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Borden Acquisition Corp, et al. – ‘SC 14D1’ on 11/22/94 re: Momentive Specialty Chemicals Inc. – EX-11.(G)(15)

As of:  Tuesday, 11/22/94   ·   Accession #:  950112-94-2977   ·   File #:  5-33265

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

11/22/94  Borden Acquisition Corp           SC 14D1               35:1.2M Momentive Specialty Chemicals Inc Merrill Corporate/FA
          Borden Acquisition Corp
          KKR Partners II, L.P.
          Whitehall Associates, L.P.

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)(15)   —   Statement re: Computation of Earnings Per Share
Exhibit Table of Contents

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11st Page   -   Filing Submission
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EXHIBIT 11(g)(15) WILENTS, GOLDMAN & SPITZER Warren W. Wilentz, Esq. Georgia Haglund, Esq. 90 Woodbridge Center Drive Woodbridge, NJ 07095 Tel. (908) 636-8000 Attorneys for Plaintiffs (Additional attorneys on signature page) -------------------------------) ROBERT STROUGO, THOMAS TASSONE,) SUPERIOR COURT OF NEW JERSEY MOISE KATZ, CHARLES MILLER and ) CHANCERY DIVISION WILLIAM STEINER on behalf of ) _______COUNTY themselves and all others ) DOCKET No. _________ similarly situated, ) ) Plaintiffs, ) CLASS ACTION COMPLAINT ) ---------------------- -against- ) JURY TRIAL DEMANDED ) BORDEN, INC., FREDERICK E. ) HENNIG, WILBERT J. LEMELLE, ) ROBERT P. LUCIANO, H. BARCLAY ) MORLEY, JOHN E. SEXTON, ERVIN ) R. SHAMES, PATRICIA CARRY ) STEWART, and FRANK J. TASCO ) ) Defendants. ) _______________________________) Plaintiffs, by their attorneys, allege upon personal knowledge as to themselves and their own acts, and upon information and belief based, in part, upon the investigation conducted by counsel which included, among other things, a review of the public financial filings of Borden, Inc. ("Borden") with the Securities and Exchange Commission ("SEC"), news releases, and other publicly published materials as follows: SUMMARY OF THE ACTION --------------------- 1. Plaintiffs bring this action, pursuant to R 4:32 of the New Jersey Rules Governing Civil Practice, individually and on
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behalf of a class of persons, other than defendants and persons in privity with them, who own the common stock of Borden, Inc. ("Borden" or the "Company"), to enjoin defendants from breaching their fiduciary duties in connection with the proposed sale of Borden to Kohlberg Kravis Roberts & Co. ("KKR") and RJR Nabisco Inc. ("RJR") in exchange for shares of the common stock of RJR at a value of $14.25 worth of RJR stock for every one share of Borden (the "Transaction" or "Offer"). Plaintiff alleges that, in light of the facts set forth below, Borden's Board of Directors (the "Board"), all of whom have been named as defendants in this action ("Individual Defendants", defined below), have breached and are continuing to breach their fiduciary duties to the stockholders of Borden which require defendants to take all reasonable steps to assure the maximization of stockholder value. PARTIES ------- 2. Plaintiffs Robert Strougo, Thomas Tassone, Moise Katz, Charles Miller and William Steiner are and were at all relevant times shareholders of defendant Borden. 3. Borden is a corporation duly organized and existing under the laws of the State of New Jersey, with its principal place of business located at 180 East Broad Street, Columbus, OH 43215. Borden is primarily engaged in the production and sale of various processed foods including, among other things, dairy and pasta products. 4. Defendant Frederick E. Hennig ("Hennig") has been a Director since 1990. He is a member of the Committee on Officers' 2
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Compensation and of the Executive, Audit and Nominating Committees of the Borden Board of Directors. The Audit Committee met three times in 1993. The Executive Committee did not meet in 1993. The Nominating Committee, created in November 1993, met in February 1994 to review and propose nominees for election as directors. The Committee on Officers' Compensation met seven times in 1993. 5. Defendant Wilbert J. Lemelle ("Lemelle") has been a Director since 1987. He is Chairman of the Audit Committee and a member of the Executive and Nominating Committees and of the Committee on Officers' Compensation of the Borden Board. 6. Defendant Robert P. Luciano ("Luciano") has been a Director since 1989. He is Chairman of the Nominating Committee and a member of the Audit and Executive Committees and of the Committee on Officers' Compensation of the Borden Board. 7. Defendant H. Barclay Morley ("Morley") has been a Director since 1992. He is Chairman of the Committee on Officers' Compensation and a member of the Executive, Nominating and Pension Committees of the Borden Board. The Pension Committee met three times in 1993. 8. Defendant John E. Sexton ("Sexton") was elected to the Board in 1994. 9. Defendant Ervin R. Shames ("Shames") has been Chief Executive Officer and a Director since 1993. He is a member of the Executive and Pension committees of the Borden Board. 10. Defendant Patricia Carry Stewart ("Stewart") has been a Director since 1976. She is Chair of the Pension Committee 3
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and a member of the Executive, Audit and Nominating Committees of the Borden Board. 11. Defendant Frank J. Tasco has been a Director since 1988 and the Chairman of the Board since December 9, 1993. He is Chairman of the Executive Committee and a member of the Pension Committee of the Borden Board. In addition to his compensation as a Director, he is to be paid $100,000 per quarter to serve as Chairman of the Board. 12. The individuals named in paragraphs 4 through 11 are hereinafter referred to as the "Individual Defendants." Each Director who is not currently an employee of the Company is paid a retainer of $28,000 per annum and a per meeting fee of $1,000 for each meeting of the Board or of any Committee thereof. In addition, non-employee Committee Chairmen are paid an additional annual retainer of $1,000. 13. By reason of their positions and because of their ability to control the business and corporate affairs of Borden at all relevant times, the Individual Defendants owed and owe Borden's shareholders fiduciary obligations of fidelity, trust, loyalty, and due care, and were and are required to use their utmost ability to control and supervise Borden in a fair, informed, just and equitable manner and to act in furtherance of the best interests of Borden and its shareholders. 4
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CLASS ACTION ALLEGATIONS ------------------------ 14. Plaintiffs bring this action on their own behalf and as a class action, pursuant to R 4:32 of the New Jersey Rules Governing Civil Practice, on behalf of all shareholders of Borden (except the defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any of the defendants) who are or will be threatened with injury arising from defendants' actions as more fully described herein (the "Class"). 15. This action is properly maintainable as a class action. 16. The Class is so numerous that joinder of all members is impracticable. As of June 30, 1994, Borden had approximately 141,424,181 shares of common stock outstanding and approximately 41,000 shareholders of record, who are located throughout the United States. Borden's common stock trades on the New York Stock Exchange ("NYSE"). 17. There are questions of law and fact common to the Class that predominate over questions affecting only individual Class members. The common questions include, inter alia, the following: ----- ---- (a) Whether the Individual Defendants have breached their fiduciary duties owed by them to plaintiffs and to the other members of the Class; (b) Whether the conduct of the Individual Defendants has prevented and is preventing plaintiffs and the Class from 5
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receiving the maximum value per share that could be received in a corporate transaction free from the restraints imposed by the Individual Defendants; and (c) Whether plaintiffs and the other members of the class will suffer irreparable harm if the wrongful acts alleged in this complaint are not enjoined. 18. Plaintiffs are committed to prosecuting this action and have retained competent counsel experienced in shareholder litigation of this nature. Plaintiffs' claims are typical of the claims of other members of the Class and plaintiffs have the same interests as the other members of the Class. Plaintiffs and their counsel will fairly and adequately represent the interests of the Class. 19. Plaintiffs do not anticipate any unusual difficulties in the management of this action as a class action. 20. A class action is superior to other available methods for the fair and efficient adjudication of the controversy. CLAIM FOR RELIEF ---------------- 21. In the very recent past, Borden, a well known manufacturer of dairy and other food products, has experienced a significant decline in its profitability. Borden's recent difficulties have been tied to several primary factors, including, mismanagement, the incurrence of excessive debt to finance numerous acquisitions, and several recent restructurings. 22. Over the past several years, Borden, under the stewardship of its former chief executives, Romeo J. Ventres 6
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("Ventres") and Anthony S. D'Amato ("D'Amato"), has suffered an abysmal decline in its financial performace. In fact, the Company's proxy statement dated April 8, 1994 (the "1994 Proxy") includes a comparison of Borden's performance, as measured by cumulative total shareholder return on its common stock, with the S&P 500 and the S&P Food and Chemical Indexes that highlights Borden's decline: ------------------------------------------------------ 1991 1992 1993 ------------------------------------------------------ Borden, Inc. 120.7 110.2 68.3 ------------------------------------------------------ S&P 500 Stock Index 166.1 178.7 196.7 ------------------------------------------------------ S&P Food Index 214.2 214.2 196.0 ------------------------------------------------------ S&P Chemical 143.0 156.6 175.2 ------------------------------------------------------ 23. Thus, as indicated by the foregoing, while Borden has experienced significant performance declines, the performance of market and companies in the two primary industries in which Borden derives revenues and profits have significantly improved. A large measure of Borden's dismal performance can be traced to Messrs. Ventres' and D'Amato's ill fated campaign to acquire non- synergistic companies without proper due diligence and without consideration of the effect on Borden of incurring excessive debt to complete such acquisitions. Between 1986 and 1991, the Company spent almost $2 billion on 91 different acquisitions. As noted in a recent Wall Street Journal article: Once prominent, Borden is seemingly invisible these days, with little advertising and marketing and a hodgepodge of small products. Sales and profits in every major division are declining. It has shed thousands of 7
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workers, slashed its dividend by 75% and, since 1989, taken $1.5 billion in restructuring charges -- a huge sum for a company with $7.14 billion in 1992 sales. In the third quarter, the company posted its ninth consecutive quarterly decline in operating earnings. Borden's stock, which peaked in 1991 at $38.75, closed [on January 17, 1994] at $15. 24. As detailed in the article, Borden reeled from acquisition to acquisition, pressing senior managers to move quickly, often spending "as little as two weeks conducting due diligence before agreeing to acquisitions", according to one former Borden executive. As Han Kim, a twenty-year Borden veteran notes, "we were hurriedly buying companies for the sake of buying companies." 25. For example, in 1987, Borden acquired Laura Scudder's snack-food line for $100 million; however, unbeknownst to Borden (due to inadequate due diligence), Laura Scudder faced significant union difficulties which led to Borden's closing of all Laura Scudder plants in California, roughly one year after the acquisition. 26. In December of 1993, D'Amato, resigned his position with Borden and a new management team led by Ervin R. Shames was brought in to re-energize the Company, oversee a new restructuring plan and/or aid in the sale of the Company. Although significant damage has already been visited on Borden, its many franchise brand names and products, including the Bravo and Wise snack food product lines and Borden dairy products continue to retain significant value. In an effort to turn around Borden's dismal slide, new 8
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management has taken substantial restructuring charges which have further driven down Borden's stock price. 27. On or about August 30, 1994, Moody's Investors Service Inc. ("Moody's") lowered the long-term debt and commercial paper ratings of Borden to Baa3 from Baa2 and to Prime-3 from Prime-2, respectively, and kept these ratings on review for further possible downgrade. "The downgrade is based on Borden's weaker than anticipated operating performance and the expectation that bondholder protection measurements will remain weak....", according to Moody's. 28. Borden's stock, which traded as high as $29.125 in 1993 and at $19.875 only a year ago, has continued to sag in 1994, recently falling below $12 per share to its nine year low. 29. Having taken significant restructuring charges, and terminated former managers, Borden is now in a position to develop the full value of its many well known brands and clearly has been trading at a discount that does not reflect the full value of its assets. Indeed, as recently as September 13, 1994, the Wall Street Journal reported that Borden's managers were still "hoping for time ------------------- to turn around the company." 30. On September 12, 1994, prior to the NYSE opening, the Dow Jones Newswire reported that Borden had agreed to a KKR offer to swap RJR stock owned by KKR for all of Borden's outstanding common stock, valued at approximately $14.25 per Borden share, a premium of 22.6% (Borden stock had closed at $11.625 on Friday, September 9, 1994). The exact number of RJR Nabisco shares 9
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to be exchanged for each Borden share will be determined by dividing $14.25 by the average of the high and low prices of RJR Nabisco stock for a 10-day trading period to be established in the Offer, provided that in no event will Borden stockholders receive greater than 2.375 RJR shares, nor less than 1.78125 RJR shares for each Borden share. 31. In connection with its agreement with Borden, RJR has agreed in principle that upon KKR's acquisition of 100% of Borden and subject to certain other conditions, RJR will issue about $500 million of its newly issued common shares for newly issued Borden shares priced at $14.25 each, representing a 20% pro forma interest in Borden. RJR also will receive a warrant to purchase an additional 10% interest in Borden as part of its investment. 32. KKR announced that Borden has 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. 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 51% of the outstanding Borden common stock. KKR will not obtain any economic gain from the option in the event any competing transaction consummated, but 10
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would be paid certain amounts under the merger agreement in such circumstances. 33. Commenting on the proposed merger, the Dow Jones Newswire reported Borden Chairman Tasco as stating: We believe that, after a full consideration of all the risks and opportunities confronting Borden today, this transaction is the best outcome for Borden shareholders. The restructuring pursued since ------------------------------- January has resulted in volume and share gains in many of Borden's ------------------------------------------------------------------ businesses. Moreover, the earnings trend is also improving, but it is ---------- ---------------------------------------------- clear that additional investment in our brands and in capital are needed in order to capture the company's potential. Therefore, after exploration of a full range of alternatives, the board has concluded that KKR's proposal presents the best opportunity for Borden's shareholders, customers and associates. (Emphasis added). 34. Thus, despite Borden's direct acknowledgement that the Company had turned the corner and had begun to show positive signs of recovery as a result of the change in management and the most recent restructuring, defendants are attempting to sell the Company, at an unfair price in order to preserve their management positions with the commensurate salary and perquisites enuring to their benefit, while curtailing the right of Borden shareholders' to participate in the long-awaited turnaround in the Company's fortunes. Contrary to Borden's assertion that this is "the best outcome for shareholders", according to an article in the September 13, 1994 New York Times, "most [analysts] agreed that -------------- Borden was being bought at a fire-sale price." Moreover, the article continues, "[a]lmost all Borden holders will be selling at a loss if this deal goes through." Yet perhaps even worse, Borden shareholders will be receiving shares of a company (RJR) that they 11
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did not decide to purchase and one with significant problems and declining value. 35. As of December, 1993, Borden has been seeking a buyer for the Company or some form of capital infusion to fully realize its potential. Consequently, the Board has fiduciary duties to shop the Company to the highest bidder and to maximize shareholder value and may not blindly accept the first offer to come along that would allow management to retain their positions with the Company. 36. The Individual Defendants' fiduciary obligations require them to: (a) undertake an appropriate evaluation of alternatives designed to maximize value for Borden's public stockholders; including separate sales of Borden's dairy and/or other businesses; (b) act independently, by, among other things, appointing a disinterested committee so that the interests of Borden's public stockholders would be protected, or alternatively, appointing a shareholder committee to review all bona fide offers; ---- ---- (c) take all appropriate steps to enhance Borden's value and attractiveness as a merger or acquisition candidate; (d) cooperate with all persons having a bona fide interest in ---- ---- proposing any transaction that would maximize shareholder value; 12
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(e) take all steps to create an active market for Borden in order to maximize shareholder value in a free and unfettered auction; and (g) adequately ensure that no conflicts of interest exist between the Individual Defendants' own interests and their fiduciary obligation to the public stockholders or, if such conflicts exist, to ensure that all such conflicts are resolved in favor of Borden's public shareholders. 37. In failing to perform the acts set forth in paragraph 36, defendants are not acting in good faith to the Class, and have breached and are breaching their fiduciary duties to the Class. 38. Defendants, in violation of their fiduciary obligations, have failed to act in a manner designed to maximize stockholder value Borden's public stockholders. 39. The Offer by KKR will deny Class members the opportunity to share proportionately in the true value of Borden's assets, profitable business, and future growth in profits and earnings. 40. By reason of the foregoing acts, practices and course of conduct, the Individual Defendants have been grossly negligent in the exercise of their fiduciary obligations toward plaintiffs and the other Borden public shareholders. 41. Unless enjoined by this Court, the Individual Defendants will continue to breach their fiduciary duties owed to 13
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plaintiffs and the other members of the Class, all to the irreparable harm of the Class, as described above. 42. Plaintiffs and the other members of the Class have no adequate remedy at law. WHEREFORE, plaintiffs demand judgment, as follows: (a) declaring this to be a proper class action with plaintiffs as the representatives of the Class; (b) declaring that the defendants and each of them have committed a gross abuse of trust and have breached their fiduciary duties to plaintiffs and the other members of the Class; (c) directing the Individual Defendants to discharge their fiduciary duties to plaintiffs and the other members of the Class by announcing their intentions to: (1) act independently on a fully informed basis in the best interests of Borden's public shareholders; (2) undertake an appropriate evaluation of alternatives designed to maximize value for Borden's public stockholders; including separate sales of Borden's dairy and/or other businesses; (3) take all appropriate steps to enhance Borden's value and attractiveness as a merger or acquisition candidate; (4) cooperate with all persons having a bona fide interest in ---- ---- proposing any transaction that would maximize shareholder value; (5) take all steps to create an active auction for Borden in order to maximize shareholder value; and 14
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(6) adequately ensure that no conflicts of interest exist between defendants' own interests and their fiduciary obligation to maximize shareholder value or, if such conflicts exist, to ensure that all such conflicts are resolved in favor of Borden's public shareholders. (c) preliminarily and permanently enjoining defendants and all persons acting under, in concert with, or for them, from breaching their fiduciary duties to plaintiff and the Class; (d) ordering defendants to permit a stockholders' committee comprised of Class members and their representatives to ensure a fair procedure, adequate procedural safe-guards, and independent input by plaintiffs and the Class in connection with any transaction for the assets and/or common stock of Borden; (e) Awarding plaintiffs and the Class compensatory damages; (f) awarding plaintiffs the costs and disbursements of the action, including a reasonable allowance for attorneys' and experts' fees; and 15
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(g) granting such other and further relief as may be just and proper in the premises. Dated: September 13, 1994 Respectfully submitted, WILENTZ, GOLDMAN & SPITZER By: _____________________________ Warren W. Wilentz, Esq. Georgia Haglund, Esq. 90 Woodbridge Center Drive Woodbridge, NJ 07095 (908) 636-8000 Liaison Counsel for Plaintiffs OF COUNSEL: WECHSLER SKIRNICK HARWOOD KALEBIAN & FEFFER Stuart D. Wechsler, Esq. Andrew D. Friedman, Esq. 555 Madison Avenue New York, NY 10022 Tel. (212) 935-7400 Attorneys for Robert Strougo GARWIN, BRONSAPT, GERSTEIN & FISHER Scott W. Fisher, Esq. Jerald M. Sterin, Esq. 1501 Broadway, Suite 1416 New York, NY 10036 Tel. (212) 398-0055 Fax: (212) 764-6620 Attorneys for Thomas Tassone 16
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ARNOLD A. GERSHON, P.C. Arnold A. Gershon, Esq. 295 Madison Avenue Room 807 New York, New York 10017 (212) 684-3033 Attorney for Moise Katz ELWOOD S. SIMON & ASSOCIATES, P.C. Elwood S. Simon, Esq. Bloomfield Center, Suite 315 1533 N. Woodward Avenue Bloomfield Hills, Michigan 48304 (810) 646-9730 Attorneys for Charles Miller LAW OFFICES OF ZACHARY A. STARR Zachary A. Starr, Esq. 275 Madison Avenue New York, New York 10016 (212) 808-5535 Attorneys for William Steiner 17
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RULE 4:5-1 CERTIFICATION ------------------------ I hereby certify that upon information and belief there may be other actions now pending against Borden Inc. and the Individual Defendants for similar relief. However, plaintiffs are not parties to any other actions. Moreover, I am unaware of any arbitration proceeding and no such other action or arbitration proceeding is contemplated by plaintiffs; and there are no other parties who, to the best of my knowledge, should be joined in this action at this time. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. ___________________________ GEORGIA HAGLUND, ESQ. DATED: September 13, 1994 18

Dates Referenced Herein   and   Documents Incorporated by Reference

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Filed on:11/22/94SC 14D9
9/13/94918
9/12/9498-K
9/9/949
8/30/949
6/30/94510-Q,  10-Q/A
1/17/948
12/9/934
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