As filed with the Securities and Exchange Commission on December 10,
1999.
Registration No 333-
- ----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement Under
the Securities Act of 1933
==========================
MALLINCKRODT INC.
(Exact Name of Registrant as Specified in its Charter)
New York 36-1263901
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
675 McDonnell Boulevard
P.O. Box 5840
St. Louis, MO 63134
(Address of Principal Executive Offices)
MALLINCKRODT INCOME DEFERRAL PLAN
(Full Title of the Plan)
Roger A. Keller Telephone number,
Vice President, Secretary including area code,
& General Counsel of agent for service:
Mallinckrodt Inc. (314) 654-2000
675 McDonnell Boulevard
P.O. Box 5840
St. Louis, MO 63134
(Name and Address of Agent For Service)
======================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered(1) Registered(2) Per Obligation(2) Price(2) Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred
Compensation
Obligations $45,000,000.00 100% $45,000,000.00 $12,510.00
================================================================================
</TABLE>
[FN]
<F1>
The Deferred Compensation Obligations are interests in the
Mallinckrodt Income Deferral Plan. These are unsecured obligations of
Mallinckrodt Inc. to pay deferred compensation in the future in
accordance with the terms of the Mallinckrodt Income Deferral Plan.
</F1>
<F2>
Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(h) and 457(c) under the Securities Act of
1933, based upon estimated amounts of compensation eligible for
deferral for future periods.
</F2>
</FN>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed by the Registrant with
the Securities and Exchange Commission are incorporated herein by
reference:
(1) The Annual Report of the Company on Form 10-K for
the year ended June 30, 1999.
(2) The Quarterly Report of the Company on Form 10-Q
for the quarter ended September 30, 1999.
(3) The description of the Corporation's Common Stock
contained in the Corporation's Registration Statement on Form 8-A
dated April 10, 1987 (as amended on Form 8-A dated November 8, 1991).
All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, after
the effective date of this Registration Statement and prior to the
filing of a post-effective amendment that indicates that all
securities of the Company have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated
by reference into this Registration Statement and to be a part hereof
from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as
"Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently
- -------- -------
filed by the registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the 1934 Act in each year during which the offering made by
this Registration Statement is in effect prior to the filing with the
Commission of the registrant's Annual Report on Form 10-K covering
such year shall not be Incorporated Documents or be incorporated by
reference in this Registration Statement or be a part hereof from and
after the filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein
or in any other subsequently filed Incorporated Document 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 Registration Statement.
Item 4. Description of Securities.
-------------------------
The securities offered ("Interests") are Interests in
the Mallinckrodt Income Deferral Plan (the "Plan"). These Interests
are unsecured general obligations of Mallinckrodt Inc. to pay sums of
deferred compensation with credited investment return, or loss, in the
future. The dedicated Interests are not secured by any specific
assets or fund and Plan participants rank in the same relative
position as other unsecured and unsubordinated indebtedness of
Mallinckrodt Inc.
If Mallinckrodt Inc. establishes a fund or trust to
fund Interests, these assets will be fully subject to the claims of
Mallinckrodt Inc. creditors; therefore, Plan Interests are considered
to be unfunded. The right of Plan participants to participate in any
distribution of assets of Mallinckrodt Inc. upon its liquidation or
reorganization is a function of the prior and concurrent claims of
other general unsecured and priority creditors, including Plan
participants who are unsecured creditors.
The amount of compensation deferred by each Participant
is determined in accordance with the Plan based on the Participant's
elections, subject to such Plan rules as may be established by the
Employee Benefits Committee of Mallinckrodt Inc. (the "Committee") as
the plan administrator. Interests will be payable in accordance with
Plan terms. Under the Plan, the Interests will yield an investment
return (plus or minus) based on one or more options individually
chosen by each Participant including an option which mirrors the
performance of common stock of Mallinckrodt Inc. The Interests will
be accounted for in units and are payable in United States Dollars.
A Participant's Interests cannot be assigned,
alienated, sold, attached or encumbered except by a written
designation of a beneficiary under the Plan or by the laws of descent
and distribution. The Interests are not convertible into another
security of Mallinckrodt Inc. No trustee currently has authority to
take action with respect to the Interests and each Participant will be
responsible for acting independently with respect to, among other
things, the making of investment elections and giving of notices.
Mallinckrodt Inc. (through the Committee) reserves the
right to amend or terminate the Plan at any time.
The Interests are further described in the Plan's
Prospectus.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
The legality of the Plan Interests offered hereby has
been passed upon by Roger A. Keller, Vice President, Secretary and
General Counsel of the Corporation, 675 McDonnell Boulevard, P.O. Box
5840, St. Louis, Missouri 63134. As of June 30, 1999, Mr. Keller
owned or had options to purchase 112,257.91 shares of Common Stock.
Item 6. 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 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 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
Reference is made to the Exhibit Index.
Item 9. Undertakings.
------------
The 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 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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the "1933 Act"), 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 that time shall be deemed to be the initial bona
fide offering thereof.
(3) That, for the purposes of determining any
liability under the 1933 Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the 1934 Act
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act) 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.
(4) 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.
(5) Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described in Item 6 or otherwise, the registrant has been advised that
in the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 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 1933 Act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the undersigned registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of St. Louis, State of Missouri, on the 8th
day of December, 1999.
MALLINCKRODT INC.
By: /s/ C. Ray Holman
--------------------------
C. Ray Holman
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints C. Ray Holman and
Roger A. Keller, and each of them severally, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or
either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof. This Power of
Attorney may be executed in one or more counterparts.
Pursuant to the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons
in the capacities indicated on the 8th day of December, 1999.
Signature Title
--------- -----
/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 Accounting Officer)
Douglas A. McKinney
/s/ RAYMOND F. BENTELE Director
-------------------------
Raymond F. Bentele
/s/ WILLIAM L. DAVIS, III Director
-------------------------
William L. Davis, III
/s/ RONALD G. EVENS Director
-------------------------
Ronald G. Evens
/s/ PETER B. HAMILTON Director
-------------------------
Peter B. Hamilton
/s/ ROBERTA S. KARMEL Director
-------------------------
Roberta S. Karmel
/s/ CLAUDINE B. MALONE Director
-------------------------
Claudine B. Malone
/s/ BRIAN M. RUSHTON Director
-------------------------
Brian M. Rushton
/s/ ANTHONY VISCUSI Director
-------------------------
Anthony Viscusi
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
5* Opinion (including consent) of Roger A. Keller.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Roger A. Keller (included in Exhibit 5).
24* Power of Attorney (included on signature page).
*Filed herewith.
<PAGE>
EXHIBIT 5
---------
OPINION AND CONSENT OF ROGER A. KELLER
I have examined the Registration Statement on Form S-8 to be
filed by Mallinckrodt Inc. (the "Corporation") with the Securities and
Exchange Commission under the Securities Act of 1933 covering deferred
compensation obligations of the Company under the Mallinckrodt Income
Deferral Plan (the "Plan").
I have examined such documents, certificates, records,
authorizations and proceedings and have made such investigations as I
have deemed necessary or appropriate in order to give the opinion
expressed herein.
Upon the basis of the foregoing, I am of the opinion that the
deferred compensation obligations registered pursuant to the
Registration Statement to which this opinion is an exhibit, when
incurred in accordance with the terms of the Plan, will be valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating
to or affecting enforcement of creditor's rights or by general equity
principles.
I hereby consent to the filing of this Opinion as an exhibit to
the Registration Statement.
By:
ROGER A. KELLER
/s/ Roger A. Keller
---------------------
St. Louis, MO
December 8, 1999
<PAGE>
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Mallinckrodt Income Deferral
Plan of our report dated July 29, 1999, with respect to the
consolidated financial statements of Mallinckrodt Inc. included in the
Annual Report (Form 10-K) for the year ended June 30, 1999, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
- ---------------------
St. Louis, Missouri
December 7, 1999
