-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KY3UNH3sHvFqiP3BwN7ThC7vZkXhIXPlzECH0R88Fi2TEX6td07q0EneFD6lQwff /K5nfB2uVUzcHPSN3fUzHw== 0000950172-96-000565.txt : 19960919 0000950172-96-000565.hdr.sgml : 19960919 ACCESSION NUMBER: 0000950172-96-000565 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960918 SROS: NASD GROUP MEMBERS: UNITED STATES SURGICAL CORP GROUP MEMBERS: USS ACQUISITION CORP. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CIRCON CORP CENTRAL INDEX KEY: 0000719727 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 953079904 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-36096 FILM NUMBER: 96631916 BUSINESS ADDRESS: STREET 1: 6500 HOLLISTER AVE CITY: SANTA BARBARA STATE: CA ZIP: 93111 BUSINESS PHONE: 8059670404 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CIRCON CORP CENTRAL INDEX KEY: 0000719727 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 953079904 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-36096 FILM NUMBER: 96631917 BUSINESS ADDRESS: STREET 1: 6500 HOLLISTER AVE CITY: SANTA BARBARA STATE: CA ZIP: 93111 BUSINESS PHONE: 8059670404 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: UNITED STATES SURGICAL CORP CENTRAL INDEX KEY: 0000101788 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 132518270 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 150 GLOVER AVE CITY: NORWALK STATE: CT ZIP: 06856 BUSINESS PHONE: 2038451000 MAIL ADDRESS: STREET 1: 150 GLOVER AVENUE CITY: NORWALK STATE: CT ZIP: 06856 FORMER COMPANY: FORMER CONFORMED NAME: AUTO SUTURE SURGICAL CORP DATE OF NAME CHANGE: 19700507 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: UNITED STATES SURGICAL CORP CENTRAL INDEX KEY: 0000101788 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 132518270 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 150 GLOVER AVE CITY: NORWALK STATE: CT ZIP: 06856 BUSINESS PHONE: 2038451000 MAIL ADDRESS: STREET 1: 150 GLOVER AVENUE CITY: NORWALK STATE: CT ZIP: 06856 FORMER COMPANY: FORMER CONFORMED NAME: AUTO SUTURE SURGICAL CORP DATE OF NAME CHANGE: 19700507 SC 14D1/A 1 SCHEDULE 14D1 AMENDMENT NO. 6 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 14D-1 AMENDMENT NO. 6 TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 AND SCHEDULE 13D AMENDMENT NO. 6 UNDER THE SECURITIES EXCHANGE ACT OF 1934 CIRCON CORPORATION (NAME OF SUBJECT COMPANY) USS ACQUISITION CORP. UNITED STATES SURGICAL CORPORATION (BIDDERS) COMMON STOCK, PAR VALUE $0.01 PER SHARE (TITLE OF CLASS OF SECURITIES) 172736 10 0 (CUSIP NUMBER OF CLASS OF SECURITIES) THOMAS R. BREMER USS ACQUISITION CORP. C/O UNITED STATES SURGICAL CORPORATION 150 GLOVER AVENUE NORWALK, CONNECTICUT 06856 TELEPHONE: (203) 845-1000 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS) with a copy to: PAUL T. SCHNELL, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM 919 THIRD AVENUE NEW YORK, NEW YORK 10022 TELEPHONE: (212) 735-3000 United States Surgical Corporation, a Delaware corporation ("Parent"), and USS Acquisition Corp., a Delaware corporation (the "Purchaser"), and a wholly owned subsidiary of Parent, hereby further amend and supplement their Statement on Schedule 14D-1 ("Schedule 14D-1"), filed with the Securities and Exchange Commission (the "Commission") on August 2, 1996, as amended by Amendment No.1 dated August 16, 1996, Amendment No. 2 dated August 20, 1996, Amendment No.3 dated August 20, 1996, Amendment No. 4 dated August 30, 1996, and Amendment No. 5 dated September 17, 1996, with respect to the Purchaser's offer to purchase all of the outstanding shares of Common Stock, par value $0.01 per share (the "Shares"), of Circon Corporation, a Delaware corporation (the "Company"), at a price of $18.00 per Share, 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 August 2, 1996 (the "Offer to Purchase"). This Amendment No. 6 to Schedule 14D-1 also constitutes Amendment No. 6 to the Statement on Schedule 13D of the Purchaser and Parent. The item numbers and responses thereto below are in accordance with the requirements of Schedule 14D-1. Unless otherwise indicated herein, each capitalized term used but not defined herein shall have the meaning assigned to such term in Schedule 14D-1 or in the Offer to Purchase referred to therein. ITEM 10. ADDITIONAL INFORMATION. Item 10(e) of Schedule 14D-1 is hereby amended and supplemented as follows: On September 18, 1996, Parent filed a suit against the Company in the Court of Chancery for the State of Delaware, seeking to compel the Company to provide Parent with full information necessary to enable Parent to communicate directly with the Company's shareholders concerning its offer. A copy of the complaint is attached as Exhibit (a)(14) and is incorporated herein by reference. Item 10(f) of Schedule 14D-1 is hereby amended and supplemented as follows: On September 18, 1996, Parent mailed a letter to the shareholders of the Company. A copy of the letter is attached as Exhibit (a)(15) and is incorporated herein by reference. On September 18, 1996, Parent placed an advertisement in the Wall Street Journal. A copy of the advertisement is attached as Exhibit (a)(16) and is incorporated herein by reference. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS. (a)(14) Complaint filed by United States Surgical Corporation on September 18, 1996 in the Court of Chancery in the State of Delaware in and for New Castle County in the action entitled United States Surgical Corporation, a Delaware corporation and Cede & Co., v. Circon Corporation, a Delaware corporation. (a)(15) Text of letter mailed to shareholders of Circon Corporation on September 18, 1996. (a)(16) Text of an advertisement run in the Wall Street Journal on September 18, 1996. 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. Dated: September 18, 1996 USS ACQUISITION CORP. By:/s/ RICHARD A. DOUVILLE Name: Richard A. Douville Title: Treasurer UNITED STATES SURGICAL CORPORATION By:/s/ RICHARD A. DOUVILLE Name: Richard A. Douville Title: Vice President, Treasurer and Chief Financial Officer EXHIBIT INDEX EXHIBIT EXHIBIT NAME (a)(14) Complaint filed by United States Surgical Corporation on September 18, 1996 in the Court of Chancery in the State of Delaware in and for New Castle County in the action entitled United States Surgical Corporation, a Delaware corporation and Cede & Co., v. Circon Corporation, a Delaware corporation. (a)(15) Text of letter mailed to shareholders of Circon Corporation on September 18, 1996. (a)(16) Text of an advertisement run in the Wall Street Journal on September 18, 1996. EX-99 2 EXHIBIT (A)(14) IN THE COURT OF CHANCERY FOR THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY UNITED STATES SURGICAL CORPORATION, ) a Delaware corporation and ) CEDE & CO., ) ) Plaintiffs, ) ) v.- ) Civil Action ) No._________ CIRCON CORPORATION, ) a Delaware corporation, ) ) Defendant. ) COMPLAINT UNDER 8 DEL. C. SECTION 220 1. Plaintiff Cede & Co. ("Cede") which is the nominee of The Depository Trust Company ("DTC"), at all times pertinent hereto has been and is a record owner of shares of Common Stock of the defendant Circon Corporation, ("Circon" or "the Company"), of which 1,000,100 shares (the "Shares") were at all times pertinent, and are on the date hereof on deposit in the DTC Account of Salomon Brothers Inc. ("Salomon"), a Participant in DTC. Salomon has advised DTC that the Shares were at all pertinent times, and are on the date hereof, beneficially owned by its customer, Plaintiff United States Surgical Corporation ("U.S. Surgical"), a Delaware corporation. While Cede appears as a party plaintiff in this action as the stockholder of record of the Shares, it does so only at the request of Salomon, and only as a nominal party for the true party in interest, U.S. Surgical. Cede has no interest in this matter other than to take those steps which are necessary to ensure that U.S. Surgical is not denied the right to inspect the list of stockholders of Circon and other materials of Circon and Cede assumes no further responsibility in this matter. 2. Defendant Circon is a Delaware Corporation with its principal executive offices at 6500 Hollister Avenue, Santa Barbara, California 93117. Circon's registered agent in Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801. 3. On August 16, 1996, Cede, at the request of Salomon and on behalf of U.S. Surgical, signed a written demand under oath (the "Demand Letter"). On or about August 16, 1996, U.S. Surgical caused such Demand Letter to be delivered to the Company at its principal place of business and at its registered office in Delaware, demanding the right, pursuant to 8 Del. C. 220, to inspect and copy: (a) A complete record or list of the Company's stockholders, certified by its transfer agent(s) and/or registrars, showing the name and address of each stockholder and the number of shares registered in the name of each such stockholder as of August 2, 1996; (b) Magnetic computer tape lists of the Company's stockholders showing the name and addresses of each stockholder and number of shares registered in the name of each such stockholder as of August 2, 1996 and August 13, 1996, such computer processing data as is necessary for the Customer to make use of such magnetic computer tape, and a printout of such magnetic computer tape for verification purposes; (c) A list of all holders of shares of Common Stock of the Company arranged in descending order by number of shares and indicating the names and addresses of stockholders; (d) All daily transfer sheets showing changes in the list of the Company's stockholders referred to in paragraph (a) above which are in or come into the possession of the Company or its transfer agent from the date of such list to the termination of the conclusion of the proxy solicitation in connection with the next meeting of the Company's Stockholders; (e) All information in or which comes into the Company's possession or control or which can reasonably be obtained from nominees of a central certificate depositary system concerning the number and identity of the actual beneficial owners of the Company's stock, including (1) a breakdown as of the record date and omnibus proxies as of the record date of any holders in the name of Cede & Co., and other similar nominees; (2) all "Weekly Security Position Listing Daily Closing Balances" reports issued by DTC (and authorization for Salomon Brothers, Inc., the Company's Dealer Manager, to receive such reports directly); and (3) all lists (and computer tapes, processing data and printouts as described in (b) above) containing the name, address and number of shares of Company Common Stock attributable to any participant in any employee stock ownership or other employee benefit plan of the Company in which the decision whether to vote shares of Common Stock held by such plan is made, directly or indirectly, individually or collectively, by the participants in the plan; (f) All information in or which comes into the Company's possession or control or which can reasonably be obtained from brokers, dealers, banks, clearing agencies or voting trustees relating to the name of the non-objecting beneficial owners of the Company's stock ("NOBO's") in the format of a magnetic computer tape list; (g) A stop list or stop lists relating to any shares of Common Stock as of the date of the list referred to in paragraph (a) above; (h) A correct and complete copy of the By-laws of the Company and any and all changes of any sort to the By-laws of the Company hereafter made, including, without limitation, any amendment to existing By-laws, any adoption of new By-laws or deletions of existing Bylaws; (i) The information and records specified in paragraphs (a), (b) (c), (e), (f) and (g) above as of any record date for stockholder action set by the Board of Directors, by operation of law or otherwise. A copy of the Demand Letter is attached as Exhibit A. 4. The Demand Letter stated a proper purpose reasonably related to Cede's role as the stockholder of record of the Shares, to wit: Cede & Co. has been advised by Participant that the purpose of this demand is to enable the Customer [U.S. Surgical] to communicate with the Company's stockholders with respect to matters relating to their mutual interests, including communicating with such stockholders in connection with the tender offer for shares of the Company's Common Stock by USS Acquisition Corp. (the "Purchaser"), a wholly-owned subsidiary of Customer, and the Company's response thereto. The Purchaser's offer is being made by and upon the terms and subject to the conditions set forth in the Offer to Purchase dated August 2, 1996, and the related Letter of Transmittal (which collectively constitute the tender offer), attached as exhibits to the Tender Offer Statement on Schedule 14D-1 of Customer and the Purchaser, a copy of which has been delivered to the Company. 5. Cede and U.S. Surgical have complied with the requirements of Section 220 with respect to the form and manner of making a demand for inspection of the Company's list of stockholders materials. 6. The Company failed to provide the information requested in paragraphs (d), (e), (f) and (h) of the Demand Letter. 7. By reason of the foregoing, U.S. Surgical is entitled, pursuant to 8 Del. C SECTION 220 to inspect and make copies of the demanded materials. 8. U.S. Surgical has no adequate remedy at law. WHEREFORE, U.S. Surgical and Cede & Co. pray that this Court, pursuant to 8 Del. C. SECTION 220: A. Summarily order the Company immediately to permit U.S. Surgical to inspect and copy all demanded materials, or alternatively, order the Company immediately to furnish U.S. Surgical copies of all the demanded materials; B. Summarily order the Company to provide U.S. Surgical updated demanded materials as they become available; C. Grant to the plaintiffs such other relief, including reasonable attorneys' fees and costs, as the Court shall deem appropriate. SKADDEN, ARPS, SLATE MEAGHER & FLOM By /s/ Edward P. Welch Edward P. Welch Andrew J. Turezyn One Rodney Square P.O. Box 636 Wilmington, Delaware 19899 (302) 651-3000 Attorneys for Plaintiffs United States Surgical Corporation and Cede & Co. Of Counsel: Barry H. Garfinkel George A. Zimmerman Michael H. Gruenglas SKADDEN, ARPS, SLATE, MEAGHER & FLOM 919 Third Avenue New York, NY 10022 (212) 735-3000 Thomas R. Bremer Donald F. Crane UNITED STATES SURGICAL CORPORATION 150 Glover Avenue Norwalk, CT 06850 (203) 845-1000 Dated: September 18, 1996 EX-99 3 EXHIBIT (A)(15) [U.S. Surgical letterhead] September 18, 1996 Dear Circon Shareholder: We are delighted that so many of Circon's shareholders have recognized that our cash offer of $18 per share presents an opportunity to maximize value that should not be ignored. Nearly seven million shares have been tendered as of August 29, 1996. Combined with the shares owned by U.S. Surgical, this amounts to approximately 76% of the stock not owned by Circon's management and Board. We have extended the tender offer to 6:00 p.m. on September 30, 1996. If you have not already done so, we are hopeful that you will join your fellow shareholders in recognizing the merits of the offer and tendering your shares. We urge you to weigh Circon's management's promises of future growth against our concrete offer of $18 in cash, an 83% premium over the average 10-trading day price of Circon stock when it was made. Circon is advising you not to tender. Instead, they are asking you to make yet another leap of faith and retain your investment in an uncertain future. We believe that trust in current management is fraught with risks in light of Circon's lamentable litany of broken promises since the announcement of its agreement to acquire Cabot Medical some seventeen months ago. Since that announcement, Circon has conducted a publicity campaign touting the cost-savings, synergistic integration of sales forces, and steadily improved financial performance that would result from the acquisition. Circon's CFO predicted on June 6, 1996, "As 1996 unfolds, you will begin to see that things are very positive.(1)" The reality of Circon's performance stands in sharp contrast. Earnings have shown a significant decline from pre-merger financial results. For the second quarter of 1996, the most recent period for which results are publicly available, Circon had a loss per share of $0.10 (disregarding a $2 million non-recurring tax benefit)(2), down from earnings per share of $0.03 in the same period the prior year. Sales for the quarter were $37.1 million -- an 11% decline, and gross profit dropped approximately 8%. Most significantly, Circon reported a loss from operations of $1.1 million for this quarter, a 1 Interview with Bruce Thompson reported by Reuters on June 6, 1996. 2 Circon reported earnings per share of $.05 including the non-recurring tax benefit. precipitous decline from over $2.2 million in income from operations in the second quarter of 1995. Circon's initial optimistic view of potential sales force integration has been superseded by the following statements: * "There can be no assurance that integration [of product offerings and sales forces] will be accomplished successfully or achieve the expected synergies.(3)" * "The productivity of the combined U.S. Direct sales force has been below expectations.(4)" * "There can be no assurance that current efforts to improve the productivity of the direct sales force will be successful.(5)" 3 Circon Corporation Form 10-Q for Quarter ended June 30, 1996. 4 Circon Corporation Form 10-Q for Quarter ended June 30, 1996. 5 Circon Corporation Form 10-Q for Quarter ended June 30, 1996. AND YET THEY STILL SAY DON'T TENDER YOUR SHARES. Circon continues to refuse to meet with us to discuss a business combination with clear benefits for Circon's shareholders and customers. We are still hopeful that Circon's Board and management will acknowledge the benefits of our offer to Circon shareholders and meet to discuss our offer. Until then, we are committed to pursuing every avenue to complete this deal. We are seeking legal recourse; yesterday we filed a lawsuit in Delaware Chancery Court to have Circon's recently adopted "poison pill" and "golden parachutes" enjoined and voided by the Court. Since Circon has said that it has no intention of negotiating with us or any other potential purchasers, the "pill" and "parachutes" can have only one objective: to entrench management by preventing the sale of Circon. If you have not already tendered your shares, we hope you will do so before September 30th. Ask yourself: Can you realize value by trusting the promises of Circon's management given their past track record? We think Circon's poor performance since the Cabot Medical merger and the Board's actions to protect only itself and entrench management, speak for themselves. We urge you to add your voice to your fellow shareholders and support our offer. On behalf of the United States Surgical Corporation Board of Directors /s/ Leon C. Hirsh Leon C. Hirsch, Chairman If you need assistance or information please call the Information Agent for the tender offer: Kissel-Blake Inc. at (800) 554-7733 EX-99 4 EXHIBIT (A)(16) AN OPEN LETTER TO CIRCON SHAREHOLDERS: THANKS FOR YOUR SUPPORT September 18, 1996 Dear Circon Shareholder: We are writing to thank you for your strong support for a combination of U.S. Surgical and Circon. Our cash tender offer for all Circon shares at $18 per share resulted in nearly seven million shares being tendered as of August 29, 1996, despite the efforts Circon's management undertook to discourage the tender. The shares tendered, combined with the shares owned by U.S. Surgical, amount to approximately 76% of the stock not owned by Circon's management and Board. We are delighted so many of you recognize that our offer, which represented an 83% premium over the average 10- trading day price of Circon stock prior to commencement, should not be ignored. We have extended our offer to September 30, and we are hopeful that even more shareholders will see the merits of our offer and tender their shares. We are committed to this deal and have repeatedly asked that Circon meet with us to discuss our offer. We are also seeking legal recourse; yesterday we filed a lawsuit in the Delaware Chancery Court to have Circon's recently adopted "poison pill" and "golden parachutes" enjoined and voided by the Court. Since Circon has made clear that it has no intention of negotiating with us or any other potential purchaser, the "pill" and "parachutes" can have only one objective: to entrench management by preventing a sale of Circon. To those Circon shareholders who have already tendered, we thank you and ask that you tell Circon's Board and management that you want the right, now, to sell your shares to the highest bidder. To those Circon shareholders who are weighing their investment, ask yourself: Can you trust the promises of Circon's management about the company's future performance? We believe Circon's record of deteriorating stock price, deteriorating sales and deteriorating earnings since announcement of the Cabot Medical acquisition some seventeen months ago speaks for itself. We hope you agree and will tender your shares. We believe that a Circon-U.S. Surgical merger benefits all stockholders and thank you again for your support. On behalf of the United States Surgical Corporation Board of Directors, /s/ Leon C. Hirsh Leon C. Hirsch, Chairman IMPORTANT If you need assistance or information please call the Information Agent for the tender offer: Kissel-Blake Inc. at (800) 554-7733 U.S. Surgical's tender offer is conditioned on, among other things, the acquisition of at least 67% of Circon's Common Stock on a fully diluted basis, the inapplicability of Section 203 of the Delaware General Corporation Law to the Offer and the redemption of rights issued pursuant to Circon's Preferred Shares Rights Agreement, or U.S. Surgical being satisfied, in its sole discretion, that the rights have been invalidated or are otherwise inapplicable to the tender offer and proposed second-step merger. The tender offer and withdrawal rights expire at 6:00 p.m., New York City time, on September 30, 1996, unless extended. The tender offer is not contingent on the receipt of financing. This advertisement is neither an offer to purchase nor a solicitation of an offer to sell shares of Circon Common Stock. The tender offer is made solely by the Offer to Purchase dated August 2, 1996 and the related Letter of Transmittal. The tender offer is not being made to (nor will tenders be accepted from or on behalf of) holders of shares in any jurisdiction in which the making of the tender offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. In those jurisdictions where securities, blue sky or other laws require the tender offer to be made by a licensed broker or dealer, the tender offer shall be deemed to be made by Salomon Brothers Inc or one or more registered brokers or dealers that are licensed under the laws of such jurisdiction. -----END PRIVACY-ENHANCED MESSAGE-----