Statement of Beneficial Ownership (sc 13d)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

 

 

LIBERATOR MEDICAL HOLDINGS, INC.

(Name of Issuer)

Common Stock, $0.001 par value

(Title of Class of Securities)

53012L108

(CUSIP Number)

Samrat S. Khichi, Esq.

Senior Vice President, General Counsel and Secretary

C. R. Bard, Inc.

730 Central Avenue

Murray Hill, New Jersey 07974

Telephone: [phone]

Copy to:

Michael E. Lubowitz, Esq.

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, New York 10153

Telephone: [phone]

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

November 19, 2015

(Date of Event Which Requires Filing of This Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨

 

 

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of section 18 of the Securities Exchange Act of 1934 (“Exchange Act”) or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).

 

 

 

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CUSIP No. 53012L108

 

1.		Names of reporting persons.   C. R. BARD, INC.
2.		Check the appropriate box if a member of a group (see instructions) (a)  ¨        (b)  ¨
3.		SEC use only
4.		Source of funds       OO
5.		Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)    ¨
6.		Citizenship or place of organization       New Jersey
Number of shares beneficially owned by each reporting person with				7.		Sole voting power       None
				8.		Shared voting power       20,480,867(1)
				9.		Sole dispositive power       None
				10.		Shared dispositive power       None
11.		Aggregate amount beneficially owned by each reporting person       20,480,867 (1)
12.		Check if the aggregate amount in Row (11) excludes certain shares (see instructions)  ¨
13.		Percent of class represented by amount in Row (11)       37.9%
14.		Type of reporting person (see instructions)       CO

 

(1)

Beneficial ownership of 20,480,867 shares of Common Stock (defined below) referred to herein is being reported hereunder because C. R. Bard, Inc. may be deemed to have beneficial ownership of such shares as a result of certain provisions contained in the Voting Agreement (as defined in Item 4 below) described in this Schedule 13D. Pursuant to Rule 13d-4, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by C. R. Bard, Inc. that it is the beneficial owner of any Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.

 

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Item 1.

Security and Issuer

The statement relates to the common stock, $0.001 par value (the “Common Stock”), of Liberator Medical Holdings, Inc., a Nevada corporation (the “Issuer”). The principal executive office of the Issuer is located at 2979 SE Gran Park Way, Stuart, Florida 34997.

 

Item 2.

Identity and Background

(a) This statement is filed by C. R. Bard, Inc., a New Jersey corporation (the “Reporting Person”).

(b) The principal business office of the Reporting Person is 730 Central Avenue, Murray Hill, New Jersey 07974.

(c) The principal business of the Reporting Person is the development, manufacturing and marketing of medical products for hospitals and individual health care professionals in many countries around the world.

The executive officers and directors of the Reporting Person as of November 19, 2015 (collectively, the “Related Persons”) are set forth on Schedule A attached hereto, containing the following information with respect to each such person: (i) name; (ii) residence or business address; and (iii) present principal occupation or employment and the name, principal business and address of any corporation or organization in which such employment is conducted.

(d) During the last five years, neither the Reporting Person nor, to the Reporting Person’s knowledge, any Related Person has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) During the last five years, neither the Reporting Person nor, to the Reporting Person’s knowledge, any Related Person has been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction as the result of which he, she or it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) The Reporting Person is a company incorporated in New Jersey and each Related Person is a citizen of the United States.

 

Item 3.

Source and Amount of Funds or Other Consideration

As more fully described in response to Items 4 and 5, the shares of Common Stock to which this Schedule 13D relates have not been purchased by the Reporting Person, and thus, no funds or other consideration were used.

 

Item 4.

Purpose of Transaction

(a) and (b) Mark A. Libratore and Robert Davis (each a “Shareholder” and, collectively, the “Shareholders”) and the Reporting Person are parties to a Voting and Support Agreement, dated as of November 19, 2015 (the “Voting Agreement”), with respect to 20,480,867 shares of Common Stock (collectively, the “Subject Shares”) held beneficially or of record by the Shareholders. The Voting Agreement was entered into in connection with the entry into an Agreement and Plan of Merger, dated as of November 19, 2015 (the “Merger Agreement”), by and among the Reporting Person, Freedom MergerSub, Inc., a Nevada corporation and a wholly-owned subsidiary of the Reporting Person (“MergerSub”), and the Issuer. Pursuant to, and subject to the terms and conditions contained in, the Merger Agreement (a) MergerSub shall be merged with and into the Issuer (the “Merger”), and the separate corporate existence of MergerSub shall thereupon cease; and (b) the Issuer shall be the surviving corporation in the Merger and shall continue to exist as a wholly-owned subsidiary of the Reporting Person (the “Surviving Corporation”). The Merger is subject to a number of conditions, and there is no certainty that the Merger will be consummated.

 

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Pursuant to the Voting Agreement, at any meeting of the stockholders of the Issuer, and at any adjournment or postponement thereof, called to seek stockholder approval of the Merger (“Required Approval”) or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, the Merger or any other agreement, document, instrument or certificate contemplated by the Merger Agreement executed by the Issuer at or prior to the termination of the Voting Agreement, the Merger or any other transaction contemplated thereby, is sought, such Shareholder shall, including by executing a written consent solicitation if requested by the Reporting Person, vote (or cause to be voted), in person or by proxy, the Subject Shares in favor of (i) granting the Required Approval and (ii) any proposal to adjourn any meeting of the stockholders of the Issuer which the Reporting Person supports so long as such adjournment is permitted under the Merger Agreement.

The Shareholders have also agreed to vote (or cause to be voted) the Subject Shares against (i) any alternative proposal with respect to the sale of the Issuer, (ii) any action, proposal, transaction or agreement which would reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Issuer under the Merger Agreement, and (iii) any amendment of the Issuer’s organizational documents, or any other action, proposal or transaction involving the Issuer or any of its subsidiaries, which amendment or other action, proposal or transaction would reasonably be expected to impede, interfere with, delay, frustrate, prevent or nullify any provision of the Merger Agreement, the Merger or any other transaction contemplated thereby, inhibit the timely consummation of the transactions contemplated thereby or change in any manner the voting rights of any class of capital stock of the Issuer.

The Shareholders have irrevocably granted to, and appointed, the Reporting Person, and any individual designated in writing by the Reporting Person, and each of them individually, as such Shareholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Shareholders’, to vote the Subject Shares, or grant a consent or approval in respect of the Subject Shares, in a manner required by the immediately preceding paragraph.

The Shareholders also agreed not to (i) directly or indirectly offer, sell, transfer, assign, exchange, pledge, encumber or otherwise dispose of (including by gift) (collectively, “Transfer”), or enter into any contract, option, agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any of such Shareholder’s Subject Shares, or any interest therein, to any person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of such Shareholder’s Subject Shares or (iii) commit or agree to take any of the foregoing actions. The numbers of Subject Shares owned beneficially or of record by each Shareholder are set forth in Schedule A to the Voting Agreement.

The Voting Agreement will terminate upon the earliest to occur of (i) the mutual consent of the parties thereto set forth in a written instrument signed by each of the parties, (ii) the effective time of the Merger (the “Effective Time”), (iii) the termination of the Merger Agreement in accordance with its terms and (iv) the effectiveness of any modification, amendment or waiver to the Merger Agreement that materially reduces, adversely affects, delays the payment of, or changes the form of, the consideration payable to the stockholders of the Issuer after the date of the Merger Agreement.

The foregoing descriptions of the Merger Agreement and the Voting Agreement do not purport to be complete and are qualified in their entirety by reference to such agreements, which are filed as Exhibit 1 and Exhibit 2 hereto, respectively, and are incorporated by reference herein.

(c) Not applicable.

(d) Pursuant to the Merger Agreement, at the Effective Time, the directors and officers of MergerSub immediately prior to the Effective Time shall become the initial directors and officers of the Surviving Corporation and shall hold office until their respective successors are duly elected or appointed and qualified in the manner provided in the Surviving Corporation’s articles of incorporation or bylaws or as otherwise provided by law, or until their earlier death, resignation or removal. The existing directors of MergerSub are Peter R. Curry, Samrat S. Khichi, Christopher S. Holland and John H. Weiland and the existing officer of MergerSub are Peter R. Curry, President, Samrat S. Khichi, Vice President & Secretary, Scott T. Lowry, Vice President & Treasurer, Richard C. Rosenzweig, Vice President & Assistant Secretary, Timothy P. Collins, Vice President, Christopher S. Holland, Vice President, and John H. Weiland, Vice President.

 

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(e) Not applicable.

(f) Not applicable.

(g) Pursuant to the Merger Agreement, at the Effective Time, the articles of incorporation of the Surviving Corporation shall be amended and restated to read in its entirety as the articles of incorporation of MergerSub, except that the name of the Surviving Corporation shall not be amended. Pursuant to the Merger Agreement, at the Effective Time, the bylaws of MergerSub, as in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation.

(h) and (i) The Common Stock is traded on the New York Stock Exchange MKT (“NYSEMKT”) under the trading symbol “LBMH.” The Common Stock will be de-registered pursuant to Section 12(g)(4) of the Exchange Act and the trading of the Common Stock will cease on the NYSEMKT, in each case at the Effective Time.

(j) Not applicable.

 

Item 5.

Interest in Securities of the Issuer

(a) and (b) As described in Item 4 above (which information is incorporated by reference in this Item 5), the Shareholders have irrevocably granted to, and appointed, the Reporting Person, and any individual designated in writing by the Reporting Person, and each of them individually, as such Shareholder’s proxy and attorney-in-fact, pursuant to the Voting Agreement. As a result of such grant, the Reporting Person may be deemed to be the beneficial owner of the Subject Shares for purposes of Rule 13d-3 under the Exchange Act. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by the Reporting Person that it is the beneficial owner of any of the Subject Shares referred to herein for purposes of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed. The Subject Shares constitute approximately 37.9% of the issued and outstanding shares of Common Stock as of November 19, 2015, based on the Issuer’s representation in the Merger Agreement that there were 53,977,311 shares of Common Stock issued and outstanding as of November 19, 2015.

(c) Neither the Reporting Person nor, to the knowledge of the Reporting Person, any of the Related Persons has effected any transaction in the Common Stock during the past 60 days.

(d) Not applicable.

(e) Not applicable.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Other than as described in Items 3, 4 and 5 above and the agreements incorporated herein by reference and set forth as exhibits hereto (all of which are incorporated by reference in this Item 6), neither the Reporting Person nor, to the knowledge of the Reporting Person, any Related Person is party to any contract, arrangement, understanding or relationship (legal or otherwise) with respect to securities of the Issuer, including but not limited to the transfer or voting of any securities of the Issuer, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss.

 

Item 7.

Material to be Filed as Exhibits

Exhibit 1: Agreement and Plan of Merger, dated as of November 19, 2015, by and among C. R. Bard, Inc., Freedom MergerSub, Inc. and Liberator Medical Holdings, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by the Issuer on November 20, 2015).

 

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Exhibit 2: Voting and Support Agreement, dated as of November 19, 2015, by and among C. R. Bard, Inc., Mark A. Libratore and Robert Davis (incorporated by reference to Exhibit 2.2 to the Current Report on Form 8-K filed by the Issuer on November 20, 2015).

 

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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.

 

C. R. BARD, INC.
By:		/s/ Richard C. Rosenzweig
		Name:		Richard C. Rosenzweig
		Title:		Vice President, Law and Assistant Secretary

Date: November 24, 2015

 

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SCHEDULE A

Name, business address and present principal occupation or

employment of the directors and executive officers of

C. R. BARD, INC.

DIRECTORS

 

Name		Business Address		Present Principal Occupation or Employment and Name and Principal Address of Corporation for which Employment is Conducted
Timothy M. Ring		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Chairman and Chief Executive Officer C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
David M. Barrett		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Emeritus President and Chief Executive Officer Lahey Clinic c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Marc C. Breslawsky		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Retired Chairman and Chief Executive Officer Imagistics International, Inc. c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Robert M. Davis		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Executive Vice President and Chief Financial Officer, Merck & Co., Inc. c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Herbert L. Henkel		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Retired Chairman and Chief Executive Officer Ingersoll-Rand Company c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
John C. Kelly		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Retired Vice President and Controller of Wyeth c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
David F. Melcher		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		President and Chief Executive Officer of Aerospace Industries Association c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974

 

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Name		Business Address		Present Principal Occupation or Employment and Name and Principal Address of Corporation for which Employment is Conducted
Gail K. Naughton, Ph.D.		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		CEO and Chairman of the Board Histogen, Inc. c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Tommy G. Thompson		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Former Secretary U.S. Department of Health and Human Services c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
John H. Weiland		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		President and Chief Operating Officer C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Anthony Welters		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Executive Chairman of BlackIvy Group LLC c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Tony L. White		c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Retired Chairman, President and Chief Executive Officer Applied Biosystems, Inc. c/o C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974

EXECUTIVE OFFICERS

 

Name		Business Address		Present Principal Occupation or Employment and Name and Principal Address of Corporation for which Employment is Conducted
Timothy M. Ring		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Chairman & Chief Executive Officer C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
John H. Weiland		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		President and Chief Operating Officer C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Christopher S. Holland		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Senior Vice President and Chief Financial Officer C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Jim C. Beasley		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Group President C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974

 

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Name		Business Address		Present Principal Occupation or Employment and Name and Principal Address of Corporation for which Employment is Conducted
Timothy P. Collins		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Group President C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
John P. Groetelaars		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Group President C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Sharon M. Luboff		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Group Vice President C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
John A. DeFord		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Senior Vice President Science, Technology and Clinical Affairs C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Samrat S. Khichi		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Senior Vice President General Counsel and Secretary C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Patricia G. Christian		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Vice President, Quality, Regulatory and Medical Affairs C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Betty Larson		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Vice President, Human Resources C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974
Frank Lupisella		C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974		Vice President and Controller C. R. Bard, Inc. 730 Central Avenue Murray Hill, New Jersey 07974

 

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