SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 2)
Under the Securities Exchange Act of 1934
CIRCON CORPORATION
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
172736-10-0
(CUSIP Number)
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<S> <C> <C>
Peter M. Schoenfeld Thomas Sandell Jeffrey E. Schwarz
P. Schoenfeld Asset Management LLC Castlerigg Master Investments, Ltd. Metropolitan Capital Advisors, Inc.
1330 Avenue of the Americas c/o Sandell Asset Management Corp. 660 Madison Avenue
New York, NY 10019 65 East 55th Street 20th Floor
New York, NY 10019 New York, NY 10021
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with copies to:
Robert W. Forman, Esq.
Shapiro Forman & Allen LLP
380 Madison Avenue, 25th Floor
New York, NY 10017
212-972-4900
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 9, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |__|.
Check the following box if a fee is being paid with the statement |__|.
Page 1 of 11 Pages
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CUSIP NO. 172736-10-0 Page 2 of 11 pages
STATEMENT FOR SCHEDULE 13D
This statement amends Items 4, 5, 6 and 7 of the Statement to the Schedule
13D filed with the Commission on October 20, 1998, as previously amended, by The
Circon Shareholders Committee (the "Committee"), its members and their
affiliates and associates (all of the foregoing, the "Reporting Persons") with
respect to the common stock of Circon Corporation, a Delaware corporation (the
"Company"). As a result of the Agreement referred to in this Amendment, the
Committee has been disbanded and the Reporting Persons are no longer deemed to
be a group.
Item 4. Purpose of Transaction.
On November 9, 1998, the reporting Persons entered into an agreement (the
"Agreement") with the Company with respect to (i) the election of directors at
the 1998 Annual Meeting of Shareholders of the Company scheduled for November
24, 1998 (the "Annual Meeting") and (ii) certain other corporate governance
issues that the Committee previously proposed that the Company implement.
Pursuant to the Agreement, Alain Oberrotman, one of the Committee's proposed
nominees, was elected to the Circon Board on November 9, 1998. Mr. Oberrotman
and Joseph Hardiman, the former chairman and chief executive officer of the
National Association of Securities, Inc., who has had no prior affiliation with
the Company, will be two of the Board's three nominees for election as directors
at the Annual Meeting. The third nominee will be George Cloutier, the Company's
interim chief executive officer. The Board further agreed to consider electing
Lester Hill, another of the Committee's proposed nominees, as a director at the
first directors' meeting following the Annual Meeting of Shareholders. The
Company also agreed to interview Mr. Hill for the chief executive officer
position at such time as the Company commences its search for a new chief
executive officer.
In addition, pursuant to the Agreement, the Company's Board agreed to
propose to shareholders at the 1999 annual meeting eliminating the Company's
staggered board, so that the entire board would be elected annually, and to
consider any proposal to modify the existing Shareholders Rights Plan proposed
by any director.
The foregoing summary of the Agreement is qualified by reference to the
Agreement in its entirety, a copy of which is filed herewith as Exhibit 10.
Item 5. Interest in Securities of the Issuer.
(e) As a result of the Agreement, the Committee has been disbanded and the
Reporting Persons are no longer deemed to beneficially own 5% or more of the
Company's Common Stock.
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CUSIP NO. 172736-10-0 Page 3 of 11 pages
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Company.
On November 9, 1998, the Committee and each of its members entered into an
agreement with the Company and certain of its directors, a copy of which is
filed herewith as Exhibit 10 and is incorporated herein by reference.
Except as set forth in this Item 6 and in Item 6 of the Reporting Persons'
prior statements on Schedule 13D, no Reporting Person has any contract,
arrangement, understanding or relationship with respect to the Common Stock of
the Company.
Item 7. Material to be Filed as Exhibits.
10. Agreement dated November 9, 1998 between the Committee and the Company.
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CUSIP NO. 172736-10-0 Page 4 of 11 pages
SIGNATURES
After reasonable inquiry and to the best of its knowledge and belief, each
of the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: November 10, 1998
P. SCHOENFELD ASSET MANAGEMENT, INC.
By: /s/ Peter M. Schoenfeld
------------------------------------------
Peter M. Schoenfeld
/s/ Peter M. Schoenfeld
---------------------------------------------
PETER M. SCHOENFELD
CASTLERIGG MASTER INVESTMENTS, LTD.
By: Sandell Asset Management Corp.
By: /s/ Thomas Sandell
------------------------------------------
Thomas Sandell
SANDELL ASSET MANAGEMENT CORP.
By: /s/ Thomas Sandell
------------------------------------------
Thomas Sandell
/s/ Thomas Sandell
---------------------------------------------
THOMAS SANDELL
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CUSIP NO. 172736-10-0 Page 5 of 11 pages
METROPOLITAN CAPITAL ADVISORS, INC.
By: /s/ Jeffrey E. Schwarz
------------------------------------------
Jeffrey E. Schwarz
Chief Executive Officer
METROPOLITAN CAPITAL III, INC.
By: /s/ Jeffrey E. Schwarz
------------------------------------------
Jeffrey E. Schwarz
Chief Executive Officer
METROPOLITAN CAPITAL ADVISORS
INTERNATIONAL, LTD.
By: Metropolitan Capital III, L.P.
By: Metropolitan Capital III, Inc.
By: /s/ Jeffrey E. Schwarz
------------------------------------------
Jeffrey E. Schwarz
Chief Executive Officer
/s/ Jeffrey E. Schwarz
---------------------------------------------
JEFFREY E. SCHWARZ
/s/ KAREN FINERMAN
---------------------------------------------
KAREN FINERMAN
BEDFORD FALLS INVESTORS, L.P.
By: Metropolitan Capital Advisors, L.P.
By: Metropolitan Capital Advisors, Inc.
By: /s/ Jeffrey E. Schwarz
------------------------------------------
Jeffrey E. Schwarz
Chief Executive Officer
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CUSIP NO. 172736-10-0 Page 6 of 11 pages
EXHIBIT INDEX
Exhibit Number Title Page Number
10. Agreement dated November 9, 1998 7
between the Committee and the Company.
CUSIP NO. 172736-10-0 Page 7 of 11 pages
EXHIBIT 10
AGREEMENT
AGREEMENT dated November 9, 1998, by and between Circon Corporation
("Circon") and to the other signatories hereto, including the members of The
Circon Shareholders Committee (the "Committee"), who am identified on the
signature page of this Agreement (the "Committee Members").
RECITALS
A. The Committee has been formed for the purpose of nominating persons and
soliciting proxies for the election of such persons as directors at the Circon
1998 Annual Meeting of Shareholders (the "Annual Meeting").
B. The Committee has given Circon certain notice. (the "Committee Notices")
of its intention to nominate the following three persons at the Annual Meeting:
Alain Oberrotman ("Oberrotman"), John Macey ("Macey") and Lester Hill ("Hill").
C. Directors are to be elected at the Annual Meeting for three seats. Of
these three seats, one (a Class II seat) is currently held by George Cloutier.
The second seat (also a Class II seat) has been held by R. Bruce Thompson, who
is resigning on the date of this Agreement so that his seat can be filled by the
Board's election on this date of Mr. Oberrotman. The third seat (a Class III
seat) is held by Richard Auhll, whose term will expire at the Annual Meeting by
reason of his resignation as an officer of Circon on October 19,1998. The Board
has nominated Joseph Hardiman to fill this seat.
D. The Circon Board and the Committee Members desire (i) to avoid the
expense and other detriment of a proxy contest and (ii) to enable the views of
the Committee (and other shareholders holding similar views) to be represented
on the Board.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. The nominees of the Circon Board, to be set forth in its proxy statement
for the Annual Meeting, will be Messrs. Cloutier and Oberrotman for the two
Class II seats and Mr. Hardiman for the Class III seat being vacated by Mr.
Auhll. Subject to the satisfaction of the conditions set forth in paragraph 2
below and to Circon's not materially breaching its obligations under this
Agreement, the Committee Members hereby agree that the Committee Notices shall
be deemed, without further action by the Committee Members, to have been
withdrawn immediately prior to the Annual Meeting, and the Committee Members
agree not to make any nominations at the Annual Meeting and not to distribute
its proxy statement or proxy card.
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CUSIP NO. 172736-10-0 Page 8 of 11 pages
2. The obligations of the parties shall be conditioned on the satisfaction
of each of the following conditions not later than November 9, 1998:
a. The Circon Board shall have duly approved this Agreement.
b. Circon and all Committee Members shall have executed this
Agreement.
c. Mr. Thompson shall have resigned as a director and Mr. Oberrotman
shall have been duly elected to the Board.
d. The press release attached hereto as Exhibit A shall have been
released by Circon to the financial media.
3. The Circon Board will consider the following matters (among others) not
later than at the first Board meeting to be held within one week following the
Annual Meeting:
a. the election of Mr. Hill to the Board, and for this purpose will
expand the Board to eight seats if there is no vacancy at that time;
b. such changes to the Shareholders Rights Plan as any director may
propose.
At such time as Circon begins its search for a new Chief Executive Officer, the
Board's search committee will interview Mr. Hill for that position, along with
all other persons whom the search committee may believe to be suitable
candidates. The Board's selection of the new CEO is at its absolute discretion.
4. The Board will approve an amendment to the Certificate of Incorporation
to change the classified Board provisions to an annually elected board. This
amendment will be submitted to the stockholders at the 1999 stockholders meeting
to become effective for the election of directors at that meeting. Prior to the
conclusion of such meeting, the Board will not adopt any new takeover defenses
designed to make a change of control more difficult; but this commitment shall
not be construed to restrict Circon from maintaining current arrangements.
5. The Circon proxy statement for the Annual Meeting will make all of the
disclosures set forth in the press release in Exhibit A,
6. Circon will pay the Committee's legal and other expenses incurred in
connection with the proposed nomination of Messrs. Oberrotman, Macey and Hill
and the solicitation of proxies, including but not limited to all expenses of
preparing proxy materials, the disclosed fees paid to the prospective nominees,
proxy solicitor fees and all other related out-of-pocket expenses. The total of
such expenses is estimated to be $210,000. In no event will the total expenses
exceed $250,000. Such payment by Circon shall be made promptly (and in no event
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CUSIP NO. 172736-10-0 Page 9 of 11 pages
later than seven days) after Circon's receipt of reasonable documentation
substantiating such expenses. Such submissions may be made from time to time for
portions of the expenses and supplemented as data and documentation concerning
other expenses become available.
7. This Agreement constitutes the entire agreement between the parties. No
amendment or modification of or supplement to this Agreement shall be binding
unless executed in writing by all parties hereto. Any waiver of any provision of
this Agreement shall be in a writing executed by the waiving party and shall not
waive any other provision and shall not constitute a continuing waiver.
8. This Agreement may be executed in counterparts.
9. In the event of litigation to enforce any right or remedy arising from
this Agreement, the prevailing party shall be entitled to reasonable attorneys
fees and costs.
10. Each party other than Circon represents to Circon that the signatories
below under the caption "The Circon Shareholders Committee" constitute all the
members of the Committee and all persons who gave the Committee Notices and that
the person signing on behalf of each is duly authorized to do so.
Executed by the parties as of the date first above written.
Circon Corporation
By: /s/ George A. Cloutier By: /s/ John Blokker
------------------------------ --------------------------------------
George Cloutier John Blokker
Chief Executive Officer Chairman of the Board of Directors
/s/ Charles Elson /s/ Lt. Gen. Victor H. Krulak
- ---------------------------------- ------------------------------------------
Director Director
The Circon Shareholders Committee
P. Schoenfeld Asset Management LLC Bedford Falls Investors Investors, L.P.
By: Metropolitan Capital Advisors, L.P.
By: /s/ Peter M. Schoenfeld By: Metropolitan Capital Advisors, Inc.
------------------------------
Castlerigg Master Investments, Ltd. By: /s/ Jeffrey E. Schwarz
--------------------------------------
By: /s/ Thomas Sandell
------------------------------
Thomas Sandell
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CUSIP NO. 172736-10-0 Page 10 of 11 pages
Metropolitan Capital Advisors, Inc.
By: /s/ Jeffrey E. Schwarz
------------------------------
Jeffrey E. Schwarz
Chief Executive Officer
Metropolitan Capital III, Inc.
By: /s/ Jeffrey E. Schwarz
------------------------------
Jeffrey E. Schwarz
Chief Executive Officer
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CUSIP NO. 172736-10-0 Page 11 of 11 pages
EXHIBIT A
Circon Press Release
Circon Corporation, Santa Barbara, California (NASDAQ-NMS: CCON) - November
9, 1998 - Circon Corporation announced today that its Board of Directors has
reached an agreement with The Circon Shareholders Committee, which was formed by
a group of shareholders to nominate and solicit proxies to elect certain persons
as directors at the 1998 Annual Meeting of Shareholders.
Under the terms of the agreement with the Committee, the Board's nominees
will be George Cloutier, Alain Oberrotman and Joseph Hardiman. Mr. Oberrotman,
who was first proposed as one of the Committee's nominees, was elected to the
Board today. The Committee will withdraw its proposed nominations and has agreed
not to solicit proxies. The only persons eligible for nomination at the Annual
Meeting will be the Board's three nominees, including Mr. Oberrotman.
George Cloutier, interim CEO, stated: "We welcome the addition to the Board
of Mr. Hardiman and Mr. Oberrotman. They are highly qualified and we expect the
Board to be strengthened by their contributions. We also look forward to a
continuing dialog with all shareholders who want to express their views on any
matter concerning Circon."
The Board has also agreed to consider, at the first Board meeting following
the Annual Meeting, the election of Lester "Buck" Hill to the Board and any
changes to the company's Shareholders Rights Plan that any director may propose.
The Board further agreed to approve an amendment to the Certificate of
Incorporation to change the classified Board provisions to an annually elected
Board. This amendment will be submitted to the shareholders at the 1999 Annual
Meeting to become effective for the election of directors at that meeting.
Circon will reimburse the Committee's legal and other expenses.
Although the Circon Board has previously announced its decision not to
continue to seek new potential buyers for Circon at this time, it intends to
evaluate any new proposals that may be received in the future and encourages
further discussions with companies that have expressed an interest in such
transactions. Any such discussions must be kept confidential, and it is Circon's
policy not to comment on merger rumors. The Board, including the Board's
nominees for election at the Annual Meeting, is committed to maximize
shareholder value.
