......................70,336
Abstentions...................94,229
The amendment to Article First of the Company's Restated Certificate
of Incorporation to change the name of the Company from Mallinckrodt
Group Inc. to Mallinckrodt Inc. was approved at the Annual Meeting.
The following table sets forth the number of votes for and against,
as well as abstentions, on this matter:
For.......................63,047,352
Against......................104,560
Abstentions..................213,412
No other matters were voted upon at the meeting.
Item 5. Other Information.
Not applicable.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
3.1 Restated Certificate of Incorporation of Mallinckrodt,
dated June 22, 1994.
3.3 Certificate of Amendment of the Certificate of
Incorporation of Mallinckrodt, dated October 16, 1996.
11.1 Primary earnings per share computation for the three
months ended September 30, 1996 and 1995.
11.2 Fully diluted earnings per share computation for the
three months ended September 30, 1996 and 1995.
27 Financial Data Schedule.
(b) Reports on Form 8-K.
During the quarter and through the date of this report, the following
reports on Form 8-K were filed.
Report dated August 29, 1996, under Item 5 regarding seeking a
buyer for the Tastemaker flavors business, and exploring all
strategic options for the animal health division.
Report dated October 16, 1996, under Item 5 regarding name
change from Mallinckrodt Group Inc. to Mallinckrodt Inc.
Report dated October 17, 1996, under Item 5 regarding increased
quarterly dividend and the election of four directors at the
Company's Annual Meeting.
Report dated October 24, 1996, under Item 5 regarding Molecular
Biosystems, Inc. and Mallinckrodt Inc. joint announcement to
file for PMA for next generation ultrasound imaging agent.
* * * * * * * * * * * * * *
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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: TERRY D. MEIER
-------------------------- ---------------------
Michael A. Rocca Terry D. Meier
Senior Vice President and Vice President and
Chief Financial Officer Controller
Date: November 12, 1996
Exhibit 11.1
EARNINGS PER SHARE
PRIMARY COMPUTATION
($ in millions, except share and per share amounts)
Three Months Ended
September 30,
----- ------------
1996 1995
---- ----
Basis for computation of earnings per
common and common equivalent shares:
Earnings from continuing operations $ 36.1 $ 35.7
Deduct dividends on 4 Percent cumulative
preferred stock (.1) (.1)
------- -------
Earnings from continuing operations
available to common shareholders 36.0 35.6
Discontinued operations (.7) 3.5
-------- -------
Available for common shareholders $ 35.3 $ 39.1
======== =======
Number of shares:
Weighted average shares outstanding 74,231,367 76,712,609
Shares issuable upon exercise of stock
options, net of shares assumed to be
repurchased 1,269,703 1,212,131
---------- ----------
75,501,070 77,924,740
========== ==========
Earnings per common share:
Continuing operations $.48 $.46
Discontinued operations (.01) .04
---- ----
Net earnings $.47 $.50
==== ====
Exhibit 11.2
EARNINGS PER SHARE
FULLY DILUTED COMPUTATION
($ in millions, except share and per share amounts)
Three Months Ended
September 30,
------------
1996 1995
---- ----
Basis for computation of earnings per
common and common equivalent shares:
Earnings from continuing operations $ 36.1 $ 35.7
Deduct dividends on 4 Percent cumulative
preferred stock (.1) (.1)
------- -------
Earnings from continuing operations
available to common shareholders 36.0 35.6
Discontinued operations (.7) 3.5
------- -------
Available for common shareholders $ 35.3 $ 39.1
======= =======
Number of shares:
Weighted average shares outstanding 74,231,367 76,712,609
Shares issuable upon exercise of stock
options, net of shares assumed to be
repurchased 1,567,034 1,386,320
---------- ----------
75,798,401 78,098,929
========== ==========
Earnings per common share:
Continuing operations $.48 $.46
Discontinued operations (.01) .04
---- ----
Net earnings $.47 $.50
==== ====
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
balance sheet and income statement, and is qualified in its entirety
by reference to such financial schedules.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-END> SEP-30-1996
<CASH> 566
<SECURITIES> 0
<RECEIVABLES> 431
<ALLOWANCES> 14
<INVENTORY> 474
<CURRENT-ASSETS> 1,571
<PP&E> 1,590
<DEPRECIATION> 563
<TOTAL-ASSETS> 3,382
<CURRENT-LIABILITIES> 1,194
<BONDS> 576
0
11
<COMMON> 87
<OTHER-SE> 1,148
<TOTAL-LIABILITY-AND-EQUITY> 3,382
<SALES> 541
<TOTAL-REVENUES> 541
<CGS> 296
<TOTAL-COSTS> 475
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 21
<INCOME-PRETAX> 57
<INCOME-TAX> 21
<INCOME-CONTINUING> 36
<DISCONTINUED> (1)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 35
<EPS-PRIMARY> .47
<EPS-DILUTED> .47
</TABLE>
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
Mallinckrodt Group Inc.
_______
Under Section 807 of the Business Corporation Law
Pursuant to Section 807 of the Business Corporation Law, the
undersigned hereby certify:
I. That the name of the corporation is Mallinckrodt Group Inc.
and the name under which it was formed is International Agricultural
Corporation.
II. That the Certificate of Incorporation of the corporation
(under the name of International Agricultural Corporation) was
originally filed under the Business Corporation Law of the State of
New York by the Department of State, Albany, New York on the 14th day
of June, 1909.
III. That Article Fourth of the Certificate of Incorporation of
Mallinckrodt Group Inc. is hereby amended to change the address to
which the secretary of state shall mail a copy of any process against
the corporation served upon him.
IV. That the above-described amendment to the Certificate of
Incorporation was authorized by vote of the board of directors of the
corporation without a vote of the shareholders, as authorized by
Section 803(b)(2) of the Business Corporation Law.
V. That the text of the Certificate of Incorporation of said
Mallinckrodt Group Inc. is hereby restated as amended to read as
herein set forth in full:
CERTIFICATE OF INCORPORATION
of
Mallinckrodt Group Inc.
We, the undersigned, all being persons of full age and at least
two-thirds being citizens of the United States and at least one of us
a resident of the State of New York, desiring to form a stock
corporation pursuant to the Business Corporation Law of the State of
New York, do hereby make, sign, acknowledge and file this certificate
for that purpose, as follows:
FIRST: The name of the corporation is
Mallinckrodt Group Inc.
SECOND: The purposes of the Corporation are as follows:
1. To manufacture, mine, extract, process, construct,
develop, assemble, and produce in any way, to sell, lease,
supply, export, import, and store, transport, distribute,
market or dispose of in any way, to purchase, lease, and
acquire in any way, to own, operate, experiment with, deal
or trade in, finance, provide services for or in respect
of, and use in any way minerals, metals, chemicals,
fertilizers, foods, beverages, timber and other forestry
products, energy sources, materials, equipment, apparatus,
appliances, devices, structures, facilities, processes,
information, tangible and intangible property, services and
systems of every kind, nature and description, in any part
of the world for any application or purpose whatsoever,
including but not limited to industrial, mining,
agricultural, consumer, defense, governmental, scientific,
educational, cultural, financial, recreational,
transportation, construction, publication, and
communication applications or purposes.
2. To conduct studies and research and development, and
to engage in any other activity relating to the
development, application and dissemination of information
concerning science, technology, and other fields of
endeavor.
3. To acquire by purchase, lease, subscription or
otherwise all or any part of any interest in the property,
good will, business, franchises or assets of any
corporation, association, firm or individual and undertake
either wholly or in part the liabilities of any
corporation, association, firm or individual and to take up
any business as a going concern or otherwise (a) by
purchase of the assets thereof wholly or in part; (b) by
acquisition of the capital stock or any part thereof; or
(c)in any other manner, and to pay for the same in cash or
in the stock or bonds of the Corporation or otherwise; to
hold, maintain and operate, or in any manner deal in or
dispose of the whole or any part of any interest in the
property, good will, business, franchises, or assets so
acquired, and to conduct in any lawful manner the whole or
any part of any business so acquired; and without limiting
the generality of the foregoing, to apply for, acquire,
hold and operate under or to dispose of, mining and
prospecting permits or leases from any government anywhere
in the world or from any department or authority of any
thereof.
4. To do any and all of the things herein set forth to
the same extent as natural persons might or could do and in
any part of the world, as principals, agents, contractors,
or otherwise; and in general, to engage in any part of the
world, directly or indirectly, in any activity which may
promote the interests of the Corporation, or enhance the
value of its property to the fullest extent permitted by
applicable law, and in furtherance of the foregoing
purposes, to exercise all powers now or hereafter granted
or permitted by applicable law, including the powers
specified in the New York Business Corporation Law.
The foregoing clauses shall be construed as objects and
powers as well as purposes, and it is hereby expressly
provided that enumeration herein of specific purposes,
objects and powers shall not be held to limit or restrict
in any way the general powers of the Corporation.
Third: The aggregate number of shares which the Corporation
shall have authority to issue is 301,500,000 divided into 100,000
shares of 4% Cumulative Preferred Stock of the par value of $100 per
share (hereinafter called "Preferred Stock"), 1,400,000 shares of
Series Preferred Stock of the par value of $1 per share (hereinafter
called "Series Preferred Stock") and 300,000,000 shares of Common
Stock of the par value of $1 per share (hereinafter called "Common
Stock"). All of such shares shall be issued as full-paid and
non-assessable shares, and the holders thereof shall not be liable
for any further payments in respect thereto.
The Series Preferred Stock shall rank subordinate to the
Preferred Stock in respect of the payment of dividends and on any
distribution upon dissolution, liquidation or winding up of the
Corporation, and in respect of the rights of the Preferred Stock.
A statement of the designations, preferences, privileges and
voting powers of the shares of each class and the restrictions and
qualifications thereof shall be as follows:
(a) PREFERRED STOCK
1. DIVIDENDS: The holders of the Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors,
out of the assets or funds of the Corporation legally available
therefor, dividends at the fixed rate of four percent (4%) per annum
and no more, payable quarterly on the thirtieth day of March, June,
September and December of each year (the periods between such dates,
commencing on such dates, being herein designated as "dividend
periods"). Dividends on the Preferred Stock shall be cumulative from
and after the first day of April, 1942. Such dividends on the
Preferred Stock shall be declared and paid or set apart for payment
before any dividends shall be declared or paid or set apart for
payment on the Series Preferred Stock or the Common Stock and shall
be cumulative as above provided, so that if in any quarterly dividend
period dividends at the rate of four percent (4%) per annum shall not
have been declared and paid or set apart for payment on all
outstanding shares of Preferred Stock for such quarterly dividend
period and all preceding quarterly dividend periods from and after
the first day of the quarterly dividend period from which dividends
are cumulative, then the aggregate deficiency shall be declared and
fully paid or set apart for payment, but without interest, before any
dividends shall be declared or paid or set apart for payment on the
Series Preferred Stock or the Common Stock.
After full cumulative dividends on all shares of Preferred Stock
outstanding shall have been declared and paid or set apart for
payment for all previous dividend periods and for the current
quarterly dividend period, as above provided, then, and not otherwise
so long as any shares of the Preferred Stock shall remain
outstanding, dividends may be declared and paid or set apart for
payment on the Series Preferred Stock and the Common Stock out of the
assets or funds of the Corporation legally available therefor.
2. VOTING RIGHTS: The holders of the Preferred Stock shall be
entitled to one vote for each share held. So long as the Preferred
Stock shall be outstanding, the Corporation shall not, without the
affirmative vote or written consent of the holders of at least
two-thirds (2/3) thereof, amend the Certificate of Incorporation of
the Corporation in such manner as to alter or change the preferences,
special rights or powers of the Preferred Stock so as to affect such
class of stock adversely, or to increase or decrease the amount of
the authorized stock of such class or to increase or decrease the par
value thereof. At any time when six (6) quarterly dividends on such
Preferred Stock shall be in default, the holders of the Preferred
Stock at such time or times outstanding shall be entitled, at the
next annual meeting of stockholders for the election of directors,
and until payment in full of all such dividends then in default, or
provision therefor by the declaration and setting aside thereof,
voting as a class, to the exclusion of the holders of the Common
Stock and the holders of the Series Preferred Stock to vote for and
elect two members of the Board of Directors of the Corporation; and,
subject to any voting rights with respect to any series of Series
Preferred Stock, the holders of the Common Stock, voting as a class,
to the exclusion of the holders of Preferred Stock, shall be entitled
to vote for and elect the balance of the Board of Directors.
Directors elected by any class of stock voting separately as a class,
may be removed only by a majority vote of such class, voting
separately as a class, so long as the voting power of such class
shall continue.
3. LIQUIDATION: The holders of the Preferred Stock, upon any
dissolution, liquidation or winding up of the Corporation, will be
entitled to receive, out of the assets and funds of the Corporation,
whether from capital or surplus, if such dissolution, liquidation or
winding up be voluntary, $110 per share, or if such dissolution,
liquidation or winding up be involuntary, $100 per share, in either
case with an amount equal to all accrued and unpaid dividends, before
any distribution is made to the holders of Series Preferred Stock or
the Common Stock.
If, upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the assets of the Corporation shall
be insufficient to permit the payment in full of the amounts payable
as aforesaid to the holders of the Preferred Stock, then, to the
exclusion of the holders of the Series Preferred Stock and the
holders of the Common Stock, the holders of the Preferred Stock shall
share ratably, in proportion to the amounts which they are
respectively entitled to receive in such event, in the distribution
of assets, according to the number of shares of Preferred Stock which
they respectively hold.
4. REDEMPTION: The Preferred Stock shall be subject to
redemption in whole or in part at any time and from time to time at
the option of the Corporation upon payment of $110 per share and in
addition thereto a sum equal to all accrued and unpaid dividends
thereon to the date fixed for redemption, provided, however, that a
notice specifying the shares to be redeemed, and the time and place
of redemption (and, if less than the total outstanding shares are to
be redeemed, specifying the certificate numbers and number of shares
to be redeemed) shall be published once in a daily newspaper printed
in the English language and published and of general circulation in
the Borough of Manhattan, the City of New York, and shall be mailed,
addressed to the holders of record of the Preferred Stock to be
redeemed at their respective addresses as the same shall appear upon
the books of the Corporation, not less than thirty (30) days previous
to the date fixed for redemption. If less than the whole amount of
outstanding Preferred Stock is to be redeemed, the shares to be
redeemed shall be selected by lot or pro rata in any manner
determined by resolution of the Board of Directors to be fair and
proper. From and after the date fixed in any such notice as the date
of redemption (unless default shall be made by the Corporation in
providing moneys at the time and place of redemption for the payment
of the redemption price) all dividends upon the Preferred Stock so
called for redemption shall cease to accrue, and all rights of the
holders of said Preferred Stock as stockholders of the Corporation,
except the right to receive the redemption price upon surrender of
the certificates representing the Preferred Stock so called for
redemption, duly endorsed for transfer, if required, shall cease and
determine. With respect to any shares of Preferred Stock so called
for redemption, if, before the redemption date, the Corporation shall
deposit with a bank or trust company in the Borough of Manhattan,
City of New York, having a capital and surplus of at least $5,000,000
funds necessary for such redemption, in trust, to be applied to the
redemption of the shares of Preferred Stock so called for redemption,
then from and after the date of such deposit, all rights of the
holders of such shares of Preferred Stock, so called for redemption,
shall cease and determine, except the right to receive, on and after
the redemption date, the redemption price upon surrender of the
certificates representing such shares of Preferred Stock, so called
for redemption, duly endorsed for transfer, if required. Any interest
accrued on such funds shall be paid to the Corporation from time to
time. Any funds so deposited and unclaimed at the end of six (6)
years from such redemption date shall be released or repaid to the
Corporation, after which the holders of such shares of Preferred
Stock so called for redemption shall look only to the Corporation for
payment of the redemption price.
(b) SERIES PREFERRED STOCK
1. BOARD AUTHORITY: The Series Preferred Stock may be issued
from time to time by the Board of Directors as herein provided in one
or more series. The designations, relative rights, preferences and
limitations of the Series Preferred Stock, and particularly of the
shares of each series thereof, may be similar to or may differ from
those of any other series. The Board of Directors of the Corporation
is hereby expressly granted authority, subject to the provisions of
this ARTICLE THIRD, to issue from time to time Series Preferred Stock
in one or more series and to fix from time to time before issuance
thereof, by filing a certificate pursuant to the Business Corporation
Law, the number of shares in each such series of such class and all
designations, relative rights (including the right to convert into
shares of any class or into shares of any series of any class),
preferences and limitations of the shares in each such series,
including but without limiting the generality of the foregoing, the
following:
(i) The number of shares to constitute such series (which
number may at any time, or from time to time, be increased or
decreased by the Board of Directors, notwithstanding that shares
of the series may be outstanding at the time of such increase or
decrease, unless the Board of Directors shall have otherwise
provided in creating such series) and the distinctive
designation thereof;
(ii) The dividend rate on the shares of such series, and the
date or dates, if any, from which dividends thereon shall be
cumulative;
(iii) Whether or not the shares of such series shall be
redeemable, and, if redeemable, the date or dates upon or after
which they shall be redeemable, the amount per share (which
shall be, in the case of each share, not less than its
preference upon involuntary liquidation, plus an amount equal to
all dividends thereon accrued and unpaid, whether or not earned
or declared) payable thereon in the case of the redemption
thereof, which amount may vary at different redemption dates;
(iv) The right, if any, of holders of shares of such series
to convert the same into, or exchange the same for Common Stock,
and the terms and conditions of such conversion or exchange, as
well as provisions for adjustment of the conversion rate in such
events as the Board of Directors shall determine;
(v) The amount per share payable on the shares of such series
upon the voluntary and involuntary liquidation, dissolution or
winding up of the Corporation;
(vi) Whether the holders of shares of such series shall have
voting power, full or limited, in addition to the voting powers
provided by law, and in case additional voting powers are
accorded to fix the extent thereof; and
(vii) Generally to fix the other rights and privileges and
any qualifications, limitations or restrictions of such rights
and privileges of such series, provided, however, that no such
rights, privileges, qualifications, limitations or restrictions
shall be in conflict with the Certificate of Incorporation of
the Corporation or with the resolution or resolutions adopted by
the Board of Directors, as hereinabove provided, providing for
the issue of any series for which there are shares then
outstanding.
All shares of Series Preferred Stock of the same series shall be
identical in all respects, except that shares of any one series
issued at different times may differ as to dates, if any, from which
dividends thereon may accumulate or accrue. All shares of Series
Preferred Stock of all series shall be of equal rank and shall be
identical in all respects except that to the extent not otherwise
limited in this ARTICLE THIRD any series may differ from any other
series with respect to any one or more of the designations, relative
rights, preferences and limitations described or referred to in
subparagraphs (i) to (vii) inclusive above.
2. DIVIDENDS: Dividends on the outstanding Series Preferred
Stock of each series shall be declared and paid or set apart for
payment before any dividends shall be declared and paid or set apart
for payment on the Common Stock with respect to the same quarterly
dividend period. Dividends on any shares of Series Preferred Stock
shall be cumulative only if and to the extent set forth in a
certificate filed pursuant to law. After dividends on all shares of
Series Preferred Stock (including cumulative dividends if and to the
extent any such shares shall be entitled thereto) shall have been
declared and paid or set apart for payment with respect to any
quarterly dividend period, and subject to the provisions of the
Preferred Stock with respect to dividends as above provided, then and
not otherwise so long as any shares of the Preferred Stock or Series
Preferred Stock shall remain outstanding, dividends may be declared
and paid or set apart for payment with respect to the same quarterly
dividend period on the Common Stock out of the assets or funds of the
Corporation legally available therefor.
All shares of Series Preferred Stock of all series shall be of
equal rank, preference and priority as to dividends irrespective of
whether or not the rates of dividends to which the same shall be
entitled shall be the same and when the stated dividends are not paid
in full, the shares of all series of the Series Preferred Stock shall
share ratably in the payment thereof in accordance with the sums
which would be payable on such shares if all dividends were paid in
full, provided, however, that any two or more series of the Series
Preferred Stock may differ from each other as to the existence and
extent of the right to cumulative dividends, as aforesaid.
3. VOTING RIGHTS: Except as otherwise specifically provided
herein or in the certificate filed pursuant to law with respect to
any series of the Series Preferred Stock, or as otherwise provided by
law, the Series Preferred Stock shall not have any right to vote for
the election of directors or for any other purpose and the Preferred
Stock and the Common Stock shall have the exclusive right to vote for
the election of directors and for all other purposes; provided,
however, that at any time when six (6) quarterly dividends on any one
or more series of Series Preferred Stock entitled to receive
cumulative dividends shall be in default, the holders of all such
cumulative series at the time or times outstanding as to which such
default shall exist shall be entitled, at the next annual meeting of
stockholders for the election of directors, voting as a class,
whether or not the holders thereof shall be entitled otherwise to
vote by certificate filed pursuant to law, to the exclusion of the
holders of Common Stock, Preferred Stock and any series of
noncumulative Series Preferred Stock, to vote for and elect two (2)
members of the Board of Directors of the Corporation, and provided,
further, that at any time when six (6) quarterly dividends on any one
or more series of noncumulative Series Preferred Stock shall be in
default, the holders of all such noncumulative series at the time or
times outstanding as to which such default shall exist shall be
entitled, at the next annual meeting of stockholders for the election
of directors, voting as a class, whether or not the holders thereof
shall be entitled otherwise to vote by certificate filed pursuant to
law, to the exclusion of the holders of Common Stock, Preferred Stock
and any series of cumulative Series Preferred Stock, to vote for and
elect two (2) members of the Board of Directors of the Corporation.
All rights of all series of Series Preferred Stock to participate in
the election of directors pursuant to this paragraph 3 shall continue
in effect, in the case of all series thereof entitled to receive
cumulative dividends, until cumulative dividends have been paid in
full or set apart for payment on each cumulative series which shall
have been entitled to vote at the previous annual meeting of
stockholders, or in the case of all series of noncumulative Series
Preferred Stock, until noncumulative dividends have been paid in full
or set apart for payment for four consecutive quarterly dividend
periods on each noncumulative series which shall have been entitled
to vote at the previous annual meeting of stockholders. Directors
elected by any class of stock, voting separately as a class, may be
removed only by a majority vote of such class, voting separately as a
class, so long as the voting power of such class shall continue.
Subject to the voting rights of the Preferred Stock and the voting
rights, if any, specifically provided in a certificate filed pursuant
to law in respect of any series of Series Preferred Stock, the
holders of the Common Stock, voting as a class, to the exclusion of
the holders of such series so entitled to vote for and elect members
of the Board pursuant to this paragraph 3, shall be entitled to vote
for and elect the balance of the Board of Directors.
Each stockholder entitled to vote at any particular time in
accordance with the foregoing provisions shall not have more than one
vote for each share of stock held of record by him and at the time
entitled to voting rights.
4. LIQUIDATION: In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, each
series of Series Preferred Stock shall have preference and priority
over the Common Stock for payment of the amount to which each
outstanding series of Series Preferred Stock shall be entitled in
accordance with the provisions thereof and each holder of Series
Preferred Stock shall be entitled to be paid in full such amounts, or
have a sum sufficient for the payment in full set aside, before any
payments shall be made to the holders of Common Stock, provided,
however, that each holder entitled to receive any preferential
amounts provided by certificate filed pursuant to law with respect to
any series of the Series Preferred Stock shall not be entitled to
receive for each share so held, if such liquidation, dissolution or
winding up be voluntary, more than $55.00 per share, or if such
liquidation, dissolution or winding up be involuntary, more than
$50.00 per share plus in either case an amount equal to all dividends
thereon accrued and unpaid. If, upon liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation or
proceeds thereof, distributable among the holders of the shares of
all series of the Series Preferred Stock, shall be insufficient to
pay in full the preferential amount aforesaid, then such assets, or
the proceeds thereof, shall be distributed among such holders ratably
in accordance with the respective amounts which would be payable if
all amounts payable thereon were paid in full. After the payment to
the holders of Series Preferred Stock of all such amounts to which
they are entitled, as above provided, and subject to rights with
respect to the Preferred Stock upon any such liquidation, dissolution
or winding up as above provided, the remaining assets and funds of
the Corporation shall be divided and paid to the holders of the
Common Stock.
5. REDEMPTION: In the event that the Series Preferred Stock of
any series shall be made redeemable as provided in clause (iii) of
paragraph 1 of section (b) of this ARTICLE THIRD, the Corporation, at
the option of the Board of Directors, may redeem at any time or
times, and from time to time, all or any part of any one or more
series of Series Preferred Stock outstanding upon notice duly given
as hereinafter specified, by paying for each share the then
applicable redemption price fixed by the Board of Directors
(including an amount equal to accrued and unpaid dividends to the
date fixed for redemption); provided, however, that a notice
specifying the shares to be redeemed, and the time and place of
redemption (and, if less than the total outstanding shares are to be
redeemed, specifying the certificate numbers and number of shares to
be redeemed) shall be published once in a daily newspaper printed in
the English language and published and of general circulation in the
Borough of Manhattan, The City of New York, and shall be mailed,
addressed to the holders of record of the Series Preferred Stock to
be redeemed at their respective addresses as the same shall appear
upon the books of the Corporation, not less than thirty (30) days
previous to the date fixed for redemption. If less than the whole
amount of any outstanding series of Series Preferred Stock is to be
redeemed, the shares of such series to be redeemed shall be selected
by lot or pro rata in any manner determined by resolution of the
Board of Directors to be fair and proper. From and after the date
fixed in any such notice as the date of redemption (unless default
shall be made by the Corporation in providing moneys at the time and
place of redemption for the payment of the redemption price) all
dividends upon the Series Preferred Stock so called for redemption
shall cease to accrue, and all rights of the holders of said Series
Preferred Stock as stockholders in the Corporation, except the right
to receive the redemption price upon surrender of the certificate
representing the Series Preferred Stock so called for redemption,
duly endorsed for transfer, if required, shall cease and determine.
With respect to any shares of Series Preferred Stock so called for
redemption, if, before the redemption date, the Corporation shall
deposit with a bank or trust company in the Borough of Manhattan, The
City of New York, having a capital and surplus of at least
$5,000,000, funds necessary for such redemption, in trust, to be
applied to the redemption of the shares of Series Preferred Stock so
called for redemption, then from and after the date of such deposit,
all rights of the holders of such shares of Series Preferred Stock so
called for redemption shall cease and determine, except the right to
receive, on and after the redemption date, the redemption price upon
surrender of the certificates representing such shares of Series
Preferred Stock so called for redemption, duly endorsed for transfer,
if required. Any interest accrued on such funds shall be paid to the
Corporation from time to time. Any funds so deposited and unclaimed
at the end of six (6) years from such redemption date shall be
released and repaid to the Corporation, after which the holders of
such shares of Series Preferred Stock so called for redemption shall
look only to the Corporation for payment of the redemption price.
Notwithstanding the foregoing, no redemption of any shares of any
series of Series Preferred Stock shall be made by the Corporation (1)
which as of the date of mailing of the notice of such redemption
would, if such date were the date fixed for redemption, reduce the
net assets of the Corporation remaining after such redemption below
the aggregate amount payable upon voluntary or involuntary
liquidation, dissolution or winding up to the holders of shares
having rights senior or equal to the Series Preferred Stock in the
assets of the Corporation upon liquidation, dissolution or winding
up; or (2) unless all cumulative dividends for the current and all
prior dividend periods have been declared and paid or declared and
set apart for payment on all shares of the Corporation having a right
to cumulative dividends; or (3) at a redemption price in excess of
$55.00 per share plus all accrued and unpaid dividends thereon to the
date fixed for redemption. No sinking funds shall be created for the
redemption, purchase or reacquisition otherwise of any shares of any
series of Series Preferred Stock not called for redemption as above
provided.
(c) COMMON STOCK
1. DIVIDENDS: Subject to all of the rights of the Preferred
Stock and the Series Preferred Stock, dividends may be declared and
paid or set apart for payment upon the Common Stock out of any assets
or funds of the Corporation legally available for the payment of
dividends.
2. VOTING RIGHTS: Except as otherwise expressly provided with
respect to the Preferred Stock and the Series Preferred Stock or with
respect to any series of the Series Preferred Stock, the Preferred
Stock and the Common Stock shall have the exclusive right to vote for
the election of directors and for all other purposes, each holder of
the Preferred Stock and the Common Stock being entitled to one vote
for each share thereof held.
3. LIQUIDATION: Upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, and after the
holders of the Preferred Stock and holders of the Series Preferred
Stock of each series shall have been paid in full the amounts to
which they respectively shall be entitled, or an amount sufficient to
pay the aggregate amount to which the holders of the Preferred Stock
and the Series Preferred Stock of each series shall be entitled shall
have been deposited with a bank or trust company having its principal
office in the Borough of Manhattan, The City of New York, and having
a capital, surplus and undivided profits of at least Twenty-Five
Million Dollars ($25,000,000) as a trust fund for the benefit of the
holders of such Preferred Stock and Series Preferred Stock, the
remaining net assets of the Corporation shall be distributed pro rata
to the holders of the Common Stock in accordance with their
respective rights and interests, to the exclusion of the holders of
such Preferred Stock, and Series Preferred Stock.
(d) GENERAL PROVISIONS
Shares of Preferred Stock of the Corporation redeemed as
hereinabove provided shall be deemed retired and extinguished and may
not be reissued.
A consolidation or merger of the Corporation with or into
another corporation or corporations or a sale, whether for cash,
shares of stock, securities or properties, of all or substantially
all of the assets of the Corporation shall not be deemed or construed
to be a liquidation, dissolution or winding up of the Corporation
within the meaning of this Article.
No holder of Common Stock, Preferred Stock or Series Preferred
Stock of the Corporation shall be entitled, as such, as a matter of
right, to subscribe for or purchase any part of any new or additional
issue of stock of any class or series whatsoever or of securities
convertible into stock of any class whatsoever, whether now or
hereafter authorized and whether issued for cash or other
consideration, or by way of dividend.
FOURTH: The office of the Corporation shall be located in the
City, County and State of New York. The address to which the
Secretary of State shall mail a copy of process in any action or
proceeding against the Corporation which may be served upon him is
7733 Forsyth Boulevard, St. Louis, Missouri 63105.
FIFTH: The duration of the Corporation shall be perpetual.
SIXTH: The Secretary of State of New York is designated as the
agent of the Corporation upon whom process in any action or
proceeding against it may be served. In addition, CT Corporation
System, 1633 Broadway, New York, New York 10019, is designated as the
registered agent of the Corporation upon whom process in any action
or proceeding against it may be served.
SEVENTH: The following provisions are inserted for the
regulation and conduct of the affairs of the Corporation, and it is
expressly provided that they are intended to be in furtherance and
not in limitation or exclusion of the powers conferred by statute.
(a) The Board of Directors may by resolution passed by
two-thirds of the whole Board designate three or more of its number
to constitute an Executive Committee, which shall have and exercise,
subject to such limitations, if any, as may be prescribed by the
By-Laws or by resolution of the Board of Directors, the powers of the
Board of Directors in the management of the business and affairs of
the Corporation, provided such Executive Committee shall act only at
such times as the Board of Directors is not in session and in no case
to the exclusion of the right of the Board of Directors at any time
to act as a Board upon any business of the Corporation.
(b) Subject to the provisions of the By-Laws, meetings of the
stockholders and directors of the Corporation for all purposes may be
held at any place within the State of New York and, unless otherwise
provided by law, at any place without such State.
(c) All corporate powers, including the sale, mortgage,
hypothecation and pledge of the whole or any part of the corporate
property, shall be exercised by the Board of Directors, except as
otherwise expressly provided by law.
(d) The Board of Directors is hereby expressly authorized to
apply in its discretion such portion of the net income of the
Corporation as it deems advisable to the redemption or purchase for
retirement of the Preferred Stock at an amount not exceeding the
redemption price thereof, whether or not there are dividends in
arrears on the Preferred Stock and whether or not any dividends have
been paid on the Common Stock.
(e) The Corporation may have one or more offices within or
without the State of New York and may keep the books of the
Corporation, subject to the provisions of the laws of the State of
New York, at such place or places within or without the State of New
York as the Board of Directors shall from time to time determine.
(f) The Board of Directors shall from time to time decide
whether and to what extent and at what times and under what
conditions and requirements the accounts and books of the
Corporation, or any of them, except the stock book, shall be open to
the inspection of the stockholders, and no stockholder shall have any
right to inspect any books or documents of the Corporation except as
conferred by the laws of the State of New York or authorized by the
Board of Directors.
(g) A director of the Corporation shall not, in the absence of
fraud, be disqualified by his office from dealing with or contracting
with the Corporation either as vendor, purchaser or otherwise, nor,
in the absence of fraud, shall any transaction or contract of the
Corporation be void or voidable or affected by reason of the fact
that any director or any firm, of which any director is a member, or
any corporation, of which the director is an officer, director or
stockholder, is in any way interested in such transaction or
contract; provided that at the meeting of the Board of Directors or
of the Committee thereof having authority in the premises to
authorize or confirm said contract or transaction, the interest of
such director, firm or corporation is disclosed or known, and there
shall be present a quorum of directors or of the directors
constituting such Committee not so interested or connected, and such
contract or transaction shall be approved by a majority of such
quorum, which majority shall consist of directors not so interested
or connected. Nor shall any director or directors so interested or
connected be liable to the Corporation or to any stockholders or
creditor thereof or to any other person for any loss incurred by it
under or by reason of any such contract or transaction. Nor shall any
such director or directors be accountable for any gains or profits
realized thereon; always provided, however, that such contract or
transaction shall at the time it was entered into have been a
reasonable one to have been entered into and shall have been upon
terms that at the time were fair.
(h) Any contract, transaction or act of the Corporation or of
the Board of Directors or of the Executive Committee or of any other
duly constituted committee and of which disclosure shall be made in
the notice of the meeting and which shall be approved or ratified by
a majority in interest of a quorum of the stockholders of the
Corporation having voting power at any annual or any special meeting
called for such purpose shall, except as otherwise specifically
provided herein or provided by the laws of the State of New York, be
as valid and as binding as though approved or ratified by every
stockholder of the Corporation; provided, however, that any failure
of the Stockholders to approve or ratify such contract, transaction
or act, when and if submitted, shall not be deemed in any way to
invalidate the same or to deprive the Corporation, its directors or
officers of their right to proceed with such contract, transaction or
action. Any director of the Corporation may vote upon any contract or
other transaction between the Corporation and any subsidiary or
affiliated corporation without regard to the fact that he is also a
director of such subsidiary or affiliated corporation.
(i) The Board of Directors shall have power from time to time to
fix and to determine and vary the amount of the working capital of
the Corporation, and to direct and determine the use and disposition
of any surplus or net profits over and above the capital stock paid
in; and in its discretion the Board of Directors may use and apply
any such surplus or accumulated profits in purchasing or acquiring
bonds or other obligations of the Corporation, to such extent and in
such manner and upon such terms as the Board of Directors shall deem
expedient.
(j) Directors may be removed at any time by a majority vote of
the stockholders entitled to vote, except that directors elected by
any class of stock, voting separately as a class, may be removed only
by a majority vote of such class, voting separately as a class, so
long as the voting power of such class shall continue.
(k) A person who is or was a director of the Corporation shall
not be liable to the Corporation or its stockholders for damages for
any breach of duty in such capacity occurring after the adoption of
this paragraph (k), except that the foregoing provisions shall not
eliminate or limit liability where such liability is imposed, from
time to time, by the law of New York State, provided, however, that
nothing in this paragraph shall directly or indirectly increase the
liability of any such person based upon acts or omissions occurring
before the adoption hereof.
EIGHTH: The Corporation hereby reserves the right to amend,
alter, change or repeal any provision contained in this Certificate
of Incorporation as now stated and as hereafter amended, altered or
changed in the manner now or hereafter prescribed by the laws of the
State of New York, and all rights and powers conferred by this
Certificate of Incorporation on stockholders, directors, or officers
of the Corporation are hereby granted subject to this reservation;
provided that the provisions of this Certificate of Incorporation, as
so amended, changed, altered or repealed, shall contain such
provisions as shall be lawful.
NINTH: The number of directors of the Corporation, exclusive of
directors, if any, to be elected by the holders of 4% Cumulative
Preferred Stock or the holders of one or more series of Series
Preferred Stock pursuant to the provisions of Paragraph 2 of Section
(a) or Paragraph 3 of Section (b), respectively, of ARTICLE THIRD
herein, shall be not less than ten nor more than sixteen. Subject to
such limitation, such number may be fixed by the By-Laws, or by
action of the stockholders or of the Board under the specific
provisions of a By-Law adopted by the stockholders. The directors of
the Corporation shall be divided into three classes as nearly equal
in number as possible. There shall be at least three directors in
each class. The term of office of the first class shall expire at the
first annual meeting of stockholders succeeding the initial
classification of directors, the term of the office of the second
class shall expire at the second annual meeting succeeding such
classification and that of the third class at the third annual
meeting succeeding such classification. At each annual meeting,
directors to replace those whose terms expire at such annual meeting
shall be elected to hold office until the third succeeding annual
meeting. If the number of directors is changed, any newly created
directorships or decrease in directorships shall be so apportioned
among the classes as to make all classes as nearly equal in number as
possible. If the number of directors is increased by the Board of
Directors and any newly created directorships are filled by the
Board, there shall be no classification of the additional directors
until the next annual meeting of stockholders. Notwithstanding the
foregoing, if the holders of 4% Cumulative Preferred Stock or the
holders of one or more series of Series Preferred Stock shall become
entitled to elect two members of the Board pursuant to the provisions
of Paragraph 2 of Section (a) or Paragraph 3 of Section (b),
respectively, of ARTICLE THIRD herein, the terms of all members of
the Board of Directors previously elected shall expire at the time of
such election and the entire Board of Directors shall be elected in
the manner specified in said Paragraph 2 of Section (a) or said
Paragraph 3 of Section (b) of ARTICLE THIRD, each director to serve
until the next meeting of stockholders at which directors are
elected; and whenever neither the holders of the 4% Cumulative
Preferred Stock nor the holders of any series of Series
Preferred Stock is any longer entitled to vote for the election of
two directors as provided in said Paragraph 2 of Section (a) or said
Paragraph 3 of Section (b) of ARTICLE THIRD, the directors shall be
elected at the next annual meeting of stockholders held for such
purpose in the manner provided in the first eight sentences of this
ARTICLE. Subject to the foregoing, at each annual meeting of
stockholders the successors to the class of directors whose term
shall then expire shall be elected to hold office for a term of three
years. No amendment to the Certificate of Incorporation of the
Corporation shall amend, alter, change or repeal any of the
provisions of this ARTICLE NINTH unless the amendment effecting such
amendment, alteration, change or repeal shall receive the affirmative
vote of the holders of two-thirds of the shares of all classes of
stock of the Corporation entitled to vote in elections of directors,
considered for the purposes of this ARTICLE NINTH as one class.
TENTH: (a) The affirmative vote of the holders of not less than
a majority of the Voting Stock (as hereinafter defined) of the
Corporation shall be required before the Corporation may purchase any
outstanding shares of Common Stock of the Corporation at a price
known by the Corporation to be above Market Price (as hereinafter
defined) from a person known by the Corporation to be a Selling
Shareholder (as hereinafter defined), unless the purchase is made by
the Corporation on the same terms and as a result of a duly
authorized offer to purchase any and all of the outstanding shares of
Common Stock of the Corporation.
(b) For purposes of ARTICLE TENTH:
(1) The term "Voting Stock" shall mean the outstanding shares
of stock of the Corporation entitled to vote in elections of
directors of the Corporation considered as one class.
(2) The majority vote required by Section (a), when
applicable, shall be in addition to any lesser vote or no vote
required or permitted by law or this Certificate of
Incorporation exclusive of this Article Tenth and the shares of
the Selling Shareholder shall, for this purpose, be counted as
having abstained regardless of how they have been voted.
(3) The term "Market Price" shall mean the highest closing
sale price, during the 30-day period immediately preceding the
date in question, of a share of the Common Stock of the
Corporation on the Composite Tape for New York Stock Exchange
Issues, or, if such stock is not quoted on the Composite Tape or
is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act
of 1934 on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such
stock.
(4) The term "Selling Shareholder" shall mean and include any
person who or which is the beneficial owner of in the aggregate
more than three percent of the outstanding shares of Common
Stock of the Corporation and who or which has purchased or
agreed to purchase any of such shares within the most recent
two-year period.
(5) A "person" shall mean any individual, firm, partnership,
corporation or other entity.
(6) A person shall be the "beneficial owner" of any shares of
Common Stock of the Corporation:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns,
directly or indirectly; or
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right
is conditional or exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b)
the right to vote pursuant to any agreement, arrangement or
understanding; or
(iii) which are beneficially owned, directly or indirectly,
by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting
or disposing thereof.
(7) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect on July 1, 1984.
(8) For the purposes of determining whether a person is a
Selling Shareholder, the number of shares of Common Stock deemed
to be outstanding and the number of shares beneficially owned by
the person shall include shares respectively deemed owned
through application of paragraph (6) of this Section (b) but
shall not include any other shares of Common Stock which may be
issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants
or options, or otherwise, or shares of the Selling Shareholder
whose acquisition of more than three percent of the outstanding
shares of Common Stock of the Corporation within the most recent
two-year period results from other than a purchase or agreement
to purchase or vote shares of the Corporation.
(9) Nothing contained in this ARTICLE TENTH shall be construed
to relieve any Selling Shareholder from any fiduciary obligation
imposed by law.
(10) The Board of Directors of the Corporation shall have the
power to determine the application of or compliance with this
ARTICLE TENTH, including, without limitation, (1) whether a
person is a Selling Shareholder; (2) whether a person is an
Affiliate or Associate of another; (3) whether Section (a) is or
has become applicable in respect of a proposed transaction;
(4) what is the Market Price and whether a price is above Market
Price; and (5) when or whether a purchase or agreement to
purchase any share or shares of Common Stock of the Corporation
has occurred and when or whether a person has become a
beneficial owner of any share or shares of Common Stock of the
Corporation. Any decision or action taken by the Board of
Directors arising out of or in connection with the construction,
interpretation and effect of this ARTICLE TENTH shall lie within
their absolute discretion and shall be conclusive and binding
except in circumstances involving bad faith.
ELEVENTH: Section 1. VOTE REQUIRED FOR CERTAIN BUSINESS
COMBINATIONS.
A. HIGHER VOTE FOR CERTAIN BUSINESS COMBINATIONS. In addition
to any affirmative vote required by law or this Certificate of
Incorporation, and except as otherwise expressly provided in Section
2 of this ARTICLE ELEVENTH, any transaction or contract which
involves or includes:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested
Shareholder (as hereinafter defined) or (b) any other corporation
(whether or not itself an Interested Shareholder) which is, or after
such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Shareholder or any Affiliate of any Interested
Shareholder of any assets of the Corporation or any Subsidiary having
an aggregate Fair Market Value of $50,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Shareholder or any Affiliate of any Interested Shareholder in
exchange for cash, securities (to the extent the acquisition thereof
does not come within the requirements of Article Tenth) or other
property (or a combination thereof) having an aggregate Fair Market
Value of $50,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any
Interested Shareholder or any Affiliate of any Interested
Shareholder; or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger
or consolidation of the Corporation with any of its Subsidiaries or
any other transaction (whether or not with or into or otherwise
involving an Interested Shareholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of Equity Security (as hereinafter
defined) of the Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Shareholder or any Affiliate of
any Interested Shareholder:
shall require the affirmative vote of the holders of at least 80% of
the voting power of the then outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors (the "Voting Stock"), voting together as a single class.
Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage may be specified
by law or in any agreement with any national securities exchange or
this Certificate of Incorporation exclusive of this ARTICLE ELEVENTH.
B. DEFINITION OF "BUSINESS COMBINATION". The term "Business
Combination" used in this ARTICLE ELEVENTH shall mean any transaction
or contract which is referred to in any one or more of clauses (I)
through (v) of Paragraph A of this Section 1.
Section 2. WHEN HIGHER VOTE IS NOT REQUIRED
The provisions of Section 1 of this ARTICLE ELEVENTH shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required
by law and any other provision of this Certificate of Incorporation,
if all of the conditions specified in either of the following
Paragraphs A or B are met:
A. APPROVAL BY DIRECTORS. The Business Combination shall have
been approved by the Board of Directors in accordance with the
requirements of ARTICLE SEVENTH.
B. PRICE AND PROCEDURE REQUIREMENTS. All of the following
conditions shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value
(as hereinafter defined), as of the date of the consummation of the
Business Combination, of consideration other than cash to be received
per share by holders of Common Stock in such Business Combination
shall be at least equal to the higher of the following:
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Shareholder for any shares
of Common Stock acquired by it (1) within the two-year period
immediately prior to the first public announcement of the terms
of the proposed Business Combination (the "Announcement Date")
or (2) in the transaction in which it became an Interested
Shareholder, whichever is higher; or
(b) The Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Shareholder became an Interested Shareholder (such latter date
is referred to in this ARTICLE ELEVENTH as the "Determination
Date"), whichever is higher;
(ii) The aggregate amount of the cash and the Fair Market
Value, as of the date of the consummation of the Business
Combination, of consideration other than cash to be received per
share by holders of shares of any other class of outstanding Voting
Stock shall be at least equal to the higher of the following (it
being intended that the requirements of this paragraph B (ii) shall
be required to be met with respect to every class of outstanding
Voting Stock, whether or not the Interested Shareholder has
previously acquired any shares of a particular class of Voting
Stock):
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Shareholder for any shares of such
class of Voting Stock acquired by it (1) within the two-year
period immediately prior to the Announcement Date or (2) in the
transaction in which it became an Interested Shareholder,
whichever is higher;
(b) (if applicable) the highest preferential amount per share
to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; and
(c) The Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date,
whichever is higher.
(iii) The consideration to be received by holders of a
particular class of outstanding Voting Stock (including Common Stock)
shall be in cash or in the same form as the Interested Shareholder
has previously paid for shares of such class of Voting Stock. If the
Interested Shareholder has paid for shares of any class of Voting
Stock with varying forms of consideration, the form of consideration
for such class of Voting Stock shall be either cash or the form used
to acquire the largest number of shares of such class of Voting Stock
previously acquired by it. The price determined in accordance with
paragraph B (I) and B (ii) of this Section 2 shall be subject to
appropriate adjustment in the event of any stock dividend, stock
split, combination of shares or similar event.
(iv) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business
Combination: (a) except as approved by the Board of Directors in
accordance with the requirements of ARTICLE SEVENTH, there shall have
been no failure to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) on any
outstanding stock having preference over the Common Stock as to
dividends or upon liquidation; (b) there shall have been (1) no
reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the Common Stock),
except as approved by the Board of Directors in accordance with the
requirements of ARTICLE SEVENTH, and (2) an increase in such annual
rate of dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization, reorganization
or any similar transaction which has the effect of reducing the
number of outstanding shares of the Common Stock, unless the failure
so to increase such annual rate is approved by the Board of Directors
in accordance with the requirements of ARTICLE SEVENTH; and such
Interested Shareholder shall not have become the beneficial owner of
any additional shares of Voting Stock or securities convertible into
Voting Stock except as part of the transaction which results in such
Interested Shareholder becoming an Interested Shareholder.
(v) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the
benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to public shareholders of the
Corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or subsequent
provisions).
Section 3. CERTAIN DEFINITIONS. For the purpose of this ARTICLE
ELEVENTH:
A. A "person" shall mean any individual, firm, corporation or
other entity.
B. "Interested Shareholder" shall mean any person (other than
the Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of 20% or
more of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 20% or more of the
voting power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Shareholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates
has (a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (b) the right to vote pursuant to any agreement,
arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
D. For the purpose of determining whether a person is an
Interested Shareholder pursuant to paragraph B of this Section 3, the
number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of paragraph C of
this Section 3 but shall not include any other shares of Voting Stock
which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in
effect on July 1, 1984.
F. "Subsidiary" means any corporation of which a majority of
any class of Equity Security is owned, directly or indirectly, by the
Corporation, provided, however, that for the purposes of the
definition of Interested Shareholder set forth in paragraph B of this
Section 3, the term "Subsidiary" shall mean only a corporation of
which a majority of each class of Equity Security is owned, directly
or indirectly, by the Corporation.
G. "Fair Market Value" means: (I) in the case of stock, the
highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange issues, or, if such stock
is not quoted on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, if such stock
is not listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system
then in use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined
by the Board of Directors in good faith; and (ii) in the case of
property other than cash or stock, the fair market value of such
property on the date in question as determined by the Board of
Directors in good faith.
H. In the event of any Business Combination in which the
corporation survives, the phrase "consideration other than cash to be
received" as used in paragraphs B (I) and (ii) of Section 2 of this
ARTICLE ELEVENTH shall include the shares of Common Stock and/or the
shares of any other class of outstanding Voting Stock retained by the
holders of such shares.
I. "Equity Security" shall have the meaning ascribed to such
term in Section 3(a)(11) of the Securities Exchange Act of 1934, as
in effect on July 1, 1984.
Section 4. POWERS OF THE BOARD OF DIRECTORS. The Board of
Directors, in accordance with the requirements of ARTICLE SEVENTH,
shall have the power to interpret all of the terms and provisions of
this ARTICLE ELEVENTH, including, without limitation, and on the
basis of information known to the Board after reasonable inquiry (a)
whether a person is an Interested Shareholder, (b) the number of
shares of Voting Stock beneficially owned by any person, (c) whether
a person is an Affiliate or Associate of another, (d) whether the
assets which are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $50,000,000 or
more.
Section 5. NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED
SHAREHOLDERS. Nothing contained in this ARTICLE ELEVENTH shall be
construed to relieve any Interested Shareholder from any fiduciary
obligation imposed by law.
Section 6. AMENDMENT, REPEAL, ETC. notwithstanding any other
provisions of this Certificate of Incorporation or the By-Laws (and
notwithstanding the fact that a lesser percentage may be specified by
law, this Certificate of Incorporation or the By-Laws or otherwise)
the affirmative vote or consent of the holders of 80% or more of the
outstanding Voting Stock, voting together as a single class, shall be
required to amend or repeal, or adopt any provisions inconsistent
with, this ARTICLE ELEVENTH or any provision hereof.
VI: That the restatement of the Certificate of Incorporation
and the amendment to Article Fourth contained therein were authorized
by a vote of the majority of directors present at a meeting of the
Board at which a quorum was present.
IN WITNESS WHEREOF, we have made, subscribed and verified the
Certificate this 22nd day of June, 1994.
Mallinckrodt Group Inc.
C. RAY HOLMAN
- --------------------------
C. Ray Holman
President and
Chief Executive Officer
ROGER A. KELLER
- --------------------------
Roger A. Keller
Vice President, Secretary and
General Counsel
(CORPORATE SEAL)
State of Missouri )
)ss.:
County of St. Louis )
C. Ray Holman, being duly sworn, deposes and says that: he is
President and Chief Executive Officer of Mallinckrodt Group Inc., the
corporation named in and described in the foregoing certificate; he
has read the foregoing certificate and knows the contents thereof;
and the same is true of his own knowledge, except as to the matters
therein stated to be alleged upon information and belief, and as to
those matters he believes to be true.
C. RAY HOLMAN
- --------------------------
C. Ray Holman
Sworn to before me this _____ day of __________, 1994.
__________________________
Notary Public
My Commission Expires: _________________________.
Exhibit 3.3
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
MALLINCKRODT GROUP INC.
************************************
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
************************************
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
MALLINCKRODT GROUP INC.
____________________________________________________________________
Under Section 805 of the Business Corporation Law
____________________________________________________________________
Pursuant to Section 805 of the Business Corporation Law, the
undersigned, C. Ray Holman, Chairman of the Board and Chief Executive
Officer, and Roger A. Keller, Vice President and Secretary, hereby
certify as follows:
I. The name of the Corporation is Mallinckrodt Group Inc.
II. The Certificate of Incorporation of the Corporation (under the
name of International Agricultural Corporation) was originally filed by
the Department of State, Albany, New York, on the 14th day of June,
1909.
III. The Certificate of Incorporation of the Corporation shall be
amended to change the name of the corporation, and to effect such
change, ARTICLE FIRST is hereby amended to read as follows:
FIRST: The name of the Corporation is Mallinckrodt Inc.
IV. This amendment to ARTICLE FIRST was authorized by the unanimous
affirmative vote of the Board of Directors of the Corporation, followed
by the affirmative vote of the holders of a majority of the outstanding
shares of the Corporation's 4% Cumulative Preferred Stock and Common
Stock voting as one class entitled to vote thereon at the annual meeting
of the stockholders of the Corporation held on October 16, 1996.
IN WITNESS WHEREOF, we have made and subscribed the Certificate this
16th day of October, 1996, and the Chairman of the Board and Chief
Executive Officer of the Corporation has also verified this Certificate.
Mallinckrodt Group Inc.
C. RAY HOLMAN
----------------------
C. Ray Holman, Chairman
of the Board and Chief
Executive Officer
ROGER A. KELLER
-----------------------
Roger A. Keller, Vice President
and Secretary
(Corporate Seal)
STATE OF MISSOURI )
)
COUNTY OF ST. LOUIS )
C. Ray Holman, being duly sworn, deposes and says that he is
Chairman of the Board and Chief Executive Officer of Mallinckrodt Group
Inc., the corporation named and described in the foregoing Certificate
of Amendment; that he has read the foregoing Certificate of Amendment
and knows the contents thereof; and, that the same are true of his own
knowledge, except as to the matters therein stated to be alleged upon
information and belief, and as to those matters he believes them to be
true.
C. RAY HOLMAN
-------------------------
C. Ray Holman, Chairman of the Board
and Chief Executive Officer
Sworn to before me this
16th day of October, 1996
- ----------------------------
Notary Public
My commission expires:
