-----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, RizhNZN5//UKBkADFrJCpB7KnLB4NCg2Sbsr9S2ICfE3n1OyEkGBaJJZPQ3AXhOr pVsgxU9Ba0BlM7Z2phy2hg== 0000950130-97-003735.txt : 19970820 0000950130-97-003735.hdr.sgml : 19970820 ACCESSION NUMBER: 0000950130-97-003735 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970819 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NELLCOR PURITAN BENNETT INC CENTRAL INDEX KEY: 0000799290 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 942789249 STATE OF INCORPORATION: DE FISCAL YEAR END: 0706 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-39322 FILM NUMBER: 97666073 BUSINESS ADDRESS: STREET 1: 4280 HACIENDA DRIVE CITY: PLEASANTON STATE: CA ZIP: 94588 BUSINESS PHONE: 5104634000 MAIL ADDRESS: STREET 1: 4280 HACIENDA DRIVE CITY: PLEASANTON STATE: CA ZIP: 94588 FORMER COMPANY: FORMER CONFORMED NAME: NELLCOR DELAWARE INC DATE OF NAME CHANGE: 19860929 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MALLINCKRODT INC /MO CENTRAL INDEX KEY: 0000051396 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 361263901 STATE OF INCORPORATION: NY FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 7733 FORSYTH BLVD CITY: ST LOUIS STATE: MO ZIP: 63105-1820 BUSINESS PHONE: 3148545299 MAIL ADDRESS: STREET 1: 7733 FORSYTH BLVD CITY: ST LOUIS STATE: MO ZIP: 63105-1820 FORMER COMPANY: FORMER CONFORMED NAME: MALLINCKRODT INC /MO DATE OF NAME CHANGE: 19970625 FORMER COMPANY: FORMER CONFORMED NAME: MALLINCKRODT GROUP INC DATE OF NAME CHANGE: 19940322 FORMER COMPANY: FORMER CONFORMED NAME: IMCERA GROUP INC DATE OF NAME CHANGE: 19920703 SC 14D1/A 1 SCHEDULE 14D1/A ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 AMENDMENT NO. 1 TO SCHEDULE 14D-1 TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 NELLCOR PURITAN BENNETT INCORPORATED (NAME OF SUBJECT COMPANY) NPB ACQUISITION CORP. (BIDDER) COMMON STOCK, PAR VALUE $.001 PER SHARE (Title of Class of Securities) 640275 10 3 (CUSIP NUMBER OF CLASS OF SECURITIES) ROGER A. KELLER, ESQ. VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL MALLINCKRODT INC. 7733 FORSYTH BOULEVARD ST. LOUIS, MISSOURI 63105-1820 (314) 854-5200 COPY TO: JAMES C. MORPHY, ESQ. SULLIVAN & CROMWELL 125 BROAD STREET NEW YORK, NEW YORK 10004 (212) 558-4000 (NAME, ADDRESS, AND TELEPHONE NUMBERS OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER) ================================================================================ This Amendment No. 1 amends and supplements the information set forth in the Tender Offer Statement on Schedule 14D-1 filed by NPB Acquisition Corp. (the "Merger Sub") and Mallinckrodt Inc. ("Mallinckrodt") on July 29, 1997 with respect to shares of Common Stock, par value $.001 per share, of Nellcor Puritan Bennett Incorporated (the "Company"). Unless otherwise indicated, the capitalized terms used herein shall have the meanings specified in the Schedule 14D-1 including the Offer to Purchase filed as Exhibit (1) thereto. ITEM 10. ADDITIONAL INFORMATION (a) On August 8, 1997, the Company and Mallinckrodt 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 following 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 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 Sumner, 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 with the Company 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 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 Mallinckrodt 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 the then-existing life insurance, disability, medical, dental and hospitalization benefits during the Continuation Period and outplacement and career counseling services. (b) The information set forth in Section 15 of the Offer to Purchase is incorporated herein by reference. (c) On August 15, 1997, Mallinckrodt, of which the Merger Sub is a wholly owned subsidiary, issued a press release announcing that the waiting period under the HSR Act expired at 11:59 p.m., New York City time, on August 13, 1997. The full text of the press release is attached hereto as Exhibit (12) and is incorporated herein by reference. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS. (12) Press Release dated August 15, 1997. (13) Form of letter agreement between the Company, Mallinckrodt and each of Mr. Downey and Ms. DeBuono. (14) Form of letter agreement between the Company, Mallinckrodt and each of Messrs. Bollen, Illingworth, Sumner, Swedlow and Hays. (15) Form of letter agreement between the Company, Mallinckrodt and each of Messrs. Bollen, Illingworth, Sumner, Swedlow and Hays. 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. Date: August 19, 1997 Mallinckrodt Inc. By: /s/ C. Ray Holman ------------------------- Name: C. Ray Holman Title: Chairman and Chief Executive Officer NPB Acquisition Corp. By: /s/ C. Ray Holman ------------------------- Name: C. Ray Holman Title: Chairman and Chief Executive Officer EX-12 2 PRESS RELEASE DATED AUGUST 15, 1997 Exhibit 12 [LETTERHEAD OF MALLINCKRODT] NEWS RELEASE FOR IMMEDIATE RELEASE - --------------------- For more information: Media Contacts: Barbara Abbett, (314) 854-5230 Peter Faur, (314) 854-5234 E-mail: Communications@mkg.com Investor Contacts: Scott Johnsen, (314) 854-5295 Doug McKinney, (314) 854-5264 E-mail: Invest@mkg.com MALLINCKRODT ACQUISITION OF NELLCOR PURITAN BENNETT PASSES U.S. REGULATORY REVIEW HURDLE ST. LOUIS, Missouri, August 15, 1997 -- Mallinckrodt Inc. (NYSE:MKG) said today that the period for Hart-Scott-Rodino regulatory review of its intended acquisition of Nellcor Puritan Bennett Incorporated (NASDAQ:NELL) has expired with no further request for additional information. Required international regulatory reviews are proceeding. On July 23, 1997, Mallinckrodt and Nellcor Puritan Bennett announced the execution of a definitive agreement whereby Mallinckrodt would purchase for cash all outstanding shares of Nellcor Puritan Bennett common stock for $28.50 per share. The tender offer commenced on July 29 and is scheduled to expire at midnight (Eastern Daylight Time) on Monday, August 25, 1997, unless extended. Nellcor Puritan Bennett is the worldwide leader in providing products for monitoring, diagnosing and treating the respiratory-impaired patient across the continuum of care. The company's web site address is [www.nellcorpb.com]. ADD ONE/MALLINCKRODT Mallinckrodt Inc. serves healthcare and specialty chemicals markets worldwide. The company is a major producer of diagnostic imaging agents, medical devices, analgesic pharmaceuticals, catalysts, and laboratory and microelectronic chemicals. The St. Louis, Missouri-based company, with fiscal 1996 adjusted net sales of $1.75 billion, sells more than 1,000 products in more than 100 countries. Mallinckrodt's web site address is [www.mallinckrodt.com]. ### EX-13 3 FORM OF LETTER AGREEMENT BETWEEN THE COMPANY Exhibit 13 [NELLCOR PURITAN BENNETT LETTERHEAD] [Name of Executive] Nellcor Puritan Bennett Incorporated 4280 Hacienda Drive Pleasanton, CA 94588 Re: Severance Agreement ------------------- 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 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: ______________________ -2- EX-14 4 FORM OF LETTER AGREEMENT BETWEEN THE COMPANY Exhibit 14 [NELLCOR PURITAN BENNETT LETTERHEAD] [Name of Executive] Nellcor Puritan Bennett Incorporated 4280 Hacienda Drive Pleasanton, CA 94588 Re: Severance Agreement ------------------- 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. 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. -2- 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: ________________________ -3- EX-15 5 FORM OF LETTER AGREEMENT BETWEEN THE COMPANY Exhibit 15 [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. 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 -------- ------- 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: -2- (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 -------- ------- 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. -3- (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 -------- ------- 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 - ------------------------------ Executive -4- CONSENTED AND AGREED Mallinckrodt Inc. By: ________________________ Its: ________________________ -5- -----END PRIVACY-ENHANCED MESSAGE-----