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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
(AMENDMENT NO. 3)
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
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PURITAN-BENNETT CORPORATION
(Name of Subject Company)
PURITAN-BENNETT CORPORATION
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
746299106
(CUSIP number of Class of Securities)
BURTON A. DOLE, JR.,
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
PURITAN-BENNETT CORPORATION
9401 INDIAN CREEK PARKWAY, P.O. BOX 25905
OVERLAND PARK, KANSAS 66225-5905
(913) 661-0444
(Name, address and telephone number of person authorized to receive notice and
communications on behalf of the person(s) filing statement)
COPIES TO:
DANIEL C. WEARY, ESQ. PETER D. LYONS, ESQ.
BLACKWELL SANDERS SHEARMAN & STERLING
MATHENY WEARY & LOMBARDI L.C. 599 LEXINGTON AVENUE
TWO PERSHING SQUARE NEW YORK, NEW YORK 10022
2300 MAIN STREET - SUITE 1100 (212) 848-4000
KANSAS CITY, MISSOURI 64108
(816) 274-6800
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2
This Amendment No. 3 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9, dated November 7, 1994
(as amended, the "Schedule 14D-9"), filed by Puritan-Bennett Corporation, a
Delaware corporation (the "Company"), relating to the tender offer disclosed in
the Tender Offer Statement on Schedule 14D-1, dated October 25, 1994 (as
amended, the "Schedule 14D-1"), of PB Acquisition Corp., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of Thermo Electron
Corporation, a Delaware corporation ("Thermo Electron"), to purchase all of the
outstanding Shares upon the terms and subject to the conditions set forth in
the Offer to Purchase, dated October 25, 1994, and the related Letter of
Transmittal (together, the "Offer"). Capitalized terms used and not defined
herein shall have the meanings set forth in the Schedule 14D-9.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
The section of Item 8 entitled "Stockholder Litigation" is hereby
amended and supplemented by deleting the final sentence thereof and inserting
in its place the following:
On December 6, 1994, the Chancery Court issued a letter opinion setting
forth its determination not to schedule a hearing on plaintiffs' motion for a
preliminary injunction. A copy of the letter opinion is attached hereto as
Exhibit 26 and is incorporated herein by reference. On December 7, 1994, the
Company issued a press release regarding the letter opinion. A copy of the
press release is attached hereto as Exhibit 27.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Item 9 is hereby amended and supplemented by adding thereto the
following:
Exhibit 26 - December 6, 1994 Letter Opinion of the Court of
Chancery of the State of Delaware-Steiner v.
Puritan-Bennett.
Exhibit 27 - Press Release of the Company, dated December 7,
1994.
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3
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.
PURITAN-BENNETT CORPORATION
By: /s/ Burton A. Dole, Jr.
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Name: Burton A. Dole, Jr.
Title: Chairman, President and
Chief Executive Officer
Dated: December 7, 1994
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EXHIBIT INDEX
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Number Title
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1* Excerpts from the Company's Proxy Statement dated June 10, 1994 for its 1994 Annual
Meeting of Stockholders.
2* Employment Agreement, dated April 25, 1980, between Burton A. Dole, Jr. and the
Company.
3* Supplemental Agreement, dated November 7, 1994, between John H. Morrow and the
Company.
4* Employment Agreement, dated June 9, 1994, between John H. Morrow and the Company.
5* Form of Executive Agreement for Messrs. Doyle, Jones, Rankin and Niles.
6* Form of Severance Agreement.
7* Puritan-Bennett Corporation Change of Control Severance Plan.
8* Form of Additions to Puritan-Bennett Corporation Management Incentive Bonus Plan A,
and Management Incentive Bonus Plan B.
9* Form of First Amendment to the Restated Puritan-Bennett Deferred Compensation Plan.
10* Form of First Amendment to the Puritan-Bennett Supplemental Retirement Benefit Plan.
11* Form of Third Amendment to the Puritan-Bennett Supplemental Retirement Benefit Plan.
12* Form of First Amendment to the Puritan-Bennett Corporation Pension Benefit Make Up
Plan.
13* Form of Addition to the Company's 1988 Stock Benefit Plan.
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*Previously Filed
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<TABLE>
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Number Title
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14* Amendment to the Restated Puritan-Bennett Savings & Stock Ownership Plan.
15* Form of Amendment to the Puritan-Bennett Corporation Directors Post-Retirement
Income Plan.
16* SERP Agreement between Burton A. Dole, Jr. and the Company.
17* SERP Agreement between John H. Morrow and the Company.
18* Form of First Amendment to the Trust Agreement for the Restated Puritan-Bennett
Deferred Compensation Plan.
19* Form of Trust Agreement for the Puritan-Bennett Supplemental Retirement Benefit
Plan.
20* Form of Trust Agreement for the Puritan-Bennett Corporation Pension Benefit Make Up
Plan.
21* Form of Trust Agreement for the Puritan-Bennett Corporation Directors Post-
Retirement Income Plan.
22* Letter to Stockholders of the Company.
23* Press Release of the Company, dated November 7, 1994.
24* Opinion of Smith Barney Inc., dated November 6, 1994.
25* Press Release of the Company, dated November 21, 1994.
26 December 6, 1994 Letter Opinion of the Court of Chancery of the State of Delaware-Steiner
v. Puritan-Bennett.
27 Press Release of the Company, dated December 7, 1994.
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* Previously Filed
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Exhibit 26
[Letterhead of the Court of Chancery
of the State of Delaware]
December 6, 1994
Norman M. Monhait
Rosenthal, Monhait, Gross & Goddess, P.A.
P.O. Box 1070
Wilmington, DE 19899-1070
Thomas R. Hunt, Jr.
Morris, Nichols, Arsht & Tunnell
P.O. Box 1347
Wilmington, DE 19899-1347
Re: Steiner v. Puritan-Bennett
C.A. No. 13790-NC
Counsel:
On October 6, 1994, Puritan-Bennett Corporation ("Puritan") announced Thermo
Electron Corporation ("Thermo Electron"), not a party to this suit, offered to
buy Puritan in an all-cash transaction at $21 a share. Puritan's stock had
been trading in a range of $15-18 per share. On October 11, 1994, the Puritan
board unanimously rejected Thermo Electron's opening bid. On October 13, 1994,
Thermo Electron raised its bid to $24 per share. On October 19, 1994, Puritan
requested Thermo Electron send any additional terms to its CEO "in writing for
presentation to the Board . . ." [and] "in addition to amplify[ing] or
clarify[ing] the proposal" if desired by contacting Puritan's financial
advisor. Thermo Electron did neither. On October 24, 1994, Thermo Electron
launched a tender offer at $24.50 per share for all the outstanding stock of
Puritan subject to removal of alleged impediments in anti-takeover provisions
in Puritan's articles of incorporation and removal of certain conditions in the
Puritan Shareholders Rights Plan. The original offer expired, by its terms, on
November 22, 1994. On November 7, 1994, the Puritan board, in reliance, in
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Steiner v. Puritan-Bennett
December 6, 1994
Page 2
part, on the opinion of its investment banker, recommended to its shareholders
that they not accept the tender offer, which the board stated was at a grossly
inadequate price.
On or about November 8, 1994, Puritan's board disclosed that its independent
financial advisor's fee arrangement included a provision calling for it to
receive a fee equal to 1-2% of the value of Puritan's assets if a change in
control occurred. This fee is alleged to be an illegitimate impediment to any
change in control. Other acts claimed by plaintiff to constitute violations of
duty involve executive compensation that plaintiffs allege make it "even more
expensive to acquire the company."
By November 22, 1994, 67.3% of Puritan shareholders had tendered their
shares to Thermo Electron. Thermo Electron extended the offer to
November 28, 1994 and then again to December 8, 1994, the current closing date.
On November 28, 1994, plaintiffs requested expedited discovery and a
preliminary injunctive hearing asserting defendants: (a) "refuse to meet with
Thermo Electron to fulfill their duties to be fully informed; and (b) continue
to retain the poison pill and executive compensation agreements to the
detriment of the shareholders." It is contended shareholders will suffer
irreparable injury allegedly because their opportunity to sell their shares
"may be" irrevocably lost as a result of a possible Thermo Electron decision to
abandon its tender offer.
For the reasons briefly set forth I will decline to order expedited
adjudication of this matter at this time.
All parties concede no one could prepare for a preliminary injunction
hearing by December 8, 1994, the first operative date any event of immediate
consequence may occur. No one knows with certainty whether or not the offer
will be extended beyond that date. Nonetheless, I am asked to proceed now on
the assumption that Thermo Electron will extend its offer on December 8. Thus,
the immediate question presented is whether plaintiffs have shown a sufficient
possibility of a threatened irreparable injury that would justify imposing
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Steiner v. Puritan-Bennett
December 6, 1994
Page 3
on the defendants and the public the substantial costs and disruption of an
expedited preliminary injunction proceeding.
A plaintiff seeking a preliminary injunction must demonstrate, minimally,
that absent the injunction, serious irreparable harm will occur.
I note first that should Thermo Electron withdraw its offer in the face of
the contingencies, an action for damages may be an appropriate remedy if a
wrong by the board has occurred.
Moreover, on the facts of the case as they appear, no justification would
seem to exist for scheduling a preliminary injunction hearing in anticipation
of an event that may or may not occur. Expedited discovery and a hearing for
preliminary injunctive relief should be ordered only when the prospect of
imminent irreparable injury is not speculative. See Giammargo v. Snapple
Beverage Corp., Del. Ch., C.A. No. 13845, Allen, C. (Nov. 15, 1994) Letter Op.
at 6; see also Stroud v. Milliken Enters., Inc., Del. Supr., 552 A.2d 476, 480
(1989). Given the fact that before any judicial action could now occur this
matter may be mooted by a closing of the tender offer, the threat plaintiff now
presents is too speculative to warrant intervention at this time. Therefore
the motion will be denied.
IT IS SO ORDERED.
/s/ Myron T. Steele
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Vice-Chancellor
MTS/rm
cc: Register in Chancery (NC)
File
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Exhibit 27
[LOGO AND LETTERHEAD OF PURITAN-BENNETT CORPORATION]
NEWS
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FOR RELEASE IMMEDIATELY Investor Relations Contact: Lee Robbins
DECEMBER 7, 1994 913-661-0444
Media Contact: Greg Miller
212-880-5306
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PURITAN-BENNETT ANNOUNCES DELAWARE COURT'S
REFUSAL TO SCHEDULE PRELIMINARY INJUNCTION HEARING
IN CONNECTION WITH THERMO ELECTRON TENDER OFFER
OVERLAND PARK, KS - Puritan-Bennett Corporation (PBEN:NASDAQ)
announced today that the Court of Chancery of the State of Delaware has
declined to schedule a hearing on a motion for a preliminary injunction in
connection with Thermo Electron Corp.'s pending tender offer to acquire
all outstanding shares of Puritan-Bennett. The Court's ruling, on an
application filed by certain shareholders of Puritan-Bennett, denied a request
for "expedited adjudication of this matter." Citing "the substantial costs and
disruption" to the defendants and the public of an expedited preliminary
injunction proceeding, the Court found that the threatened "injury" alleged by
the plaintiffs "is too speculative to warrant intervention at this time."
Puritan-Bennett is a world leader in products related to respiration.
These products are used in multiple health care settings and on aircraft.
