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)(18) — Statement re: Computation of Earnings Per Share
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EXHIBIT 11(g)(18)
GOLDSTEIN TILL & LITE
Allyn Z. Lite (AL 6774)
744 Broad Street
Newark, New Jersey 07102
(201) 623-3000
Attorneys for Plaintiff
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DANIEL MARCUS on behalf of : SUPERIOR COURT OF NEWJERSEY
himself and all others similarly : CHANCERY DIVISION
situated, : MERCER COUNTY
: DOCKET NO. MER-C-000149-94
Plaintiff, :
: Civil Action
v. :
:
BORDEN, INC., ERVIN SHAMES and : CLASS ACTION COMPLAINT
FRANK TASCO, :
:
Defendants. :
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Plaintiff, by his attorneys, alleges upon information and
belief, except as to paragraph 1 which is alleged upon knowledge, as follows:
THE PARTIES
1. Plaintiff, who resides at 367 McKinley Boulevard,
Paramus, New Jersey 07652, 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 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.
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 4 and 5 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 plaintiffs and the other public stockholders of
Borden, and owe plaintiffs and the other members of the class the highest
obligations of good
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faith, fair dealing, due care, loyalty and full, candid and adequate disclosure.
CLASS ACTION ALLEGATIONS
8. Plaintiff brings this action on his own behalf and as
a class action on behalf of himself and all Borden securities holders or their
successors in interest, similarly situated (the "Class"). Excluded from the
class are defendants herein and 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;
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(b) whether the merger is grossly unfair to the class;
(c) whether defendants are engaging in self-dealing to
benefit themselves;
(d) whether plaintiffs and the other members of the class
would be irreparably damaged were the transactions complained of herein
consummated; and
(e) whether defendants have breached, or aided and abetted
the breach of fiduciary and other common law duties owed by them to plaintiffs
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
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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 Kravis 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 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 28 million shares of Borden's outstanding shares, also as a
stock swap for RJR Nabisco Holding stock. Further, under the terms of the
agreement, KKR would receive from Borden, a $20 million advisory fee, plus up to
$15 million in expenses, if the transaction falls through for any reason. If the
transaction is cancelled because a higher bidder successfully takes over Borden,
the payment would grow by $30 million to a total of $65 million. In addition,
KKR's purchase of $28 million shares of Borden would proceed.
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Therefore, the winning bidder for Borden would end up owning more than $300
million of RJR stock when it bought Borden and its payment for the company would
grow by the same amount. A potential buyer with no desire to have such a large
investment in RJR might thus be deterred from bidding.
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.
18. The director defendants have thus far failed to
announce any active auction or open bidding procedures best calculated to
maximize shareholder value.
19. Borden's shareholders will, if the transaction is
consummated, be deprived of the opportunity for substantial gains which the
Company may realize.
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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.
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
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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 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.
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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;
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 constructive trust for the benefit of plaintiff and the other
members of the class;
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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 22, 1994
GOLDSTEIN TILL & LITE
By: /s/
-----------------------------------------
Allyn Z. Lite
744 Broad Street
Newark, New Jersey 07102
Telephone: (201) 623-3000
OF COUNSEL:
THE LAW OFFICES OF JAMES V. BASHIAN
James V. Bashian, Esq.
500 Fifth Avenue
Suite 2800
New York, New York 10110
(212) 921-4110
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CERTIFICATION PURSUANT TO RULE 4:5-1
Pursuant to R. 4:5-1, it is hereby stated that the matter in
controversy is not the subject of any other action pending in any other court or
pending in any arbitration proceeding to the best of my knowledge and belief,
except for the matters entitled, Barbara Lubin, et al. v. Borden Inc., et al.,
filed in this Court on September 13, 1994; Norman Weiss, et al. v. Borden Inc.,
et al., filed in this Court on September 13, 1994; Jerry Krim, et al. v. Borden
Inc., et al., filed in this Court on September 14, 1994; Bernard Stepak v.
Borden Inc., et al., filed with this Court on September 16, 1994; and James
Peterson and Sidney Glick v. Borden, Inc., filed with this Court on September
16, 1994. Also to the best of my belief, no other action or arbitration
proceeding is contemplated. Further, other than the parties set forth in this
pleading, at the present time I know of no other party that should be joined in
the within action.
GOLDSTEIN TILL & LITE
By: /s/
---------------------
Allyn Z. Lite
Dated: September 22, 1994
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Dates Referenced Herein and Documents Incorporated by Reference
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