<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 1996.
REGISTRATION NO. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NELLCOR PURITAN BENNETT INCORPORATED
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 94-2789249
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
4280 HACIENDA DRIVE, PLEASANTON, CA 94588
(Address of Principal Executive Offices) (Zip Code)
NELLCOR PURITAN BENNETT INCORPORATED 1995 EMPLOYEE STOCK
PARTICIPATION PLAN
(Full Title of the Plan)
LAUREEN DeBUONO, ESQ.
EXECUTIVE VICE PRESIDENT, HUMAN RESOURCES,
GENERAL COUNSEL AND SECRETARY
NELLCOR PURITAN BENNETT INCORPORATED
4280 HACIENDA DRIVE, PLEASANTON, CA 94588
(Name and Address of Agent For Service)
510-463-4000
(Telephone Number, Including Area Code,
of Agent For Service)
-----------------------------
<TABLE>
<CAPTION>
Calculation of Registration Fee
=============================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share Price Fee
=============================================================================================================
<S> <C> <C> <C> <C>
Common Stock 500,000 $54.625 $27,312,500 $9,418
=============================================================================================================
</TABLE>
* Estimate based on the average of the high and low sales prices of
Nellcor Puritan Bennett Common Stock on June 11, 1996, as reported
by the Nasdaq National Market.
** Calculated pursuant to paragraphs (h)(1) and (c) of SEC Rule 457.
<PAGE> 2
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference herein:
(a) The Company's annual report on Form 10-K for the fiscal year
ended July 2, 1995, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) All other reports filed by the Company since July 2, 1995 with
the Securities and Exchange Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act.
(c) The description of Nellcor Common Stock contained in the
registration statement filed on Form 8-A with the Securities and
Exchange Commission under the Exchange Act on September 15, 1986,
including any amendments and reports filed for the purpose of
updating such description.
(d) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
such securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Edward Lopez, Esq., who has rendered an opinion as to the validity of
the shares offered hereby, is Corporate Counsel and Assistant Secretary of the
Company. As of May 23, 1996, Mr. Lopez had options to purchase 11,300 shares of
the Company's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company, a Delaware corporation, is empowered by Section 145 of the
Delaware General Corporation Law (the "DGCL"), subject to the procedures and
limitations stated therein, to indemnify any person against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in the defense of any
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<PAGE> 3
threatened, pending or completed action, suit or proceeding in which such person
is made a party by reason of his or her being or having been a director or
officer of the Company. The statute provides that indemnification pursuant to
its provisions is not exclusive of other rights of indemnification to which a
person may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
The Company's Bylaws provide that the Company shall indemnify its
directors, and may indemnify its officers, to the full extent permitted by law.
The Company has entered into agreements with each of its directors and executive
officers, and with certain other employees, providing that the Company will
indemnify those persons to the full extent permitted by law against claims
arising out of their actions as agents of the Company and will advance expenses
of defending against such claims. The Company believes that indemnification
under its Bylaws or under such contracts covers at least negligence and gross
negligence by such directors, executive officers and other employees, and
requires the Company to advance litigation expenses in the case of stockholder
derivative or other actions against an undertaking by the indemnitee to repay
such advances if it is ultimately determined that the indemnitee is not entitled
to indemnification. The Company may enter into similar indemnification
agreements with other officers, employees or directors in the future.
The Company is also empowered by Section 102(b) of the DGCL to include
a provision in its certificate of incorporation to limit a director's liability
to the Company or its stockholders for monetary damages for breaches of
fiduciary duty as a director. Article Tenth of the Restated Certificate of
Incorporation of the Company provides that the personal liability of the
directors of the Company is eliminated to the fullest extent permitted by the
DGCL.
The Company presently maintains directors and officers liability
insurance coverage.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Index
<TABLE>
<CAPTION>
Exh. No. Description
- -------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation (incorporated
by reference to Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the year ended July 7,
1991).
4.2 Certificate of Amendment to Restated Certificate of
Incorporation (incorporated by reference to Exhibit
4.2 to the Registrant's Registration Statement on
Form S-8 (File No. 33-62465) filed on September 8,
1995).
</TABLE>
II-2
<PAGE> 4
<TABLE>
<S> <C>
4.3 Certificate of Determination of Preferences of Series
A Junior Participating Preferred Stock (incorporated
by reference to Exhibit 3.2 to the Registrant's
Annual Report on Form 10-K for the year ended July 7,
1991).
4.4 Bylaws (incorporated by reference to Exhibit 3.3 to
the Registrant's Annual Report on Form 10-K for the
year ended July 3, 1994).
4.5 Amended and Restated Rights Agreement, dated as of
March 8, 1996, by and between the Registrant and The
First National Bank of Boston, as Rights Agent
(incorporated by reference to Exhibit 2.1 of
Amendment No. 2 to the Registrant's Registration
Statement on Form 8-A filed with the Commission on
March 13, 1996).
4.6 Nellcor Puritan Bennett Incorporated 1995 Employee
Stock Participation Plan.
5.1 Opinion of Edward Lopez, Corporate Counsel and
Assistant Secretary of the Company.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Edward Lopez (included in Exhibit 5).
24.1 Manually executed Powers of Attorney (located on
signature pages hereof).
</TABLE>
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement 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;
(b) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "Act"), each post-effective amendment referred to in
undertaking (a) above 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;
(c) 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;
(d) That, for purposes of determining any liability under the Act, each
filing of the registrant's annual report pursuant to Section 13(a) or 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
II-3
<PAGE> 5
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;
(e) That, insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, 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 the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liability (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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pleasanton, State of California on June 5, 1996.
NELLCOR PURITAN BENNETT
INCORPORATED
By: /s/ C. Raymond Larkin, Jr.
____________________________________
C. Raymond Larkin, Jr.
President and Chief
Executive Officer
POWER OF ATTORNEY AND ADDITIONAL SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned
persons hereby constitutes and appoints C. Raymond Larkin, Jr., Michael P.
Downey and Laureen DeBuono, and each of them, whether acting individually or
jointly, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for such person and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement (including post-effective amendments) and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully as to all
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<PAGE> 6
intents and purposes he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes, may
lawfully do and cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------- ---------------------------- -------------
<S> <C> <C>
/s/ C. Raymond Larkin, Jr.
- -----------------------------
C. Raymond Larkin, Jr. President, Chief Executive June 11, 1996
Officer and Director
- -----------------------------
Michael P. Downey Executive Vice President and June 11, 1996
Chief Financial Officer
(principal financial and
accounting officer)
/s/ Burton A. Dole, Jr.
- -----------------------------
Burton A. Dole, Jr. Chairman and Director June 11, 1996
/s/ Robert J. Glaser, M.D.
- -----------------------------
Robert J. Glaser, M.D. Director June 11, 1996
/s/ Frederick M. Grafton
- -----------------------------
Frederick M. Grafton Director June 11, 1996
- -----------------------------
Donald M. Hammond Director June 11, 1996
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ Risa J. Lavizzo-Mourey, M.D.
- --------------------------------
Risa J. Lavizzo-Mourey, M.D. Director June 11, 1996
/s/ Thomas A. McDonnell
- --------------------------------
Thomas A. McDonnell Director June 11, 1996
/s/ Walter J. McNerney
- --------------------------------
Walter J. McNerney Director June 11, 1996
/s/ Edwin E. van Bronkhorst
- --------------------------------
Edwin E. van Bronkhorst Director June 11, 1996
</TABLE>
II-6
<PAGE> 1
EXHIBIT 4.6
NELLCOR PURITAN BENNETT INCORPORATED
1995 EMPLOYEE STOCK PARTICIPATION PLAN
Adopted by the Board of Directors on June 19, 1995
Approved by Stockholders on October 19, 1995
1. PURPOSE.
(a) The purpose of the Plan is to provide a means by which
employees of Nellcor Puritan Bennett Incorporated, a Delaware corporation (the
"Company"), and its Affiliates, as defined in subparagraph 1(b), which are
designated as provided in subparagraph 2(b), may be given an opportunity to
purchase Common Stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company, as those terms are defined
in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended (the "Code").
(c) The Company, by means of the Plan, seeks to retain the
services of its employees, to secure and retain the services of new employees,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company.
(d) The Company intends that the rights to purchase Common
Stock of the Company granted under the Plan be considered options issued under
an "employee stock purchase plan" as that term is defined in Section 423(b) of
the Code.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors
of the Company (the "Board") unless and until the Board delegates administration
to a Committee, as provided in
<PAGE> 2
subparagraph 2(c). Whether or not the Board has delegated administration, the
Board shall have the final power to determine all questions of policy and
expediency that may arise in the administration of the Plan.
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(i) To determine when and how rights to purchase Common Stock
of the Company shall be granted and the provisions of each offering of such
rights (which need not be identical).
(ii) To designate from time to time which Affiliates of the
Company shall be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and rights granted
under it and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan in a manner and to the extent it
shall deem necessary or expedient to make the Plan fully effective.
(iv) To amend the Plan as provided in paragraph 13.
(v) Generally, to exercise such powers and to perform such
acts as the Board deems necessary or expedient to promote the best interests of
the Company.
(c) The Board may delegate administration of the Plan to a Committee
composed of not fewer than three (3) members of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board, subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
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<PAGE> 3
3. SHARES SUBJECT TO THE PLAN.
Subject to the provisions of paragraph 12 relating to adjustments upon
changes in stock, the Common Stock that may be sold pursuant to rights granted
under the Plan shall not exceed in the aggregate Five Hundred Thousand (500,000)
shares of the Company's common stock, $.001 par value (the "Common Stock"). If
any right granted under the Plan shall for any reason terminate without having
been exercised, the Common Stock not purchased under such right shall again
become available for the Plan.
4. GRANT OF RIGHTS; OFFERING.
The Board or the Committee may from time to time grant or provide for
the grant of rights to purchase Common Stock of the Company under the Plan to
eligible employees (an "Offering") on a date or dates (the "Offering Date(s)")
selected by the Board or the Committee. Each Offering shall be in such form and
shall contain such terms and conditions as the Board or the Committee shall deem
appropriate. If an employee has more than one right outstanding under the Plan,
unless he or she otherwise indicates in agreements or notices delivered
hereunder: (1) each agreement or notice delivered by that employee will be
deemed to apply to all of his or her rights under the Plan, and (2) a right with
a lower exercise price (or an earlier-granted right, if two rights have
identical exercise prices) will be exercised to the fullest possible extent
before a right with a higher exercise price (or a later-granted right, if two
rights have identical exercise prices) will be exercised. The provisions of
separate Offerings need not be identical, but each Offering shall include
(through incorporation of the provisions of this Plan by reference in the
Offering or otherwise) the substance of the provisions contained in paragraphs 5
through 8, inclusive.
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<PAGE> 4
5. ELIGIBILITY.
(a) Rights may be granted only to employees of the Company or, as the
Board or the Committee may designate as provided in subparagraph 2(b), to
employees of any Affiliate of the Company. Except as provided in subparagraph
5(b), an employee of the Company or any Affiliate shall not be eligible to be
granted rights under the Plan unless, on the Offering Date, such employee has
been in the employ of the Company or any Affiliate for such continuous period
preceding such grant as the Board or the Committee may require, but in no event
shall the required period of continuous employment be equal to or greater than
two (2) years. In addition, unless otherwise determined by the Board or the
Committee, no employee of the Company or any Affiliate shall be eligible to be
granted rights under the Plan unless, on the Offering Date, such employee's
customary employment with the Company or such Affiliate is at least twenty (20)
hours per week and at least five (5) months per calendar year.
(b) The Board or the Committee may provide that each person who, during
the course of an Offering, first becomes an eligible employee of the Company or
designated Affiliate will, on a date or dates specified in the Offering which
coincides with the day on which such person becomes an eligible employee or
occurs thereafter, receive a right under that Offering, which right shall
thereafter be deemed to be a part of that Offering. Such right shall have the
same characteristics as any rights originally granted under that Offering, as
described herein, except that:
(i) the date on which such right is granted shall be the
"Offering Date" of such right for all purposes, including determination of the
exercise price of such right;
(ii) the Purchase Period (as defined below) for such right
shall begin on its Offering Date and end coincident with the end of such
Offering; and
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<PAGE> 5
(iii) the Board or the Committee may provide that if such
person first becomes an eligible employee within a specified period of time
before the end of the Purchase Period (as defined below) for such Offering, he
or she will not receive any right under that Offering.
(c) Directors and officers of the Company or an Affiliate who are
highly compensated employees within the meaning of Code Section 423(b)(4)(D) are
not eligible to be granted rights under the Plan.
(d) No employee shall be eligible for the grant of any rights under the
Plan if, immediately after any such rights are granted, such employee owns stock
possessing five percent (5%) or more of the total combined voting power or value
of all classes of stock of the Company or of any Affiliate. For purposes of this
subparagraph 5(d), the rules of Section 424(d) of the Code shall apply in
determining the stock ownership of any employee, and stock which such employee
may purchase under all outstanding rights and options shall be treated as stock
owned by such employee.
(e) An eligible employee may be granted rights under the Plan only if
such rights, together with any other rights granted under "employee stock
purchase plans" of the Company and any Affiliates, as specified by Section
423(b)(8) of the Code, do not permit such employee's rights to purchase stock of
the Company or any Affiliate to accrue at a rate which exceeds twenty-five
thousand dollars ($25,000) of fair market value of such stock (determined at the
time such rights are granted) for each calendar year in which such rights are
outstanding at any time.
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<PAGE> 6
6. RIGHTS; PURCHASE PRICE.
(a) On each Offering Date, each eligible employee, pursuant to an
Offering made under the Plan, shall be granted the right to purchase the number
of shares of Common Stock of the Company purchasable with up to fifteen percent
(15%) of such employee's Compensation (as defined in Section 7(a)) during the
period which begins on the Offering Date (or such later date as the Board
determines for a particular Offering) and ends on the date stated in the
Offering, which date shall be no more than twenty-seven (27) months after the
Offering Date (the "Purchase Period"). In connection with each Offering made
under this Plan, the Board or the Committee shall specify a maximum number of
shares which may be purchased by any employee as well as a maximum aggregate
number of shares which may be purchased by all eligible employees pursuant to
such Offering. In addition, in connection with each such Offering, the Board or
the Committee may specify a maximum aggregate number of shares which may be
purchased by all eligible employees on any given Exercise Date (as defined in
the Offering) under the Offering. If the aggregate purchase of shares upon
exercise of rights granted under the Offering would exceed any such maximum
aggregate number, the Board or the Committee shall make a pro rata allocation of
the shares available in as nearly a uniform manner as shall be practicable and
as it shall deem to be equitable.
(b) The purchase price of Common Stock acquired pursuant to rights
granted under the Plan shall be not less than the lesser of:
(i) an amount equal to eighty-five percent (85%) of the fair
market value of the Common Stock on the Offering Date; or
(ii) an amount equal to eighty-five percent (85%) of the fair
market value of the Common Stock on the Exercise Date.
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<PAGE> 7
7. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An eligible employee may become a participant in an Offering by
delivering an agreement to the Company within the time specified in the Offering
in such form as the Company provides. Each such agreement shall authorize
payroll deductions of up to fifteen percent (15%) of such employee's
Compensation during the Purchase Period. Compensation is defined as total cash
compensation, including commissions, bonuses, overtime and other cash
compensation and amounts elected to be deferred by the employee (that would
otherwise have been paid) under the Company's Voluntary Investment Plus Plan.
The payroll deductions made for each participant shall be credited to an account
for such participant under the Plan and shall be deposited with the general
funds of the Company. At any time during the Purchase Period, a participant may
terminate his or her payroll deductions. A participant may reduce, increase or
begin such payroll deductions after the beginning of any Purchase Period only as
provided for in the Offering. A participant may not make any additional payments
into his or her account.
(b) If a participant terminates his or her payroll deductions, such
participant may withdraw from the Offering by delivering to the Company a notice
of withdrawal in such form as the Company provides. Such withdrawal may be
elected at any time prior to the end of the Purchase Period. Upon such
withdrawal from the Offering by a participant, the Company shall distribute to
such participant all of his or her accumulated payroll deductions (reduced to
the extent, if any, such deductions have been used to acquire Common Stock for
the participant) under the Offering, without interest, and such participant's
interest in that Offering shall be automatically terminated. A participant's
withdrawal from an Offering will have no effect upon such participant's
eligibility to participate in any other Offerings under the Plan, but such
participant will be required to deliver a new participation agreement in order
to participate in other Offerings under the Plan.
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<PAGE> 8
(c) Rights granted pursuant to any Offering under the Plan shall
terminate immediately upon cessation of any participating employee's employment
with the Company or an Affiliate for any reason, and the Company shall
distribute to such terminated employee all of his or her accumulated payroll
deductions (reduced to the extent, if any, such deductions have been used to
acquire Common Stock for the terminated employee), without interest; provided,
however, that subject to the right of the terminated employee to withdraw from
the Offering and receive a distribution of his or her accumulated payroll
deductions (as described in paragraph 7(b)), in the event that a participating
employee's employment ceases within three (3) months of the next Exercise Date,
the balance in such employee's account shall be held and used to purchase Common
Stock for the terminated employee on such Exercise Date pursuant to the terms of
the ongoing Offering.
(d) Rights granted under the Plan shall not be transferable and shall
be exercisable only by the person to whom such rights are granted.
8. EXERCISE
(a) On each exercise date, as defined in the relevant Offering (an
"Exercise Date"), each participant's accumulated payroll deductions (without any
increase for interest) will be applied to the purchase of whole shares of Common
Stock of the Company, up to the maximum number of shares permitted pursuant to
the terms of the Plan and the applicable Offering, at the purchase price
specified in the Offering. No fractional shares shall be issued upon the
exercise of rights granted under the Plan. The amount, if any, of accumulated
payroll deductions remaining in each participant's account after the purchase of
shares which is less than the amount required to purchase one share of Common
Stock on the final Exercise Date of an Offering shall be held in each such
participant's account for the purchase of shares under the next
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<PAGE> 9
Offering under the Plan unless such participant withdraws from such next
Offering, as provided in subparagraph 7(b), or is no longer eligible to be
granted rights under the Plan, as provided in paragraph 5, in which case such
amount shall be distributed to such participant after such Exercise Date,
without interest. The amount, if any, of accumulated payroll deductions
remaining in any participant's account after the purchase of shares which is
equal to the amount required to purchase whole shares of stock on the final
Exercise Date of an Offering shall be distributed in full to such participant
after such Exercise Date, without interest.
(b) No rights granted under the Plan may be exercised to any extent
unless the Plan (including rights granted thereunder) is covered by an effective
registration statement pursuant to the Securities Act of 1933, as amended (the
"Securities Act"). If, on an Exercise Date of any Offering hereunder, the Plan
is not so registered, no rights granted under the Plan or any Offering shall be
exercised and all payroll deductions accumulated during the purchase period
shall be distributed to the participants, without interest.
9. COVENANTS OF THE COMPANY.
(a) During the terms of the rights granted under the Plan, the Company
shall keep available at all times the number of shares of Common Stock required
to satisfy such rights.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of Common Stock upon exercise of the rights granted under
the Plan. If, after reasonable efforts, the Company is unable to obtain from any
such regulatory commission or agency the authority which counsel for the Company
deems necessary for the lawful issuance and sale of
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<PAGE> 10
Common Stock under the Plan, the Company shall be relieved from any liability
for failure to issue and sell Common Stock upon exercise of such rights unless
and until such authority is obtained.
10. USE OF PROCEEDS FROM COMMON STOCK.
Proceeds from the sale of Common Stock pursuant to rights granted under
the Plan shall constitute general funds of the Company.
11. RIGHTS AS A STOCKHOLDER.
A participant shall not be deemed to be the holder of, or to have any
of the rights of a holder with respect to, any shares subject to rights granted
under the Plan unless and until certificates representing such shares shall have
been issued.
12. ADJUSTMENTS UPON CHANGES IN COMMON STOCK.
(a) If any change is made in the Common Stock subject to the Plan or
subject to any rights granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Board shall make
appropriate adjustments in the maximum number of shares subject to the Plan and
the number of shares and price per share of stock subject to outstanding rights.
(b) In the event of: (1) a dissolution or liquidation of the Company;
(2) a merger or consolidation in which the Company is not the surviving
corporation; (3) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's Common Stock outstanding immediately
preceding the merger are converted by virtue of the
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<PAGE> 11
merger into other property, whether in the form of securities, cash or
otherwise; or (4) any other capital reorganization in which more than fifty
percent (50%) of the shares of the Company entitled to vote are exchanged, then,
as determined by the Board in its sole discretion, (i) any surviving corporation
shall assume outstanding rights or substitute similar rights for those under the
Plan; (ii) such rights shall continue in full force and effect; or (iii) such
rights shall be exercised immediately prior to such event.
13. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in paragraph 12 relating to adjustments upon changes
in stock, no amendment shall be effective unless approved by the stockholders of
the Company within 12 months before or after the adoption of the amendment where
the amendment will:
(i) Increase the number of shares reserved for rights under
the Plan;
(ii) Modify the provisions as to eligibility for participation
in the Plan (to the extent such modification requires stockholder approval in
order for the Plan to obtain employee stock purchase plan treatment under
Section 423 of the Code); or
(iii) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to obtain employee stock
purchase plan treatment under Section 423 of the Code.
It is expressly contemplated that the Board may amend the Plan in any respect
the Board deems necessary or advisable to provide eligible employees with the
maximum benefits provided or to be provided under the provisions of the Code and
the regulations promulgated thereunder relating to employee stock purchase plans
and/or to bring the Plan and/or rights granted under it into compliance
therewith.
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<PAGE> 12
(b) Rights and obligations under any rights granted before amendment of
the Plan shall not be altered or impaired by any amendment of the Plan except
with the consent of the person to whom such rights were granted.
14. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate ten (10) years from the date the
Plan is adopted by the Board or approved by the stockholders of the Company,
whichever is earlier. No rights may be granted under the Plan while the Plan is
suspended or after it is terminated.
(b) Rights and obligations under any rights granted while the Plan is
in effect shall not be altered or impaired by suspension or termination of the
Plan except with the consent of the person to whom such rights were granted.
15. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board, but no
rights granted under the Plan shall be exercised unless and until the Plan has
been approved by the stockholders of the Company and, if required, an
appropriate permit has been issued by the Commissioner of Corporations of the
State of California.
16. RULE 16B-3 LIMITATIONS.
The terms and conditions of rights granted hereunder to, and the
purchase of shares by, persons subject to Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") shall comply with the applicable provisions of
Rule 16b-3. This Plan shall be deemed to contain, such rights shall contain, and
the shares issued upon exercise thereof shall be subject to,
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<PAGE> 13
such additional conditions and restrictions as may be required by Rule 16b-3 to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
17. NO EMPLOYMENT RIGHTS.
The Plan does not, directly or indirectly, create any right for the
benefit of any employee or class of employees to purchase any shares under the
Plan, or create in any employee or class of employees any right with respect to
continuation of employment by the Company and its Affiliates, and it shall not
be deemed to interfere in any way with the Company's (or it's Affiliate's) right
to terminate, or otherwise modify, an employee's employment at any time.
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<PAGE> 1
June 6, 1996 EXHIBIT 5.1
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
I am a Corporate Counsel for Nellcor Puritan Bennett Incorporated, a Delaware
corporation (the "Company"). I am delivering this opinion in connection with the
Registration Statement on Form S-8, to which this opinion is an exhibit,
covering 500,000 shares of the Company's common stock, $.001 par value (the
"Common Stock"), which may be issued pursuant to the Company's 1995 Employee
Stock Participation Plan (the "Plan").
I am of the opinion that:
1. All necessary corporate action has been duly taken to adopt the Plan, and
the Plan was duly approved by action of the stockholders of the Company.
2. The 500,000 shares of Common Stock have been reserved for purposes of the
Plan, and such shares, when issued in accordance with the terms and
conditions of the Plan, will be legally issued, fully paid and
non-assessable.
I hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the aforesaid registration statement.
Very truly yours,
/s/ Edward Lopez
Edward Lopez
Corporate Counsel
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (Nellcor Puritan Bennett Incorporated 1995 Employee Stock
Participation Plan) of our report dated July 26, 1995 except as to note 17
which is as of August 24, 1995, which appears on page 4 of Form 8-K of Nellcor
Puritan Bennet Incorporated as filed on April 3, 1996.
/s/ PRICE WATERHOUSE LLP
---------------------------------------
Price Waterhouse LLP
San Francisco, California
June 6, 1996
