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As filed with the Securities and Exchange Commission on May 4, 1999
Registration No. 333-42325
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
AMENDMENT NO. 4
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)
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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
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(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
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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. [_]
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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. [_]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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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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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............ $147,500
Trustee's Fees................................................. 16,000*
Printing Expenses.............................................. 100,000*
Rating Agency Fees............................................. 100,000*
Accounting Fees and Expenses................................... 40,000*
Legal Fees and Expenses........................................ 75,000*
Blue Sky Fees and Expenses..................................... 5,000*
Miscellaneous.................................................. 15,000*
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Total Expenses............................................... $498,500*
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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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1.1 Form of Underwriting Agreement**
1.2 Form of Distribution Agreement**
4.1 Form of Indenture dated as of March 15, 1985, as amended and
restated as of February 15, 1995, between the Company and First
Trust Company of New York, National Association, as Trustee,
including Form of Securities (incorporated by reference to the
Company's Registration Statement on Form S-3 (No. 33-52821))
5.1 Opinion of White & Case**
12.1 Computation of Ratio of Earnings to Fixed Charges**
23.1 Consent of Ernst & Young LLP*
23.2 Intentionally Omitted
23.3 Intentionally Omitted
23.4 Intentionally Omitted
23.5 Consent of White & Case (included in Exhibit 5.1)**
25.1 Form T-1, Statement of Eligibility under Trust Indenture Act of
1939**
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*Filed herewith
**Previously filed
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused Amendment No. 4 to
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in St. Louis, Missouri, on the 4th day of
May, 1999.
Mallinckrodt Inc.
/s/ C. Ray Holman
By: _________________________________
C. Ray Holman
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, Amendment No. 4
to this Registration Statement has been signed below by the following Persons,
in the capacities indicated, on May 4, 1999.
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Signature Title
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/s/ C. Ray Holman Chairman of the Board and
____________________________________ Chief Executive Officer
C. Ray Holman (Principal Executive
Officer)
/s/ Michael A. Rocca Senior Vice President and
____________________________________ Chief Financial Officer
Michael A. Rocca (Principal Financial
Officer)
/s/ Douglas A. McKinney Vice President and
____________________________________ Controller (Principal
Douglas A. McKinney Accounting Officer)
/s/ Raymond F. Bentele Director
____________________________________
Raymond F. Bentele
Director
____________________________________
Gareth C.C. Chang
/s/ William L. Davis, III Director
____________________________________
William L. Davis, III
Director
____________________________________
Ronald G. Evens
/s/ Roberta S. Karmel Director
____________________________________
Roberta S. Karmel
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Signature Title
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/s/ Claudine B. Malone Director
____________________________________
Claudine B. Malone
/s/ Anthony Viscusi Director
____________________________________
Anthony Viscusi
/s/ Brian M. Rushton Director
____________________________________
Brian M. Rushton
/s/ Daniel R. Toll Director
____________________________________
Daniel R. Toll
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INDEX TO EXHIBITS
Exhibit Sequential Page No.
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1.1 Form of Underwriting Agreement**
1.2 Form of Distribution Agreement**
4.1 Form of Indenture dated as of March 15, 1985, as amended and
restated as of February 15, 1995, between the Company and First
Trust Company of New York, National Association, as Trustee,
including Form of Securities (incorporated by reference to the
Company's Registration Statement on Form S-3 (No. 33-52821))
5.1 Opinion of White & Case**
12.1 Computation of Ratio of Earnings to Fixed Charges**
23.1 Consent of Ernst & Young LLP*
23.2 Intentionally Omitted
23.3 Intentionally Omitted
23.4 Intentionally Omitted
23.5 Consent of White & Case (included in Exhibit 5.1)**
25.1 Form T-1, Statement of Eligibility under Trust Indenture Act of
1939**
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* Filed herewith
** Previously filed
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 4 to the Registration Statement (Form S-3) and related
Prospectus of Mallinckrodt Inc. for the registration of debt securities and to
the incorporation by reference therein of our report dated August 12, 1998
(except for the restatement related to purchased research and development
referred to in Note 2, as to which the date is January 26, 1999), with respect
to the consolidated financial statements and schedules of Mallinckrodt Inc.
included in its Annual Report on Form 10-K for the year ended June 30, 1998,
as amended by Form 10-K/A filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
St. Louis, Missouri
April 30, 1999
