-----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, MWRldjgYtbFNJX9OROrcWsq3e1kBeTOdTylLFgToNXm32BPPiZ/d/A64ZihS98EG cfr+YArKAYiPNAiwW8VMlQ== 0000892569-96-001327.txt : 19960729 0000892569-96-001327.hdr.sgml : 19960729 ACCESSION NUMBER: 0000892569-96-001327 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19960726 EFFECTIVENESS DATE: 19960726 SROS: NASD FILER: 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: 0630 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-04683 FILM NUMBER: 96599806 BUSINESS ADDRESS: STREET 1: 4280 HACIENDA DRIVE CITY: PLEASANTON STATE: CA ZIP: 94588 BUSINESS PHONE: 4158875858 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 S-8 POS 1 AMENDMENT #1 ON FORM S-8 TO FORM S-4 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 26, 1996 REGISTRATION NO. 333-04683 ================================================================================ 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) INFRASONICS, INC. 1995 STOCK PLAN, INFRASONICS, INC. 1991 STOCK OPTION PLAN AND INFRASONICS, INC. 1983 EMPLOYEE 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 ----------------------------------- 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. 333-04683 which was previously filed on Form S-4 (the "Original Registration Statement") in connection with the merger (the "Merger") of Infrasonics, Inc. ("Infrasonics") with and into Nellcor Puritan Bennett Incorporated (the "Registrant"). In connection with the filing of the Original Registration Statement, 1,763,950 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 Infrasonics 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 581,939 shares of Common Stock issuable upon exercise of options outstanding under the Infrasonics 1995 Stock Plan, 1991 Stock Option Plan and 1983 Employee Stock Option Plan. ----------------------------------- Page 1 of 10 pages. The Index to Exhibits appears on page 9. 2 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 3 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 latest Annual Report on Form 10-K for the fiscal year ended July 2, 1995, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended October 1, 1995, December 31, 1995, and March 31, 1996, each filed pursuant to Section 13(a) of the Exchange Act. (c) The Registrant's Current Reports on Form 8-K dated July 11, 1995, July 27, 1995, August 25, 1995, March 8, 1996, April 3, 1996, and July 12, 1996, and on Form 8-K/A dated May 31, 1996, each filed pursuant to Section 13(a) of the Exchange Act. (d) 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 4 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 The description of the Registrant's Common Stock incorporated by reference to 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. 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. 333-04683). 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. 333-04683) Incorporated by reference to Exhibit 5.1 of such Registration Statement on Form S-4. 23.2 Consent of Price Waterhouse LLP Page 4 of 10 Pages 5 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 6 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 7 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 26th day of July 1996. NELLCOR PURITAN BENNETT INCORPORATED By: /s/ C. Raymond Larkin, Jr. ------------------------------------- C. Raymond Larkin, Jr. President and Chief Executive Officer 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.
SIGNATURE TITLE DATE --------- ----- ---- /s/ C. Raymond Larkin, Jr. Director, President and Chief Executive July 26, 1996 - --------------------------------------- Officer (Principal Executive Officer) C. Raymond Larkin, Jr. /s/ Burton A. Dole, Jr. Director, Chairman of the Board July 26, 1996 - --------------------------------------- Burton A. Dole, Jr. /s/ Michael P. Downey Executive Vice President and Chief July 26, 1996 - --------------------------------------- Financial Officer (Principal Michael P. Downey Financial & Accounting Officer) /s/ Robert J. Glaser, M.D. Director July 26, 1996 - --------------------------------------- Robert J. Glaser, M.D. /s/ Frederick M. Grafton Director July 26, 1996 - --------------------------------------- Frederick M. Grafton /s/ Donald L. Hammond Director July 26, 1996 - --------------------------------------- Donald L. Hammond
Page 7 of 10 Pages 8 /s/ Risa J. Lavizzo-Mourey, M.D. Director July 26, 1996 - --------------------------------------- Risa J. Lavizzo-Mourey, M.D. /s/ Thomas A. McDonnell Director July 26, 1996 - --------------------------------------- Thomas A. McDonnell Director July 26, 1996 - --------------------------------------- Walter J. McNerney /s/ Edwin E. van Bronkhorst Director July 26, 1996 - --------------------------------------- Edwin E. van Bronkhorst
Page 8 of 10 Pages 9 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION SEQUENTIAL - -------------- ----------- PAGE NO. -------- 4.1 The description of the Registrant's Common Stock incorporated by reference to 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. 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. 333-04683). 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. * 333-04683). Incorporated by reference to Exhibit 5.1 of such Registration Statement on Form S-4 . 23.2 Consent of Price Waterhouse LLP 10 24.1 Power of Attorney. Reference is made to page 7.
__________ * Filed as an Exhibit to either the Registration Statement on Form 8-A or to the Registration Statement on Form S-4 (No. 333-04683), and incorporated herein by reference. Page 9 of 10 Pages EX-23.2 2 CONSENT OF PRICE WATERHOUSE LLP 1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of Nellcor Puritan Bennett Incorporated (the Company) of our report dated July 26, 1995, except as to Note 11, which is dated as of August 24, 1995, which appears on page 39 of the 1995 Annual Report on Form 10-K for the fiscal year ended July 2, 1995. We also consent to the incorporation by reference of our reports dated July 26, 1995, except as to Note 17, which is as of August 24, 1995, appearing in the Company's Reports on Form 8-K dated April 3, 1996 and May 31,1996. /s/ Price Waterhouse LLP - ------------------------ PRICE WATERHOUSE LLP San Francisco, California July 26, 1996 Exhibit 23.2 Page 10 of 10 Pages -----END PRIVACY-ENHANCED MESSAGE-----