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)(17) — Statement re: Computation of Earnings Per Share
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EXHIBIT 11(g)(17)
GOLDSTEIN TILL & LITE
744 Broad Street
Newark, New Jersey 07102
(201) 623-3000
Attorneys for Plaintiffs
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JAMES PETERSON and SIDNEY : SUPERIOR COURT OF NEW JERSEY
GLICK, on behalf of themselves : CHANCERY DIVISION
and all others similarly : MERCER COUNTY
situated, : DOCKET NO.
:
Plaintiffs, :
: Civil Action
vs. :
:
BORDEN, INC., ERVIN SHAMES and : CLASS ACTION COMPLAINT
FRANK TASCO, :
:
Defendants. :
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Plaintiffs, by their attorneys, allege upon information and
belief, except as to paragraphs 1-3 which are alleged upon knowledge, as
follows:
THE PARTIES
1. Plaintiff James Peterson resides at 3212 Beverly Road,
South Plainfield, New Jersey 07080.
2. Plaintiff Sidney Glick resides at 1047 Neilson Street,
Far Rockaway, New York 11691.
3. Each 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.
4. 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.
5. 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.
6. Defendant Ervin Shames ("Shames") is, and at all times
relevant hereto has been, President and Chief Executive Officer of the Company.
7. Defendant Frank Tasco ("Tasco") is, and at all times
relevant hereto has been, Chairman of the Board of the Company.
8. The defendants referred to in paragraphs 8 and 9 are
collectively referred to herein as the "Individual Defendants."
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9. 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 faith, fair dealing, due care, loyalty and full, candid and
adequate disclosure.
CLASS ACTION ALLEGATIONS
10. Each plaintiff brings this action pursuant to R. 4:32
et seq. of the New Jersey Court Rules, on his or her own behalf and as a class
action on behalf of him or herself 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.
11. This action is properly maintainable as a class
action.
12. 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.
-3-
13. 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 set forth below 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.
14. Each plaintiff is committed to prosecuting this action
and has retained competent counsel experienced in litigation of this nature.
The claims of each plaintiff are typical of the claims of the other members of
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the class and each plaintiff has the same interests as the other
members of the class. Accordingly, each plaintiff is an adequate
representative of the class and will fairly and adequately protect the interests
of the class.
15. Plaintiffs anticipate that there will be no difficulty
in the management of this litigation.
16. 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
17. 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 about $2 billion, based on Borden's approximately 141 million common shares
outstanding.
18. KKR also said that in connection with its agreement
with Borden, RJR Nabisco Holdings Corp. has agreed in principle that upon KKR's
acquisition of 100% of Borden and subject to certain other conditions, RJR
Nabisco will issue about $500 million of its newly issued common shares for
newly issued Borden shares priced at $14.25 each, representing a 20%
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pro forma interest in Borden. RJR Nabisco will also receive a warrant to
purchase an additional 10% interest in Borden as part of its investment.
19. KKR said Borden agreed that at the time a definitive
merger agreement is entered into, Borden will grant KKR an option to purchase
from Borden up to 19.9% of the outstanding Borden common stock for $11 a share
payable in RJR Nabisco stock.
20. If the option is exercised, KKR must purchase at least
41% of the outstanding Borden Common stock in the exchange offer if it acquires
any shares in the exchange offer. If KKR acquires at least 41%, but less than
51%, of Borden common stock in the exchange offer, the option must be exercised
by KKR, to the extent necessary for KKR to own at least 51% of the outstanding
Borden common stock. KKR and Borden agreed that if a merger agreement with
Borden is not entered into by September 23, 1994, KKR will purchase 19.9% of the
outstanding common shares of Borden at $11 a share.
21. The exchange offer for Borden will be conditioned on
the receipt by KKR of at least 41% of the outstanding Borden common stock. It
is contemplated that following the completion of the exchange offer, KKR will
merge a newly formed corporation which it controls into Borden in a merger in
which holders of any then-outstanding Borden common stock will
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receive the same consideration as holders of Borden common stock receive in the
exchange offer.
22. Plaintiffs seek 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.
23. The consideration proposed to be paid to class members
is unconscionable, 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.
24. The Individual Defendants have thus far failed to
announce any active auction or open bidding procedures best calculated to
maximize shareholder value.
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25. Borden's shareholders will, if the transaction is
consummated, be deprived of the opportunity for substantial gains which the
Company may realize.
26. 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.
27. 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.
28. 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
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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.
29. 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 plaintiffs and the other
Borden public stockholders.
30. As a result of the actions of defendants, plaintiffs
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.
31. Unless enjoined by this Court, the defendants will
continue to breach their fiduciary duties owed to plaintiffs 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.
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32. Plaintiffs and the Class have no adequate remedy at
law.
WHEREFORE, plaintiffs demand judgment, as follows:
A. Declaring this to be a proper class action;
B. Ordering defendants to carry out their fiduciary duties
to plaintiffs 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
plaintiffs 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 plaintiffs 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
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in a constructive trust for the benefit of plaintiffs and the other members of
the class;
G. Awarding plaintiffs the costs and disbursements of the
action, including allowance for plaintiffs' reasonable attorneys' and experts'
fees; and
H. Granting such other and further relief as may be just
and proper in the premises.
Dated: September 16, 1994
GOLDSTEIN TILL & LITE
By: /s/
-----------------------------------------
Allyn Z. Lite
Joseph J. DePalma
744 Broad Street, Suite 800
Newark, New Jersey 07102
Telephone: (201) 623-3000
OF COUNSEL:
SIROTA & SIROTA
747 Third Avenue
New York, New York 10017
(212) 759-5555
LAW OFFICES OF CURTIS V. TRINKO
310 Madison Avenue, 14th Floor
New York, New York 10017
(212) 490-9550
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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 and Bernard Stepak v.
Borden, Inc., et al., filed with this Court this date. 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 16, 1994
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Dates Referenced Herein and Documents Incorporated by Reference
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