<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MALLINCKRODT INC.
(FORMERLY MALLINCKRODT GROUP INC.)
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
---------------
<TABLE>
<S> <C> <C>
NEW YORK 675 MCDONNELL BOULEVARD 36-1263901
(STATE OR OTHER JURISDICTION OF P.O. BOX 5840 (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) ST. LOUIS, MO 63134 IDENTIFICATION NO.)
(314) 654-2000
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ROGER A. KELLER
MALLINCKRODT INC.
675 MCDONNELL BOULEVARD
P.O. BOX 5840
ST. LOUIS, MO 63134
(314) 654-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
JOHN M. REISS MICHAEL A. CAMPBELL
WHITE & CASE MAYER, BROWN & PLATT
1155 AVENUE OF THE AMERICAS 190 SOUTH LASALLE STREET
NEW YORK, NEW YORK 10036 CHICAGO, ILLINOIS 60603
(212) 819-8200 (312) 782-0600
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement as the
registrant shall determine.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
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Debt Securities........ $500,000,000(1) 100%(2) $500,000,000(1) $147,500(3)
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</TABLE>
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(1) Or, if any Debt Securities are issued at an original issue discount, such
greater amount as shall result in an aggregate initial offering price of
$500,000,000.
(2) Estimated solely for purpose of calculating the registration fee.
(3) Pursuant to Rule 429, a filing fee of $17,241.60 that was paid in
connection with the registration of $50 million of unsold Debt Securities
(Reg. No. 33-52821) is being applied to the Debt Securities being
registered hereby. In addition, pursuant to Rule 429, a filing fee of
$15,625 that was paid in connection with the registration of $50 million
of unsold Debt Securities (Reg. No. 33-47081) is being applied to the Debt
Securities being registered hereby.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, Dated December 16, 1997
[LOGO]
$500,000,000
MALLINCKRODT INC.
DEBT SECURITIES
-----------
Mallinckrodt Inc. (the "Company") may from time to time offer up to
$500,000,000 aggregate initial offering price of its debt securities (the "Debt
Securities"), on terms to be determined at the time of sale, and as more fully
described under "Description of the Securities." The accompanying Prospectus
Supplement (the "Prospectus Supplement") sets forth the specific designation,
the aggregate principal amount offered, authorized denominations, maturity,
purchase price, rate (which may be fixed or variable) and time of payment of
interest, any terms of redemption (including any sinking fund) and any other
specific terms of the Debt Securities in respect of which this Prospectus and
the Prospectus Supplement are being delivered (the "Securities"), together with
the terms of the offering and sale of the Securities.
The Company may sell Debt Securities to or through underwriters or dealers,
directly to one or more purchasers, through agents or through a combination of
the foregoing. See "Plan of Distribution." Unless otherwise set forth in the
Prospectus Supplement, such underwriters will include Goldman, Sachs & Co.
acting alone or as a representative of a group of underwriters. Goldman, Sachs
& Co. may also act as agent. The accompanying Prospectus Supplement sets forth
the names of such underwriters or agents, the principal amounts, if any, to be
purchased by underwriters and the compensation, if any, of such underwriters or
agents.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
GOLDMAN, SACHS & CO.
-----------
The date of this Prospectus is December , 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements, information statements and other information filed by the Company
can be inspected and copied at the public reference facilities maintained by
the Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, and at the following Regional Offices of the
Commission: New York Regional Office, Seven World Trade Center, New York, New
York 10048; and Chicago Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material can be obtained from the
Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Electronic filings filed through
the Commission's Electronic Data Gathering, Analysis and Retrieval system
("EDGAR") are publicly available through the Commission's home page on the
Internet at http://www.sec.gov. Such reports, proxy statements, information
statements and other information filed by the Company can also be inspected at
the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005; the Chicago Stock Exchange, Inc., 440 South LaSalle Street,
Chicago, Illinois 60605; and the Pacific Stock Exchange, Incorporated, 233
South Beaudry Avenue, Los Angeles, California 90012 and 301 Pine Street, San
Francisco, California 94104.
The Company's Common Stock, $1 par value, is listed on the three
aforementioned stock exchanges.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus omits certain of the information contained
in the Registration Statement, and reference is hereby made to the
Registration Statement and to the exhibits thereto for further information
with respect to the Company and the Debt Securities. Any statements contained
herein concerning the provisions of any document are not necessarily complete,
and, in each instance, reference is made to the copy of such document filed as
an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997.
(3) The Company's current reports on Form 8-K filed on July 7, 1997, July
14, 1997, July 29, 1997, September 2, 1997, September 5, 1997,
September 25, 1997, October 7, 1997, October 16, 1997, October 21,
1997, November 3, 1997 and November 26, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and prior to the termination
of the offering of the Debt Securities shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
2
<PAGE>
The Company hereby undertakes to provide without charge to each person to
whom a Prospectus is delivered a copy of any or all of the information that
has been incorporated by reference herein (other than exhibits to such
documents) upon written or oral request. Requests for such copies should be
directed to the Corporate Secretary, Mallinckrodt Inc., 675 McDonnell
Boulevard, St. Louis, MO 63134, telephone number (314) 654-2000.
FORWARD LOOKING STATEMENTS
"Safe Harbor" Statement under the Private Securities Litigation Reform Act
of 1995: With the exception of historical information, the matters discussed
in this Prospectus are forward-looking statements that involve risks and
uncertainties, and actual results could differ materially from those
discussed. Among the factors that could cause actual results to differ
materially are the following: the effect of business and economic conditions;
the impact of competitive products and continued pressure on prices realized
by the Company for its products; constraints on supplies of raw materials used
in manufacturing certain of the Company's products; capacity constraints
limiting the production of certain products; difficulties or delays in the
development, production, testing, and marketing of products; difficulties or
delays in receiving required governmental or regulatory approvals; market
acceptance issues, including the failure of products to generate anticipated
sales levels; difficulties in rationalizing acquired businesses and in
realizing related cost savings and other benefits; the effects of and changes
in trade, monetary, and fiscal policies, laws, and regulations, foreign
exchange rates and fluctuations in those rates; the costs and effects of legal
and administrative proceedings, including environmental proceedings and patent
disputes involving the Company; and any other risk factors reported from time
to time in the Company's SEC reports.
3
<PAGE>
THE COMPANY
The Company (formerly Mallinckrodt Group Inc.), a New York corporation, is a
global company serving specialty markets in healthcare and specialty
chemicals. Healthcare products are instrumental in the delivery of healthcare
services and are sold primarily to hospitals and alternate care sites,
clinical laboratories and pharmaceutical manufacturers on a worldwide basis.
Healthcare products are related by a high degree of innovation and technology,
by regulation from agencies such as the U.S. Food and Drug Administration,
industry standards and by markets served. They are significantly affected by
conditions within the healthcare industry, including continuing legislative
initiatives and public and private healthcare insurance and reimbursement
programs. The healthcare markets served are imaging agents, respiratory care
and pharmaceutical specialties. Imaging agents include the manufacture, sale
and distribution of products used in radiology, cardiology and nuclear
medicine. Respiratory care includes the manufacture, sale and distribution of
products used in oxygen monitoring, critical care ventilation, airway
management, temperature monitoring, temperature management and blood analysis.
Pharmaceutical specialties include analgesics such as acetaminophen used to
control pain and fever, codeine salts, morphine and other opium based
narcotics and synthetic narcotics used to treat pain and coughs; and peptides
which are used in many new pharmaceuticals. Specialty chemicals are products
that possess a higher degree of technology and service than is characteristic
of commodity chemicals. Specialty chemicals include the manufacture, sale and
distribution of products which are used by customers worldwide as components,
ingredients or reagents, rather than final consumer products. Specialty
chemicals include catalysts, and laboratory and microelectronics chemicals.
The Company was incorporated in New York in 1909 and was primarily a
producer and manufacturer of fertilizers and other commodity chemicals. During
the past several years, the Company has undertaken significant steps to
transform itself. In June 1994, the Company recorded a restructuring charge of
$46 million after taxes to reengineer its Mallinckrodt Medical division to
enhance responsiveness to healthcare customer needs, and compete more
effectively in a market that is changing as a result of healthcare reform. In
December 1995, the Company announced a Strategic Change Initiative which
eliminated the management and administrative structures of the three former
operating companies, Mallinckrodt Chemical, Inc., Mallinckrodt Medical, Inc.
and Mallinckrodt Veterinary, Inc. Those businesses are now managed through
divisions with global responsibility under a corporate chief operating
officer. On March 31, 1997, the Company disposed of Fries & Fries, Inc., a
wholly owned subsidiary which owned the Company's 50% interest in Tastemaker,
which was a flavors joint venture with Hercules Incorporated. The transaction
generated a net value to the Company of $550 million. On June 30, 1997, the
Company disposed of its animal health segment for $405 million in cash. The
Company retained certain liabilities, as well as various parcels of idle real
property and efforts are underway to divest these assets. On August 28, 1997,
the Company completed its purchase of all of the outstanding shares of Nellcor
Puritan Bennett Incorporated common stock for an aggregate purchase price of
$1.9 billion. Nellcor is the world leader in providing products that monitor,
diagnose and treat the respiratory impaired patient. With the acquisition, the
Company has become a more important healthcare force serving hospital,
alternate care and pharmaceutical markets.
The corporate headquarters is located at 675 McDonnell Boulevard, St. Louis,
Missouri 63134 and the telephone number is (314) 654-2000.
4
<PAGE>
USE OF PROCEEDS
Except as otherwise noted in any Prospectus Supplement, the net proceeds
from the sale of the Debt Securities will be used primarily for debt reduction
in the manner described in any Prospectus Supplement. In addition, a portion
of such proceeds may be added to the general funds of the Company and may be
used for general corporate purposes. Pending such a use, some portion of such
funds may be invested in short-term marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEARS ENDED JUNE 30,
SEPTEMBER 30, ------------------------
1997 1997 1996 1995 1994 1993
------------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges.......... (1) 6.1 5.0 5.0 3.7 3.3
</TABLE>
(1) Earnings were inadequate to cover fixed charges for the three months ended
September 30, 1997 primarily due to acquisition charges recorded during
the quarter. The coverage deficiency was approximately $371 million.
The ratio of earnings to fixed charges is based on earnings from continuing
operations and has been computed on a total enterprise basis. Earnings
represent income from continuing operations before income taxes and fixed
charges, net of capitalized interest. Fixed charges consist of interest
expense before reduction for capitalized interest, one-third of rental expense
(net of rental income from subleased properties), which is considered to be
representative of the interest factors in the leases, and the Company's
proportionate share of interest expense of 50%-owned entities accounted for by
the equity method before reduction for capitalized interest, and amortization
of debt discount and expenses.
DESCRIPTION OF THE SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Securities to which any Prospectus Supplement may
relate. The Debt Securities are to be issued under an Indenture dated as of
March 15, 1985, as amended and restated as of February 15, 1995 and as may be
further amended and supplemented (the "Indenture"), between the Company and
First Trust of New York, National Association, as trustee (the "Trustee"), a
copy of which is filed as an exhibit to the Registration Statement. The
particular terms of the Securities and the extent, if any, to which such
general provisions may apply to the Securities will be described in the
Prospectus Supplement relating to such Securities.
The following summary of the material provisions of the Indenture does not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indenture, including the definition
therein of certain terms. Wherever particular articles, sections or defined
terms of the Indenture are referred to, it is intended that such articles,
sections or defined terms shall be incorporated herein by reference.
GENERAL
The Indenture does not limit the aggregate principal amount of debentures,
notes or other evidences of indebtedness which may be issued thereunder (such
debentures, notes or other evidences of indebtedness issued under the
Indenture being herein referred to as the "Securities"). The Indenture
provides that Securities may be issued from time to time in one or more
series. The Securities will be unsecured obligations ranking equally with each
other and with other unsecured and unsubordinated indebtedness of the Company.
5
<PAGE>
The Prospectus Supplement relating to the particular Securities offered
thereby will describe the following terms of the Securities: (1) the title of
the Securities; (2) any limit on the aggregate principal amount of the
Securities; (3) the record date for determining the persons to whom any
interest on any Securities of the series will be payable; (4) the date or
dates on which the principal of the Securities will be payable; (5) the rate
or rates (or formula for determining such rates) at which the Securities of
the series will bear interest, if any, the date or dates from which such
interest will accrue, the interest payment dates on which such interest will
be payable and the record dates for the determination of Holders to whom
interest is payable; (6) whether the interest rate or interest rate formula
for Securities of the series may be reset at the option of the Company or
otherwise, and the date or dates on which such interest rate or interest rate
formula may be reset; (7) the place or places where the principal and interest
on the Securities of the series will be payable and the place or places where
the Securities may be surrendered for registration of transfer or exchange;
(8) the date, if any, after which the Securities may, pursuant to any optional
or mandatory redemption provisions, be redeemed, in whole or in part, and the
other detailed terms and provisions of any such optional or mandatory
redemption provisions; (9) any mandatory or optional sinking fund or analogous
provisions; (10) the currency or the composite currency in which the
Securities are denominated (the "Specified Currency"); (11) the currency or
currencies of payment of principal of and any premium and interest on the
Securities if other than the Specified Currency; (12) any index used to
determine the amount of payments of principal of and any premium and interest
on the Securities; (13) any additional covenants applicable to the Securities;
and (14) any other terms of the Securities (which terms will not be
inconsistent with the provisions of the Indenture). Unless otherwise indicated
in the Prospectus Supplement, principal of (and premium, if any) and interest,
if any, on the Securities will be payable, and transfers of the Securities
will be registrable, at the Corporate Trust Office of the Trustee (currently
located at 100 Wall Street, Suite 1600, New York, New York 10005), provided
that at the option of the Company payment of interest may be made by check
mailed to the address of the person entitled thereto as it appears in the
Security Register. (Sections 3.01, 3.03, 3.06 and 5.02)
Unless otherwise indicated in the Prospectus Supplement, the Securities will
be issued only in fully registered form without coupons in denominations of
1,000 units of the Specified Currency or any integral multiple thereof.
(Section 3.02) No service charge will be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 3.06) If any of the Securities are denominated in a
Specified Currency other than U.S. Dollars or if the principal, premium and/or
interest with respect to any series of Securities is payable in a Specified
Currency other than U.S. Dollars, the restrictions, elections, general tax
considerations, specific terms and other information with respect to such
issue of Securities related to such Specified Currency will be set forth in
the applicable Prospectus Supplement. The Company shall not be required to (i)
issue, register the transfer of, or exchange Securities of any series during
the period from 15 days prior to the mailing of notice of redemption of
Securities of that series to the date of such mailing or (ii) register the
transfer of or exchange any Security so selected for redemption, except the
unredeemed portion of any Security being redeemed in part. (Section 3.06)
Securities may be issued under the Indenture as Original Issue Discount Debt
Securities to be sold at a substantial discount below their principal amount.
Federal income tax and other considerations applicable to any Security that is
issued with "original issue discount" for Federal income tax purposes (which
may include an Original Issue Discount Debt Security) will be described in the
Prospectus Supplement relating thereto. The Prospectus Supplement may indicate
terms for redemption at the option of a Holder. Unless otherwise indicated in
the Prospectus Supplement, the covenants contained in the Indenture and the
Securities would not provide for redemption at the option of a Holder nor
afford Holders protection in the event of a highly leveraged or other
transaction that may adversely affect Holders.
6
<PAGE>
CERTAIN DEFINITIONS
The following terms are defined substantially as follows in Section 1.01 of
the Indenture and are used herein as so defined.
Consolidated Net Tangible Assets. (a) The total amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all liabilities and liability items, except for indebtedness
payable by its terms more than one year from the date of incurrence thereof
(or renewable or extendible at the option of the obligor for a period ending
more than one year after such date of incurrence), capitalized rent, capital
stock and surplus, surplus reserves and deferred income taxes and credits and
other non-current liabilities, and (ii) all goodwill, trade names, trademarks,
patents, unamortized debt discount, unamortized expense incurred in the
issuance of debt, and other like intangibles (except prepaid royalties),
which, in each case, under generally accepted accounting principles would be
included on a consolidated balance sheet of the Company and its Restricted
Subsidiaries, less (b) loans, advances, equity investments and contingent
liabilities of every nature (other than accounts receivable arising from the
sale of merchandise in the ordinary course of business) at the time
outstanding which were made or incurred by the Company and its Restricted
Subsidiaries to, in or for Unrestricted Subsidiaries or to, in or for
corporations while they were Unrestricted Subsidiaries and which at the time
of computation are not Subsidiaries.
Principal Facility. Any manufacturing plant, warehouse, office building or
parcel of real property (including fixtures but excluding leases and other
contract rights which might otherwise be deemed real property) owned by the
Company or any Restricted Subsidiary, provided each such plant, warehouse,
office building or parcel of real property has a gross book value (without
deduction for any depreciation reserves) of in excess of two percent of the
Consolidated Net Tangible Assets of the Company and the Restricted
Subsidiaries, other than any such plant, warehouse, office building or parcel
of real property or portion thereof which, in the opinion of the Board of
Directors of the Company, is not of material importance to the business
conducted by the Company and its Subsidiaries taken as a whole.
Restricted Subsidiary. Any corporation in which the Company directly or
indirectly owns voting securities entitling it to elect a majority of the
directors and (a) which (i) existed as such on the date of the Indenture or is
the successor, directly or indirectly, to, or owns, directly or indirectly,
any equity interest in, a corporation which so existed, (ii) has its principal
place of business and the principal location of its assets in the United
States (including its territories and possessions) or Canada or both, (iii)
has as its principal business a business other than the financing of the
acquisition or disposition of machinery, equipment, inventory, accounts
receivable and other real, personal and intangible property or the owning,
leasing, dealing in or developing of real property for residential or office
building purposes and (iv) substantially all of the assets of which do not
consist of the securities of a Subsidiary which is an Unrestricted Subsidiary
(as defined in the Indenture), or (b) which, pursuant to the terms of the
Indenture, is designated a Restricted Subsidiary by the Company after the date
of the Indenture; provided, however, the Company may not designate a
Subsidiary to be a Restricted Subsidiary if the Company would thereby breach
any covenant or agreement contained in the Indenture (on the assumption that
any transaction to which such Subsidiary was a party at the time of such
designation and which would have given rise to Secured Debt or constituted a
Sale and Leaseback Transaction at the time it was entered into had such
Subsidiary then been a Restricted Subsidiary was entered into at the time of
such designation). None of the existing principal operating subsidiaries of
the Company are Restricted Subsidiaries under the Indenture.
Sale and Leaseback Transaction. Any sale or transfer made by the Company or
one or more Restricted Subsidiaries (except a sale or transfer made to the
Company or one or more Restricted Subsidiaries) of any Principal Facility
which (in the case of a Principal Facility which is a manufacturing plant,
warehouse, office building or developed mining property) has been in
operation, use or commercial production (exclusive of test and start-up
periods) by the Company or any Restricted
7
<PAGE>
Subsidiary for more than 120 days prior to such sale or transfer, or which (in
the case of a Principal Facility which is a parcel of real property other than
a manufacturing plant, warehouse, office building or developed mining
property) has been owned by the Company or any Restricted Subsidiary for more
than 120 days prior to such sale or transfer, if such sale or transfer is made
with the intention of leasing, or as part of an arrangement involving the
lease, of such Principal Facility to the Company or a Restricted Subsidiary
(except a lease for a period not exceeding 36 months, made with the intention
that the use of the leased Principal Facility by the Company or such
Restricted Subsidiary will be discontinued on or before the expiration of such
period). The following shall not be deemed to create or be defined to be a
Sale and Leaseback Transaction: (a) (i) the sale or other transfer of minerals
in place for a period of time until, or in an amount such that, the purchaser
will realize therefrom a specified amount of money (however determined) or a
specified amount of such minerals, or (ii) any nonrecourse royalty or lease
arrangement or any interest in property of the character commonly referred to
as a "production payment" or (b) Secured Debt otherwise permitted pursuant to
the Indenture.
Secured Debt. Any indebtedness for money borrowed by, or evidenced by a note
or other similar instrument of, the Company or a Restricted Subsidiary, and
any other indebtedness of the Company or a Restricted Subsidiary on which by
the terms of such indebtedness interest is paid or payable, including
obligations evidenced or secured by leases, installment sales agreements or
other instruments in connection with industrial development bonds as defined
in Section 103(c)(2) of the Internal Revenue Code of 1954 (other than
indebtedness owed by a Restricted Subsidiary to the Company, by a Restricted
Subsidiary to another Restricted Subsidiary or by the Company to a Restricted
Subsidiary), which in any such case is secured by (a) a Security Interest in
any Principal Facility, or (b) a Security Interest in any shares of stock
owned directly or indirectly by the Company in a Restricted Subsidiary or in
indebtedness for money borrowed by a Restricted Subsidiary from the Company or
another Restricted Subsidiary. The securing in the foregoing manner of any
previously unsecured debt shall be deemed to be the creation of Secured Debt
at the time such security is given. The amount of Secured Debt at any time
outstanding shall be the maximum aggregate amount then owing thereon by the
Company and its Restricted Subsidiaries.
Security Interest. Any mortgage, pledge, lien, encumbrance or other security
interest which secures payment or performance of an obligation.
Senior Funded Debt. Any obligation of the Company or any Restricted
Subsidiary which, as of the date of its creation, was payable by its terms
more than one year from the date of incurrence thereof (or renewable or
extendible at the option of the obligor for a period ending more than one year
after such date of incurrence), which under generally accepted accounting
principles should be shown as a liability on a consolidated balance sheet of
the Company and its Restricted Subsidiaries, and which, in the case of such an
obligation of the Company, is not subordinate and junior in right of payment
to the prior payment of the Debt Securities.
CERTAIN COVENANTS OF THE COMPANY
Restriction on Creation of Secured Debt. The Indenture provides that so long
as the Securities of any series remain outstanding, the Company will not, and
will not cause or permit a Restricted Subsidiary to, create, incur, assume or
guarantee any Secured Debt or create any Security Interest securing any
indebtedness existing on the date of the Indenture which would constitute
Secured Debt if it were secured by a Security Interest in a Principal Facility
unless such Securities and any other indebtedness of or guaranteed by the
Company or a Restricted Subsidiary which is so entitled will be secured
equally and ratably (subject to applicable priorities of payment) by the
Security Interest securing such Secured Debt or indebtedness, except that the
Company and its Restricted Subsidiaries may incur certain Secured Debt without
so securing the Securities. Among such permitted Secured
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Debt is indebtedness secured by (i) certain Security Interests to secure
payment of the cost of acquisition, construction, development or improvement
of certain types of property, (ii) Security Interests on property at the time
of acquisition assumed by the Company or a Restricted Subsidiary, or on the
property or on the outstanding shares or indebtedness of a corporation or firm
at the time it becomes a Restricted Subsidiary or is merged into or
consolidated with the Company or a Restricted Subsidiary or the Company or a
Restricted Subsidiary acquires the properties of such corporation or firm as
an entirety or substantially as an entirety, (iii) Security Interests arising
from conditional sales agreements or title retention agreements with respect
to property acquired by the Company or any Restricted Subsidiary, (iv)
Security Interests securing indebtedness of a Restricted Subsidiary owing to
the Company or to another Restricted Subsidiary, (v) mechanics' and other
statutory liens arising in the ordinary course of business (including
construction of facilities) in respect of obligations which are not due or
which are being contested in good faith, (vi) liens for taxes, assessments or
governmental charges not yet due or for taxes, assessments or governmental
charges which are being contested in good faith, (vii) Security Interests
(including judgment liens) arising in connection with legal proceedings so
long as such proceedings are being contested in good faith and, in case of
judgment liens, execution thereon is stayed, (viii) certain landlords' liens
on fixtures, (ix) Security Interests to secure partial, progress, advance or
other payments or indebtedness incurred for the purpose of financing
construction on or improvement of property subject to such Security Interests
and (x) certain Security Interests in favor, or made at the request, of
governmental bodies. Additionally, such permitted Secured Debt includes (with
certain limitations) any extension, renewal or refunding, in whole or in part,
of any Secured Debt permitted at the time of the original incurrence thereof.
In addition to the foregoing, the Company and its Restricted Subsidiaries may
have Secured Debt, without equally and ratably securing the Securities, if the
sum of (a) the amount of Secured Debt entered into after the date of the
Indenture and otherwise prohibited by the Indenture plus (b) the aggregate
value of Sale and Leaseback Transactions entered into after the date of the
Indenture and otherwise prohibited by the Indenture does not exceed ten
percent of Consolidated Net Tangible Assets. (Section 5.05)
Restriction on Sale and Leaseback Transactions. The Indenture provides that
so long as the Securities of any series remain outstanding, the Company will
not, and will not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transaction unless (a) the Company or such Restricted Subsidiary
would be entitled to incur Secured Debt permitted by the Indenture only by
reason of the provision described in the last sentence of the preceding
paragraph equal in amount to the net proceeds of the property sold or
transferred or to be sold or transferred pursuant to such Sale and Leaseback
Transaction and secured by a Security Interest on the property to be leased
without equally and ratably securing the Securities, or (b) the Company or a
Restricted Subsidiary shall apply within one year after the effective date of
such Sale and Leaseback Transaction, or shall have committed within one year
after the effective date of such Sale and Leaseback Transaction to apply, an
amount equal to such net proceeds (x) to the acquisition, construction,
development or improvement of properties, facilities, or equipment used for
operating purposes which are, or upon such acquisition, construction,
development, or improvement will be, a Principal Facility or Facilities or a
part thereof or (y) to the redemption of Securities or (z) to the repayment of
Senior Funded Debt of the Company or of any Restricted Subsidiary (other than
Senior Funded Debt owed to any Restricted Subsidiary), or in part to such
acquisition, construction, development or improvement and in part to such
redemption and/or repayment; provided that, in lieu of applying an amount
equal to such net proceeds to such redemption the Company may, within one year
after such sale or transfer, deliver to the Trustee Securities (other than
Securities made the basis of a reduction in a mandatory sinking fund payment)
for cancellation and thereby reduce the amount to be applied to the redemption
of Securities by an amount equivalent to the aggregate principal amount of the
Securities so delivered. (Section 5.06)
Restrictions on Transfer of Principal Facility to Certain Subsidiaries. The
Indenture provides that, so long as the Securities of any series are
outstanding, the Company will not, and will not cause or
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permit any Restricted Subsidiary to, transfer any Principal Facility to any
Subsidiary which was not a Restricted Subsidiary at the time of such transfer
unless it shall apply within one year of the effective date of such
transaction, or shall have committed within one year of such effective date to
apply, an amount equal to the fair value of such Principal Facility at the
time of such transfer (i) to the acquisition, construction, development or
improvement of properties, facilities or equipment which are, or upon such
acquisition, construction, development or improvement will be, a Principal
Facility or Facilities or a part thereof or (ii) to the redemption of
Securities or (iii) to the repayment of Senior Funded Debt of the Company or
any Restricted Subsidiary (other than Senior Funded Debt owed to any
Restricted Subsidiary), or in part to such acquisition, construction,
development or improvement and in part to such redemption and/or repayment. In
lieu of applying all or any part of such amount to such redemption the Company
may, within one year of such transfer, deliver to the Trustee Securities of
any series (other than Securities made the basis of a reduction in a mandatory
sinking fund payment) for cancellation and thereby reduce the amount to be
applied to the redemption of Securities by an amount equivalent to the
aggregate principal amount of the Securities so delivered. (Section 5.07)
MERGER
The Indenture provides that the Company may consolidate with, or sell or
convey all or substantially all of its assets to, or merge into any other
corporation, provided that in any such case, (i) the successor corporation
shall be a corporation organized and existing under the laws of the United
States of America or a State thereof and such corporation shall expressly
assume the due and punctual payment of the principal of (and premium, if any)
and interest on all the Securities, according to their tenor, and the due and
punctual performance and observance of all the covenants and conditions of the
Indenture to be performed by the Company by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation; and (ii) immediately after giving effect to such transaction, no
default shall have occurred and be continuing. Notwithstanding the foregoing,
if, upon any such consolidation or merger of the Company with or into any
other corporation, or upon any sale or conveyance of the property of the
Company as an entirety or substantially as an entirety to any other
corporation, or upon any acquisition by the Company by purchase or otherwise
of all or any part of the properties of another corporation, any Principal
Facility would thereupon become subject to any Security Interest securing
indebtedness not permitted by the Indenture to be Secured Debt, the Company,
prior to such consolidation, merger, sale conveyance or acquisition, will
secure the Securities outstanding, equally and ratably (subject to applicable
priorities of payment) with the debt secured by such Security Interest.
(Article Twelve)
MODIFICATION OF THE INDENTURE
With the consent of the Holders of more than 50% in aggregate principal
amount of any series of Securities then outstanding, waivers, modifications
and alterations of the terms of the Indenture may be made which affect the
rights of the Holders of such series of Securities, except that no such
modification or alteration may be made which will (a) extend the time of
payment of the principal at maturity of, or the interest on, any such series
of Securities, or reduce principal or premium or the rate of interest, without
the consent of the Holder thereof, or (b) without the consent of all of the
Holders of any series of Securities then outstanding, reduce the percentage of
Securities of any such series, the Holders of which are required to consent
(i) to any such supplemental Indenture, (ii) to rescind and annul a
declaration that the Securities of any series are due and payable as a result
of the occurrence of an Event of Default, (iii) to waive any past default
under the Indenture and its consequences and (iv) to waive compliance with
certain other provisions contained in the Indenture. (Sections 5.09 and 11.02)
In addition, as indicated under "Events of Default" below, Holders of a
majority in aggregate principal amount of the Securities of any series then
outstanding may waive past defaults in certain circumstances and may direct
the Trustee in enforcement of remedies. The Company and the Trustee may,
without the consent of any Holders, modify and supplement the Indenture (i) to
evidence the
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succession of another corporation to the Company under the Indenture, (ii) to
evidence and provide for the replacement of the Trustee, (iii) with the
Company's concurrence, to add to the covenants of the Company for the benefit
of the Holders, (iv) to modify the Indenture to permit the qualification of
any supplemental indenture under the Trust Indenture Act of 1939 (the "Trust
Indenture Act"), and for certain other purposes. (Section 11.01)
DEFEASANCE, SATISFACTION AND DISCHARGE PRIOR TO MATURITY OR REDEMPTION
Defeasance of any Series. If the Company shall deposit with the Trustee, in
trust, at or before maturity or redemption, lawful money or direct obligations
of the United States of America or obligations the principal of and interest
on which are guaranteed by the United States of America in such amounts and
maturing at such times that the proceeds of such obligations to be received
upon the respective maturities and interest payment dates of such obligations
will provide funds sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay when due the principal (and premium,
if any) and interest to maturity or to the redemption date, as the case may
be, with respect to any series of Outstanding Securities, then the Company may
cease to comply with the terms of the Indenture, including the restrictive
covenants described above and the Events of Default described in clauses (d)
and (e) under "Events of Default" below, except for (1) the Company's
obligation to duly and punctually pay the principal of (and premium, if any)
and interest on such series of Securities if the Securities are not paid from
the money or securities held by the Trustee, (2) the Events of Default
described in clauses (a), (b), (c), (f) and (g) under "Events of Default"
below, and (3) certain other provisions of the Indenture including, among
others, those relating to registration, transfer and exchange, lost or stolen
securities, maintenance of place of payment and, to the extent applicable to
such series, the redemption and sinking fund provisions of the Indenture.
Defeasance of Securities of any series is subject to the satisfaction of
certain specified conditions, including, among others, (i) the absence of an
Event of Default at the date of the deposit, (ii) the perfection of the
Holders' security interest in such deposit, and (iii) the absence of any
conflicting interest of the Trustee under the Trust Indenture Act. (Section
13.02)
Satisfaction and Discharge of any Series. Upon the deposit of money or
securities contemplated above and the satisfaction of certain conditions, the
Company may also cease to comply with its obligation duly and punctually to
pay the principal of (and premium, if any) and interest on a particular series
of Securities, or with any Events of Default with respect thereto, and
thereafter the Holders of such series of Securities shall be entitled only to
payment out of the money or securities deposited with the Trustee. Such
conditions include, among others, except in certain limited circumstances
involving a deposit made within one year of maturity or redemption, (i) the
absence of an Event of Default at the date of deposit or on the 91st day
thereafter, (ii) the delivery to the Trustee by the Company of an opinion of
nationally recognized tax counsel, or receipt by the Company from, or
publication of a ruling by, the United States Internal Revenue Service, to the
effect that Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit and discharge and will be subject to Federal income tax on the same
amounts and in the same manner and at the same times as would have been the
case if such deposit and discharge had not occurred, and (iii) that such
satisfaction and discharge will not result in the delisting of the Securities
of that series from any nationally recognized exchange on which they are
listed. (Section 13.01)
Federal Income Tax Consequences. Under current Federal income tax law, the
deposit and defeasance described above under "Defeasance of any Series" will
not result in a taxable event to any Holder of Securities or otherwise affect
the Federal income tax consequences of an investment in the Securities of any
series.
A deposit and discharge described above under "Satisfaction and Discharge of
any Series" may be treated as a taxable exchange of such Securities for
beneficial interests in the trust consisting of the deposited money or
securities. In that event, a Holder of Securities may be required to recognize
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gain or loss equal to the difference between the Holder's adjusted basis for
the Securities and the amount realized by such Holder with respect to such
exchange (which generally will be the fair market value of the beneficial
interest in such trust). Thereafter, such Holder may be required to include in
income a share of the income, gain and loss of the trust. As described above,
it is generally a condition to such a deposit and discharge to obtain an
opinion of tax counsel, or receipt by the Company from, or publication of a
ruling by the United States Internal Revenue Service, to the effect that such
deposit and discharge will not alter the Holders' tax consequences that would
have been applicable in the absence of the deposit and discharge. Purchasers
of the Securities should consult their own advisors with respect to the tax
consequences to them of such deposit and discharge, including the
applicability and effect of tax laws other than Federal income tax law.
EVENTS OF DEFAULT
As to any series of Securities, an Event of Default is defined in the
Indenture as being: (a) default for 30 days in payment of any interest on the
Securities of such series; (b) failure to pay principal or premium with
respect to the Securities of such series, if any, when due; (c) failure in the
deposit of any sinking fund installment with respect to any series of
Securities when due; (d) failure to observe or perform any other covenant in
the Indenture or Securities of any series (other than a covenant or warranty,
a default in whose performance or whose breach is specifically dealt with in
the section of the Indenture governing Events of Default), if such failure
continues for 60 days after written notice by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities of such
series; (e) uncured or unwaived failure to pay principal of or interest on any
other obligation for borrowed money of the Company (including default under
any other series of Securities and including default by the Company on any
guaranty of an obligation for borrowed money of a Restricted Subsidiary)
beyond any period of grace with respect thereto if (i) the aggregate principal
amount of any such obligation is in excess of $10,000,000 and (ii) the default
in such payment is not being contested by the Company in good faith and by
appropriate proceedings; (f) certain events of bankruptcy, insolvency,
receivership or reorganization; or (g) any other Event of Default provided
with respect to Securities of that series. (Section 7.01) The Trustee or the
Holders of 25% in aggregate principal amount of the outstanding Securities of
any series may declare the Securities of such series immediately due and
payable upon the occurrence of any Event of Default (after expiration of any
applicable grace period); in certain cases, the Holders of a majority in
principal amount of the Outstanding Securities of any series may waive any
past default and its consequences, except a default in the payment of
principal, premium, if any, or interest (including sinking fund payments).
(Sections 7.01 and 7.07)
The Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default with respect to any such series for which there are
Securities outstanding which is continuing, give to the Holders of such
Securities notice of all uncured defaults known to it (the term default to
include the events specified above without grace periods); provided that,
except in the case of default in the payment of principal (or premium, if any)
or interest on any of the Securities of any series or the payment of any
sinking fund installment on the Securities of any series, the Trustee shall be
protected in withholding such notice if it in good faith determines that the
withholding of notice is in the interest of the Securityholders. (Section
7.08)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default with respect to any series of such
Securities shall occur and be continuing, the Indenture provides that the
Trustee shall be under no obligation to exercise any of its rights or powers
under the Indenture at the request, order or direction of any of the Holders
of Securities outstanding of any series unless such Holders shall have offered
to the Trustee reasonable indemnity. (Sections 8.01 and 8.02) The right of a
Holder to institute a proceeding with respect to the Indenture is subject to
certain conditions precedent including notice and indemnity to the Trustee,
but the Holder has a right to receipt of principal, premium, if any, and
interest (subject to certain limitations with respect to defaulted interest)
on their due dates or to institute suit for the enforcement thereof. (Section
7.04)
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So long as the Securities of any series remain outstanding the Company will
be required to furnish annually to the Trustee an Officers' Certificate
stating whether, to the best of the knowledge of the signers, the Company is
in default under any of the provisions of the Indenture, and specifying all
such defaults, and the nature thereof, of which they have knowledge. (Section
5.08) The Company will also be required to furnish to the Trustee copies of
certain reports filed by the Company with the Commission. (Section 6.03)
The Holders of a majority in principal amount of the Securities outstanding
of such series will have the right to direct the time, method and place for
conducting any proceeding for any remedy available to the Trustee, or
exercising any power or trust conferred on the Trustee, provided that such
direction shall be in accordance with law and the provisions of the Indenture.
(Section 7.07) The Trustee will be under no obligation to act in accordance
with such direction unless such Holders shall have offered the Trustee
reasonable security or indemnity against costs, expenses and liabilities which
may be incurred thereby. (Section 8.02)
INFORMATION CONCERNING THE TRUSTEE
First Trust of New York, National Association, Trustee under the Indenture,
is also the trustee for the Company's 9.875% Sinking Fund Debentures due March
15, 2011, the Company's 6% Notes due October 15, 2003, the Company's 7%
Debentures due December 15, 2013, the Company's 6.75% Notes due September 15,
2005 and the Company's 6.5% Notes due November 15, 2007 all of which have been
issued under the Indenture and are unsecured obligations of the Company
ranking equally with the Debt Securities.
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PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters or dealers,
directly to one or more purchasers, through agents or through a combination of
the foregoing. Unless otherwise set forth in the Prospectus Supplement, such
underwriters will include Goldman, Sachs & Co. acting alone or as a
representative of a group of underwriters. Goldman, Sachs & Co. may also act
as agent.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. In connection with the sale
of Debt Securities, underwriters may receive compensation from the Company or
from purchasers of Debt Securities for whom they may act as agents in the form
of discounts, concessions or commissions. Underwriters may sell Debt
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents. Underwriters,
dealers and agents that participate in the distribution of Debt Securities may
be deemed to be underwriters, and any discounts or commissions received by
them from the Company and any profit on the resale of Debt Securities by them
may be deemed to be underwriting discounts and commissions, under the
Securities Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company will be described in the Prospectus
Supplement.
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of Debt Securities may be entitled
to indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must be
approved by the Company. The obligations of any purchaser under any such
contract will be subject to the condition that the purchase of the Debt
Securities shall not at the time of delivery be prohibited under the laws of
any jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
Unless otherwise indicated in the Prospectus Supplement, the Company does
not intend to list any of the Debt Securities on a national securities
exchange. In the event the Debt Securities are not listed on a national
securities exchange, certain broker-dealers may make a market in the Debt
Securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given that any broker-
dealer will make a market in the Debt Securities or as to the liquidity of the
trading market for the Debt Securities, whether or not the Debt Securities are
listed on a national securities exchange. The Prospectus Supplement with
respect to any Securities will state, if known, whether or not any broker-
dealer intends to make a market in such Securities. If no such determination
has been made, the Prospectus Supplement will so state.
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LEGAL MATTERS
The legality of the Debt Securities will be passed upon by White & Case,
1155 Avenue of the Americas, New York, New York 10036, as counsel for the
Company, and by Mayer, Brown & Platt, 190 South LaSalle Street, Chicago,
Illinois 60603, as counsel for any underwriters or agents.
EXPERTS
The consolidated financial statements of the Company appearing in its Annual
Report on Form 10-K for the year ended June 30, 1997 have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
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NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY AGENT, DEALER OR UNDERWRITER. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATES AS OF WHICH INFORMATION IS GIVEN IN
THIS PROSPECTUS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY, TO ANY PERSON IN ANY JURISDICTION WHERE SUCH
OFFER OR SOLICITATION WOULD BE UNLAWFUL OR IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO.
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TABLE OF CONTENTS
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PAGE
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Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
Forward Looking Statements................................................. 3
The Company................................................................ 4
Use of Proceeds............................................................ 5
Ratio of Earnings to Fixed Charges......................................... 5
Description of the Securities.............................................. 5
Plan of Distribution....................................................... 14
Legal Matters.............................................................. 15
Experts.................................................................... 15
</TABLE>
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DEBT SECURITIES
MALLINCKRODT INC.
GOLDMAN, SACHS & CO.
PROSPECTUS DATED DECEMBER , 1997
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following statement sets forth the estimated amounts of expenses, other
than underwriting discounts and commissions, to be borne by Registrant in
connection with the distribution of the Securities.
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Securities and Exchange Commission Registration Fee............. $114,634
Trustee's Fees.................................................. 16,000*
Printing Expenses............................................... 100,000*
Rating Agency Fees.............................................. 100,000*
Accounting Fees and Expenses.................................... 40,000*
Legal Fees and Expenses......................................... 75,000*
Blue Sky Fees and Expenses...................................... 5,000*
Miscellaneous................................................... 15,000*
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Total Expenses................................................ 340,634*
</TABLE>
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*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation's Bylaws provide for indemnification, to the fullest extent
permitted by applicable law, of any of its directors and officers who are, or
have been, or are threatened to be, made a party to an action or proceeding,
whether civil or criminal, by reason of the fact that such director or officer
is a director or officer of the Corporation, against any judgments, fines,
amounts paid in settlement and expenses, including attorneys' fees, or any
appeal therein. The Bylaws also provide that additional indemnification may be
provided by the Corporation to other persons to the extent permitted by
applicable law.
The Corporation's Certificate of Incorporation provides that a current or
former director shall not be liable to the Corporation or its shareholders for
damages for any breach of duty except where liability is imposed by New York
State law.
The Corporation has insurance to indemnify its directors and officers,
within the limits of the Corporation's insurance policies, for those
liabilities in respect of which such indemnification insurance is permitted
under the laws of the State of New York. In addition, indemnity agreements are
in effect with each officer of the Corporation who serves on its Employee
Benefits Committee.
Reference is made to Sections 721-726 of the New York Business Corporation
Law ("B.C.L."), which are summarized below.
Section 721 of the B.C.L. provides that indemnification pursuant to the
B.C.L. shall not be deemed exclusive, provided that no indemnification may be
made if a judgment or other final adjudication adverse to the director or
officer established that (i) his acts were committed in bad faith or were the
result of active and deliberate dishonesty, and, in either case, were material
to the cause of action so adjudicated, or (ii) he personally gained in fact a
financial profit or other advantage to which he was not legally entitled.
Section 722 of the B.C.L. provides that a corporation may indemnify a
director or officer made, or threatened to be made, a party to any action,
whether derivative or nonderivative, or whether civil or
criminal, against judgments, fines, amounts paid in settlement and reasonable
expenses actually and
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necessarily incurred as a result of such action, if such director or officer
acted in good faith, for a purpose which he reasonably believed to be in the
best interests of the corporation and, in criminal actions or proceedings, in
addition, had no reasonable cause to believe that his conduct was unlawful. In
derivative actions, the statute provides that no indemnification shall be made
in respect of (1) a threatened action, or a pending action which is settled or
otherwise disposed of, or (2) any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless and to
the extent an appropriate court determines that the person is fairly and
reasonably entitled to indemnification.
Section 723 of the B.C.L. specifies the manner in which payment of such
indemnification may be authorized by the corporation. It provides that
indemnification by a corporation is mandatory in any case in which the
director or officer has been successful, whether on the merits or otherwise,
in defending an action. In the event that the director or officer has not been
successful or the action is settled, indemnification may be made by the
corporation (unless ordered by a court under Section 724 of the B.C.L.) only
if authorized by the appropriate corporate action as set forth in such Section
723. Section 724 of the B.C.L. provides that upon proper application by a
director or officer, indemnification shall be awarded by a court to the extent
authorized under Sections 722 and 723 of the B.C.L. Section 725 of the B.C.L.
contains certain other miscellaneous provisions affecting the indemnification
of directors and officers, including provision for the return of amounts paid
as indemnification if any such person is ultimately found not to be entitled
thereto.
Section 726 of the B.C.L. authorizes the purchase and maintenance of
insurance to indemnify (1) a corporation for any obligations which it incurs
as a result of the indemnification of directors and officers under the above
sections, (2) directors and officers in instances in which they may be
indemnified by a corporation under such sections, and (3) directors and
officers in instances in which they may not otherwise be indemnified by a
corporation under such sections, provided the contract of insurance covering
such directors and officers provides, in a manner acceptable to the New York
State Superintendent of insurance, for a retention amount and for co-
insurance. Such insurance may not provide for the indemnification, other than
defense costs, of any director or officer whose deliberate and active
dishonesty is held to be material to an adjudicated cause of action in a
judgment adverse to the insured nor of any director or officer who personally
gained in fact a financial profit or other advantage to which he was not
legally entitled.
ITEM 16. EXHIBITS.
NO.
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<C> <S>
1.1 Form of Underwriting Agreement
1.2 Form of Distribution Agreement
4.1 Form of Indenture dated as of March 15, 1985, as amended and
restated as of February 15, 1995, between the Company and First
Trust Company of New York, National Association, as Trustee,
including Form of Securities (incorporated by reference to the
Company's Registration Statement on Form S-3 (No. 33-52821))
5.1 Opinion of White & Case
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of White & Case (included in Exhibit 5.1)
25.1 Form T-1, Statement of Eligibility under Trust Indenture Act of
1939
</TABLE>
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i)to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii)to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii)to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1) (i) and (1) (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial
bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for the liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in such Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN ST. LOUIS, MISSOURI, ON THE 16TH DAY OF DECEMBER, 1997.
Mallinckrodt Inc.
/s/ C. Ray Holman
By: _________________________________
C. Ray Holman
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following Persons, in the
capacities indicated, on December 16, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ C. Ray Holman Chairman of the Board, and
____________________________________ Chief Executive Officer
C. Ray Holman
/s/ Michael A. Rocca Senior Vice President and
____________________________________ Chief Financial Officer
Michael A. Rocca (Principal Financial
Officer)
/s/ Douglas A. McKinney Vice President and
____________________________________ Controller (Principal
Douglas A. McKinney Accounting Officer)
/s/ Raymond F. Bentele Director
____________________________________
Raymond F. Bentele
/s/ Gareth C.C. Chang Director
____________________________________
Gareth C.C. Chang
/s/ William L. Davis, III Director
____________________________________
William L. Davis, III
/s/ Ronald G. Evens Director
____________________________________
Ronald G. Evens
/s/ Roberta S. Karmel Director
____________________________________
Roberta S. Karmel
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Claudine B. Malone Director
____________________________________
Claudine B. Malone
/s/ Anthony Viscusi Director
____________________________________
Anthony Viscusi
/s/ Mack G. Nichols Director, President and
____________________________________ Chief Operating Officer
Mack G. Nichols
/s/ Brian M. Rushton Director
____________________________________
Brian M. Rushton
/s/ Daniel R. Toll Director
____________________________________
Daniel R. Toll
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
EXHIBIT SEQUENTIAL PAGE NO.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement
1.2 Form of Distribution Agreement
4.1 Form of Indenture dated as of March 15, 1985, as amended and
restated as of February 15, 1995, between the Company and First
Trust Company of New York, National Association, as Trustee,
including Form of Securities (incorporated by reference to the
Company's Registration Statement on Form S-3 (No. 33-52821))
5.1 Opinion of White & Case
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of White & Case (included in Exhibit 5.1)
25.1 Form T-1, Statement of Eligibility under Trust Indenture Act of 1939
</TABLE>
<PAGE>
EXHIBIT 1.1
Mallinckrodt Inc.
Debt Securities
UNDERWRITING AGREEMENT
----------------------
[_______________, 199_]
Goldman, Sachs & Co.
As Representatives of the
several Underwriter's named in
the respective Pricing Agreements
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
From time to time Mallinckrodt Inc., a New York corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased
<PAGE>
by each Underwriter and shall set forth the date, time and manner of delivery of
such Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-_________) in
respect of the Securities has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement as it may have been
amended prior to its effectiveness and any post-effective amendment thereto
filed on or prior to the date of this Agreement or the applicable Time of
Delivery, each in the form heretofore delivered or to be delivered to the
Representatives (for themselves and for each of the other underwriters), has
been declared effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the Commission
(other than the prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended (the
"Act"), and such other documents listed in Annex III hereto, each in the form
heretofore delivered to the Representatives); and no stop order suspending the
effectiveness of the registration statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus (including, if applicable, any preliminary prospectus
supplement) included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the Act, being hereinafter called a "Preliminary
Prospectus". The various parts of such registration statement, including all
exhibits thereto and the documents incorporated by reference in the prospectus
contained in such registration statement at the time such part of such
registration statement became effective but excluding Form T-1, each as amended
at the time such part of such registration statement became effective, being
hereinafter collectively called the "Registration Statement"; the prospectus
(including, if applicable, any prospectus supplement) relating to the
Securities, in the form in which it has most recently been filed, or transmitted
for filing, with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the form in
which it is filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
2
<PAGE>
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents, at such time of effectiveness or filing,
as the case may be, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will comply as to form in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and, at such time of
effectiveness or filing, as the case may be, will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(c) The Registration Statement and the Prospectus comply as to form, and
any further amendments or supplements to the Registration Statement or the
Prospectus will comply as to form, in all material respects with the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Designated Securities;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital stock
(except for subsequent issuances, if any, pursuant to reservations or agreements
referred to in the Prospectus and except for subsequent repurchases by the
Company not in excess of those disclosed in the Registration Statement as
authorized as of the date the Registration Statement becomes effective) or any
material change in long-term debt of the Company or any of its subsidiaries or
any material adverse change in or affecting the general affairs, business
prospects, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
3
<PAGE>
(f) The Company has an authorized capitalization as set forth in the
Prospectus (except for subsequent issuances, if any, pursuant to reservations or
agreements referred to in the Prospectus and except for subsequent repurchases
by the Company not in excess of those disclosed in the Registration Statement as
authorized as of the date the Registration Statement becomes effective), and all
of the issued shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and, except as may be otherwise
provided by Section 630 of the New York Business Corporation Law,
non-assessable;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued, authenticated, delivered and paid for in accordance with
the Indenture, this Agreement and the Pricing Agreement with respect to such
Designated Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company (subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles) entitled to the
benefits provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, at the Time of
Delivery of such Designated Securities (as defined in Section 4 hereof), the
Indenture will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and the
Indenture conforms in all material respects and the Designated Securities will
conform in all material respects, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
(h) The issue and sale of the Securities and the compliance by the Company
with all of the provisions of the Securities, the Indenture, this Agreement and
any Pricing Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company is a party or by which the Company is bound
or to which any of the property or assets of the Company is subject, nor will
such action result in any violation of the provisions of the Certificate of
Incorporation, as amended, or By-laws, as amended, of the Company or, to the
best of the Company's knowledge, any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or
any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Securities or the consummation
by the Company of the other transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture except such as have been, or will have been
prior to the Time of Delivery, obtained under the Act and the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters;
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries; and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
4
<PAGE>
(j) The Company is not, and after giving effect to each offering and sale
of the Securities will not be, an "investment company" or an entity controlled
by an "investment company", as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act");
(k) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida statutes;
(l) Neither the Company nor any of its significant subsidiaries, as such
term is defined in Rule 1-02 of Regulation S-X ("Significant Subsidiaries") is
in violation of its Certificate of Incorporation, as amended, or By-laws, as
amended. Neither the Company nor any of its subsidiaries is in default in the
performance or observance of any obligation, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound; and
(m) Ernst & Young LLP, who have certified certain financial statements of
the Company and its subsidiaries, are independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth herein
and in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer in
same day funds or certified or official bank check or checks, payable to the
order of the Company in the funds specified in such Pricing Agreement, all at
the place and time and date specified in such Pricing Agreement or at such other
place and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation to
the applicable Designated Securities in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery of such
Securities which shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives promptly
of any such amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus
5
<PAGE>
is required in connection with the offering or sale of such Securities, and
during such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information
relating thereto or relating to matters discussed therein; and, in the event of
the issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities for offering and sale under
the securities laws of such jurisdictions as the Representatives may request and
to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) Prior to 1:00 p.m., New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus as amended or supplemented in New
York City in such quantities as the Representatives may reasonably request, and,
if the delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c)), an earning
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement for
such Designated Securities and continuing to the Time of Delivery for such
Designated Securities not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year after such
Time of Delivery and which are substantially similar to such Designated
Securities, without the prior written consent of the Representatives.
6
<PAGE>
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Mayer, Brown & Platt, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions (a draft of each such
opinion is attached as Annex II(a) hereto), dated the Time of Delivery for such
Designated Securities, with respect to the valid existence and good standing of
the Company, the authorized capitalization of the Company, this Agreement and
the Pricing Agreement, the validity of the Indenture, the Designated Securities,
the Registration Statement, the Prospectus as amended or supplemented, the
documents incorporated by reference into such Prospectus, the Investment Company
Act and other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
7
<PAGE>
(c) White & Case, counsel for the Company, shall have furnished to the
Representatives their written opinion (a draft of such opinion is attached as
Annex II(b) hereto) (except as to subparagraphs (iii), (vii), (viii) (insofar as
subparagraph (viii) relates to consents, approvals, authorizations, orders,
registrations or qualifications of or with any court or any governmental agency
or body other than a Federal or New York or Delaware state governmental agency
or body), (xi), and (xiii) as to which the opinion (a draft of such opinion is
attached as Annex II(c) hereto) will be given by the general counsel to the
Company), dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented (except for subsequent issuances, if any,
pursuant to reservations or agreements referred to in the Prospectus and except
for subsequent repurchases by the Company not in excess of those disclosed in
the Registration Statement as authorized as of the date the Registration
Statement became effective) and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and,
except as may be otherwise provided by Section 630 of the New York Business
Corporation Law, non-assessable;
(iii) To the best of such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by the
Company;
(v) The Designated Securities have been duly authorized, executed,
authenticated, issued and delivered and, when paid for by the Underwriters, will
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture (subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles); and the
Designated Securities and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and delivered by the
parties thereto and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the compliance
by the Company with all of the provisions of the Designated Securities, the
Indenture, this Agreement and the Pricing Agreement
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with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the property or assets
of the Company is subject, nor will such actions result in any violation of the
provisions of the Certificate of Incorporation, as amended, or By-laws, as
amended, of the Company or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its properties;
(viii)No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issue and sale of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement or such Pricing
Agreement or the Indenture, except such as have been obtained under the Act and
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(ix) The documents incorporated by reference in the Prospectus as amended
or supplemented (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder;
and nothing has come to such counsel's attention that has caused them to believe
that any of such documents (other than the financial statements and related
schedules therein, as to which such counsel need express no belief), when they
became effective or were so filed, as the case may be, contained, in the case of
a registration statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or in
the case of other documents which were filed under the Act or the Exchange Act
with the Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such documents were so
filed, not misleading;
(x) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery for the Designated Securities (other than
the financial statements and related schedules therein, as to which such counsel
need express no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; nothing has come to such counsel's attention that has
caused them to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to the Time
of Delivery (other than
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<PAGE>
the financial statements and related schedules therein, as to which such counsel
need express no belief) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which such counsel
need express no belief) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading or that, as
of the Time of Delivery, either the Registration Statement or the Prospectus as
amended or supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express no belief)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading;
(xi) Such counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or incorporated by
reference or described as required;
(xii) The Company is not and, after giving effect to the offering and sale
of the Securities, will not be an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the Investment Company
Act; and
(xiii)Neither the Company nor any of its Significant Subsidiaries is in
violation of its Certificate of Incorporation, as amended, or By-laws, as
amended. To the best of such counsel's knowledge, neither the Company nor any of
its subsidiaries is in default in the performance or observance of any
obligation, covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound.
(d) Prior to the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities, the
independent auditors of the Company who have certified the financial statements
of the Company and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a letter,
dated the effective date of the Registration Statement or the date of the most
recent report filed with the Commission containing financial statements and
incorporated by reference in the Registration Statement, if the date of such
report is later than such effective date, and a letter dated such Time of
Delivery, respectively, to the effect set forth in Annex II hereto, and with
respect to such letter dated such Time of Delivery, as to such other matters as
the Representatives may reasonably request and in form and substance
satisfactory to the Representatives (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as of each Time of
Delivery is attached as Annex I(b) hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus as amended or supplemented any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus as amended
or supplemented there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change in or
affecting the general affairs, business prospects, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented;
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(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities in New York or Illinois (in the case of
Illinois, only to the extent that a general moratorium on commercial banking
activities in Illinois affects the Underwriters' ability to fulfill their
obligations hereunder at the Time of Delivery) declared by either Federal or New
York State or Illinois authorities; or (iv) an outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war, if the effect of any such event specified in
this clause (iv) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(h) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of Prospectuses on the New York Business
Day next succeeding the date of this Agreement; and
(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of the Chairman or a Vice President and the
Controller or Treasurer of the Company as to the accuracy of the representations
and warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (e) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written
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<PAGE>
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in
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<PAGE>
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters of the
Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by per
capita allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein and in the
applicable Pricing Agreement. If within thirty-six hours after such default by
any Underwriter the Representatives do not arrange for the purchase of such
Designated
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Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Designated Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the
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Underwriters in making preparations for the purchase, sale and delivery of such
Designated Securities, but the Company shall then be under no further liability
to any Underwriter with respect to such Designated Securities except as provided
in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us 10 counterparts hereof.
Very truly yours,
Mallinckrodt Inc.
By:_________________________
Name:_______________________
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Title:_______________________
Accepted as of the date hereof:
Goldman, Sachs & Co.
By:_________________________
Name:_______________________
Title:______________________
On behalf of each of the Underwriters
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ANNEX I
PRICING AGREEMENT
-----------------
Goldman, Sachs & Co.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co
85 Broad Street
New York, New York 10004
___________ , 199
Dear Sirs:
Mallinckrodt Inc., a New York corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated , 199 (the "Underwriting Agreement"), between the Company on
the one hand and Goldman, Sachs & Co. on the other hand, to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us 10 counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
Mallinckrodt Inc.
By:__________________________
Name:________________________
Title:_______________________
Accepted as of the date hereof:
Goldman, Sachs & Co.
By:___________________________________
Name:_________________________________
Title:________________________________
On behalf of each of the Underwriters
2
<PAGE>
SCHEDULE I
Underwriter Principal Amount of
- ----------- -------------------
Designated Securities to be
---------------------------
Purchased
---------
Goldman, Sachs & Co. $
--------
Total $
========
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT:
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus
accrued interest from to .
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus
accrued interest from to .
FORM OF DESIGNATED SECURITIES:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
INDENTURE:
Indenture, dated March 15, 1985, as amended and restated as of February
15, 1995, and as may be further amended and supplemented, between the Company
and First Trust of New York, National Association, as trustee.
MATURITY:
INTEREST RATE:
%
INTEREST PAYMENT DATES:
<PAGE>
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co.
Address for Notices, etc.: 85 Broad Street
New York, New York 10004
<PAGE>
ANNEX I(a)
EXECUTED COMFORT LETTER
<PAGE>
ANNEX I(b)
FORM OF CLOSING COMFORT LETTER
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the Company's
independent certified public accountants shall furnish letters to the
Underwriters to the effect that:
(i) They are independent auditors with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published rules
and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and any
supplementary financial information and schedules (and, if applicable,
prospective financial statements and/or pro forma financial information)
examined by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, prospective financial statements and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon, copies
of which have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or included
in the Company's quarterly report on Form 10-Q incorporated by reference into
the Prospectus as indicated in their reports thereon copies of which have been
furnished to the Representatives; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A) below comply
as to form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and regulations
thereunder, nothing came to their attention that caused them to believe that the
unaudited condensed consolidated financial statements do not comply as to form
in all material respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with or is derived from (specifying in
each case which) the corresponding amounts (after restatement where applicable)
in the audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Company's Annual Reports
on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
<PAGE>
(vi) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company responsible for financial and
accounting matters and such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that caused them to believe
that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included
in the Prospectus and/or included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus (i)
do not comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and regulations
thereunder, or (ii) are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with the basis for the
audited consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by reference in
the more recent of the Company's Annual Report on Form 10-K for the most recent
fiscal year or the Prospectus;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items were
derived, and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements included or incorporated by reference
in the more recent of the Company's Annual Report on Form 10-K for the most
recent fiscal year or the Prospectus;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the more
recent of the Company's Annual Report on Form 10-K for the most recent fiscal
year or the Prospectus;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder and, if applicable, the pro
forma adjustments have not been properly applied to the historical amounts in
the compilation of those statements;
(E) as of a specified date not more than five days prior to the date of
such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives, as agreed
to by the auditors, or any increases in any items specified by the
Representatives, as agreed to by the auditors, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by reference
in the Prospectus, except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which are described in
such letter; and
2
<PAGE>
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of consolidated net income
or other items specified by the Representatives, as agreed to by the auditors,
or any increases in any items specified by the Representatives, as agreed to by
the auditors, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length specified by
the Representatives, as agreed to by the auditors, except in each case for
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, as agreed to by the auditors,
which are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents incorporated
by reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, as agreed to by the
auditors, or in documents incorporated by reference in the Prospectus specified
by the Representatives, as agreed to by the auditors, and have compared certain
of such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
3
<PAGE>
ANNEX II(a)
FORM OF MAYER, BROWN & PLATT'S OPINION
<PAGE>
ANNEX II(b)
FORM OF WHITE & CASE'S OPINION
<PAGE>
ANNEX II(c)
FORM OF GENERAL COUNSEL'S OPINION
<PAGE>
ANNEX III
LIST OF DOCUMENTS
-----------------
<PAGE>
EXHIBIT 1.2
Mallinckrodt Inc.
$[ ]
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
.................., 19..
Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
Mallinckrodt Inc., a New York corporation (the "Company"), proposes to
issue and sell from time to time its Medium-Term Notes (the "Securities") in an
aggregate amount up to $[ ], which are among the debt securities registered
under the Registration Statement (as defined in Section 1(a) hereof), together
with such amount of the Company's debt securities subsequently registered under
the Securities Act of 1933, as amended (the "Act"), as the Company shall, by
notice to the Agent, make subject to this Agreement, but reduced by the
aggregate amount of debt securities so registered to be or that have been sold
otherwise than pursuant to this Agreement or any Terms Agreement (as defined
below) and agrees with Goldman, Sachs & Co. (the "Agent") as set forth in this
Agreement.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints the Agent as an agent of the Company for the purpose
of soliciting and receiving offers to purchase Securities from the Company
pursuant to Section 2(a) hereof and (ii) agrees that, except as otherwise
contemplated herein, whenever it determines to sell Securities directly to the
Agent as principal, it will enter into a separate agreement (each, a "Terms
Agreement"), substantially in the form of Annex I hereto, relating to such sale
in accordance with Section 2(b) hereof. This Distribution Agreement shall not be
construed to create either an obligation on the part of the Company to sell any
Securities or an obligation of the Agent to purchase Securities as principal.
The Securities will be issued under an indenture, dated as of March 15,
1985, as amended and restated as of February 15, 1995, and as may be further
amended and supplemented (the "Indenture"), between the Company and First Trust
of New York, National Association, as trustee (the "Trustee"). The Securities
shall have the maturity ranges, interest rates, if any, redemption provisions
and other terms set forth in the Prospectus referred to below as it may be
amended or supplemented from time to time. The Securities will be issued, and
the terms and rights thereof established, from time to time by the Company in
accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, the Agent that:
<PAGE>
(a) A registration statement on Form S-3 (File No. 333- )
in respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement as it
may have been amended prior to its effectiveness and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to such Agent, has been declared effective by the Commission in
such form; no other document with respect to such registration statement
or document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than the prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act and such other documents listed in Annex IV
hereto, each in the form heretofore delivered to the Agent); and no stop
order suspending the effectiveness of the registration statement has been
issued and no proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became
effective but excluding Form T-1, each as amended at the time such part of
the registration statement became effective, is hereinafter collectively
called the "Registration Statement"; the prospectus (including, if
applicable, any prospectus supplement) relating to the Securities, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms
of a particular issue of the Securities (a "Pricing Supplement"), shall be
deemed to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that
is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to and include the Prospectus as amended or supplemented (including
by the applicable Pricing Supplement filed in accordance with Section 4(a)
hereof) in relation to Securities to be sold pursuant to this Agreement,
in the form filed or transmitted for filing with the Commission pursuant
to Rule 424(b) under the Act and in accordance with Section 4(a) hereof,
including any documents incorporated by reference therein as of the date
of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents, at such time of
effectiveness or filing, as the case may be, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, or any further amendment or supplement thereto, when such
I-2
<PAGE>
documents become effective or are filed with the Commission, as the case
may be, will comply as to form in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and, at such time of
effectiveness or filing, as the case may be, will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Agent expressly for use in the Prospectus as amended or supplemented to
relate to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus comply as to form,
and any further amendments or supplements to the Registration Statement or
the Prospectus will comply as to form, in all material respects with the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Agent expressly for
use in the Prospectus as amended or supplemented to relate to a particular
issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (except for
subsequent issuances, if any, pursuant to reservations or agreements
referred to in the Prospectus and except for subsequent repurchases by the
Company not in excess of those disclosed in the Registration Statement as
authorized as of the date the Registration Statement becomes effective) or
any material change in long-term debt of the Company or any of its
subsidiaries or any material adverse change in or affecting the general
affairs, business prospects, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus (except for subsequent issuances, if any, pursuant to
reservations or agreements referred to in the Prospectus and except for
subsequent repurchases by the Company not in excess of those disclosed in
the Registration Statement as authorized as of the date the Registration
Statement becomes effective) and all of the issued shares of capital stock
of the Company have been duly
I-3
<PAGE>
and validly authorized and issued and are fully paid, and, except as may
be otherwise provided by Section 630 of the New York Business Corporation
Law, non-assessable;
(g) The Securities have been duly authorized, and, when issued,
authenticated, delivered and paid for pursuant to the Indenture, this
Agreement and any Terms Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company (subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles) entitled to the benefits provided by the Indenture,
which will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and constitutes a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture conforms in all
material respects and the Securities of any particular issuance of
Securities will conform in all material respects to the descriptions
thereof contained in the Prospectus as amended or supplemented to relate
to such issuance of Securities;
(h) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation, as
amended, or the By-laws of the Company, as amended, or (to the best of the
Company's knowledge) any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the solicitation of offers to purchase
Securities, the issue and sale of the Securities or the consummation by
the Company of the other transactions contemplated by this Agreement, any
Terms Agreement or the Indenture, except such as have been, or will have
been prior to the Commencement Date (as defined in Section 3 hereof),
obtained under the Act or the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities from the
Company and with purchases of Securities by such Agent as principal, as
the case may be, in each case in the manner contemplated hereby;
(i) Neither the Company nor any of its signifiant subsidiaries, as
such term is defined in Rule 1-02 of Regulation S-X ("Significant
Subsidiaries") is in violation of its Certificate of Incorporation, as
amended, or By-laws, as amended. Neither the Company nor any of its
subsidiaries is in default in the performance or observance of any
obligation, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties
may be bound;
I-4
<PAGE>
(j) The statements set forth in the Prospectus under the caption
"Description of the Securities", insofar as they purport to constitute a
summary of the terms of the Securities, under the caption "Federal Income
Tax Consequences", and under the caption "Plan of Distribution", insofar
as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(l) The Company is not, and after giving effect to each offering and
sale of the Securities will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(n) Immediately after any sale of Securities by the Company hereunder
or under any Terms Agreement, the aggregate amount of Securities which
shall have been issued and sold by the Company hereunder or under any
Terms Agreement and of any debt securities of the Company (other than such
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement;
(o) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
(p) The Securities, when issued, authenticated and delivered pursuant
to the provisions of this Agreement, any Terms Agreement and the
Indenture, will be excluded or exempted under the provisions of the
Commodity Exchange Act.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the
Agent hereby agrees, as agent of the Company, to use its reasonable
efforts to solicit and receive offers to purchase the Securities from the
Company upon the terms and conditions set forth in the Prospectus as
amended or supplemented from time to time. So long as this Agreement shall
remain in effect with respect to the Agent, the Company shall not, without
the consent of such Agent, solicit or accept offers to purchase, or sell,
any debt securities with a maturity at the time of original issuance of 9
months or more except pursuant to this Agreement, any Terms Agreement, or
except pursuant to a private placement not constituting a public offering
under the Act or except in connection with a firm commitment underwriting
I-5
<PAGE>
pursuant to an underwriting agreement that does not provide for a
continuous offering of medium-term debt securities. However, the Company
reserves the right to sell, and may solicit and accept offers to purchase,
Securities directly on its own behalf in transactions with persons other
than broker-dealers, and, in the case of any such sale not resulting from
a solicitation made by the Agent, no commission will be payable with
respect to such sale. These provisions shall not limit Section 4(f) hereof
or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each
case therefor shall be as set forth in the Administrative Procedure
attached hereto as Annex II as it may be amended from time to time by
written agreement between the Agent and the Company (the "Administrative
Procedure"). The provisions of the Administrative Procedure shall apply to
all transactions contemplated hereunder other than those made pursuant to
a Terms Agreement. The Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by
each of them in the Administrative Procedure. The Company will furnish to
the Trustee a copy of the Administrative Procedure as from time to time in
effect.
The Company reserves the right, in its sole discretion, to instruct
the Agent to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase the Securities. As soon as
practicable, but in any event not later than one business day in New York
City, after receipt of notice from the Company, the Agent will suspend
solicitation of offers to purchase Securities from the Company until such
time as the Company has advised the Agent that such solicitation may be
resumed. During such period, the Company shall not be required to comply
with the provisions of Sections 4(h), 4(i), 4(j) and 4(k). Upon advising
the Agent that such solicitation may be resumed, however, the Company
shall simultaneously provide the documents required to be delivered by
Sections 4(h), 4(i), 4(j) and 4(k), and the Agent shall have no obligation
to solicit offers to purchase the Securities until such documents have
been received by the Agent. In addition, any failure by the Company to
comply with its obligations hereunder, including without limitation its
obligations to deliver the documents required by Sections 4(h), 4(i), 4(j)
and 4(k), shall automatically terminate the Agent's obligations hereunder,
including without limitation its obligations to solicit offers to purchase
the Securities hereunder as agent or to purchase Securities hereunder as
principal.
The Company may authorize any other firm (an "Additional Agent") to
act as its agent to solicit offers for the purchase of Securities upon 24
hours' prior notice to the Agent. Each Additional Agent shall execute a
copy of this Agreement and become a party hereto. From and after the time
such Additional Agent shall have executed a copy of this Agreement, the
term "Agent" as used in this Agreement shall mean the Agent and such
Additional Agent.
The Company agrees to pay the Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
I-6
<PAGE>
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years to 30 years
30 years and more
(b) Each sale of Securities to the Agent as principal shall be made
in accordance with the terms of this Agreement and (unless the Company and
the Agent shall otherwise agree) a Terms Agreement which will provide for
the sale of such Securities to, and the purchase thereof by, the Agent; a
Terms Agreement may also specify certain provisions relating to the
reoffering of such Securities by the Agent; the commitment of the Agent to
purchase Securities as principal, whether pursuant to any Terms Agreement
or otherwise, shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall
be subject to the terms and conditions herein set forth; each Terms
Agreement shall specify the principal amount of Securities to be purchased
by the Agent pursuant thereto, the price to be paid to the Company for
such Securities, any provisions relating to rights of, and default by,
underwriters acting together with the Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment for
such Securities; and such Terms Agreement shall also specify any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof. The Agent proposes to offer
Securities purchased by it as principal for sale at prevailing market
prices or prices related thereto at the time of sale, which may be equal
to, greater than or less than the price at which such Securities are
purchased by the Agent from the Company.
For each sale of Securities to the Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to the
issue and delivery of such Securities and payment therefor shall be as set
forth in the Administrative Procedure. For each such sale of Securities to
the Agent as principal that is not made pursuant to a Terms Agreement, the
Company agrees to pay such Agent a commission (or grant an equivalent
discount) as provided in Section 2(a) hereof and in accordance with the
schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by the Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is referred
to herein as a "Time of Delivery".
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<PAGE>
(c) The Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such
Security in, or to residents of, the country issuing such currency, except
as permitted by applicable law.
3. The documents required to be delivered pursuant to Section 6 hereof on
the Commencement Date (as defined below) shall be delivered to the Agent at the
offices of Mayer, Brown & Platt, Chicago, Illinois at 11:00 a.m., New York City
time, on the date of this Agreement, which date and time of such delivery may be
postponed by agreement between the Agent and the Company but in no event shall
be later than the day prior to the date on which solicitation of offers to
purchase Securities is commenced or on which any Terms Agreement is executed
(such time and date being referred to herein as the "Commencement Date").
4. The Company covenants and agrees with the Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall
be disapproved by the Agent promptly after reasonable notice thereof or
(B) after the date of any Terms Agreement or other agreement by the Agent
to purchase Securities as principal and prior to the related Time of
Delivery which shall be reasonably disapproved by the Agent party to such
Terms Agreement or so purchasing as principal promptly after reasonable
notice thereof; (ii) to prepare, with respect to any Securities to be sold
through or to such Agent pursuant to this Agreement, a Pricing Supplement
with respect to such Securities in a form previously approved by such
Agent and to file such Pricing Supplement pursuant to Rule 424(b)(3) under
the Act not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement is
first used; (iii) to make no amendment or supplement to the Registration
Statement or Prospectus, other than any Pricing Supplement, at any time
prior to having afforded the Agent a reasonable opportunity to review and
comment thereon; (iv) to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period to advise such Agent, promptly after the Company receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or has become effective or any supplement to the
Prospectus or any amended Prospectus (other than any Pricing Supplement
that relates to Securities not purchased through or by such Agent) has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amendment or supplement of the
Registration Statement or Prospectus or for additional information; and
(v) in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any such prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as such Agent may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein for as long as may be necessary to complete the
distribution or sale of the Securities; provided, however, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction;
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<PAGE>
(c) To furnish such Agent with copies of the Registration Statement
and each amendment thereto, with copies of the Prospectus as each time
amended or supplemented, other than any Pricing Supplement (except as
provided in the Administrative Procedure), in the form in which it is
filed with the Commission pursuant to Rule 424 under the Act, and with
copies of the documents incorporated by reference therein, all in such
quantities as such Agent may reasonably request from time to time; and, if
the delivery of a prospectus is required at any time in connection with
the offering or sale of the Securities (including Securities purchased
from the Company by such Agent as principal) and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify such Agent and request such
Agent, in its capacity as agent of the Company, to suspend solicitation of
offers to purchase Securities from the Company (and, if so notified, such
Agent shall cease such solicitations as soon as practicable, but in any
event not later than one business day later); and if the Company shall
decide to amend or supplement the Registration Statement or the Prospectus
as then amended or supplemented, to so advise such Agent promptly by
telephone (with confirmation in writing) and to prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or supplemented
that will correct such statement or omission or effect such compliance,
provided, however, that if during such same period such Agent continues to
own Securities purchased from the Company by such Agent as principal or
such Agent is otherwise required to deliver a prospectus in respect of
transactions in the Securities, the Company shall promptly prepare and
file with the Commission such an amendment or supplement; the Company will
furnish without charge to the Agent and to any dealer in securities as
many copies as such Agent may from time to time reasonably request of an
amended prospectus or supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) So long as any Securities are outstanding, but in no event later
than three years after the last issuance of Securities issued pursuant to
this Agreement, to furnish to such Agent copies of all reports or other
communications (financial or other) furnished to stockholders, and deliver
to such Agent (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as such Agent may from
time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and
continuing the Time of Delivery, not to offer,
I-9
<PAGE>
sell, contract to sell or otherwise dispose of any debt securities of the
Company which both mature more than 9 months after such Time of Delivery
and are substantially similar to the Securities, without the prior written
consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal
not pursuant to a Terms Agreement), and each execution and delivery by the
Company of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the
Company contained in or made pursuant to this Agreement are true and
correct as of the date of such acceptance or of such Terms Agreement, as
the case may be, as though made at and as of such date, and an undertaking
that such representations and warranties will be true and correct as of
the settlement date for the Securities relating to such acceptance or as
of the Time of Delivery relating to such sale, as the case may be, as
though made at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement), each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus, and each
time the Company sells Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of an
opinion or opinions by Mayer, Brown & Platt, counsel to the Agent, as a
condition to the purchase of Securities pursuant to such Terms Agreement,
the Company shall furnish to such counsel such papers and information as
they may reasonably request to enable them to furnish to such Agent the
opinion or opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement or a
prospectus supplement which relates to an offering of debt securities
other than the Securities), each time a document filed under the Act
or the Exchange Act is incorporated by reference into the Prospectus and
each time the Company sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the delivery of
opinions under this Section 4(i) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish or
cause to be furnished forthwith to such Agent a written opinion of White &
Case, counsel for the Company, or other counsel for the Company
satisfactory to such Agent, and a written opinion of the general counsel
of the Company dated the date of such amendment, supplement, incorporation
or Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, to the effect that such Agent may rely on the
opinions of such counsel referred to in Sections 6(c) and 6(d) hereof
which were last furnished to such Agent to the same extent as though they
were dated the date of such letter authorizing reliance (except that the
statements in such last opinions shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such opinions, opinions of the same tenor as the
opinions of such counsel referred to in Sections 6(c) and 6(d) hereof but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date. Notwithstanding the foregoing, the
written opinion of White & Case, or other counsel for the Company
satisfactory to the Agent, shall refer to matters specified in Section
6(c)(ix) of this Agreement to the extent that (i) such matters were not
referred to in the opinion last given by such counsel and (ii) such
matters are required to be referred to by Section 6(c)(ix) of this
Agreement;
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented and each time that a document filed under the
Act or the Exchange Act is
I-10
<PAGE>
incorporated by reference into the Prospectus, in either case to set forth
financial information included in or derived from the Company's
consolidated financial statements or accounting records, and each time the
Company sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of a letter
under this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause the independent
certified public accountants who have certified the financial statements
of the Company and its subsidiaries included or incorporated by reference
in the Registration Statement forthwith to furnish such Agent a letter,
dated the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form satisfactory
to such Agent, of the same tenor as the letter referred to in Section 6(e)
hereof but modified to relate to the Registration Statement and the
Prospectus as amended or supplemented to the date of such letter, with
such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of
the Company, to the extent such financial statements and other information
are available as of a date not more than five business days prior to the
date of such letter; provided, however, that, with respect to any
financial information or other matter, such letter may reconfirm as true
and correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or
other matter made in the letter referred to in Section 6(e) hereof which
was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time
a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus and each time the Company sells Securities
to such Agent as principal and the applicable Terms Agreement specifies
the delivery of a certificate under this Section 4(k) as a condition to
the purchase of Securities pursuant to such Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to such Agent a
certificate, dated the date of such supplement, amendment, incorporation
or Time of Delivery relating to such sale, as the case may be, in such
form and executed by such officers of the Company as shall be satisfactory
to such Agent, to the effect that the statements contained in the
certificates referred to in Section 6(j) hereof which were last furnished
to such Agent are true and correct at such date as though made at and as
of such date (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such certificate, certificates of the same tenor
as the certificates referred to in said Section 6(j) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities from
the Company as the result of an offer to purchase solicited by such Agent
the right to refuse to purchase and pay for such Securities if, on the
related settlement date fixed pursuant to the Administrative Procedure,
any condition set forth in Section 6(a), 6(f), 6(g) or 6(h) hereof shall
not have been satisfied (it being understood that the judgment of such
person with respect to the impracticability or inadvisability of such
purchase of Securities shall be substituted, for purposes of this Section
4(l), for the judgment of the Agent with respect to certain matters
referred to in such Sections 6(f) and 6(h), and that such Agent shall have
no duty or obligation whatsoever to exercise the judgment permitted under
such Sections 6(f) and 6(h) on behalf of any such person).
5. The Company covenants and agrees with the Agent that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's counsel and accountants in connection with the registration of
the Securities under the Act and all other expenses in connection with the
preparation, production, reproduction, printing and filing of the Registration
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<PAGE>
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to such Agent; (ii) the reasonable fees,
disbursements and expenses of counsel for the Agent in connection with the
establishment of the program contemplated hereby, any opinions to be rendered by
such counsel hereunder and under any Terms Agreement and the transactions
contemplated hereunder and under any Terms Agreement; (iii) the cost of
printing, producing or reproducing this Agreement, any Terms Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iv) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 4(b) hereof, including the
reasonable fees and disbursements of counsel for the Agent in connection with
such qualification and in connection with the Blue Sky and legal investment
surveys; (v) any fees charged by securities rating services for rating the
Securities; (vi) any filing fees incident to, and the fees and disbursements of
counsel for the Agent in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vii) the cost of preparing the Securities; (viii) the reasonable
fees and expenses of any Trustee and any agent of any Trustee and any transfer
or paying agent of the Company and the fees and disbursements of counsel for any
Trustee or such agent in connection with any Indenture and the Securities; (ix)
any advertising expenses connected with the solicitation of offers to purchase
and the sale of Securities so long as such advertising expenses have been
approved by the Company; and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder which are not otherwise
specifically provided for in this Section. Except as provided in Sections 7 and
8 hereof, the Agent shall pay all other expenses it incurs.
6. The obligation of the Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of the Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of the Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a)(i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have been filed with
the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof;
(ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of such
Agent;
(b)Mayer Brown & Platt, counsel to the Agent, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, with respect to the matters covered in paragraphs
(i) (insofar as it relates to the Company's valid existence and good
standing), (ii) (insofar as it relates to the authorized
capitalization of the Company) (iii), (iv),
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<PAGE>
(v), (vii), (viii), (x) and (xi) of subsection (c) below, as well as
such other related matters as such Agent may reasonably request, and
(ii) if and to the extent reasonably requested by such Agent, with
respect to each applicable date referred to in Section 4(h) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as
the case may be, an opinion or opinions, dated such applicable date,
to the effect that such Agent may rely on the opinion or opinions
which were last furnished to such Agent pursuant to this Section 6(b)
to the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last
opinion or opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date)
or, in any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in
clause (i) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date; and in each
case such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c)White & Case, counsel for the Company, or other counsel for
the Company satisfactory to such Agent, shall have furnished to such
Agent their written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof (with the exception
of the matters covered in paragraph (ix) of this subsection which will
be furnished at such times as required therein) that is on or prior to
such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented (except for subsequent
issuances, if any, pursuant to reservations or agreements referred
to in the Prospectus and except for subsequent repurchases by the
Company not in excess of those disclosed in the Registration
Statement as authorized as of the date the Registration Statement
becomes effective) and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and, except as may be otherwise provided by Section 630
of the New York Business Corporation Law, non-assessable;
(iii) This Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company;
(iv) The Securities have been duly authorized and, when duly
executed, authenticated, issued, paid for and delivered, will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture (subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles); and the Indenture conforms
and the Securities will conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented;
(v) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and
I-13
<PAGE>
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture Act;
(vi) No consent, approval, authorization, order, registration
or qualification of or with any Federal or New York state court or
governmental agency or body is required for the solicitation of
offers to purchase Securities, the issue and sale of the Securities
or the consummation by the Company of the other transactions
contemplated by this Agreement, any applicable Terms Agreement, or
the Indenture, except such as have been obtained under the Act and
the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
solicitation by the Agent of offers to purchase Securities from the
Company and with purchases of Securities by the Agent as principal,
as the case may be, in each case in the manner contemplated hereby;
(vii) The statements set forth in the Prospectus under the
caption "Description of the Securities", insofar as they purport to
constitute a summary of the terms of the Securities, under the
caption "Federal Income Tax Consequences", and under the caption
"Plan of Distribution", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(viii) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act;
(ix) The Securities when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture, will
be excluded or exempted from the provisions of the Commodity
Exchange Act, assuming the accuracy of any certifications of factual
matters furnished by the Agent in writing to the Company in
connection with the issuance thereof. The opinion specified in this
Section 6(c)(ix) shall be required only upon the request of the
Agent in connection with a specific issuance of Securities pursuant
to this Agreement.
(x) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein,
as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and nothing has come to
such counsel's attention that has caused them to believe that any of
such documents (other than the financial statements and related
schedules therein, as to which such counsel need express no belief),
when they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and, in the
case of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading; and
(xi) The Registration Statement and the Prospectus as amended
and supplemented and any further amendments and supplements thereto
made by the Company prior to the date of such opinion (other than
the financial statements and related schedules therein,
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<PAGE>
as to which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred
to in the opinion in subsection (vii) of this Section 6(c), nothing
has come to such counsel's attention that has caused them to believe
that, as of its effective date, the Registration Statement or any
further amendment or supplement thereto made by the Company prior to
the date of such opinion (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of the
date of such opinion, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company
prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading;
(d) The general counsel of the Company shall have furnished to
such Agent his written opinions dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent to the extent that:
(i) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or to which any property of the Company or any of its
subsidiaries is subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(ii) The issue and sale of the Securities, the compliance by
the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any applicable Terms Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation, as amended, of the Company or the By-laws, as
amended, of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its
properties;
(iii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
is required for the solicitation of offers to purchase Securities,
the issue and sale of the Securities or the consummation by the
Company of the other transactions contemplated by this Agreement,
any applicable
I-15
<PAGE>
Terms Agreement, or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the solicitation by the Agent of offers to purchase Securities from
the Company and with purchases of Securities by the Agent as
principal, as the case may be, in each case in the manner
contemplated hereby;
(iv) Such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required
to be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required; and
(v) Neither the Company nor any of its Significant Subsidiaries
is in violation of its Certificate of Incorporation, as amended, or
By-laws, as amended. To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is in default in the
performance or observance of any obligation, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(e) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to such Agent, to the effect
set forth in Annex III hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement
relating to the Securities to be delivered at the relevant Time of
Delivery any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities
to be delivered at the relevant Time of Delivery there shall not have
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving
a prospective change, in or affecting the general affairs, business
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery, the
effect of which, in any such case described in Clause (i) or (ii), is
in the judgment of such Agent so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation by such
Agent of offers to purchase Securities from the Company or the
purchase by such Agent of Securities from the Company as principal, as
the case may be, on the terms and in the manner contemplated in the
Prospectus as amended
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<PAGE>
or supplemented prior to the date of the Pricing Supplement relating
to the Securities to be delivered at the relevant Time of Delivery;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities in New York or Illinois (in the case
of Illinois, only to the extent that a general moratorium on
commercial banking activities in Illinois affects the Agent's ability
to fulfill its obligations hereunder) declared by either Federal, New
York State or Illinois authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this Clause (iv) in the judgment of such Agent
makes it impracticable or inadvisable to proceed with the solicitation
of offers to purchase Securities or the purchase of the Securities
from the Company as principal pursuant to the applicable Terms
Agreement or otherwise, as the case may be, on the terms and in the
manner contemplated in the Prospectus;
(i) With respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency
or any Security the principal or interest of which is indexed to such
currency, currencies or composite currency, there shall not have
occurred a suspension or material limitation in foreign exchange
trading in such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of
hostilities involving, the occurrence of any material adverse change
in the existing financial, political or economic conditions of, or the
declaration of war or a national emergency by, the country or
countries issuing such currency, currencies or composite currency or
the imposition or proposal of exchange controls by any governmental
authority in the country or countries issuing such currency,
currencies or composite currency; and
(j) The Company shall have furnished or caused to be furnished to
such Agent certificates of the Chairman or a Vice President and the
Controller or Treasurer of the Company dated the Commencement Date and
each applicable date referred to in Section 4(k) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may
be, in such form as shall be reasonably satisfactory to such Agent, as
to the accuracy of the representations and warranties of the Company
herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Commencement
Date or such applicable date, as the case may be, as to the matters
set forth in subsections (a) and (f) of this Section 6, and as to such
other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless the Agent against any
losses, claims, damages or liabilities, joint or several, to which such
Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
I-17
<PAGE>
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse such Agent for any legal or other expenses reasonably incurred
by it in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or any
such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly for
use therein.
(b) The Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement
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<PAGE>
or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Agent on the other from the offering of the
Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection
(c) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Agent on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Agent on the other shall
be deemed to be in the same proportion as the total net proceeds from the
sale of Securities (before deducting expenses) received by the Company
bear to the total commissions or discounts received by such Agent in
respect thereof. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by the Company on
the one hand or by the Agent on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Agent agree that
it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by per capita allocation (even if the Agent
and any Additional Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Agent shall not be required to
contribute any amount in excess of the amount by which the total public
offering price at which the Securities purchased by or through it were
sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Agent under this
subsection (d) to contribute are several in proportion to the respective
purchases made by or through it to which such loss, claim, damage or
liability (or action in respect thereof) relates and are not joint.
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<PAGE>
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Agent within the meaning of the Act; and the obligations of
the Agent under this Section 7 shall be in addition to any liability which
such Agent may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
8. The Agent, in soliciting offers to purchase Securities from the Company
and in performing the other obligations of such Agent hereunder (other than in
respect of any purchase by the Agent as principal, pursuant to a Terms Agreement
or otherwise), is acting solely as agent for the Company and not as principal.
The Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold the Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations, warranties and
other statements by the Agent and the Company set forth in or made pursuant to
this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Agent or any controlling person of the Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of offers
to purchase Securities from the Company may be suspended or terminated at any
time by the Company as to the Agent or by the Agent as to such Agent upon the
giving of written notice of such suspension or termination to such Agent or the
Company, as the case may be. In the event of such suspension or termination with
respect to the Agent, (x) this Agreement shall remain in full force and effect
with respect to the Agent as to which such suspension or termination has not
occurred, (y) this Agreement shall remain in full force and effect with respect
to the rights and obligations of any party which have previously accrued or
which relate to Securities which are already issued, agreed to be issued or the
subject of a pending offer at the time of such suspension or termination and (z)
in any event, this Agreement shall remain in full force and effect insofar as
the fourth paragraph of Section 2(a), and Sections 4(d), 4(e), 5, 7, 8 and 9
hereof are concerned.
11. Except as otherwise specifically provided herein, in the applicable
Terms Agreement or in the Administrative Procedure, all statements, requests,
notices and advices hereunder shall be in writing, or by telephone if promptly
confirmed in writing, and if to (i) Goldman, Sachs & Co. shall be sufficient in
all respects when delivered or sent by facsimile transmission or registered mail
to 85 Broad Street, New York, New York 10004, Facsimile Transmission No. (212)
357-8680, Attention: Credit Department, Credit Control--Medium-Term Notes, and
(ii) the Company shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to the address of the Company set
forth in the Registration Statement: Attention: Secretary.
12. This Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, the Agent and the Company, and to the extent provided
in Sections 7, 8 and 9 hereof, the officers and directors of the Company and any
person who controls the Agent or the Company, and their
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<PAGE>
respective heirs, executors, administrators, representatives, successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement or any Terms Agreement. No purchaser of any of the Securities
through or from the Agent hereunder shall be deemed a successor or assign by
reason merely of such purchase.
13. Time shall be of the essence in this Agreement and any Terms Agreement.
As used herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
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<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us 10 counterparts hereof, whereupon this letter and the acceptance by
each of you thereof shall constitute a binding agreement between the Company and
each of you in accordance with its terms.
Very truly yours,
Mallinckrodt Inc.
By:____________________________
Accepted in New York, New York, Name:
as of the date hereof: Title:
By:_________________________________
(Goldman, Sachs & Co.)
By:__________________________________
Name:
Title:
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<PAGE>
ANNEX I
MALLINCKRODT INC.
DEBT SECURITIES
TERMS AGREEMENT
..................., 19..
Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
Mallinckrodt Inc., a New York company, (the "Company") proposes, subject to
the terms and conditions stated herein and in the Distribution Agreement, dated
......................., 19.. (the "Distribution Agreement"), between the
Company on the one hand and Goldman, Sachs & Co. (the "Agent") on the other, to
issue and sell to Goldman, Sachs & Co. the securities specified in the Schedule
hereto (the "Purchased Securities"). Each of the provisions of the Distribution
Agreement not specifically related to the solicitation by the Agent, as agent of
the Company, of offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part of this Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Nothing contained herein or in the Distribution Agreement shall make any
party hereto an agent of the Company or make such party subject to the
provisions therein relating to the solicitation of offers to purchase Securities
from the Company, solely by virtue of its execution of this Terms Agreement.
Each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to Goldman, Sachs & Co. and Goldman, Sachs & Co. agrees to
purchase from the Company the Purchased Securities, at the time and place, in
the principal amount and at the purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us 10 counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those
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<PAGE>
provisions of the Distribution Agreement incorporated herein by reference, shall
constitute a binding agreement between you and the Company.
Mallinckrodt Inc.
By:_________________________
Name:
Title:
Accepted:
Goldman, Sachs & Co.
By:_______________________
Name: Title:
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<PAGE>
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes[, SERIES ....]
Aggregate Principal Amount:
[$.................... OR UNITS OF OTHER SPECIFIED CURRENCY]
[PRICE TO PUBLIC:]
Purchase Price by [NAME OF AGENT]
% of the principal amount of the Purchased Securities[, PLUS ACCRUED
INTEREST FROM ............... TO ...............] [AND ACCRUED AMORTIZATION, IF
ANY, FROM ................. TO ................]
Method of and Specified Funds for Payment of Purchase Price:
[BY CERTIFIED OR OFFICIAL BANK CHECK OR CHECKS, PAYABLE TO THE ORDER OF
THE COMPANY, IN [[NEW YORK] CLEARING HOUSE] [IMMEDIATELY AVAILABLE] FUNDS]
[BY WIRE TRANSFER TO A BANK ACCOUNT SPECIFIED BY THE COMPANY IN [NEXT DAY]
[IMMEDIATELY AVAILABLE] FUNDS]
Indenture:
Indenture, dated as of March 15, 1985, as amended and restated as of
February 15, 1995, and as may be further amended and supplemented, between
the Company and First Trust of New York, National Association, as trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[MONTHS AND DATES]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be
delivered as a condition to the Closing:
[(1) THE OPINION OR OPINIONS OF COUNSEL TO THE AGENT REFERRED TO IN
SECTION 4(H).]
[(2) THE OPINION OF COUNSEL TO THE COMPANY AND THE OPINION OF GENERAL
COUNSEL OF THE COMPANY REFERRED TO IN SECTION 4(I).]
[(3) THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 4(J).]
[(4) THE OFFICERS' CERTIFICATE REFERRED TO IN SECTION 4(K).]
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<PAGE>
Other Provisions (including Syndicate Provisions, if applicable):
I-4
<PAGE>
ANNEX II
MALLINCKRODT GROUP, INC.
ADMINISTRATIVE PROCEDURE
------------------------
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated ......................, 19.. (the "Distribution
Agreement"), between Mallinckrodt Inc. (the "Company") and Goldman, Sachs & Co.
( the "Agent"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by the Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by the Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. The Agent, in
relation to a purchase of a Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a Terms Agreement, as
the "Purchasing Agent".
The Company will advise the Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by the Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture or the applicable Pricing Supplement.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
- -----------------------------------------------------------
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of .................., 19.. (the "Certificate
Agreement"), and its obligations as a participant in the Depositary, including
the Depositary's Same-Day Funds Settlement System ("SDFS").
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<PAGE>
Posting Rates by the Company:
The Company and the Agent will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by the Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agent to suspend solicitation of offers until the new
posted rates have been established with the Agent.
Acceptance of Offers by the Company:
The Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. The Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. The
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Agent or Purchasing Agent, as the case
may be, of its acceptance or rejection of an offer to purchase Book-Entry
Securities. If the Company accepts an offer to purchase Book-Entry Securities,
it will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and initial
interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than U.S.
dollars, the applicable Exchange Rate for such Specified Currency
(it being understood that currently the Depositary accepts deposits
of Global Securities denominated in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
(9) Interest Payment Dates;
(10) Regular Record Dates;
(11) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(12) Net Proceeds to the Company;
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<PAGE>
(13) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline (but
not below par) on each anniversary of the Redemption
Commencement Date;
(14) If a Floating Rate Book-Entry Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Calculation Agent; and
(xi) Initial Interest Payment Date;
(15) Name, address and taxpayer identification number of the registered
owner(s);
(16) Denomination of certificates to be delivered at settlement;
(17) Book-Entry Security or Certificated Security; and
(18) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a list
of CUSIP numbers previously delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may be;
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(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security, number
of days by which such date succeeds the record date for the
Depositary's purposes (or, in the case of Floating Rate Securities
which reset daily or weekly, the date five calendar days immediately
preceding the applicable Interest Payment Date and, in the case of
all other Book-Entry Securities, the Regular Record Date, as defined
in the Security) and, if calculable at that time, the amount of
interest payable on such Interest Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the Trustee to the Depositary that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the Participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to the
account of the Company maintained at Morgan Guaranty Trust Company of New York,
[Address], New York, New York [Zip Code], or such other account as the Company
may have previously specified to the Trustee, in funds available for immediate
use in the amount transferred to the Trustee in accordance with Settlement
Procedure "F".
J. Upon request, the Trustee will send to the Company a statement setting
forth the principal amount of Book-Entry Securities outstanding as of that date
under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to the
purchaser either by transmitting to the Participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
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Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than 5:00
p.m., New York City time, on the Business Day following the Trade Date (as
defined below), or if the Company and the purchaser agree to settlement on the
Business Day following the date of acceptance of such offer, not later than
noon, New York City time, on such date. The Company will arrange to have ten
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth Business Day following the date on which
such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders of Book-Entry Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company on a
particular date (the "Trade Date") will be settled on a date (the "Settlement
Date") which is the third Business Day (or such lesser period as may then be
required by the Commission) after the Trade Date pursuant to the "Settlement
Procedure Timetable" set forth below, unless the Company and the purchaser agree
to settlement on another Business Day which shall be no earlier than the next
Business Day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third Business Day (or such lesser
period as may then be required by the Commission) after the Trade Date,
Settlement Procedures "A" through "I" set forth above shall be completed as soon
as possible but not later than the respective times (New York City time) set
forth below:
SETTLEMENT
PROCEDURE Time
- --------- ----
A 5:00 p.m. on the Business Day following the Trade Date or 10:00
a.m. on the Business Day prior to the Settlement Date,
whichever is earlier
B 12:00 noon on the second Business Day immediately
preceding the Settlement Date
C 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
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H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry Security has
not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second Business Day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participant Terminal System, a cancellation message to
such effect by no later than 2:00 p.m. on the Business Day immediately preceding
the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be canceled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to the
participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the Agent to perform its
obligations hereunder or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for the loss of its use of funds
during the period when the funds were credited to the account of the Company.
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<PAGE>
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D", for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee with a sufficient quantity
of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
- --------------------------------------------------------------
Posting Rates by Company:
The Company and the Agent will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by the Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agent to suspend solicitation of offers until
the new posted rates have been established with the Agent.
Acceptance of Offers by Company:
The Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. The Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. The
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and initial
interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than U.S.
dollars, the applicable Exchange Rate for such Specified Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate Determination
Date, if applicable;
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<PAGE>
(8) Issue Price;
(9) Interest Payment Dates;
(10) Regular Record Dates;
(11) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(12) Net Proceeds to the Company;
(13) If a redeemable Certificated Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
(1) If a Floating Rate Certificated Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Calculation Agent; and
(xi) Initial Interest Payment Date;
(2) Name, address and taxpayer identification number of the registered
owner(s);
(3) Denomination of certificates to be delivered at settlement;
(4) Book-Entry Security or Certificated Security; and
(5) Selling Agent or Purchasing Agent.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the Business Day following the Trade
Date, or if the Company and the purchaser agree to settlement on the date of
acceptance of such offer, not later than noon, New York City time, on such date.
The Company will arrange to have ten Pricing Supplements filed with the
Commission not later than the close of business of the Commission on the fifth
Business Day following the date on which such Pricing Supplement is first used.
II-8
<PAGE>
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Company will be settled on a date (the
"Settlement Date") which is the fifth Business Day (or such lesser period as may
then be required by the Commission) after the date of acceptance of such offer,
unless the Company and the purchaser agree to settlement (a) on another Business
Day after the acceptance of such offer or (b) with respect to an offer accepted
by the Company prior to 10:00 a.m., New York City time, on the date of such
acceptance.
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information to
the Trustee by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities
no later than 2:15 p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 3:00 p.m., New York City time,
on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. On the Settlement Date the Selling
Agent will deliver payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Selling Agent's commission; provided that the
Selling Agent reserves the right to withhold payment for which it has not
received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
II-9
<PAGE>
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
II-10
<PAGE>
ANNEX III
ACCOUNTANTS' LETTER
-------------------
Pursuant to Sections 4(j) and 6(e), as the case may be, of the Distribution
Agreement, the Company's independent certified public accountants shall furnish
letters to the effect that:
(i) They are independent auditors with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and any
supplementary financial information and schedules (and, if applicable,
prospective financial statements and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the Agent;
(iii)They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus
and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which have been furnished to the Agent; and on
the basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form in
all material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and regulations
thereunder, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with or is
derived from (specifying in each case which) the corresponding amounts
(after restatement where applicable) in the audited consolidated financial
statements for five such fiscal years which were included or incorporated
by reference in the Company's Annual Reports on Form 10-K for such fiscal
years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
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<PAGE>
(vi) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company, inspection of the minute books of the Company
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus (i) do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations thereunder, or (ii) are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included or incorporated by reference in the more recent
of the Company's Annual Report on Form 10-K for the most recent
fiscal year or the Prospectus;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
more recent of the Company's Annual Report on Form 10-K for the most
recent fiscal year or the Prospectus;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
more recent of the Company's Annual Report on Form 10-K for the most
recent fiscal year or the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder and, if applicable, the pro forma adjustments
have not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Agent, as agreed
to by the auditors, or
III-2
<PAGE>
any increases in any items specified by the Agent, as agreed to by
the auditors, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Agent, as agreed to by the auditors, or any increases in any
items specified by the Agent, as agreed to by the auditors, in each
case as compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the Agent,
as agreed to by the auditors, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(vii)In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Agent, as agreed to by the
auditors, which are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Agent, as agreed
to by the auditors, or in documents incorporated by reference in the
Prospectus specified by the Agent, as agreed to by the auditors, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Distribution Agreement as of the Commencement Date referred to in
Section 6(e) thereof and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) as of the date of the
amendment, supplement, incorporation or the Time of Delivery relating to the
Terms Agreement requiring the delivery of such letter under Section 4(j)
thereof.
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<PAGE>
ANNEX IV
List of Documents:
<PAGE>
EXHIBIT 5.1
December 16, 1997
Mallinckrodt Inc.
675 McDonnell Boulevard
St. Louis, MO 63134
Dear Sirs:
We have examined the Registration Statement on Form S-3 filed today by
Mallinckrodt Inc. (the "Company") with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, for the registration of
$500,000,000 in aggregate principal amount of the Company's debt securities
(the "Securities"), to be issued under an Indenture dated as of March 15,
1985, as amended and restated as of February 15, 1995, between the Company and
First Trust of New York, National Association, as Trustee.
In our opinion, when the Securities have been duly executed, authenticated
and delivered against payment therefor, the Securities will be legally issued
and will be legally binding obligations of the Company, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (regardless of whether
the issue of enforceability is considered in a proceeding in equity or at
law).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Prospectus forming a part of the Registration
Statement.
Very truly yours,
/s/ White & Case
<PAGE>
EXHIBIT 12.1
MALLINCKRODT INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
($ IN MILLIONS)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEAR ENDED JUNE 30,
SEPTEMBER 30, ----------------------------------
1997 1997 1996 1995 1994 1993
------------- ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Earnings (loss) from
continuing operations........ ($381.4) $185.7 $153.7 $136.7 $ 79.2 $ 60.4
Add (deduct) provision
(benefit) for income taxes... 9.9 102.3 90.0 81.9 46.3 41.3
------- ------ ------ ------ ------ ------
Earnings (loss) from
continuing operations before
income taxes................. (371.5) 288.0 243.7 218.6 125.5 101.7
Add (deduct):
Portion of rents ( 1/3)
considered to be
representative of interest
factors in the leases...... 1.7 7.4 7.9 7.8 6.6 5.9
Net interest expense........ 18.4 48.1 51.3 45.1 34.6 32.0
Depreciation of capitalized
interest................... 0.2 0.8 0.8 0.8 0.5 0.4
Amortization of debt
discount and expenses...... 0.2 0.5 0.5 0.4 0.3 0.2
Equity in income of
nonconsolidated
subsidiaries less
dividends.................. 0.0 0.0 0.0 0.0 0.0 0.0
Share of interest charges of
50 percent-owned joint
venture.................... 0.0 0.0 0.0 0.0 0.0 0.0
------- ------ ------ ------ ------ ------
Earnings from continuing
operations available for
fixed charges................ ($351.0) $344.8 $304.2 $272.7 $167.5 $140.2
======= ====== ====== ====== ====== ======
Fixed charges:
Gross interest expense...... $ 18.4 $ 48.8 $ 52.9 $ 46.4 $ 38.4 $ 36.0
Portion of rents ( 1/3)
considered to be
representative of interest
factors in the leases...... 1.7 7.4 7.9 7.8 6.6 5.9
Amortization of debt
discount and expenses...... 0.2 0.5 0.5 0.4 0.3 0.2
Share of interest charges of
50 percent-owned joint
venture.................... 0.0 0.0 0.0 0.0 0.0 0.0
------- ------ ------ ------ ------ ------
Total fixed charges........... $ 20.3 $ 56.7 $ 61.3 $ 54.6 $ 45.3 $ 42.1
======= ====== ====== ====== ====== ======
Ratio of earnings from
continuing operations to
fixed charges................ [1] 6.1 5.0 5.0 3.7 3.3
======= ====== ====== ====== ====== ======
</TABLE>
- --------
[1] Earnings were inadequate to cover fixed charges for the three months ended
September 30, 1997, primarily due to acquisition charges recorded during
the quarter. The coverage deficiency was approximately $371 million.
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Mallinckrodt Inc.
for the registration of debt securities and to the incorporation by reference
therein of our report dated July 30, 1997, with respect to the consolidated
financial statements and schedules of Mallinckrodt Inc. in its Annual Report
(Form 10-K) for the year ended June 30, 1997, filed with the Securities and
Exchange Commission.
Ernst & Young LLP
St. Louis, Missouri
December 15, 1997
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
____________________
FORM T - 1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
____________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _________
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION (Exact name
of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
____________________
FOR INFORMATION, CONTACT:
Dennis Calabrese, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
____________________
MALLINCKRODT INC.
(Exact name of obligor as specified in its charter)
New York 36-1263901
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
675 McDonnell Boulevard
St. Louis, Missouri 63134
(Address of principal executive offices) (Zip Code)
____________________
DEBT SECURITIES
<PAGE>
Item 1. GENERAL INFORMATION.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. LIST OF EXHIBITS.
Exhibit 1. Articles of Association of First Trust of New York, National
Association, incorporated herein by reference to Exhibit 1
of Form T-1, Registration No. 33-83774.
Exhibit 2. Certificate of Authority to Commence Business for First
Trust of New York, National Association, incorporated herein
by reference to Exhibit 2 of Form T-1, Registration No. 33-
83774.
Exhibit 3. Authorization of the Trustee to exercise corporate trust
powers for First Trust of New York, National Association,
incorporated herein by reference to Exhibit 3 of Form T-1,
Registration No. 33-83774.
Exhibit 4. By-Laws of First Trust of New York, National Association,
incorporated herein by reference to Exhibit 4 of Form T-1
Registration No. 333-34113.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National Association,
required by Section 321(b) of the Act, incorporated herein
by reference to Exhibit 6 of Form T-1, Registration No. 33-
83774.
Exhibit 7. Report of Condition of First Trust of New York, National
Association, as of the close of business on September 30,
1997, published pursuant to law or the requirements of its
supervising or examining authority.
<PAGE>
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Trust of New York, National Association, a national
banking association organized and existing under the laws of the United States,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 12th day of December, 1997.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By: /s/ Frank J. Gillhaus, Jr.
--------------------------
Frank J. Gillhaus, Jr.
Vice President, Jr.
<PAGE>
Exhibit 7
---------
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
STATEMENT OF FINANCIAL CONDITION
AS OF 9/30/97
($000'S)
<TABLE>
<CAPTION>
<S> <C>
ASSETS 9/30/97
----------
Cash and Due From Depository Institutions $36,355
Federal Reserve Stock 3,467
Fixed Assets 753
Intangible Assets 76,047
Other Assets 5,619
----------
TOTAL ASSETS $122,241
==========
LIABILITIES
Other Liabilities 7,592
----------
TOTAL LIABILITIES 7,592
EQUITY
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (7,283)
----------
TOTAL EQUITY CAPITAL 114,649
TOTAL LIABILITIES AND EQUITY CAPITAL $122,241
==========
</TABLE>
================================================================================
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
First Trust of New York, National Association
By: /s/Frank J. Gillhaus, Jr.
------------------------
Vice President
Date: December 12, 1997
