As filed with the Securities and Exchange Commission on November ___, 1999.
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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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 INC.
EMPLOYEE STOCK PURCHASE 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)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
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Common Stock,
par value $1.00
per share 1,500,000 Shares $35.50 $53,250,000.00 $14,804.00
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1 An undetermined number of additional shares may be issued if the
anti-dilution adjustment provisions of the plan become operative.
2 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 the average of the high and low prices of the Common Stock as
reported on the New York Stock Exchange, Inc. on November 16, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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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 offered 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 Section 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.
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The securities to be offered are registered under Section
12(b) of the 1934 Act.
Item 5. Interest of Named Experts and Counsel.
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The legality of the Common Stock 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.
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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
<PAGE>
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 Section723.
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.
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Not applicable.
<PAGE>
Item 8. Exhibits.
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Reference is made to the Exhibit Index.
Item 9. Undertakings.
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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.
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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 15th day of November, 1999.
MALLINCKRODT INC.
By: /s/ C. Ray Holman
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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 15th day of November, 1999.
Signature Title
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/s/ C. Ray Holman Chairman of the Board and Chief
C. Ray Holman Executive Officer
/s/ Michael A. Rocca Senior Vice President and Chief
Michael A. Rocca Financial Officer (Principal
Financial Officer)
/s/ Douglas A. McKinney Vice President and Controller
Douglas A. McKinney (Principal Accounting Officer)
<PAGE>
/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/ Anthony Viscusi Director
Anthony Viscusi
/s/ Brian M. Rushton Director
Brian M. Rushton
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
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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.
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 1,500,000 shares of Common
Stock, par value $1.00 per share, of the Corporation (the "Shares") for use
under the Corporation's Employee Stock Purchase 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 when the
Shares have been duly delivered against payment therefor, as contemplated by the
Plan, the shares will be legally issued, fully paid and, except as may be
otherwise provided in Section 630 of the New York Business Corporation Law,
non-assessable.
I hereby consent to the filing of this Opinion as an exhibit to the
Registration Statement.
By:
ROGER A. KELLER
/s/ Roger A. Keller
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St. Louis, MO
November 15, 1999
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 Inc. Employee Stock Purchase 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
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St. Louis, Missouri
November 16, 1999
