As filed with the Securities and Exchange Commission on July 18, 1997
Registration Statement No. 333-30033
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________
MCDONNELL DOUGLAS CORPORATION
(Exact name of Registrant as specified in its charter),
Maryland No. 43-0400674
(State of incorporation) (I.R.S. Employer Identification No.)
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
F. Mark Kuhlmann
Senior Vice President and General Counsel
McDonnell Douglas Corporation
P.O. Box 516
Mailcode S1001240
St. Louis, Missouri 63166-0516
(314) 232-0232
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
____________
Copy to:
Howard L. Ellin Alan Dean
Skadden, Arps, Slate, Meagher & Flom LLP Davis Polk & Wardwell
919 Third Avenue 450 Lexington Avenue
New York, New York 10022 New York, New York 10017
(212) 735-2000 (212) 450-4000
___________
Approximate date of commencement of proposed sale to the public:
from time to time after the effective date of this Registration
Statement.
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, please 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
_____________________________________________________________________________
Proposed
Proposed Maximum
Maximum Aggregate
Amount Offering Offering Amount of
Title of Shares to To Be Price Per Price Registration
be Registered Registered Share (1) (1) Fee (1)
____________________________________________________________________________
McDonnell Douglas
Common Stock, par
value $1.00 per
share (including
the related Stock
Purchase Rights) 3,500,000 $68.625 $240,187,500 $72,784.10
___________________________________________________________________________
(1) Estimated solely for the purpose of calculating the registration
fee under Rule 457(c) upon the basis of the high and low prices
of shares of McDonnell Douglas Corporation Common Stock on the
New York Stock Exchange Composite Transactions Tape on June 23,
1997.
[FLAG]
Information contained in this prospectus supplement 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 any offer to buy be accepted prior
to the time the Registration Statement becomes effective. A final
prospectus supplement and prospectus will be delivered to purchasers of
these securities. This prospectus supplement 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.
PROSPECTUS SUPPLEMENT
(To Prospectus dated ______ __, 1997)
3,500,000 Shares
MCDONNELL DOUGLAS CORPORATION
Common Stock
(par value $1.00 per share)
All of the shares of Common Stock, par value $1.00 per share (the
"Common Stock"), offered hereby (the "Shares") are being sold by
McDonnell Douglas Corporation ("McDonnell Douglas" or the
"Company"). The Common Stock is traded on the New York Stock
Exchange, Inc. (the "NYSE") and the Pacific Stock Exchange (the
"PSE") under the symbol "MD". On ________ __, 1997, the last
reported sale price of the Common Stock, as reported on the NYSE
Composite Transactions Tape, was $[ ] per share.
McDonnell Douglas has entered into an Agreement and Plan of Merger
dated as of December 14, 1996 (the "Merger Agreement") among The
Boeing Company ("Boeing"), West Acquisition Corp., a wholly-owned
subsidiary of Boeing ("Sub"), and McDonnell Douglas, which provides
for the merger of Sub with and into McDonnell Douglas (the
"Merger"), with McDonnell Douglas surviving as a wholly-owned
subsidiary of Boeing. The closing of the sale of Shares offered
hereby is conditioned upon approval of the Merger by the
shareholders of McDonnell Douglas and approval of the issuance of
shares of common stock, par value $5.00 per share of Boeing
("Boeing Common Stock") pursuant to the Merger in accordance with
the terms of the Merger Agreement (the "Share Issuance") by the
shareholders of Boeing. In addition, the Shares offered hereby
will not be issued unless McDonnell Douglas believes that all of
the other conditions to the consummation of the Merger have been or
will be satisfied or waived (where permissible). Subject to the
terms and conditions of the Merger Agreement, each share of Common
Stock outstanding immediately prior to the effective time of the
Merger will be converted in the Merger into 1.3 shares of Boeing
Common Stock. Cash will be paid in lieu of any fractional shares
of Boeing Common Stock. See "THE MERGER" in the accompanying
Prospectus and Section 8, "THE MERGER" in the Joint Proxy
Statement/Prospectus incorporated by reference herein.
SEE "RISK FACTORS" ON PAGE S-2 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS IN THE SHARES.
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 SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
Proceeds to
Price to Underwriting McDonnell
Public Discount(1) Douglas(2)
Per Share . $_____ $_____ $_____
Total . . . . $_____ $_____ $_____
___________________
(1) McDonnell Douglas has agreed to indemnify the Underwriter
against certain liabilities including liabilities under the
Securities Act of 1933 (the "Securities Act"). See
"UNDERWRITING."
(2) Before deducting expenses payable by McDonnell Douglas,
estimated to be $ .
________________________
The shares of Common Stock offered hereby are offered by the
Underwriter, subject to prior sale, when, as and if delivered to
and accepted by the Underwriter. It is expected that delivery of
the Shares will be made against payment therefor on or about
_________ __, 1997 at the offices of J.P. Morgan Securities Inc.,
60 Wall Street, New York, New York.
J.P. MORGAN & CO.
, 1997
TABLE OF CONTENTS
PAGE
PROSPECTUS SUPPLEMENT
Merger Status . . . . . . . . . . . . . . . . . . . . . . . . . . S-2
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . S-2
Underwriting . . . . . . . . . . . . . . . . . . . . . . . . . . S-3
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . S-4
PROSPECTUS
Cautionary Statement . . . . . . . . . . . . . . . . . . . . . . . 2
Available Information . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents by Reference . . . . . . . . . . 3
McDonnell Douglas . . . . . . . . . . . . . . . . . . . . . . . . . 4
Boeing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Description of the Common Stock . . . . . . . . . . . . . . . . . . 6
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . 6
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE MARKET
PRICE OF THE COMMON STOCK. SPECIFICALLY, THE UNDERWRITER MAY OVER-
ALLOT IN CONNECTION WITH THE OFFERING, AND MAY BID FOR, AND PURCHASE,
SHARES OF THE COMMON STOCK IN THE OPEN MARKET. FOR A DESCRIPTION OF
SUCH ACTIVITIES, SEE "UNDERWRITING."
________________________
MERGER STATUS
McDonnell Douglas and Boeing have each scheduled special meetings of
their shareholders for July 25, 1997. At the respective shareholder
meetings, the McDonnell Douglas shareholders will vote on a proposal
to approve the Merger and the Boeing shareholders will vote on a
proposal to approve the Share Issuance. The closing of the sale of
the Shares offered hereby is conditioned upon approval of the Merger
by the shareholders of McDonnell Douglas and approval of the Share
Issuance by the shareholders of Boeing. In addition, the Shares
offered hereby will not be issued unless McDonnell Douglas believes
that all of the other conditions to the consummation of the Merger
have been or will be satisfied or waived (where permissible). See
Section 8, "THE MERGER" in the Joint Proxy Statement/Prospectus
incorporated by reference herein. While McDonnell Douglas believes
that all of the conditions to the consummation of the Merger have
been or will be satisfied or waived (where permissible), there can be
no assurance that the Merger will be approved by the shareholders of
McDonnell Douglas, that the Share Issuance will be approved by the
shareholders of Boeing or that the Merger will be consummated. If
the Merger were not to be consummated, the trading price of the
Common Stock would likely decline from current levels. See "RISK
FACTORS."
RISK FACTORS
CONSUMMATION OF THE MERGER. The offering being made hereby is not
conditioned on the consummation of the Merger. The obligations of
Boeing and McDonnell Douglas to effect the Merger are subject, among
other things, to the fulfillment of certain conditions, including
without limitation: (i) approval of the Merger by the requisite vote
of the shareholders of McDonnell Douglas and approval of the Share
Issuance by the requisite vote of the shareholders of Boeing; (ii)
there not having been issued or in effect any provision of any
applicable law or regulation or any executive order, decree, ruling
or injunction prohibiting the consummation of the Merger
substantially on the terms contemplated by the Merger Agreement;
(iii) the obtaining of all approvals required to be obtained by
McDonnell Douglas and Boeing, except where the failure to obtain such
approvals would not have a Material Adverse Effect (as defined in
Section 4.1 of the Merger Agreement) on Boeing or McDonnell Douglas,
as the case may be; (iv) the effectiveness of the registration
statement of Boeing on Form S-4 registering the shares of Boeing
Common Stock to be issued in the Merger and the absence of a stop
order suspending such effectiveness; (v) the listing on the NYSE,
subject only to official notice of issuance, of the shares of Boeing
Common Stock constituting the Share Issuance; (vi) each of Boeing and
McDonnell Douglas having received a letter of its independent
auditors, in form and substance reasonably satisfactory to it,
stating that they concur with management's conclusion that the Merger
will qualify as a transaction to be accounted for as a pooling of
interests; and (vii) McDonnell Douglas and Boeing having received an
opinion of Skadden, Arps, Slate, Meagher & Flom LLP and Cravath,
Swaine & Moore, respectively, relating to certain tax matters.
The approvals mentioned in (iii) above include a review under
European competition law by the Merger Task Force of the European
Commission. Pursuant to procedures and rules normally applicable,
review of the Merger by the European Commission must be completed on
or before July 31, 1997. In order to obtain European antitrust
clearance, Boeing and/or McDonnell Douglas may be required to make
certain concessions. See Section 5, "RISK FACTORS - Necessity of
Receiving Governmental and Regulatory Approvals Prior to the Merger;
Possible Divestitures and Operating Restrictions" and Section 8(m),
"THE MERGER - Governmental and Regulatory Approvals" in the Joint
Proxy Statement/Prospectus incorporated herein by reference. There
can be no assurances that such clearance will be obtained or
regarding the extent or scope of any concessions that may need to be
made.
There can be no assurance that the Merger will be consummated. If
the Merger is not consummated, purchasers of the Shares offered
hereby will remain holders of the Common Stock - a security with
investment characteristics that may be significantly different from
those of Boeing Common Stock. Among other things, the trading price
of the Common Stock would likely decline from current levels if the
Merger is not consummated. See Section 5, "RISK FACTORS" in the
Joint Proxy Statement/Prospectus incorporated by reference herein.
ADDITIONAL RISK FACTORS. For a discussion of additional risk factors
that should be considered by prospective investors in the Shares, see
Section 5, "Risk Factors" in the Joint Proxy Statement/Prospectus
incorporated by reference herein.
UNDERWRITING
Under the terms and subject to the conditions set forth in an
Underwriting Agreement (the "Underwriting Agreement") between
McDonnell Douglas and J.P. Morgan Securities Inc. ("J.P. Morgan" or
the "Underwriter"), McDonnell Douglas has agreed to sell to the
Underwriter, and the Underwriter has agreed to purchase, the Shares.
Under the terms and conditions of the Underwriting Agreement, the
Underwriter is obligated to take and pay for all the Shares, if any
are taken.
The Underwriter proposes initially to offer the Shares directly to
the public at the public offering price set forth on the cover page
of this Prospectus Supplement and to certain dealers at such price
less a concession of $____ per share. The Underwriter may allow, and
such dealers may reallow, a concession not in excess of $____ per
share to certain other dealers. After the Shares are released for
sale to the public, the offering price and such concessions may be
changed.
McDonnell Douglas has agreed to indemnify the Underwriter
against certain liabilities, including liabilities under the
Securities Act. Boeing has separately agreed to indemnify the
Underwriter against certain liabilities, including liabilities
under the Securities Act.
In connection with this offering, the Underwriter may engage in
transactions that stabilize, maintain or otherwise affect the price
of the Common Stock. Specifically, the Underwriter may over-allot in
connection with the offering, creating a short position. In
addition, the Underwriter may bid for, and purchase, shares of the
Common Stock in the open market to cover short positions or to
stabilize the price of the Common Stock. Finally, the Underwriter
may reclaim selling concessions allowed for distributing the Common
Stock in the offering, if the Underwriter repurchases previously
distributed Common Stock in transactions to cover short positions, in
stabilization transactions or otherwise. Any of these activities may
stabilize or maintain the market price of the Common Stock above
independent market levels. The Underwriter is not required to engage
in these activities, and may end any of these activities at any time.
J.P. Morgan was retained by McDonnell Douglas as financial advisor in
connection with the proposed Merger. For services rendered,
McDonnell Douglas has paid J.P. Morgan $2,400,000 and, upon
consummation of the Merger will pay J.P. Morgan an additional
$15,850,000. McDonnell Douglas has also agreed to reimburse J.P.
Morgan for its reasonable expenses incurred in connection with its
advisory services, including the fees and disbursements of outside
counsel and will indemnify J.P. Morgan against certain liabilities,
including liabilities arising under the federal securities laws. The
Underwriter has provided from time to time, and is expected to
provide in the future, investment banking and other financial
services to McDonnell Douglas and certain of its affiliates have
engaged and may in the future engage in commercial transactions in
the ordinary course of business with McDonnell Douglas. In the
ordinary course of business, affiliates of J.P. Morgan may actively
trade the debt and equity securities of McDonnell Douglas or Boeing
for their own accounts or for accounts of customers and, accordingly,
they may at any time hold long or short positions in such securities.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for
McDonnell Douglas by Ballard Spahr Andrews & Ingersoll, Baltimore,
Maryland. Certain legal matters will be passed upon for McDonnell
Douglas by F. Mark Kuhlmann, Senior Vice President and General
Counsel of McDonnell Douglas. Mr. Kuhlmann owns and has other
interests in shares of the Common Stock. See Section 8(i), "THE
MERGER -- Interests of Certain Persons in the Transaction" in the
Joint Proxy Statement/Prospectus incorporated by reference herein and
the section entitled "Ownership of MDC Stock" in the McDonnell
Douglas Proxy Statement incorporated by reference in the McDonnell
Douglas Annual Report on Form 10-K for the year ended December 31,
1996 incorporated by reference herein. Certain additional legal
matters will be passed upon for McDonnell Douglas by Skadden, Arps,
Slate, Meagher & Flom LLP, New York, New York. Certain other legal
matters will be passed upon by Theodore J. Collins, Senior Vice
President and General Counsel of Boeing. Skadden, Arps, Slate,
Meagher & Flom LLP and Mr. Kuhlmann will rely as to certain matters
of Maryland law on the opinion of Ballard Spahr Andrews & Ingersoll
and Mr. Collins may rely as to certain matters on the opinion of other
counsel.
[FLAG]
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 July __,1997
PROSPECTUS
3,500,000 Shares
MCDONNELL DOUGLAS CORPORATION
Common Stock
(par value $1.00 per share)
This Prospectus relates to 3,500,000 shares (the "Shares") of
Common Stock, par value $1.00 per share ("Common Stock"), of
McDonnell Douglas Corporation ("McDonnell Douglas" or the
"Company"), which may be offered by McDonnell Douglas from time
to time.
The Shares will be sold through underwriters, brokers, dealers,
or agents or directly by McDonnell Douglas. At the time any
particular offer of Shares is made, if and to the extent
required, the specific number of Shares offered, the offering
price, and the other terms of the offering, including the names
of any underwriters, brokers, dealers or agents involved in the
offering and the compensation, if any, of such underwriters,
brokers, dealers or agents will be set forth in a supplement to
this Prospectus (a "Prospectus Supplement"). The net proceeds to
McDonnell Douglas from such sale will also be set forth in the
applicable Prospectus Supplement. Any statement contained in
this Prospectus will be deemed to be modified or superseded by
any inconsistent statement contained in any Prospectus Supplement
delivered herewith.
The Shares are listed on the New York Stock Exchange, Inc. (the
"NYSE") and the Pacific Stock Exchange ("PSE") under the trading
symbol "MD."
This Prospectus may not be used to consummate sales of Shares
unless accompanied by a Prospectus Supplement.
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.
_______________
The date of this Prospectus is _________ __, 1997
CAUTIONARY STATEMENT
When used in this Prospectus or the documents incorporated by
reference herein with respect to McDonnell Douglas, the words
"estimate," "project," "intend," "expect," "would likely" and
similar expressions are intended to identify forward-looking
statements. Readers are cautioned not to place undue reliance on
these forward-looking statements, which speak only as of the date
of this Prospectus. Such statements are subject to risks and
uncertainties that could cause actual results to differ
materially from those contemplated in such forward-looking
statements. Such risks and uncertainties include those risks,
uncertainties and risk factors identified under the heading
"Forward-Looking Information Is Subject to Risk and Uncertainty"
accompanying "Management's Discussion and Analysis of Financial
Condition and Results of Operations" that is in the McDonnell
Douglas 1996 Annual Report to shareholders and that is
incorporated by reference in the McDonnell Douglas Annual Report
on Form 10-K for the fiscal year ended December 31, 1996 and
those risks, uncertainties and risk factors identified in the
McDonnell Douglas Current Report on Form 8-K filed with the
Securities and Exchange Commission (the "Commission") on April
17, 1996. McDonnell Douglas does not undertake any obligation to
publicly release any revisions to these forward-looking
statements to reflect events or circumstances after the date
hereof or to reflect the occurrence of unanticipated events.
When used in this Prospectus or the documents incorporated by
reference herein with respect to The Boeing Company ("Boeing"),
the words "estimate," "project," "intend," "expect," "would
likely" and similar expressions are intended to identify forward-
looking statements. Readers are cautioned not to place undue
reliance on these forward-looking statements, which speak only as
of the date of this Prospectus. Such statements are subject to
risks and uncertainties that could cause actual results to differ
materially from those contemplated in such forward-looking
statements. Such risks and uncertainties include those risks,
uncertainties and risk factors identified under the heading
"Forward-Looking Information Is Subject to Risk and Uncertainty"
accompanying "Management's Discussion and Analysis of Results of
Operations, Financial Condition and Business Environment" that is
in the Boeing 1996 Annual Report to shareholders and that is
incorporated by reference in the Boeing Annual Report on Form 10-
K for the fiscal year ended December 31, 1996. Boeing does not
undertake any obligation to publicly release any revisions to
these forward-looking statements to reflect events or
circumstances after the date hereof or to reflect the occurrence
of unanticipated events.
AVAILABLE INFORMATION
McDonnell Douglas 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 Commission. Such
reports, proxy statements and other information may be inspected
and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the following Regional Offices of
the Commission: Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661; and 7 World Trade Center, Suite
1300, New York, New York 10048. Copies of such material may also
be obtained from the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington D.C. 20549, at prescribed
rates. The Commission also maintains a World Wide Web site that
contains reports, proxy and information statements, and other
information regarding registrants (including McDonnell Douglas)
that file electronically with the Commission
(http://www.sec.gov). The Common Stock is listed on the NYSE and
the PSE and reports, proxy statements and other information
relating to McDonnell Douglas can be inspected at the NYSE, 20
Broad Street, New York, New York 10005 or the PSE, 301 Pine
Street, San Francisco, California 94104.
McDonnell Douglas has filed with the Commission a Registration
Statement on Form S-3 (herein, together with all amendments and
exhibits, referred to as the "Registration Statement") under the
Securities Act of 1933 (the "Securities Act"), relating to the
Shares. This Prospectus does not contain all of the information
set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the
Commission. The Registration Statement and any amendments
thereto, including exhibits filed as a part thereof, are
available for inspection and copying as set forth above.
Boeing is subject to the informational requirements of the
Exchange Act and in accordance therewith files reports, proxy
statements and other information with the Commission. Such
reports, proxy statements and other information may be inspected
and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the following Regional Offices of
the Commission: Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661; and 7 World Trade Center, Suite
1300, New York, New York 10048. Copies of such material may also
be obtained from the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Commission also maintains a World Wide Web site that
contains reports, proxy and information statements, and other
information regarding registrants (including Boeing) that file
electronically with the Commission (http://www.sec.gov). The
common stock, par value $5.00 per share of Boeing ("Boeing Common
Stock") is listed on the NYSE and reports, proxy statements and
other information relating to Boeing can be inspected at the
NYSE, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by McDonnell Douglas or
Boeing with the Commission pursuant to the Exchange Act are
incorporated by reference in this Prospectus:
(1) the Boeing and McDonnell Douglas Joint Proxy
Statement/Prospectus dated June 20, 1997 (the "Joint Proxy
Statement/Prospectus") (other than the information contained
under the captions "BOEING SPECIAL MEETING" and "MCDONNELL
DOUGLAS SPECIAL MEETING");
(2) the McDonnell Douglas Proxy Statement on Schedule 14A
dated March 17, 1997 (File No. 1-3685);
(3) the McDonnell Douglas Annual Report on Form 10-K for
the year ended December 31, 1996 (File No. 1-3685);
(4) the McDonnell Douglas Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997 (File No. 1-3685);
(5) the McDonnell Douglas Current Reports on Form 8-K dated
July 3, 1997 (File No. 1-3685) and July 17, 1997 (File No. 1-
3685);
(6) the description of the Common Stock contained in
McDonnell Douglas' Registration Statement on Form 10 filed under
the Exchange Act, as amended under cover of Form 8 on March 10,
1981 (File No. 1-3685), and as supplemented by the description of
such Common Stock contained under the following captions: (i)
"Proposal to Amend MDC's Charter" in the McDonnell Douglas proxy
statement dated March 20, 1984, (ii) "Proposal to Amend
Indemnification Bylaw" in the McDonnell Douglas proxy statement
dated March 20, 1985, (iii) "Proposal to Amend Article Fifth of
MDC's Charter to Classify the Board of Directors with Staggered
Terms of Office and Certain Other Matters" in the McDonnell
Douglas proxy statement dated March 24, 1986, (iv) "Amendment of
MDC's Charter to Reduce the Shareholder Vote Required for Certain
Amendments to the Charter from Two-Thirds Majority to a Majority
of the Outstanding Shares Entitled to Vote" in the McDonnell
Douglas proxy statement dated March 17, 1987, and (v) "Amendment
of MDC's Charter to Limit Directors' and Officers' Liability" in
the McDonnell Douglas proxy statement dated March 21, 1988;
(7) the description of the McDonnell Douglas Preferred
Stock Purchase Rights contained in the McDonnell Douglas
Registration Statement on Form 8-A filed under the Exchange Act
on August 6, 1990 (File No. 1-10592), as supplemented by the
description of the Amended and Restated Rights Agreement in the
McDonnell Douglas Current Report on Form 8-K filed with the
Commission on June 3, 1996;
(8) the Boeing Proxy Statement on Schedule 14A dated March
10, 1997 (File No. 1-442);
(9) the Boeing Annual Report on Form 10-K for the year
ended December 31, 1996 (File No. 1-442);
(10) the Boeing Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997 (File No. 1-442);
(11) the Boeing Current Report on Form 8-K dated July 1,
1997 (File No. 1-442);
(12) the Boeing Registration Statement on Form 10
(Registration No. 1-442) with respect to Boeing Common Stock and
filed with the Commission on April 20, 1935, under Section 12(b)
of the Exchange Act, including any amendments or reports filed
for the purpose of updating such registration; and
(13) the description of the rights to purchase shares of
Boeing's Series A Junior Participating Preferred Stock, without
par value, contained in the Boeing Registration Statement on Form
8-A dated July 30, 1987 (File No. 1-442). Boeing's stockholder
rights plan (the "Boeing Rights Plan") expires on August 7, 1997,
and the Board of Directors of Boeing has stated that it currently
intends to permit the Boeing Rights Plan to expire in accordance
with its terms and not to replace it.
All documents filed by McDonnell Douglas and Boeing pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of this Prospectus and prior to the termination of
the offering of the Shares hereunder shall be deemed to be
incorporated by reference herein and to be part hereof from the
date of the filing of 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 the purposes of this Prospectus to the
extent that a statement contained herein (or in an applicable
Prospectus Supplement) 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
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
Prospectus or any Prospectus Supplement. All information
appearing in this Prospectus is qualified in its entirety by the
information and financial statements (including notes thereto)
appearing in the documents incorporated herein by reference,
except to the extent set forth in the immediately preceding
statement.
McDonnell Douglas and Boeing will provide a copy of any or all
documents which have been or may be incorporated by reference in
this Prospectus (exclusive of exhibits unless such exhibits are
specifically incorporated by reference therein) without charge to
each person to whom this Prospectus is delivered, upon written or
oral request to, in the case of documents relating to McDonnell
Douglas, McDonnell Douglas Corporation, Attn: Shareholder
Services, Mail Code S1001240, P.O. Box 516, St. Louis, Missouri
63166-0516, telephone (314) 232-6283 and, in the case of
documents relating to Boeing, Data Shipping Department, The
Boeing Company, P.O. Box 3707, Mail Stop 3T-33, Seattle,
Washington 98124-2207, telephone (206) 393-4964.
MCDONNELL DOUGLAS
McDonnell Douglas is principally engaged in the research,
development and manufacturing of aerospace, commercial and
military avionics, and defense electronics products. McDonnell
Douglas, its divisions and its subsidiaries operate principally
in four industry segments: military aircraft; missiles, space,
and electronic systems; commercial aircraft; and financial
services and other. The military aircraft segment accounted for
57%, the missiles, space, and electronic systems segment 16%, the
commercial aircraft segment 24%, and the financial services and
other segment 3%, in each case, of operating revenues for the
year ended December 31, 1996. Operations in the first two
industry segments are conducted primarily by McDonnell Douglas
Aerospace and by Military Transport Aircraft, unincorporated
operating divisions of McDonnell Douglas, which are engaged in
design, development, production, and support of military
transport aircraft, attack and fighter aircraft and training
systems, military and commercial helicopters and ordnance,
tactical missiles, satellite launching vehicles, space station
design and development and space station shuttle payload
integration, and defense electronic components and systems.
Operations in the commercial aircraft segment are conducted by
Douglas Aircraft Company ("DAC"), an unincorporated operating
division of McDonnell Douglas, which designs, develops, produces,
modifies and sells commercial transport aircraft and related
spare parts and support services. Through its McDonnell Douglas
Financial Services Corporation subsidiary, McDonnell Douglas is
engaged in aircraft financing and commercial equipment leasing.
McDonnell Douglas' subsidiary, McDonnell Douglas Realty Company,
is a full-service developer and property manager in the
commercial real estate market as well as for McDonnell Douglas'
aerospace business. The mailing address of the principal
executive offices of McDonnell Douglas is Post Office Box 516,
St. Louis, Missouri, 63166-0516; its telephone number is (314)
232-0232. McDonnell Douglas was incorporated in Maryland in 1939
under the name McDonnell Aircraft Corporation. On April 19,
1967, its shareholders approved the merger with DAC and the name
of the corporation was changed to McDonnell Douglas Corporation.
BOEING
Boeing is one of the world's major aerospace firms. Boeing
operates in two principal industries: commercial aircraft, and
defense and space. Commercial aircraft operations -- conducted
through Boeing Commercial Airplane Group -- involve development,
production and marketing of commercial jet aircraft and providing
related support services to the commercial airline industry
worldwide. Defense and space operations -- conducted through
Boeing Defense & Space Group --- involve research, development,
production, modification and support of military aircraft and
helicopters and related systems, space and missile systems,
rocket engines, and information services, primarily through U.S.
government contracts. Approximately 75% of Boeing's 1996
revenues were attributable to the commercial aircraft segment,
and 25% were attributable to the defense and space segment. The
mailing address and telephone number of the principal executive
offices of Boeing are 7755 East Marginal Way South, Seattle,
Washington 98108 and (206) 655-2121. Boeing was originally
incorporated in Washington in 1916 and was reincorporated in
Delaware in 1934.
THE MERGER
McDonnell Douglas has entered into an Agreement and Plan of
Merger dated as of December 14, 1996 (the "Merger Agreement")
among Boeing, West Acquisition Corp., a wholly-owned subsidiary
of Boeing ("Sub"), and McDonnell Douglas, which provides for the
merger of Sub with and into McDonnell Douglas (the "Merger"),
with McDonnell Douglas surviving as a wholly-owned subsidiary of
Boeing. The closing of the sale of Shares offered hereby is
conditioned upon approval of the Merger by the shareholders of
McDonnell Douglas and approval of the issuance of Boeing common
stock by the shareholders of Boeing. In addition, the Shares
offered hereby will not be issued unless McDonnell Douglas
believes that all of the other conditions to the consummation of
the Merger have been or will be satisfied or waived (where
permissible). If, however, the Merger is not consummated,
purchasers of the Shares offered hereby will remain holders of
the Common Stock. The Shares offered hereby will be issued after
the record date for determining the holders of shares of Common
Stock entitled to vote at the special meeting of McDonnell
Douglas shareholders called to approve the Merger. As a result,
the Shares offered hereby will not be entitled to vote at the
special meeting. Subject to the terms and conditions of the
Merger Agreement, each share of Common Stock outstanding
immediately prior to the effective time of the Merger will be
converted in the Merger into 1.3 shares of Boeing Common Stock.
Cash will be paid in lieu of any fractional share of Boeing
Common Stock. See Section 8, "THE MERGER" in the Joint Proxy
Statement/Prospectus incorporated by reference herein.
Subject to shareholder approval and the other conditions
specified in the Merger Agreement, it is currently anticipated
that the Merger will be consummated on August 1, 1997. Either
Boeing or McDonnell Douglas may terminate the Merger Agreement if
the Merger shall not have been consummated on or before
December 31, 1997.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus
Supplement, McDonnell Douglas intends to use the net proceeds
from the sale of the Shares for general corporate purposes. If
the Merger is consummated, the net proceeds from the sale of the
Shares may be used for general corporate purposes of Boeing. The
principal reason for the offering is to facilitate the treatment
of the Merger as a pooling of interests.
DESCRIPTION OF THE COMMON STOCK
The description of the Common Stock set forth below does not
purport to be complete and is qualified in its entirety by
reference to McDonnell Douglas' Articles of Amendment and
Restatement of the Charter of McDonnell Douglas (the "McDonnell
Douglas Charter").
McDonnell Douglas is authorized to issue 10,000,000 shares of
Preferred Stock, par value $1.00 per share (the "Preferred
Stock"), 1,000,000 shares of which are classified as Series A
Junior Participating Preferred Stock, and 400,000,000 shares of
the Common Stock.
The McDonnell Douglas Board of Directors (the "Board of
Directors") may provide for the issuance of Preferred Stock in
one or more series and, to the extent permitted by law, may
establish different preferences, rights, restrictions (including
restrictions on transferability) and qualification for each
series.
No shares of Preferred Stock are issued and outstanding. The
1,000,000 shares of Series A Junior Participating Preferred Stock
are reserved for issuance upon exercise of the preferred stock
purchase rights (the "Rights") issued pursuant to the Rights
Agreement dated as of August 2, 1990, amended as of January 3,
1995 and amended and restated as of May 31, 1996 (the "Rights
Agreement"), between McDonnell Douglas and First Chicago Trust
Company of New York. The Shares will have Rights attached
thereto. However, McDonnell Douglas has agreed in the Merger
Agreement that it will amend the Rights Agreement such that the
"Final Expiration Date" (as defined in the Rights Agreement)
shall occur immediately prior to the consummation of the Merger.
The Common Stock (i) subject to the preferences and rights of the
Preferred Stock, is entitled to dividends and other distributions
authorized thereon by the Board of Directors, (ii) is entitled to
receive any balance remaining in case of dissolution, liquidation
or winding up of McDonnell Douglas after satisfying the prior
rights of creditors and all series of Preferred Stock, and (iii)
is entitled to the exclusive voting power for the election of
directors and for all other corporate purposes, except as the
Board of Directors may have established in respect of one or more
series of Preferred Stock at the time outstanding. The Board of
Directors is divided into three classes, each of which is
composed as nearly as possible of one-third of the directors.
Holders of the Common Stock (i) are entitled to one vote per
share on all matters submitted to a vote of shareholders and (ii)
have no preemptive rights or cumulative voting rights. See
Section 12, "COMPARISON OF THE RIGHTS OF HOLDERS OF BOEING COMMON
STOCK AND MCDONNELL DOUGLAS COMMON STOCK" in the Joint Proxy
Statement/Prospectus incorporated by reference herein.
PLAN OF DISTRIBUTION
McDonnell Douglas may sell the Shares being offered hereby, to or
through underwriters or dealers, directly to other purchasers, or
through agents. The Prospectus Supplement with respect to the
Shares will set forth the terms of the offering of the Shares,
including the name or names of any underwriters, dealers or
agents, the price of the offered Shares and the net proceeds to
McDonnell Douglas from such sale, any underwriting discounts or
other items constituting underwriters' compensation, any
discounts or concessions allowed or reallowed or paid to dealers
and any securities exchanges on which the Shares may be listed.
If underwriters are used in the sale, the Shares will be acquired
by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated
transactions, at a fixed public price or at varying prices
determined at the time of sale. The underwriter or underwriters
with respect to a particular underwritten offering of Shares will
be named in the Prospectus Supplement relating to such offering,
and if an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover of
such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement, the obligations of the underwriters or
agents to purchase the Shares will be subject to certain
conditions precedent and the underwriters will be obligated to
purchase all the Shares if any are purchased. Any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If a dealer is utilized in the sale of any Shares in respect of
which this Prospectus is delivered, McDonnell Douglas will sell
such Shares to the dealer, as principal. The dealer may then
resell such Shares to the public at varying prices to be
determined by such dealer at the time of resale. The name of the
dealer and the terms of the transaction will be set forth in the
Prospectus Supplement relating thereto.
Shares may be sold directly by McDonnell Douglas to one or more
institutional purchasers, or through agents designated by
McDonnell Douglas from time to time, at a fixed price, or prices,
which may be changed, or at varying prices determined at time of
sale. Any agent involved in the offer or sale of the Shares will
be named, and any commissions payable by McDonnell Douglas to
such agent will be set forth, in the Prospectus Supplement
relating thereto. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment.
In connection with the sale of the Shares, underwriters, agents
or dealers may receive compensation from McDonnell Douglas or
from purchasers of Shares for whom they may act as agents in the
form of discounts, concessions, or commissions. Underwriters,
agents, and dealers participating in the distribution of the
Shares may be deemed to be underwriters, and any discounts or
commissions received by them from McDonnell Douglas and any
profit on the resale of the Shares by them may be deemed to be
underwriting discounts or commissions under the Securities Act.
Agents, dealers, and underwriters may be entitled under
agreements entered into with McDonnell Douglas to indemnification
by McDonnell Douglas against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with
respect to payments that such agents, dealers, or underwriters
may be required to make with respect thereto. Underwriters,
dealers, or agents and their associates may be customers of,
engage in transactions with and perform services for, McDonnell
Douglas in the ordinary course of business.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for
McDonnell Douglas by Ballard Spahr Andrews & Ingersoll,
Baltimore, Maryland.
EXPERTS
The consolidated financial statements and related financial
statement schedule incorporated in this Registration Statement by
reference to The Boeing Company Annual Report on Form 10-K for
the year ended December 31, 1996 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports,
which are also incorporated by reference herein and have been
incorporated by reference in the Registration Statement in
reliance upon the reports of such firm given upon their authority
as experts in accounting and auditing.
The consolidated financial statements and schedule of McDonnell
Douglas incorporated by reference in McDonnell Douglas' Annual
Report on Form 10-K for the year ended December 31, 1996 have
been audited by Ernst & Young LLP, independent auditors, as set
forth in their report incorporated therein by reference 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.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses to be incurred in connection
with the issuance and distribution of the Common Stock covered by
this Registration Statement are as follows:
Securities and Exchange Commission
registration fee (actual) . . . . . $72,784
Legal fees and expenses . . . . . . . $50,000
Accountants' fees and expenses . . . . $10,000
Miscellaneous . . . . . . . . . . . $10,000
Total . . . . . . . . . . . $142,784
Item 15. Indemnification of Directors and Officers.
Section 2-418 of the Maryland General Corporation Law
(the "MGCL") requires a Maryland corporation (unless its charter
provides otherwise, which McDonnell Douglas' charter does not) to
indemnify an officer or director who has been successful, on the
merits or otherwise, in the defense of any proceeding to which he
is made a party by reason of his service in that capacity.
Section 2-418 permits a Maryland corporation to indemnify its
present and former officers and directors, among others, against
judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to
which they may be made a party by reason of their service in
those or other capacities unless it is established that (i) the
act or omission of the officer or director was material to the
matters giving rise to the proceeding and either was committed in
bad faith or was the result of active and deliberate dishonesty;
(ii) the officer or director actually received an improper
personal benefit in money, property or services; or (iii) in the
case of any criminal proceeding, the officer or director had
reasonable cause to believe that the act or omission was
unlawful. However, if the proceeding is one by or in the right
of the corporation or if the proceeding results in a judgment of
liability based on the improper receipt of a personal benefit,
indemnification may not be made in respect of any proceeding in
which the officer or director shall have been adjudged liable to
the corporation unless ordered by a court and then only for
expenses. In addition, the MGCL permits a corporation to advance
reasonable expenses to a director or officer upon the
corporation's receipt of (a) a written affirmation by the
director or officer of his good faith belief that he has met the
standard of conduct necessary for indemnification by the
corporation and (b) a written statement by or on his behalf to
repay the amount paid or reimbursed by the corporation if it
shall ultimately be determined that the standard of conduct was
not met.
Whether an officer or a director has met the required
standard of conduct must be determined by a majority vote of a
quorum consisting of directors not parties to the proceeding, or,
in the absence of such a quorum, by a majority vote of a
committee of directors not parties to the proceeding, or by
special legal counsel selected by majority vote of a quorum of
directors not parties to the proceeding or a committee of
directors not parties to the proceeding, or by the shareholders
of the corporation. The termination of a proceeding by judgment,
order or settlement does not create a presumption that the
officer or director did not meet the requisite standard of
conduct. The termination of a proceeding by conviction, or a
plea of nolo contendere or its equivalent, or any entry of an
order of probation prior to judgment creates a rebuttable
presumption that the officer or director did not meet the
requisite standard of conduct.
The McDonnell Douglas Bylaws provide that McDonnell
Douglas shall indemnify, and advance expenses to, former and
current directors in connection with any threatened, pending or
completed action, suit or proceeding arising out of such person's
service to McDonnell Douglas except with respect to any action,
suit or proceeding brought by such person against McDonnell
Douglas or to the extent such indemnification is expressly
prohibited by the MGCL. The McDonnell Douglas Bylaws further
provide that McDonnell Douglas shall provide indemnification as
required by law and may, as authorized at any time by general or
specific action of the Board of Directors, provide further
indemnification and advance expenses, to officers and other
persons who serve or have served McDonnell Douglas in connection
with any threatened, pending or completed action, suit or
proceeding arising out of such persons' service to McDonnell
Douglas except with respect to any action, suit or proceeding
brought by such person against McDonnell Douglas or to the extent
such indemnification is expressly prohibited by the MGCL.
Moreover, certain directors and officers of McDonnell
Douglas have indemnification agreements with McDonnell Douglas
("Indemnification Agreements"), which provide in substance that,
subject to the provisions of the MGCL, McDonnell Douglas will
indemnify, and advance expenses to, such directors and officers
if, by reason of their status as a director or officer of
McDonnell Douglas, they are made a party to any threatened or
pending proceeding. The respective Indemnification Agreements
and the obligations contained therein shall continue in effect
during each director's tenure as a member of the Board of
Directors or officer's employment period and shall continue
thereafter so long as such director or officer shall be subject
to such proceedings.
As authorized by Section 2-418 of the MGCL and by a
resolution of the Board of Directors, McDonnell Douglas has
purchased and maintains at its expense, on behalf of directors
and officers, insurance, within certain limits, covering
liabilities which may be incurred by them in such capacities.
Boeing and Sub have agreed that all rights to
exculpation and indemnification for acts or omissions occurring
prior to the effective time of the Merger now existing in favor
of the current or former directors or officers (the "Indemnified
Parties") of McDonnell Douglas as provided in its charter or
Bylaws or in any agreement will survive the Merger and shall
continue in full force and effect in accordance with their terms.
Boeing has agreed that, for six years from the Effective Time, it
will indemnify the Indemnified Parties to the same extent as such
Indemnified Parties are entitled to indemnification pursuant to
the preceding sentence.
Boeing has also agreed that, for six years from the effective
time of the Merger, it will maintain in effect McDonnell Douglas'
current directors' and officers' liability insurance covering
those persons who are currently covered by McDonnell Douglas'
directors' and officers' liability insurance policy; provided,
however, that in no event will Boeing be required to expend in
any one year an amount in excess of 200% of the annual premiums
currently paid by McDonnell Douglas for such insurance; and
provided further, however, that if the annual premiums of such
insurance coverage exceed such amount, Boeing will be obligated
to obtain a policy with the greatest coverage available for a
cost not exceeding such amount.
Item 16. List of Exhibits.
1* Form of Underwriting Agreement.
2 Agreement and Plan of Merger among The Boeing
Company, West Acquisition Corp. and McDonnell
Douglas Corporation, dated as of December 14, 1996
(incorporated by reference to Exhibit 2 to
McDonnell Douglas' Annual Report on Form 10-K for
the year ended December 31, 1996)
4(a) Articles of Amendment and Restatement of McDonnell
Douglas' Charter, as filed May 8, 1996
(incorporated by reference to Exhibit 3(a) to
McDonnell Douglas' Quarterly Report on Form 10-Q
for the quarterly period ended September 30, 1996)
4(b) Bylaws of McDonnell Douglas, as amended October
25, 1996 (incorporated by reference to Exhibit
3(b) to McDonnell Douglas' Quarterly Report on
Form 10-Q for the quarterly period ended September
30, 1996)
4(c) Amended and Restated Rights Agreement, dated as of
May 31, 1996 between McDonnell Douglas Corporation
and First Chicago Trust Company of New York, which
includes the form of Articles Supplementary for
Series A Junior Participating Preferred Stock as
Exhibit A, the form of Right Certificate as
Exhibit B and the Summary of Preferred Stock
Purchase Rights as Exhibit C (incorporated by
reference to Exhibit 4 to McDonnell Douglas'
Current Report on Form 8-K, filed with the
Commission on June 3, 1996).
5* Opinion of Ballard Spahr Andrews & Ingersoll as to
the validity of the Shares
23(a) Consent of Ernst & Young LLP, Independent
Auditors
23(b) Consent of Deloitte & Touche LLP, Independent
Auditors
23(c)* Consent of Ballard Spahr Andrews & Ingersoll
(included as part of Exhibit 5)
24 Power of Attorney, from each of the following
persons, authorizing each of F. Mark Kuhlmann and
Steven N. Frank to sign McDonnell Douglas'
Registration Statement on Form S-3 as their
attorney-in-fact: Harry C. Stonecipher, James F.
Palmer, Mark N. Schroeder, John H. Biggs, B.A.
Bridgewater, Jr., Beverly B. Byron, William E.
Cornelius, William H. Danforth, M.D., Kenneth M.
Duberstein, James S. McDonnell, III, John F.
McDonnell, George A. Schaefer, Ronald L. Thompson,
and P. Roy Vagelos, M.D.
___________
*Filed herewith.
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;
(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. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(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 (l)(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 with or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) that, for purposes of determining any
liability under the Securities Act, each 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) 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.
(4) that, for purposes of determining any
liability under the Securities Act, each filing of the
Registrant's annual reports pursuant to Section 13(a)
or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
(5) that, for purposes of determining any liability
under the Securities Act, the information omitted from the
form of prospectus filed as part of this Registration
Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this Registration Statement as of the
time it was declared effective.
(6) that, for the purpose of determining any liability
under the Securities Act, each post-effective amendment that
contains a form of prospectus 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 liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
provisions described above in Item 15, or otherwise, the
Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the
Securities 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 Securities Act and will be governed by the final adjudication
of such issue.
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 Amendment to the Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the County of St. Louis and State
of Missouri on the 18th day of July, 1997.
MCDONNELL DOUGLAS CORPORATION
By: /s/ F. Mark Kuhlmann
F. Mark Kuhlmann
Senior Vice President and General Counsel
Pursuant to the requirements of the Securities Act of
1933, this Amendment to the Registration Statement has been
signed below by the following persons on July 18, 1997 in the
capacities indicated:
Signature Title
*
__________________________ President and Chief Executive
Harry C. Stonecipher Officer (principal executive
officer) and Director
*
__________________________ Senior Vice President and Chief
James F. Palmer Financial Officer (principal
financial officer)
*
__________________________ Vice President and Controller
Mark N. Schroeder (principal accounting officer)
*
___________________________ Director
John H. Biggs
*
___________________________ Director
B.A. Bridgewater, Jr.
*
___________________________ Director
Beverly B. Byron
*
___________________________ Director
William E. Cornelius
*
___________________________ Director
William H. Danforth, M.D.
*
___________________________ Director
Kenneth M. Duberstein
__________________________ Director
William S. Kanaga
*
__________________________ Director
James S. McDonnell, III
*
__________________________ Director, Chairman of the Board
John F. McDonnell
*
__________________________ Director
George A. Schaefer
*
__________________________ Director
Ronald L. Thompson
*
__________________________ Director
P. Roy Vagelos, M.D.
* F. Mark Kuhlmann, by signing his name hereto, does hereby
execute this Amendment to the Registration Statement on behalf of
the directors and officers of the Registrant indicated above by
asterisks, pursuant to powers of attorney duly executed by such
directors and officers and filed as an exhibit to the
Registration Statement.
By: /s/ F. Mark Kuhlmann
___________________________
F. Mark Kuhlmann
Attorney-in-fact
EXHIBIT INDEX
Exhibits
1* Form of Underwriting Agreement.
2 Agreement and Plan of Merger among The
Boeing Company, West Acquisition Corp. and
McDonnell Douglas Corporation, dated as of
December 14, 1996 (incorporated by
reference to Exhibit 2 to McDonnell
Douglas' Annual Report on Form 10-K for
the year ended December 31, 1996)
4(a) Articles of Amendment and Restatement of
McDonnell Douglas' Charter, as filed May
8, 1996 (incorporated by reference to
Exhibit 3(a) to McDonnell Douglas'
Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1996)
4(b) Bylaws of McDonnell Douglas, as amended
October 25, 1996 (incorporated by
reference to Exhibit 3(b) to McDonnell
Douglas' Quarterly Report on Form 10-Q for
the quarterly period ended September 30,
1996)
4(c) Amended and Restated Rights Agreement,
dated as of May 31, 1996 between McDonnell
Douglas Corporation and First Chicago
Trust Company of New York, which includes
the form of Articles Supplementary for
Series A Junior Participating Preferred
Stock as Exhibit A, the form of Right
Certificate as Exhibit B and the Summary
of Preferred Stock Purchase Rights as
Exhibit C (incorporated by reference to
Exhibit 4 to McDonnell Douglas' Current
Report on Form 8-K, filed with the
Commission on June 3, 1996).
5* Opinion of Ballard Spahr Andrews &
Ingersoll as to the validity of the Shares
23(a) Consent of Ernst & Young LLP, Independent
Auditors
23(b) Consent of Deloitte & Touche LLP,
Independent Auditors
23(c)* Consent of Ballard Spahr Andrews &
Ingersoll (included as part of Exhibit 5)
24 Power of Attorney, from each of the
following persons, authorizing each of F.
Mark Kuhlmann and Steven N. Frank to sign
McDonnell Douglas' Registration Statement
on Form S-3 as their attorney-in-fact:
Harry C. Stonecipher, James F. Palmer,
Mark N. Schroeder, John H. Biggs, B.A.
Bridgewater, Jr., Beverly B. Byron,
William E. Cornelius, William H. Danforth,
M.D., Kenneth M. Duberstein, James S.
McDonnell, III, John F. McDonnell, George
A. Schaefer, Ronald L. Thompson, and P.
Roy Vagelos, M.D.
__________
*Filed herewith.
EXHIBIT 1
McDonnell Douglas Corporation
3,500,000 Shares
Common Stock, par value $1.00 per share
Underwriting Agreement
July __, 1997
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
McDonnell Douglas Corporation, a Maryland corporation (the
"Company"), proposes to issue and sell to you (the "Underwriter")
3,500,000 shares of Common Stock, par value $1.00 per share, of the
Company (the "Shares"). The shares of Common Stock of the Company to
be outstanding after giving effect to the sale of the Shares are
herein referred to as the "Stock". The Stock, including the Shares,
will have attached thereto rights (the "Rights") issued pursuant to a
Rights Agreement (the "Rights Agreement") amended and restated as of
May 31, 1996 between the Company and First Chicago Trust Company of
New York.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the
"Securities Act"), a registration statement on Form S-3, including a
prospectus, relating to 3,500,000 shares of Common Stock, par value
$1.00 per share, of the Company, and related Rights (the "Shelf
Securities"), to be issued from time to time by the Company and shall
promptly hereafter file with the Commission pursuant to Rule 424 under
the Securities Act a prospectus supplement specifically relating to
the Shares. The registration statement as amended to the date of this
Agreement, including information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule
430A under the Securities Act, is referred to in this Agreement as the
"Registration Statement". The term "Basic Prospectus" means the
related prospectus covering the Shelf Securities in the form first
used to confirm sales of the Shares. The term "Prospectus" means the
Basic Prospectus as supplemented by the prospectus supplement
specifically relating to the Shares in the form first used to confirm
sales of the Shares (the "Prospectus Supplement"). The term
"preliminary prospectus" means any preliminary form of the Prospectus.
If the Company has filed an abbreviated registration statement
pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of the Basic Prospectus, such
preliminary prospectus or the Prospectus, as the case may be and any
reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") that are deemed to be
incorporated by reference therein.
The Company has entered into an Agreement and Plan of Merger
dated as of December 14, 1996 (the "Merger Agreement") among The
Boeing Company, a Delaware corporation ("Boeing"), West Acquisition
Corp., a Maryland corporation and a wholly-owned subsidiary of Boeing
("Sub"), and the Company, which provides for the merger of Sub with
and into the Company (the "Merger") with the Company surviving as a
wholly-owned subsidiary of Boeing. Subject to the terms and conditions
of the Merger Agreement, each share of Stock outstanding immediately
prior to the effective time of the Merger will be converted into 1.3
shares of Common Stock, par value $5.00 per share, of Boeing ("Boeing
Stock"). If the Merger is consummated prior to the expiration of the
stockholder rights plan of Boeing (the "Boeing Rights Plan"), subject
to the terms and conditions of the Merger Agreement, each share of
Boeing Stock issued in respect of Stock outstanding immediately prior
to the consummation of the Merger will be issued with a corresponding
right (each, a "Boeing Right") which will expire on August 7, 1997
pursuant to the terms of the Boeing Rights Plan. The Company
understands that Boeing has entered into an agreement with the
Underwriter (the "Boeing Agreement") dated as of the date hereof to
induce the Underwriter to enter into this Agreement. The Company has
advised the Underwriter that the primary purpose of the sale of the
Shares is to facilitate the treatment of the Merger as a pooling of
interests.
The Company hereby agrees with the Underwriter as follows:
1. The Company agrees to issue and sell the Shares to the
Underwriter as hereinafter provided, and the Underwriter, upon the
basis of the representations and warranties herein contained, but
subject to the conditions stated in Section 6 hereof, agrees to
purchase the Shares from the Company at a purchase price per share of
$ .
2. The Company understands that the Underwriter intends (i) to
make a public offering of the Shares and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus; in each case,
subject to the terms and conditions set forth herein.
3. Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Company to
the Underwriter on , 1997, or at such other time on the same or such
other date, not later than the third Business Day thereafter, as the
Underwriter and the Company may agree upon in writing. The time and
date of such payment is referred to herein as the "Closing Date". As
used herein, the term "Business Day" means any day other than a day on
which banks are permitted or required to be closed in New York City.
Payment for the Shares shall be made against delivery to the
Underwriter of the Shares registered in such names and in such
denominations as the Underwriter shall request in writing not later
than two full Business Days prior to the Closing Date, with any
transfer taxes payable in connection with the transfer to the
Underwriter of the Shares duly paid by the Company. The certificates
for the Shares will be made available for inspection and packaging by
the Underwriter at the office of J.P. Morgan Securities Inc. set forth
above not later than 1:00 P.M., New York City time, on the Business
Day prior to the Closing Date.
4. The Company represents and warrants to the Underwriter
that:
(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, (i) complied when so
filed in all material respects with the Securities Act, and (ii) did
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, in the light of the circumstances under which they
were made, not misleading; provided that the representation and
warranty set forth in the preceding subclause (ii) of this paragraph
shall not apply to any statements or omissions (x) made in reliance
upon and in conformity with information relating to the Underwriter
furnished to the Company in writing by the Underwriter expressly for
use therein, (y) relating exclusively to Boeing or (z) relating to
items identified as adjustments in the pro forma financial statements
relating exclusively to Boeing;
(b)(i) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; (ii) the Registration Statement and
Basic Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the
Securities Act; and (iii) the Registration Statement as of its
effective date, the Registration Statement as supplemented by the
Prospectus Supplement as of the date of this Agreement, any amendment
to the Registration Statement as of the effective date of such
amendment, the Prospectus as of the date of this Agreement and the
Prospectus as amended or supplemented as of the date of such amendment
or supplement does not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable, at the
Closing Date will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; except that the representation and warranty set forth in
the preceding subclause (iii) of this paragraph shall not apply to
statements or omissions in the Registration Statement or the
Prospectus (x) made in reliance upon and in conformity with
information relating to the Underwriter furnished to the Company in
writing by the Underwriter expressly for use therein, (y) relating
exclusively to Boeing or (z) relating to items identified as
adjustments to the pro forma financial statements relating exclusively
to Boeing;
(c) the documents incorporated by reference in the
Prospectus when they were filed with the Commission conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable and none of such documents 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 under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that this representation and warranty shall not
apply to (i) any documents relating exclusively to Boeing and (ii)
items identified as adjustments in the pro forma financial statements
relating exclusively to Boeing;
(d) the financial statements, and the related notes
thereto, of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof and
the results of their operations and cash flows for the periods
specified, in each case in accordance with generally accepted
accounting principles in the United States consistently applied during
the periods involved (except as otherwise disclosed in the notes
thereto) and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein; and the pro forma financial
information, and the related notes thereto, included or incorporated
by reference in the Registration Statement and the Prospectus has been
prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, as applicable and are based upon
good faith estimates and assumptions believed by the Company to be
reasonable to, principally among other items, conform the accounting
policies of the Company and Boeing (but do not reflect any adjustments
related to the issuance of the Shares contemplated hereby);
(e) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been any event, occurrence or facts that has resulted in a
material adverse change in or affecting the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus or in connection with the European
Commission, the Merger Task Force of the European Commission, or any
related body administered by the European Commission;
(f) the Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Maryland and has the power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified to do business and is in good standing in each jurisdiction
in which the ownership of its properties or the conduct of its
businesses requires such qualification, except for such jurisdictions
in which the failure to be so qualified or to be in good standing
would not individually or in the aggregate have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(g) each subsidiary of the Company that is a
"significant subsidiary" within the meaning of Rule 405 promulgated by
the Commission under the Securities Act (each, a "Significant
Subsidiary") is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, has
the power and authority to own its properties and to carry on its
business as described in the Prospectus, and is duly qualified to do
business and is in good standing in each jurisdiction in which the
ownership of its property or the conduct of its business requires such
qualification, except for such jurisdictions in which the failure to
be so qualified or to be in good standing would not individually or in
the aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; and all the outstanding shares of
capital stock of each such Significant Subsidiary have been duly
authorized and validly issued, are fully-paid and non-assessable, and
(except, in the case of foreign subsidiaries, for directors'
qualifying shares) are owned by the Company, directly or indirectly,
free and clear of all liens, charges, encumbrances, security
interests, claims and other restrictions, except for liens, charges,
encumbrances, security interests, claims or restrictions (i) contained
in credit agreements and similar instruments to which the Company is a
party under which no event of default has occurred or arisen or (ii)
which would not individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole;
(h) this Agreement has been duly authorized, executed
and delivered by the Company;
(i) the Company has an authorized capitalization as set
forth in the Prospectus and such authorized capital stock conforms as
to legal matters to the description thereof set forth in the
Prospectus, and all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully-paid
and non-assessable and are not subject to any preemptive or similar
rights; and, except as described in or expressly contemplated by the
Prospectus or the Merger Agreement, and except for options and shares
of Common Stock granted pursuant to employee incentive or benefit
plans, programs, and arrangements and non-employee director plans,
there are no outstanding subscription rights, warrants, options or
other arrangements obligating the Company or any of its subsidiaries
to issue any shares of capital stock;
(j) the Shares to be issued and sold by the Company
hereunder have been duly authorized, and, when issued and delivered to
and paid for by the Underwriter in accordance with the terms of this
Agreement, will be duly issued and will be fully paid and
non-assessable and will conform to the descriptions thereof in the
Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights;
(k) the Rights Agreement has been duly authorized,
executed and delivered by the Company; the Rights have been duly
authorized by the Company and, when issued upon issuance of the
Shares, will be validly issued, and the shares of Series A Junior
Participating Preferred Stock issuable upon exercise of the Rights
have been duly authorized by the Company and validly reserved for
issuance, and when issued upon the exercise of the Rights in
accordance with the terms of the Rights Agreement, will be validly
issued, fully paid and non-assessable;
(l) the Company is not and with the giving of notice or
lapse of time or both would not be, in violation of or in default
under, its charter (the "Charter") or By-laws, except for violations
and defaults which individually or in the aggregate are not material
to the Company and its subsidiaries taken as a whole; the issue and
sale of the Shares and the performance by the Company of its
obligations under this Agreement and the Merger Agreement and the
consummation of the transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the
terms or provisions of any 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 any such action result
in any violation of the provisions of the Charter or the By-laws of
the Company or any applicable law or 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, except for
such conflicts, breaches or violations (other than with respect to the
Charter and the By-laws of the Company) which would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole and except as it concerns the laws, rules and regulations
administered by the European Commission, the Merger Task Force of the
European Commission, or any related body administered by the European
Commission; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Shares or the consummation by the Company of the transactions
contemplated by this Agreement or the Merger Agreement, except such
consents, approvals, authorizations, orders, licenses, registrations
or qualifications (i) as have been obtained under the Securities Act
and as may be required under state securities or Blue Sky Laws in
connection with the purchase and distribution of the Shares by the
Underwriter, (ii) [in connection with the Merger, as have been
obtained or made under the Maryland General Corporation Law, the
Securities Act, the Exchange Act, the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, Section 4043 of the Employee
Retirement Income Security Act of 1974, as amended, the Communication
Act of 1934, as amended, any non-United States competition, antitrust
and investment laws and the securities or blue sky laws of the various
states and other than any necessary approvals of the United States
government or any agencies, departments or instrumentalities thereof],
[(iii) from the European Commission, the Merger Task Force of the
European Commission, or any related body administered by the European
Commission with respect to the Merger] or (iv) such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications the failure to obtain which would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
or substantially impair or delay the consummation of the transactions
contemplated by this Agreement or the Merger Agreement;
(m) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its
subsidiaries or any of their respective properties or to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries is or may be
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 financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole, except such investigations, actions, suits or
proceedings by the European Commission, the Merger Task Force of the
European Commission, or any other body administering, enforcing or
interpreting the laws, rules, and regulations of the European
Commission;
(n) the Company has not taken nor will it take,
directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Common Stock;
(o) the Merger Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid and
binding agreement of the Company; and
(p) the Merger has been duly authorized by all
necessary corporate action of the Company, except for approval of the
Merger by the shareholders of the Company, and, when all of the
conditions to the Merger contained in the Merger Agreement have been
fulfilled or waived (where permissible) and the articles of merger
relating to the Merger have been filed with and accepted for record by
the State Department of Assessments and Taxation of Maryland in
accordance with the Merger Agreement, the Merger will be effective in
accordance with the laws of the State of Maryland.
5. The Company covenants and agrees with the Underwriter as
follows:
(a) to use its best efforts, to file, if required, the
Prospectus with the Commission within the time periods specified by
Rule 424(b) and Rule 430A under the Securities Act and 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
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering
or sale of the Shares; and to furnish copies of the Prospectus to the
Underwriter in New York City prior to 10:00 a.m., New York City time,
on the Business Day next succeeding the date of this Agreement in such
quantities as the Underwriter may reasonably request;
(b) to deliver, at the expense of the Company, to the
Underwriter two signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein (other than
documents relating exclusively to Boeing), and, during the period
mentioned in paragraph (e) below, to the Underwriter as many copies of
the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference (other than documents relating
exclusively to Boeing) therein as the Underwriter may reasonably
request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, to furnish to the
Underwriter a copy of the proposed amendment or supplement for review
and not to file any such proposed amendment or supplement to which the
Underwriter reasonably objects in writing unless, in the judgment of
the Company and its counsel, such amendment is required by law;
(d) to advise the Underwriter promptly, and to confirm
such advice in writing (i) when any amendment to the Registration
Statement has been filed or becomes effective, (ii) when any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish the Underwriter with copies thereof, (iii) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose, and (v) of the receipt by the Company of
any notification with respect to any suspension of the qualification
of the Shares for offer and sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order, or of any
order preventing or suspending the use of any preliminary prospectus
or the Prospectus, or of any order suspending any such qualification
of the Shares, or notification of any such order thereof and, if
issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date
of the public offering of the Shares as in the reasonable opinion of
counsel for the Underwriter a prospectus relating to the Shares is
required by law to be delivered in connection with sales by the
Underwriter or any dealer, any event shall occur as a result of which
it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to
the Underwriter and to the dealers (whose names and addresses the
Underwriter will furnish to the Company) to which Shares may have been
sold by the Underwriter and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with law;
(f) to endeavor to qualify the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
the Underwriter shall reasonably request and to continue such
qualification in effect so long as reasonably required for
distribution of the Shares; provided that the Company shall not be
required to qualify the Shares in any jurisdiction where, as a result
of such qualification, the Company would be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(g) so long as the shares are outstanding, to make
generally available to its security holders and to the Underwriter as
soon as practicable an earnings statement covering a period of at
least twelve months beginning with the first fiscal quarter of the
Company beginning after the date of this Agreement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 of the Commission promulgated thereunder;
(h) so long as the Shares are outstanding, until three
years after the Closing Date, to furnish to the Underwriter copies of
all reports or other communications (financial or other) furnished to
holders of the Shares, and copies of any reports and financial state-
ments furnished to or filed with the Commission or any national
securities exchange;
(i) to use the net proceeds received by the Company
from the sale of the Shares pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
(j) to use its best efforts to list, subject to notice
of issuance, the Shares on the New York Stock Exchange (the "NYSE");
and
(k) whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, to pay
or cause to be paid all costs and expenses incident to the performance
of its obligations hereunder, including without limiting the
generality of the foregoing, all costs and expenses (i) incident to
the preparation, issuance, execution and delivery of the Shares, (ii)
incident to the preparation, printing and filing under the Securities
Act of the Registration Statement, the Prospectus and any prelimi-
nary prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) incurred in connection with the
registration or qualification of the Shares under the laws of such
jurisdictions as the Underwriter may designate (including reasonable
fees of outside counsel for the Underwriter and its reasonable
out-of-pocket disbursements not to exceed in the aggregate $5,000),
(iv) in connection with the listing of the Shares on the NYSE, (v) in
connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Preliminary and
Supplemental Blue Sky Memoranda and the furnishing to the Underwriters
and dealers of copies of the Registration Statement, any preliminary
prospectus and the Prospectus, including mailing and shipping, as
herein provided, (vi) the cost of preparing stock certificates and
(vii) the cost and charges of any transfer agent and any registrar.
6. The obligation of the Underwriter hereunder to purchase the
Shares on the Closing Date are subject to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus 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 Securities Act and in accordance with Section 5(a) hereof; and all
requests for additional information shall have been complied with to
the satisfaction of the Underwriter;
(b) (i) the representations and warranties of the
Company contained herein are true and correct in all material respects
on and as of the Closing Date as if made on and as of the Closing Date
and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(ii) the representations and warranties of Boeing
contained in the Boeing Agreement are true and correct in all material
respects on and as of the Closing Date as if made on and as of the
Closing Date and Boeing shall have complied with all agreements and
all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date;
(c) since the respective dates as of which information
is given in the Prospectus, the businesses of the Company have been
conducted in all material respects in the ordinary course and there
has not been any event, occurrence or facts that has had a material
adverse change in or affecting the financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the Underwriter
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the Closing Date on the
terms and in the manner contemplated in the Prospectus; it being
expressly understood and agreed that for all purposes of this
Agreement and notwithstanding any other provision contained herein,
any decision by the European Commission or by the Merger Task Force of
the European Commission or any agreement between the parties related
to the European Commission process or the Merger Task Force of the
European Commission process shall not be deemed material to, or
constitute a material adverse change with respect to, the Company,
Boeing, the Merger or the disclosures contained in the Joint Proxy
Statement/Prospectus or the Registration Statement;
(d) (i) the Underwriter shall have received on and as
of the Closing Date a certificate of an executive officer of the
Company, with specific knowledge about the Company's financial
matters, satisfactory to the Underwriter to the effect set forth in
subsections (a) through (c) (with respect to the respective
representations, warranties, agreements and conditions of the Company)
of this Section and to the further effect that there has not occurred
any material adverse change in or affecting the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole from that set forth or contemplated in
the Registration Statement;
(ii) the Underwriter shall have received on and as of
the Closing Date a certificate of an executive officer of Boeing, with
specific knowledge about Boeing's financial matters, satisfactory to
the Underwriter to the effect set forth in Section 3(b) of the Boeing
Agreement;
(e) F. Mark Kuhlmann, General Counsel for the Company,
shall have furnished to the Underwriter his written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriter,
to the effect set forth in Exhibit A hereto.
The opinion of F. Mark Kuhlmann described in Exhibit A hereto
shall be rendered to the Underwriter at the request of the Company and
shall so state therein.
(f) Ballard Spahr Andrews & Ingersoll, special Maryland
counsel for the Company, shall have furnished to the Underwriter their
written opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect set forth in paragraphs
(iv), (vi), (but, with respect to preemptive or similar rights, only
as to such rights arising under the Maryland General Corporation Law,
the Charter or the Bylaws of the Company) (vii) (but only with
reference to the description of the Stock) and (xiii) of the opinion
of F. Mark Kuhlmann referred to in subsection (e) of this Section.
The opinion of Ballard Spahr Andrews & Ingersoll described
above shall be rendered to the Underwriter at the request of the
Company and shall so state therein.
(g) Skadden, Arps, Slate, Meagher & Flom LLP, special
counsel for the Company, shall have furnished to the Underwriter their
written opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) the statements in the Prospectus incorporated by
reference from the Boeing and Company Joint Proxy Statement/Prospectus
dated June 20, 1997 (the "Joint Proxy Statement/Prospectus") under the
captions "Summary--The Merger and Merger Agreement," "The Merger,"
"Other Terms of the Merger Agreement," "Comparison of the Rights of
Holders of Boeing Common Stock and McDonnell Douglas Common Stock,"
and "Certain Federal Income Tax Consequences" insofar as such
statements constitute a summary of the terms of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such terms, legal matters,
documents or proceedings; and
(ii) such counsel is of the opinion that the
Registration Statement, as of the effective date, and the Prospectus,
as of the date of the Prospectus Supplement and as of the Closing
Date, appear on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act, except
that in each case such counsel expresses no opinion as to the
financial data included therein or excluded therefrom or the exhibits
to the Registration Statement, and such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus.
In addition, such counsel shall state that such counsel
has participated in conferences with officers and representatives of
the Company, counsel for the Company, representatives of the
independent accountants of the Company and the Underwriter at which
the contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and has made no independent
check or verification thereof (except as set forth in clause (i)
above), on the basis of the foregoing, no facts have come to such
counsel's attention that has led such counsel to believe that the
information under the captions "Summary--The Merger and the Merger
Agreement," "The Merger," "Other Terms of the Merger" and "Comparison
of the Rights of Holders of Boeing Common Stock and McDonnell Douglas
Common Stock" included in the Joint Proxy Statement/Prospectus and
incorporated by reference in the Registration Statement and the
prospectus included therein at the time the Registration Statement
became effective, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus Supplement and as of the
Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements in the subcaptions referenced above, in light
of the circumstances under which they were made, not misleading,
except that such counsel does not express any opinion or belief with
respect to the financial statements, schedules and other financial and
statistical data included therein or excluded therefrom or the
representations and warranties contained in the exhibits to the
Registration Statement.
With respect to the matters to be covered in subparagraph (ii)
above counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto (other than the
documents incorporated by reference therein) and review and discussion
of the contents thereof (including the documents incorporated by
reference therein) but is without independent check or verification
except as specified.
The opinion of Skadden, Arps, Slate, Meagher & Flom LLP
described above shall be rendered to the Underwriter at the request of
the Company and shall so state therein.
(h) Theodore J. Collins, General Counsel for Boeing,
shall have furnished to the Underwriter his written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriter,
to the effect set forth in Section 3(c) of the Boeing Agreement.
The opinion of Theodore J. Collins described above shall be
rendered to the Underwriter at the request of the Company and shall so
state therein.
(i) on the date of this Agreement and also on the
Closing Date Ernst & Young LLP and Deloitte & Touche LLP shall have
furnished to you letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus of the Company in the
case of Ernst & Young LLP and of Boeing in the case of Deloitte &
Touche LLP;
(j) the Shares shall have been approved for listing on
the NYSE, subject to official notice of issuance;
(k) on or prior to the Closing Date the Company and
Boeing shall each have furnished to the Underwriter such further
certificates and documents as the Underwriter shall reasonably
request; and
(l) as of the Closing Date, the shareholders of the
Company shall have approved the Merger and the shareholders of Boeing
shall have approved the issuance of shares of Boeing Stock in
connection with the Merger in accordance with all applicable law.
7. The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, the
reasonable legal fees of outside counsel and other reasonable
out-of-pocket expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with information (i) relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use therein, (ii)
relating exclusively to Boeing, or (iii) relating to items identified
as adjustments in the pro forma financial statements relating
exclusively to Boeing.
The Underwriter agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with reference to information relating to the
Underwriter furnished to the Company in writing by the Underwriter
expressly for use in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person
(the "Indemnified Person") shall promptly notify the person against
whom such indemnity may be sought (the "Indemnifying Person") in
writing, and the Indemnifying Person, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others
the Indemnifying Person may designate in such proceeding and shall pay
the fees and expenses of such counsel related to such proceeding. In
any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person
and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate
firm for the Underwriter and such control persons of the Underwriter
shall be designated in writing by the Underwriter and any such
separate firm for the Company, its directors, its officers who sign
the Registration Statement and such control persons of the Company
shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person
agrees to indemnify any Indemnified Person from and against any loss
or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall
have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the Indemnifying Person agrees
that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect
any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject
matter of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an Indemnified Person
or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriter on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriter
on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the
other hand shall be deemed to be in the same respective proportions as
the net proceeds from the offering (before deducting expenses)
received by the Company and the total underwriting discounts and the
commissions received by the Underwriter, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares. The relative fault of the Company on the
one hand and the Underwriter on the other hand 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
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall
the Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the
amount of any damages that the 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 ll(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company set
forth in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Underwriter or any person
controlling the Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Underwriter, by
notice given to the Company, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case
may be, either the New York Stock Exchange or the Pacific Stock
Exchange (other than any temporary suspensions in connection with the
Merger), (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of
the Underwriter, is material and adverse and which, in the judgment of
the Underwriter, makes it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
10. If this Agreement shall be terminated by the Underwriter,
because of any failure or refusal on the part of the Company or Boeing
to comply with the terms or to fulfill any of the conditions of this
Agreement or the Letter Agreement, as the case may be, or if for any
reason the Company and Boeing shall be unable to perform their
respective obligations under this Agreement or the Letter Agreement,
as the case may be, or any condition of the Underwriter's obligations
cannot be fulfilled, the Company agrees to reimburse the Underwriter
for all out-of-pocket expenses (including the reasonable fees and
reasonable out-of-pocket expenses of its outside counsel) reasonably
incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be
binding upon the Company and the Underwriter, any controlling persons
referred to herein and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal
or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. No purchaser of Shares
from the Underwriter shall be deemed to be a successor by reason
merely of such purchase.
12. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be given to J.P. Morgan Securities Inc., 60 Wall
Street, New York, New York 10260 (telefax:______); Attention:
Syndicate Department. Notices to the Company shall be given to it at
____________, _____________, ____________, (telefax:________);
Attention:____________.
13. This Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall constitute
one and the same instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
If the foregoing is in accordance with your understanding,
please sign and return four counterparts hereof.
Very truly yours,
MCDONNELL DOUGLAS CORPORATION
By:__________________________
Title:
Accepted:_________, 1997
J.P. Morgan Securities Inc.
By:________________________________
Title:
EXHIBIT A
Matters to be covered by the
Opinion of F. Mark Kuhlmann
(i) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland,
and has the corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) the Company has been duly qualified to do business and is
in good standing in each jurisdiction in which the ownership of its
properties or the conduct of its businesses requires such
qualification, except for such jurisdictions in which the failure to
be so qualified or to be in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a whole;
(iii) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the best of such
counsel's knowledge, threatened against or affecting the Company or
any of its subsidiaries or any of its properties or to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or its subsidiaries is or may be 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 financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(vi) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and when delivered to and paid for the
Underwriter in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable and the issuance of the
Shares is not subject to any preemptive or similar rights;
(vii) the description of the Stock incorporated by reference
in the Prospectus, the description of the Rights incorporated by
reference in the Prospectus, the statements in the Prospectus under
the caption "Description of the McDonnell Douglas Common Stock", the
statements in the Prospectus incorporated by reference from Item 3 of
Part I of the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 and in the Registration Statement in Item 15,
insofar as such statements constitute a summary of the terms of the
Stock, Rights, legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such terms, legal matters, documents or proceedings;
(viii) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements
thereto (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
Securities Act and has no reason to believe that (other than the
financial statements and related schedules therein and statements and
omissions relating to Boeing exclusively, as to which such counsel
need express no belief) the Registration Statement or the prospectus
included therein at the time the Registration Statement became
effective, or the Registration Statement, as supplemented by the
Prospectus Supplement, or the Prospectus as of the date of this
Agreement, contained any 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 the
Prospectus, as amended or supplemented, if applicable, as of the
Closing Date, contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ix) the issue and sale of the Shares and the performance by
the Company of its obligations under this Agreement and the Merger
Agreement and the consummation of the transactions contemplated herein
and therein will not conflict with or result in a breach or violation
of any of the terms or provisions of, any 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 any such action result in any violation of the
provisions of the Charter or the By-laws of the Company or any
applicable law or 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, except for such conflicts, breaches
or violations (other than with respect to the Charter and the By-laws
of the Company) which would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, except that such
counsel expresses no opinion concerning the laws, rules and
regulations administered by the European Commission, the Merger Task
Force of the European Commission, or any related body administered by
the European Commission;
(x) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issuance and sale of the Shares or
the consummation of the other transactions contemplated by this
Agreement or the Merger Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications (i)
as have been obtained under the Securities Act and as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriter, (ii) [in
connection with the Merger, as have been obtained or made under the
Maryland General Corporation Law, the Securities Act, the Exchange
Act, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, Section 4043 of the Employee Retirement Income Security Act
of 1974, as amended, the Communication Act of 1934, as amended, any
non-United States competition, antitrust and investment laws and the
securities or blue sky laws of the various states and other than any
necessary approvals of the United States government or any agencies,
departments or instrumentalities thereof, [(iii) from the European
Commission, the Merger Task Force of the European Commission, or any
related body administered by the European Commission with respect to
the Merger] (iv) such consents, approvals, authorizations, orders,
licenses, registrations or qualifications the failure to obtain which
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole or substantially impair or delay the
consummation of the transactions contemplated by this Agreement or the
Merger Agreement;
(xi) such counsel is of the opinion that the documents
incorporated by reference in the Prospectus (other than any documents
relating exclusively to Boeing) and any further amendment or
supplement thereto made by the Company prior to the Closing Date
(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 Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder;
(xii) the Rights Agreement has been duly authorized, executed
and delivered by the Company; the Rights have been duly authorized by
the Company and, when issued upon issuance of the Shares, will be
validly issued, and the shares of Series A Junior Participating
Preferred Stock issuable upon exercise of the Rights have been duly
authorized by the Company and validly reserved for issuance upon the
exercise of the Rights and, when issued upon such exercise in
accordance with the terms of the Rights Agreement, will be validly
issued, fully paid and non-assessable; and
(xiii) the Merger Agreement has been duly authorized, executed
and delivered by the Company, and constitutes a valid and binding
agreement of the Company.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to the
Underwriter) of other counsel reasonably acceptable to the
Underwriter's counsel, familiar with the applicable laws; (B) as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates
or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good
standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel upon which they
relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriter and they are justified in relying thereon.
With respect to the matters to be covered in subparagraph (viii) above
counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto and review and
discussion of the contents thereof but is without independent check or
verification except as specified.
EXHIBIT 5
BALLARD SPAHR ANDREWS & INGERSOLL
300 EAST LOMBARD STREET, 19TH FLOOR
BALTIMORE, MD 21202-3268
TEL: 410-528-5600
FAX: 410-528-5650
July 17, 1997
McDonnell Douglas Corporation
P.O. Box 516
St. Louis, Missouri 63166-0516
Re: Registration Statement on Form S-3
Registration No. 333-30033
Ladies and Gentlemen:
We have served as Maryland counsel to McDonnell
Douglas Corporation, a Maryland corporation (the
"Company"), in connection with certain matters of
Maryland law arising out of the registration of 3,500,000
shares (the "Shares") of Common Stock, par value $1.00
per share, of the Company, and the related right attached
to each Share (the "Rights"), each to purchase one-one
hundredth of a share of Series A Junior Participating
Preferred Stock, $.01 par value per share, of the
Company, covered by the above-referenced Registration
Statement, and all amendments thereto (the "Registration
Statement"), under the Securities Act of 1933, as amended
(the "1933 Act"). Unless otherwise defined herein,
capitalized terms used herein shall have the meanings
assigned to them in the Registration Statement.
In connection with our representation of the
Company, and as a basis for the opinion hereinafter set
forth, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of the
following documents (collectively, the "Documents"):
1. The Registration Statement and the related
form of prospectus included therein in the form in which
it was transmitted to the Securities and Exchange
Commission (the "Commission") under the 1933 Act;
2. The charter of the Company, certified as
of a recent date by the State Department of Assessments
and Taxation of Maryland (the "SDAT");
3. The Bylaws of the Company, as amended
October 25, 1996, attached as Exhibit 3(b) to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996;
4. The Amended and Restated Rights Agreement
(the "Rights Agreement"), dated as of May 31, 1996,
between the Company and First Chicago Trust Company of
New York, attached as Exhibit 4 to the Company's Current
Report on Form 8-K, filed with the Commission on June 3,
1996;
5. Resolutions adopted by the Board of
Directors and stockholder of the Company relating to the
sale, issuance and registration of the Shares and the
execution, delivery and performance of the Rights
Agreement, certified as of a recent date by the Secretary
of the Company;
6. A certificate of the SDAT as to the good
standing of the Company, dated as of a recent date;
7. A certificate executed by the Secretary of
the Company, dated as of a recent date; and
8. Such other documents and matters as we
have deemed necessary or appropriate to express the
opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated
herein.
In expressing the opinion set forth below, we
have assumed, and so far as is known to us there are no
facts inconsistent with, the following:
1. Each individual executing any of the
Documents, whether on behalf of such individual or any
other person, is legally competent to do so.
2. Each individual executing any of the
Documents on behalf of a party (other than the Company)
is duly authorized to do so.
3. Each of the parties (other than the
Company) executing any of the Documents has duly and
validly executed and delivered each of the Documents to
which such party is a signatory, and such party's
obligations set forth therein are legal, valid and
binding.
4. All Documents submitted to us as originals
are authentic. All Documents submitted to us as
certified or photostatic copies conform to the original
documents. All signatures on all such Documents are
genuine. All public records reviewed or relied upon by
us or on our behalf are true and complete. All
statements and information contained in the Documents are
true and complete. There are no oral or written
modifications or amendments to the Documents and there
has been no waiver of any provisions of the Documents, by
action or conduct of the parties or otherwise.
5. In expressing the opinion set forth in
paragraph 3 below we have assumed that each director has
acted and will act (i) in good faith, (ii) in a manner he
or she reasonably believes to be in the best interests of
the Company, and (iii) with the care that an ordinarily
prudent person in a like position would use under similar
circumstances.
The phrase "known to us" is limited to the
actual knowledge, without independent inquiry, of the
lawyers at our firm who have performed legal services in
connection with the issuance of this opinion.
Based upon the foregoing, and subject to the
assumptions, limitations and qualifications stated
herein, it is our opinion that:
1. The Company is a corporation duly
incorporated and existing under and by virtue of the laws
of the State of Maryland and is in good standing with the
SDAT.
2. The Shares are duly authorized and, when
and if delivered against payment therefor in accordance
with the resolutions of the Board of Directors of the
Company, or a duly authorized committee thereof
authorizing their issuance, will be duly and validly
issued, fully paid and nonassessable.
3. When issued in accordance with the terms
of the Rights Agreement and the resolutions of the Board
of Directors of the Company authorizing their issuance,
the Rights will be validly issued.
The foregoing opinion is limited to the
substantive laws of the State of Maryland and we do not
express any opinion herein concerning any other law. We
express no opinion as to compliance with the securities
(or "blue sky") laws or the real estate syndication laws
of the State of Maryland.
We assume no obligation to supplement this
opinion if any applicable law changes after the date
hereof or if we become aware of any fact that might
change the opinion expressed herein after the date
hereof.
This opinion is being furnished to you solely
for submission to the Securities and Exchange Commission
as an exhibit to the Registration Statement and,
accordingly, may not be relied upon by, quoted in any
manner to, or delivered to any other person or entity
(other than Skadden, Arps, Slate, Meagher & Flom LLP,
counsel to the Company) without, in each instance, our
prior written consent.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the
use of the name of our firm therein. In giving this
consent, we do not admit that we are within the category
of persons whose consent is required by Section 7 of the
1933 Act.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll
