Tender-Offer Statement — Third-Party Tender Offer — Schedule 14D-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 14D1 Borden Acquisition Corp. 6 48K
2: EX-11.(A)(1) Statement re: Computation of Earnings Per Share 133 731K
3: EX-11.(A)(2) Statement re: Computation of Earnings Per Share 14 69K
4: EX-11.(A)(3) Statement re: Computation of Earnings Per Share 2 20K
5: EX-11.(A)(4) Statement re: Computation of Earnings Per Share 3 24K
6: EX-11.(A)(5) Statement re: Computation of Earnings Per Share 3 23K
7: EX-11.(A)(6) Statement re: Computation of Earnings Per Share 5± 22K
8: EX-11.(A)(7) Statement re: Computation of Earnings Per Share 5 35K
9: EX-11.(A)(8) Statement re: Computation of Earnings Per Share 2 16K
10: EX-11.(C)(1) Statement re: Computation of Earnings Per Share 124 273K
11: EX-11.(C)(2) Statement re: Computation of Earnings Per Share 18 70K
12: EX-11.(C)(3) Statement re: Computation of Earnings Per Share 2 17K
13: EX-11.(C)(4) Statement re: Computation of Earnings Per Share 34 71K
14: EX-11.(G)(1) Statement re: Computation of Earnings Per Share 10 32K
23: EX-11.(G)(10) Statement re: Computation of Earnings Per Share 4 23K
24: EX-11.(G)(11) Statement re: Computation of Earnings Per Share 13 35K
25: EX-11.(G)(12) Statement re: Computation of Earnings Per Share 13 33K
26: EX-11.(G)(13) Statement re: Computation of Earnings Per Share 18 47K
27: EX-11.(G)(14) Statement re: Computation of Earnings Per Share 12 35K
28: EX-11.(G)(15) Statement re: Computation of Earnings Per Share 18 49K
29: EX-11.(G)(16) Statement re: Computation of Earnings Per Share 12 36K
30: EX-11.(G)(17) Statement re: Computation of Earnings Per Share 12 32K
31: EX-11.(G)(18) Statement re: Computation of Earnings Per Share 11 30K
32: EX-11.(G)(19) Statement re: Computation of Earnings Per Share 12 32K
15: EX-11.(G)(2) Statement re: Computation of Earnings Per Share 10 32K
33: EX-11.(G)(20) Statement re: Computation of Earnings Per Share 18 49K
34: EX-11.(G)(21) Statement re: Computation of Earnings Per Share 9 27K
35: EX-11.(G)(22) Statement re: Computation of Earnings Per Share 9 32K
16: EX-11.(G)(3) Statement re: Computation of Earnings Per Share 10 32K
17: EX-11.(G)(4) Statement re: Computation of Earnings Per Share 10 32K
18: EX-11.(G)(5) Statement re: Computation of Earnings Per Share 10 32K
19: EX-11.(G)(6) Statement re: Computation of Earnings Per Share 10 32K
20: EX-11.(G)(7) Statement re: Computation of Earnings Per Share 10 32K
21: EX-11.(G)(8) Statement re: Computation of Earnings Per Share 11 32K
22: EX-11.(G)(9) Statement re: Computation of Earnings Per Share 9 31K
EX-11.(G)(21) — Statement re: Computation of Earnings Per Share
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EXHIBIT 11(g)(21)
COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
--------------------------------x
ERICA HARTMAN :
Plaintiff, : Case No. 94CVH09-6306
: ------------
-against- :
:
BORDEN, INC., ERVIN SHAMES and :
FRANK TASCO, :
c/o 180 E. BROAD ST. :
COLUMBUS, OH 43215 : CLASS ACTION COMPLAINT
: ----------------------
Defendants. : WITH JURY DEMAND
:
--------------------------------x
Plaintiff, by her attorneys, allege upon information and belief,
except as to paragraph 1 which is alleged upon knowledge, as follows:
THE PARTIES
-----------
1. Plaintiff is the owner of shares of the common stock of defendant
Borden, Inc. and has been the owner continuously of such shares since prior to
the wrongs complained of herein.
2. Defendant Borden, Inc. ("Borden" or the "Company") is a
corporation duly existing and organized under the laws of the State of New
Jersey, with its principal offices located in the State of New Jersey, with
its principal offices located in Columbus, Ohio. The Company produces and
distributes a variety of consumer food products, including pastas and sauces,
snack food items, dairy products such as fluid milk and other products. The
Company also manufactures and distributes its products.
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3. As of April 22, 1994, there were approximately 141 million shares
of the Company's common stock outstanding held by over 40,000 shareholders of
record.
4. Defendant Ervin Shames ("Shames") is and at all times relevant
hereto has been President and Chief Executive Officer of the Company.
5. Defendant Frank Tasco ("Tasco") is and at all times relevant
hereto has been Chairman of the Board of the Company.
6. The defendants referred to in paragraphs 5 and 6 are collectively
referred to herein as the "Individual Defendants."
7. By reason of the above Individual Defendants' positions with the
Company as officers and/or directors, said individuals are in a fiduciary
relationship with plaintiff and the other public stockholders of Borden, and owe
plaintiff and the other members of the class the highest obligations of good
faith, fair dealing, due care, loyalty and full, candid and adequate disclosure.
CLASS ACTION ALLEGATIONS
------------------------
8. Plaintiff brings this action on her own behalf and as a class
action on behalf of herself and all Borden securities holders or their
successors in interest, similarly situated (the "Class").
Excluded from the class are defendants herein and
2
any person, firm, trust, corporation, or other entity related to or affiliated
with any of the defendants.
9. This action is properly maintainable as a class action.
10. The class is so numerous that joinder of all members is
impracticable. As of April 22, 1994, there were approximately 141 million
shares of Borden common stock outstanding held by over 40,000 shareholders
of record.
11. There are questions of law and fact which are common to the class
and which predominate over questions affecting any individual class members.
The common questions include,
inter alia, the following:
----- ----
(a) whether defendants have engaged in conduct constituting
unfair dealing to the detriment of the class;
(b) whether the proposed merger is grossly unfair to the class;
(c) whether defendants are engaging in self-dealing to benefit
themselves;
(d) whether plaintiff and the other members of the class would
be irreparably damaged were the transactions complained of herein consummated;
and
3
(e) whether defendants have breached, or aided and abetted the
breach of fiduciary and other common law duties owed by them to plaintiff and
the other members of the class.
12. Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. The
claims of plaintiff are typical of the claims of the other members of the
class and plaintiff has the same interests as the other members of the class.
Accordingly, plaintiff is an adequate representative of the class and will
fairly and adequately protect the interests of the class.
13. Plaintiff anticipates that there will be no difficulty in the
management of this litigation.
14. Defendants have acted on grounds generally applicable to the
class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the class as a whole.
CLAIM FOR RELIEF
----------------
15. According to news reports on September 12, 1994, Kohlberg Kravitz
Roberts & Co. ("KKR") and defendant Borden have agreed in principle to the
acquisition of all of the outstanding common stock of Borden by a KKR
partnership in exchange for RJR
4
Nabisco Holdings Corp. common stock valued at $14.25 per Borden share.
16. Plaintiff seeks to enjoin the consummation of the imminent
agreement between KKR and Borden whereby KKR would swap RJR Nabisco Holding
stock for all of the outstanding Borden common stock. Pursuant to the proposed
terms of the transaction, KKR will also receive a warrant to buy an additional
10% of Borden's shares. If the merger is not closed by September 23, 1994, KKR
will buy 19.9% of Borden's outstanding shares.
17. The consideration proposed to be paid to class members is
unconscionable and unfair and grossly inadequate because, among other things:
(a) the intrinsic value of Borden's common stock is materially
in excess of the amount to be received by Borden stockholders in the transaction
giving due consideration to the Company's strategic value, the recent market
price of the Company's stock and Borden's brand name recognition;
(b) the consideration agreed upon did not result from an
appropriate consideration of the value of Borden as there was no opportunity to
accurately ascertain Borden's value through open bidding or a market check.
5
18. The Individual Defendants have thus far failed to announce any
active auction or open bidding procedures best calculated to maximize
shareholder value.
19. Borden shareholders will, if the transaction is consummated, be
deprived of the opportunity for substantial gains which the Company may realize.
20. In announcing the transaction, the defendants have failed to
disclose among other things the full extent of the growth and value potential of
Borden and the expected increase in its profitability.
21. The defendants have not, in accordance with their fiduciary
duties:
(a) acted independently so that the interests of Borden's public
shareholders would be protected;
(b) adequately ensured that no conflicts of interest exist or if
such conflicts exist to ensure that all conflicts would be resolved in the best
interests of Borden's public shareholders; and
(c) taken all appropriate steps to enhance Borden's value and
attractiveness as a merger acquisition, restructuring or recapitalization
candidate.
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22. Because the Individual Defendants dominate and control the
business and corporate affairs of Borden, and are in possession of private
corporate information concerning Borden's assets, businesses and future
prospects, there exists an imbalance and disparity of knowledge and economic
power between them and the public stockholders of Borden which makes it
inherently unfair for them to pursue any proposed transaction wherein they
will reap disproportionate benefits to the exclusion of other means of
maximizing stockholder value.
23. By reason of the foregoing acts, practices and course of conduct,
the defendants have failed to exercise ordinary care and diligence in the
exercise of their fiduciary obligations toward plaintiff and the other Borden
public stockholders.
24. As a result of the actions of defendants, plaintiff and the other
members of the Class have been and will be damaged in that they have not and
will not receive their fair proportion of the value of Borden's assets and
businesses and will be prevented from obtaining appropriate consideration for
their shares of Borden's common stock.
25. Unless enjoined by this Court, the defendants will continue to
breach their fiduciary duties owed to plaintiff and the other members of the
Class, and may consummate the
7
proposed transaction which will exclude the Class from its fair proportionate
share of Borden's valuable assets and businesses, and/or benefit them in the
unfair manner complained of herein, all to the irreparable harm of the Class, as
aforesaid.
26. Plaintiff and the Class have no adequate remedy at law.
WHEREFORE, plaintiff demands judgment, as follows:
A. Declaring this to be a proper class action;
B. Ordering defendants to carry out their fiduciary duties to
plaintiff and the other members of the Class, including those of due care and
candor;
C. Rescinding any transactions effected by the defendants in an
unfair manner and for an unfair price and in the event such transaction is
consummated prior to trial, awarding rescissory damages;
D. Enjoining the complained of transaction or any related
transactions;
E. Ordering defendants, jointly and severally, to pay to plaintiff
and the Class all damages suffered and to be suffered by them as a result of the
acts and transactions alleged herein;
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F. Ordering defendants, jointly and severally, to account to
plaintiff and the Class for all profits realized and to be realized by them as a
result of the transaction complained of and pending such accounting to hold such
profits in a con-
structive trust for the benefit of plaintiff and the other members of the class;
G. Awarding plaintiff the costs and disbursements of the action,
including allowance for plaintiff's reasonable attorneys' and experts' fees; and
H. Granting such other and further relief as may be just and proper
in the premises.
Dated: September 12, 1994
MICHAEL J. HARDESTY, L.P.A.
By: /s/ Michael J. Hardesty
__________________________
Michael J. Hardesty (0009771)
1335 Dublin Road
Suite 200A
Dublin, OH 43215
(614) 481-3587
OF COUNSEL:
Stanley R. Wolfe
Berger & Montague, P.C.
1622 Locust Street
Philadelphia, PA 19103-6365
Strauss & Troy
By: /s/ Richard S. Wayne
_______________________
Richard S. Wayne (0022390)
2100 PNC Center
201 E. Fifth Street
Cincinnati, Ohio 45202
(513) 629-9472
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Dates Referenced Herein and Documents Incorporated by Reference
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