<PAGE> 1
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT
(PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
(AMENDMENT NO. 2)
LIFE TECHNOLOGIES, INC.
(NAME OF SUBJECT COMPANY)
DEXTER CORPORATION
DEXTER ACQUISITION DELAWARE, INC.
(BIDDERS)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
532177201
(CUSIP NUMBER OF CLASS OF SECURITIES)
----------------
BRUCE H. BEATT, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
DEXTER CORPORATION
ONE ELM STREET
WINDSOR LOCKS, CT 06096
(860) 292-7675
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
----------------
COPY TO:
JERE R. THOMSON, ESQ.
JONES, DAY, REAVIS & POGUE
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 326-3939
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Dexter Acquisition Delaware, Inc., a Delaware corporation ("Purchaser")
and a wholly-owned subsidiary of Dexter Corporation, a Connecticut corporation
("Parent") and Parent hereby amend and supplement their Tender Offer Statement
on Schedule 14D-1, filed with the Securities and Exchange Commission (the
"Commission") on November 2, 1998, as amended by Amendment No. 1 to the Schedule
14D-1 filed with the Commission on November 5, 1998 (as amended, the "Schedule
14D-1"). Capitalized terms not defined herein have the meaning ascribed to them
in the Schedule 14D-1.
ITEM 10. ADDITIONAL INFORMATION.
Item 10(e) of the Schedule 14D-1 is hereby amended and supplemented to add
the following information:
On July 9, 1998, several lawsuits purporting to be brought as class
actions on behalf of the Company's public stockholders were filed against the
Company, Parent and the Company's directors in the Court of Chancery of the
State of Delaware. In September 1998 these lawsuits were consolidated into a
single action, titled In re Life Technologies, Inc. Shareholders Litigation
(Consolidated Civil Action No. 16513). On November 6, 1998, an amended
consolidated class action complaint, a motion for preliminary injunction and a
motion for expedited proceedings were filed in the Court of Chancery of the
State of Delaware. The amended consolidated complaint alleges, among other
things, that Parent and the defendant directors of the Company who are
affiliated with Parent or are officers of the Company have breached their
respective fiduciary duties to the Company's public stockholders. The amended
consolidated complaint seeks to enjoin defendants, preliminarily and
permanently, from consummating a tender offer by Parent, to require Parent to
supplement its Offer to Purchase and to recover monetary damages and costs.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 of the Schedule 14D-1 is hereby amended to add the following
exhibits:
(g)(3) Amended Consolidated Class Action Complaint: In re Life
Technologies, Inc. Shareholders Litigation, C.A. No. 16513 (Del
Ch. filed November 6, 1998).
(g)(4) Motion for Preliminary Injunction: In re Life Technologies,
Inc. Shareholders Litigation, C.A. No. 16513 (Del Ch. filed
November 6, 1998).
(g)(5) Motion for Expedited Proceedings: In re Life Technologies,
Inc. Shareholders Litigation, C.A. No. 16513 (Del Ch. filed
November 6, 1998).
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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.
Dated: November 12, 1998 DEXTER ACQUISITION DELAWARE, INC.
By: /s/ KATHLEEN BURDETT
-----------------------------------
Name: Kathleen Burdett
Title: Treasurer
DEXTER CORPORATION
By: /s/ BRUCE H. BEATT
-----------------------------------
Name: Bruce H. Beatt
Title: Vice President, General
Counsel and Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
------- ----------- -------------
<S> <C>
(g)(3) Amended Consolidated Class Action Complaint: In re Life Technologies,
Inc. Shareholders Litigation, C.A. No. 16513 (Del Ch. filed November 6,
1998).
(g)(4) Motion for Preliminary Injunction: In re Life Technologies, Inc.
Shareholders Litigation, C.A. No. 16513 (Del Ch. filed November 6,
1998).
(g)(5) Motion for Expedited Proceedings: In re Life Technologies, Inc.
Shareholders Litigation, C.A. No. 16513 (Del Ch. filed November 6,
1998).
</TABLE>
<PAGE> 1
IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ----------------------------------------x
:
IN RE LIFE TECHNOLOGIES, INC. : CONSOLIDATED
SHAREHOLDERS LITIGATION : CIVIL ACTION NO. 16513
- ----------------------------------------x
NOTICE OF FILING AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
TO: P. Clarkson Collins, Jr., Esquire
Morris James Hitchens & Williams
222 Delaware Avenue
Wilmington, Delaware 19899
Alan J. Stone, Esquire
Morris Nichols Arsht & Tunnell
1201 N. Market Street
Wilmington, Delaware 19899
PLEASE TAKE NOTICE that plaintiffs herewith file the attached Amended
Consolidated Class Action Complaint as of right pursuant to Rule 15(a).
In compliance with Rule 15(aa), plaintiffs aver that the Amended Complaint
is in full substitution for the Complaint filed in Civil Action No. 16513.
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By:
----------------------------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, Delaware 19899-1070
(302) 656-4433
-and-
CHIMICLES & TIKELLIS LLP
One Rodney Square
Wilmington, Delaware 19801
(302) 656-2500
DELAWARE CO-LIAISON COUNSEL
FOR PLAINTIFFS
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GOODKIND LABATON RUDOFF
& SUCHAROW LLP
100 Park Avenue
New York, NY 10017
(212) 907-0700
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
(212) 759-4600
BERNSTEIN LIEBHARD & LIFSHITZ, LLP
10 East 40th Street
New York, NY 10016
(212) 779-1414
PLAINTIFFS' CO-LEAD COUNSEL
November 6, 1998
2
<PAGE> 3
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- --------------------------------------x
:
IN RE LIFE TECHNOLOGIES, INC. : CONSOLIDATED
SHAREHOLDERS LITIGATION : CIVIL ACTION NO. 16513
- --------------------------------------x
AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
Plaintiffs, by their attorneys, for their Amended Consolidated Class
Action Complaint allege upon information and belief except as to the allegations
contained in paragraph 2, which plaintiffs allege upon knowledge, as follows:
NATURE OF ACTION
1. Plaintiffs brings this class action on behalf of themselves and
all other public shareholders of defendant Life Technologies, Inc. ("Life" or
the "Company") similarly situated (the "Class") to enjoin defendants from
consummating a tender offer ("Tender Offer") by Life's majority shareholder, The
Dexter Corporation ("Dexter"), which Dexter is pursuing in flagrant disregard of
its fiduciary obligations to Life's minority shareholders. As set forth below,
Dexter, which now controls approximately 51.5% of the Company's total common
stock outstanding, seeks to acquire at least an additional 28.5% of the
Company's common stock at $37 per share. The Tender Offer is manifestly unfair
as it is being made (a) pursuant to a Schedule 14D-1 ("14D-1") which fails to
disclose material information; (b) pursuant to an unfair process in which Dexter
summarily rejected
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and disbanded a special committee it had initiated; and (c) at a price
substantially below the fair value of the Company.
PARTIES
2. Plaintiffs are and have been at all relevant times the owners of
Life common stock.
3. Defendant Life is a Delaware corporation with offices at 9800
Medical Center Drive, Rockville, Maryland 20850. Life develops, manufactures and
supplies products used in life sciences, research and the commercial manufacture
of genetically engineered products. Life's products are used in cellular
biochemistry and molecular biology research. As of October 29, 1998, the Company
had issued and outstanding 23,765,418 shares of common stock. As of October 29,
1998, Dexter owned approximately 51.5% of the Company's outstanding common
stock, or 12,246,664 shares.
4. Defendant K. Grahame Walker ("Walker") is and was at all relevant
times the Chairman of the Board of Directors of Life. Walker also is and was at
all relevant times the Chairman and Chief Executive Officer of Dexter.
5. Defendant Bruce H. Beatt ("Beatt") is and was at all relevant
times a Director of Life. Beatt is and was at all relevant times a Vice
President, General Counsel and Secretary of Dexter.
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6. Defendant Kathleen Burdett ("Burdett") is and was at all relevant
times a Director of Life. Burdett is and was at all relevant times a Vice
President and Chief Financial Officer of Dexter.
7. Defendant George Whitesides ("Whitesides") is and was at all
relevant times a Director of both Life and Dexter.
8. Defendant J. Stark Thompson ("Thompson") is and was at all
relevant times the President, Chief Executive Officer and a Director of Life.
9. Defendant Peter G. Kelly ("Kelly") became a Director of Life on
or about August 1, 1998, over the opposition of Thomas H. Adams ("Adams") and
Iain C. Wylie ("Wylie"), two members of Life's Board of Directors. Kelly is also
a Director of Dexter. Adams and Wylie, along with Life director Frank E. Samuel,
Jr. ("Samuel"), who was absent at the time of Kelly's appointment, constituted
the special committee of Life's Directors formed to consider Dexter's offer to
acquire the number of minority Life shares at $37 per share. Adams, Wylie and
Samuel are not named as defendants.
10. Walker, Beatt, Burdett, Whitesides, Thompson and Kelly (the
"Individual Defendants"), by virtue of their positions as directors and/or
officers of Life owe to the Company and its public stockholders certain
fiduciary obligations and are required to: use their ability to control and
manage Life in a fair, just
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and equitable manner; maximize shareholder value; act in furtherance of the best
interests of Life and its public shareholders; refrain from abusing their
positions of control; provide full disclosure to the public shareholders; and
not favor their own or any other party's interests at the expense of Life and
its public shareholders. However, the Individual Defendants simultaneously serve
as officers and/or directors of Dexter, the majority shareholder and proposed
acquiror, and therefore suffer from disabling conflicts of interest which have
caused, and will continue to cause the Individual Defendants to breach their
fiduciary duties to Life's public stockholders.
11. Defendant Dexter Acquisition Delaware, Inc. ("Acquisition") is a
Delaware corporation and wholly owned subsidiary of Defendant Dexter, a
Connecticut corporation with its principal executive offices located at One Elm
Street, Windsor Locks, Connecticut. Dexter produces Specialty materials and
support services in aerospace, automotive, electronics, food packaging and the
medical field. As Life's controlling stockholder, Dexter owes fiduciary duties
to Life's public stockholders, including the obligation to ensure entire
fairness to the Life public shareholders in the transaction complained of
herein. Acquisition and Dexter are collectively referred to herein as "Dexter".
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12. At all relevant times herein, defendant Dexter owned and/or
controlled approximately 51.5% of the outstanding shares of Life common stock or
12,246,664 shares. Defendant Dexter dominates and controls the affairs of Life,
including the Company's Board. Indeed, from July 27, 1998 to November 5, 1998,
six of the nine Board members were Dexter designees; and with the November 5,
1998 resignation of Messrs. Samuel and Wylie, six of the seven remaining Board
members are Dexter designees. Exercising this domination and control, Dexter has
determined to acquire the remaining outstanding shares of Life in disregard of
any semblance of fairness in price or process.
CLASS ACTION ALLEGATIONS
13. Plaintiffs bring this action pursuant to Rule 23 of the Rules
of the Court of Chancery, for injunctive and other relief on their own behalf
and as a class action, on behalf of all public stockholders of Life (except
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.
14. 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. As of
October 29, 1998, Life had over 23 million shares of common stock duly issued
and outstanding, which
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were owned by approximately 553 shareholders of record. Members of the Class are
scattered throughout the United States.
b. There are questions of law and fact that are common to the
members of the Class including, inter alia, the following:
(1) whether defendants have engaged in conduct
constituting unfair dealing to the detriment of the public stockholders of Life;
(2) whether the Tender Offer by Dexter of $37 per share
is procedurally unfair and/or coercive to the public stockholders of Life;
(3) whether the Offer to Purchase contains material
nondisclosures; and
(4) whether the defendants have breached fiduciary and
common law duties owed by them to plaintiffs and the other members of the Class.
c. The claims of plaintiffs are typical of the claims of the
other members of the Class, and plaintiffs have no interests that are adverse or
antagonistic to the interests of the Class.
d. Plaintiffs are committed to the vigorous prosecution of
this action and have retained competent counsel experienced in litigation of
this nature. Accordingly, plaintiffs
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are adequate representatives 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 would establish incompatible
standards of conduct for the party opposing the Class.
f. Defendants have acted, and are acting, on grounds generally
applicable to the Class, thereby making appropriate preliminary and final
injunctive or corresponding declaratory relief with respect to the Class as a
whole.
SUBSTANTIVE ALLEGATIONS
15. Dexter, a conglomerate, has been restructuring its business.
According to George Shipp, an analyst at Scott & Stringfellow, Life has been
Dexter's most profitable business since Dexter purchased its stake in the
Company in 1983. For the 1997 fiscal year, Life contributed $17 million, or more
than 30%, to Dexter's earnings of $56.4 million.
16. On July 7, 1998, Dexter announced that it had offered to acquire
the minority 11.3 million Life shares for $37 cash per share (the "Offer"). On
July 6, 1998, the last trading date prior to announcement of the Offer, Life's
trading was halted at $31 per share. Thus, the $37 per share transaction price
represented only a slight premium (i.e. approximately 19%) over the
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July 6 closing price. Moreover, as recently as on March 31, 1998, Life stock had
closed at $38.50 per share.
17. On October 28, 1998, Life announced in a press release that the
special committee of Life's Board created to review the Offer had reported to
the Board that it was not prepared to recommend the Offer to the Company's
public stockholders. Thus, according to the press release, Dexter had withdrawn
the Offer and had notified the Board that it would commence the Tender Offer at
the $37.00 per share the special committee had refused to recommend.
18. As described herein, the Tender Offer is grossly inadequate in
price, coercive to Life's public stockholders, and results from a process
replete with procedural unfairness. Moreover, defendants have failed to disclose
material information to Life's public stockholders.
THE TENDER OFFER COMMENCES
19. On November 2, 1998, defendants filed with the Securities and
Exchange Commission ("SEC") Schedules 14D-1 ("14D-1") and 13E-3 ("13E-3")
describing the background and terms of the Tender Offer. The 14D-1 contains
Dexter's Offer to Purchase Outstanding Common Shares of Life at $37.00 per share
("Offer to Purchase"). The Tender Offer is conditioned upon, inter alia, the
tender of at least 80% of Life's outstanding common stock. Pursuant to the
Company's Articles of Incorporation, the merger of
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Life with Dexter would be a "Business Combination with a Related Person," which
would require approval of 80% of the Company's outstanding shares. Thus, if the
Tender Offer condition is satisfied, Dexter will have sufficient shares to
approve a merger.
20. According to the Offer to Purchase, on June 30, 1998, defendant
Walker, Dexter's Chairman and Chief Executive Officer, met with defendant
Thompson, Life's Chief Executive Officer. At that time, Walker advised Thompson
of the possibility of Dexter making the Offer to acquire Life at Life's July 7,
1998 Board meeting. In an apparent effort to obtain Thompson's support for the
Offer, Walker told Thompson that if the transaction was consummated, Dexter
desired that Thompson continue as Life's Chief Executive Officer, and further,
would nominate Thompson to become a member and Vice-Chairman of Dexter's Board.
21. Dexter announced the Offer at Life's July 7 Board meeting. From
the outset, Dexter acknowledged the propriety of having a special committee of
independent Company directors review its Offer. For example, in a July 7, 1998
letter to Life's Board, defendant Walker stated:
We understand that you may wish to have this proposal
considered by a special committee of independent
directors and that such committee may wish to retain its
own advisors to assist in these deliberations. We invite
such representatives to meet with our advisors to
discuss this proposal at your earliest convenience.
(Emphasis supplied).
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22. Following receipt of the Offer, Life's Board adopted a
resolution forming a special committee to consider it, consisting of Adams,
Wylie and Samuel, directors of the Company unaffiliated with Dexter. In
addition, the resolution directed the Company to pay Adams $25,000 and each of
Messrs. Samuel and Wylie $17,500 for their services as members of the special
committee in addition to their expenses incurred in such capacity.
23. The members of the special committee were appropriately
appointed, as all three individuals possess significant expertise in the life
sciences. This expertise contrasted significantly with the Dexter-affiliated
Life directors who, with one exception, do not bring experience and training in
life sciences to their board service.
24. According to the Offer to Purchase, on July 27, 1998, at a
special telephonic meeting of the Board, the special committee advised the Board
that it had retained as financial advisor, Goldman Sachs & Co. ("GS") as well as
legal advisor, Wachtell Lipton Rosen & Katz.
25. Also on July 27, 1998, the Board elected defendant Kelly, a
director of Dexter, to fill a vacancy created by the resignation of Rita Colwell
("Colwell") a former Life director unaffiliated with Dexter. Prior to the
meeting, defendant Thompson had suggested other persons to defendant Walker to
fill this vacancy. At the July 27 meeting, each of the Individual Defendants
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voted in favor of Kelly's appointment, while Adams and Wylie voted against
Kelly's appointment. Samuel was absent from the meeting. Thus, defendants acted
quickly to ensure that, in the event the special committee recommended against
the Offer, Dexter would control and dominate the Board.
26. However, in an abundance of caution, defendants took further
steps to promote a favorable response to the Offer from the members of the
special committee. Effective August 18, 1998, the Board "supplemented and
clarified its prior Special Committee resolutions" to, among other things,
increase the fees for service as members of the special committee, granting
$75,000 to Adams as chairman, and $50,000 to each of Messrs. Samuel and Wylie,
reimburse their expenses and pay all other customary fees and expenses as
members of the Board.
27. Between August 17, 1998 and August 31, 1998, the special
committee and its advisors reviewed the Offer. On September 14, 1998, after six
weeks of intensive work, the special committee advised certain of Dexter's
officers that it did not believe that the Offer adequately reflected the
Company's prospects. In particular, the Special Committee noted that Life's 1998
Strategic Plan ("Strategic Plan") (which encompassed years 1998 through 2000)
did not give effect to the Company's research and development efforts, i.e.,
products that are currently under development ("R&D Pipeline").
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28. The special committee also advised certain of Dexter's
representatives on September 14, 1998, that it had received inquiries from
various third parties as to the possibility of a possible business combination,
which were not pursued by such third parties after being advised that Dexter was
unwilling to sell its stake in the Company. As was subsequently revealed, the
unidentified third party was willing to offer a price in excess of $37, but this
expression of interest could not be pursued due to Dexter's refusal to sell its
Life stake.
29. In an effort to quantify the effect the R&D Pipeline would have
on Life's prospects, GS prepared projected income and cash flow statements for
the fiscal years 1998 - 2002 ("Base Case Projections"), which were extrapolated
from the Strategic Plan. In addition, GS also prepared and presented to Dexter's
financial advisors, Merrill Lynch & Co. ("ML") a financial model which contained
revenues and earnings before interest and taxes ("EBIT") to be realized from the
R&D Pipeline each year from 1998 through 2002 ("R&D Projections"). In the R&D
Projections, approximately 68% of the revenues in 2002 and approximately 73% of
the EBIT in 2002 would be attributable to five of the 21 projects covered by
such projections. GS, in its discounted cash flow analyses, applied
significantly higher discount rates to the R&D Pipeline than those applied to
the Company's ongoing operations. Thus, the special
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committee believed that the results achieved were conservative and
not speculative.
30. According to the Offer to Purchase, GS undertook various other
analyses of Life, one of which, based on the discounted cash flows of the
Company, resulted in a value of $40.83 to $49.32 per share for the Base Case
Projections and an incremental value of $10.37 to $13.05 per share for the R&D
Projections, for a total value of $51.20 to $62.37 per share.
31. Despite the obvious importance of the above-described GS
projections and analyses to a reasonable Life stockholder, none of the foregoing
GS documents were annexed as exhibits to the 14D-1 or 13E-3; customarily,
however, these analyses would be an exhibit to SEC filings in this type of
transaction. Thus, Life stockholders have been completely deprived of crucial
information prepared by Life management and relied upon by the special committee
& GS to value the Company's future prospects.
32. Despite continuing discussions between the special committee and
its advisors, and representatives of Dexter between September 17, 1998 and
October 14, 1998, on October 15, 1998 representatives of Dexter advised the
special committee that Dexter believed the price in the Offer was "full and
fair". However, ML and Dexter refused to attribute any meaningful value to the
R&D Pipeline.
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33. On October 13, 1998, Life issued a press release reporting its
financial results for the third fiscal quarter ended September 30, 1998 ("Third
Quarter Results"). In the Third Quarter Results, Life reported revenue of $89.6
million and net income of $8.8 million and diluted earnings per share of $0.36,
compared with revenues of $83.7 million and net income of $7.9 million or $.033
per share for the same period in 1997.
34. At a special telephonic meeting on October 26, 1998 between GS
and ML, GS reaffirmed its views and stated that application of its methodologies
yielded a composite value in the range of $36.32 to $51.81 per share, after
giving effect to both the Base Case and R&D Projections. Thus, the $37.00 price
reflects the lowest end of the GS range of values for Life. Thereafter, on
October 27, 1998, GS advised ML that the special committee would not recommend a
price "in the $30's". GS also stated that, although the special committee
believed that its valuations would support a price per share "in the $50s", the
special committee would be willing to consider a price per share "in the $40s".
35. Later on October 27, 1998, Dexter withdrew its Offer.
36. Dexter made no effort to negotiate in good faith with the
special committee despite having initiated the special committee process and
ML's view that the value range proffered by GS and the special committee were
"negotiating views of value"
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(Offer to Purchase, page 17). Dexter and its advisors, disgruntled that the
special committee refused to "rubber-stamp" the $37.00 price, simply walked
away. At this time Dexter also announced it would shortly commence a Tender
Offer at $37.00 per share.
37. Also on October 27, 1998, after Dexter announced through
defendant Walker that it had withdrawn its Offer, defendant Walker stated that
there "appeared to be no purpose in continuing the existence" of the special
committee, whereupon the Board, controlled and dominated by Dexter (except
defendant Thompson, who abstained), voted to dissolve the special committee,
over the objections of the members of the special committee, and overruled a
direct request from an independent director to discuss the issue prior to a
Board vote. Thus, Dexter not only walked away from discussions with the special
committee that it had invited to negotiate, but it also, through its designees
on Life's Board, terminated that committee.
38. On November 5, 1998, Life announced in a press release that
Messrs. Samuel and Wylie resigned from the Board as they felt their positions as
Life directors were "untenable."
39. Accordingly, on November 5, 1998, Dexter filed an amendment to
the 14D-1 ("Amendment"), annexing as exhibits the press release announcing the
resignations of Samuel and Wylie, the resignation letters to the Board, and a
document entitled "Joint Statement of the Former Members of The Special
Committee of
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Independent Directors of Life Technologies, Inc. ("Joint Statement").
40. The Joint Statement reveals that Life's stock repurchase
program, which was approved at the Company's April 14, 1998 shareholder meeting,
and which the Board at that time said was "a prudent investment for the
Company's surplus funds, and that the repurchase of stock may have an accretive
effect on the Company's earnings per share," had been suspended by Dexter
without notice to the Board in May, 1998. No public announcement of the
suspension was ever made.
41. The Joint Statement reaffirms the Special Committee's view,
reinforced after months of rigorous analyses, that $37.00 per share "would not
adequately compensate" Life stockholders. In particular, the Special Committee
believes that:
Dexter Corporation has ignored or omitted from its $37
per share value significant components to [Life's] long
term inherent value and earning power. Foremost among
these is the value of the products in ["Life's"] R&D
pipeline that have not yet been commercialized. Even
using conservative assumptions and probability discounts
to account for the probabilities of success associated
with these products the Special Committee determined
that the R&D pipeline has significant value that
[Life's] public stockholders are entitled to be
compensated for and that are not reflected in Dexter's
$37 per share offer.
42. In Samuel's resignation letter, he describes Dexter's
inappropriate and coercive actions as follows:
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I am troubled by several features of the situation as it
unfolded: Dexter's refusal to consider or even discuss
the issues relating to [Life's] value raised by the
Special Committee, the termination of the Special
Committee by the Chairman of the Board and his
conflicted colleagues, and Dexter's coercive attempt to
buy out the [Life] public stockholders at a price which,
I believe, deprives these stockholders of the
significant inherent values to which they are rightfully
entitled. This is particularly troubling because, as has
been discussed by [Life] Board members from time to
time. [Life] is a difficult company to value without
intensive study. This is both because a significant part
of the value of [Life] is in its R&D pipeline, the
details of which are not fully public, and because
[Life] receives very little analyst coverage from Wall
Street due to Dexter's majority position.
THE TENDER OFFER IS PROCEDURALLY UNFAIR
43. Even prior to the commencement of the Tender Offer,
defendants took steps to ensure Dexter's acquisition of the Life minority
interest. To achieve this goal, defendants (a) terminated the stock repurchase
program to hold down the market price of Life's stock; (b) stacked the Board
with Dexter-affiliated members; and (c) tripled the compensation of members of
the special committee in an effort to corrupt their judgment.
44. Moreover, the appointment of Kelly to the Board was part of
defendants' scheme to acquire all of Life's outstanding stock. According to the
Certificate of Incorporation, as amended and annexed as an exhibit to Life's
Form 10-Q for the Quarter ended June 30, 1998 the approval of an acquisition of
Life by Dexter would not only require an 80% approval by Life stockholders
(hence,
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the condition of the Tender Offer) but it would require approval by 75% of the
members of the Board. Thus, Colwell's fortuitous resignation increased by one
the number of Dexter-affiliated Board members and enabled Dexter to be one step
closer to the requisite 75% required to approve a subsequent merger, if
necessary. With the subsequent resignations of Messrs. Samuel and Wylie, Dexter
now has sufficient votes on the Board to approve the transaction.
45. Having initiated a special committee process, Dexter was
required to follow it through to conclusion. In the face of the special
committee's refusal to recommend the low-ball price Dexter offered for Life,
Dexter not only refused to negotiate, but withdrew the Offer, disbanded the
special committee, and commenced the Tender Offer at the same price that the
special committee had refused to recommend.
THE TENDER OFFER IS COERCIVE
46. As noted above, the Tender Offer is conditioned upon Dexter's
receiving at least 80% of Life's outstanding shares; and in the event it
receives 90% or more of the Company's outstanding shares, Dexter intends to
consummate a "short form" merger. However, if Dexter receives more than 80%, but
less than 90% of Life's shares, shareholders have been advised that there is
". . . no assurance . . . as to
whether or when [Acquisition] will
cause the Second Step Merger to be
consummated and, similarly, no
assurance can be given as to whether
or when the Merger Consideration [of
$37 per share] will be paid to
-18-
<PAGE> 21
stockholders who do not tender their
shares in the Offer."
47. If the Tender Offer is consummated but there is no prompt
follow-up merger, the Company's shares may be delisted from the NASDAQ National
Market Systems; the Offer to Purchase states that, in that event, ". . . the
market for the shares could be adversely affected."
48. Thus, class members have been presented with a "Hobson's" choice
of either tendering their shares for inadequate consideration, or retaining
their shares with the fear that they will be delisted and suffer a decline in
market value.
DEFENDANTS HAVE FAILED TO DISCLOSE MATERIAL INFORMATION
49. The 14D-l, 13E-3 and the Offer to Purchase fail to
disclose information material and necessary for a reasonable Life stockholder to
make a fully-informed decision on whether or not to tender shares in the Tender
Offer, including the failure to annex the crucial GS analyses, Base Case
Projections or R&D Projections as exhibits to the SEC filings, documents which
are customarily exhibits in this type of transaction. Moreover, although Dexter
has been aware of the details of the Company's R&D Pipeline for some time,
Dexter has not included in the Offer to Purchase nonpublic information on the
nature and number of products, their stage of development, when they can
reasonably be expected to be marketable, and their anticipated commercial
prospects, all of which is
-19-
<PAGE> 22
material and necessary to an informed judgment on the value of the R&D Pipeline
and, hence, on the value of Life.
CLAIM FOR RELIEF
50. As a result of the foregoing, the Tender Offer is a coercive
transaction designed and intended to compel Life's minority shareholders to sell
their Life stock to Dexter at an inadequate and unfair price, unilaterally
determined by Dexter to serve its interest without regard to the interest of
Life's minority shareholders. The process by which the Tender Offer was made and
is being implemented is not only lacking in procedural fairness, but constitutes
a high-handed and flagrant disregard of any recognized aspect of procedural
fairness.
51. Moreover, the Offer to Purchase fails to disclose to Life's
minority shareholders information available to Dexter that is material to a
fully informed decision by Life's minority shareholders on the Tender Offer.
52. In addition, Dexter has deliberately timed this heavy-handed
acquisition effort to occur when the market price of Life's stock is depressed
and before Life can realize the benefits of the products in its R&D Pipeline.
Dexter is attempting, through the timing of the Tender Offer, its coercive
nature, and the failure to disclose material information about the R&D Pipeline,
to arrogate for itself all the future benefits of the products Life has been
developing.
-20-
<PAGE> 23
53. The Board also had an affirmative duty to assure that any
transaction to acquire the minority interest of Life be accomplished only on
terms that are fair to Life's public shareholders and represent the best
available terms from their point of view. The Individual Defendants failed in
this obligation.
54. Accordingly, the Tender Offer constitutes a breach of Dexter's
fiduciary duty as majority shareholder and the fiduciary duties of the
Individual Defendants to safeguard and protect the interests of all Life
shareholders.
55. Plaintiffs and other members of the Class have been and will be
damaged in that they have not and will not receive their fair proportion of the
value of Life's assets and business, will be largely divested from their right
to share in Life's future growth and development and have been and will be
prevented from obtaining the best price available in the market for corporate
control.
56. Plaintiffs have no adequate remedy at law.
WHEREFORE, plaintiffs demand judgment and relief in their favor and
that of the Class and against defendants, as follows:
A. Declaring that this action be certified as a proper class action and
certifying plaintiffs as class representatives;
B. Preliminarily and permanently enjoining defendants and their counsel,
agents, employees and all persons acting under, in concert with, or for them,
from proceeding with, consummating or
-21-
<PAGE> 24
closing the Tender Offer which will irreparably harm plaintiffs and the Class
without independent and adequate protection and representation of the public
shareholders;
C. Ordering defendants to supplement the Offer to Purchase;
D. Awarding plaintiffs and the Class compensatory or rescissory damages in
an amount to be determined;
E. Awarding plaintiffs the fees and expenses of this litigation including
reasonable fees of attorneys and experts; and
F. Awarding such order and further relief which the Court may deem just
and proper.
Dated: November 6, 1998
-22-
<PAGE> 25
ROSENTHAL MONHAIT GROSS
& GODDESS, P.A.
By:___________________________
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, Delaware 19899
(302) 656-4433
-and-
CHIMICLES & TIKELLIS LLP
One Rodney Square
Wilmington, DE 19899
(302) 656-2500
CO-LIAISON COUNSEL
FOR PLAINTIFFS
GOODKIND LABATON RUDOFF
& SUCHAROW LLP
100 Park Avenue
New York, NY 10017
(212) 907-0700
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
(212) 759-4600
BERNSTEIN LIEBHARD & LIFSHITZ,
LLP
10 East 40th Street
New York, NY 10016
(212) 779-1414
PLAINTIFFS' CO-LEAD COUNSEL
ABBEY GARDY & SQUITIERI LLP
212 East 39th Street
New York, NY 10016
(212) 889-3700
-23-
<PAGE> 26
BEATIE & OSBORN
599 Lexington Avenue
New York, NY 10022
(212) 888-9000
BERNSTEIN LITOWITZ BERGER
& GROSSMAN LLP
1285 Avenue of the Americas
New York, NY 10019
(212) 554-1400
HANZMAN CRIDEN KORGE CHAYKIN
PONCE & HEISE, P.A.
200 S. Biscayne Blvd, Ste. 2100
Miami, FL 33131
(305) 579-1222
MILBERG WEISS BERSHAD HYNES
& LERACH LLP
One Pennsylvania Plaza
New York, NY 10119
(212) 594-5300
WECHSLER MARWOOD HALEBIAN
& FEFFER LLP
488 Madison Avenue
New York, NY 10022
(212) 935-7400
-24-
<PAGE> 27
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 6th day of November, 1998, two copies of the
foregoing AMENDED CONSOLIDATED CLASS ACTION COMPLAINT were served, by hand
delivery, upon the following:
P. Clarkson Collins, Jr., Esquire
Morris James Hitchens & Williams
222 Delaware Avenue
Wilmington, Delaware 19899
Alan J. Stone, Esquire
Morris Nichols Arsht & Tunnell
1201 N. Market Street
Wilmington, Delaware 19899
-------------------------------
Norman M. Monhait
<PAGE> 1
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ----------------------------------------X
:
IN RE LIFE TECHNOLOGIES, INC. : CONSOLIDATED
SHAREHOLDERS LITIGATION : CIVIL ACTION NO. 16513
- ----------------------------------------X
NOTICE OF MOTION
TO: P. CLARKSON COLLINS, JR., ESQUIRE
MORRIS JAMES HITCHENS & WILLIAMS
222 DELAWARE AVENUE
WILMINGTON, DELAWARE 19899
ALAN J. STONE, ESQUIRE
MORRIS NICHOLS ARSHT & TUNNELL
1201 N. MARKET STREET
WILMINGTON, DELAWARE 19899
PLEASE TAKE NOTICE that plaintiffs will present the attached Motion For
Preliminary Injunction to the Court at the earliest convenience of the Court and
counsel.
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By:
----------------------------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, Delaware 19899-1070
(302) 656-4433
-and-
CHIMICLES & TIKELLIS LLP
One Rodney Square
Wilmington, Delaware 19801
(302) 656-2500
DELAWARE CO-LIAISON COUNSEL
FOR PLAINTIFFS
<PAGE> 2
GOODKIND LABATON RUDOFF
& SUCHAROW LLP
100 Park Avenue
New York, NY 10017
(212) 907-0700
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
(212) 759-4600
BERNSTEIN LIEBHARD & LIFSHITZ, LLP
10 East 40th Street
New York, NY 10016
(212) 779-1414
PLAINTIFFS' CO-LEAD COUNSEL
November 6, 1998
2
<PAGE> 3
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ----------------------------------------X
:
IN RE LIFE TECHNOLOGIES, INC. : CONSOLIDATED
SHAREHOLDERS LITIGATION : CIVIL ACTION NO. 16513
- ----------------------------------------X
MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs hereby move, pursuant to Court of Chancery Rule 65, for an
Order:
1. Preliminarily enjoining defendants and all persons acting in concert
with them from proceeding with, consummating or otherwise closing the tender
offer of Dexter Acquisition Delaware, Inc. to purchase all outstanding shares of
common stock of Life Technologies, Inc. ("Life") for $37.00 per share (the
"Tender Offer").
2. Requiring defendants to supplement the Offer to Purchase furnished to
Life's shareholders in connection with the Tender Offer by disclosing all
material facts and correcting the omissions described in Plaintiffs' Amended
Consolidated Class Action Complaint in this action.
The grounds for this motion are set forth in Plaintiffs' Amended
Consolidated Class Action Complaint and will be more fully
<PAGE> 4
set forth in plaintiffs' opening brief and other papers to be filed in support
of this motion.
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By:
----------------------------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, Delaware 19899-1070
(302) 656-4433
-and-
CHIMICLES & TIKELLIS LLP
One Rodney Square
Wilmington, Delaware 19801
(302) 656-2500
DELAWARE CO-LIAISON COUNSEL
FOR PLAINTIFFS
GOODKIND LABATON RUDOFF
& SUCHAROW LLP
100 Park Avenue
New York, NY 10017
(212) 907-0700
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
(212) 759-4600
BERNSTEIN LIEBHARD & LIFSHITZ, LLP
10 East 40th Street
New York, NY 10016
(212) 779-1414
PLAINTIFFS' CO-LEAD COUNSEL
November 6, 1998
-2-
<PAGE> 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 6th day of November, 1998, two copies of the
foregoing NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION were served, by
hand delivery, upon:
P. CLARKSON COLLINS, JR., ESQUIRE
MORRIS JAMES HITCHENS & WILLIAMS
222 DELAWARE AVENUE
WILMINGTON, DELAWARE 19899
ALAN J. STONE, ESQUIRE
MORRIS NICHOLS ARSHT & TUNNELL
1201 N. MARKET STREET
WILMINGTON, DELAWARE 19899
-------------------------------
Norman M. Monhait
<PAGE> 1
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ----------------------------------------X
:
IN RE LIFE TECHNOLOGIES, INC. : CONSOLIDATED
SHAREHOLDERS LITIGATION : CIVIL ACTION NO. 16513
- ----------------------------------------X
NOTICE OF MOTION
TO: P. CLARKSON COLLINS, JR., ESQUIRE
MORRIS JAMES HITCHENS & WILLIAMS
222 DELAWARE AVENUE
WILMINGTON, DELAWARE 19899
ALAN J. STONE, ESQUIRE
MORRIS NICHOLS ARSHT & TUNNELL
1201 N. MARKET STREET
WILMINGTON, DELAWARE 19899
PLEASE TAKE NOTICE that plaintiffs will present the attached Motion For
Expedited Proceedings to the Court at the earliest convenience of the Court and
counsel.
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By:
----------------------------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, Delaware 19899-1070
(302) 656-4433
-and-
CHIMICLES & TIKELLIS LLP
One Rodney Square
Wilmington, Delaware 19801
(302) 656-2500
DELAWARE CO-LIAISON COUNSEL
FOR PLAINTIFFS
<PAGE> 2
GOODKIND LABATON RUDOFF
& SUCHAROW LLP
100 Park Avenue
New York, NY 10017
(212) 907-0700
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
(212) 759-4600
BERNSTEIN LIEBHARD & LIFSHITZ, LLP
10 East 40th Street
New York, NY 10016
(212) 779-1414
PLAINTIFFS' CO-LEAD COUNSEL
November 6, 1998
-2-
<PAGE> 3
IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ----------------------------------------x
:
IN RE LIFE TECHNOLOGIES, INC. : CONSOLIDATED
SHAREHOLDERS LITIGATION : CIVIL ACTION NO. 16513
- ----------------------------------------x
MOTION FOR EXPEDITED PROCEEDINGS
Plaintiffs, by their attorneys, respectfully move the Court to schedule
their Motion for Preliminary Injunction, served and filed herewith, for a
hearing prior to December 1, 1998, the presently scheduled closing date for the
tender offer of Dexter Acquisition Delaware, Inc. ("Acquisition") to purchase
all of the outstanding shares of common stock of Life Technologies, Inc. ("Life"
or the "Company") at $37 per share (the "Tender Offer"). As grounds for this
motion, plaintiffs represent as follows:
1. Plaintiffs allege that they are stockholders of Life. They bring this
action on behalf of all Life stockholders, other than Dexter Corporation
("Dexter") which already owns approximately 51.5% of Life's outstanding shares,
contending that Dexter and the defendant directors of Life who are affiliated
with Dexter, have breached their fiduciary duties to plaintiffs and the proposed
class by (a) embarking on a coercive effort to compel Life's minority
shareholders to sell their Life stock to Dexter at an inadequate price, (b)
renouncing and abusing a process designed to attempt to assure transactional
fairness to Life's minority
-1-
<PAGE> 4
stockholders, (c) embarking on its acquisition effort at a time when it can seek
to acquire for itself the future value of Life's business not fully appreciated
in the market today, and (d) failing to include in the Offer to Purchase
disseminated to Life's shareholders in connection with the Tender Offer
information material to shareholders' decision of whether or not to tender their
stock. These allegations are particularized in Plaintiffs' Amended Consolidated
Class Action Complaint, served and filed herewith (the "Complaint").
2. Among other things, the Complaint alleges that Dexter embarked on an
effort to acquire the minority interest in Life at its unilaterally determined
price of $37.00 per share by constituting a special committee to consider its
offer, and then by tripling the compensation offered to the special committee
for its work. The Complaint further alleges that the special committee, the
members of which had more knowledge and expertise than the Dexter nominees on
Life's Board in the life sciences, which is the principal area of Life's
business, retained independent counsel (Wachtell Lipton Rosen & Katz) and
financial advisors (Goldman Sachs & Co.) and as a result of its review and
analysis of Life concluded that $37.00 per share was not a fair price for the
minority interest in Life. The Complaint alleges that Dexter refused to
negotiate with the special committee or its
-2-
<PAGE> 5
representatives, but rather dissolved the special committee and unilaterally
made the Tender Offer at issue.
3. The Offer to Purchase states that if, as a result of the Tender Offer,
Dexter becomes a 90% stockholder of Life, it will effect a short-form merger
cashing out the minority shares at $37.00 per share, but if Dexter becomes only
an 80% shareholder it will simply consider its options. That circumstance,
however, would likely result in the delisting of Life stock from NASDAQ,
followed by a decline in the market value of Life's stock. Life's minority
stockholders are, consequently, presented with a Hobson's choice of taking
$37.00 per share, or retaining their stock for an uncertain period of time in
which they have no prospect of receiving fair value.
4. The Complaint further alleges that the Offer to Purchase omits material
information particularly regarding the number, nature, stage in development, and
commercial prospects of products in Life's research and development pipeline
("R&D Pipeline"). The value of the R&D Pipeline constituted the principal area
of dispute between Dexter and the special committee and its advisors. In short,
the Complaint alleges that in connection with the Tender Offer, Life's minority
shareholders are being denied the opportunity to make a fully informed judgment.
5. Accordingly, plaintiffs seek a preliminary injunction against
consummation of the Tender Offer. This Court has
-3-
<PAGE> 6
previously held that a coercive tender offer lacking complete information
necessary to make an informed decision can constitute irreparable injury
sufficient to warrant preliminary injunctive relief. See, e.g., Eisenberg v.
Chicago Milwaukee Corp., Del. Ch., 537 A.2d 1051 (1987).
6. Since the Tender Offer is scheduled to close on December 1, 1998,
plaintiffs request that the Court hear their preliminary injunction motion
sufficiently prior to that date to permit a decision and Order if the Court is
persuaded that closing of the Tender Offer should be enjoined.
7. Plaintiffs have not previously applied for this relief.
WHEREFORE, plaintiffs respectfully request the Court to enter an Order in
the form attached hereto.
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A..
By:_________________________________________
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, Delaware 19899-1070
(302) 656-4433
Attorneys for Plaintiff
-and-
CHIMICLES & TIKELLIS LLP
One Rodney Square
Wilmington, Delaware 19801
(302) 656-2500
DELAWARE CO-LIAISON COUNSEL
FOR PLAINTIFFS
-4-
<PAGE> 7
GOODKIND LABATON RUDOFF
& SUCHAROW LLP
100 Park Avenue
New York, NY 10017
(212) 907-0700
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
(212) 759-4600
BERNSTEIN LIEBHARD & LIFSHITZ, LLP
10 East 40th Street
New York, NY 10016
(212) 779-1414
PLAINTIFFS' CO-LEAD COUNSEL
November 6, 1998
-5-
