<PAGE>
<PAGE>
SCHEDULE 14A INFORMATION
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
Definitive Additional Materials
[X] Soliciting Material Pursuant to Section 240.14a-11(c) or
Section 240.14a-12
WALLACE COMPUTER SERVICES, INC.
.................................................................
(Name of Registrant as Specified In Its Charter)
GUY P. WYSER-PRATTE
.................................................................
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1),
14a-6(i)(2) or Item 22(a)(2) of Schedule 14A.
[ ] $500 per each party to the controversy pursuant to Exchange
Act Rule 14a-6(i)(3).
[ ] Fee computed on table below per Exchange Act Rules
14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction
applies:
.................................................................
2) Aggregate number of securities to which transaction
applies:
.................................................................
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the
amount on which the filing fee is calculated and state how it was
determined):
.................................................................
4) Proposed maximum aggregate value of transaction:
.................................................................
5) Total fee paid:
.................................................................
[X] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for
which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the
Form or Schedule and the date of its filing.
1) Amount Previously Paid:
.................................................................
2) Form, Schedule or Registration Statement No.:
.................................................................
3) Filing Party:
.................................................................
4) Date Filed:
.................................................................
<PAGE>
<PAGE>
[LETTERHEAD OF HOWARD, DARBY & LEVIN]
September 30, 1996
MEMORANDUM TO: Guy P. Wyser-Pratte
(Wyser-Pratte & Co. Inc.)
RE: CONSISTENCY OF PROPOSED BY-LAW WITH WALLACE GOVERNING
INSTRUMENTS AND DELAWARE LAW
-----------------------------------------------------
You recently filed preliminary proxy materials with the
Securities and Exchange Commission in connection with several proposals you
intend to submit for a shareholder vote at the 1996 annual meeting of Wallace
Computer Services, Inc. ("Wallace" or the "Company"). One of those proposals
would amend the by-laws to require the board of directors to terminate defensive
measures against a qualified cash tender offer after ninety days, unless the
stockholders approved the Board's policy of opposition to such offer (the
"Shareholder Rights By-law"). The preliminary proxy materials state that you
have made this proposal because you believe that if an offer is made to a
company's stockholders to acquire their shares, the stockholders, not the board
of directors, should have the ultimate decision on whether to accept the offer.
We have prepared this memorandum at your request to review
the legal authority that is relevant to the validity of the Shareholder Rights
By-law. The discussion of the Shareholder Rights By-law in management's
preliminary proxy materials (based on an earlier version of the By-law) claims
that the By-law is "invalid" and states that if the By-law is adopted by
stockholders, "the By-law amendment will not be given any effect by the
Company." We disagree with management's statement about the validity of the
Shareholder Rights By-law, and we believe that management does not have an
adequate basis for its position that the Company will give the By-law no
effect if it is adopted by stockholders. In fact, while the Delaware courts
have never considered the
<PAGE>
<PAGE>
validity of such a by-law, there is strong support for its validity in the
language of the Delaware General Corporation Law and the Company's certificate
of incorporation and by-laws, as well as in certain decisions of the Delaware
courts.
Section 109(a) of the Delaware General Corporation Law gives
stockholders the power to "adopt, amend or repeal bylaws." Section 109(b)
states:
"The bylaws may contain any provision, not inconsistent with law
or with the certificate of incorporation, relating to the
business of the corporation, the conduct of its affairs, and its
rights or powers OR THE RIGHTS OR POWERS OF ITS STOCKHOLDERS,
DIRECTORS, officers or employees." (emphasis added).
The only case we have found in which a Delaware court has
considered the validity of by-laws, adopted by stockholders, that limit a
board's ability to take defensive action is FRANTZ MANUFACTURING CO. V. EAC
INDUS., 501 A.2d 401 (Del. Supr. 1985). In FRANTZ, the court validated by-laws
adopted by stockholders requiring, among other things, "that all directors be
present for a quorum at a board meeting and that a unanimous vote of directors
is necessary for all action taken by the board and its committees." The
stockholders adopted those by-laws in order to prevent the board of directors
from issuing stock to an employee stock ownership plan, which would have diluted
the holdings of a stockholder who had recently acquired a 51% position and would
have blocked the stockholder from taking control of the corporation. SEE ALSO
BURR V. BURR CORP., 291 A.2d 409 (Del. Ch. 1972) (validating shareholder-adopted
by-laws increasing the number of directors, permitting majority shareholders to
fill the newly-created directorships and permitting directors to call special
meetings on two-days notice); SECURITIES AND EXCHANGE COMMISSION V. TRANSAMERICA
CORP., 163 F.2d 511, 517 (3rd Cir. 1947) (affirming SEC position that, under
Delaware law, stockholders properly could propose by-law requiring employment of
independent auditors).
We have reviewed the Delaware General Corporation Law and the
Company's certificate of incorporation and by-laws and have not discovered any
<PAGE>
<PAGE>
provisions that bar stockholders from adopting the Shareholder Rights By-law.
Interestingly, Article Tenth of the certificate of incorporation --- adopted
"for the purpose of creating, defining, limiting and regulating the powers of
the corporation, the Board of Directors and the stockholders,"--- limits the
powers that stockholders would otherwise have to amend certain sections of the
By-laws; none of those limitations, however, curtails the stockholders' powers
to adopt the Shareholder Rights By-law.
Management's preliminary proxy materials claim to find support
for their views in Section 141(a) of the Delaware General Corporation Law which
states: "The business and affairs of every corporation organized under this
chapter shall be managed by or under the direction of a board of directors,
EXCEPT AS MAY BE OTHERWISE PROVIDED IN THIS CHAPTER or in its certificate of
incorporation. "(emphasis added). The Shareholder Rights By-law does not appear
to be in conflict with Section 141(a) for two reasons. First, Section 141(a)'s
grant of authority to the board of directors over the business and affairs of
the corporation is qualified by the phrase "except as may be otherwise provided
in this chapter or in its certificate of incorporation." This savings clause
defers to the authorization in Section 109 for stockholders to adopt by-laws,
such as the Tender Offer By-law, which relate to the rights and powers of
stockholders and directors. Second, any reading of Section 141(a) that
invalidated the Shareholder Rights By-law would make meaningless the broad grant
of authority in Section 109 for stockholders to adopt by-laws relating to the
rights or powers of stockholders and directors. Section 3.1 of the Company's
existing by-laws, implementing Section 141(a), anticipates regulation of board
of directors' authority, providing that the Company's business is to be managed
by the board of directors, "except as may otherwise be required by law, by the
Certificate of Incorporation OR BY THESE BY-LAWS" (emphasis added).
Delaware case law dealing with the fiduciary duties of boards of
directors does not require a different result. It is true that courts
interpreting Delaware law have in certain cases, based on the particular facts
presented, upheld reasonable defensive measures adopted by directors who, in
good faith and upon reasonable investigation,
<PAGE>
<PAGE>
believed that a hostile offer posed a danger to corporate policy and
effectiveness, even though a majority of the stockholders may have tendered
their shares. SEE, E.G., MOORE CORP. LTD. V. WALLACE COMPUTER SERV., INC., 907
F. Supp. 1545 (D. Del. 1995); UNITRIN, INC. V. AMERICAN GEN. CORP., 651 A.2d
1361 (D. Del. 1995); PARAMOUNT COMMUNICATIONS, INC. V. TIME, INC., 571 A.2d 1140
(Del. 1989); UNOCAL CORP. V. MESA PETROLEUM CO., 493 A.2d 946 (Del. 1985).
However, each of those cases focused on whether the directors had met their
fiduciary duties to the company's stockholders in the face of a hostile offer.
In none of those instances was the board's discretion limited by a by-law
previously adopted by stockholders pursuant to their powers under Section
109(b), nor did the court consider the stockholders' authority to adopt such a
by-law.
By contrast, the Shareholder Rights By-law utilizes the
stockholders' powers under Section 109(b) to change prospectively the framework
within which the board exercises its fiduciary duties with respect to certain
qualified cash tender offers. The By-law would set a time limit on certain
defensive actions by the Board unless approved by stockholders. This time limit
would be separate and distinct from the Board's fiduciary duties under Delaware
case law; and the Board would not be excused from compliance with the By-law
merely because it had met the requirements of UNOCAL or any other case relating
to fiduciary duties. In fact, it is inherent in the Delaware scheme of corporate
law that while the board is entitled to exercise its judgment in responding to a
tender offer or other takeover bid, its judgment must be exercised within the
framework of statutes, charter provisions and by-laws which in certain instances
limit the actions that directors may take even when the directors believe that
their chosen course of action is in the best interests of stockholders. It is
important to note that the Shareholder Rights By-law does not contain a flat
prohibition against defensive actions by the board, but allows the board a
ninety-day period to convince shareholders that defensive actions are in their
best interests.
Howard, Darby & Levin
<PAGE>
<PAGE>
* * * * *
The foregoing is a legal memorandum provided to Guy P. Wyser-Pratte in
connection with his solicitation of proxies to be voted at the Wallace Computer
Services, Inc. Annual Meeting of shareholders.
PARTICIPANT INFORMATION
Mr. Wyser-Pratte is the owner of 8,000 shares of Wallace common stock and may be
deemed to be the beneficial owner of an additional 1,049,000 common shares.
Together, these shares account for approximately 2.3% of Wallace's outstanding
common shares. Mr. Wyser-Pratte's nominees for election to the Wallace Board,
Messrs. William M. Frazier and W. Michael Frazier, are the respective beneficial
owners of 1,000 and 600 shares. Eric Longmire, of Wyser-Pratte, is also a
participant in this solicitation.
