=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
SCHEDULE 14D-1
(Amendment No. 1)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
----------------
TRIMAS CORPORATION
(Exact name of Subject Company)
MASCOTECH, INC.
MASCOTECH ACQUISITION, INC.
(Bidders)
----------------
Common Stock, $.01 Par Value
(Title of Class of Securities)
----------------
896215100
(CUSIP Number of Class of Securities)
----------------
David B. Liner, Esq.
MascoTech, Inc.
21001 Van Born Road
Taylor, Michigan 48180
(313) 274-7405
(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications on Behalf of Person(s) Filing Statement)
----------------
With Copies to:
David W. Ferguson, Esq. Jerome M. Schwartz, Esq.
Davis Polk & Wardwell Dickinson, Wright, Moon, Van Dusen & Freeman
450 Lexington Avenue 500 Woodward Avenue, Suite 4000
New York, New York 10017 Detroit, Michigan 48226
(212) 450-4000 (313) 223-3628
=============================================================================
This Amendment No. 1 (this "Amendment") amends and supplements
the Tender Offer Statement on Schedule 14D-1 originally filed on December 17,
1997 by MascoTech, Inc., a Delaware corporation ("Parent"), and MascoTech
Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("Purchaser"), relating to the offer by Purchaser to purchase all of
the issued and outstanding shares (the "Shares") of common stock, $.01 par
value per share, of TriMas Corporation, a Delaware corporation, at a price of
$34.50 per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated December 17, 1997 and in
the related Letter of Transmittal.
All capitalized terms used in this Amendment without definition
have the meanings attributed to them in the Schedule 14D-1.
The item of the Schedule 14D-1 set forth below is hereby
amended by adding the following:
Item 11. Material to be Filed as Exhibits.
(g)(3) Complaint filed in Charter Capital Corp. v. Manoogian et al.
(Court of Chancery in the State of Delaware in and for New Castle County,
filed December 11, 1997).
(g)(4) Complaint filed in Caruso v. TriMas Corporation et al.
(Court of Chancery of the State of Delaware in and for New Castle County,
filed December 11, 1997).
(g)(5) Complaint filed in Barsky v. TriMas Corporation et al.
(Court of Chancery of the State of Delaware in and for New Castle County,
filed December 11, 1997).
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Amendment is true,
complete and correct.
December 22, 1997 MASCOTECH, INC.
By: /s/ David B. Liner
----------------------------------------------
Name: David B. Liner
Title: Vice President and Corporate Counsel
MASCOTECH ACQUISITION, INC.
By: /s/ David B. Liner
----------------------------------------------
Name: David B. Liner
Title: Secretary
<PAGE>
EXHIBIT INDEX
Exhibit No.
- - -----------
(g)(3) Complaint filed in Charter Capital Corp. v. Manoogian et al.
(Court of Chancery in the State of Delaware in and for New
Castle County, filed December 11, 1997).
(g)(4) Complaint filed in Caruso v. TriMas Corporation et al.
(Court of Chancery of the State of Delaware in and for New
Castle County, filed December 11, 1997).
(g)(5) Complaint filed in Barsky v. TriMas Corporation et al.
(Court of Chancery of the State of Delaware in and for New
Castle County, filed December 11, 1997).
Exhibit (g)(3)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTRY
- - - - - - - - - - - - - - - - - - - - - - - - - - -x
CHARTER CAPITAL CORP.,
:
Plaintiff, : CIVIL ACTION NO. 16085-NC
v. :
RICHARD A. MANOOGIAN, HERBERT :
S. AMSTER, EUGENE A. GARGARO,
JR., JOHN A. MORGAN, BRIAN P. :
CAMPBELL, HELMUT F. STERN,
MASCOTECH, INC., and TRIMAS :
CORPORATION
Defendants. :
- - - - - - - - - - - - - - - - - - - - - - - - - - -x
CLASS ACTION COMPLAINT
----------------------
Plaintiff, by its attorneys, for its Complaint alleges, upon
information and belief, except as to the allegations contained in paragraph
2, which plaintiff alleges upon knowledge, as follows:
NATURE OF ACTION
----------------
1. Plaintiff brings this class action on behalf of itself and all
other shareholders of defendant Trimas Corporation ("Trimas" or the
"Company") similarly situated (the "Class") to enjoin defendants from
effectuating an unfair tender offer by Mascotech, Inc. ("Mascotech"),
which along with related parties owns or controls approximately 45% of
Trimas' total shares outstanding as well as a majority of the Board of
directors (the "Board"), designed to force the sale in a tender offer the
public minority shareholders' equity interest in Trimas at a grossly
inadequate and unfair price of $34.50 per common share. As set forth
below, pursuant to the proposed tender offer, Mascotech will acquire the
remaining equity interest in the Company. Moreover, the tender offer
proposal is manifestly unfair as it is substantially below the fair market
value of the Company on a private market basis and/or as a multiple of said
value.
PARTIES
-------
2. Plaintiff Charter Capital Corp. at all relevant times owned
shares of Trimas common stock.
3. Defendant Trimas is a Delaware corporation with its principal
executive offices located at 315 East Eisenhower Parkway, Ann Arbor,
Michigan 48108. Trimas manufactures industrial container closures,
specialty dispensing products, pressurized gas cylinders and other
products.
4. Mascotech manufactures custom engineered industrial products for
the transportation, architectural, energy and defense industries. As of
March 31, 1997, Mascotech and related entities owned or controlled
approximately 16.8 million shares of Trimas common stock, or 41.2% of the
total shares outstanding.
5. At all relevant times herein, defendant Richard Manoogian
("Manoogian") was Chairman of the Board and Chief Executive of: Trimas,
Mascotech and Masco, which spun-off Mascotech to Masco shareholders in July
1984. As of March 31, 1997, Manoogian owned or controlled 1,801,852 shares
of Trimas common stock, or 4.4% of the total common shares outstanding, and
78 million shares of Mascotech common stock, or 12% of the total Mascotech
common shares outstanding.
6. At all relevant times herein, defendant Eugene A. Gargaro, Jr.
("Gargaro") was a member of the Board, as well as a member of the Boards of
Mascotech and Masco as of March 31, 1997, Gargaro owned or controlled
101,876 shares of Trimas common stock and 652,920 shares of Mascotech
common stock, or 2% of the total common shares outstanding.
7. At all relevant times herein, Defendant Brian P. Campbell
("Campbell") was President of Trimas and a member of the Board. As of
March 31, 1997, Campbell owned or controlled 1,414,753 shares of Trimas
common stock, or 4.4% of the total common shares outstanding.
8. At all relevant times herein, the following Individual Defendants
were also members of the Board of Trimas and/or committees thereof as
follows:
(a) Defendant John A. Morgan ("Morgan") was a member of the
Board, as well as a member of the Boards of Mascotech and Masco.
(b) Defendant Helmut F. Stern ("Stern") was a member of the
Board.
(c) Defendant Herbert S. Amster ("Amster") was a member of
the Board.
9. By virtue of their positions as directors and/or senior executive
officers of Trimas and their exercise of control over its business and
corporate affairs, defendants Manoogian, Gargaro, Campbell, Morgan, Stern
and Amster (collectively the "Individual Defendants") had, and at all
relevant times, the power to control and influence, and did control and
influence, and cause Trimas to engage in the practices complained of
herein. Each Individual Defendant owes Trimas and its public stockholders
fiduciary obligations and is required to: use his ability to control and
manage Trimas in a fair, just and equitable manner; maximize shareholder
value; act in furtherance of the best interests of Trimas and its public
stockholders; govern Trimas in such a manner as to heed the expressed views
of its public shareholders; refrain from abusing his or her position of
control; provide full disclosure to the public shareholders; and not favor
his or her own or any other party's interests at the expense of Trimas and
its public shareholders.
10. At all relevant times herein, Mascotech and related entities
owned and controlled approximately 45 percent of the total outstanding
shares of Trimas common stock. Said defendants have failed to discharge
their fiduciary duties to plaintiff and the other members of the Class
because of the domination and control that it exercises over the affairs of
Trimas, along with its representation on the Company's six member Board.
As a result of this domination and control, said defendants have decided to
sell to the remaining outstanding shares of Trimas at a grossly inadequate
price to the detriment of the other public shareholders.
CLASS ACTION ALLEGATIONS
------------------------
11. Plaintiff brings this action pursuant to Rule 23 of the Rules of
the Court of Chancery, for declaratory, injunctive and other relief on its
own behalf and as a class action, on behalf of all public stockholders of
Trimas (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, who are being deprived of their equity
interest in Trimas and the opportunity to maximize the value of their
Trimas shares by the wrongful acts of the defendants described herein.
12. 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 31, 1997, Trimas had approximately 41,326,047 shares of
common stock duly issued and outstanding, which traded on the New York
Stock Exchange, and were owned by thousands of shareholders. 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 and that predominate over any questions affecting any
individual members. The common questions include, inter alia, the
following:
(i) whether the defendants have engaged in conduct
constituting unfair dealing to the detriment of the public
stockholders of Trimas;
(ii) whether the proposed acquisition proposal by
Mascotech of $34.50 per common share is unfair to the public
stockholders of Trimas because it does not constitute a fair
price for the shares of the Company; and
(iii) whether the defendants have breached their
fiduciary and common law duties owed by them to plaintiff and
the other members of the Class.
(c) The claims of plaintiff are 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 an 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 that would 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.
(g) Plaintiff anticipates that there will be no difficulty in the
management of this litigation. A class action is superior to other
available methods for the fair and efficient adjudication of this
controversy.
CLAIM FOR RELIEF
----------------
13. Trimas is a diversified proprietary products company with
leadership positions in commercial, industrial and consumer niche markets.
Trimas' operating businesses manufacture industrial container closures,
specialty dispensing and packaging products, pressurized gas cylinders,
speciality industrial gaskets, towing systems products, specialty
fasteners, specialty products for fiberglass insulation, specialty tapes
and precision cutting tools.
14. On July 30, 1997, the Company reported "record" for its second
quarter 1997 fiscal results. Results were better than expected, with
reported revenue increasing by 14.1% to $182.8 million, and net income up
21% to $21.6 million, or $.48 per share. In announcing these results, the
Company stated:
Based on the Company's expectation of continuing modest
economic improvement, ongoing operating efficiencies, market
share initiatives and new product introductions, as well as
contributions from companies acquired in 1996, management
believes that Trimas should achieve record sales and earnings
in 1997.
15. In anticipation of Trimas' outstanding second quarter results,
the investment banking firm of Lehman Brothers, Inc. ("Lehman") issued a
report with an "outperform" recommendation on the Company's stock. The
report took notice of the Company's "healthy end markets" and a "pickup in
EPS [earnings per share] momentum". The report went on to state:
Looking forward, we believe that a pickup in EPS momentum is
coming at Trimas, along with a renewal of acquisition
activity.... It appears that other investors agree with this
view: the shares are up 24% year to date (through June 25),
outperforming the brisk 21% mark set by the S&P Industrials.
We rate Trimas shares 2 Outperform, based on their superior EPS
growth history and the outlook for improved EPS momentum over
the next three to five years.... From 1998 to 1994, compound
annual EPS growth at Trimas was 22%, with a fair amount of that
growth driven by acquisitions. However, with the absence of
acquisition activity in 1994 and 1995, growth rates slowed to
10%, and the shares pulled back in 1994 and 1995. At current
prices, we think the shares are an attractive investment for
long-term investors (emphasis added).
16. On November 3, 1997, the Company continued its string of
achieving "record" results, by reporting its results for its third quarter
of 1997 ended September 30, 1997. According to the Company, revenue
increased 13% to 168.6 million, with net income increasing 21% to $17.4
million, or $42 per share. Once again, the Company informed investors that
Trimas should achieve "record sales and earnings in 1997."
17. On December 11, 1997, the Company and Mascotech jointly
announced that they had executed a definitive merger agreement pursuant to
which Mascotech will purchase for $34.50 per share in cash all outstanding
shares of Trimas not already owned by Mascotech, for an aggregate of
approximately $900 million. The merger agreement provides that Mascotech
will commence a tender offer within five business days. The merger
agreement was approved by the Board of Directors of Trimas and Mascotech
following, in each case, the unanimous recommendation of the merger to the
Board of each company by a "special committee" of alleged independent
Directors of each respective company.
18. Because Mascotech has an overwhelming controlling interest in
the Company's outstanding stock, no third party will likely bid for Trimas.
Moreover, none of the directors of Trimas, all of whom are members of,
affiliated with or beholden to Mascotech, can meaningfully consider the
proposed tender offer or engage in the equivalent of arm's-length
bargaining with Mascotech. Mascotech will be able to proceed with the
tender offer without an auction or other type of market check to maximize
value for Trimas' public shareholders. Moreover, by virtue of its control
and domination of Trimas, Mascotech has unique knowledge of the Company and
has access to information denied or unavailable to the public.
19. Mascotech timed the announcement of the tender offer to place an
artificial lid or cap on the market price for Trimas' common stock to
enable them to acquire the minority stock at the lowest possible price.
20. In view of Mascotech's control of Trimas, it is unfair and in
violation of defendants' fiduciary duties to consummate the tender offer
without first obtaining a recommendation and input by a truly independent
representative of the public stockholders or obtaining the majority
approval of the public stockholders.
21. By virtue of the acts and conduct alleged herein, the defendants
are carrying out a preconceived plan whereby Mascotech will acquire the
minority public shares of Trimas pursuant to a price that is grossly
inadequate and intrinsically unfair to Trimas public shareholders, is
substantially below true value and is a product of defendants' conflicts of
interest. As a result, the public common stockholders of Trimas will be
wrongfully deprived of their valuable investment in the Company and all of
its present and continuing profitability and will receive, in return for
their investment, grossly inadequate consideration.
22. The proposed tender offer constitutes an improper and unlawful
attempt by the defendants to cash-out unfairly the minority public
shareholders of Trimas.
23. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the other members of the
Class, and will succeed in consummating an unfair tender offer by virtue of
the unfair dealing complained of herein, all to the irreparable harm of the
Class.
24. Plaintiff and the other members of the Class have no adequate
remedy at law.
WHEREFORE, plaintiff demands judgment and relief in his favor of the
Class and against defendants, as follows:
A. Declaring that this action be certified as a proper class action
and certifying plaintiff as a class representative;
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 other members of the class;
C. Preliminary 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 closing the proposed
tender offer that will irreparably harm plaintiff and the Class;
D. In the event the tender offer is consummated, rescinding it and
setting it aside and/or granting rescissory damages;
E. Awarding compensatory damages in an amount to be determined upon
the proof submitted to the Court.
F. Awarding the costs and disbursements of this action;
G. Awarding plaintiff counsel fees; and
H. Awarding such other and further relief which the Court may deem
just and proper.
Dated: December 11, 1997
ROSENTHAL MONHAIT GROSS &
GODDESS, P.A.
By: /s/ Norman M. Monhait
-----------------------------
Norman Monhait
1401 Mellon Bank Center
919 Market Street
Wilmington, DE 19801
(302) 656-4433
OF COUNSEL:
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
Vincent R. Cappucci
1285 Avenue of the Americas
New York, New York 10019
(212) 554-1400
Exhibit (g)(4)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
ROSEANNE CARUSO, :
:
Plaintiff, : C. A. NO. 16086-NC
:
-against- :
:
TRIMAS CORPORATION, RICHARD A. :
MANOOGIAN, HERBERT S. AMSTER, :
EUGENE A. GARGARO, JR., JOHN A. :
MORGAN, BRIAN P. CAMPBELL, :
HELMUT F. STERN, AND MASCOTECH, :
INC., :
:
:
Defendants. :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
CLASS ACTION COMPLAINT
----------------------
Plaintiff, by her attorneys, alleges upon information and belief,
except as to paragraph 1 which plaintiff alleges upon knowledge, as
follows:
1. Plaintiff Roseanne Caruso is a stockholder of defendant TriMas
Corporation ("TriMas" or the "Company").
2. Defendant TriMas is a corporation duly organized and existing
under the laws of the State of Delaware, with its principal offices located
at 315 East Eisenhower Parkway, Ann Arbor, Michigan 48108. TriMas is a
diversified manufacturer of industrial container closures, specialty
dispensing and packaging products, pressurized gas cylinders, specialty
industrial gaskets, towing systems products, specialty fasteners and other
products, sold in commercial, industrial and consumer niche markets. As of
October 31, 1997, there were over 41 million shares of TriMas common stock
outstanding.
3. Defendant MascoTech, Inc., ("MascoTech") is a corporation duly
organized and existing under the laws of the State of Delaware with its
principal offices located at 21001 Van Born Road, Taylor, Michigan 48180.
MascoTech manufactures custom engineered industrial products for the
transportation, architectural, energy and defense industries, including
engine components, modular office panels, cartridge cases and security
grills. MascoTech owns approximately 15.2 million shares of TriMas stock,
representing approximately 37 percent of the Company's total shares
outstanding. In addition, certain MascoTech affiliates own approximately
3.4 million shares of TriMas stock, representing approximately 8 percent of
the Company's total shares outstanding.
4. Defendant Richard A. Manoogian is the Chairman of the
Company's Board of Directors. Manoogian is also the Chairman and Chief
Executive Officer of MascoTech.
5. Defendant Herbert S. Amster is a Director of TriMas.
6. Defendant Eugene A. GarGaro, Jr. is a Director of TriMas and
the Secretary of MascoTech.
7. Defendant John A Morgan is a Director of TriMas and a Director
of MascoTech.
8. Defendant Brian P. Campbell is Director of TriMas and the
Company's President.
9. Defendant Helmut F. Stern is a Director of TriMas.
10. The defendants in paragraphs 4 through 9 are sometimes
collectively referred to herein as the "Individual Defendants".
11. The Individual Defendants as officers and/or directors of
TriMas have a fiduciary relationship and responsibility to plaintiff and
the other common public stockholders of TriMas and owe to plaintiff and the
other class members the highest obligations of good faith, loyalty, fair
dealing, due care and candor.
CLASS ACTION ALLEGATIONS
------------------------
12. Plaintiff brings this action on her own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of Chancery, on
behalf of all common stockholders of TriMas, or their successors in
interest, who are being and will be harmed by defendants' actions described
below (the "Class"). Excluded from the Class are defendants herein and any
person, firm, trust, corporation, or other entity related to or affiliated
with any of defendants.
13. This action is properly maintainable as a class action
because:
a. The Class is so numerous that joinder of all members is
impracticable. There are hundreds of TriMas stockholders of record who are
located throughout the United States;
b. There are questions of law and fact that are common to
the Class including: whether defendants have engaged or are continuing to
act in a manner calculated to benefit themselves at the expense of the
TriMas public stockholders; and whether plaintiff and the other Class
members would be irreparably damaged if the defendants are not enjoined in
the manner described below;
c. Plaintiff is committed to prosecuting this action and
has retained competent counsel experienced in litigation of this nature.
The claims of plaintiff are typical of the claims of the other members of
the Class and plaintiff has the same interests as the other members of the
Class. Accordingly, plaintiff is an adequate representative of the Class
and will fairly and adequately protect the interests of the Class; and
d. The defendants have acted or refused to act on grounds
generally applicable to the Class, thereby making appropriate final
injunctive relief with respect to the Class as a whole:
CLAIM FOR RELIEF
----------------
14. TriMas is a Delaware corporation that manufactures industrial
container closures, specialty dispensing and packaging products,
pressurized gas cylinders, specialty industrial gaskets, towing systems
products, specialty fasteners and other products, sold in commercial,
industrial and consumer niche markets. As of October 31, 1997, there were
over 41 million shares of TriMas common stock outstanding.
15. MascoTech currently owns approximately 37 percent of the
outstanding common stock of TriMas, and MascoTech affiliates currently own
an additional 8 percent of the Company's outstanding common stock.
16. On December 11, 1997, it was reported that the respective
boards of TriMas and MascoTech agreed to MascoTech's acquisition of the
remaining shares of TriMas common stock it does not already own for $34.50
per share in cash.
17. As set forth above, TriMas has 6 board members whose
loyalties are, at best, divided in the instant transaction and cannot be
expected to act in the best interest of TriMas's stockholders.
18. The purpose of the proposed acquisition is to enable
MascoTech to acquire the shares of TriMas it does not already own, as well
as TriMas's valuable assets for MascoTech's own benefit at the expense of
TriMas's public stockholders.
19. The proposed acquisition comes at a time when TriMas has
performed well and MascoTech expects it will continue to perform well
because it is already well-positioned to do so.
20. MascoTech has timed this transaction to capture TriMas's
future potential and use it to their own ends without paying an adequate or
fair price for the Company's remaining shares.
21. Amidst this backdrop of positive and improving financial
position and increased prospects for growth, MascoTech made an offer at
$34.50 for each share of TriMas common stock. The offer made by MascoTech
- - -- and already accepted by the TriMas's Board of Directors -- represents a
woefully inadequate premium over the current price of TriMas common stock.
22. The Individual Defendants and MascoTech are in a position of
control and power over the TriMas's stockholders and have access to
internal financial information about TriMas, its true value, expected
increase in true value and the benefits to MascoTech of 100 percent
ownership of TriMas to which plaintiff and the Class members are not privy.
Defendants are using their positions of power and control to benefit
MascoTech in this transaction, to the detriment of the TriMas common
stockholders.
23. In proposing the merger, MascoTech and the Individual
Defendants have committed or threatened to commit the following acts to the
detriment and disadvantage of TriMas public stockholders:
a. They have undervalued the TriMas common stock by
ignoring the full value of its assets and future prospects. The proposed
merger consideration does not reflect the value of TriMas's valuable
assets; and
b. They timed the announcement of the proposed buyout to
place an artificial lid on the market price of TriMas's common stock to
justify an exchange ratio which is unfair to TriMas's public stockholders.
24. The Individual Defendants have clear and material conflicts
of interest and are acting to better the interests of MascoTech and
themselves at the expense of TriMas's public stockholders.
25. In light of the foregoing, the Individual Defendants must, as
their fiduciary obligations require:
o undertake an appropriate evaluation of TriMas's worth as
an acquisition candidate;
o act independently so that the interests of TriMas's public
stockholders will be protected, including but not
limited to the retention of independent advisors and
the appointment of a Special Committee of some or all
of the members of the TriMas's board to consider the
MascoTech offer and negotiate with MascoTech on behalf
of TriMas's minority stockholders;
o adequately ensure that no conflicts of interest exist
between defendants' own interests and their fiduciary
obligation to maximize stockholder value or, if such
conflicts exist, to ensure that all conflicts be
resolved in the best interests of TriMas's public
stockholders; and
o if a merger transaction is to go forward, require that it
be approved by a majority of the TriMas's
stockholders.
26. As a result of defendants' failure to take such steps to
date, plaintiff and the other members of the Class have been and will be
damaged in that they have not and will not receive their proportionate
share of the value of the Company's assets and business, and have been and
will be prevented from obtaining a fair price for their common stock.
27. Defendants, in failing to disclose the material non-public
information in their possession as to the value of TriMas's assets, the
full extent of the future earnings potential of TriMas and its expected
increase in profitability, are engaging in self-dealing, are not acting in
good faith toward plaintiff and the other members of the Class, and have
breached and are breaching their fiduciary duties to the member of the
Class.
28. As a result of the defendants' unlawful actions, plaintiff
and the other members of the Class will be irreparably harmed in that they
will not receive their fair portion of the value of TriMas's assets and
business and will be prevented from obtaining the real value of their
equity ownership of the Company. Unless the proposed merger is enjoined by
the Court, defendants will continue to breach their fiduciary duties owed
to plaintiff and the members of the Class, will not engage in arm's length
negotiations on the merger terms, and will not supply to TriMas's public
stockholders sufficient information to enable them to cast informed votes
on the proposed merger and may consummate the proposed merger, all to the
irreparable harm of the members of the Class.
29. Plaintiff and the other members of the Class have no adequate
remedy at law.
WHEREFORE, plaintiff prays for judgment and relief as follows:
A. Ordering that this action may be maintained as a class action
and certifying plaintiff as a Class representative;
B. Declaring that defendants have breached their fiduciary and
other duties to plaintiff and the other members of the Class;
C. Entering an order requiring defendants to take the steps set
forth hereinabove;
D. Preliminary and permanently enjoining the defendants and their
counsel, agents, employees and all persons acting under, in concert with,
or for them, from proceeding with, consummating or closing the proposed
merger transaction;
E. In the event the proposed merger is consummated, rescinding it
and setting it aside;
F. Awarding compensatory damages against defendants individually
and severally in an amount to be determined at trial, together with
prejudgment interest at the maximum rate allowable by law;
F. Awarding costs and disbursements, including plaintiff's
counsel's fees and experts' fees; and
H. Granting such other and further relief as to the Court may
seem just and proper.
Dated: December 11, 1997
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By: /s/ Norman M. Monhait
---------------------------------------
Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899-1070
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
FARUQI & FARUQI, LLP
415 Madison Avenue, 21st Floor
New York, New York 10017
(212) 986-1074
ROBERT C. SUSSER, P.C.
6 East 43rd Street, Suite 1900
New York, New York 10017-4608
(212) 808-0298
Exhibit (g)(5)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- - - - - - - - - -- - - - - - - - - - - - - - - - - - - -x
BETTY BARSKY, :
:
Plaintiff, : C. A. No. 16087-NC
:
v. :
:
TRIMAS CORPORATION; RICHARD A. :
MANOOGIAN; BRIAN P. CAMPBELL; :
JOHN A. MORGAN; EUGENE A. :
GARGARO, JR.; HELMUT F. STERN, :
HERBERT S. AMSTER and :
MASCOTECH, INC., :
:
Defendants. :
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COMPLAINT
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Plaintiff, by her attorneys, alleges upon information and belief,
except as to paragraph 1 which is alleged upon personal knowledge, as
follows:
THE PARTIES
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1. Plaintiff Betty Barsky is the owner of common stock of TriMas
Corp. ("TriMas" or the "Company") and has been the owner of such shares
continuously since prior to the wrongs complained of herein.
2. Defendant TriMas is a corporation duly existing and organized
under the laws of the State of Delaware, with its principal offices located
at 315 East Eisenhower Parkway, Ann Arbor, Michigan 48108. The Company is
a leading diversified proprietary products company which makes a variety of
products including fasteners, towing systems and precision cutting tools
for the commercial, industrial, and consumer markets. TriMas is and at all
times relevant hereto was listed on the New York Stock Exchange ("NYSE").
3. Defendant Richard A. Manoogian ("Manoogian") is and at all
times relevant hereto has been Chairman of the Board at TriMas. In
addition, Manoogian holds the positions of Chairman and Chief Executive
Officer at defendant MascoTech Inc. ("MascoTech"), a Delaware corporation.
Pursuant to the terms of the proposed Merger (defined below), Manoogian
will become Chairman of the merged entity.
4. Defendant Brian P. Campbell ("Campbell") is and at all times
relevant hereto has been a director and President of TriMas. Pursuant to
the terms of the proposed Merger, Campbell will become Co-chief Operating
Officer of the merged entity.
5. Defendant John A. Morgan ("Morgan") is and at all times
relevant hereto has been a director of TriMas. In addition, Morgan is and
has been at all times relevant hereto a director of MascoTech.
6. Defendant Eugene A. Gargaro, Jr. ("Gargaro") is and at all
times relevant hereto has been a director of TriMas. In addition, Gargaro
is and at all times relevant hereto has been a director of MascoTech and
Vice President and Secretary at Masco Corporation.
7. Defendants Helmut F. Stern and Herbert S. Amster are and at
all times relevant hereto have been directors of TriMas.
8. The defendants referred to in paragraphs 3 through 7 are
collectively referred to herein as the "Individual Defendants".
9. By reason of the above Individual Defendants' positions with
the Company as officers and/or directors, said individuals are in a
fiduciary relationship with plaintiff and the other public stockholders of
TriMas, and owe plaintiff and the other members of the class the highest
obligations of good faith, fair dealing, due care, loyalty and full, candid
and adequate disclosure.
CLASS ACTION ALLEGATIONS
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10. Plaintiff brings this action on her own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of Chancery, on
behalf of herself and holders of TriMas common stock (the "Class").
Excluded from the Class are defendants herein and any person, firm, trust,
corporation, or other entity related to or affiliated with any of the
defendants.
11. This action is properly maintainable as a class action.
12. The Class is so numerous that joinder of all members is
impracticable. As of December 11, 1997, there were approximately 41
million shares of TriMas common stock outstanding.
13. There are questions of law and fact which are common to the
Class, including, inter alia, the following:
(a) whether defendants have engaged in conduct constituting
unfair dealing to the detriment of the Class;
(b) whether the merger is grossly unfair to the Class;
(c) whether defendants are engaging in self-dealing to
benefit themselves;
(d) whether plaintiff and the other members of the Class
would be irreparably damaged were the transactions complained of herein
consummated; and
(e) whether defendants have breached their fiduciary and
other common law duties owed by them to plaintiff and the other members of
the Class.
14. Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature.
Plaintiff's claims are typical of the claims of the other members of the
Class and plaintiff has the same interests as the other members of the
Class. Accordingly, plaintiff is an adequate representative of the Class
and will fairly and adequately protect the interests of the Class.
15. Plaintiff anticipates that there will be no difficulty in the
management of this litigation.
16. Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the Class as a whole.
SUBSTANTIVE ALLEGATIONS
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17. This action seeks to enjoin the consummation of, or in the
alternative, damages resulting from, a merger of TriMas and MascoTech.
Pursuant to the agreement between TriMas and MascoTech, MascoTech will
acquire the remaining shares of TriMas that it does not already own. As of
December 11, 1997, MascoTech owns approximately 15.2 million shares of
TriMas, or 37% of TriMas' outstanding shares. Additionally, MascoTech
affiliates own 3.4 million TriMas shares, constituting an additional 8%.
MascoTech obtained its shares from TriMas beginning in 1988 in exchange for
various businesses and cash.
18. Under the terms of the merger agreement, MascoTech will pay
$34.50 in cash for each TriMas share, or a 13% premium to the December 10,
1997 closing price of TriMas of $30.625. The agreement is subject to a
majority of the 31.9 million outstanding shares that MascoTech does not own
being tendered. The tender offer will begin within five business days and
MascoTech will acquire any TriMas shares not tendered for the same price in
a second-step merger.
19. If the merger is completed, the combined company will retain
the MascoTech name and will have annual sales of about $1.6 billion.
Defendant Manoogian, currently chairman and chief executive of MascoTech
and chairman of TriMas, will be the chairman of the combined company.
20. The merger consideration to be paid to Class members is
unconscionable, unfair and grossly inadequate because, among other things:
(a) the consideration agreed upon did not result from an
appropriate consideration of the value of TriMas as the Individual
Defendants were presented with, and asked to evaluate, the proposed merger
without any attempt to sufficiently ascertain the true value of TriMas
through open bidding or a "market check" mechanism;
(b) the price received by TriMas shareholders does not
reflect an adequate premium considering that:
i. the intrinsic value of TriMas common stock is
materially in excess of the amount offered giving due consideration to the
Company's continuing economic improvement, ongoing operating efficiencies,
market share initiatives, and varied product offerings;
ii. TriMas has recorded record sales and earnings in
1996 and for each of the first three quarters of fiscal 1997;
iii. TriMas has predicted record sales and earnings for
the remainder of 1997.
21. The Individual Defendants have thus far failed to announce
any active auction or open bidding procedures best calculated to maximize
shareholder value and have, instead, agreed to the merger which will only
serve to inhibit the maximization of shareholder value with a closely
affiliated company.
22. The defendants have violated their fiduciary duties owed to
the public shareholders of TriMas and have acted to put their personal
interests ahead of the interests of TriMas' shareholders. As part of the
merger agreement, defendants have secured lucrative contracts with the
combined company and have used their positions as shareholders, directors
and management for the purpose of benefitting themselves to the detriment
of plaintiff and other members of the Class.
23. For example, pursuant to the merger, Defendant Manoogian will
become Chairman of the combined company. In addition, Defendant Campbell
will hold the position of Co-Chief Operating Officer.
24. The Individual Defendants were and are under a duty:
(a) to fully inform themselves before taking, or agreeing to
refrain from taking, action;
(b) to elicit, promote, investigate, consider, evaluate and
inform themselves with respect to reasonable alternative transactions
and/or bona fide offers for the Company;
(c) to act in the interests of the equity owners;
(d) not to erect unreasonable barriers to perceived threats
of an acquisition of the Company, or of control of the Company, by a third
party;
(e) not to act on their own personal self-interest or in the
personal interest of other board members;
(f) to maximize shareholder value;
(g) to obtain the best financial and other terms when the
Company's independent existence will be materially altered by a
transaction;
(h) to establish a process designed to obtain the best
possible transaction; to assure that a "level playing field" exists when
more than one bidder for the Company emerges, and not to favor one bidder
over another during the "auction" process unless it is designed to assure
and is reasonably related to achieving the best possible price;
(i) to act with complete candor in communications with the
shareholders and to ensure that their statements are true and complete in
all material respects and are not materially misleading; and
(j) to act in accordance with their fundamental duties of
care and loyalty.
25. In connection with the conduct described herein, the
Individual Defendants violated each of their fiduciary duties identified in
paragraph 26 above in the following manner:
(a) in failing to fully inform themselves about alternative
acquisition proposals;
(b) in placing obstacles in the way of alternative
acquisition proposals the purpose, intent and effect of which was to
thwart, delay and/or impede competing proposals;
(c) by failing and refusing to enter into negotiations or
discussions with bona fide alternative bidders for TriMas.
26. By the acts, transactions and courses of conduct alleged
herein, defendants, individually and as part of a common plan and scheme or
in breach of their fiduciary duties to plaintiff and the other members of
the Class, are attempting unfairly to deprive plaintiff and other members
of the Class of the true value of their investment in TriMas.
27. In contemplating the proposed transaction, the defendants
have violated their fiduciary duties owed to the public shareholders of
TriMas and have acted to put their personal interests ahead of those of
TriMas' public stockholders. Defendants are using their positions as
shareholders, directors and management for the purpose of benefitting
themselves to the detriment of plaintiff and other members of the Class.
28. TriMas' shareholders will, if the transaction is consummated,
be deprived of the opportunity for substantial gains which the Company may
realize.
29. The defendants have not, in accordance with their fiduciary
duties:
(a) acted independently so that the interests of TriMas'
public shareholders would be protected;
(b) adequately ensured that no conflicts of interest exist
or if such conflicts exist to ensure that all conflicts would be resolved
in the best interests of TriMas' public shareholders; and
(c) taken all appropriate steps to enhance TriMas' value and
attractiveness as a merger acquisition, restructuring or recapitalization
candidate.
30. The defendants have violated their fiduciary duties by
entering into a transaction with MascoTech without regard to the fairness
of the transaction to TriMas' public shareholders.
31. Because the Individual Defendants dominate and control the
business and corporate affairs of TriMas, and are in possession of private
corporate information concerning TriMas' assets, businesses and future
prospects, there exists an imbalance and disparity of knowledge and
economic power between them and the public stockholders of TriMas which
makes it inherently unfair for them to pursue any proposed transaction
wherein they will reap disproportionate benefits to the exclusion of other
means of maximizing stockholder value.
32. By reason of the foregoing acts, practices and course of
conduct, the defendants have failed to exercise ordinary care and diligence
in the exercise of their fiduciary obligations toward plaintiff and the
other TriMas' public stockholders.
33. As a result of the actions of defendants, plaintiff and the
other members of the Class has been and will be damaged in that they have
not and will not receive their fair proportion of the value of TriMas'
assets and businesses and will be prevented from obtaining appropriate
consideration for their shares of TriMas' common stock.
34. Unless enjoined by this Court, the defendants will continue
to breach their fiduciary duties owed to plaintiff and the other members of
the Class, and may consummate the proposed transaction which will exclude
the Class from its fair proportionate share of TriMas' valuable assets and
businesses, and/or benefit them in the unfair manner complained of herein,
all to the irreparable harm of the Class, as aforesaid.
35. Plaintiff and the Class have no adequate remedy at law.
WHEREFORE, plaintiff demands judgment and preliminary and
permanent relief, including injunctive relief, in her favor and in favor of
the Class and against defendants as follows:
A. Declaring that this action is properly maintainable as a
class action;
B. Declaring and decreeing that the merger agreement was
entered into in breach of the fiduciary duties of the Individual Defendants
and is therefore unlawful and unenforceable;
C. Enjoining defendants from proceeding with the merger
agreement;
D. Enjoining defendants from consummating the merger, or a
business combination with a third party, unless and until the Company
adopts and implements a procedure or process, such as an auction, to obtain
the highest possible price for the Company;
E. Directing the Individual Defendants to exercise their
fiduciary duties to obtain a transaction which is in the best interests of
shareholders until the process for the sale or auction of the Company is
completed and the highest possible price is obtained;
F. Declaring that the Individual Defendants' failure and
refusal to negotiate in good faith with all offerors or potential offerors
for TriMas, and the placement of unreasonable obstacles are breaches of the
directors' respective fiduciary duties;
G. Enjoining defendants from taking any action which may
impede a full and fair auction and opening bidding process for the
acquisition of TriMas;
H. Rescinding, to the extent already implemented, the
merger agreement or any of the terms thereof;
I. Awarding plaintiff and the Class appropriate damages;
J. Awarding plaintiff the costs and disbursements of this
action, including reasonable attorneys' and experts' fees;
K. Granting such other and further relief as this Court may
deem just and proper.
DATED: December 11, 1997
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By: /s/ Norman M. Monhait
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Suite 1401, Mellon Bank Center
P.O. Box 1070
Wilmington, DE 19899-1070
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
SCHIFFRIN & CRAIG, LTD.
Andrew L. Barroway
Marc A. Topaz
Gregory M. Castaldo
Three Bala Plaza East
Suite 400
Bala Cynwyd, PA 19004
(610) 667-7706
