-----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, UHOLDPtxMfxJt79zuKiWf8FcsGi4+G23PmSgela10ce7X9hAxv/UbUTF9OPMeTxH A8gccoo8OPQ8/RDZSobOGw== 0000912057-97-024483.txt : 19970718 0000912057-97-024483.hdr.sgml : 19970718 ACCESSION NUMBER: 0000912057-97-024483 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970717 SROS: NASD GROUP MEMBERS: I.H.H. CORP. GROUP MEMBERS: INVACARE CORP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: HEALTHDYNE TECHNOLOGIES INC CENTRAL INDEX KEY: 0000900307 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 521756497 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-44621 FILM NUMBER: 97642088 BUSINESS ADDRESS: STREET 1: 1255 KENNESTONE CIRCLE CITY: MARIETTA STATE: GA ZIP: 30066 BUSINESS PHONE: 4044234500 MAIL ADDRESS: STREET 1: 1255 KENNESTONE CIRCLE CITY: MARIETTA STATE: GA ZIP: 30066 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: INVACARE CORP CENTRAL INDEX KEY: 0000742112 STANDARD INDUSTRIAL CLASSIFICATION: ORTHOPEDIC, PROSTHETIC & SURGICAL APPLIANCES & SUPPLIES [3842] IRS NUMBER: 952680965 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 899 CLEVELAND ST STREET 2: P O BOX 4028 CITY: ELYRIA STATE: OH ZIP: 44036 BUSINESS PHONE: 2163296000 SC 14D1/A 1 SC 14D1/A - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 27 TO SCHEDULE 14D-1 TENDER OFFER STATEMENT (PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934) HEALTHDYNE TECHNOLOGIES, INC. (Name of Subject Company) I.H.H. CORP. INVACARE CORPORATION (Bidders) ------------------------ COMMON STOCK, PAR VALUE $0.01 PER SHARE (Title of Class of Securities) 18139610 (CUSIP Number of Class of Securities) ------------------------ THOMAS R. MIKLICH, ESQ. CHIEF FINANCIAL OFFICER, GENERAL COUNSEL, TREASURER AND CORPORATE SECRETARY INVACARE CORPORATION 899 CLEVELAND STREET ELYRIA, OHIO 44035 TELEPHONE: (216) 329-6000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Bidders) ------------------------ COPY TO: ROBERT E. SPATT, ESQ. SIMPSON THACHER & BARTLETT 425 LEXINGTON AVENUE NEW YORK, NEW YORK 10017-3954 TELEPHONE: (212) 455-2000 ------------------------ - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- This Amendment No. 27 amends and supplements the Tender Offer Statement on Schedule 14D-1 filed on January 27, 1997 (as amended, the "Schedule 14D-1") relating to the offer by I.H.H. Corp., a Delaware corporation (the "Purchaser") and a wholly owned subsidiary of Invacare Corporation, an Ohio corporation (the "Parent"), to purchase all of the outstanding shares of Common Stock, par value $0.01 per share (the "Shares"), of Healthdyne Technologies, Inc., a Georgia corporation (the "Company"), and unless and until the Purchaser declares that the Rights Condition as defined in the Offer to Purchase referred to below is satisfied) the associated Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement, as amended, dated as of May 22, 1995, between the Company and SunTrust Bank, Atlanta (formerly Trust Company Bank), as Rights Agent, at a purchase price of $15 per Share (and associated Right), 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 January 27, 1997, as amended and supplemented by the Supplements thereto dated April 4, 1997 and June 6, 1997 (the "Offer to Purchase"), and in the related Letter of Transmittal. Unless otherwise indicated, all capitalized terms used but not defined herein shall have the meanings assigned to them in the Schedule 14D-1. The Schedule 14D-1 is hereby amended and supplemented as follows: On July 16, 1997, the Parent received a copy of a letter from the Company to the Court in the Defensive Tactics Litigation indicating that, although the Company conceded that it would call the Dead-Hand Elimination Proposal for a vote at the Annual Meeting, the Company intended for such vote to be on a "contingent basis" and did not intend to tabulate votes or announce results unless there was a reversal of the Court's order on appeal. The Parent believes that the Court's order does not justify such action by the Company and that such action by the Company would be in violation of the federal securities laws and Georgia state law. On July 17, 1997, the Parent sent a letter to the Court responding to the Company's letter and stating the Parent's belief that its pending motion for clarification or stay of the Court's Order in this regard still needed to be decided before the Annual Meeting. The full texts of the Company's letter to the Court and the Parent's letter to the Court are set forth in Exhibit 11(g)(21) and Exhibit 11(g)(22), respectively. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS. (g)(21) Letter from the Company to the Court dated July 15, 1997. (g)(22) Letter from the Parent to the Court dated July 17, 1997. 2 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. INVACARE CORPORATION By: /s/ THOMAS R. MIKLICH ----------------------------------------- Name: Thomas R. Miklich Title: Chief Financial Officer I.H.H. CORP. By: /s/ THOMAS R. MIKLICH ----------------------------------------- Name: Thomas R. Miklich Title: President Date: July 17, 1997 EXHIBIT INDEX
EXHIBIT PAGE NO. DESCRIPTION NO. - ------------------- -------------------------------------------------------------------------------------- --------- Exhibit 11(g)(21) Letter from the Company to the Court dated July 15, 1997.............................. Exhibit 11(g)(22) Letter from the Parent to the Court dated July 17, 1997...............................
EX-11.(G)(21) 2 EX-11(G)(21) LTR. FROM COMPANY TO COURT DATED 7/15 [LETTERHEAD OF TROUTMAN SANDERS] July 15, 1997 VIA HAND DELIVERY - ----------------- The Honorable Clarence Cooper United States District Court 75 Spring Street, S.W. Atlanta, GA 30335 Re: Invacare Corp., et al. v. Healthdyne Technologies, Inc., et al. --------------------------------------------------------------- Civil Action No. 1:97-CV-205-CC Dear Judge Cooper: This correspondence is in response to plaintiffs' emergency motion for clarification of the July 3, 1997 order or, in the alternative, for a limited stay pending appeal. In that motion, Invacare seeks relief not previously requested, in the form of an order treating its bylaw proposal, which the Court has determined is invalid under Georgia law, as "merely advisory." Motion for Clarification page 2. In our opinion, there is no need for the Court to address the motion. Because of Invacare's timing, both sides' proxy cards still include provisions allowing shareholders to express their views on the now-null bylaw proposal. In order to avoid another time-consuming round of briefings and the necessity for a hearing, Healthdyne would propose that, at the annual meting on July 30, the bylaw proposal be presented for shareholder vote on a contingent basis. Because this Court has clearly held that the bylaw proposal is unlawful under Georgia law, the votes on this proposal will not be counted at that time. However, the proxy cards and ballots will be retained by the independent inspectors of the election so that, in the unlikely event of a reversal on appeal, the proxy cards will be available and tabulated. Invacare's motion comes far too late in the process to avoid shareholder confusion. While Invacare may now wish to characterize its shareholder bylaw proposal as merely a recommendation to the directors, the bylaw in question was not written as an advisory proposal. It is drafted so that the language is mandatory, not precatory. If shareholders vote on the proposal as it presently appears on both parties' proxy cards, there is no way of determining whether the shareholders intend to vote for an illegal mandatory bylaw or merely an advisory one. There are only two weeks left prior to the meeting. Invacare's own evidentiary record submitted to this Court indicates that at least 30 days is required to effectively communicate with shareholders so that they understand what they are voting on. See April 5, 1997 Aff. Of Mark H. Harnett Paragraph 4. --- Under Healthdyne's suggested procedure, no harm can be caused to Invacare. If the Court's decision is reversed, the votes for Invacare's shareholder proposal will be counted and published. Nor is there any need to treat the illegal bylaw proposal as "merely advisory", with the potential for massive shareholder confusion, when it was never intended as such in the first place. Most importantly, there is no reason for the Court or the parties to take any additional action in response to Invacare's motion. Of course, should Your Honor feel that briefing is appropriate, we will be glad to respond as directed by the Court. Respectfully, /s/ Winifred D. Simpson ----------------------- Winifred D. Simpson WDS:mm cc: The Honorable Luther D. Thomas (via hand delivery) M. Robert Thornton, Esq. (via facsimile) 2 EX-11.(G)(22) 3 EX 11(G)(22) LTR. FROM PARENT TO COURT DATED 7/17 [LETTERHEAD OF KING & SPALDING] July 17, 1997 VIA HAND DELIVERY - ----------------- Hon. Clarence Cooper U.S. District Judge U.S. District Court for the Northern District of Georgia 75 Spring Street, S.W. Atlanta, Georgia 30335 Re: Invacare Corp., et al. v. Healthdyne Technologies, Inc., et al. --------------------------------------------------------------- Civil Action File No. 1:97-CV-0205-CC Dear Judge Cooper: I am writing in response to Ms. Simpson's July 15 letter to the Court, which only arrived at my office by fax on the afternoon of July 16. Healthdyne's proposal to present the bylaw proposal for a shareholder vote "on a contingent basis" and not count the votes or announce the results at that time violates Invacare's rights and is unacceptable and, as Healthdyne well knows, hardly "moots" the issue presented by Invacare's motion. To have the vote and, as Healthdyne apparently intends, not tabulate or announce the results would be in direct violation of both Georgia state law and federal securities law and would completely destroy the advisory aspect of the vote. Invacare's motion specifically objects to this precise course of action. As a result, Invacare still needs the Court to rule on its emergency motion prior to the July 30 annual meeting. The Court's July 3 Order found the "proposed bylaw" to be invalid under Georgia law, not the "bylaw proposal" (as Ms. Simpson claims), which is the precedural mechanism by which Invacare intends to place this issue before the shareholders. Healthdyne's obligation to place the bylaw proposal before the shareholders on at least an advisory basis arises under state law and was not addressed in any way in the Court's consideration of the cross motions for summary judgment. There is no federal or state law authority which permits Healthdyne to have this vote "on a contingent basis", nor is there anything in the parties' arguments or the Court's July 3 Order which would authorize Healthdyne to depart from the requirements of Georgia law regarding voting Hon Clarence Cooper July 17, 1997 Page 2 procedures. Furthermore, under O.C.G.A. Section 14-2-729.1, a newly-enacted provision of the Georgia Business Corporation Code which became effective July 1 of this year. Healthdyne is required to appoint an inspector for the annual meeting, and the inspector is required to count all the votes, determine the result, and issue a written report of his determinations. Nor will there be shareholder confusion about the vote. In materials discussing the possible effects of Healthdyne's challenge to the validity of the proposed bylaw, Invacare has consistently informed the shareholders that if "Healthdyne's challenge to the validity of the [Bylaw Proposal] were to be successful", then "a vote in favor of the [Bylaw Proposal] would not be directly legally binding on upon Healthdyne or its Board of Directors but would nonetheless advise them of the shareholders' strong desire that the 'dead-hand pill' restrictions be removed". See, e.g., --- ---- Preliminary Proxy Statement of Invacare dated May 29, 1997, as filed with the SEC and publicly available, p. 10 (attached); Definitive Proxy Statement of Invacare dated June 27, 1997, as filed with the SEC and mailed to the shareholders, p. 11 (attached). In addition, draft materials from the Investor Responsibility Research Center, a corporate-governance advisory group which informs many institutional holders of its analysis of shareholder voting issues, indicates that they fully understand the import of the Court's ruling and intend to advise their institutional subscribers accordingly. See --- Draft IRRC Proxy Fight Report, Proposal No. 3 (attached). Invacare is merely asking the Court to clarify that its July 3 Order was not intended, and should not be interpreted, to relieve Healthdyne of any obligations it otherwise has to present the bylaw proposal for a shareholder vote at the annual meeting, to count the votes, and to announce the results of the vote. If the Court fails to address Invacare's motion, however, it is apparent that Healthdyne intends to distort the meaning of the July 3 Order and use it as an excuse to violate Invacare's rights. Thus, we request that the Court establish a schedule for briefs and a hearing which will enable the Court to rule on the motion prior to the July 30 annual meeting. Sincerely, /s/ Robert Thornton ------------------ M. Robert Thornton MRT/saw cc: Winifred D. Simpson, Esq. (via hand delivery) 2 -----END PRIVACY-ENHANCED MESSAGE-----