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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 27
TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT
(PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
HEALTHDYNE TECHNOLOGIES, INC.
(Name of Subject Company)
I.H.H. CORP.
INVACARE CORPORATION
(Bidders)
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COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
18139610
(CUSIP Number of Class of Securities)
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THOMAS R. MIKLICH, ESQ.
CHIEF FINANCIAL OFFICER, GENERAL COUNSEL, TREASURER AND CORPORATE SECRETARY
INVACARE CORPORATION
899 CLEVELAND STREET
ELYRIA, OHIO 44035
TELEPHONE: (216) 329-6000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Bidders)
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COPY TO:
ROBERT E. SPATT, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017-3954
TELEPHONE: (212) 455-2000
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This Amendment No. 27 amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed on January 27, 1997 (as amended, the "Schedule 14D-1")
relating to the offer by I.H.H. Corp., a Delaware corporation (the "Purchaser")
and a wholly owned subsidiary of Invacare Corporation, an Ohio corporation (the
"Parent"), to purchase all of the outstanding shares of Common Stock, par value
$0.01 per share (the "Shares"), of Healthdyne Technologies, Inc., a Georgia
corporation (the "Company"), and unless and until the Purchaser declares that
the Rights Condition as defined in the Offer to Purchase referred to below is
satisfied) the associated Preferred Stock Purchase Rights (the "Rights") issued
pursuant to the Rights Agreement, as amended, dated as of May 22, 1995, between
the Company and SunTrust Bank, Atlanta (formerly Trust Company Bank), as Rights
Agent, at a purchase price of $15 per Share (and associated Right), net to the
seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated January 27, 1997, as amended
and supplemented by the Supplements thereto dated April 4, 1997 and June 6, 1997
(the "Offer to Purchase"), and in the related Letter of Transmittal. Unless
otherwise indicated, all capitalized terms used but not defined herein shall
have the meanings assigned to them in the Schedule 14D-1.
The Schedule 14D-1 is hereby amended and supplemented as follows:
On July 16, 1997, the Parent received a copy of a letter from the Company to
the Court in the Defensive Tactics Litigation indicating that, although the
Company conceded that it would call the Dead-Hand Elimination Proposal for a
vote at the Annual Meeting, the Company intended for such vote to be on a
"contingent basis" and did not intend to tabulate votes or announce results
unless there was a reversal of the Court's order on appeal. The Parent believes
that the Court's order does not justify such action by the Company and that such
action by the Company would be in violation of the federal securities laws and
Georgia state law. On July 17, 1997, the Parent sent a letter to the Court
responding to the Company's letter and stating the Parent's belief that its
pending motion for clarification or stay of the Court's Order in this regard
still needed to be decided before the Annual Meeting. The full texts of the
Company's letter to the Court and the Parent's letter to the Court are set forth
in Exhibit 11(g)(21) and Exhibit 11(g)(22), respectively.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(g)(21) Letter from the Company to the Court dated July 15, 1997.
(g)(22) Letter from the Parent to the Court dated July 17, 1997.
2
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this Statement is true, complete and correct.
INVACARE CORPORATION
By: /s/ THOMAS R. MIKLICH
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Name: Thomas R. Miklich
Title: Chief Financial Officer
I.H.H. CORP.
By: /s/ THOMAS R. MIKLICH
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Name: Thomas R. Miklich
Title: President
Date: July 17, 1997
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EXHIBIT INDEX
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EXHIBIT PAGE
NO. DESCRIPTION NO.
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Exhibit 11(g)(21) Letter from the Company to the Court dated July 15, 1997..............................
Exhibit 11(g)(22) Letter from the Parent to the Court dated July 17, 1997...............................
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[LETTERHEAD OF TROUTMAN SANDERS]
July 15, 1997
VIA HAND DELIVERY
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The Honorable Clarence Cooper
United States District Court
75 Spring Street, S.W.
Atlanta, GA 30335
Re: Invacare Corp., et al. v. Healthdyne Technologies, Inc., et al.
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Civil Action No. 1:97-CV-205-CC
Dear Judge Cooper:
This correspondence is in response to plaintiffs' emergency motion
for clarification of the July 3, 1997 order or, in the alternative, for a
limited stay pending appeal. In that motion, Invacare seeks relief not
previously requested, in the form of an order treating its bylaw proposal,
which the Court has determined is invalid under Georgia law, as "merely
advisory." Motion for Clarification page 2.
In our opinion, there is no need for the Court to address the
motion. Because of Invacare's timing, both sides' proxy cards still include
provisions allowing shareholders to express their views on the now-null bylaw
proposal. In order to avoid another time-consuming round of briefings and
the necessity for a hearing, Healthdyne would propose that, at the annual
meting on July 30, the bylaw proposal be presented for shareholder vote on a
contingent basis. Because this Court has clearly held that the bylaw
proposal is unlawful under Georgia law, the votes on this proposal will not
be counted at that time. However, the proxy cards and ballots will be
retained by the independent inspectors of the election so that, in the
unlikely event of a reversal on appeal, the proxy cards will be available and
tabulated.
Invacare's motion comes far too late in the process to avoid
shareholder confusion. While Invacare may now wish to characterize its
shareholder bylaw proposal as merely a recommendation to the directors, the
bylaw in question was not written as an advisory proposal. It is drafted so
that the language is mandatory, not precatory. If shareholders vote on the
proposal as it presently appears on both parties' proxy cards, there is no
way of determining whether the shareholders intend to vote for an illegal
mandatory bylaw or merely an advisory one. There are only two weeks left
prior to the meeting. Invacare's own evidentiary record
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submitted to this Court indicates that at least 30 days is required to
effectively communicate with shareholders so that they understand what they
are voting on. See April 5, 1997 Aff. Of Mark H. Harnett Paragraph 4.
---
Under Healthdyne's suggested procedure, no harm can be caused to
Invacare. If the Court's decision is reversed, the votes for Invacare's
shareholder proposal will be counted and published. Nor is there any need to
treat the illegal bylaw proposal as "merely advisory", with the potential for
massive shareholder confusion, when it was never intended as such in the
first place. Most importantly, there is no reason for the Court or the
parties to take any additional action in response to Invacare's motion. Of
course, should Your Honor feel that briefing is appropriate, we will be glad
to respond as directed by the Court.
Respectfully,
/s/ Winifred D. Simpson
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Winifred D. Simpson
WDS:mm
cc: The Honorable Luther D. Thomas (via hand delivery)
M. Robert Thornton, Esq. (via facsimile)
2
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[LETTERHEAD OF KING & SPALDING]
July 17, 1997
VIA HAND DELIVERY
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Hon. Clarence Cooper
U.S. District Judge
U.S. District Court for the
Northern District of Georgia
75 Spring Street, S.W.
Atlanta, Georgia 30335
Re: Invacare Corp., et al. v. Healthdyne Technologies, Inc., et al.
---------------------------------------------------------------
Civil Action File No. 1:97-CV-0205-CC
Dear Judge Cooper:
I am writing in response to Ms. Simpson's July 15 letter to the Court,
which only arrived at my office by fax on the afternoon of July 16.
Healthdyne's proposal to present the bylaw proposal for a
shareholder vote "on a contingent basis" and not count the votes or announce
the results at that time violates Invacare's rights and is unacceptable and,
as Healthdyne well knows, hardly "moots" the issue presented by Invacare's
motion. To have the vote and, as Healthdyne apparently intends, not tabulate
or announce the results would be in direct violation of both Georgia state
law and federal securities law and would completely destroy the advisory
aspect of the vote. Invacare's motion specifically objects to this precise
course of action. As a result, Invacare still needs the Court to rule on its
emergency motion prior to the July 30 annual meeting.
The Court's July 3 Order found the "proposed bylaw" to be invalid
under Georgia law, not the "bylaw proposal" (as Ms. Simpson claims), which is
the precedural mechanism by which Invacare intends to place this issue before
the shareholders. Healthdyne's obligation to place the bylaw proposal before
the shareholders on at least an advisory basis arises under state law and was
not addressed in any way in the Court's consideration of the cross motions
for summary judgment. There is no federal or state law authority which
permits Healthdyne to have this vote "on a contingent basis", nor is there
anything in the parties' arguments or the Court's July 3 Order which would
authorize Healthdyne to depart from the requirements of Georgia law regarding
voting
<PAGE>
Hon Clarence Cooper
July 17, 1997
Page 2
procedures. Furthermore, under O.C.G.A. Section 14-2-729.1, a newly-enacted
provision of the Georgia Business Corporation Code which became effective
July 1 of this year. Healthdyne is required to appoint an inspector for the
annual meeting, and the inspector is required to count all the votes,
determine the result, and issue a written report of his determinations.
Nor will there be shareholder confusion about the vote. In
materials discussing the possible effects of Healthdyne's challenge to the
validity of the proposed bylaw, Invacare has consistently informed
the shareholders that if "Healthdyne's challenge to the validity of the
[Bylaw Proposal] were to be successful", then "a vote in favor of the
[Bylaw Proposal] would not be directly legally binding on upon Healthdyne or
its Board of Directors but would nonetheless advise them of the shareholders'
strong desire that the 'dead-hand pill' restrictions be removed". See, e.g.,
--- ----
Preliminary Proxy Statement of Invacare dated May 29, 1997, as filed with the
SEC and publicly available, p. 10 (attached); Definitive Proxy Statement of
Invacare dated June 27, 1997, as filed with the SEC and mailed to the
shareholders, p. 11 (attached). In addition, draft materials from the
Investor Responsibility Research Center, a corporate-governance advisory
group which informs many institutional holders of its analysis of shareholder
voting issues, indicates that they fully understand the import of the Court's
ruling and intend to advise their institutional subscribers accordingly. See
---
Draft IRRC Proxy Fight Report, Proposal No. 3 (attached).
Invacare is merely asking the Court to clarify that its July 3 Order
was not intended, and should not be interpreted, to relieve Healthdyne of any
obligations it otherwise has to present the bylaw proposal for a shareholder
vote at the annual meeting, to count the votes, and to announce the results
of the vote. If the Court fails to address Invacare's motion, however, it is
apparent that Healthdyne intends to distort the meaning of the July 3 Order
and use it as an excuse to violate Invacare's rights. Thus, we request that
the Court establish a schedule for briefs and a hearing which will enable the
Court to rule on the motion prior to the July 30 annual meeting.
Sincerely,
/s/ Robert Thornton
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M. Robert Thornton
MRT/saw
cc: Winifred D. Simpson, Esq. (via hand delivery)
2
