AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 24, 1995
REGISTRATION NO. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________
MALLINCKRODT GROUP INC.
(Exact name of registrant as specified in its charter)
_________
NEW YORK 36-1263901
(State or other jurisdiction (I.R.S. EMPLOYER
of incorporation or IDENTIFICATION NO.)
organization)
_________
7733 FORSYTH BOULEVARD
ST. LOUIS, MO 63105-1820
(314) 854-5200
(Address, including zip code, and telephone number,
including area code, of Principal Executive Offices)
ROGER A. KELLER
MALLINCKRODT GROUP INC.
7733 FORSYTH BOULEVARD
ST. LOUIS, MO 63105-1820
(314) 854-5200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________
COPIES TO:
John M. Reiss Michael A. Campbell
White & Case Mayer, Brown & Platt
1155 Avenue of the Americas 190 S. LaSalle Street
New York, New York 10036 Chicago, Illinois 60603
(212) 819-8200 (312) 782-0600
_________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM
TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS THE
REGISTRANT SHALL DETERMINE.
_________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. ( )
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. (X)
_________
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
DEBT SECURITIES . . . . . . . . . . . . . . . . . . $250,000,000 (1) 100% (2) $250,000,000 (1) $86,208
(1) Or, if any Securities are issued at an original issue discount, such greater amount as shall result in an aggregate
initial offering price of $250,000,000.
(2) Estimated solely for purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
WHICH CONSTITUTES PART OF THIS REGISTRATION STATEMENT ALSO RELATES TO THE
DEBT SECURITIES REGISTERED ON FORM S-3, REGISTRATION NO. 33-47081, OF THE
REGISTRANT.
[LOGO]
$300,000,000
Mallinckrodt Group Inc.
Debt Securities
_________
Mallinckrodt Group Inc. (the "Company") may from time to time offer up
to $300,000,000 aggregate initial offering price of its debt securities
(the "Debt Securities"), on terms to be determined at the time of sale, and
as more fully described under "Description of the Securities." The
accompanying Prospectus Supplement (the "Prospectus Supplement") sets forth
the specific designation, the aggregate principal amount offered,
authorized denominations, maturity, purchase price, rate (which may be
fixed or variable) and time of payment of interest, any terms of redemption
(including any sinking fund) and any other specific terms of the Debt
Securities in respect of which this Prospectus and the Prospectus
Supplement are being delivered (the "Offered Securities"), together with
the terms of the offering and sale of the Offered Securities.
The Company may sell Debt Securities to or through underwriters or
dealers, directly to one or more purchasers, through agents or through a
combination of the foregoing. See "Plan of Distribution." Unless
otherwise set forth in the Prospectus Supplement, such underwriters will
include either or both of Goldman, Sachs & Co. and J.P. Morgan Securities
Inc., acting alone or as representatives of a group of underwriters.
Either or both of Goldman, Sachs & Co. and J.P. Morgan Securities Inc. may
also act as agents. The accompanying Prospectus Supplement sets forth the
names of such underwriters or agents, the principal amounts, if any, to be
purchased by underwriters and the compensation, if any, of such
underwriters or agents.
_________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_________
GOLDMAN, SACHS & CO. J.P. MORGAN SECURITIES
INC.
_________
The date of this Prospectus is ____________, 1995.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements, information statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of the
Commission: New York Regional Office, Seven World Trade Center, New York,
New York 10048; and Chicago Regional Office, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material can be obtained
from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. Such reports, proxy
statements, information statements and other information filed by the
Company can also be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005; the Chicago
Stock Exchange, Inc., 440 South LaSalle Street, Chicago, Illinois 60605;
and the Pacific Stock Exchange, Incorporated, 618 South Spring Street, Los
Angeles, California 90014 and 301 Pine Street, San Francisco, California
94104.
The Company's Common Stock, $1 par value, is listed on the three
aforementioned stock exchanges.
This Prospectus constitutes a part of a Registration Statement filed
by the Company with the Commission under the Securities Act of 1933 (the
"Securities Act"). This Prospectus omits certain of the information
contained in the Registration Statement, and reference is hereby made to
the Registration Statement and to the exhibits thereto for further
information with respect to the Company and the Debt Securities. Any
statements contained herein concerning the provisions of any document are
not necessarily complete, and, in each instance, reference is made to the
copy of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is qualified in
its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1994.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended September 30 and December 31, 1994.
(3) The Company's current reports on Form 8-K dated October 19, 1994,
October 28, 1994, November 3, 1994 and January 4, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom a Prospectus is delivered a copy of any or all of the information
that has been incorporated by reference herein (other than exhibits to such
documents) upon written or oral request. Requests for such copies should
be directed to the Corporate Secretary, Mallinckrodt Group Inc., 7733
Forsyth Boulevard, St. Louis, MO 63105-1820, telephone number (314) 854-
5200.
THE COMPANY
The Company (formerly IMCERA Group Inc.), a New York corporation,
provides human and animal health care products and specialty chemicals
worldwide by means of its three technology-based operating subsidiaries:
Mallinckrodt Chemical, Inc. Mallinckrodt Chemical is a producer of
high-quality specialty pharmaceutical chemicals and highly selected
specialty industrial chemicals and catalysts. Mallinckrodt Chemical is
also a joint venture partner with Hercules Incorporated in a worldwide
flavors business, Tastemaker, which develops and sells products for the
beverage, sweet goods, savory and confection markets.
Mallinckrodt Medical, Inc. Mallinckrodt Medical provides
technologically advanced products and services to five medical specialties:
radiology; cardiology; nuclear medicine; anesthesiology; and critical care.
Mallinckrodt Veterinary, Inc. Mallinckrodt Veterinary (formerly
Pitman-Moore, Inc.) is one of the world's largest branded animal health and
nutrition companies with approximately 1,000 products sold in more than 100
countries.
The Company was founded in 1909 and was primarily a producer and
manufacturer of fertilizers and other commodity chemicals. The Company
undertook a major restructuring of its businesses beginning with the
February 1986 acquisition of the Mallinckrodt Medical and Mallinckrodt
Chemical businesses. In October 1986, the Company sold its industrial
products and oil and gas divisions. Beginning in February 1988, the Company
began reducing its interest in its fertilizer business, which is now an
independent publicly-held company named IMC Global Inc. ("IMC Global")
(formerly IMC Fertilizer Group, Inc.), and the Company completed the
disposition of its remaining equity interest in IMC Global on July 2, 1991.
Since 1986, the Company has expanded its animal health business through a
series of acquisitions, including the acquisition of the Pitman-Moore
business in 1987 and the acquisition of Coopers Animal Health Group in
1989.
In June 1993, the Company announced the details of a restructuring
program which resulted in a charge of $242 million after taxes, most of
which was for actions taken at Mallinckrodt Veterinary. In June 1994, the
Company announced the details of a further restructuring program which
resulted in a charge of $59 million after taxes, most of which relates to
Mallinckrodt Medical.
In March 1994, the Company changed its name from IMCERA Group Inc. to
Mallinckrodt Group Inc. and moved its headquarters from Northbrook,
Illinois to St. Louis, Missouri. The Company's corporate headquarters is
located at 7733 Forsyth Boulevard, St. Louis, MO 63105-1820, and its
telephone number is: (314) 854-5200.
USE OF PROCEEDS
The net proceeds from the sale of the Offered Securities will be added
to the general funds of the Company and will be used for general corporate
purposes, except as otherwise noted in any Prospectus Supplement. Pending
such a use, some portion of such funds may be invested in short-term
marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
SIX MONTHS
ENDED
DECEMBER 31, YEARS ENDED JUNE 30,
1994 1993 1994 1993 1992 1991 1990
Ratio of earnings to fixed charges . . . . . 4.9 5.3 4.0 (1) 4.9 4.0 2.6
___________
(1) Earnings were inadequate to cover fixed charges for the year ended June 30, 1993. The coverage deficiency was
approximately $140 million.
The ratio of earnings to fixed charges is based on earnings from
continuing operations and has been computed on a total enterprise basis.
Earnings represent income from continuing operations before income taxes
and fixed charges, net of capitalized interest. Fixed charges consist of
interest expense before reduction for capitalized interest, one-third of
rental expense (net of rental income from subleased properties), which is
considered to be representative of the interest factors in the leases, and
the Company's proportionate share of interest expense of 50%-owned entities
accounted for by the equity method before reduction for capitalized
interest, and amortization of debt discount and expenses.
DESCRIPTION OF THE SECURITIES
The following description of the Debt Securities sets forth certain
general terms and provisions of the Offered Securities to which any
Prospectus Supplement may relate. The Debt Securities are to be issued
under an Indenture dated as of March 15, 1985, as amended and restated as
of February 15, 1995, and as may be further amended and supplemented (the
"Indenture"), between the Company and First Trust of New York, National
Association, as trustee (the "Trustee"), a copy of which is filed as an
exhibit to the Registration Statement. The particular terms of the Offered
Securities and the extent, if any, to which such general provisions may
apply to the Offered Securities will be described in the Prospectus
Supplement relating to such Offered Securities.
The following summaries of certain provisions of the Indenture do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Indenture, including
the definition therein of certain terms. Wherever particular articles,
sections or defined terms of the Indenture are referred to, it is intended
that such articles, sections or defined terms shall be incorporated herein
by reference.
GENERAL
The Indenture does not limit the aggregate principal amount of
debentures, notes or other evidences of indebtedness which may be issued
thereunder (such debentures, notes or other evidences of indebtedness
issued under the Indenture being herein referred to as the "Securities").
The Indenture provides that Securities may be issued from time to time in
one or more series. The Securities will be unsecured obligations ranking
equally with each other and with other unsecured and unsubordinated
indebtedness of the Company.
The Prospectus Supplement relating to the particular Securities
offered thereby will describe the following terms of the Offered
Securities: (1) the title of the Offered Securities; (2) any limit on the
aggregate principal amount of the Offered Securities; (3) the record date
for determining the persons to whom any interest on any Offered Securities
of the series will be payable; (4) the date or dates on which the principal
of the Offered Securities will be payable; (5) the rate or rates (or
formula for determining such rates) at which the Offered Securities of the
series will bear interest, if any, the date or dates from which such
interest will accrue, the interest payment dates on which such interest
will be payable and the record dates for the determination of Holders to
whom interest is payable; (6) whether the interest rate or interest rate
formula for Offered Securities of the series may be reset at the option of
the Company or otherwise, and the date or dates on which such interest rate
or interest rate formula may be reset; (7) the place or places where the
principal and interest on the Offered Securities of the series will be
payable and the place or places where the Offered Securities may be
surrendered for registration or transfer or exchange; (8) the date, if any,
after which the Offered Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed, in whole or in part, and the
other detailed terms and provisions of any such optional or mandatory
redemption provisions; (9) any mandatory or optional sinking fund or
analogous provisions; (10) the currency or the composite currency in which
the Offered Securities are denominated (the "Specified Currency"); (11) the
currency or currencies of payment of principal of and any premium and
interest on the Offered Securities if other than the Specified Currency;
(12) any index used to determine the amount of payments of principal of and
any premium and interest on the Offered Securities; (13) any additional
covenants applicable to the Offered Securities; and (14) any other terms of
the Offered Securities (which terms will not be inconsistent with the
provisions of the Indenture). Unless otherwise indicated in the Prospectus
Supplement, principal of (and premium, if any) and interest, if any, on
the Offered Securities will be payable, and transfers of the Offered
Securities will be registrable, at the Corporate Trust Office of the
Trustee (currently located at 100 Wall Street, Suite 1600, New York, New
York 10005), provided that at the option of the Company payment of interest
may be made by check mailed to the address of the person entitled thereto
as it appears in the Security Register. (Sections 3.01, 3.03, 3.06 and
5.02)
Unless otherwise indicated in the Prospectus Supplement, the Offered
Securities will be issued only in fully registered form without coupons in
denominations of 1,000 units of the Specified Currency or any integral
multiple thereof. (Section 3.02) No service charge will be made for any
registration of transfer or exchange of Offered Securities, but the Company
may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Section 3.06)
If any of the Offered Securities are denominated in a Specified
Currency other than U.S. dollars or if the principal, premium and/or
interest with respect to any series of Offered Securities is payable in a
Specified Currency other than U.S. Dollars, the restrictions, elections,
general tax considerations, specific terms and other information with
respect to such issue of Offered Securities related to such Specified
Currency will be set forth in the applicable Prospectus Supplement.
The Company shall not be required to (i) issue, register the
transfer of, or exchange Securities of any series during the period from 15
days prior to the mailing of notice of redemption of Securities of that
series to the date of such mailing or (ii) register the transfer of or
exchange any Security so selected for redemption, except the unredeemed
portion of any Security being redeemed in part. (Section 3.06)
Securities may be issued under the Indenture as Original Issue
Discount Securities to be sold at a substantial discount below their
principal amount. Federal income tax and other considerations applicable
to any Security that is issued with "original issue discount" for Federal
income tax purposes (which may include an Original Issue Discount Security)
will be described in the Prospectus Supplement relating thereto.
The Prospectus Supplement may indicate terms for redemption at the
option of a Holder. Unless otherwise indicated in the Prospectus
Supplement, the covenants contained in the Indenture and the Offered
Securities would not provide for redemption at the option of a Holder nor
afford Holders protection in the event of a highly leveraged or other
transaction that may adversely affect Holders.
CERTAIN DEFINITIONS
The following terms are defined substantially as follows in
Section 1.01 of the Indenture and are used herein as so defined.
Consolidated Net Tangible Assets. (a) The total amount of assets
(less applicable reserves and other properly deductible items) after
deducting therefrom (i) all liabilities and liability items, except for
indebtedness payable by its terms more than one year from the date of
incurrence thereof (or renewable or extendible at the option of the obligor
for a period ending more than one year after such date of incurrence),
capitalized rent, capital stock and surplus, surplus reserves and deferred
income taxes and credits and other non-current liabilities, and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount,
unamortized expense incurred in the issuance of debt, and other like
intangibles (except prepaid royalties), which, in each case, under
generally accepted accounting principles would be included on a
consolidated balance sheet of the Company and its Restricted Subsidiaries,
less (b) loans, advances, equity investments and contingent liabilities of
every nature (other than accounts receivable arising from the sale of
merchandise in the ordinary course of business) at the time outstanding
which were made or incurred by the Company and its Restricted Subsidiaries
to, in or for Unrestricted Subsidiaries or to, in or for corporations while
they were Unrestricted Subsidiaries and which at the time of computation
are not Subsidiaries.
Principal Facility. Any manufacturing plant, warehouse, office
building or parcel of real property (including fixtures but excluding
leases and other contract rights which might otherwise be deemed real
property) owned by the Company or any Restricted Subsidiary, provided each
such plant, warehouse, office building or parcel of real property has a
gross book value (without deduction for any depreciation reserves) of in
excess of two percent of the Consolidated Net Tangible Assets of the
Company and the Restricted Subsidiaries, other than any such plant,
warehouse, office building or parcel of real property or portion thereof
which, in the opinion of the Board of Directors of the Company, is not of
material importance to the business conducted by the Company and its
Subsidiaries taken as a whole.
Restricted Subsidiary. Any corporation in which the Company
directly or indirectly owns voting securities entitling it to elect a
majority of the directors and (a) which (i) existed as such on the date of
the Indenture or is the successor, directly or indirectly, to, or owns,
directly or indirectly, any equity interest in, a corporation which so
existed, (ii) has its principal place of business and the principal
location of its assets in the United States (including its territories and
possessions) or Canada or both, (iii) has as its principal business a
business other than the financing of the acquisition or disposition of
real, personal or intangible property or the owning, leasing, dealing in or
developing of real property for residential or office building purposes,
and (iv) does not have assets substantially all of which consist of the
securities of one or more corporations which are not Restricted
Subsidiaries, or (b) which, pursuant to the terms of the Indenture, is
designated a Restricted Subsidiary by the Company after the date of the
Indenture; provided, however, the Company may not designate a Subsidiary to
be a Restricted Subsidiary if the Company would thereby breach any covenant
or agreement contained in the Indenture (on the assumption that any
transaction to which such Subsidiary was a party at the time of such
designation and which would have given rise to Secured Debt or constituted
a Sale and Leaseback Transaction at the time it was entered into had such
Subsidiary then been a Restricted Subsidiary was entered into at the time
of such designation). None of the existing principal operating
subsidiaries of the Company are Restricted Subsidiaries under the
Indenture.
Sale and Leaseback Transaction. Any sale or transfer made by the
Company or one or more Restricted Subsidiaries (except a sale or transfer
made to the Company or one or more Restricted Subsidiaries) of any
Principal Facility which (in the case of a Principal Facility which is a
manufacturing plant, warehouse, office building or developed mining
property) has been in operation, use or commercial production (exclusive of
test and start-up periods) by the Company or any Restricted Subsidiary for
more than 120 days prior to such sale or transfer, or which (in the case of
a Principal Facility which is a parcel of real property other than a
manufacturing plant, warehouse, office building or developed mining
property) has been owned by the Company or any Restricted Subsidiary for
more than 120 days prior to such sale or transfer, if such sale or transfer
is made with the intention of leasing, or as part of an arrangement
involving the lease, of such Principal Facility to the Company or a
Restricted Subsidiary (except a lease for a period not exceeding 36 months,
made with the intention that the use of the leased Principal Facility by
the Company or such Restricted Subsidiary will be discontinued on or before
the expiration of such period). Any Secured Debt otherwise permitted
pursuant to the Indenture will not be deemed to create or be defined to be
a Sale and Leaseback Transaction.
Secured Debt. Any indebtedness for money borrowed by, or evidenced
by a note or other similar instrument of, the Company or a Restricted
Subsidiary, and any other indebtedness of the Company or a Restricted
Subsidiary on which by the terms of such indebtedness interest is paid or
payable, including obligations evidenced or secured by leases, installment
sales agreements or other instruments in connection with industrial
development bonds as defined in Section 103(c)(2) of the Internal Revenue
Code of 1954 (other than indebtedness owed by a Restricted Subsidiary to
the Company, by a Restricted Subsidiary to another Restricted Subsidiary or
by the Company to a Restricted Subsidiary), which in any such case is
secured by (a) a Security Interest in any Principal Facility, or (b) a
Security Interest in any shares of stock owned directly or indirectly by
the Company in a Restricted Subsidiary or in indebtedness for money
borrowed by a Restricted Subsidiary from the Company or another Restricted
Subsidiary. The securing in the foregoing manner of any previously
unsecured debt shall be deemed to be the creation of Secured Debt at the
time such security is given. The amount of Secured Debt at any time
outstanding shall be the maximum aggregate amount then owing thereon by the
Company and its Restricted Subsidiaries.
Security Interest. Any mortgage, pledge, lien, encumbrance or other
security interest which secures payment or performance of an obligation.
Senior Funded Debt. Any obligation of the Company or any Restricted
Subsidiary which, as of the date of its creation, was payable by its terms
more than one year from the date of incurrence thereof (or renewable or
extendible at the option of the obligor for a period ending more than one
year after such date of incurrence), which under generally accepted
accounting principles should be shown as a liability on a consolidated
balance sheet of the Company and its Restricted Subsidiaries, and which, in
the case of such an obligation of the Company, is not subordinate and
junior in right of payment to the prior payment of the Debt Securities.
CERTAIN COVENANTS OF THE COMPANY
Restriction on Creation of Secured Debt. The Indenture provides
that so long as the Securities of any series are outstanding, the Company
will not, and will not cause or permit a Restricted Subsidiary to, create,
incur, assume or guarantee any Secured Debt or create any Security Interest
securing any indebtedness existing on the date of the Indenture which would
constitute Secured Debt if it were secured by a Security Interest in a
Principal Facility unless the Securities will be secured equally and
ratably (subject to applicable priorities of payment) by the Security
Interest securing such Secured Debt or indebtedness, except that the
Company and its Restricted Subsidiaries may incur certain Secured Debt
without so securing the Securities. Among such permitted Secured Debt is
indebtedness secured by (i) certain Security Interests to secure payment of
the cost of acquisition, construction, development or improvement of
property, (ii) Security Interests on property at the time of acquisition
assumed by the Company or a Restricted Subsidiary, or on the property or on
the outstanding shares or indebtedness of a corporation or firm at the time
it becomes a Restricted Subsidiary or is merged into or consolidated with
the Company or a Restricted Subsidiary or the Company or a Restricted
Subsidiary acquires the properties of such corporation or firm as an
entirety or substantially as an entirety, (iii) Security Interests arising
from conditional sales agreements or title retention agreements with
respect to property acquired by the Company or any Restricted Subsidiary,
(iv) certain Security Interests to secure progress or advance payments, (v)
Security Interests securing indebtedness of a Restricted Subsidiary owing
to the Company or to another Restricted Subsidiary, (vi) mechanics' and
other statutory liens arising in the ordinary course of business (including
construction of facilities) in respect of obligations which are not due or
which are being contested in good faith, (vii) liens for taxes, assessments
or governmental charges not yet due or for taxes, assessments or
governmental charges which are being contested in good faith,
(viii) Security Interests (including judgment liens) arising in connection
with legal proceedings so long as such proceedings are being contested in
good faith and, in case of judgment liens, execution thereon is stayed,
(ix) certain landlords' liens on fixtures, (x) Security Interests to secure
partial, progress, advance or other payments or indebtedness incurred for
the purpose of financing construction on or improvement of property subject
to such Security Interests and (xi) certain Security Interests in favor, or
made at the request, of governmental bodies. Additionally, such permitted
Secured Debt includes (with certain limitations) any extension, renewal or
refunding, in whole or in part, of any Secured Debt permitted at the time
of the original incurrence thereof. In addition to the foregoing, the
Company and its Restricted Subsidiaries may have Secured Debt, without
equally and ratably securing the Securities, if the sum of (a) the amount
of Secured Debt entered into after the date of the Indenture and otherwise
prohibited by the Indenture plus (b) the aggregate value of Sale and
Leaseback Transactions entered into after the date of the Indenture and
otherwise prohibited by the Indenture does not exceed ten percent of
Consolidated Net Tangible Assets. (Section 5.05)
Restriction on Sale and Leaseback Transactions. The Indenture
provides that so long as the Securities of any series are outstanding, the
Company will not, and will not permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction unless (a) the Company or such
Restricted Subsidiary would be entitled to incur Secured Debt permitted by
the Indenture only by reason of the provision described in the last
sentence of the preceding paragraph equal in amount to the net proceeds of
the property sold or transferred or to be sold or transferred pursuant to
such Sale and Leaseback Transaction and secured by a Security Interest on
the property to be leased without equally and ratably securing the
Securities, or (b) the Company or a Restricted Subsidiary shall apply
within one year after the effective date of such Sale and Leaseback
Transaction, or shall have committed within one year after the effective
date of such Sale and Leaseback Transaction to apply, an amount equal to
such net proceeds (x) to the acquisition, construction, development or
improvement of properties, facilities, or equipment used for operating
purposes which are, or upon such acquisition, construction, development, or
improvement will be, a Principal Facility or Facilities or a part thereof
or (y) to the redemption of Securities or (z) to the repayment of Senior
Funded Debt of the Company or of any Restricted Subsidiary (other than
Senior Funded Debt owed to any Restricted Subsidiary), or in part to such
acquisition, construction, development or improvement and in part to such
redemption and/or repayment. In lieu of applying an amount equal to such
net proceeds to such redemption the Company may, within one year after such
sale or transfer, deliver to the Trustee Securities (other than Securities
made the basis of a reduction in a mandatory sinking fund payment) for
cancellation and thereby reduce the amount to be applied to the redemption
of Securities by an amount equivalent to the aggregate principal amount of
the Securities so delivered. (Section 5.06)
Restrictions on Transfer of Principal Facility to Certain
Subsidiaries. The Indenture provides that, so long as the Securities of
any series are outstanding, the Company will not, and will not cause or
permit any Restricted Subsidiary to, transfer any Principal Facility to any
Subsidiary which was not a Restricted Subsidiary at the time of such
transfer unless it shall apply within one year of the effective date of
such transaction, or shall have committed within one year of such effective
date to apply, an amount equal to the fair value of such Principal Facility
at the time of such transfer (i) to the acquisition, construction,
development or improvement of properties, facilities or equipment which
are, or upon such acquisition, construction, development or improvement
will be, a Principal Facility or Facilities or a part thereof or (ii) to
the redemption of Securities or (iii) to the repayment of Senior Funded
Debt of the Company or any Restricted Subsidiary (other than Senior Funded
Debt owed to any Restricted Subsidiary), or in part to such acquisition,
construction, development or improvement and in part to such redemption
and/or repayment. In lieu of applying all or any part of such amount to
such redemption the Company may, within one year of such transfer, deliver
to the Trustee Securities of any series (other than Securities made the
basis of a reduction in a mandatory sinking fund payment) for cancellation
and thereby reduce the amount to be applied to the redemption of Securities
by an amount equivalent to the aggregate principal amount of the Securities
so delivered. (Section 5.07)
MERGER
The Indenture provides that the Company may consolidate with, or
sell or convey all or substantially all of its assets to, or merge into any
other corporation, provided that in any such case, (i) the successor
corporation shall be a corporation organized and existing under the laws of
the United States of America or a State thereof and such corporation shall
expressly assume the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities, according to their
tenor, and the due and punctual performance and observance of all the
covenants and conditions of the Indenture to be performed by the Company by
supplemental indenture satisfactory to the Trustee, executed and delivered
to the Trustee by such corporation; and (ii) immediately after giving
effect to such transaction, no default shall have occurred and be
continuing. Notwithstanding the foregoing, if, upon any such consolidation
or merger of the Company with or into any other corporation, or upon any
sale or conveyance of the property of the Company as an entirety or
substantially as an entirety to any other corporation, or upon any
acquisition by the Company by purchase or otherwise of all or any part of
the properties of another corporation, any Principal Facility would
thereupon become subject to any Security Interest securing indebtedness not
permitted by the Indenture to be Secured Debt, the Company, prior to such
consolidation, merger, sale, conveyance or acquisition, will secure the
Securities outstanding, equally and ratably (subject to applicable
priorities of payment) with the debt secured by such Security Interest.
(Article Twelve)
MODIFICATION OF THE INDENTURE
With the consent of the Holders of more than 50% in aggregate
principal amount of any series of Securities then outstanding, waivers,
modifications and alterations of the terms of the Indenture may be made
which affect the rights of the Holders of such series of Securities, except
that no such modification or alteration may be made which will (a) extend
the time of payment of the principal at maturity of, or the interest on,
any such series of Securities, or reduce principal or premium or the rate
of interest, without the consent of the Holder thereof, or (b) without the
consent of all of the Holders of any series of Securities then outstanding,
reduce the percentage of Securities of any such series, the Holders of
which are required to consent (i) to any such supplemental Indenture,
(ii) to rescind and annul a declaration that the Securities of any series
are due and payable as a result of the occurrence of an Event of Default,
(iii) to waive any past default under the Indenture and its consequences
and (iv) to waive compliance with certain other provisions contained in the
Indenture. (Sections 5.09 and 11.02) In addition, as indicated under
"Events of Default" below, Holders of a majority in aggregate principal
amount of the Securities of any series then outstanding may waive past
defaults in certain circumstances and may direct the Trustee in enforcement
of remedies. The Company and the Trustee may, without the consent of any
Holders, modify and supplement the Indenture (i) to evidence the succession
of another corporation to the Company under the Indenture; (ii) to evidence
and provide for the replacement of the Trustee; (iii) with the Company's
concurrence, to add to the covenants of the Company for the benefit of the
Holders; (iv) to modify the Indenture to permit the qualification of any
supplemental indenture under the Trust Indenture Act of 1939 (the "Trust
Indenture Act"); and for certain other purposes. (Section 11.01)
DEFEASANCE, SATISFACTION AND DISCHARGE PRIOR TO MATURITY OR REDEMPTION
Defeasance of any Series. If the Company shall deposit with the
Trustee, in trust, at or before maturity or redemption, lawful money or
direct obligations of the United States of America or obligations the
principal of and interest on which are guaranteed by the United States of
America in such amounts and maturing at such times that the proceeds of
such obligations to be received upon the respective maturities and interest
payment dates of such obligations will provide funds sufficient, in the
opinion of a nationally recognized firm of independent public accountants,
to pay when due the principal (and premium, if any) and interest to
maturity or to the redemption date, as the case may be, with respect to any
series of Outstanding Securities, then the Company may cease to comply with
the terms of the Indenture, including the restrictive covenants described
above and the Events of Default described in clauses (d) and (e) under
"Events of Default" below, except for (1) the Company's obligation to duly
and punctually pay the principal of (and premium, if any) and interest on
such series of Securities if the Securities are not paid from the money or
securities held by the Trustee, (2) the Events of Default described in
clauses (a), (b), (c), (f) and (g) under "Events of Default" below, and
(3) certain other provisions of the Indenture including, among others,
those relating to registration, transfer and exchange, lost or stolen
securities, maintenance of place of payment and, to the extent applicable
to such series, the redemption and sinking fund provisions of the
Indenture. Defeasance of Securities of any series is subject to the
satisfaction of certain specified conditions, including, among others,
(i) the absence of an Event of Default at the date of the deposit, (ii) the
perfection of the Holders' security interest in such deposit, and (iii) the
absence of any conflicting interest of the Trustee under the Trust
Indenture Act. (Section 13.02)
Satisfaction and Discharge of any Series. Upon the deposit of
money or securities contemplated above and the satisfaction of certain
conditions, the Company may also cease to comply with its obligation duly
and punctually to pay the principal of (and premium, if any) and interest
on a particular series of Securities, or with any Events of Default with
respect thereto, and thereafter the Holders of such series of Securities
shall be entitled only to payment out of the money or securities deposited
with the Trustee. Such conditions include, among others, except in certain
limited circumstances involving a deposit made within one year of maturity
or redemption, (i) the absence of an Event of Default at the date of
deposit or on the 91st day thereafter, (ii) the delivery to the Trustee by
the Company of an opinion of nationally recognized tax counsel, or receipt
by the Company from, or publication of a ruling by the United States
Internal Revenue Service, to the effect that Holders of the Securities of
such series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and discharge and will be subject to
Federal income tax on the same amounts and in the same manner and at the
same times as would have been the case if such deposit and discharge had
not occurred, and (iii) that such satisfaction and discharge will not
result in the delisting of the Securities of that series from any
nationally recognized exchange on which they are listed. (Section 13.01)
Federal Income Tax Consequences. Under current Federal income tax
law, the deposit and defeasance described above under "Defeasance of any
Series" will not result in a taxable event to any Holder of Securities or
otherwise affect the Federal income tax consequences of an investment in
the Securities of any series.
A deposit and discharge described above under "Satisfaction and
Discharge of any Series" may be treated as a taxable exchange of such
Securities for beneficial interests in the trust consisting of the
deposited money or securities. In that event, a Holder of Securities may
be required to recognize gain or loss equal to the difference between the
Holder's adjusted basis for the Securities and the amount realized by such
Holder with respect to such exchange (which generally will be the fair
market value of the beneficial interest in such trust). Thereafter, such
Holder may be required to include in income a share of the income, gain and
loss of the trust. As described above, it is generally a condition to such
a deposit and discharge to obtain an opinion of tax counsel, or receipt by
the Company from, or publication of a ruling by the United States Internal
Revenue Service, to the effect that such deposit and discharge will not
alter the Holders' tax consequences that would have been applicable in the
absence of the deposit and discharge. Purchasers of the Securities should
consult their own advisors with respect to the tax consequences to them of
such deposit and discharge, including the applicability and effect of tax
laws other than Federal income tax law.
EVENTS OF DEFAULT
As to any series of Securities, an Event of Default is defined in
the Indenture as being: (a) default for 30 days in payment of any interest
on the Securities of such series; (b) failure to pay principal or premium
with respect to the Securities of such series, if any, when due;
(c) failure in the deposit of any sinking fund installment with respect to
any series of Securities when due; (d) failure to observe or perform any
other covenant in the Indenture or Securities of any series (other than a
covenant or warranty, a default in whose performance or whose breach is
specifically dealt with in the section of the Indenture governing Events of
Default), if such failure continues for 60 days after written notice by the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series; (e) uncured or unwaived failure to
pay principal of or interest on any other obligation for borrowed money of
the Company (including default under any other series of Securities and
including default by the Company on any guaranty of an obligation for
borrowed money of a Restricted Subsidiary) beyond any period of grace with
respect thereto if (i) the aggregate principal amount of any such
obligation is in excess of $10,000,000 and (ii) the default in such payment
is not being contested by the Company in good faith and by appropriate
proceedings; (f) certain events of bankruptcy, insolvency, receivership or
reorganization; or (g) any other Event of Default provided with respect to
Securities of that series. (Section 7.01) The Trustee or the Holders of 25%
in aggregate principal amount of the outstanding Securities of any series
may declare the Securities of such series immediately due and payable upon
the occurrence of any Event of Default (after expiration of any applicable
grace period); in certain cases, the Holders of a majority in principal
amount of the Outstanding Securities of any series may waive any past
default and its consequences, except a default in the payment of principal,
premium, if any, or interest (including sinking fund payments). (Sections
7.01 and 7.07)
The Indenture provides that the Trustee shall, within 90 days after
the occurrence of a default with respect to any such series for which there
are Securities outstanding which is continuing, give to the Holders of such
Securities notice of all uncured defaults known to it (the term default to
include the events specified above without grace periods); provided that,
except in the case of default in the payment of principal (or premium, if
any) or interest on any of the Securities of any series or the payment of
any sinking fund installment on the Securities of any series, the Trustee
shall be protected in withholding such notice if it in good faith
determines that the withholding of notice is in the interest of the
Securityholders. (Section 7.08)
Subject to the provisions of the Indenture relating to the duties of
the Trustee in case an Event of Default with respect to any series of such
Securities shall occur and be continuing, the Indenture provides that the
Trustee shall be under no obligation to exercise any of its rights or
powers under the Indenture at the request, order or direction of any of the
Holders of Securities outstanding of any series unless such Holders shall
have offered to the Trustee reasonable indemnity. (Sections 8.01 and 8.02)
The right of a Holder to institute a proceeding with respect to the
Indenture is subject to certain conditions precedent including notice and
indemnity to the Trustee, but the Holder has a right to receipt of
principal, premium, if any, and interest (subject to certain limitations
with respect to defaulted interest) on their due dates or to institute suit
for the enforcement thereof. (Section 7.04)
So long as the Securities of any series remain outstanding the
Company will be required to furnish annually to the Trustee an Officers'
Certificate stating whether, to the best of the knowledge of the signers,
the Company is in default under any of the provisions of the Indenture, and
specifying all such defaults, and the nature thereof, of which they have
knowledge. (Section 5.08) The Company will also be required to furnish to
the Trustee copies of certain reports filed by the Company with the
Commission. (Section 6.03)
The Holders of a majority in principal amount of the Securities
outstanding of such series will have the right to direct the time, method
and place for conducting any proceeding for any remedy available to the
Trustee, or exercising any power or trust conferred on the Trustee,
provided that such direction shall be in accordance with law and the
provisions of the Indenture. (Section 7.07) The Trustee will be under no
obligation to act in accordance with such direction unless such Holders
shall have offered the Trustee reasonable security or indemnity against
costs, expenses and liabilities which may be incurred thereby.
(Section 8.02)
INFORMATION CONCERNING THE TRUSTEE
First Trust of New York, National Association, Trustee under the
Indenture, is also the trustee for the Company's 9.875% Sinking Fund
Debentures due March 15, 2011, the Company's 6% Notes due October 15, 2003
and the Company's 7% Debentures due December 15, 2013, all of which have
been issued under the Indenture and are unsecured obligations of the
Company ranking equally with the Debt Securities.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters or
dealers, directly to one or more purchasers, through agents or through a
combination of the foregoing. Unless otherwise set forth in the Prospectus
Supplement, such underwriters will include either or both of Goldman, Sachs
& Co. and J.P. Morgan Securities Inc., acting alone or as representatives
of a group of underwriters. Either or both of Goldman, Sachs & Co. and
J.P. Morgan Securities Inc. may also act as agents.
The distribution of the Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may
receive compensation from the Company or from purchasers of Debt Securities
for whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell Debt Securities to or through dealers,
and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from
the purchasers for whom they may act as agents. Underwriters, dealers and
agents that participate in the distribution of Debt Securities may be
deemed to be underwriters, and any discounts or commissions received by
them from the Company and any profit on the resale of Debt Securities by
them may be deemed to be underwriting discounts and commissions, under the
Securities Act. Any such underwriter or agent will be identified, and any
such compensation received from the Company will be described in the
Prospectus Supplement.
Under agreements which may be entered into by the Company,
underwriters and agents who participate in the distribution of Debt
Securities may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Offered Securities from
the Company pursuant to contracts providing for payment and delivery on a
future date. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others,
but in all cases such institutions must be approved by the Company. The
obligations of any purchaser under any such contract will be subject to the
condition that the purchase of the Offered Securities shall not at the time
of delivery be prohibited under the laws of any jurisdiction to which such
purchaser is subject. The underwriters and such other agents will not have
any responsibility in respect of the validity or performance of such
contracts.
Unless otherwise indicated in the Prospectus Supplement, the Company
does not intend to list any of the Debt Securities on a national securities
exchange. In the event the Debt Securities are not listed on a national
securities exchange, certain broker-dealers may make a market in the Debt
Securities, but will not be obligated to do so and may discontinue any
market making at any time without notice. No assurance can be given that
any broker-dealer will make a market in the Debt Securities or as to the
liquidity of the trading market for the Debt Securities, whether or not the
Debt Securities are listed on a national securities exchange. The
Prospectus Supplement with respect to any Offered Securities will state, if
known, whether or not any broker-dealer intends to make a market in such
Offered Securities. If no such determination has been made, the Prospectus
Supplement will so state.
LEGAL MATTERS
The legality of the Debt Securities will be passed upon by White &
Case, 1155 Avenue of the Americas, New York, New York 10036, as counsel for
the Company, and by Mayer, Brown & Platt, 190 South LaSalle Street,
Chicago, Illinois 60603, as counsel for any underwriters or agents. Morton
Moskin, a director and shareholder of the Company, was an active member of
the firm of White & Case through December 31, 1994. As of January 1, 1995,
Mr. Moskin beneficially owned 5,853 shares of the common stock of the
Company.
EXPERTS
The consolidated financial statements of the Company appearing in
its Annual Report on Form 10-K for the year ended June 30, 1994 have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts
in accounting and auditing.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY
MALLINCKRODT GROUP INC.
SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR
ANY OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS
DEBT SECURITIES
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF
OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO ITS DATE.
___________________
_________________________
TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . 2
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . 4 [LOGO]
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . 5
RATIO OF EARNINGS TO FIXED CHARGES . . . . . . . . . . . 5
DESCRIPTION OF THE SECURITIES . . . . . . . . . . . . . . 6
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . 16
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . 17
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . 17
___________________
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following statement sets forth the estimated amounts of expenses,
other than underwriting discounts and commissions, to be borne by
Registrant in connection with the distribution of the Securities.
Securities and Exchange Commission Registration Fee . . . . . . . . . . . . . . $ 86,208
Trustee's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,000*
Printing Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100,000*
Rating Agency Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100,000*
Accounting Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 40,000*
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100,000*
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 15,000*
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,792*
Total Expenses . . . . . . . . . . . . . . . . . . . . . . . . $475,000
_______
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-Laws provide for indemnification, to the fullest
extent permitted by applicable law, of any of its directors and officers
who are, or have been, or are threatened to be, made a party to an action
or proceeding, whether civil or criminal, by reason of the fact that such
director or officer is a director or officer of the Company, against any
judgments, fines, amounts paid in settlement and expenses, including
attorneys' fees, or any appeal therein. The By-Laws also provide that
additional indemnification may be provided by the Company to any other
person to the extent permitted by applicable law.
The Company's Certificate of Incorporation provides that a current or
former director shall not be liable to the Company or its shareholders for
damages for any breach of duty except to the extent New York State law
prohibits elimination or limitation of such liability.
The Company has insurance to indemnify its directors and officers,
within the limits of the Company's insurance policies, for those
liabilities in respect of which such indemnification insurance is permitted
under the laws of the State of New York.
Reference is made to Sections 721-726 of the New York Business
Corporation Law ("B.C.L."), which are summarized below.
Section 721 of the B.C.L. provides that indemnification pursuant to
the B.C.L. shall not be deemed exclusive, provided that no indemnification
may be made if a judgment or other final adjudication adverse to the
director or officer establishes that (i) his acts were committed in bad
faith or were the result of active and deliberate dishonesty, and, in
either case, were material to the cause of action so adjudicated, or
(ii) he personally gained in fact a financial profit or other advantage to
which he was not legally entitled.
Section 722 of the B.C.L. provides that a corporation may indemnify a
director or officer made, or threatened to be made, a party to any action
whether derivative or nonderivative, or whether civil or criminal, against
judgments, fines, amounts paid in settlement and reasonable expenses
actually and necessarily incurred as a result of such action, if such
director or officer acted in good faith, for a purpose which he reasonably
believed to be in the best interests of the corporation and, in criminal
actions or proceedings, in addition, had no reasonable cause to believe
that his conduct was unlawful. In derivative actions, the statute provides
that no indemnification shall be made in respect of (1) a threatened
action, or a pending action which is settled or otherwise disposed of, or
(2) any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and to the extent an
appropriate court determines that the person is fairly and reasonably
entitled to indemnification.
Section 723 of the B.C.L. specifies the manner in which payment of
such indemnification may be authorized by the corporation. It provides that
indemnification by a corporation is mandatory in any case in which the
director or officer has been successful, whether on the merits or
otherwise, in defending an action. In any other case, indemnification under
Section 722 of the B.C.L. or as otherwise permitted under Section 721 of
the B.C.L. may be made by the corporation only if authorized by the
appropriate corporate action as set forth in such Section 723. Section 724
of the B.C.L. provides that upon proper application by a director or
officer, indemnification shall be awarded by a court to the extent
authorized under Sections 722 and 723 of the B.C.L. Section 725 of the
B.C.L. contains certain other miscellaneous provisions affecting the
indemnification of directors and officers, including provision for the
return of amounts paid as indemnification if any such person is ultimately
found not to be entitled thereto.
Section 726 of the B.C.L. authorizes the purchase and maintenance of
insurance to indemnify (1) a corporation for any obligation which it incurs
as a result of the indemnification of directors and officers under the
above sections, (2) directors and officers in instances in which they may
be indemnified by a corporation under such sections, and (3) directors and
officers in instances in which they may not otherwise be indemnified by a
corporation under such sections, provided the contract of insurance
covering such directors and officers provides, in a manner acceptable to
the New York State Superintendent of Insurance, for a retention amount and
for co-insurance. Such insurance may not provide for the indemnification,
other than defense costs, of any director or officer whose deliberate and
active dishonesty is held material to an adjudicated cause of action in a
judgment adverse to the insured nor of any director or officer who
personally gained in fact a financial profit or other advantage to which he
was not legally entitled.
ITEM 16. EXHIBITS.
NO.
1.1 Form of Underwriting Agreement
1.2 Form of Distribution Agreement
4.1 Form of Indenture dated as of March 15, 1985, as
amended and restated as of February 15, 1995,
between the Company and First Trust Company of New
York, National Association, as Trustee, including
Form of Securities
5.1 Opinion of White & Case
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of White & Case (included in Exhibit 5.1)
25.1 Form T-1, Statement of Eligibility under Trust
Indenture Act of 1939
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (1) (i) and (1) (ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to
be the initial bona fide offering thereof.
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for the liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 above, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in such Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in St. Louis, Missouri, on the 15th day of
February, 1995.
Mallinckrodt Group Inc.
By C. RAY HOLMAN
Name: C. Ray Holman
Title: Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following Persons, in
the capacities indicated, on February 15, 1995.
Signature Title
C. RAY HOLMAN Chairman of the Board, President and
C. Ray Holman Chief Executive Officer
MICHAEL A. ROCCA Senior Vice President and
Michael A. Rocca Chief Financial Officer
WILLIAM B. STONE Vice President and Controller
William B. Stone (Principal Accounting Officer)
RAYMOND F. BENTELE Director
Raymond F. Bentele
WILLIAM L. DAVIS, III Director
William L. Davis, III
RONALD G. EVENS Director
Ronald G. Evens
ALEC FLAMM Director
Alec Flamm
ROBERTA S. KARMEL Director
Roberta S. Karmel
CLAUDINE B. MALONE Director
Claudine B. Malone
MORTON MOSKIN Director
Morton Moskin
HERVE M. PINET Director
Herve M. Pinet
BRIAN M. RUSHTON Director
Brian M. Rushton
DANIEL R. TOLL Director
Daniel R. Toll
INDEX TO EXHIBITS
EXHIBIT SEQUENTIAL
PAGE NO.
1.1 Form of Underwriting Agreement *
1.2 Form of Distribution Agreement *
4.1 Form of Indenture dated as of March 15, 1985, as amended and restated as
of February 15, 1995, between the Company and First Trust Company of New *
York, National Association, as Trustee, including Form of Securities
5.1 Opinion of White & Case *
12.1 Computation of Ratio of Earnings to Fixed Charges *
23.1 Consent of Ernst & Young LLP *
23.2 Consent of White & Case (included in Exhibit 5.1)
25.1 Form T-1, Statement of Eligibility under Trust Indenture Act of 1939 *
_______
* Filed with this Registration Statement by direct electronic transmission.