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SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
(Amendment No. 3)
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Cordis Corporation
(Name of Subject Company)
Johnson & Johnson
JNJ Acquisition Corp.
(Bidders)
Common Stock, Par Value $1.00 Per Share
(Including the Associated Rights)
(Title of Class of Securities)
21852510
(CUSIP Number of Class of Securities)
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Joseph S. Orban, Esq.
Johnson & Johnson
One Johnson & Johnson Plaza
New Brunswick, New Jersey 08933
(908) 524-2488
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Bidders)
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Copy to:
Robert A. Kindler, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
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<PAGE>
JNJ Acquisition Corp. and Johnson & Johnson hereby amend their
Tender Offer Statement on Schedule 14D-1 (the "Statement"), originally
filed on October 19, 1995, as amended by Amendments No. 1 and 2, with
respect to JNJ Acquisition Corp.'s offer to purchase all outstanding shares
of Common Stock, par value $1.00 per share, of Cordis Corporation, a
Florida corporation, together with any associated rights, as set forth in
this Amendment No. 3. Capitalized terms not defined herein have the
meanings assigned thereto in the Statement.
Item 10. Additional Information.
As of October 26, 1995, J&J and the Purchaser filed an amended
complaint that amended and added to certain factual allegations contained
in, and added an additional count for relief that was not included in, the
original complaint. A copy of such amended complaint is attached hereto as
Exhibit (g)(5) and is incorporated herein by reference.
On October 26, 1995, J&J issued a press release, a copy of which
is attached hereto as Exhibit (a)(11) and is incorporated herein by
reference.
Item 11. Material to be filed as Exhibits.
(a)(11) Press Release, dated October 26, 1995.
(g)(5) Amended complaint filed in Johnson & Johnson and JNJ
Acquisition Corp. v. Cordis Corporation in the United States District Court
for the Southern District of Florida as of October 26, 1995.
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SIGNATURES
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.
Dated: October 27, 1995
JOHNSON & JOHNSON,
By: /s/ James T. Lenehan
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Name: James T. Lenehan
Title: Member, Executive Committee
JNJ ACQUISITION CORP.,
By: /s/ Joseph S. Orban
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Name: Joseph S. Orban
Title: President
<PAGE>
INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Page
(a)(11) Press Release, dated October 26,
1995.....................................
(g)(5) Amended complaint filed in Johnson &
Johnson and JNJ Acquisition Corp. v.
Cordis Corporation in the United States
District Court for the Southern District
of Florida as of October 26,
1995......................................
<PAGE>
Exhibit (a)(11)
Johnson & Johnson
New Brunswick, NJ 08933
Press Contact: F. Robert Kniffin
(908) 524-3535
(Home) (609) 799-0369
Investor Contact: Annie H. Lo
(908) 524-6491
(Home) (908) 580-1258
FOR IMMEDIATE RELEASE
JOHNSON & JOHNSON SUES TO INVALIDATE
CORDIS POISON PILL
New Brunswick, N.J., October 26, 1995 -- Johnson & Johnson
(NYSE:JNJ) announced today that it is amending its complaint against Cordis
Corporation (NASDAQ:CORD) to invalidate Cordis' poison pill, the detailed
terms of which were first revealed in a public filing late yesterday. The
poison pill provides that even if the Cordis shareholders vote to remove
and replace the current Board of Directors in a consent solicitation, only
the Directors who were removed can redeem the poison pill. Johnson &
Johnson said that the provision is clearly invalid under Florida law.
<PAGE>
Exhibit (g)(5)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
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JOHNSON & JOHNSON and
JNJ ACQUISITION CORP.,
CIV-HIGHSMITH
Plaintiffs,
Case No. 95-2295
v.
Magistrate Judge Turnoff
CORDIS CORPORATION,
Defendant. FIRST AMENDED
COMPLAINT
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Johnson & Johnson and JNJ Acquisition Corp. ("JNJ"), as and for
their first amended complaint, allege upon knowledge with respect to
themselves and their own acts, and upon information and belief as to all
other matters, as follows:
Nature of the Action
1. Plaintiffs bring this action for injunctive and/or declaratory
relief:
(a) to prevent the anti-takeover devices and other defensive
measures of defendant Cordis Corporation ("Cordis") from impeding or
delaying plaintiffs' tender offer, proposed merger and consent
solicitation, in violation of the fiduciary duties of Cordis's Board
of Directors;
(b) to prevent Cordis from otherwise taking actions that impede
or delay plaintiffs' tender offer, proposed merger and consent
solicitation, which will be made in compliance with all applicable
laws, obligations and agreements.
Jurisdiction and Venue
2. The Court has jurisdiction of the subject matter of this
action pursuant to 28 U.S.C. ss.ss. 1331, 1332(a), 1337(a) and 1367(a). The
plaintiffs and defendant are citizens of
<PAGE>
different states, and the matter in controversy exceeds the sum of $50,000,
exclusive of interest and costs.
3. Venue is proper in this district pursuant to 28 U.S.C. ss.
1391(a)-(c).
The Parties
4. Plaintiff Johnson & Johnson is a New Jersey corporation with
its principal place of business in New Jersey. Johnson & Johnson's
principal line of business is the manufacture and sale of a broad range of
products in the health care field. Johnson & Johnson owns common stock of
Cordis.
5. Plaintiff JNJ is a New Jersey corporation with its principal
place of business in New Jersey. It is a wholly owned subsidiary of Johnson
& Johnson, was organized to acquire control of Cordis, and has not
conducted any unrelated activities since its organization. All outstanding
shares of capital stock of JNJ are owned by Johnson & Johnson. JNJ owns
common stock of Cordis.
6. Defendant Cordis is a Florida corporation with its principal
place of business in Miami, Florida. It is engaged in the business of
designing, manufacturing and marketing medical devices, primarily
angiographic catheters, neuroscience devices and other related medical
devices.
The Offer, Proposed Merger and Consent Solicitation
7. On October 19, 1995, Johnson & Johnson announced its intention
to commence, through its wholly owned subsidiary, JNJ, a tender offer for
all outstanding shares of Cordis common stock (together with the associated
purchase rights issued in connection with Cordis's Poison Pill (as defined
below in P. 30)), at the price of $100.00 per share (and associated right)
net to the seller in cash (the "Offer"). The Offer is conditioned, inter
alia, upon: (i) valid tender of a majority of all outstanding shares on a
fully diluted basis of Cordis's common stock; (ii) redemption, invalidation
or inapplicability of the Poison Pill; (iii) inapplicability of Fla. Stat.
ss. 607.0901 or approval of the Proposed Cash Merger (as defined below in
P. 8) by Cordis's Board of Directors pursuant to the provisions of Fla.
Stat. ss. 607.0901; and (iv) inapplicability of Fla. Stat. ss. 607.0902 or
approval of the
<PAGE>
Offer by Cordis's Board of Directors pursuant to the provisions of Fla.
Stat. ss. 607.0902. The Offer is not subject to any condition relating to
plaintiffs' ability to finance the Offer or the Proposed Cash Merger.
8. As soon as practicable following consummation of the Offer,
Johnson & Johnson will seek to have Cordis consummate a merger with JNJ or
another direct or indirect wholly owned subsidiary of Johnson & Johnson
(the "Proposed Cash Merger"). The purpose of the Proposed Cash Merger is to
acquire all shares not tendered and purchased pursuant to the Offer or
otherwise. Pursuant to the Proposed Cash Merger, each then outstanding
share (other than shares owned by JNJ, Johnson & Johnson or any of their
subsidiaries, shares held in the treasury of Cordis and shares owned by
shareholders who perfect any available dissenters' rights under the Florida
Business Corporation Act) would be converted into the right to receive an
amount in cash equal to the price per share paid pursuant to the Offer.
9. With the announcement of the Offer, Johnson & Johnson also
announced that it is prepared to pay $105.00 per share in a negotiated
stock-for-stock tax-free merger, which would be accounted for as a pooling
of interests (the "Stock Merger"). In the tender offer materials JNJ stated
that if Cordis did not promptly agree to effect the Stock Merger, JNJ
intended to solicit written consents from Cordis's shareholders to remove
and replace Cordis's current Board of Directors and to take such other
actions as are deemed necessary at the time.
10. In view of Cordis's response to the Offer, plaintiffs intend
to solicit written consents from Cordis's shareholders (the "Consent
Solicitation") for the following purposes (the "Proposals"): (i) to remove
all nine of the present members of the Board of Directors of Cordis; (ii)
to amend Section 2 of Article II of Cordis's By-laws to fix the number of
directors of Cordis at three; (iii) to elect three nominees to serve as
directors of Cordis (the "New Directors"); and (iv) to repeal each
provision of Cordis's By-laws or amendment thereto adopted subsequent to
April of 1977 and prior to the effectiveness of the Proposals.
<PAGE>
11. The Consent Solicitation is designed to facilitate the Stock
Merger. If elected, the New Directors intend to discharge fully their
obligations owing to Cordis and its shareholders under Florida law. Subject
to such obligations, the New Directors intend to (a) redeem the Poison Pill
(or amend it to make it inapplicable to the Stock Merger); (b) approve,
submit and recommend to the shareholders of Cordis approval of, the Stock
Merger; and (c) take such other action as may be required to expedite the
prompt consummation of the Stock Merger. If a transaction, other than the
Stock Merger, offering more value to Cordis's shareholders is purposed, the
New Directors intend to take actions to facilitate such a transaction,
subject in all cases to fulfillment of their obligations as directors of
Cordis.
12. The Consent Solicitation is not a request for the tender of
shares of Cordis stock; it is not an offer with respect to such a tender;
and it is not a solicitation of proxies to vote with respect to any matter.
By executing and delivering a consent, a Cordis shareholder is exercising
such shareholder's own voting power and is not authorizing any other person
to vote with respect to any matter.
13. On October 24, 1995, plaintiffs delivered to the Secretary of
Cordis a written request that the Board of Directors fix a record date for
the Consent Solicitation.
14. The purpose of the Offer and the Proposed Cash Merger is to
enable Johnson & Johnson, if it is not able to effect a combination or
merger with Cordis through the Stock Merger, to acquire control of, and the
entire equity interest in, Cordis. The purpose of the Stock Merger is to
acquire control of, and the entire equity interest in, Cordis.
15. The Offer and Stock Merger are clearly in the best interests
of Cordis's shareholders. The Offer is a fully financed, all cash offer,
available to all Cordis shareholders, for all outstanding shares; it is not
"front-end loaded" or otherwise coercive in nature. The Stock Merger is
likewise for all outstanding shares; it is not "front-end loaded" or
otherwise coercive in nature. The
<PAGE>
Offer price and the Stock Merger price are pre-emptive and represent a full
and fair value to Cordis's shareholders.
16. The Offer and Stock Merger provide Cordis's shareholders with
the opportunity to realize a substantial premium over the market price of
their shares prior to announcement of the Offer. The Offer price and the
Stock Merger price represent a substantial premium over the market price of
Cordis shares prior to July 18, 1995, the date on which it was incorrectly
reported in the press that there were merger discussions between Johnson &
Johnson and Cordis, which has since then bolstered the market price of
Cordis shares. The Offer price and Stock Merger price also represent a
substantial premium over the market price of the shares immediately prior
to announcement of the Offer. On the last Nasdaq National Market trading
day before announcement of the Offer, the last reported sale quotation of
Cordis shares on the Nasdaq National Market was $86.00 per share.
17. The Offer, Proposed Cash Merger, Consent Solicitation and
Stock Merger do not pose any threat to the interests of Cordis's
shareholders or to Cordis's corporate policy and effectiveness.
18. The Offer, Proposed Cash Merger, Consent Solicitation and
Stock Merger comply or will comply with all applicable laws, obligations
and agreements. The tender offer documents fairly disclose all information
material to the decision of Cordis's shareholders whether to accept or
reject the Offer, in compliance with plaintiffs' obligations under the
securities laws. The Consent Solicitation materials will fully disclose all
information material to the decision of Cordis's shareholders in compliance
with plaintiffs' obligations under the securities laws. Plaintiffs have
made the filings required by the Hart-Scott-Rodino Act.
19. The Offer, Proposed Cash Merger and Stock Merger cannot be
completed successfully unless Cordis's anti-takeover devices are removed.
Certain of Cordis's anti-takeover devices are also designed to prevent or
impede the consummation of the Consent Solicitation and Stock Merger. Given
the nature of the Offer and the Stock Merger and their benefits, Cordis
<PAGE>
should remove these barriers and assist plaintiffs in obtaining any
necessary regulatory approvals. In any event, Cordis should not be
permitted to attempt to delay consummation of the Offer, Proposed Cash
Merger, Consent Solicitation or Stock Merger by litigation in other forums,
including litigation on the propriety of its anti-takeover devices.
Contacts Between Johnson & Johnson and Cordis
20. Cordis is unwilling even to meet to consider or discuss a
combination or merger with Johnson & Johnson.
21. On September 6, 1995, Mr. Ralph S. Larsen, Chairman of the
Board and Chief Executive Officer of Johnson & Johnson telephoned Dr.
Robert Q. Marston, then Chairman of the Board of Cordis, to advise him of
Johnson & Johnson's interest in meeting with representatives of Cordis to
discuss a combination or merger on a negotiated basis. Larsen briefly
outlined the strategic advantages to both Cordis and Johnson & Johnson of a
combination. Marston explained to Larsen that he would be stepping down as
Chairman of the Board of Cordis in October and that Mr. Robert C. Strauss,
the President and Chief Executive Officer of Cordis, would be his successor
as Chairman. Marston told Larsen that he would get back to him following
consultation with Mr. Richard W. Foxen, a Director of Cordis. Foxen
telephoned Larsen later that day, and Larsen advised Foxen of Johnson &
Johnson's desire to meet with representatives of Cordis as soon as
possible. Larsen described Johnson & Johnson's decentralized operating
philosophy and indicated Johnson & Johnson's intention to leave Cordis as
an autonomous operating company within Johnson & Johnson's family of
companies. Foxen agreed that he and Marston would meet with Larsen on
September 12 in New York City.
22. At the meeting on September 12, 1995, Larsen and Mr. Robert
N. Wilson, Vice Chairman of Johnson & Johnson, reviewed with Marston and
Foxen the reasons that a combination of Johnson & Johnson and Cordis was in
the best interests of all parties, and expressed Johnson & Johnson's
interest in moving forward with a transaction to be structured as a
<PAGE>
stock-for-stock tax-free merger to be accounted for as a
pooling-of-interests. Larsen and Wilson again emphasized Johnson &
Johnson's desire to keep Cordis intact and autonomous in its current
location in Florida.
23. On September 13, 1995, Marston telephoned Larsen and informed
him that he had reviewed the prior discussions with other Directors of
Cordis as well as with Strauss. Marston then requested that Larsen
telephone Strauss. Larsen immediately telephoned Strauss, and outlined the
strategic basis for a business combination and emphasized that he would
like to meet as soon as possible to discuss a negotiated transaction.
Strauss tentatively agreed to a meeting on either September 21 or 22, and
said he would call Larsen on September 15 to confirm the date of the
meeting. On September 15, 1995, Larsen called Strauss and they scheduled
the meeting for September 21, 1995.
24. On September 19, 1995, Strauss telephoned Larsen and informed
him that there had been a telephonic meeting of the Board of Directors of
Cordis at which it was decided that it would be premature to meet with
representatives of Johnson & Johnson until after the Annual Meeting of
shareholders of Cordis, scheduled for October 10, 1995. Larsen inquired as
to the reason for the delay and Strauss responded that the Board of
Directors of Cordis wanted time to do an evaluation of Cordis. Larsen
agreed to postpone the meeting until after Cordis's Annual Meeting.
25. On October 11, 1995, Strauss telephoned Larsen and stated
that the Board of Directors of Cordis had met and had determined that
Cordis should remain independent, and that Strauss should not meet with
Johnson & Johnson. Larsen inquired as to how this determination could have
been made without the Board being informed of the terms that Johnson &
Johnson would propose, the strategic reasons for a combination and the
benefits to Cordis's shareholders, employees and customers of a combination
or merger. Strauss responded that he was not authorized to meet, and would
not meet, with Larsen. Larsen asked Strauss to reconsider and again
expressed a desire for a negotiated combination or merger.
<PAGE>
Cordis's Anti-Takeover Devices and Other Defensive Measures
26. Cordis has available various anti-takeover devices and other
defensive measures-- including a "Poison Pill," the Florida Affiliated
Transactions Statute, Fla. Stat. ss. 607.0901 ("Section 607.0901"), and the
Florida Control-Share Acquisitions Statute, Fla. Stat. ss. 607.0902
("Section 607.0902")--which may be used or relied upon to block or to
attempt to block the Offer, Proposed Cash Merger, Consent Solicitation and
Stock Merger.
27. Cordis has also amended its By-laws in an effort to prevent
or inhibit the Offer, Proposed Cash Merger, Consent Solicitation and Stock
Merger. In light of its opposition to a combination or merger, Cordis may
also attempt to use other defensive measures in order to prevent the
shareholders from deciding upon the merits of plaintiffs' proposals for
themselves.
28. Given the nature of the Offer and the Stock Merger and their
substantial value to Cordis's shareholders, use of or reliance upon
Cordis's anti-takeover devices or other defensive measures against the
Offer, Proposed Cash Merger, Consent Solicitation or Stock Merger
represents an unreasonable response to the Offer, Proposed Cash Merger,
Consent Solicitation and Stock Merger, forecloses effective shareholder
action and is in violation of the fiduciary duties owed to plaintiffs.
29. Cordis's shareholders have previously rejected at least one
potential anti-takeover device, despite the recommendation of Cordis's
Board of Directors. In Cordis's September 15, 1995 Proxy Statement, the
Cordis Board of Directors recommended that Cordis's shareholders adopt an
amendment to Article III of Cordis's Restated Articles of Incorporation to
increase the authorized number of shares of common stock of Cordis from
fifty million shares to one hundred fifty million shares. In describing
this proposed amendment, the Proxy Statement stated, inter alia:
"the mere existence of such a block of authorized but
unissued shares, and the Board's ability to issue such
shares without shareholder approval, might deter a bidder
from seeking to acquire shares of the Company on an
unfriendly basis."
At Cordis's Annual Meeting, on October 10, 1995, Cordis's
shareholders rejected this proposal.
Poison Pill
<PAGE>
30. On or about October 13, 1995, only days after Cordis's
shareholders rejected the adoption of the Board-recommended anti-takeover
device and only days after Cordis stated its unwillingness even to meet to
discuss or consider a combination or merger with Johnson & Johnson, Cordis
announced that its Board of Directors had adopted a poison pill rights
agreement (the "Poison Pill"). The adoption of the Poison Pill in these
circumstances represents the Board's attempt to block plaintiffs from
proceeding with their acquisition of Cordis.
31. As part of the Poison Pill, the Board authorized and declared
a dividend of one capital stock purchase right (a "Right") per share of
common stock of Cordis, payable to shareholders of record as of the close
of business on October 23, 1995. The Rights will expire on October 13, 2005
(the "Final Expiration Date"), unless the Rights are earlier redeemed or
the final Expiration Date is extended.
32. Each Right initially entitles the holder to purchase one
share of Cordis common stock at a price of $375 (the "Purchase Price"). The
number of shares a holder can purchase per Right is subject to adjustment
as described below.
a. In the event that any person (an "Acquiring Person") becomes
the beneficial owner of 15 percent or more of the outstanding shares
of Cordis common stock (except pursuant to a cash offer for all
outstanding shares of Cordis common stock, which offer has been
determined to be fair and in the best interests of Cordis and its
shareholders by a majority of those Cordis directors who are not
officers of Cordis and who are Continuing Directors (as defined
therein)), then each holder of a Right, other than an Acquiring
Person, is entitled, after exercising the Right and tendering the
Purchase Price, to receive common stock having a market value equal to
two times the Purchase Price. The effect of this provision is to
entitle the holder of a Right to purchase Cordis common stock having a
value of $750 after paying the Purchase Price of only $375. This
provision becomes effective after Cordis's right of redemption has
expired.
<PAGE>
b. In the event that Cordis is acquired pursuant to a merger or
other business combination in which (1) Cordis is not the surviving
corporation or (2) Cordis is the surviving corporation, but all of its
outstanding common stock is exchanged for the securities of another
entity, the holder of a Right, other than an Acquiring Person, is
entitled, after exercising the Right and tendering the Purchase Price,
to receive common stock of the acquiring company having a market value
equal to two times the Purchase Price. This provision becomes
effective after Cordis's right of redemption has expired.
33. The Poison Pill provides that the Rights do not become
exercisable until after the "Distribution Date." The Distribution Date is
defined as the earlier of (a) the close of business on the tenth day after
the first public announcement that a person has acquired beneficial
ownership of 15 percent or more of the outstanding shares of Cordis common
stock or (b) the close of business on the tenth business day (or such later
date as determined by the Continuing Directors (as defined therein))
following the commencement of a tender offer the consummation of which
would result in the beneficial ownership by a person of 15 percent or more
of the outstanding shares of common stock.
34. At any time prior to the earlier of (a) the close of business
on the tenth day following the announcement that a person is the beneficial
owner of 15 percent or more of the outstanding shares of common stock (the
"Stock Acquisition Date") or (b) the Final Expiration Date, Cordis's Board,
subject to the restrictions discussed below, may redeem the Rights in
whole, but not in part, at a price of $.005 per Right.
35. The Board's ability to redeem the Rights, however, is
purportedly restricted by a provision of the Poison Pill that serves no
purpose other than to entrench the current Board (the "Redemption
Restriction"). Under this provision, in the event that redemption by the
Board occurs after (a) a person becomes the beneficial owner of 15 percent
or more of the outstanding shares of Cordis common stock (becomes an
Acquiring Person) or (b) a majority of the members of the Board have been
replaced pursuant to a proxy or consent solicitation or pursuant to a vote
<PAGE>
or written consent in which a person participating in the solicitation,
vote or consent has stated that it intends to become an Acquiring Person,
then redemption by the Board is only effective if that Board includes
"Continuing Directors" and a majority of the Continuing Directors concurred
with the decision to redeem the Rights. "Continuing Directors" is defined
as directors who were members of the Board on October 13, 1995 or whose
nomination was approved or recommended by a majority of the Continuing
Directors. In an instance where a majority of the members of the Board have
been replaced pursuant to a proxy or consent solicitation, the need for the
Continuing Directors to approve the redemption of the Rights is obviated
only if (1) concurrently with the proxy or consent solicitation the person
intending to become an Acquiring Person is also making a cash tender offer
for all outstanding shares of Cordis common stock and (2) a majority of the
Continuing Directors who are not officers of Cordis have determined that
the tender offer is fair to shareholders and is in the best interests of
Cordis and its shareholders.
36. As an alternative to redemption, Cordis's Board can also
amend the Poison Pill to make it inapplicable to the Offer and Proposed
Cash Merger. However, the provision of the Poison Pill allowing amendment
by the Board also requires that amendments to the Poison Pill be approved
by a majority of Continuing Directors (the "Amendment Restriction").
37. Cordis's Poison Pill is designed to make it prohibitively
expensive to acquire control of Cordis, and thus allows the Board to
withhold approval of the Offer and Proposed Cash Merger regardless of the
interests of Cordis's shareholders. Given the nature and value of the Offer
and the Stock Merger, Cordis should redeem the Rights under the provisions
of the Poison Pill, or amend the Poison Pill to make the Rights
inapplicable to the Offer and Proposed Cash Merger, to enable the
shareholders to exercise their right as the owners of Cordis to decide upon
the merits of the Offer for themselves.
38. The failure to redeem the Rights or amend the Poison Pill
violates the fiduciary duties owed to plaintiffs because it will deny
plaintiffs meaningful access to or control over the assets of Cordis and
will hinder or prevent plaintiffs from exercising their fundamental
<PAGE>
shareholder rights under Florida law. Plaintiffs will suffer irreparable
injury as a result of the loss of the unique opportunity to acquire control
of Cordis.
39. The Redemption Restriction and the Amendment Restriction
(collectively, the "Restrictions") also purport to allow the current Board
to withhold approval of the Stock Merger, even if that Board is replaced by
a vote of the shareholders of Cordis through the Consent Solicitation.
Under the Restrictions, the New Directors are purportedly without power or
authority to redeem the Rights or amend the Poison Pill so that the Stock
Merger may go forward.
40. Under Florida law, the shareholders of Cordis have the right
to elect and remove directors. Subject only to limitations contained in the
articles of incorporation, the duly elected directors are empowered to
exercise all corporate powers and to direct the management of the business
and affairs of the corporation.
41. Because the Restrictions, which are not contained in the
Articles of Incorporation of Cordis, purport to prevent future directors
from exercising certain corporate powers and to limit the ability of future
directors to direct the management of the business and affairs of the
corporation, the Restrictions violate Florida law.
42. The Restrictions are a blatant attempt to entrench the
current Board and to deny the shareholders of Cordis the opportunity to
decide for themselves whether to accept plaintiffs' proposals as set forth
in the Consent Solicitation. The adoption of the Restrictions is in
violation of Cordis's Board's fiduciary duties, is designed to prevent
future directors from acting in the best interests of the company and
represents an intentional effort by the current Board to manipulate the
corporate machinery so as to prevent the effectiveness of a shareholder
vote pursuant to the Consent Solicitation.
43. The adoption of the Restrictions also violates the fiduciary
duties owed to plaintiffs because it will deny plaintiffs meaningful access
to or control over the assets of Cordis and will hinder or prevent
plaintiffs from exercising their fundamental shareholder rights under
Florida law.
<PAGE>
Until the Restrictions are declared invalid or immediately revoked,
plaintiffs will continue to suffer irreparable injury because Cordis's
shareholders will be wrongfully deterred from giving their consents to the
Proposals in the Consent Solicitation, thereby depriving plaintiffs of the
unique opportunity to acquire control of Cordis.
Florida Control-Share Acquisitions Statute,
Section 607.0902
44. Section 607.0902, entitled "Control-share acquisitions,"
applies to any corporation (an "Issuing Public Corporation") that has not
opted out of the statute's coverage that (i) has 100 or more shareholders;
(ii) has its principal place of business, its principal office, or
substantial assets within Florida; and (iii) has either (a) more than 10
percent of its shareholders resident in Florida, (b) more than 10 percent
of its shares owned by residents of Florida, or (c) 1000 shareholders
resident in Florida. Cordis has not opted out of the statute's coverage.
45. Section 607.0902 provides that shares in a corporation that
are acquired in a control share acquisition have voting rights only to the
extent authorized by a majority of shareholders other than holders of
interested shares (defined to include shares which are beneficially owned
by an acquiring person, any officer of the issuing corporation or any
employee of the corporation who is also a director). A control share
acquisition is defined, inter alia, as the acquisition of beneficial
ownership of shares with (i) one-fifth or more but less than one-third of
all voting power; (ii) one-third or more but less than a majority of all
voting power; or (iii) a majority or more of all voting power. A control
share acquisition does not include an acquisition which has been approved
by the board of directors of the Issuing Public Corporation.
46. The Consent Solicitation is not a control share acquisition.
47. The effect of Section 607.0902 is that shares acquired in an
unsolicited tender offer only carry voting rights to the extent authorized
by a majority of holders of shares other than those already acquired in the
tender offer. Moreover, the shareholder vote on the resolution regarding
<PAGE>
the voting rights to be accorded the acquiror's control shares is not
required to be taken until the next scheduled special or annual meeting of
shareholders, unless the acquiring person delivers a control share
acquisition statement to the Issuing Public Corporation, requests a special
meeting of shareholders for the specific purpose of determining control
share voting rights, and agrees to pay the Issuing Public Corporation's
expenses for the special meeting. In that event, the directors of the
Issuing Public Corporation may wait for up to 50 days after receipt of the
demand by the acquiring person before holding the special meeting.
48. Given the nature and value to Cordis's shareholders of the
Offer, Cordis should approve the Offer so that Section 607.0902 will be
inapplicable, take no steps to apply or enforce the provisions of Section
607.0902, and should permit the Offer to proceed unhindered so that
Cordis's shareholders can decide upon its merits for themselves.
49. The failure to approve the Offer violates the fiduciary
duties owed to plaintiffs because it will deny plaintiffs meaningful access
to or control over the assets of Cordis and will hinder or prevent
plaintiffs from exercising their fundamental shareholder rights under
Florida law. Plaintiffs will suffer irreparable injury as a result of the
loss of the unique opportunity to acquire control of Cordis.
Florida Affiliated Transactions Statute,
Section 607.0901
50. Section 607.0901, entitled "Affiliated Transactions," applies
to any Florida corporation that has not opted out of the statute's
coverage. Cordis has not opted out of the statute's coverage. Section
607.0901 also applies to foreign corporations that satisfy certain
statutory requirements.
51. Section 607.0901 was designed to impede coercive and
inadequate tender offers and to assure that shareholders in a hostile
takeover receive a fair price in a second-step merger. Section 607.0901
provides that if a person acquires more than ten percent of a corporation's
<PAGE>
voting shares (thereby becoming an "Interested Shareholder"), such
Interested Shareholder may not engage in an "Affiliated Transaction"
(defined to include a merger or consolidation) with the corporation.
However, Section 607.0901 will not prohibit an Affiliated Transaction under
various differing circumstances, including any instance in which the
Affiliated Transaction has been approved by a majority of the Disinterested
Directors (as therein defined).
52. Given the nature and value to Cordis's shareholders of the
Offer, Cordis should approve the Proposed Cash Merger so that Section
607.0901 will be inapplicable, take no steps to apply or enforce the
provisions of Section 607.0901 and should permit the Offer to proceed
unhindered so that Cordis's shareholders can decide upon its merits for
themselves.
53. The failure to approve the Proposed Cash Merger violates the
fiduciary duties owed to plaintiffs because it will deny plaintiffs
meaningful access to or control over the assets of Cordis and will hinder
or prevent plaintiffs from exercising their fundamental shareholder rights
under Florida law. Plaintiffs will suffer irreparable injury as a result of
the loss of the unique opportunity to acquire control of Cordis.
Restrictive By-law Amendment
54. On October 23, 1995, the Board of Directors of Cordis
approved an amendment to Cordis's By-laws relating to fixing the record
date for determining the shareholders entitled to consent to corporate
action in writing without a meeting (the "Record Date By-law")
55. Prior to the adoption of the Record Date By-law, Cordis's
By-laws did not contain any provision relating to fixing the record date
for a consent solicitation. Under Florida law, absent a by-law to the
contrary, the record date is fixed as the date on which the first written
consent is delivered to the company.
56. Under the terms of the Record Date By-law, the Board of
Directors of Cordis is empowered to fix the record date. The obligation of
the Board of Directors to fix a record date is triggered by the receipt by
the Secretary of Cordis of either a request that the Board of Directors fix
<PAGE>
a record date (the "Record Date Demand") or the first written consent.
However, under the Record Date By-law, the Board of Directors may wait ten
business days after receipt of the Record Date Demand or the first written
consent, whichever is earlier, before meeting to adopt a resolution to fix
the record date. Moreover, under the Record Date By-law, the Board of
Directors may fix the record date as late as ten business days after the
date that the Board of Directors adopts the resolution fixing the record
date. In short, by adopting the Record Date By-law, the Board of Directors
of Cordis has given itself the power to postpone the record date by twenty
business days.
57. No reasonable business purpose is served by delaying the
fixing of the record date in the manner allowed by the Record Date By-law.
The Record Date By-law was adopted in response to plaintiffs' announcement
of their intent to commence a consent solicitation to, inter alia, replace
the current directors of Cordis, and was intended to entrench the current
management and directors of Cordis and to delay or impede the Consent
Solicitation and the Stock Merger.
58. Adoption of the Record Date By-law represents an unreasonable
response to the Offer, Proposed Cash Merger, Consent Solicitation and Stock
Merger, represents an intentional effort by the current Board to manipulate
the corporate machinery so as to prevent the effectiveness of a shareholder
vote pursuant to the Consent Solicitation and demonstrates the bad faith of
Cordis's current Board of Directors.
59. Plaintiffs have nonetheless sought to comply with the Record
Date By-law. On October 24, 1995, JNJ delivered a written request to Cordis
requesting that the Board of Directors of Cordis fix a record date as soon
as possible for plaintiffs' consent solicitation.
Irreparable Injury
60. Cordis's use of or reliance upon its anti-takeover devices
and other defensive measures to obstruct the Offer, Proposed Cash Merger,
Consent Solicitation or Stock Merger will deny plaintiffs meaningful access
to or control over the assets of Cordis, will hinder or prevent plaintiffs
from exercising their fundamental shareholder rights under Florida law and
<PAGE>
will cause plaintiffs irreparable injury as a result of the loss of the
unique opportunity to acquire control of Cordis. These injuries will be
suffered directly by plaintiffs and are separate and distinct from the
injuries that such actions will cause Cordis's other shareholders, who will
be deprived of the fundamental right to decide for themselves whether or
not to accept the Offer and to sell their shares for a substantial premium.
61. Plaintiffs have no adequate remedy at law. Only through the
exercise of the Court's equitable powers will plaintiffs be protected from
immediate and irreparable injury. Unless the Court enjoins the application
of Cordis's anti-takeover devices to the Offer, Proposed Cash Merger,
Consent Solicitation and Stock Merger and enjoins Cordis from impeding the
Offer, Proposed Cash Merger, Consent Solicitation or Stock Merger by any
other defensive measures, including litigation in other forums, plaintiffs
will be precluded from consummating the Offer, which is conditioned on
removal or inapplicability of Cordis's anti-takeover devices, will be
denied any meaningful access to or control over the assets of Cordis and
will be hindered in or prevented from exercising their fundamental
shareholder rights under Florida law. Should that occur, plaintiffs will
have lost the unique opportunity to acquire control of Cordis.
Declaratory Relief
62. The Court may grant the declaratory relief sought herein
pursuant to 28 U.S.C. ss. 2201 and Fed. R. Civ. P. 57. Cordis's expressed
unwillingness even to meet to consider or discuss a combination or merger
with plaintiffs and the recent adoption of the Poison Pill and the Record
Date By-law demonstrate that there is a substantial controversy between the
parties. The adverse legal interests of the parties are real and immediate.
The granting of the requested declaratory relief will serve the public
interest by affording relief from uncertainty and by avoiding delay and
will conserve judicial resources by avoiding piecemeal litigation.
<PAGE>
COUNT ONE
(INJUNCTIVE RELIEF)
63. Plaintiffs repeat, reaver, and incorporate each averment
contained in Paragraphs 1 through 62 of this Complaint as if fully set
forth herein.
64. The Offer is fully financed; it is non-coercive and
non-discriminatory; it is fair to Cordis's shareholders; and it represents
a substantial premium over the market price of Cordis shares.
65. The Stock Merger is not subject to a financing condition; it
is non-coercive and non-discriminatory; it is fair to Cordis's
shareholders; and it represents a substantial premium over the market price
of Cordis's shares.
66. The Offer, Proposed Cash Merger, Consent Solicitation and
Stock Merger comply with all applicable laws, obligations, and agreements
and pose no threat to the interests of Cordis's shareholders or to Cordis's
corporate policy or effectiveness. Use of or reliance upon Cordis's
anti-takeover devices or any other defensive measures to prevent Cordis's
shareholders from deciding for themselves whether or not to accept the
Offer and whether or not to consent to plaintiffs' proposals set forth in
the Consent Solicitation is not proportionate to any threat posed, nor
within the range of reasonable responses to the Offer, Proposed Cash
Merger, Consent Solicitation or Stock Merger, forecloses effective
shareholder action and is in breach of the fiduciary duties owed to
plaintiffs. Plaintiffs seek injunctive relief against such breaches of
fiduciary duties.
COUNT TWO
(DECLARATORY AND INJUNCTIVE RELIEF)
67. Plaintiffs repeat, reaver and incorporate each averment
contained in Paragraphs 1 through 62 of this Complaint as if fully set
forth herein.
68. The Redemption Restriction and the Amendment Restriction
violate Florida law and were adopted in violation of the fiduciary duties
of the Board of Directors of Cordis in an attempt
<PAGE>
to manipulate the corporate machinery so as to entrench the current Board
of Directors and to prevent future directors from acting in the best
interests of the company.
69. The adoption of the Restrictions also violates the fiduciary
duties owed to plaintiffs because it will deny plaintiffs meaningful access
to or control over the assets of Cordis and will hinder or prevent
plaintiffs from exercising their fundamental shareholder rights under
Florida law.
70. Plaintiffs seek injunctive declaratory relief against the
operation or enforcement of these illegal provisions and against these
continuing breaches of fiduciary duty.
COUNT THREE
(DECLARATORY AND INJUNCTIVE RELIEF)
71. Plaintiffs repeat and reaver as if fully set forth herein
each averment in Paragraphs 1 through 62 of this Complaint.
72. The Offer, Proposed Cash Merger, Consent Solicitation and
Stock Merger comply or will comply with all applicable laws, obligations
and agreements. Given the nature of the Offer and its benefits, Cordis
should assist plaintiffs in obtaining any necessary regulatory approvals.
In any event, Cordis should not be permitted to attempt to delay
consummation of the Offer, Proposed Cash Merger, Consent Solicitation or
Stock Merger by litigation in other forums. To prevent any unnecessary
impediment to consummation of the Offer, Proposed Cash Merger, Consent
Solicitation or Stock Merger, plaintiffs seek declaratory and injunctive
relief against Cordis's commencement of proceedings in any forum other than
this Court which would impede their commencement, continuation or
consummation.
WHEREFORE, plaintiffs respectfully request that this Court enter an order:
(a) enjoining Cordis, its directors, officers, successors,
agents, servants, subsidiaries, employees and attorneys, and all
persons acting in concert or participating with them, from taking any
steps to impede or frustrate the ability of Cordis's shareholders to
<PAGE>
consider and make their own determination as to whether to accept the
terms of the Offer or to give or withhold consent to the terms of the
Consent Solicitation, or taking any other action to thwart or
interfere with the Offer, Proposed Cash Merger, Consent Solicitation
or Stock Merger;
(b) compelling Cordis to redeem the Rights associated with the
Poison Pill or to amend the Poison Pill so as to make the Rights
inapplicable to the Offer and Proposed Cash Merger, and enjoining
Cordis, its directors, officers, successors, agents, servants,
subsidiaries, employees and attorneys, and all persons acting in
concert or participating with them, from taking any action to
implement, distribute or recognize any rights or powers with respect
to said Rights (other than to redeem the Rights), and from taking any
actions pursuant to the Poison Pill that would dilute or interfere
with plaintiffs' voting rights or in any other way discriminate
against plaintiffs in the exercise of their rights with respect to
their Cordis stock;
(c) compelling Cordis to approve the Offer and the Proposed Cash
Merger for the purposes of Sections 607.0901 and 607.0902, and
enjoining Cordis, its directors, officers, successors, agents,
servants, subsidiaries, employees and attorneys, and all persons
acting in concert or participation with them, from taking any actions
to enforce or apply Sections 607.0901 and 607.0902 that would
interfere with the commencement, continuation or consummation of the
Offer or Proposed Cash Merger;
(d) declaring and adjudging that the Restrictions are in
violation of Florida law and the fiduciary duties owed to plaintiffs
and all other Cordis shareholders; and compelling Cordis to revoke the
Restrictions and enjoining Cordis, its directors, offers, successors,
agents, servants, subsidiaries, employees and attorneys, and all
persons acting in concert or participation with them, from taking any
actions to enforce or apply the Restrictions that would interfere with
plaintiffs' voting rights; discriminate in any way against plaintiffs
in the exercise of their rights with respect to their Cordis stock;
impede or frustrate the ability of Cordis's shareholders to consider
and make their own determination as to whether to accept the terms
<PAGE>
of the Offer or to give or withhold consent to the terms of the
Consent Solicitation; or otherwise interfere, impede or delay the
commencement, continuation or consummation of the Offer, Proposed Cash
Merger, Consent Solicitation or Stock Merger;
(e) declaring and adjudging that the Offer, Proposed Cash Merger,
Consent Solicitation and Stock Merger comply with all applicable laws,
obligations and agreements;
(f) declaring and adjudging that Cordis, its directors, officers,
successors, agents, servants, subsidiaries, employees and attorneys,
and all persons acting in concert or participation with them, may not
commence, and enjoining them from commencing, in any forum other than
this Court, any judicial proceedings that would require litigation, by
way of claim, defense or counterclaim, of any of the claims, defenses
or counterclaims which may be asserted in this lawsuit and that would
delay or impede commencement, continuation or consummation of the
Offer, Proposed Cash Merger, Consent Solicitation or Stock Merger,
including, without limitation, any proceedings challenging the Offer,
Proposed Cash Merger, Consent Solicitation or Stock Merger or seeking
to enforce, apply or declare the validity of any of Cordis's
anti-takeover devices or other defensive measures;
(g) awarding plaintiffs their costs and disbursements in this
action, including reasonable attorneys' fees; and
<PAGE>
(h) granting such other and further relief as to the Court seems
just and proper.
Dated: October 26, 1995
GREENBERG, TRAURIG, HOFFMAN, LIPOFF,
ROSEN & QUENTEL, P.A.
1221 Brickell Avenue
Miami, FL 33131
Telephone: (305) 579-0500
Facsimile: (305) 579-0717
By:
/s/ David L. Boss
-----------------------------------
DAVID L. ROSS
Florida Bar No. 270954
PEDRO J. MARTINEZ-FRAGA
Florida Bar No. 752282
C. RYAN REETZ
Florida Bar No. 934062
Attorneys for Plaintiffs
Johnson & Johnson and
JNJ Acquisition Corp.
<PAGE>
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
document was served by hand delivery upon Defendant Cordis Corporation, c/o
Daniel G. Hall, Registered Agent, 14201 N.W. 60th Avenue, Miami, Florida
33014, this 26th day of October, 1995.
/s/ David L. Ross
-------------------------
David L. Ross
