SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
SCHEDULE 14D-9
Solicitation/Recommendation Statement
Pursuant to Section 14(d)(4) of the
Securities Exchange Act of 1934
(Amendment No. 7)
___________________
BORDEN, INC.
(Name of Subject Company)
BORDEN, INC.
(Name of Person(s) Filing Statement)
Common Stock, Par Value $.625 Per Share
(Title of Class of Securities)
099599102
(CUSIP Number of Class of Securities)
___________________
Allan L. Miller, Esq.
Senior Vice President, Chief Administrative Officer
and General Counsel
Borden, Inc.
180 East Broad Street
Columbus, Ohio 43215
(614) 225-4000
(Name, address and telephone number of person
authorized to receive notice and communications on
behalf of the person(s) filing statement)
___________________
With a copy to:
Andrew R. Brownstein, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000<PAGE>
This Amendment No. 7 amends and supplements the Soli-
citation/Recommendation Statement on Schedule 14D-9 of Borden,
Inc., a New Jersey corporation (the "Company"), filed with the
Securities and Exchange Commission (the "Commission") on
November 22, 1994, as amended by Amendment No. 1 filed with the
Commission on December 1, 1994, Amendment No. 2 filed with the
Commission on December 2, 1994, Amendment No. 3 filed with the
Commission on December 5, 1994, Amendment No. 4 filed with the
Commission on December 6, 1994, Amendment No. 5 filed with the
Commission on December 8, 1994 and Amendment No. 6 filed with
the Commission on December 12, 1994 (as so amended, the
"Schedule 14D-9"), with respect to the exchange offer made by
Borden Acquisition Corp., a New Jersey corporation (the
"Purchaser"), Whitehall Associates, L.P., a Delaware limited
partnership (the "Partnership"), and KKR Partners II, L.P., a
Delaware limited partnership (together with the Partnership,
the "Common Stock Partnerships"), to exchange shares, owned by
the Purchaser or its affiliates, of common stock, par value
$.01 per share (the "Holdings Common Stock"), of RJR Nabisco
Holdings Corp., a Delaware corporation ("Holdings"), for all
outstanding shares of the Company's common stock, par value
$.625 per share (the "Shares"), and the associated preferred
stock purchase rights (the "Rights"), not already owned by the
Purchaser or its affiliates, upon the terms and subject to the
conditions set forth in the Offering Circular/Prospectus, dated
November 22, 1994, as amended and supplemented by the
Supplement to the Offering Circular/Prospectus, dated December
7, 1994, and the related Letter of Transmittal. Capitalized
terms used and not defined herein shall have the meanings
assigned such terms in the Schedule 14D-9 as heretofore amended
and supplemented.
Item 4. The Solicitation or Recommendation.
(a)-(b) The description in the Schedule 14D-9 under
"Background and Reasons for the Board's Recommendation; Opin-
ions of Financial Advisors -- Background -- Events Subsequent
to Announcement of the KKR Transaction" is hereby amended and
supplemented by adding the following information:
On December 14, 1994, the Company and T.M. Investors
Limited Partnership, a partnership which includes certain
Company affiliates, received commitments for $2.075 billion in
credit facilities. These new credit facilities would replace
the Company's current $1.4 billion of facilities only on
consummation of the Exchange Offer and the availability of the
new credit facilities is expressly conditioned upon completion
of the Exchange Offer. The new credit facilities will also be
used to refinance other existing debt and for the Company's
general corporate and working capital purposes following
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consummation of the Exchange Offer. A press release dated
December 14, 1994 relating to the new facilities was issued by
KKR and such release is included as an exhibit hereto and is
incorporated herein by reference; the foregoing description is
qualified in its entirety by reference to such exhibit.
Item 8. Additional Information to be Furnished.
(b) The description under "Certain Legal
Proceedings" is hereby amended and supplemented by adding the
following information:
On December 12, 1994, the parties to the various
legal proceedings pending in New Jersey state court, Ohio state
court and in the United States District Court for the Southern
District of New York against the Company, KKR and their
respective directors, executive officers and related parties
described in Item 8(b) of the Schedule 14D-9 entered into a
written agreement, dated as of December 12, 1994 (the
"Settlement Agreement"), to fully and finally resolve, settle
and dismiss with prejudice all litigations and claims of any
kind, asserted and unasserted, arising out of or related to the
Exchange Offer and related transactions, pending the execution
of a final stipulation of settlement and subject to the terms
and conditions of the Settlement Agreement, which terms and
conditions are, in all material respects, the same as were
previously disclosed with respect to the Proposed Settlement.
The parties to the Settlement Agreement have acknowledged that
the Settlement Agreement creates a binding settlement, subject
to consummation of the Exchange Offer and the other conditions
contained therein. The Settlement Agreement is filed as an
exhibit hereto and is incorporated herein by reference; the
foregoing description is qualified in its entirety by reference
to such exhibit.
Item 9. Material to be Filed as Exhibits.
The list of exhibits in the Schedule 14D-9 is hereby
amended and supplemented by adding the following exhibits:
Exhibit 99.90 -- Settlement Agreement, dated as of
December 12, 1994.
Exhibit 99.91 -- KKR Press Release, dated December
14, 1994.
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SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the infor-
mation set forth in this statement is true, complete and
correct.
BORDEN, INC.
Dated: December 14, 1994 By: /s/ Allan L. Miller
Name: Allan L. Miller
Title: Senior Vice President,
Chief Administrative
Officer and General
Counsel
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EXHIBIT INDEX
Exhibit Description
Exhibit 99.90 -- Settlement Agreement, dated as
of December 12, 1994.
Exhibit 99.91 -- KKR Press Release, dated
December 14, 1994.
Exhibit 99.90
COMPOSITE CONFORMED COPY
AGREEMENT
This Agreement, dated as of December 12, 1994, is
entered into by the Parties hereto to memorialize the Parties'
agreement to fully and finally resolve, settle and dismiss with
prejudice all litigations and claims of any kind, asserted and
unasserted, arising out of or related to the Transaction, as
defined below, pending the execution of a final stipulation of
settlement. The Parties each acknowledge that this Agreement
creates a binding settlement, subject to the contingency set forth
in Paragraph VIII.
1. PARTIES
The parties to this Agreement include the named plain-
tiffs and all the members of the putative class (the "Class
Plaintiffs"), and the defendants (the "Defendants") in the liti-
gations listed in Section II of this Agreement. The Class
Plaintiffs specifically include any and all persons or entities
who held Borden, Inc. ("Borden") common stock at any time during
the period September 12, 1994, through the duration of the
exchange offer, as described below, and their successors in
interest. The term "Parties" is used herein to refer to the Class
Plaintiffs and the Defendants collectively.
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2. THE LITIGATIONS
Beginning on approximately September 12, 1994, certain
shareholders of Borden, purportedly on behalf of all Borden
shareholders, brought twelve putative class action lawsuits in New
Jersey and Ohio state courts. The ten lawsuits filed in New
Jersey have been consolidated under the caption In re Borden, Inc.
Shareholders Litigation, Master File No. C-139-94. The Ohio
actions are captioned Hartman v. Borden, Inc., et al., Dkt. No. 94
CV-H09-6306, and Jaroslawicz v. Borden, Inc., et al., Dkt. No. 94
CV-H09-6654.
On December 1, 1994, the Class Plaintiffs filed a
putative class action ostensibly on behalf of all Borden share-
holders in the United States District Court for the Southern
District of New York captioned Petersen, et al. v. Borden, Inc.,
et al., Dkt. No. 94 Civ. 8648, alleging violations of various
federal securities laws as well as state law fiduciary duty
principles, arising out of the execution of the Merger Agreement,
as amended, pursuant to which Borden Acquisition Corp., a sub-
sidiary of an affiliate of Kohlberg Kravis Roberts & Co., L.P.
("KKR"), proposes to acquire Borden, beginning with an exchange
offer, as set forth in the Offering Circular/Prospectus ("Offering
Circular") in which shares of Borden common stock will be
exchanged for shares of RJR Nabisco Holdings Corp. ("RJR") common
stock (the Merger Agreement, the Offering Circular, the exchange
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offer, and all transactions arising from or relating thereto are
referred to collectively as the "Transaction.")
3. UNDERTAKINGS OF DEFENDANTS
In exchange for the dismissal with prejudice of the
above litigations and for the releases described below, the
Defendants agree as follows:
(a) Borden Acquisition Corp., or one of its affiliates,
commits to exercise or to cause the exercise of its option
(the "Option"), as that term is defined in the Offering
Circular attached as an exhibit to the Schedule 14D-1 filed
with the Securities and Exchange Commission on November 22,
1994, if Borden Acquisition Corp. purchases at least forty-
one percent (41%) of the outstanding common stock of Borden
(on a fully diluted basis) in the proposed exchange offer;
(b) Borden Acquisition Corp. agrees to amend the merger
agreement to reflect that the exchange rate ratio to be fixed
in accordance with the terms of the Offering Circular shall
remain constant for up to twenty (20) business days following
December 20, 1994, should Borden Acquisition Corp. extend the
exchange offer beyond that date;
(c) Defendants agree to publish to Borden shareholders
certain items of additional disclosure as agreed to among the
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parties, which disclosures were reflected in a supplement to
the Offering Circular dated December 7, 1994;
(d) Defendants agree that if shares of Borden common
stock are acquired pursuant to the exchange offer, Borden
Acquisition Corp. or one of its affiliates will commit that
for so long as KKR and its affiliates retain majority voting
control of Borden it will cause Borden's Board of Directors
to include up to two (2) independent directors until such
time as the merger is completed as contemplated in the
agreement and plan of merger relating to the Transaction; and
(e) The parties agree that Defendants have afforded
counsel for Class Plaintiffs an opportunity to meet with
Lazard Freres & Co. and CS First Boston Group, Inc. to make
full and unrestricted inquiries regarding, among other sub-
jects, the financing of the Transaction, Borden's prospect as
an independent company, and the nature of the expressions of
interest regarding the sale of Borden, including communica-
tions received from Japonica Partners and others, and that
such meeting has occurred.
4. RELEASES
The Class Plaintiffs, on behalf of all Borden share-
holders, shall release all defendants from any and all claims,
asserted and unasserted, based on state or federal law (including
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principles of common law), arising from or related to the Trans-
action. It is expressly understood that the scope of the
releases, which will be set forth with greater specificity in the
stipulation of settlement submitted for court approval, is
intended to be as broad as possible and to release any and all
claims against Defendants which were brought or could have been
brought relating in any way to the Transaction or the terms
thereof, including, without limitation, as described in the
Offering Circular, the Schedule 14D-1 and the Schedule 14D-9. The
released claims include, without limitation: (i) all claims
asserted in the Litigations; (ii) all claims under state or
federal law relating to the accuracy or adequacy of any disclo-
sures made by Defendants or any of them, including the Offering
Circular, the Schedule 14D-1, the Schedule 14-9, and all amend-
ments and supplements thereto and documents incorporated by ref-
erence therein; (iii) all claims under state or federal law
relating to RJR's potential participation in an acquisition of
Borden and the initial public offering of Nabisco stock the reg-
istration statement for which was filed on October 28, 1994; (iv)
all claims under state or federal law relating to the Option; (v)
all claims under state or federal law relating to the fees paid or
payable or expenses reimbursed or reimbursable to KKR as disclosed
in the Offering Circular; (vi) all claims under state or federal
law regarding opinions issued by, or fees paid or payable to the
investment bankers; (vii) all claims under state or federal law
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relating to any efforts to sell Borden from the date of the
inception of such efforts to the date on which a settlement
stipulation is executed; and (viii) all claims under state or
federal law relating to the Merger Agreement. Said releases shall
extend, without limitation, to all officers, directors, agents,
employees, investment bankers, and actual or alleged controlling
persons of Defendants.
5. ATTORNEY'S FEES
Defendants agree not to oppose an application for
attorney's fees and expenses by Plaintiffs' Counsel of up to $3.2
million.
6. STIPULATION OF SETTLEMENT AND DISMISSAL
Class Plaintiffs will conduct reasonable confirmatory
discovery to be scheduled by the Parties. The Parties agree that
as soon as practicable thereafter they will submit a stipulation
of settlement with releases to the appropriate court. Class
Plaintiffs represent that they will (a) seek certification of a
class for settlement purposes on a non-opt out basis, and (b) take
all appropriate actions to secure final orders dismissing with
prejudice the complaints in all of the above referenced litiga-
tions, without fees or costs, except as otherwise provided for
herein.
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7. NO ADMISSION OF LIABILITY
All Parties specifically agree and acknowledge that this
Agreement, the terms hereof, the final settlement agreement con-
templated hereby and the terms thereof, shall not be deemed an
admission of liability of any sort by any Party to this Agreement.
8. CONTINGENCY
This Agreement is fully contingent on Borden Acquisition
Corp. purchasing shares of Borden common stock in the exchange
offer.
9. REPRESENTATION OF COUNSEL
Counsel for the undersigned parties represent that they
have complete authority from their respective clients to sign this
Agreement, which shall be binding on their respective clients.
UNDERSTOOD AND AGREED:
WACHTELL LIPTON ROSEN & KATZ
/s/ Wachtell, Lipton, Rosen & Katz
As attorneys for Borden, Inc.,
Ervin Shames, Frank J. Tasco,
Frederick E. Hennig, Wilbert J. Lemelle,
Robert P. Luciano, H. Barclay Morley,
John E. Sexton, and Patricia
Carry Stewart
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DAVIS POLK & WARDWELL
/s/ Davis Polk & Wardwell
As attorneys for RJR Nabisco
Holdings Corp.
Charles M. Harper, Stephen R. Wilson,
Robert S. Roath, H. John Greeniaus, James
W. Johnston, James H. Greene, Jr., Henry
R. Kravis, Paul E. Raether, Lawrence R.
Ricciardi, Clifton S. Robbins, George R.
Roberts, and Scott M. Stuart
SIMPSON THACHER & BARTLETT
/s/ Simpson Thacher & Bartlett
As attorneys for Kohlberg Kravis
Roberts & Co., L.P.
PAUL WEISS RIFKIND WHARTON & GARRISON
/s/ Paul Weiss Rifkind Wharton & Garrison
As attorneys for Lazard Freres & Co.
CRAVATH SWAINE & MOORE
/s/ Cravath Swaine & Moore
As attorneys for CS First Boston Group,
Inc.
ABBEY & ELLIS
/s/ Abbey & Ellis
As attorneys for Class Plaintiffs
-8-
Exhibit 99.91
December 14, 1994
Contact:
FOR KKR:
Ruth Pachman/Dawn Dover/Josh Pekarsky
Kekst and Company
(212) 593-2655
For Immediate Release
BORDEN RECEIVES BANK COMMITMENTS
IN CONNECTION WITH KKR EXCHANGE OFFER
December 14, 1994, New York, NY -- Kohlberg Kravis Roberts &
Co. announced today that Borden, Inc. (NYSE: BN) and T.M.
Investors Limited Partnership, a partnership which includes
certain Borden affiliates, have received commitments for $2.075
billion in credit facilities. The commitments are in
connection with the pending exchange offer by Borden
Acquisition Corp., a KKR affiliate, for all of Borden's
outstanding common stock. The availability of the credit
facilities is expressly conditioned on the successful
completion of the KKR exchange offer.
The credit facilities will be used to refinance existing debt
and for Borden's general corporate and working capital
purposes. None of the proceeds of the credit facilities will
be used to fund the acquisition of Borden shares in the
exchange offer or in any merger between Borden and a KKR
affiliate. The receipt of commitments to refinance Borden's
and the TMI partnership's existing debt on acceptable terms is
a condition to the consummation of the exchange offer.
A KKR spokesperson said that KKR expects to be in a position to
consummate its exchange offer for all outstanding Borden shares
on December 20, 1994.
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