<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 12, 1996
REGISTRATION NO. 333-14961
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
POST EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
NELLCOR PURITAN BENNETT INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
3693
(PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER)
94-2789249
(I.R.S. EMPLOYER IDENTIFICATION NO.)
4280 HACIENDA DRIVE
PLEASANTON, CALIFORNIA 94588
(510) 463-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
AEQUITRON MEDICAL, INC. 1995 EMPLOYEE STOCK PURCHASE PLAN,
AEQUITRON MEDICAL, INC. AMENDED AND RESTATED 1988 STOCK OPTION PLAN
AND AEQUITRON MEDICAL, INC. 1985 INCENTIVE STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
C. RAYMOND LARKIN, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
NELLCOR PURITAN BENNETT INCORPORATED
4280 HACIENDA DRIVE
PLEASANTON, CALIFORNIA 94588
(510) 463-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
ROBERT M. MATTSON, JR., ESQ.
MORRISON & FOERSTER
19900 MACARTHUR BOULEVARD
IRVINE, CALIFORNIA 92715
(714) 251-7500
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Pursuant to Rule 416(c) under the Securities Act, this Registration Statement
also covers an indeterminate amount of interests to be offered or sold pursuant
to the employee benefit plans described herein.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 on Form S-8 amends Registration Statement
No. 333-14961 which was previously filed on Form S-4 (the "Original
Registration Statement") in connection with the merger (the "Merger") of
Aequitron Medical, Inc. ("Aequitron") with and into Nellcor Puritan Bennett
Incorporated (the "Registrant"). In connection with the filing of the Original
Registration Statement, 3,830,151 shares of the Registrant's Common Stock,
$.001 par value per share (the "Common Stock") were registered with the
Securities and Exchange Commission and the applicable filing fee was paid. The
number of shares registered pursuant to the Original Registration Statement
were those shares of Common Stock expected to be distributed to holders of the
common stock of Aequitron in connection with the Merger. All of the shares
of Common Stock included in this Post-Effective Amendment No. 1 were included
in and registered on the Original Registration Statement. Such shares include
544,943 shares of Common Stock issuable under the Aequitron 1995 Employee Stock
Purchase Plan and upon exercise of options outstanding under the Amended and
Restated 1988 Stock Option Plan and 1985 Incentive Stock Option Plan.
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Page 1 of 10 pages.
The Index to Exhibits appears on page 9.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act").
Page 2 of 10 Pages
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Nellcor Puritan Bennett Incorporated (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
are incorporated by reference herein:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended July 7, 1996, which includes audited financials for the Registrant's
latest fiscal year, 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 Registrant pursuant to Sections
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by
the audited financial statements in (a) above.
(c) The description of the Registrant's Common Stock contained in
the Registration Statement on Form 8-A, filed with the Commission on September
15, 1986 under the Exchange Act, including any amendment or report filed for
the purposes of updating such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
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 statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 145 ("Section 145") of the General
Corporation Law of the State of Delaware (the "DGCL") which provides for
indemnification of directors and officers in certain circumstances.
Page 3 of 10 Pages
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The Registrant's Restated Certificate of Incorporation provides that a
director of Registrant will not be personally liable to Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director of
Registrant except for liability (i) for any breach of such director's duty of
loyalty to Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
the law, (iii) under Section 174 of the DGCL (unlawful payment of dividends) or
(iv) for any transaction from which such director derived an improper personal
benefit.
Registrant is empowered by Section 145 of 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 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 Registrant. 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.
Registrant's Bylaws provide that Registrant shall indemnify its
directors, and may indemnify its officers, to the full extent permitted by law.
The Registrant has entered into agreements with certain directors and
officers that require the Registrant to indemnify such persons against
expenses, judgments, fines, settlements and other amounts to the fullest extent
permitted by law incurred in connection with any proceeding to which any such
person may be made a party by reason of the fact that such person is or was a
director or officer of the Registrant or any of its affiliated enterprises,
provided such person acted honestly and in good faith with a view to the best
interests of the corporation.
There are directors' and officers' liability insurance policies
presently in force insuring directors and officers of the Registrant and its
subsidiaries.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of Registrant (filed as
Exhibit 3.1 to the Report on Form 10-Q for the period ended October 1, 1995 and
incorporated herein by reference).
4.2 Certificate of Determination of Series A Junior Participating
Preferred Stock (filed as Exhibit 3.2 to the Registrant's Annual Report on Form
10-K for the year ended July 7, 1991 and incorporated herein by reference).
4.3 Bylaws of Registrant, as amended (filed as Exhibit 3.3 to the
Registrant's Annual Report on Form 10-K for the year ended July 3, 1994 and
incorporated herein by reference).
4.4 Amended and Restated Rights Agreement, dated as of March 8,
1996, between 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 14, 1996).
5.1 Opinion of Morrison & Foerster LLP as to the legality of the
shares of Common Stock which were previously registered and included in the
Registration Statement on Form S-4 (No. 333-14961). Incorporated by reference
to Exhibit 5.1 of such Registration Statement on Form S-4.
23.1 Consent of Morrison & Foerster LLP with respect to the use of
its opinion as an exhibit to the Registration Statement on Form S-4 (No.
333-14961) Incorporated by reference to Exhibit 5.1 of such Registration
Statement on Form S-4.
23.2 Consent of Independent Accountants.
Page 4 of 10 Pages
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24.1 Power of Attorney (Reference is made to page 7)
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
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;
(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; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in the Registration
Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
this Registration Statement is on Form S-3 or Form S-8 and 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 Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that 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.
(b) Filings Incorporating Subsequent Exchange Act Documents By
Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
(c) Request for Acceleration of Effective Date or Filing of
Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or
Page 5 of 10 Pages
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otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities 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 by a director, officer or controlling person of
the Registrant in the successful defense or 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 Securities Act and will be governed
by the final adjudication of such issue.
Page 6 of 10 Pages
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 this 12th
day of December 1996.
NELLCOR PURITAN BENNETT INCORPORATED
By: /s/ Laureen DeBuono
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Laureen DeBuono
Executive Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, constitutes and appoints C. Raymond Larkin, Jr., Michael P.
Downey and Laureen DeBuono, jointly and severally, attorneys-in-fact and
agents, each with full power of substitution, for him or her in any and all
capacities to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, and all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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>
* Director, President and Chief Executive December 12, 1996
- --------------------------------------- Officer (Principal Executive Officer)
C. Raymond Larkin, Jr.
Director, Chairman of the Board December __, 1996
- ---------------------------------------
Burton A. Dole, Jr.
* Executive Vice President and Chief December 12, 1996
- --------------------------------------- Financial Officer (Principal
Michael P. Downey Financial & Accounting Officer)
* Director December 12, 1996
- ---------------------------------------
Robert J. Glaser, M.D.
* Director December 12, 1996
- ---------------------------------------
Frederick M. Grafton
Director December __, 1996
- ---------------------------------------
Donald L. Hammond
</TABLE>
Page 7 of 10 Pages
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<TABLE>
<S> <C> <C>
* Director December 12, 1996
- ---------------------------------------
Risa J. Lavizzo-Mourey, M.D.
* Director December 12, 1996
- ---------------------------------------
Thomas A. McDonnell
Director December __, 1996
- ---------------------------------------
Walter J. McNerney
* Director December 12, 1996
- ---------------------------------------
Edwin E. van Bronkhorst
*By: /s/ Laureen DeBuono
------------------------------------
Laureen DeBuono
Attorney-In-Fact
</TABLE>
Page 8 of 10 Pages
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION SEQUENTIAL
- -------------- ----------- PAGE NO.
--------
<S> <C> <C>
4.1 Restated Certificate of Incorporation of Registrant (filed as Exhibit 3.1
to the Report on Form 10-Q for the period ended October 1, 1995 and
incorporated herein by reference).
4.2 Certificate of Determination of Series A Junior Participating Preferred
Stock (filed as Exhibit 3.2 to the Registrant's Annual Report on Form 10-K
for the year ended July 7, 1991 and incorporated herein by reference.
4.3 Bylaws of Registrant, as amended (filed as Exhibit 3.3 to the
Registrant's Annual Report on Form 10-K for the year ended July 3, 1994
and incorporated herein by reference).
4.4 Amended and Restated Rights Agreement, dated as of March 8, 1996,
between 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 14, 1996).
5.1 Opinion of Morrison & Foerster LLP as to the legality of the shares of
Common Stock which were previously registered and included in the
Registration Statement on Form S-4 (No. 333-14961). Incorporated by
reference to Exhibit 5.1 of such Registration Statement on Form S-4.
23.1 Consent of Morrison & Foerster LLP with respect to the use of its
opinion as an exhibit to the Registration Statement on Form S-4 (No.
333-14961). Incorporated by reference to Exhibit 5.1 of such
Registration Statement on Form S-4.
23.2 Consent of Independent Accountants. 10
24.1 Power of Attorney. Reference is made to page 7.
</TABLE>
Page 9 of 10 Pages
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Nellcor Puritan Bennett Incorporated of our report
dated July 31, 1996 which appears on page 47 of the 1996 Annual Report
to Stockholders of Nellcor Puritan Bennett Incorporated, which is incorporated
by reference in the Nellcor Puritan Bennett Incorporated Annual Report on Form
10-K for the year ended July 7, 1996.
PRICE WATERHOUSE LLP
San Jose, California
December 11, 1996
Exhibit 23.2
Page 10 of 10 Pages
