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Exhibit (a)(5)(H)
CAUSE NO. GN003237
JERRY KRIM S IN THE DISTRICT COURT OF
S
Plaintiff S
S
vs. S
S
PCORDER.COM, INC.; TRILOGY S TRAVIS COUNTY, TEXAS
SOFTWARE, INC.; ROSS A. S
COOLEY; JOSEPH A. LIEMANDT; S
ROBERT W. STEARNS; LINWOOD A. S
LACY, JR. and S
PETER J. BARRIS. S
S 201st JUDICIAL DISTRICT
Defendants
SHAREHOLDERS' CLASS ACTION COMPLAINT
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TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW JERRY KRIM, hereinafter referred to as "Plaintiff", and files
this his Class Action Complaint complaining of PCORDER.COM INC., TRILOGY
SOFTWARE, INC., ROSS A. COOLEY; JOSEPH A. LIEMANDT; ROBERT W. STEARNS; LINWOOD
A. LACY, JR. and PETER J. BARRIS, hereinafter referred to as "Defendants", and
would show the Court the following:
I.
PARTIES
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Plaintiff resides at 4623 North Carlin Springs Rd., Arlington, Virginia
22203 and has been the owner of shares of the common stock of PCOrder.Com, Inc.
("PCO") or the ("Company") since prior to the wrongs herein complained of and
continuously to date.
PCO provides e-commerce solutions that enable the computer industry's
suppliers, resellers and end-users to buy and sell computer products online. PCO
is duly organized and
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existing under the laws of the State of Delaware and may be served with process
at 5001 Plaza on the Lake, Austin, Travis County, Texas 78746.
Defendant Ross A. Cooley ("Cooley") is the Chairman of PCO's Board of
Directors, as well as Chief Executive Officer of PCO and is a resident of
Austin, Travis County, Texas and may be served with process at 5001 Plaza on the
Lake, Austin, Travis County, Texas 78746.
Defendant Joseph A. Liemandt ("Liemandt") is a director of PCO. Liemandt
is also the founder, Chairman, President, and Chief Executive Officer of Trilogy
and may be served with process at 5001 Plaza on the Lake, Austin, Travis County,
Texas 78746.
Defendant Robert W. Stearnes ("Stearns") is a director of PCO and may be
served with process at 5001 Plaza on the Lake, Austin, Travis County, Texas
78746.
Defendant Linwood A. Lacy, Jr. ("Lacy") is a director of PCO and may be
served with process at 5001 Plaza on the Lake, Austin, Travis County, Texas
78746.
Defendant Peter J. Barris ("Barris") is a director of PCO and may be
served with process at 5001 Plaza on the Lake, Austin, Travis County, Texas
78746.
Defendant Trilogy Software, Inc. ("Trilogy") owns or controls a majority
of PCO's outstanding shares of common stock and may be served with process by
serving CT Corporation, 350 N. St. Paul, Dallas, Dallas County, Texas 75201.
The Individual Defendants and Trilogy, as controlling shareholder, stand
in a fiduciary relationship with plaintiff and other public stockholders of PCO,
and owe them the highest obligations of good faith and fair dealing.
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II.
CLASS ACTION ALLEGATIONS
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Plaintiff brings this action on his own behalf and as a class action,
pursuant to Rule 42 of the Texas Rules of Civil Procedure, on behalf of all
security holders 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.
This action is properly maintainable as a class action.
The Class is so numerous that joinder of all members is impracticable.
There are approximately 16.9 million shares of PCO common stock outstanding, of
which approximately 5.4 million are owned by hundreds of persons not affiliated
with PCO.
There are questions of law and fact which are common to the Class
including inter alia, the following:
(a) whether defendants have breached their fiduciary and other common
law duties owned by them to plaintiff and the members of the Class;
(b) whether the proposed transaction, hereinafter described, constitutes
a breach of defendants' duty of fair dealing with respect to plaintiff and the
other members of the Class; and
(c) whether the Class is entitled to injunctive relief or damages as a
result of the wrongful conduct committed by defendants.
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 do the members of the Class. Plaintiff will fairly and
adequately represent the Class.
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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 would create a risk of adjudications with respect of
individual members of the Class which would, as a practical matter, be
dispositive of the interests of the other members, not parties to the
adjudications or substantially impair or impede their ability to protect their
interests.
Defendants have acted in a manner which affects plaintiff and all
members of the Class alike, thereby making appropriate injunctive relief or
corresponding declaratory relief with respect to the Class as a whole.
III.
SUBSTANTIVE ALLEGATIONS
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On October 25, 2000 PCO issued a press release announcing that it had
reached an agreement with Trilogy whereunder Trilogy would acquire all of PCO's
outstanding shares of Class A Common Stock it does not own or control for a
price of $6.375 per share.
There are approximately 6.57 million shares of PCO Class A common stock
outstanding and approximately 10.31 million shares of PCO Class B common stock
outstanding. All of PCO's Class B common stock is owned by Trilogy and
defendant, Liemandt, giving them an equity stake of 61.52% in PCO and voting
control over PCO.
Trilogy and Leimandt (collectively "Trilogy") have orchestrated the
proposed transaction to freeze out PCO's public shareholders and enable Trilogy
to capture PCO's future potential without paying an adequate or fair price to
the Company's public shareholders a fair price for their stock.
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Trilogy timed the announcement of the proposed buyout to place an
artificial limit on the market price of PCO stock so that the market would not
reflect PCO's improving potential, thereby purporting to justify an unreasonably
low price.
Trilogy has access to internal financial information about PCO, its true
value, expected increase in true value and the benefits of 100% ownership of PCO
to which plaintiff and the Class members are not privy. Trilogy is using such
inside information to benefit itself in the proposed transaction, to the
detriment of PCO's public stockholders.
Trilogy has voting control of the Company and controls its proxy
machinery. Trilogy has selected and elected all of PCO's directors who are
beholden to Trilogy for their offices and the valuable perquisites which they
enjoy therefrom and, therefore, are incapable of protecting the interests of the
public shareholders in dealing with Trilogy.
The freeze-out will be effected through a coercive two-step structure,
a tender offer, not conditioned on the tender of a minimum number of shares,
followed by a merger for untendered shares. Thus, PCO's minority shareholders
will be forced to surrender their investment either in the first step or the
later second step of the transaction.
Unless the proposed buyout is enjoined by the Court, defendants will
continue to breach their fiduciary duties owed to plaintiff and the Class to the
irreparable harm of the members of the Class.
Plaintiff and the Class have no adequate remedy at law.
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WHEREFORE PREMISES CONSIDERED, plaintiff prays for judgement and relief
as follows:
(a) Ordering that this action may be maintained as a class action
and certifying plaintiff as the Class representative;
(b) Ordering expedited discovery;
(c) Preliminarily and permanently enjoining defendants and all
persons acting in concert with them, from proceeding with, consummating or
closing the proposed transaction;
(d) In the event the proposed buyout is consummated, rescinding it
and setting it aside;
(e) Directing defendants to account to Class members for their ill
gotten gains received as a result of the wrongs complained of herein;
(f) Awarding plaintiff the costs of this action, including
reasonable allowances for plaintiff's attorneys' and experts' fee;
(g) For such other and further relief as plaintiff and the Class may
show themselves entitled to receive.
Respectfully submitted,
ORGAIN, BELL & TUCKER, L.L.P.
470 Orleans
Beaumont, TX 77701
Telephone: (409) 838-6412
Fax: (409) 838-6959
/s/ J. Hoke Peaock
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J. Hoke Peacock II
State Bar No. 15678000
ATTORNEYS FOR PLAINTIFF
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OF COUNSEL:
Harvey Greenfield
LAW FIRM OF HARVEY GREENFIELD
60 E. 42nd Street
New York, New York 10165
Telephone: (212) 949-5500
Fax: (212) 949-0049
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