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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
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DEPUY, INC.
(NAME OF SUBJECT COMPANY)
DEPUY, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
249726 10 0
(CUSIP NUMBER OF CLASS OF SECURITIES)
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JAMES A. LENT
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
DEPUY, INC.
700 ORTHOPAEDIC DRIVE
WARSAW, INDIANA 46580
TELEPHONE: (219) 267-8143
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICE AND
COMMUNICATIONS ON BEHALF OF PERSON(S) FILING STATEMENT)
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COPIES TO:
JEFFREY E. COHEN, ESQ.
COUDERT BROTHERS
1114 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 626-4400
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This Amendment No. 1 amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 filed by DePuy, Inc., a Delaware corporation (the
"Company"), on July 27, 1998 in connection with the offer (the "Offer") by LIB
Acquisition Corp., a Delaware corporation ("Purchaser") and wholly-owned
subsidiary of Johnson & Johnson, a New Jersey corporation ("Parent"), to
purchase for cash all the outstanding shares of Common Stock, par value $.01 per
share (the "Shares"), of the Company. The Offer was made pursuant to the terms
of an Agreement and Plan of Merger dated as of July 21, 1998 (the "Merger
Agreement") between the Parent, Purchaser and the Company. All capitalized terms
used but not defined herein shall have the meanings set forth with respect to
such terms in the Schedule 14D-9.
ITEM 2
The third paragraph of Item 2 is hereby amended by adding the following
sentence at the end of the paragraph:
"In the event that Purchaser acquires or controls the voting power of
90% or more of the outstanding Shares pursuant to the Offer or
otherwise, Purchaser would be able to, and has stated in its Offer to
Purchase distributed in connection with the Offer that it intends to,
effect the Merger without prior notice to, or any action by, any other
stockholder of the Company pursuant to Section 253 of the Delaware
General Corporation Law (the short-form merger provision)."
ITEM 4
The sentence at the beginning of sub-item (b) of Item 4, immediately prior
to the list of factors considered by the Board, is hereby amended to read in its
entirety as follows:
"The Board, in reaching its conclusions and recommendation, took
cognizance of the fact that (A) the Stockholders, as the owners of
approximately 84.0% of the outstanding Shares, had, prior to the July
20, 1998 meeting of the Board, already reached a decision to sell the
Shares owned by them to Purchaser at the Offer Price and (B) the
proposed Merger Agreement provided for all stockholders of the Company
to receive, pursuant to the Offer and the Merger, cash consideration for
their Shares at a price per Share equal to the price per Share to be
received by the Stockholders. Among the factors considered by the Board
were the following:"
Factors (i), (ii), (iii), (vii) and (x) under sub-item (b) of Item 4 are
hereby amended to read in their entirety as follows:
"(i) The Board's belief that it was not consistent with Roche's
business plans to meaningfully support expansion of the business of the
Company if the Company remained under Roche's control and that,
accordingly, if the Company were to remain under the control of Roche for
the indefinite future, the Company's ability to remain a major force in the
orthopedic device industry during what the Board believes may be a period
of rapid consolidation of such industry could be seriously impaired, with
corresponding negative impact on the value of the Shares.
(ii) The Board's belief (based on, inter alia, its knowledge of other
participants in the orthopedic device and related industries who might be
potential acquirors of the Company, on the analysis and presentation of
Bear Stearns referred to in paragraph (iv) below and on Roche's assessment,
as communicated to the Board, of other potential acquirors of the Company)
that the Stockholders were unlikely to enter into any agreement with an
alternative acquiror with respect to the Company on terms more favorable to
the Company's stockholders than those of the Offer.
(iii) The Board's belief (based on, inter alia, negotiations between
representatives of the Stockholders and Parent, as described to the Board
by Roche, and negotiations directly between the Company's management and
Parent, and based on the analysis and presentation of Bear Stearns referred
to in paragraph (iv) below) that Parent was likewise unlikely to enter into
agreements with the Stockholders and the Company on terms more favorable to
the Company's stockholders than those of the Offer.
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(vii) The terms and conditions of the contemplated transactions as
reviewed by and discussed with the Company's management, legal counsel and
Bear Stearns, especially the structural features of the Offer and the
Merger, which provided for an all cash tender offer for all outstanding
Shares followed by a merger with the same consideration payable per Share,
thereby enabling all stockholders to obtain the same benefits for their
Shares as would be received by the Stockholders.
(x) The relative undesirability of alternative courses of action
available to the Company, in light of the decision of the Stockholders to
enter into a binding commitment to sell the shares owned by them pursuant
to the Stockholder Agreement, and the premium consideration proposed to be
received by all stockholders pursuant to the Offer and the Merger."
The penultimate paragraph of sub-item (b) of Item 4 is hereby amended to
read in its entirety as follows:
"The Board's deliberations took place in the context of its knowledge
that the Stockholders had already determined to sell their Shares to Parent
at the Offer Price. The Board's decision, following such deliberations,
reflected the totality of information considered by it. In reaching its
decision, the Board did not find it practicable to, and did not, quantify
or otherwise assign precise relative weights to the individual items
described above, determine that any one or more factors was of primary
importance to its decision or identify the individual factors that
supported its decision or failed to support its decision. In addition,
individual members of the Board may have given different weight to
different factors.
The two representatives of Roche on the Company's Board of Directors,
following the presentation by Bear Stearns and after answering questions
from other Members of the Board, excused themselves from the meeting and
did not participate in the Board's discussion of the Offer, the Merger, the
Merger Agreement and the Stockholder Agreement or the vote of the Board on
such matters."
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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.
DEPUY, INC.
By: /s/ STEVEN L. ARTUSI
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Name: Steven L. Artusi
Title: Senior Vice President,
General Counsel and
Secretary
Dated: August 13, 1998.