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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
Amendment No. 2
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NELLCOR PURITAN
BENNETT INCORPORATED
(NAME OF SUBJECT COMPANY)
NELLCOR PURITAN
BENNETT INCORPORATED
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $.00L PER SHARE
(TITLE OF CLASS OF SECURITIES)
640275 10 3
(CUSIP NUMBER OF CLASS OF SECURITIES)
C. RAYMOND LARKIN, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
4280 HACIENDA DRIVE
PLEASANTON, CALIFORNIA 94588
(510) 463-4000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICE AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT).
With a Copy to:
ROBERT M. MATTSON, JR., ESQ.
MORRISON & FOERSTER LLP
19900 MACARTHUR BOULEVARD, 12TH FLOOR
IRVINE, CALIFORNIA 92612
(714) 251-7500
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This Amendment No.2 amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 filed on July 29, 1997 (as amended, the "Schedule
14D-9"), relating to the offer of NPB Acquisition Corp., a Delaware corporation
("Merger Sub") and wholly-owned subsidiary of Mallinckrodt Inc., a New York
corporation ("Purchaser"), to purchase all of the outstanding shares of Common
Stock, par value $.001 per share, of Nellcor Puritan Bennett Incorporated, a
Delaware corporation (the "Company"), including the associated rights to
purchase Series A Junior Participating Preferred Stock (the "Rights" and,
together with such shares of Common Stock, the "Shares") at a purchase price of
$28.50 per Share, net to the seller in cash, upon the terms and conditions set
forth in the Offer to Purchase dated July 29, 1997, and as amended from time to
time.
ITEM 3. IDENTITY AND BACKGROUND
Item 3(b) is hereby amended and supplemented by adding thereto the
following:
Executive Severance Amendments
On August 8, 1997, the Company and Purchaser entered into letter
agreements with all of the executive officers of the Company (excluding Mr.
Larkin) concerning the operation and interpretation of the officers' existing
Severance Agreements with the Company after the Merger. Pursuant to the letter
agreements with Laureen DeBuono and Michael Downey, the existing Severance
Agreements between the Company and those two executive officers will be amended,
as of the Effective Time of the Merger, to provide that in the event either
executive terminates employment for any reason at any time after the
consummation of the Merger and within twenty-four months of the completion of
the Offer, such termination shall be deemed to be for "Good Reason," as defined
in the Severance Agreement and the executive will be entitled to all benefits
arising under the Severance Agreement upon a termination for Good Reason
following a Change in Control (as defined in the Severance Agreement). Pursuant
to the letter agreements with each of Boudewijn Bollen, David Illingworth,
Kenneth Summer, David Swedlow and Russell Hays, the existing Severance
Agreements between the Company and those executive officers will be amended, as
of the Effective Time of the Merger, to provide that (1) if the executive
remains employed until December 31, 1997, in the event the executive terminates
his employment for any reason thereafter through June 30, 1998, such termination
shall be deemed for "Good Reason" and the executive will be entitled to all
benefits arising under
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the Severance Agreement upon a termination for Good Reason following a Change in
Control, (2) if the executive remains employed on July 1, 1998, he will be
entitled to receive a payment equal in amount to the severance pay provided in
the Severance Agreement upon a termination for Good Reason, and his existing
Severance Agreement will be terminated as of that date, and (3) the executive
officers will not be entitled to terminate employment under the Severance
Agreement for "Good Reason" prior to December 31, 1997 solely because of a
change in status, title, position or responsibilities that do not constitute a
significant adverse change in the executive's responsibilities. The Company and
Purchaser have also agreed with each of Messrs. Bollen, Illingworth, Sumner,
Swedlow and Hays that upon termination of employment by the Company without
cause during the period from July 1, 1998 through June 30, 2000 (the
"Continuation Period"), the executive will be entitled to a continuation of his
then-existing life insurance, disability, medical, dental and hospitalization
benefits during the Continuation Period and outplacement and career counseling
services.
ITEM 9. MATERIAL TO FILED AS EXHIBITS.
Item 9 is hereby amended and supplemented by adding thereto the
following:
Exhibit No.
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Exhibit 4 Form of letter agreement between the Company, the
Purchaser and each of Mr. Downey and Ms. DeBuono.
Exhibit 5 Form of letter agreement between the Company, the
Purchaser and each of Messrs. Bollen, Illingworth,
Sumner, Swedlow and Hays.
Exhibit 6 Form of letter agreement between the Company, the
Purchaser and each of Messrs. Bollen, Illingworth,
Sumner, Swedlow and Hays.
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SIGNATURE
After reasonable 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.
Dated: August 18, 1997.
/s/ Edward Lopez
By:__________________________________
Edward Lopez, Esq.
Assistant Secretary
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Exhibit 4
[NELLCOR PURITAN BENNETT LETTERHEAD]
[Name of Executive]
Nellcor Puritan Bennett Incorporated
4280 Hacienda Drive
Pleasanton, CA 94588
Re: Severance Agreement
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Dear ________ :
This letter confirms our agreement regarding your severance agreement
with Nellcor Puritan Bennett Incorporated (the "Company") dated _______ (the
"Severance Agreement"). Unless otherwise defined herein, capitalized terms
shall have the respective meanings ascribed thereto in the Severance Agreement.
The Severance Agreement provides for certain benefits upon termination
of your employment after a Change of Control by the Company without Cause or by
you for Good Reason. The Company, Mallinckrodt Inc. ("Mallinckrodt") and NPB
Acquisition Corp. ("Purchaser") have entered into an Agreement and Plan of
Merger, dated as of July 23, 1997 (the "Merger Agreement"), which provides that
Purchaser will merge (the "Merger") with and into the Company upon completion of
the tender offer contemplated thereby. Upon consummation of the Merger, the
Company will be a wholly-owned subsidiary of Mallinckrodt. The completion of the
tender offer will constitute a Change of Control under the Severance Agreement.
As a result of the change in the nature of your responsibilities and
position that will result from the Merger, your Severance Agreement is amended,
as of the Effective
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Time of the Merger, to provide that in the event you terminate your employment
for any reason at any time after the consummation of the Merger and within
twenty-four months following the completion of the tender offer contemplated by
the Merger Agreement, (i) such termination shall be deemed to be for "Good
Reason", as defined in your Severance Agreement and (ii) you will be entitled to
all benefits arising under the Severance Agreement applicable to a termination
for Good Reason following a Change in Control. The foregoing amendment to your
Severance Agreement shall become effective only if the Merger is consummated.
Please confirm your agreement to the foregoing by signing and returning
to me the enclosed copy of this letter.
By its execution of a copy of this Letter, Mallinckrodt consents to the
amendments to be made by this agreement to your Severance Agreement upon
consummation of the Merger.
Very truly yours,
CONFIRMED AND AGREED
___________________________
Executive
CONSENTED AND AGREED
Mallinckrodt Inc.
By: ______________________
Its: ______________________
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Exhibit 5
[NELLCOR PURITAN BENNETT LETTERHEAD]
[Name of Executive]
Nellcor Puritan Bennett Incorporated
4280 Hacienda Drive
Pleasanton, CA 94588
Re: Severance Agreement
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Dear ________ :
This letter confirms our agreement regarding your severance agreement
with Nellcor Puritan Bennett Incorporated (the "Company") dated _______ (the
"Severance Agreement"). Unless otherwise defined herein, capitalized terms
shall have the respective meanings ascribed thereto in the Severance Agreement.
The Severance Agreement provides for certain benefits upon termination
of your employment after a Change of Control by the Company without Cause or by
you for Good Reason. The Company, Mallinckrodt Inc. ("Mallinckrodt") and NPB
Acquisition Corp. ("Purchaser") have entered into an Agreement and Plan of
Merger, dated as of July 23, 1997 (the "Merger Agreement"), which provides that
Purchaser will merge (the "Merger") with and into the Company upon completion of
the tender offer contemplated thereby. Upon consummation of the Merger, the
Company will be a wholly-owned subsidiary of Mallinckrodt. The completion of the
tender offer will constitute a Change of Control under the Severance Agreement.
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In light of the need to integrate the businesses of the Company and
Mallinckrodt following the Merger (the "Business Integration") and the changes
in the nature of your responsibilities and position with the Company that may
result from such integration, your Severance Agreement is amended as of the
Effective Time of the Merger as follows:
1. If you remain in employment with the Company until December
31, 1997, in the event you terminate your employment for any reason
thereafter through June 30, 1998 (i) such termination shall be deemed to
be for "Good Reason", as defined in your Severance Agreement, and (ii)
you will be entitled to all benefits arising under the Severance
Agreement applicable to a termination for Good Reason following a Change
in Control, to the extent not paid to you pursuant to subparagraph 2,
below.
2. If you remain in employment with the Company on July 1, 1998,
you will be entitled to receive a payment within 30 days thereafter
equal to the severance pay provided in Section 3.1(b)(ii) of the
Severance Agreement, and thereafter the Company's obligations under the
Severance Agreement shall cease.
In consideration of the foregoing amendments and in order to facilitate the
Business Integration, you agree that the definition of "Good Reason" for
purposes of the Severance Agreement shall not include a change in your status,
title, position or responsibilities as currently provided in Section 2.8(a)(l)
of your Severance Agreement, other than a significant adverse change in your
responsibilities. The foregoing amendments to your Severance Agreement shall
become effective only if the Merger is consummated.
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Please confirm your agreement to the foregoing by signing and returning
to me the enclosed copy of this letter.
By its execution of a copy of this letter, Mallinckrodt consents to the
amendments to be made by this agreement to your Severance Agreement upon
consummation of the Merger.
Very truly yours,
CONFIRMED AND AGREED
___________________________
Executive
CONSENTED AND AGREED
Mallinckrodt Inc.
By: ________________________
Its: ________________________
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Exhibit 6
[Nellcor Puritan Bennett Letterhead]
August 8, 1997
[Name of Executive]
Nellcor Puritan Bennett Incorporated
4280 Hacienda Drive
Pleasanton, CA 94588
Dear _____________:
This Agreement provides for certain benefits upon termination of your
employment by Nellcor Puritan Bennett Incorporated ("the Company") without
Cause (as defined herein) during the two-year period beginning on or after July
1, 1998 and ending June 30, 2000 (the "Continuation Period"). The Company,
Mallinckrodt Inc. ("Mallinckrodt") and NPB Acquisition Corp. ("Purchaser") have
entered into an Agreement and Plan of Merger, dated as of July 23, 1997 (the
"Merger Agreement"), which provides that Purchaser will merge (the "Merger")
with and into the Company upon completion of the tender offer contemplated
thereby. Upon consummation of the Merger, the Company will be a wholly-owned
subsidiary of Mallinckrodt.
In light of the need to integrate the business of the Company and
Mallinckrodt following the Merger and the changes in the nature of your
responsibilities and position with the Company that may result from such
integration, the Company agrees to provide the following in the event you are
terminated without Cause on any date within the Continuation Period.
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1. During the Continuation Period, the Company shall, at its expense,
continue on behalf of you and your dependents and beneficiaries the life
insurance, disability, medical, dental and hospitalization benefits provided to
you at the Termination Date. The coverage and benefits (including deductibles
and costs) provided in this paragraph 1 during the Continuation Period shall be
no less favorable to you and your dependents and beneficiaries than those
provided to you at the Termination Date. The Company's obligation hereunder with
respect to the foregoing benefits shall be limited to the extent that you obtain
any such benefits pursuant to a subsequent employer's benefit plans in which
case the Company may reduce the coverage of any benefits it is required to
provide you hereunder as long as the aggregate coverages and benefits of the
combined benefit plans are no less favorable to you than the coverages and
benefits required to be provided hereunder. This paragraph 1 shall not be
interpreted so as to limit any benefits to which you or your dependents or
beneficiaries may be entitled under any of the Company's employee benefit plans,
programs or practices following your termination of employment, including
without limitation, retiree medical and life insurance benefits.
2. For the duration of the Continuation Period, the Company shall, at
its expense, provide you with outplacement and career counseling services in
accordance with the Company's policies then in effect provided, however, that
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the Company's obligation to pay for such services shall in no event exceed an
aggregate amount equal to 25% of the Base Amount.
3. (a) For purposes of this Agreement:
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(a) a termination of employment during the Continuation Period is for
"Cause" if the basis of the termination is fraud, misappropriation, embezzlement
or willful engagement by you in misconduct which is demonstrably and materially
injurious to the Company and its subsidiaries taken as a whole (no act, or
failure to act, on your part shall be considered "willful" unless done, or
omitted to be done, by you not in good faith and without a reasonable belief
that the action or omission was in the best interest of the Company and its
subsidiaries); provided however, that you shall not be deemed to have been
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terminated for Cause unless and until there shall have been delivered to you a
Notice of Termination (as hereinafter defined) and copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of those members
of the Company's Board of Directors who are not then employees of the Company at
a meeting of the Board called and held for the purpose (after reasonable notice
to you and an opportunity for you, together with your counsel, to be heard
before the Board), finding that, in the good faith opinion of the Board, you
were guilty of the conduct set forth in the first sentence of this paragraph and
specifying the particulars thereof in detail.
(b) "Notice of Termination" shall mean a written notice of termination
of your employment from the Company, which notice indicates the specific
termination provision in this Agreement relied upon and which sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of your employment under the provision so indicated.
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(c) "Base Amount" shall mean your annual base salary at the rate in
effect on the Termination Date, and shall include all amounts of base salary
that are deferred under the employee benefit plans of the Company or any other
agreement or arrangement.
(d) "Termination Date" shall mean the date specified in the Notice of
Termination; provided, however, that if your employment is terminated by the
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Company for Cause or due to Disability, the date specified in the Notice of
Termination shall be at least 30 days from the date the Notice of Termination is
given to you, provided that, in the case of Disability, you shall not have
returned to the full-time performance of your duties during the period of at
least 30 days.
This Agreement shall become effective only if the Merger is consummated.
Please confirm your agreement to the foregoing by signing and returning to me
the enclosed copy of this letter.
By its execution of a copy of this letter, Mallinckrodt consents to this
Agreement upon consummation of the Merger.
Very truly yours,
CONFIRMED AND AGREED
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Executive
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CONSENTED AND AGREED
Mallinckrodt Inc.
By: ________________________
Its: ________________________
