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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
(AMENDMENT NO. 4)
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TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
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BORDEN, INC.
(Name of Subject Company)
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BORDEN ACQUISITION CORP.
WHITEHALL ASSOCIATES, L.P.
KKR PARTNERS II, L.P.
(Bidders)
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COMMON STOCK, PAR VALUE $.625 PER SHARE
(Title of Class of Securities)
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099599102
(CUSIP Number of Class of Securities)
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HENRY R. KRAVIS
KOHLBERG KRAVIS ROBERTS & CO.
9 WEST 57TH STREET, SUITE 4200
NEW YORK, NEW YORK 10019
(212) 750-8300
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
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COPY TO:
CHARLES I. COGUT, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 455-2000
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This Amendment No. 4 amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed on November 22, 1994 (as amended from time to time, the
"Schedule 14D-1") relating to the offer by Borden Acquisition Corp., a New
Jersey corporation (the "Purchaser"), a subsidiary of Whitehall Associates, L.P.
(the "Partnership"), an affiliate of Kohlberg Kravis Roberts & Co., L.P.
("KKR"), upon the terms and subject to the conditions set forth in
the Offering Circular/Prospectus dated November 22, 1994 (the
"Offering Circular/Prospectus"), as supplemented by the Offering
Circular/Prospectus Supplement, dated December 7, 1994 (the "Offering
Circular/Prospectus Supplement"), and in the related Letter of Transmittal
(collectively, the "Exchange Offer"), to exchange shares of common stock, par
value $.01 per share (the "Holdings Common Stock"), of RJR Nabisco Holdings
Corp., a Delaware corporation ("Holdings"), owned by the Purchaser or its
affiliates for all outstanding shares (the "Borden Shares") of common stock,
par value $.625 per share (collectively, the "Borden Common Stock"), and the
associated Preferred Stock Purchase Rights (the "Rights"), of Borden, Inc., a
New Jersey corporation ("Borden"), not already owned by the Purchaser or its
affiliates. Unless otherwise indicated, all capitalized terms used but not
defined herein shall have the meanings assigned to them in the Offering
Circular/Prospectus or in the Offering Circular/Prospectus Supplement.
ITEM 10. ADDITIONAL INFORMATION
Items 10(e) and (f) of the Schedule 14D-1 are hereby amended and
supplemented as follows:
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 Borden, KKR and their
respective directors, executive officers and related parties described under
"The Exchange Offer--Pending Litigation" in the Offering Circular/Prospectus and
under "Recent Developments Relating to Certain Regulatory Approvals and Legal
Matters" in the Offering Circular/Prospectus Supplement 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
(as defined in the Offering Circular/Prospectus Supplement). The parties to the
Settlement Agreement have acknowledged that the Settlement Agreement creates a
binding settlement, subject to consummation of the Exchange Offer. A copy of
the Settlement Agreement is attached hereto as Exhibit 11(g)(24) and
incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
11(g)(24) Settlement Agreement, dated as of December 12, 1994.
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SIGNATURE
After due 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.
BORDEN ACQUISITION CORP.
By: /s/ SCOTT M. STUART
..................................
Name: Scott M. Stuart
Title: Vice President
WHITEHALL ASSOCIATES, L.P.
By: KKR Associates, a limited
partnership, its General Partner
By: /s/ HENRY R. KRAVIS
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Name: Henry R. Kravis
Title: General Partner
KKR PARTNERS II, L.P.
By: KKR Associates, a limited
partnership, its General Partner
By: /s/ HENRY R. KRAVIS
..................................
Name: Henry R. Kravis
Title: General Partner
Date: December 13, 1994
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EXHIBIT INDEX
EXHIBIT PAGE
NO. DESCRIPTION NO.
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11(g)(24) Settlement Agreement, dated as of December 12, 1994. .........
Exhibit 11(g)(24)
COMPOSITE CONFORMED COPY
AGREEMENT
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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.
I. PARTIES
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The parties to this Agreement include the named
plaintiffs and all the members of the putative class (the "Class
Plaintiffs"), and the defendants (the "Defendants") in the
litigations 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.
II. THE LITIGATIONS
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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
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Jersey have been consolidated under the caption In re Borden,
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Inc. Shareholders Litigation, Master File No. C-139-94. The Ohio
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actions are captioned Hartman v. Borden, Inc., et al., Dkt. No.
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94 CV-H09-6306, and Jaroslawicz v. Borden, Inc., et al., Dkt. No.
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94 CV-H09-6654.
On December 1, 1994, the Class Plaintiffs filed a
putative class action ostensibly on behalf of all Borden
shareholders in the United States District Court for the Southern
District of New York captioned Petersen, et al. v. Borden, Inc.,
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et al., Dkt. No. 94 Civ. 8648, alleging violations of various
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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
subsidiary 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 offer, and all transactions arising from or relating
thereto are referred to collectively as the "Transaction.")
III. UNDERTAKINGS OF DEFENDANTS
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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
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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 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
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(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
subjects, 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 communications received from Japonica Partners and
others, and that such meeting has occurred.
IV. RELEASES
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The Class Plaintiffs, on behalf of all Borden
shareholders, shall release all defendants from any and all
claims, asserted and unasserted, based on state or federal law
(including principles of common law), arising from or related to
the Transaction. 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
disclosures made by Defendants or any of them, including the
Offering Circular, the Schedule 14D-1, the Schedule 14-9, and all
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amendments and supplements thereto and documents incorporated by
reference 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
registration 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 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.
V. ATTORNEY'S FEES
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Defendants agree not to oppose an application for
attorney's fees and expenses by Plaintiffs' Counsel of up to $3.2
million.
VI. STIPULATION OF SETTLEMENT AND DISMISSAL
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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
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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
litigations, without fees or costs, except as otherwise provided
for herein.
VII. NO ADMISSION OF LIABILITY
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All Parties specifically agree and acknowledge that
this Agreement, the terms hereof, the final settlement agreement
contemplated hereby and the terms thereof, shall not be deemed an
admission of liability of any sort by any Party to this
Agreement.
VIII. CONTINGENCY
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This Agreement is fully contingent on Borden
Acquisition Corp. purchasing shares of Borden common stock in the
exchange offer.
IX. REPRESENTATION OF COUNSEL
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Counsel for the undersigned parties represent that they
have complete authority from their respective clients to sign
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this Agreement, which shall be binding on their respective
clients.
UNDERSTOOD AND AGREED:
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WACHTELL LIPTON ROSEN & KATZ
/s/ Wachtell, Lipton, Rosen & Katz
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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
DAVIS POLK & WARDWELL
/s/ Davis Polk & Wardwell
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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
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As attorneys for Kohlberg Kravis
Roberts & Co., L.P.
PAUL WEISS RIFKIND WHARTON & GARRISON
/s/ Paul Weiss Rifkind Wharton & Garrison
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As attorneys for Lazard Freres & Co.
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CRAVATH SWAINE & MOORE
/s/ Cravath Swaine & Moore
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As attorneys for CS First Boston Group, Inc.
ABBEY & ELLIS
/s/ Abbey & Ellis
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As attorneys for Class Plaintiffs
