SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
AMENDMENT NO. 5
TO
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
______________________
GROW GROUP, INC.
(Name of Subject Company)
GROW GROUP, INC.
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE $0.10 PER SHARE
(Title of Class of Securities)
399820 10 9
(CUSIP Number of Class of Securities)
Lloyd Frank, Esq.
Secretary
Grow Group, Inc.
200 Park Avenue
New York, N.Y. 10166
(212) 599-4400
(Name, address and telephone number of person authorized to receive
notice and communication on behalf of the person(s) filing statement).
With a Copy to:
Daniel E. Stoller, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, N.Y. 10022
(212) 735-3000
This Amendment supplements and amends as Amendment No. 5 the
Solicitation/Recommendation Statement on Schedule 14D-9,
originally filed on May 4, 1995 (the "Schedule 14D-9"), by Grow
Group, Inc., a New York corporation (the "Company"), relating to
the tender offer by GDEN Corporation, a New York corporation (the
"Purchaser") and an indirect wholly owned subsidiary of Imperial
Chemical Industries PLC, a corporation organized under the laws
of England ("Parent"), initially disclosed in a Tender Offer
Statement on Schedule 14D-1, dated May 4, 1995, to purchase all
outstanding shares of common stock, par value $0.10 per share
(the "Common Stock" or the "Shares"), of the Company at a price
of $18.10 per Share, net to the seller in cash, upon the terms
and subject to the conditions set forth in the Offer to Purchase,
dated May 4, 1995 and the related Letter of Transmittal.
Capitalized terms used and not otherwise defined herein shall
have the meanings set forth in the Schedule 14D-9.
ITEM 3. IDENTITY AND BACKGROUND.
ESOP.
Effective as of May 11, 1995, Messrs. Banks, Frank and Keane
resigned from their positions as trustees of the ESOP and the
Company appointed an independent financial institution as
successor trustee. Pursuant to the applicable documents
governing the ESOP, the successor trustee of the ESOP, who is
required to act in accordance with its fiduciary obligations
under the Employee Retirement Income Security Act of 1974, as
amended, has the authority to determine whether to tender or
otherwise dispose of the Shares held in the ESOP.
ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT
COMPANY.
On May 12, 1995, the Company and Sherwin-Williams entered
into a Confidentiality Agreement (the "Sherwin-Williams
Confidentiality Agreement"). The following is a summary of
certain provisions of the Sherwin-Williams Confidentiality
Agreement which is filed as Exhibit 24 hereto and is incorporated
herein by reference. Pursuant to the Sherwin-Williams
Confidentiality Agreement, Sherwin-Williams agreed, among other
things, to keep confidential certain information furnished to it
by the Company, provided that Sherwin-Williams is permitted to
disclose such of the information as it is advised by counsel is
legally required to be disclosed under the federal securities
laws.
Sherwin-Williams has further agreed that, except as provided
in the next paragraph, for a period of three years, neither
Sherwin-Williams nor any of its affiliates will, without the
prior written consent of the Company: (i) acquire, offer to
acquire, or agree to acquire, directly or indirectly, by purchase
or otherwise, any voting securities or direct or indirect rights
to acquire any voting securities of the Company or any subsidiary
thereof, or any assets of the Company or any subsidiary or
division thereof; (ii) make, or in any way participate in,
directly or indirectly, any solicitation of proxies to vote, or
seek to advise or influence any person or entity with respect to
the voting of, any voting securities of the Company; (iii) make
any public announcement with respect to, or submit a proposal
for, or offer of (with or without conditions) any extraordinary
transaction involving the Company or any of its subsidiaries or
their securities or assets; (iv) form, join or in any way
participate in a "group" (as defined in Section 13(d)(3) of the
Exchange Act) in connection with any of the foregoing; (v) seek
to acquire control of the Company or influence the Board of
Directors, management or policies of the Company; (vi) induce any
other person or entity to do any of the foregoing; or (vii)
request the Company or any of its representatives, directly or
indirectly, to amend or waive any of the foregoing provisions.
Notwithstanding the foregoing restrictions, Sherwin-Williams
or any direct or indirect wholly-owned subsidiary of Sherwin-
Williams is permitted to acquire Shares pursuant to the pending
cash tender offer commenced on May 8, 1995 by Sherwin-Williams'
wholly-owned subsidiary for all outstanding Shares at a price not
less than $19.50 net per Share in cash to the seller or such
higher price in cash that Sherwin-Williams or one of its direct
wholly-owned subsidiaries may offer to pay for Shares pursuant to
such pending cash tender offer; provided, however, Sherwin-
Williams is permitted to acquire Shares pursuant to a cash tender
for all outstanding Shares by Sherwin-Williams or any direct or
indirect wholly-owned subsidiary of Sherwin-Williams made in
accordance with Regulation 14D under the Exchange Act at the
amount per Share offered (or any greater amount per Share
offered) in any merger, tender offer or similar transaction that
shall have been approved by the Company's Board of Directors
within 90 days prior to the commencement of such cash tender
offer by Sherwin-Williams or its direct or indirect wholly-owned
subsidiary, except that this proviso is not applicable to
approval by the Company's Board of Directors of the Offer being
made by Parent.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
CERTAIN LITIGATION.
On May 9, 1995, a purported class action entitled
Steiner v. Grow Group, Inc., et al., (Index No. 11680/95) was
filed in the Supreme Court of the State of New York, New York
County (the "Steiner State Action") on behalf of the Company's
shareholders against the Company, certain members of the Company's
Board of Directors, and a former director of the Board (the
"Individual Defendants"). The complaint alleges that the Individual
Defendants breached their fiduciary duties to the purported class
in connection with the proposed Merger between the Company and
Parent by failing to adequately respond to expressions of
interest from bona fide purchasers, such as Sherwin-Williams,
thereby failing to maximize shareholder value.
The complaint in the Steiner State Action seeks, among
other things, preliminary and permanent relief, including injunctive
relief, as follows: declaring that the Company and the Individual
Defendants have breached their fiduciary duties to plaintiff and
other members of the class; enjoining the purchase of the Company
by Parent pursuant to the Merger Agreement; requiring the Company
and the Individual Defendants to negotiate with Sherwin-Williams
and/or other potential acquirors in a manner designed to maximize
shareholder value and to utilize the rights plan to benefit the
members of the class and maximize the value of their holdings;
and awarding costs, disbursements, and reasonable attorneys' and
experts' fees.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit No.
Exhibit 24 Confidentiality Agreement, dated May 12,
1995, between Grow Group, Inc. and The
Sherwin-Williams Company.
Exhibit 25 Class Action Complaint entitled Steiner v.
Grow Group, Inc., et al., filed in the
Supreme Court of the State of New York, New
York County.
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: May 12, 1995 GROW GROUP, INC.
By /s/ Lloyd Frank
Title: Secretary
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
24 Confidentiality Agreement, dated May 12, 1995,
between Grow Group, Inc. and The Sherwin-Williams
Company.
25 Class Action Complaint entitled Steiner v. Grow
Group, Inc., et al., filed in the Supreme Court
of the State of New York, New York County.
Exhibit 24
GROW GROUP, INC.
200 Park Avenue
New York, NY 10166
May 11, 1995
Mr. Conway G. Ivy
Vice President Corporate Planning
& Development
The Sherwin-Williams Company
101 Prospect Avenue N.W.
Cleveland, OH 44115
CONFIDENTIALITY AGREEMENT
Dear Mr. Ivy:
The Sherwin-Williams Company has requested that Grow
Group, Inc. (the "Company") furnish it with certain
information relating to the Company which is non-public,
confidential and proprietary in nature in connection with
its proposed acquisition of the Company (the
"Transaction"). All such information (whether written or
oral) furnished (whether before or after the date hereof)
by the Company or its directors, officers, employees,
affiliates, representatives (including, without
limitation, financial advisors, attorneys and
accountants) or agents (collectively, "our
Representatives") to you or your directors, officers,
employees, affiliates, representatives (including,
without limitation, financial advisors, attorneys and
accountants) or agents (collectively, "your
Representatives") and all analyses, compilations,
forecasts, studies or other notes or documents prepared
by you or your Representatives which contain or reflect,
or are generated from, any such information or which
reflect you or your Representatives review of, or your
interest in, the Transaction (other than any documents
prepared by you or your Representatives in connection
with any public tender offer for the shares of the
Company's common stock) is hereinafter referred to as the
"Information." The term Information will not, however,
include information which (i) is or becomes publicly
available other than as a result of a disclosure by you
or your Representatives in breach of this Agreement or
(ii) is or becomes available to you on a nonconfidential
basis from a source (other than the Company or our
Representatives) which, to the best of your knowledge
after due inquiry, is not prohibited from disclosing such
information to you by a legal, contractual, fiduciary or
other obligation to the Company.
As a condition to, and in consideration of the Company
providing you with Information, you acknowledge and agree
as follows:
1. You and your Representatives for a period of five
(5) years from the date hereof (i) will keep the
Information confidential and will not (except as
required by applicable law, regulation or legal
process, and only after compliance with paragraph 3
below), without our prior written consent, disclose
any Information in any manner whatsoever, and (ii)
will not use any Information other than in
connection with the Transaction. You further agree
to disclose the Information only to your
Representatives (a) who need to know the Information
in connection with negotiating the Transaction, (b)
who are informed by you of the confidential nature
of the Information and (c) who agree to be bound by
the terms of this letter agreement. Notwithstanding
any provision to the contrary contained herein, you
shall be permitted to disclose such of the
Information as you are advised by counsel is legally
required to be disclosed under the federal
securities laws. You agree that you will be
responsible for any breach of this letter agreement
by any of your Representatives.
2. In the event that you or any of your Representatives
are requested or required (by oral questions,
interrogatories, requests for information or
documents, subpoena, civil investigative demand, any
informal or formal investigation by any government
or governmental agency or authority or otherwise )
to disclose any of the Information, you will notify
the Company promptly in writing so that we may seek
a protective order or other appropriate remedy or,
in our sole discretion, waive compliance with the
terms of this letter agreement. You agree not to
oppose any action by the Company to obtain a
protective order or other appropriate remedy. In
the event that no such protective order or other
remedy is obtained, or that the Company waives
compliance with the terms of this letter agreement,
you will furnish only that portion of the
Information which you are advised by counsel is
legally required.
3. You shall keep a record of each location of the
Information. You agree, immediately upon a request
from the Company, to return to the Company all
Information, and no copies, extracts or other
reproductions of the Information shall be retained
by you or your Representatives, except that one copy
may be kept by your legal Representatives solely for
the purpose of monitoring your obligations
hereunder. Any portion of the Information that
consists solely of analyses, compilations,
forecasts, schedules or other notes or documents
prepared by you or your Representatives, in lieu of
being returned to the Company, may be destroyed by
you, in which event one of your authorized officers
shall provide certification to the Company that
materials have in fact been so destroyed. Any oral
Information that is retained by you or your
Representatives will continue to be subject to this
letter agreement.
4. You acknowledge that none of the Company, nor our
Representatives, nor any of our or their respective
officers, directors, employees, agents or
controlling persons within the meaning of Section 20
of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), makes any express or implied
representation or warranty as to the accuracy or
completeness of the Information, and you agree, to
the fullest extent permitted by law, that no such
person will have any liability to you or any of your
Representatives on any basis (including, without
limitation, in contract, tort, under federal or
state securities laws or otherwise) with respect to
the Transaction as a result of this letter
agreement, your participation in evaluating the
Transaction, your review of the Company, the use of
the Information by you or your representatives, any
errors therein or omissions from the Information, or
otherwise. Nothing in the foregoing provision shall
be deemed to waive or limit in any respect any
rights or claims you may have based on any actual or
alleged breaches of the fiduciary duties owed by the
Company's board of directors to the Company and its
stockholders. You further agree that you are not
entitled to rely on the accuracy or completeness of
the Information and that you will be entitled to
rely solely on such representations and warranties
as may be included in any definitive agreement with
respect to the Transaction, subject to such
limitations and restrictions as may be contained
therein.
5. You are aware, and you will advise your
Representatives who are informed of the matters that
are the subject of this letter agreement, of the
restrictions imposed by the United States securities
laws on the purchase or sale of securities by any
person who has received material, non-public
information from the issuer of such securities and
on the communication of such information to any
other person.
6. (a) Except as otherwise expressly provided in
paragraph 6(b) below, you agree that, for a
period of three years from the date of this
letter agreement, neither you nor any of your
affiliates will, without the prior written
consent of the Company: (i) acquire, offer to
acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any
voting securities or direct or indirect rights
to acquire any voting securities of the Company
or any subsidiary thereof, or of any successor
to or person in control of the Company, or any
assets of the Company or any subsidiary or
division thereof or of any such successor or
controlling person; (ii) make, or in any way
participate in, directly or indirectly, any
"solicitation" of "proxies" (as such terms are
used in the rules of the Securities and
Exchange Commission) to vote, or seek to advise
or influence any person or entity with respect
to the voting of, any voting securities of the
Company; (iii) make any public announcement
with respect to, or submit a proposal for, or
offer of (with or without conditions) any
extraordinary transaction involving the Company
or any of its subsidiaries or their securities
or assets; (iv) form, join or in any way
participate in a "group" (as defined in Section
13(d)(3) of the Exchange Act) in connection
with any of the foregoing; (v) seek to acquire
control of the Company or influence the Board
of Directors, management or policies of the
Company; (vi) induce any other person or entity
to do any of the foregoing; or (vii) request
the Company or any of our Representatives,
directly or indirectly, to amend or waive any
provision of this paragraph.
(b) Notwithstanding paragraph 6(a) above, you or
any direct or indirect wholly-owned subsidiary
of yours shall be permitted to acquire shares
of Company common stock pursuant to the pending
cash tender offer commenced on May 8, 1995 by
your wholly-owned subsidiary for all
outstanding shares of Company common stock, at
a price not less than $19.50 net per share in
cash to the seller or such higher price in cash
that you or one of your direct wholly-owned
subsidiaries may offer to pay for shares of the
Company's common stock pursuant to such pending
cash tender offer; provided, however, you shall
be permitted to acquire shares of the Company's
common stock pursuant to a cash tender for all
outstanding shares by you or any direct or
indirect wholly-owned subsidiary of yours made
in accordance with Regulation 14D under the
Exchange Act at the amount per share offered
(or any greater amount per share offered) in
any merger, tender offer or similar transaction
that shall have been approved by the Company's
Board of Directors within 90 days prior to the
commencement of such cash tender offer by you
or your direct or indirect wholly-owned
subsidiary, except that it is understood and
agreed that this proviso shall not be
applicable to approval by the Company's Board
of Directors of the tender offer commenced by
Imperial Chemical Industries PLC on May 4,
1995.
7. (a) You agree that the Company could be
irreparably injured by a breach of this
letter agreement by you or your
Representatives, that monetary remedies might
be inadequate to protect us against any
actual or threatened breach of this letter
agreement by you or by your Representatives.
(b) It is further agreed that no failure or delay
in exercising any right, power or privilege
hereunder will operate as a waiver thereof,
nor will any single or partial exercise
thereof preclude any other or further
exercise thereof or the exercise of any
right, power or privilege hereunder.
(c) This letter agreement will be governed by and
construed in accordance with the laws of the
State of New York, without regard to the
principles of conflict of laws thereof.
(d) This letter agreement contains the entire
agreement between you and us concerning the
subject matter hereof and supersedes all
previous agreements, written or oral,
relating to the subject mater hereof. No
modifications of this letter agreement or
waiver of the terms and conditions hereof
will be binding upon you or us, unless
approved in writing by each of you and us.
(e) If any provision of this letter agreement
shall, for any reason, be adjudged by any
court of competent jurisdiction to be invalid
or unenforceable, such judgment shall not
affect, impair or invalidate the remainder of
this letter agreement but shall be confined
in its operation to the provision of this
agreement directly involved in the
controversy in which such judgment shall have
been rendered.
(f) This letter agreement may be executed in
counterparts, each of which shall be deemed
to be an original, but both of which shall
constitute the same agreement.
(g) This letter agreement shall inure to the
benefit of and be binding upon our respective
successors and assigns, as well as any person
that may acquire, after the date hereof, any
subsidiary of division of either of us with
respect to Information concerning the
business or affairs of such subsidiary or
division.
Please confirm your agreement with the foregoing by
signing and returning to the undersigned the duplicate
copy of this letter enclosed herewith.
Very truly yours,
GROW GROUP, INC.
By:/s/ Lloyd Frank
Name: Lloyd Frank
Title: Secretary
Accepted and Agreed
as of the date first
written above:
THE SHERWIN-WILLIAMS COMPANY
By:/s/ Conway G. Ivy
Name: Conway G. Ivy
Title: Vice President Corporate Planning
& Development
Exhibit 25
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - x
KENNETH STEINER,
: Civil Action No.
Plaintiff,
: CLASS ACTION
-against- COMPLAINT
:
GROW GROUP, INC., JOSEPH M.
QUINN, JOHN F. GLEASON, J.J. :
APOSTOLAKIS, PETER L. KEANE,
ARTHUR W. BROSLAT, ANGUS :
MACDONALD, ROBERT J. MILANO,
WILLIAM H. TURNER, HAROLD G. :
BITTLE, TULLY PLESSER, and
PHILLIPPE ERARD, :
Defendants. :
x
- - - - - - - - - - - - - - - - -
Plaintiff, by and through his attorneys, alleges as
follows:
1. Plaintiff brings this action as a class action on
behalf of himself and all other stockholders of Grow Group, Inc.
("Grow" or the "Company") who are similarly situated, against the
directors of Grow to enjoin certain actions of the defendants
related to the purchase of the outstanding shares of Grow.
PARTIES
2. Plaintiff Kenneth Steiner is the owner of Grow
common stock, and has owned such stock at all relevant times.
3. (a) Defendant Grow, a New York corporation based
in New York, New York, formulates and produces a complete line of
architectural coatings and chemicals for automotive use such as
thinners, solvents, adhesives paint strippers and sealants. The
Company also produces detergents and cleaning products for
household use.
(b) As of April, 1995, Grow had over 16.1 million
shares of common stock outstanding, which shares are traded on
the New York Stock Exchange.
4. (a) Defendant Russell Banks ("Banks") is and has
been at all relevant times President and Chief Executive Officer
of the Company. Banks is the beneficial owner of 2.7% of the
Company's outstanding stock.
(b) Defendant Joseph M. Quinn ("Quinn"), is and
has been at all relevant times Executive Vice President, Chief
Operating Officer and director of the Company.
(c) Defendant John F. Gleason ("Gleason") is and
has been at all times relevant Executive Vice President and a
director.
(d) Defendants J.J. Apostolakis, Peter L. Keane,
Arthur W. Broslat, Angus N. MacDonald, Robert J. Milano, William
H. Turner, Harold G. Bittle, Tully Plesser and Phillippe Erard
are and have been at all relevant times directors of Grow.
(e) The defendants referred to in subparagraph
4(a)-(c) are collectively referred to as the "individual
defendants."
5. By virtue of the individual defendants' positions
as directors and officers of Grow, said defendants were and are
in a fiduciary relationship with plaintiff and the other public
stockholders of the Company, and owe to plaintiff and the other
members of the Class the highest obligations of good faith and
fair dealing.
CLASS ACTION ALLEGATIONS
6. Plaintiff brings this action for declaratory,
injunctive and other relief on their own behalf and as a class
action, pursuant to CPLR SECTION 901 et seq. and on behalf of all
common stockholders of Grow (except defendants herein and any
person, firm, trust, corporation or other entity related to or
affiliated with any of the defendants) or their successors in
interest, who are being deprived of the opportunity to maximize
the value of their Grow shares by the wrongful acts of the
defendants as described herein.
7. This action is properly maintainable as a class
action for the following reasons:
(a) The Class of stockholders for whose benefit
this action is brought is so numerous that joinder of all Class
members is impracticable. There are over 16.1 million common
shares of Grow outstanding, owned by over four thousand
stockholders. Members of the Class are scattered throughout the
United States.
(b) There are questions of law and fact which are
common to members of the Class and which predominate over all
questions affecting only individual members, including whether
the defendants have breached the fiduciary duties owed by them to
plaintiff and members of the Class by reason of the acts
described herein.
(c) The claims of plaintiff is typical of the
claims of the other members of the Class and plaintiff has no
interests that are adverse or antagonistic to the interests of
the Class.
(d) Plaintiff is committed to the vigorous
prosecution of this action and has retained competent counsel
experienced in litigation of this nature. Accordingly, plaintiff
is adequate representative of the Class and will fairly and
adequately protect the interests of the Class.
(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 and establish incompatible standards of
conduct for the party opposing the Class.
(f) Defendants have acted and are about to act on
grounds generally applicable to the Class, thereby making
appropriate final injunctive or corresponding declaratory relief
with respect to the Class as a whole.
FACTUAL BACKGROUND
8. On April 28, 1995, Grow announced that it was
discussing undertaking an agreement pursuant to which an
unidentified third party would acquire 100% of the common stock
of Grow in an exchange for $18.10 a share for Grow Common Stock.
9. On April 30, 1995, Grow entered into an Agreement
and Plan of Merger (the "Merger Agreement") with Imperial
Chemical Industries PLC ("ICI") and an affiliate of ICI, GDEN
Corporation ("GDEN"), pursuant to which GDEN offered to purchase
in a tender offer (the "tender offer") all shares of Grow (other
than those held by Coriman SA ("Coriman") at a price of $18.10
per share, and upon consummation of the tender offer, merge GDEN
into the Company, and convert each remaining share into the right
to receive $18.10 per share (the "merger"). On the same date,
ICI and GDEN entered into an option agreement with Coriman (the
"option agreement"), pursuant to which, subject to certain
conditions, ICI has the right to acquire 4,025,841 Company shares
owned by Coriman at a price of $17.50 per share.
10. The individual defendants, having decided to sell
the Company, had an obligation to maximize shareholder value. In
fact, the individual defendants have not properly sought to
maximize shareholder value and instead have failed to adequately
respond to expressions of interest from bona fide purchasers,
such as, Sherwin Williams Co. ("Sherwin Williams").
11. Sherwin Williams disclosed on May 8, 1995 that
they had approached Grow on March 17, 1995 about entering a
confidentiality agreement in order to undertake a due diligence
investigation of Grow. Sherwin Williams forwarded the agreement
to Grow on March 31, 1995, but Grow never executed the agreement,
effectively excluding Sherwin Williams from the bidding process.
On April 17, Grow told Sherwin Williams that it would be excluded
from bidding for the Company.
12. On May 8, 1995 Sherwin Williams commenced a tender
offer of $19.50 for each share of outstanding Grow stock (the
Sherwin William offer").
13. The Sherwin Williams offer is conditioned upon,
inter alia, the defendants removing certain barriers to the
acquisition of the Company including a shareholder rights plan
adopted in February 1988 (the "right plan"), and a $8 million
lock-up fee (the "lock-up fee") granted to ICI pursuant to the
Merger Agreement in the event that the merger is not consummated.
14. The amount of consideration offered Company
shareholders is inadequate in view of the Sherwin Williams offer
as well as the inherent value of the Company. In that regard,
analysts have valued the Company at amounts significantly in
excess of $18.10 per share.
15. As members of the Board of Directors of Grow, the
individual defendants owe to Company stockholders fiduciary
duties. These duties include the highest obligations of due
care, good faith, loyalty, candor and to maximize shareholder
value.
16. The actions taken by the individual defendants to
exclude Sherwin Williams from bidding and their failure to seek
other bona fide bids was in gross disregard of the fiduciary
duties owed to plaintiff and the other members of the Class. The
individual defendants have failed to take adequate steps to
maximize shareholder value.
17. Plaintiff and the other members of the Class will
suffer injury unless the unlawful transactions complained of
herein are enjoined.
18. Plaintiff and the Class have no adequate remedy at
law.
WHEREFORE, plaintiff demand judgment and preliminary
and permanent relief, including injunctive relief, in his favor
and in favor of the Class and against defendants as follows:
A. Declaring that this action is properly maintainable as
a class action, and certifying plaintiff as class
representatives;
B. Declaring that the defendants and each of them have
committed a gross abuse of trust and have breached their
fiduciary duties to plaintiff and the other members of the Class;
C. Enjoining the purchase of Grow by ICI pursuant to the
Merger Agreement;
D. Requiring defendants to negotiate with Sherwin Williams
and/or other potential acquirers in a manner designed to maximize
stockholder value and to utilize the rights plan to benefit the
members of the Class and maximize the value of their holdings;
E. Awarding plaintiff and the Class compensatory damages;
F. Awarding plaintiff and the Class the costs and
disbursements of this action, including reasonable attorneys' and
experts' fees; and
G. Granting such other and further relief as this Court
may deem just and proper.
GOODKIND LABATON RUDOFF
& SUCHAROW LLP
100 Park Avenue
New York, New York 10017
(212) 907-0700
WECHSLER SKIRNICK HARWOOD
HALEBIAN & FEFFER LLP
805 Third Avenue
New York, New York 10022
(212) 935-7400
Attorneys for Plaintiff
