SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
AMENDMENT NO. 1
TO
SCHEDULE 14D-9
-------------------------
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
3-D GEOPHYSICAL, INC.
(Name of Subject Company)
3-D GEOPHYSICAL, INC.
(Name of Person(s) Filing Statement)
Common Stock, par value $.01 per share
(Title of Class of Securities)
88553V107
(CUSIP Number of Class of Securities)
------------------------
JOEL FRIEDMAN
CHAIRMAN
3-D GEOPHYSICAL, INC.
599 Lexington Avenue
New York, New York 10022
(212) 317-1234
(Name, Address and Telephone Number of Person
Authorized to Receive Notice and Communications on Behalf of
the person(s) filing statement)
-------------------------
<PAGE>
This Amendment No. 1 amends and supplements the information set forth
in the Solicitation/Recommendation Statement Pursuant to Section 14(d)(4) of the
Securities Exchange Act of 1934 on Schedule 14D-9 (the "Schedule 14D-9") filed
by 3-D Geophysical, Inc. (the "Company") on March 13, 1998 with respect to a
tender offer by WAI Acquisition Corp., a Delaware corporation ("Purchaser"), a
wholly-owned subsidiary of Western Atlas Inc., a Delaware corporation
("Western"), disclosed in a Tender Offer Statement on Schedule 14D-1, dated
March 13, 1998, to purchase all outstanding Shares at a purchase price of $9.65
per share, net to the seller in cash, without interest, upon the terms and
subject to the conditions set forth in an Offer to Purchase dated March 13, 1998
(the "Offer") and pursuant to the Agreement and Plan of Merger dated as of March
8, 1998 (the "Merger Agreement"), among Western, Purchaser and the Company.
Unless otherwise indicated, the capitalized terms used herein shall have the
meanings specified in the Schedule 14D-9.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
(c) Litigation Relating to the Offer and Merger
Item 8(c) is hereby amended and supplemented by adding thereto the
following:
On March 17, the plaintiffs in the Chancery Court Action filed (i) an
Amended Complaint, (ii) a Motion seeking a preliminary injunction (the
"Preliminary Injunction") to enjoin the members of the Company Board, the
Company and Western (the "Defendants") from consummating the Offer and to
require the Defendants to supplement their materials furnished to the Company's
stockholders in connection with the Offer, (iii) and a Motion seeking expedited
proceedings with respect to the Preliminary Injunction. Copies of the Amended
Complaint, the Motion for Preliminary Injunction and the Motion for Expedited
Proceedings are attached hereto as exhibit (c)(13) and are incorporated herein
by reference.
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<PAGE>
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Item 9 is hereby amended and supplemented by adding thereto the
following:
EXHIBIT NO. DESCRIPTION
- ----------- -----------
(c)(13) Amended Class Action Complaint, Motion for Preliminary
Injunction and Motion for Expedited Proceedings in Tishrei
Trading v. Robert P. Andrews, Douglas W. Brandrup, Wayne P.
Widynowski, Ralph M. Bahna, Richard D. Davis, Arthur D.
Emil, Emir L. Tavella, Louis H. Ferran, Joel Friedman, P.
Dennis O'Brien, 3-D Geophysical, Inc. and Western Atlas Inc.
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<PAGE>
SIGNATURE
After reasonable 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: March 19, 1998
3-D GEOPHYSICAL, INC.
By: /s/ Joel Friedman
-----------------
Name: Joel Friedman
Title: Chairman
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
(c)(13) Amended Class Action Complaint, Motion for Preliminary
Injunction and Motion for Expedited Proceedings in Tishrei
Trading v. Robert P. Andrews, Douglas W. Brandrup, Wayne P.
Widynowski, Ralph M. Bahna, Richard D. Davis, Arthur D.
Emil, Emir L. Tavella, Louis H. Ferran, Joel Friedman, P.
Dennis O'Brien, 3-D Geophysical, Inc. and Western Atlas Inc.
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<PAGE>
EXHIBIT NO. (c)(13)
IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------------------- x
:
: C.A. No. 16238-NC
TISHREI TRADING, :
:
Plaintiff, :
:
- v - :
:
ROBERT P. ANDREWS, DOUGLAS W. BRANDRUP, :
WAYNE P. WIDYNOWSKI, RALPH M. BAHNA, :
RICHARD D. DAVIS, ARTHUR D. EMIL, EMIR L. :
TAVELLA, LUIS H. FERRAN, JOEL FRIEDMAN, P. :
DENNIS O'BRIEN, 3-D GEOPHYSICAL, INC. and :
WESTERN ATLAS INC., :
:
Defendants. x
- ---------------------------------------------------------
AMENDED CLASS ACTION COMPLAINT
Plaintiff alleges upon information and belief, except for paragraphs 1
and 2 hereof, which are alleged upon knowledge, as follows:
1. Plaintiff brings this action pursuant to rule 23 of the Rules of the
court of Chancery as a Class action on behalf of all persons, other than
defendants and those in privity with them who own the common stock of 3-D
Geophysical, Inc., ("3-D Geophysical" or the "Company").
2. Plaintiff has been the owner of the common stock of 3-D Geophysical
since prior to the transaction herein complained of and continuously to date.
3. 3-D Geophysical is a corporation duly organized and existing under
the laws of the State of Delaware. The Company, through subsidiaries provides
land based and
<PAGE>
shallow water two-dimensional and three-dimensional seismic data acquisition
services to oil and gas production companies in the Western Hemisphere. Seismic
data is the principal source of information utilized to map out potential oil
and gas bearing formations.
4. Defendant Western Atlas, Inc. ("Western Atlas") is a Delaware
corporation based in Beverly Hills, California and provides land, marine and
transition zone seismic survey information services.
5. Defendant WAI Acquisition Corp. ("WAI") is a Delaware corporation
and a wholly owned subsidiary of Western Atlas.
6. Defendant Richard P. Davis is President, Chief Executive Officer and
a Director of the Company.
7. Defendant Joel Friedman is Chairman of the Board of the Company.
8. Defendants Robert P. Andrews, Douglas W. Brandrup, Wayne P.
Widynowski, Ralph M. Bahna, Arthur D. Emil, Emir L. Tavella, Luis H. Ferran, and
P. Dennis O'Brien.
9. The Individual Defendants are in a fiduciary relationship with
Plaintiff and the other public stockholders of 3-D Geophysical and owe them the
highest obligations of good faith and fair dealing.
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<PAGE>
CLASS ACTION ALLEGATIONS
10. Plaintiff brings this action on its own behalf and as a
class action, pursuant to Rule 23 of the Rules of the Court of Chancery, on
behalf of all common stockholders of the Company (except the defendants herein
and any person, firm, trust, corporation, or other entity related to or
affiliated with any of the defendants) and their successors in interest, who are
or will be threatened with injury arising from defendants' actions as more fully
described herein.
11. This action is properly maintainable as a class action because:
(a) The class is so numerous that joinder of all members is
impracticable. As of April 24, 1997, there were approximately 11,625,000 shares
of 3-D Geophysical common stock outstanding owned by hundreds, if not thousands,
of record and beneficial holders;
(b) There are questions of law and fact which are common to the class
including, inter alia, the following: (i) whether defendants have breached their
fiduciary and other common law duties owed by them to plaintiff and the members
of the class; and (ii) whether the class is entitled to injunctive relief or
damages as a result of the wrongful conduct committed by defendants.
(c) Plaintiff is committed to prosecuting this action and has retained
competent counsel experienced in litigation of this nature. The claims of the
plaintiff are typical of the claims of other members of the class and plaintiff
has the same interests as the other members of the class. Plaintiff will fairly
and adequately represent the class.
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<PAGE>
(d) Defendants have acted in a manner which affects plaintiff and all
members of the class alike, thereby making appropriate injunctive relief and/or
corresponding declaratory relief with respect to the class as a whole.
(e) The prosecution of separate actions by individual members of the
Class would create a risk of inconsistent or varying adjudications with respect
to individual members of the Class, which would establish incompatible standards
of conduct for defendants, or adjudications with respect to individual members
of the Class which would, as a practical matter, be dispositive of the interests
of other members or substantially impair or impede their ability to protect
their interests.
SUBSTANTIVE ALLEGATIONS
12. 3-D Geophysical's recent operating results have been very strong.
For the third quarter and nine month period ended September 30, 1997, the
Company reported record revenues. Additionally, the Company expects revenues for
the year ending December 31, 1997 to exceed $100 million.
13. Despite these strong results, 3-D Geophysical's stock price has
languished. Given 3-D Geophysical's strong financial performance, its prospects
for future growth and expansion are substantial, and the intrinsic value of 3-D
Geophysical is far greater than that reflected in the market price of 3-D
Geophysical's stock.
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<PAGE>
WESTERN ATLAS ACTS TO ACQUIRE 3-D GEOPHYSICAL
14. On March 9, 1998, 3-D Geophysical and Western Atlas announced that
they had entered into a definitive merger agreement whereby Western Atlas will
acquire 3-D Geophysical in a transaction valued at $112.1 million. On or about
March 13, 1998, WAI commenced a cash tender offer for all of 3-D Geophysical's
outstanding common shares at a price of $9.65 per share by filing a Tender Offer
Statement on Schedule 14D-1, containing the Offer to Purchase (the "14D-1" or
the "Offer to Purchase"). Following the tender offer, WAI will be merged into
the Company, with the Company as the surviving corporation. Any untendered
shares of 3-D Geophysical will be converted into the right to receive $9.65 per
share in cash.
15. On or about March 13, 1998, Defendants filed with the United States
Securities and Exchange Commission a Solicitation/Recommendation Statement on
14D-9 (the "14D-9") purportedly describing, inter alia, the merger transaction,
the history of the negotiations between the companies, the opinion of 3-D
Geophysical's financial advisor and certain other purportedly relevant
information. The 14D-9 was apparently mailed to 3D-Geophysical shareholders
shortly thereafter.
THE 14D-9 FAILS TO DISCLOSE MATERIAL INFORMATION
THE FAILURE TO SHOP THE COMPANY
16. The 14D-9 fails to disclose material information necessary for 3-D
Geophysical shareholders to make an informed decision. The 14D-9 is completely
silent with
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<PAGE>
respect to the efforts made (or not made) by the 3-D Geophysical Board to comply
with the fiduciary duties to solicit indications of interest or competing bids
from third parties in this change of control transaction. To the contrary and
apparently in breach of their fiduciary duties to the public shareholders of 3-D
Geophysical, "the Company and Western entered into an Exclusivity Agreement
dated January 28, 1998 which initially provided that the Company would negotiate
exclusively with Western until February 11, 1998. the 14D-9 also discloses that
"[d]uring the course of these discussions, the Exclusivity Period was extended
several times" making it highly unlikely that any other potential business
combinations were considered. Furthermore, no explanation or rationale is
offered by defendants for their apparent failure to explore other strategic
alternatives.
17. Attached to the 14D-9 is a letter dated March 8, 1998, from Smith
Barney, Inc. and Solomon Brothers, Inc., collectively doing business as Solomon
Smith Barney ("SSB"), 3-D Geophysical's financial advisor, to the Company's
Board of Directors (the "fairness opinion") opining that the proposed
transaction is fair to 3-D Geophysical's public shareholders from a financial
point of view. The fairness opinion states "[i]n connection with our engagement,
we were not requested to, and did not, solicit third party indications of
interest in a possible acquisition of 3-D Geophysical..."
18. Given the lack of information provided concerning the potential
value to be received in competing bids, investors are unable to properly
consider the Merger because they have no way of knowing if the Merger price is
low in relation to what 3-D Geophysical could receive in an open market auction
or, at the very least, by soliciting other bids. Defendants fail
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<PAGE>
to disclose the Company's purported rationale in directing its financial advisor
not to conduct a formal auction and not to solicit competing bids for 3-D
Geophysical.
THE ABSENCE OF CURRENT FINANCIAL INFORMATION OR PROJECTIONS
19. The Offer to Purchase contains historical information concerning
the Company only through the nine months ended September 30, 1997. The failure
to provide more recent financial information on which the Company's shareholders
can base a decision whether to tender or not is inexcusable. 3-D Geophysical
shareholders are being asked to make an irrevocable decision regarding their
investment in 3-D Geophysical on the basis of incomplete information and the
14D-9, by omitting any financial information concerning the Company, fails to
cure this omission.
20. Moreover, neither the Offer to Purchase or 14D-9 provide any
information regarding the Company's projected earnings and/or prospects,
although Western Atlas was certainly provided with confidential information
regarding the Company's businesses and prospects. This information is vital to
the ability of 3-D Geophysical's shareholders to properly evaluate the $9.65 per
share buy-out price, but has not been shared in any fashion with 3-D
Geophysical's shareholders.
C. THE INCOMPLETE DESCRIPTION OF THE BANKER'S
FINANCIAL ANALYSES AND CONFLICTS
21. The fairness opinion recites a litany of various documents relied
on by SSB in rendering the fairness opinion, including "financial forecasts and
other information and data
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<PAGE>
for 3-D Geophysical" and "the projected earnings and other operating data of 3-D
Geophysical." Yet none of this information is provided to shareholders or
accounted for in the fairness opinion.
22. Neither the 14D-9 nor the fairness opinion contains a discussion of
the various financial analysis presumably performed by SSB. The 14D-9 and the
fairness opinion are silent with respect to what valuation methodologies were
employed by SSB in rendering its fairness opinion and so that shareholders
cannot determine whether there was any deviation from standardized investment
banking practices. Accordingly, 3-D Geophysical shareholders cannot determine
from these materials what the intrinsic value of the shares is and why the
proposed acquisition by Western Atlas is preferable to other alternatives or is
fair.
23. However, buried with the fairness opinion, but not disclosed in the
14D-9 itself is a statement that "we [SSB] and our affiliates (including
Travelers Group, Inc. and its affiliates) may maintain relationships with 3-D
Geophysical, Western Atlas and their respective affiliates." However, defendants
fail to disclose any information regarding the nature of SSB's relationship with
Western Atlas, the type of services that may have been rendered, the extent of
its current relationship with that company, and the fees it has received from
Western Atlas or its affiliates for these services. Additionally, defendants
fail to disclose whether SSB anticipates that it will provide investment banking
services to Western Atlas in the future. Absent this information, 3-D
Geophysical shareholders are unable to rely upon the integrity of the fairness
opinion in light of SSB's apparent conflicts of interest.
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<PAGE>
THE INDIVIDUAL DEFENDANTS HAVE
SUBSTANTIAL CONFLICTS WITH THE CLASS
24. The merger agreement creates disabling conflicts of interest by
conferring extraordinary benefits on the individual defendants and certain
members of the Company's senior management. The merger agreement provides that
all options, whether presently exercisable or not, will be canceled in exchange
for a lump sum cash payment. Accordingly, defendants Friedman, Ferran and
Widynowski will each respectively receive cash payments of $120,000, $537,000,
and $471,750 upon consummation of the proposed transaction. Additionally, Ronald
L. Koons, the Company's Chief Financial Officer, will receive a cash payment of
$90,000 for the cancellation of the options he holds.
25. Furthermore, the merger agreement provides that defendants Friedman
and Ferran will be rewarded with consulting agreements for a period of four
years after the consummation of the proposed transaction. Pursuant to these
consulting agreements, defendant Friedman will receive a total of $1 million and
defendant Ferran will receive a total of $500,000 over the four year period.
26. In order to coerce 3-D Geophysical stockholders into tendering
their shares in the tender offer, triggering the realization of windfall profits
to certain of the Individual Defendants and to prevent the Company from
"shopping" for the best possible transaction for the Company's shareholders, the
Individual Defendants have agreed to termination provisions that would render it
prohibitively expensive for anyone else to acquire the Company. The merger
agreement provides for the payment of $5.5 million to Western Atlas by the
Company
- 9 -
<PAGE>
in case the merger agreement is terminated. The Company would also be obligated
to pay up to an additional $1.5 million as reimbursement of any expenses
incurred by Western Atlas.
27. Additionally, the Individual Defendants and one of the Company's
executive officers, who collectively own 1,748,306 shares or 14.7%, of the
outstanding common stock, have entered into "Support Agreements" with Western
Atlas. Pursuant to the Support Agreements, these stockholders have agreed to
tender their shares, and have granted Western an irrevocable proxy to vote their
shares in favor of the merger and other transactions contemplated by the merger
agreement and against any proposed acquisition or merger of the Company with
another party. As structured, the Support Agreements penalize any competing
buyout proposal which would enhance or maximize shareholder value.
DEFENDANTS HAVE FAILED TO ACT IN AN INFORMED
MANNER AND TO MAXIMIZE SHAREHOLDER VALUE
28. By entering into the Merger agreement with Western Atlas, the 3-D
Geophysical Board has initiated a process to sell the Company which imposes
heightened fiduciary responsibilities and requires enhanced scrutiny by the
Court. However, the terms of the proposed transaction were not the result of an
auction process or active market check; they were arrived at without a full and
thorough investigation by the Individual Defendants; and they are intrinsically
unfair and inadequate from the standpoint of the 3-D Geophysical shareholders.
29. The Individual Defendants failed to make an informed decision, as
no market check of the Company's value was obtained. In agreeing to the Merger,
the Individual Defendants failed to properly inform themselves of 3-D
Geophysical's highest transactional
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<PAGE>
value. Indeed, as noted above, the Individual Defendants committed to
negotiating exclusively with Western Atlas and apparently did not instruct
either the Company's management or financial advisor to solicit competing bids.
30. The Individual Defendants have violated the fiduciary duties owed
to the public shareholders of 3-D Geophysical. The Individual Defendants'
agreement to the terms of the transaction, its timing, and the failure to
auction the Company and invite other bidders, and defendants' failure to provide
a market check demonstrate a clear absence of the exercise of due care and of
loyalty to 3-D Geophysical's public shareholders.
31. The Individual Defendants' fiduciary obligations under these
circumstances require them to:
a. Undertake an appropriate evaluation of 3-D Geophysical's net worth
as a merger/acquisition candidate; and
b. Engage in a meaningful auction with third parties in an attempt to
obtain the best value for 3-D Geophysical's public shareholders.
32. The Individual Defendants have breached their fiduciary duties by
reason of the acts and transactions complained of herein, including their
decision to merge with Western Atlas without making the requisite effort to
obtain the best offer possible.
33. Plaintiff and 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 3-D Geophysical's assets and business, and will be prevented from
obtaining fair and adequate consideration for their shares of 3-D Geophysical
common stock.
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<PAGE>
34. The consideration to be paid to class members in the
proposed Merger is unfair and inadequate because, among other things:
a. The intrinsic value of 3-D Geophysical's common stock is materially
in excess of the amount offered for those securities in the Merger giving due
consideration to the anticipated operating results, net asset value, cash flow,
and profitability of the Company;
b. The Merger price is not the result of an appropriate consideration
of the value of 3-D Geophysical because the 3-D Geophysical Board approved the
proposed Merger without undertaking steps to accurately ascertain 3-D
Geophysical's value through open bidding or at least a "market check mechanism";
and c. By entering into the agreement with Western Atlas, the Individual
Defendants have allowed the price of 3-D Geophysical stock to be capped, thereby
depriving plaintiff and the Class of the opportunity to realize any increase in
the value of 3-D Geophysical stock.
35. By reason of the foregoing, each member of the Class will suffer
irreparable injury and damages absent injunctive relief by this Court.
WESTERN ATLAS IS AN AIDER AND ABETTOR
36. Western Atlas has knowingly aided and abetted the breaches of
fiduciary duty committed by the Individual Defendants. Western Atlas has agreed
to the favorable treatment of options and held by 3-D Geophysical's directors
and senior management and has entered into favorable consulting agreements with
certain of the Individual Defendants to assure
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<PAGE>
their agreement and cooperation in and to a transaction which will not maximize
value for 3-D Geophysical shareholders. Western Atlas has so agreed to enable it
to acquire 3-D Geophysical at the lowest possible price although the favorable
treatment of employee and directorial options and has necessarily injected
personal motives into the negotiations and compromised the undivided loyalty
which the Individual Defendants owe to 3-D Geophysical's public shareholders.
37. Plaintiff and other members of the Class have no adequate remedy at
law.
WHEREFORE, plaintiff and members of the Class demand judgment against
defendants as follows:
a. Declaring that this action is properly maintainable as
a class action and certifying plaintiff as the
representative of the Class;
b. Preliminarily and permanently enjoining defendants and
their counsel, agents, employees and all persons acting
under, in concert with, or for them, from proceeding
with, consummating, or closing the proposed
transaction;
c. In the event that the proposed transaction is
consummated, rescinding it and setting it aside, or
awarding rescissory damages to the Class;
d. Awarding compensatory damages against defendants,
individually and severally, in an amount to be
determined at trial, together with pre-judgment and
post-judgment interest at the maximum rate allowable by
law, arising from the proposed transaction;
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<PAGE>
e. Awarding plaintiff its costs and disbursements and
reasonable allowances for fees of plaintiff's counsel
and experts and reimbursement of expenses; and
f. Granting plaintiff and the Class such other and further
relief as the Court may deem just and proper.
Dated: March 16, 1998
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By:___________________________________
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899-1070
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL
BERNSTEIN LIEBHARD & LIFSHITZ
274 Madison Avenue
New York, NY 10016
(212) 779-1414
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<PAGE>
IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------------------- x
:
: C.A. No. 16238-NC
TISHREI TRADING, :
:
Plaintiff, :
:
- v - :
:
ROBERT P. ANDREWS, DOUGLAS W. BRANDRUP, :
WAYNE P. WIDYNOWSKI, RALPH M. BAHNA, :
RICHARD D. DAVIS, ARTHUR D. EMIL, EMIR L. :
TAVELLA, LUIS H. FERRAN, JOEL FRIEDMAN, P. :
DENNIS O'BRIEN, 3-D GEOPHYSICAL, INC. and :
WESTERN ATLAS INC., :
:
Defendants. x
- ---------------------------------------------------------
NOTICE OF MOTION
TO: 3-D Geophysical, Inc. Western Atlas, Inc.
All Individual Defendants c/o Prentice-Hall Corp. System, Inc.
c/o Corporation Service Co. c/o Corporation Service Co.
1013 Centre Road 1013 Centre Road
Wilmington, DE 19805 Wilmington, DE 19805
PLEASE TAKE NOTICE that plaintiff will present the attached Motion For
Preliminary Injunction to the Court at the earliest convenience of the Court and
counsel.
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By: ______________________________________
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899-1070
(302) 656-4433
Attorneys for Plaintiff
<PAGE>
IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------------------- x
:
: C.A. No. 16238-NC
TISHREI TRADING, :
:
Plaintiff, :
:
- v - :
:
ROBERT P. ANDREWS, DOUGLAS W. BRANDRUP, :
WAYNE P. WIDYNOWSKI, RALPH M. BAHNA, :
RICHARD D. DAVIS, ARTHUR D. EMIL, EMIR L. :
TAVELLA, LUIS H. FERRAN, JOEL FRIEDMAN, P. :
DENNIS O'BRIEN, 3-D GEOPHYSICAL, INC. and :
WESTERN ATLAS INC., :
:
Defendants. x
- ---------------------------------------------------------
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff hereby moves, pursuant to Court of Chancery Rule 65, for an
Order:
1. Preliminarily enjoining defendants and all persons acting in concert
with them from proceeding with, consummating or otherwise closing the tender
offer by WAI Acquisition Corp. ("WAI") (the "Tender Offer") for all of the
issued and outstanding shares of 3-D Geophysical, Inc. ("3-D"); and
2. Requiring defendants to supplement their materials furnished to
3-D's shareholders in connection with the Tender Offer by disclosing all
material facts and correcting the omissions described in Plaintiff's Amended
Class Action Complaint in this action.
<PAGE>
The grounds for this Motion are set forth in Plaintiff's Amended Class
Action Complaint and will be more fully set forth in plaintiff's opening brief
and other papers to be filed in support of this motion.
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By: ___________________________________
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899-1070
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
BERNSTEIN LIEBHARD & LIFSHITZ
274 Madison Avenue
New York, NY 10016
- 2 -
<PAGE>
IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------------------- x
:
: C.A. No. 16238-NC
TISHREI TRADING, :
:
Plaintiff, :
:
- v - :
:
ROBERT P. ANDREWS, DOUGLAS W. BRANDRUP, :
WAYNE P. WIDYNOWSKI, RALPH M. BAHNA, :
RICHARD D. DAVIS, ARTHUR D. EMIL, EMIR L. :
TAVELLA, LUIS H. FERRAN, JOEL FRIEDMAN, P. :
DENNIS O'BRIEN, 3-D GEOPHYSICAL, INC. and :
WESTERN ATLAS INC., :
:
Defendants. x
- ---------------------------------------------------------
NOTICE OF MOTION
To: 3-D Geophysical, Inc Western Atlas, Inc.
All Individual Defendants c/o Prentice-Hall Corp. System, Inc.
c/o Corporation Service Co. c/o Corporation Service Co.
1013 Centre Road 1013 Centre Road
Wilmington, DE 19805 Wilmington, DE 19805
PLEASE TAKE NOTICE that plaintiff will present the attached Motion for
Expedited Proceedings to the Court at the earliest convenience of the Court and
counsel.
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By:___________________________
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899-1070
(302) 656-4433
Attorneys for Plaintiff
<PAGE>
IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------------------------- x
:
: C.A. No. 16238-NC
TISHREI TRADING, :
:
Plaintiff, :
:
- v - :
:
ROBERT P. ANDREWS, DOUGLAS W. BRANDRUP, :
WAYNE P. WIDYNOWSKI, RALPH M. BAHNA, :
RICHARD D. DAVIS, ARTHUR D. EMIL, EMIR L. :
TAVELLA, LUIS H. FERRAN, JOEL FRIEDMAN, P. :
DENNIS O'BRIEN, 3-D GEOPHYSICAL, INC. and :
WESTERN ATLAS INC., :
:
Defendants. x
- ---------------------------------------------------------
MOTION FOR EXPEDITED PROCEEDINGS
Plaintiff, by his attorneys, respectfully moves the Court to schedule
his Motion for Preliminary Injunction, served and filed herewith, for a hearing
prior to April 9, 1998, the presently scheduled date for the closing of the
tender offer (the "Tender Offer") by WAI Acquisition Corp. ("WAI") for all the
issued and outstanding shares of 3-D Geophysical, Inc. ("3-D") at $9.65 per
share. As grounds for this Motion, plaintiff represents as follows:
1. Plaintiff alleges that he is a stockholder of 3-D. He brings this
action on behalf of all 3-D stockholders, contending that the defendant
directors of 3-D, aided and abetted by Western Atlas Inc. ("Western"), WAI's
parent, have breached their fiduciary duties to plaintiff and the proposed class
by failing to take appropriate steps to ascertain the best transaction available
to 3-D's shareholders; thereby failing to make informed judgments
<PAGE>
concerning Western's acquisition of 3-D; and by failing to include in materials
disseminated to 3-D's shareholders in connection with the Tender Offer
information material to the decision facing 3-D's shareholders of whether or not
to tender their shares. These allegations are particularized in Plaintiffs
Amended Class Action Complaint, served and filed on March 17, 1998 (the
"Complaint").
2. Among other things, the Complaint alleges that WAI's Tender Offer
Circular ("14D-1") and 3-D's Solicitation/Recommendation Statement on 14D-9
("14D-9"), which are dated March 13, 1998, but were not publicly available in
hard copy until March 17, 1998, omit material information in a number of
respects:
(a) neither the 14D-1 nor the 14D-9 contains any information on 3-D's
financial and operating results for the fourth quarter and year ended December
31, 1997, or any information regarding 3-D's earnings projections, on which
Solomon Smith Barney ("SSB"), 3- D's financial advisor, in part based its
opinion;
(b) the 14D-9 fails to offer any reason why 3-D and SSB did not solicit
from more than one party interest in a potential business combination with 3-D;
(c) the 14D-9 fails to disclose information on which SSB based its
fairness opinion, including management-prepared forecasts;
(d) the 14D-9 fails to disclose what valuation methodologies SSB
employed in rendering its fairness opinion; and
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<PAGE>
(e) the 14D-9 hints at, without fully disclosing, potential conflicts
of interest for SSB.
3. In short, the Complaint alleges that 3-D's shareholders are being
denied the opportunity to make an informed judgment on the Tender Offer and that
the individual defendants have failed in their duty to maximize shareholder
value in a change of control transaction. Accordingly, plaintiff seeks a
preliminary injunction against completion of the Tender Offer. This Court has
previously held that lack of complete information in connection with a Tender
Offer and loss of the opportunity to obtain the best available transaction in a
change of control context can constitute irreparable injury sufficient to
warrant preliminary injunctive relief. See, e.g., Joseph v. Shell Oil Company,
Del. Ch. 482 A.2d 335 (1984); Paramount Communications v. QVC Network, Del.
Supr., 637 A.2d 34 (1993).
4. Since the Tender Offer is scheduled to close on April 9, 1998,
plaintiff requests that the Court hear his preliminary injunction motion
sufficiently prior to that date to permit decision and Order if the Court is
persuaded the Tender Offer should be enjoined.
5. Plaintiff has not previously applied for this relief.
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<PAGE>
WHEREFORE, plaintiff respectfully requests the Court to enter an Order
in the form attached hereto.
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By:___________________________________
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899-1070
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
BERNSTEIN LIEBHARD & LIFSHITZ
274 Madison Avenue
New York, NY 10016
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<PAGE>
IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ----------------------------------------------------------x
:
: C.A. No. 16238-NC
TISHREI TRADING, :
:
Plaintiff, :
:
- v - :
:
ROBERT P. ANDREWS, DOUGLAS W. BRANDRUP, :
WAYNE P. WIDYNOWSKI, RALPH M. BAHNA, :
RICHARD D. DAVIS, ARTHUR D. EMIL, EMIR L. :
TAVELLA, LUIS H. FERRAN, JOEL FRIEDMAN, P. :
DENNIS O'BRIEN, 3-D GEOPHYSICAL, INC. and :
WESTERN ATLAS INC., :
:
Defendants. x
- ----------------------------------------------------------
ORDER
Upon plaintiff's Motion for Expedited Proceedings and for good cause
shown, subject to further Order of the Court upon timely application, IT IS this
______ day of March, 1998, ORDERED:
1. Plaintiff;s application for preliminary injunction shall be heard on
March __, 1998 at _____________ __.m.
2. Counsel for the parties shall confer promptly concerning a discovery
and briefing schedule for the preliminary injunction motion and present it to
the Court for approval.
-------------------------
Vice Chancellor
