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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 6
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. 6 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 $13 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 (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 March 24, 1997, the Parent delivered a letter to the Council of
Institutional Investors regarding proposed legislation in the Georgia
legislature which, if adopted, would, among other things, impose on all publicly
held Georgia companies a "staggered board" scheme and eliminate the right of
shareholders of such companies to remove directors without cause, unless the
board of directors effectively chose not to be governed by such provisions. The
full text of the letter is set forth in Exhibit (g)(3) and is incorporated
herein by reference._>
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended and supplemented to add the following:
(g)(3) Letter delivered by the Parent to the Council of
Institutional Investors on March 24, 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: March 24, 1997
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EXHIBIT INDEX
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11(g)(3) Letter delivered by the Parent to the Council of Institutional Investors on March 24, 1997....
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INVACARE CORPORATION
March 24, 1997
Members, Council of Institutional Investors
Ms. Sarah Teslik, Executive Director
Suite 512
1730 Rhode Island Avenue, N.W.
Washington, D.C. 20036
RE: IMPORTANT CORPORATE GOVERNANCE
ALERT--NEGATIVE LEGISLATION PENDING
DEAR MEMBERS AND MS. Teslik:
As you convene for your spring meeting of the Council of Institutional
Investors in Washington, D.C., we think that it is important to make you
fully aware of a corporate governance battle that is being waged before the
Georgia state legislature even as you meet. As you may know, Invacare
Corporation has made a public tender offer for all of the outstanding common
stock of Healthdyne Technologies, Inc. In response to the Invacare offer,
Healthdyne and its advisors sponsored an eleventh-hour amendment to a routine
bill in the Georgia legislature that, if enacted, would substantially alter
the balance of power between shareholders and boards of directors of publicly
held Georgia corporations.
This bill, which was passed by the Georgia state Senate on Friday, is
designed to entrench management at the expense of the rights of shareholders.
Although these amendments were proposed in the context of one takeover
battle, the implications of the bill affect corporate governance rights for
all shareholders in Georgia public corporations and could signal a dangerous
corporate governance trend in other states as well. The proposed amendment
has not yet been acted upon by the Georgia House of Representatives but is up
for reconsideration by the Georgia state Senate TODAY. Therefore, we urge you
to take immediate action to make your voice heard in opposition to this
legislation.
As explained in more detail in the summary attached to this letter, the
bill as proposed would, among other things, (i) automatically stagger the
terms of the directors of all publicly traded Georgia corporations, (ii)
prevent shareholders from removing directors of publicly traded Georgia
corporations except for narrowly defined "cause" unrelated to the performance
of the company and (iii) prevent shareholders of publicly traded Georgia
corporations from adopting bylaws that limit the authority of the board of
directors. This bill, if enacted, would substantially immunize boards of
directors of publicly traded Georgia corporations from accountability to or
removal by their own shareholders. For the next two years, only the board of
directors would have the ability to "opt out." After March 1, 1999, a
supermajority two-thirds would be required for the shareholders to escape the
burden of these provisions on their own.
The proposed bill has implications for you that go far beyond the proposed
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transaction between Invacare and Healthdyne or the effect of this particular
director-entrenching measure on Georgia corporations. Currently, Georgia and
virtually every other state requires shareholder approval to adopt a
staggered board. Under the proposed bill, shareholders of publicly held
Georgia corporations are automatically stripped of their right to decide
whether they can elect an entire board at each annual meeting.
Shareholders, not state legislatures manipulated by individual local
boards of directors, must continue to have the right to make basic corporate
governance decisions. If this type of misuse of legislative power can happen
in Georgia, it can happen anywhere, substantially undercutting the ability of
shareholders to decide whether to accept acquisition proposals and exercise
control over their boards of directors. Even companies that already have
staggered boards and other anti-takeover protections in place will be
encouraged to influence the local legislature to make other bad laws for
"good friends". State laws should not be amended merely to further the
interests of one party in a private dispute, especially when the implications
are as far-reaching as those of the proposed Georgia legislation. Unless this
process in Georgia can be stopped immediately, it will set a dangerous
precedent and could undermine the potential value of all your investments,
whether in Georgia or elsewhere.
For the reasons described above, we hope that you agree that the proposed
legislation to amend Georgia corporate law is not in the best interests of
all shareholders of publicly held Georgia corporations and signals a
dangerous trend of state legislators interfering with shareholder rights to
benefit local political agendas. The Georgia legislation is being considered,
and could be enacted, as early as TODAY. Your immediate help is needed to
stop this extraordinary usurpation of shareholder rights. Please help us
communicate a strong message to the Georgia General Assembly by filling in
the attached "message" and faxing it back to us TODAY at (404) 347-9080.
We also urge you to call the Georgia legislators named on the attached
list and let them hear your views against this proposed legislation or call
Thomas S. Chambless (912/436-1548), Pete Robinson (706/649-3080) or Betsey
Weltner (404/347-9860) for more information on how you can help in the fight
against this anti-shareholder, director-entrenching legislation. Even if the
Georgia state Senate fails to reconsider this legislation today, we will
continue to fight and hope that we can count on your support.
We look forward to your support in our fight of these outrageous attempts
to manipulate the corporate laws of Georgia for the benefit of seven
individuals, the current board of directors of Healthdyne.
Sincerely,
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A. Malachi Mixon, III
Chairman and CEO
Invacare Corporation
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MESSAGE TO GEORGIA GENERAL ASSEMBLY
RE: HB 294's Anti-shareholder, director-entrenching provisions
FROM:
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The investment community is concerned that the Georgia General Assembly's
effort to change the shareholder-board balance in Georgia is ill-conceived
legislation that will have long-term, negative implications for Georgia's
companies and Georgia's future investment climate.
COMMENTS:
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ADDRESS:
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PLEASE FAX TO (404) 347-9080.
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SUMMARY OF PROPOSED AMENDMENT TO H.B. 294
I. INTRODUCTION
An amendment to the Georgia Business Corporation Code passed the Senate
on Thursday, March 21, that, if enacted, would substantially immunize boards
of directors of publicly held Georgia corporations from accountability to, or
removal by, their own shareholders. This amendment, which bypassed the normal
legislative review process and was not subjected to any committee
deliberations, was proposed at the eleventh hour as an addendum to a routine
bill on the floor of the Senate by legislators on behalf of one Georgia
corporation that is currently the subject of an acquisition bid. The bill as
proposed would, among other things, (i) automatically stagger the terms of
the directors of all publicly traded Georgia corporations, (ii) prevent
shareholders from removing directors of publicly held Georgia corporations
except for narrowly defined "cause" unrelated to the performance of the
corporation and (iii) prevent shareholders of publicly traded Georgia
corporations from controlling the authority of boards of directors. For the
next two years, only the board of directors would have the ability to "opt
out." After March 1, 1999, a supermajority two-thirds would be required for
the shareholders to'opt out" instead of the usual majority vote required for
shareholder actions.
The result of this amendment would be to insulate directors of
corporations against loss of control, even if shareholders wish to change
control, for at least two annual meetings of shareholders. When a bidder
wishes to buy all of the shares of a corporation, the bidder normally has the
ability to go to the target company shareholders and seek their support in
removing incumbent directors who refuse to allow shareholders to accept an
attractive bid. This amendment, if it becomes law, would nullify these rights
and deny the shareholders the ability to accept the offer for at least two
years.
The amendment disrupts all Georgia corporations that currently are in the
process of giving notice of their annual meetings or raising capital. Such
corporations must now ask: are all our directors up for election this year,
or only one-third? Georgia law has changed--will anyone want to buy our stock?
II. ANALYSIS
A. The proposed amendments would provide that all corporations
with a class of stock registered under the Securities Exchange Act
of 1934 shall have staggered boards. Proposed Section14-2-806(b).
** Would deny shareholders the freedom to decide the terms for
directors and to decide whether the board shall be classified for
the next two years.
** Would disrupt the patterns of those corporations whose shareholders
have chosen to elect all directors annually.
** Would conflict with Section14-2-1020(c), which provides that a bylaw
establishing staggered terms for directors may only be adopted, amended
or repealed by the shareholders.
B. The proposed amendments would only permit removal of directors with
staggered terms for "cause", which is narrowly defined and would not
include mismanagement, poor performance or frustration of the ability
of shareholders to accept an offer to buy their shares. Proposed
Section 14-2-808(d). (See also Proposed Section 14-2-806(f)(2).)
** Disrupts the decisions of those corporations that have chosen the
standard rule of allowing shareholders to remove directors with or
without cause (Section14-2-808(a)).
C. The proposed amendments define "cause" narrowly to include only extreme
misbehavior, such as commission of a felony, insanity and immoral acts.
Inadequate performance or even mismanagement would not serve as cause for
removal of directors. Refusing to follow the clear instructions of
shareholders would not constitute cause, even if the instructions were
"do not interfere with shareholders' ability to sell their shares."
Proposed Section14-2-806(a)(1).
** Would deny a shareholder the ability to remove directors for reasons
the shareholders deemed important.
D. The ability to "opt out" would be limited and biased in favor of boards of
directors. Only the board of directors could "opt out" at any time.
Shareholders could not "opt out" until March 1, 1999. A supermajority
two-thirds vote would be required for an "opt out" by shareholders.
Proposed Section14-2-806(c)(1).
** Would impose an abnormally restrictive voting rule if shareholders want
to make directors more accountable.
** Would conflict with Georgia policy established in Section14-2-1021(a),
which reserves the power to establish supermajority voting requirements
solely to the shareholders.
** Ability of the board of directors to "opt out" at any time through bylaw
amendment conflicts with Section14-2-1020(c), which currently provides
that a bylaw providing for a staggered board may only be amended or
repealed by the shareholders.
E. Would prohibit shareholders from amending the bylaws to restrict the
discretion or power of the board. Proposed Section14-2-806(f)(3).
** Would conflict with current provisions of Section14-2-1020(c) and
Section14-2-801(b) and (c), which permit shareholders to amend the
bylaws to limit the authority of directors.
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F. Would provide that the number of directors can be fixed only by majority
vote of directors, unless the articles of incorporation provide otherwise,
thus providing a majority of the board the opportunity to attempt to
"pack" the board with friendly allies and dilute minority representation.
Proposed Section14-2-806(c)(1). ** Presently the shareholders have the
power to amend the bylaws to fix the number of directors
(Section14-2-803(a)).
** Would conflict with Section14-2-1020(b), which provides that
shareholders may amend or repeal bylaws even though the directors have
concurrent power.
Key Members to Contact: Senate
Message: Vote for reconsideration on HB 294 on Monday, March 24, 1997.
Cheeks, Don (D)
23rd District (Parts of Columbia, Richmond)
(706) 736-1397--O
(706) 736-6348--H
Henson, Steve (D)
55th District (Parts of DeKalb, Fulton)
(404) 243-5127--O
(770) 469-5568--H
Hooks, George (D)
14th District (Taylor, Peach, Sumter)
(912) 924-2924--O
(912) 924-1649--H
Middleton, Guy (D)
50th District (Rabun, Towns, Union, Habersham, White, Lumpkin, Stephens,
Dawson) (706) 864-3377--O/H
Starr, Terrell (D)
44th District (Part of Clayton)
(404) 366-5311--O
(404) 366-6746--H
Turner, Loyce (D)
8th District (Miller; Parts of Decatur, Brooks, Grady, Lowndes, Thomas)
(912) 242-5725--O
(912) 244-1501--H
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Key Members to Contact: House
Message: Vote against Senate additions to HB 294.
Coleman, Terry (D)
142nd District (Bleckley, Dodge, Parts of Laurens, Telfair)
(912) 374-5594--O
(912) 374-4878--H
Harbin, Ben (R)
113th District (Part of Columbia)
(706) 855-6700--O
(706) 650-8268--H
Irvin, Bob (R)
45th District (Part of Fulton)
(770) 643-5157--O
(not listed)--H
Lee, Bill (D)
94th District (Part of Clayton)
(404) 656-5024--O
(404) 761-6522--H
Polak, Mike (D)
67th District (Part of DeKalb)
(404) 249-6754--O
(404) 880-0432--H
Reichert, Robert (D)
126th District (Part of Bibb)
(912) 743-8651--O
(912) 477-5808--H
Sinkfield, Georganna (D)
57th District (Part of Fulton)
(404) 622-1515--O
(not listed)--H
Walker, Larry (D)
141st District (Parts of Crisp, Dooly, Houston)
(912) 987-1415--O
(912) 987-3029--H
