AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 16, 1994
REGISTRATION NO. 33-55767
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RJR NABISCO HOLDINGS CORP.
(Exact name of Registrant as specified in its charter)
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DELAWARE 6719 13-3490602
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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1301 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
(212) 258-5600
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
LAWRENCE R. RICCIARDI, ESQ.
RJR NABISCO HOLDINGS CORP.
1301 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
(212) 258-5600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
SAMUEL F. PRYOR III, ESQ. CHARLES I. COGUT, ESQ. ANDREW R. BROWNSTEIN, ESQ.
DAVIS POLK & WARDWELL SIMPSON THACHER & BARTLETT WACHTELL, LIPTON, ROSEN & KATZ
450 LEXINGTON AVENUE 425 LEXINGTON AVENUE 51 WEST 52ND STREET
NEW YORK, NEW YORK 10017 NEW YORK, NEW YORK 10017 NEW YORK, NEW YORK 10019
(212) 450-4000 (212) 455-2000 (212) 403-1000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As promptly as practicable after this Registration Statement is declared
effective and upon consummation of the transactions described in the enclosed
Offering Circular/Prospectus.
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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CROSS-REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K
SHOWING THE LOCATION IN THE OFFERING CIRCULAR/PROSPECTUS
OF THE INFORMATION REQUIRED BY PART 1 OF FORM S-4
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FORM S-4 ITEM LOCATION IN OFFERING CIRCULAR/PROSPECTUS
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A. INFORMATION ABOUT THE TRANSACTION
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1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus... Outside Front Cover Page; Facing Page
2. Inside Front and Outside Back Cover Pages
of Prospectus............................ Table of Contents; Available Information;
Incorporation of Certain Documents by
Reference
3. Risk Factors, Ratio of Earnings to Fixed
Charges and Other Information............ Significant Considerations; Summary; The
Exchange Offer
4. Terms of the Transaction................. Summary; The Exchange Offer; Description
of Holdings Capital Stock; Description of
Borden Capital Stock and Rights;
Comparison of Rights of Holders of Borden
and Holdings Common Stock
5. Pro Forma Financial Information.......... Not Applicable
6. Material Contacts with Company Being
Acquired................................. Summary; The Exchange Offer
7. Additional Information Required for
Reoffering by Persons and Parties
Deemed to be Underwriters................ The Exchange Offer; Security Ownership of
Certain Beneficial Owners and Management
8. Interests of Named Experts and Counsel... Legal Matters; Experts
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities.............................. Not Applicable
B. INFORMATION ABOUT THE REGISTRANT
10. Information with Respect to
S-3 Registrants........................ Available Information; Incorporation of
Certain Documents by Reference; Summary;
Comparative Market Prices and Dividends;
RJR Nabisco Holdings Corp.; RJR Nabisco
Holdings Corp. Selected Historical
Consolidated Financial Data; RJR Nabisco
Holdings Corp. Selected Pro Forma
Consolidated Financial Data; Description
of Holdings Capital Stock; Comparison of
Rights of Holders of Borden and Holdings
Common Stock
11. Incorporation of Certain Information
by Reference........................... Incorporation of Certain Documents by
Reference
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FORM S-4 ITEM LOCATION IN OFFERING CIRCULAR/PROSPECTUS
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12. Information with Respect to S-2
or S-3 Registrants..................... Not Applicable
13. Incorporation of Certain Information by
Reference................................ Not Applicable
14. Information with Respect to Registrants
Other than S-2 or S-3 Registrants........ Not Applicable
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15. Information with Respect to
S-3 Companies.......................... Available Information; Incorporation of
Certain Documents by Reference;
Summary--Borden, Inc.; Borden, Inc.
Selected Historical Consolidated
Financial Data; Description of Borden
Capital Stock and Rights; Comparison of
Rights of Holders of Borden and Holdings
Common Stock
16. Information with Respect to S-2
or S-3 Companies....................... Not Applicable
17. Information with Respect to Companies
Other than S-2 or S-3 Companies.......... Not Applicable
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents or
Authorizations are to be Solicited....... Not Applicable
19. Information if Proxies, Consents or
Authorizations are not to be Solicited,
or in an Exchange Offer................ Available Information; Incorporation of
Certain Documents by Reference; Summary;
The Exchange Offer; Security Ownership of
Certain Beneficial Owners and Management
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OFFERING CIRCULAR/PROSPECTUS (Subject to Completion)
Issued November 16, 1994
Exchange Offer for
All Outstanding Shares of Common Stock
(Including the Associated Preferred Stock Purchase Rights)
of
Borden, Inc.
By Exchanging for Each Such Share
A Number of Shares of Common Stock of
RJR Nabisco Holdings Corp.
Based on the Exchange Ratio Described Below
by
Borden Acquisition Corp.
a corporation formed at the direction of
Kohlberg Kravis Roberts & Co.
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THIS EXCHANGE OFFER AND WITHDRAWAL RIGHTS EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON , 1994,
UNLESS THE EXCHANGE OFFER IS EXTENDED.
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Borden Acquisition Corp., a New Jersey corporation (the "Purchaser"), a
subsidiary of Whitehall Associates, L.P. (the "Partnership"), an affiliate of
Kohlberg Kravis Roberts & Co., L.P. ("KKR"), hereby offers, upon the terms and
subject to the conditions set forth herein and in the related Letter of
Transmittal (collectively, the "Exchange Offer"), to exchange shares of common
stock, par value $.01 per share (the "Holdings Common Stock"), of RJR Nabisco
Holdings Corp., a Delaware corporation ("Holdings"), owned by the Purchaser or
its affiliates for all outstanding shares (the "Borden Shares") of common stock,
par value $.625 per share (collectively, the "Borden Common Stock"), and the
associated Preferred Stock Purchase Rights (the "Rights"), of Borden, Inc., a
New Jersey corporation ("Borden"), not already owned by the Purchaser or its
affiliates. Each Borden Share accepted by the Purchaser in accordance with the
Exchange Offer shall be exchanged for that number of fully paid and
nonassessable shares of Holdings Common Stock equal to the Exchange Ratio. The
term "Exchange Ratio" means the quotient (rounded to the nearest 1/100,000)
obtained by dividing (i) $14.25 by (ii) the average of the average of the high
and low sales prices of the Holdings Common Stock as reported on the New York
Stock Exchange (the "NYSE") Composite Tape on each of the ten full consecutive
trading days ending immediately prior to the ten business day period ending on
the date of expiration of the Exchange Offer, including any extension thereof
(the "Valuation Period"), provided that the Exchange Ratio shall not be less
than 1.78125 or greater than 2.375. All of the shares of Holdings Common Stock
offered hereby are currently owned by the Purchaser and its affiliates. As a
result of such ownership, prior to the consummation of the Exchange Offer, the
Partnership may be deemed to control Holdings for purposes of the Securities Act
of 1933, as amended.
The Exchange Offer is conditioned upon, among other things, there being
validly tendered and not properly withdrawn prior to the expiration of the
Exchange Offer a number of Borden Shares which, when added to any Borden Shares
previously acquired by the Partnership or the Purchaser (other than any of the
28,138,000 shares of Borden Common Stock subject to the Option (as hereinafter
defined)), represents more than 41% of the Borden Shares outstanding on a fully
diluted basis (other than dilution due to the Rights) (the "Minimum Condition").
The Exchange Offer is also subject to other terms and conditions, which Borden
shareholders should carefully consider. As of the date hereof, except for shares
of Borden Common Stock that may be acquired upon exercise of the Option, the
Partnership and the Purchaser do not beneficially own any Borden Shares. See
"The Exchange Offer--Certain Conditions of the Exchange Offer" and "Description
of Merger Agreement and Conditional Purchase/Option Agreement."
The Board of Directors of Borden, with seven members voting in favor and one
member (Borden's chief executive officer) abstaining, has, among other things,
(1) determined that the Merger Agreement and the Conditional Purchase/Option
Agreement (each as hereinafter defined) and the transactions contemplated
thereby, including the Exchange Offer and the merger of the Purchaser with
Borden (such merger is hereinafter called the "Merger" and, collectively with
the other transactions contemplated by the Merger Agreement and the Conditional
Purchase/Option Agreement, the "Transactions"), taken together, are fair to the
shareholders of Borden, and resolved to recommend that holders of Borden Shares
accept the Exchange Offer, tender their Borden Shares to the Purchaser in the
Exchange Offer and, if required by applicable law, approve and adopt the Merger
Agreement, and (2) approved the Merger Agreement, the Conditional
Purchase/Option Agreement and the Transactions. See "The Exchange Offer--Borden
Background and Reasons for the Proposed Transactions."
The reported last sale price of the Holdings Common Stock on November 15,
1994 on the NYSE Composite Tape was $6 7/8 per share. The reported last sale
price of the Borden Common Stock on November 15, 1994 on the NYSE Composite Tape
was $13 5/8 per share. On September 9, 1994, the last full trading day prior to
the public announcement of the execution of the letter of intent with respect to
the Transactions (as defined herein), the closing sale price, as reported on the
NYSE Composite Tape, was $7 for the Holdings Common Stock and $11 7/8 for the
Borden Common Stock. Borden shareholders should obtain a current quote for the
Holdings Common Stock and the Borden Common Stock.
(continued on next page)
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SEE "SIGNIFICANT CONSIDERATIONS" FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD
BE CONSIDERED BY HOLDERS OF BORDEN SHARES IN CONNECTION WITH THEIR CONSIDERATION
OF THE EXCHANGE OFFER.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS OFFERING CIRCULAR/PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The Dealer Manager for the Exchange Offer is:
MORGAN STANLEY & CO.
Incorporated
November , 1994
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS OFFERING CIRCULAR/PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
STATE.
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(continued from prior page)
The Purchaser, the Partnership and Borden have entered into an Agreement and
Plan of Merger dated as of September 23, 1994, as amended as of November 15,
1994 (the "Merger Agreement") pursuant to which, among other things, following
the consummation of the Exchange Offer, subject to certain conditions, the
Purchaser will be merged with Borden in the Merger. If, following the Exchange
Offer and exercise of the Option, the Purchaser and its affiliates own more than
90% of the outstanding Borden Shares, the Purchaser will take all necessary or
appropriate action, without further action by the Board of Directors or
shareholders of Borden, to merge the Purchaser with Borden as soon as
practicable. If, following the Exchange Offer and exercise of the Option,
approval of Borden's shareholders is required by applicable law in order to
consummate the Merger, provided that the Minimum Condition is satisfied without
being reduced or waived, Borden will submit the Merger to Borden's shareholders
for approval. If the Merger is submitted to Borden's shareholders for approval,
the Merger will require the approval of the holders of not less than 66 2/3% of
the outstanding Borden Shares, including the Borden Shares owned by the
Purchaser and its affiliates. In the event the Merger is consummated, holders of
Borden Shares will receive the same number of shares of Holdings Common Stock
for each Borden Share as are exchanged for each Borden Share in the Exchange
Offer. This Offering Circular/Prospectus, as amended or supplemented from time
to time, also relates to shares of Holdings Common Stock that may be issued in
connection with the consummation of the Merger, unless the Merger is submitted
to Borden's shareholders for approval, in which case the Purchaser will solicit
proxies from Borden shareholders pursuant to separate proxy materials in
compliance with Section 14(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
This Offering Circular/Prospectus does not constitute a solicitation of a
proxy, consent or authorization for or with respect to any special meeting or
other meeting of Borden shareholders who do not tender their Borden Shares or
any action in lieu thereof. Any such solicitation will be made only pursuant to
separate proxy materials in compliance with Section 14(a) of the Exchange Act.
Pursuant to a Conditional Purchase/Stock Option Agreement dated as of
September 23, 1994 (the "Conditional Purchase/Option Agreement"), Borden has
granted to the Purchaser (or its designee, which designee shall be the
Partnership or a wholly owned direct or indirect subsidiary of the Partnership
and which may, in any such case, act for itself and/or as agent for the
Partnership or KKR Partners II, L.P. (together with the Partnership, the "Common
Stock Partnerships"), as the case may be) a right (the "Option") to purchase up
to 28,138,000 shares of Borden Common Stock (the "Option Shares") (approximately
19.9% of the outstanding Borden Shares as of the date hereof) in exchange for
the number of shares of Holdings Common Stock (rounded to the nearest 1/100,000)
obtained by dividing (i) $11.00 by (ii) the average of the average of the high
and low sales prices of the Holdings Common Stock as reported on the NYSE
Composite Tape on each of the ten consecutive trading days immediately preceding
the second trading day prior to the date of notice of exercise of the Option
(or, if exercise of the Option is required as described below, the date of
exercise), as adjusted in certain events, for each share of Borden Common Stock.
Subject to applicable law, if the Purchaser (or the Partnership or a wholly
owned direct or indirect subsidiary of the Partnership) acquires more than 41%
(but not more than 50%) of the outstanding Borden Shares in the Exchange Offer,
the Option must be exercised to the extent necessary so that, following such
exercise, the Purchaser will own more than 50% of the outstanding Borden Shares.
If the Purchaser shall have exercised the Option in whole or in part prior to
the expiration of the Exchange Offer, the Purchaser may not waive or reduce the
Minimum Condition. In addition, if the Purchaser has not exercised the Option
prior to the expiration of the Exchange Offer, it will not be entitled to
exercise the Option thereafter if it waives or otherwise reduces the Minimum
Condition and accepts fewer than 41% of the Borden Shares for exchange in the
Exchange Offer. See "The Exchange Offer--Purpose of the Exchange Offer; the
Merger" and "Description of Merger Agreement and Conditional Purchase/Option
Agreement."
Unless the context requires otherwise, all references in this Offering
Circular/Prospectus to "Borden Shares" shall be deemed to refer also to the
associated Rights issued pursuant to the Rights Agreement, dated as of January
28, 1986 (as amended, the "Rights Agreement"), between Borden and The Bank of
New York, as Rights Agent (the "Rights Agent"), and all references to "Rights"
shall be deemed to include all benefits that may inure to the shareholders of
Borden or to holders of the Rights pursuant to the Rights Agreement, unless and
until the Rights are redeemed by Borden in accordance with the Merger Agreement.
(continued on next page)
ii
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(continued from prior page)
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IMPORTANT
Any shareholder desiring to tender all or any portion of such shareholder's
Borden Shares (and Rights if applicable) should either (1) complete and sign the
Letter of Transmittal (or a facsimile thereof) in accordance with the
instructions in the Letter of Transmittal, mail or deliver the Letter of
Transmittal (or such facsimile) and any other required documents to the Exchange
Agent (as defined herein), and either deliver the certificates representing the
tendered Borden Shares ("Share Certificates") and, if separate, certificates
representing the tendered Rights ("Rights Certificates"), and any other required
documents to the Exchange Agent or tender such Borden Shares (and Rights if
applicable) pursuant to the procedure for book-entry transfer described herein
or (2) request such shareholder's broker, dealer, commercial bank, trust company
or other nominee to effect the transaction for such shareholder. Shareholders
having Borden Shares (and Rights if applicable) registered in the name of a
broker, dealer, commercial bank, trust company or other nominee must contact
such broker, dealer, commercial bank, trust company or other nominee if they
desire to tender Borden Shares (and Rights if applicable) so registered. Unless
and until the Rights are redeemed in accordance with the Merger Agreement,
holders of Borden Shares will be required to tender the Rights associated with
such Borden Shares in order to effect a valid tender of such Borden Shares.
A shareholder who desires to tender Borden Shares (and Rights if applicable)
and whose Share Certificates (and Rights Certificates if applicable) are not
immediately available, or who cannot comply with the procedure for book-entry
transfer on a timely basis, may tender such Borden Shares (and Rights if
applicable) by following the procedures for guaranteed delivery described
herein.
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Questions and requests for assistance may be directed to Morgan Stanley & Co.
Incorporated (the "Dealer Manager") or to D.F. King & Co., Inc. (the
"Information Agent"), at their respective addresses and telephone numbers set
forth on the back cover of this Offering Circular/Prospectus. Additional copies
of this Offering Circular/Prospectus, a Letter of Transmittal and a Notice of
Guaranteed Delivery may also be obtained from the Information Agent or from
brokers, dealers, commercial banks or trust companies.
iii
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NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN AS CONTAINED IN THIS
OFFERING CIRCULAR/PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMMON
STOCK PARTNERSHIPS, THE PURCHASER OR ANY AFFILIATE THEREOF, BY HOLDINGS OR
BORDEN OR BY THE DEALER MANAGER. THIS OFFERING CIRCULAR/PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY
OTHER THAN THE SECURITIES OFFERED HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY
TO ANY PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER
OR SOLICITATION TO SUCH PERSON. NEITHER THE DELIVERY OF THIS OFFERING
CIRCULAR/PROSPECTUS AT ANY TIME NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS
OF ANY TIME SUBSEQUENT TO THE DATE HEREOF. NO ACTION HAS BEEN OR WILL BE TAKEN
IN ANY JURISDICTION BY THE COMMON STOCK PARTNERSHIPS, THE PURCHASER OR ANY
AFFILIATE THEREOF, HOLDINGS OR BORDEN OR BY THE DEALER MANAGER THAT WOULD PERMIT
A PUBLIC OFFERING OF THE SECURITIES OFFERED HEREBY OR POSSESSION OR DISTRIBUTION
OF THIS OFFERING CIRCULAR/PROSPECTUS IN ANY JURISDICTION WHERE ACTION FOR THAT
PURPOSE IS REQUIRED, OTHER THAN IN THE UNITED STATES. PERSONS INTO WHOSE
POSSESSION THIS OFFERING CIRCULAR/PROSPECTUS COMES ARE REQUIRED BY THE COMMON
STOCK PARTNERSHIPS, THE PURCHASER AND THEIR AFFILIATES, HOLDINGS AND BORDEN AND
BY THE DEALER MANAGER TO INFORM THEMSELVES ABOUT AND TO OBSERVE ANY RESTRICTIONS
AS TO THE OFFERING OF THE SECURITIES OFFERED HEREBY AND THE DISTRIBUTION OF THIS
OFFERING CIRCULAR/PROSPECTUS.
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The Exchange Offer is not being made to (nor will tenders be accepted from
or on behalf of) holders of Borden Shares in any jurisdiction (including Japan)
in which the making of the Exchange Offer or the acceptance thereof would not be
in compliance with the laws of such jurisdiction. In any jurisdiction where the
securities, blue sky or other laws require the Exchange Offer to be made on
behalf of the Purchaser by a licensed broker or dealer, the Exchange Offer shall
be deemed to be made on behalf of the Purchaser by the Dealer Manager or one or
more registered brokers or dealers that are licensed under the laws of such
jurisdiction.
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TABLE OF CONTENTS
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PAGE
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Available Information................. 3
Incorporation of Certain Documents by
Reference........................... 3
Significant Considerations............ 5
Information Concerning Holdings..... 5
Information Concerning the
Transactions.......................... 9
Summary............................... 13
The Exchange Offer.................... 34
Purchaser Background................ 34
Borden Background and Reasons for
the Proposed Transactions......... 36
Terms of the Exchange Offer;
Expiration Date................... 59
Exchange of Shares of Borden Common
Stock............................. 60
Procedure for Tendering Shares of
Borden Common Stock................... 61
Withdrawal Rights................... 65
Extension of Tender Period;
Termination; Amendment................ 66
Certain Conditions of the Exchange
Offer............................. 67
Material Tax Consequences........... 70
Fees and Expenses of the Exchange
Offer and Source of Funds............. 71
Certain Regulatory Approvals and
Legal Matters..................... 72
Pending Litigation.................. 77
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Description of Merger Agreement and
Conditional Purchase/Option
Agreement........................... 79
Merger Agreement.................... 79
Conditional Purchase/Option
Agreement......................... 95
RJR Nabisco Holdings Corp............. 99
RJR Nabisco Holdings Corp. Selected
Historical Consolidated Financial
Data................................ 102
RJR Nabisco Holdings Corp. Selected
Pro Forma Consolidated Financial
Data................................ 104
Security Ownership of Certain
Beneficial Owners and Management.... 110
Borden, Inc........................... 112
Borden, Inc. Selected Historical
Consolidated Financial Data......... 113
The Purchaser and the Common Stock
Partnerships........................ 115
Description of Holdings Capital
Stock............................... 115
Common Stock........................ 115
Preferred Stock..................... 116
Contractual Restrictions and
Policies on Payment of
Dividends......................... 118
Certain Statutory and By-law
Provisions............................ 121
Description of Borden Capital Stock
and Rights.......................... 123
Comparison of Rights of Holders of
Borden and Holdings Common Stock.... 124
Legal Matters......................... 127
Experts............................... 128
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AVAILABLE INFORMATION
Holdings and Borden are subject to the informational requirements of the
Exchange Act and in accordance therewith file reports, proxy statements and
other information with the Commission. The reports, proxy statements and other
information filed by Holdings and Borden with the Commission can be inspected
and copied at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and should be
available at the Commission's Regional Offices at 7 World Trade Center, 13th
Floor, New York, New York 10048, and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material also can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, material filed by
Holdings and Borden can be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
Holdings has filed with the Commission a Registration Statement on Form S-4
(together with any amendments thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Holdings Common Stock to be offered in the Transactions. The Purchaser will be
filing a Tender Offer Statement on Schedule 14D-1 (together with any amendments
thereto, the "Schedule 14D-1") with the Commission in connection with the
Exchange Offer. This Offering Circular/Prospectus does not contain all the
information set forth in the Registration Statement or the Schedule 14D-1 and
the exhibits thereto. Such additional information may be obtained from the
Commission's principal office in Washington, D.C. Statements contained in this
Offering Circular/Prospectus or in any document incorporated in this Offering
Circular/Prospectus by reference as to the contents of any contract or other
document referred to herein or therein include the material terms of such
contracts or other documents but are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement or the Schedule 14D-1 or such other
document, each such statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Holdings (File No.
1-10215) pursuant to the Exchange Act are incorporated by reference in this
Offering Circular/Prospectus:
1. Holdings' Annual Report on Form 10-K for the year ended December 31,
1993 (which incorporates by reference certain information from Holdings'
Proxy Statement relating to the 1994 Annual Meeting of Shareholders);
2. Holdings' Quarterly Reports on Form 10-Q for the three months ended
March 31, 1994, the six months ended June 30, 1994 and the nine months ended
September 30, 1994;
3. Holdings' Current Report on Form 8-K/A filed April 27, 1994; and
4. The Consolidated Financial Statements of Holdings as of December 31,
1993 and 1992 and for each of the years in the three year period ended
December 31, 1993 and the related notes thereto, and Management's Discussion
and Analysis of Financial Condition and Results of Operations, included in
the Registration Statement on Form S-3 (Registration No. 33-52381), at the
time such Registration Statement was declared effective by the Commission.
The following documents filed with the Commission by Borden (File No. 1-71)
pursuant to the Exchange Act are incorporated by reference in this Offering
Circular/Prospectus:
1. Borden's Annual Report on Form 10-K for the year ended December 31,
1993 (which incorporates by reference certain information from Borden's
Proxy Statement relating to the 1994 Annual Meeting of Shareholders and
Borden's 1993 Annual Report to Shareholders);
3
<PAGE>
2. Borden's Quarterly Reports on Form 10-Q for the three months ended
March 31, 1994, the six months ended June 30, 1994 (as amended by the Form
10-Q/A (Amendment No. 1)) and the nine months ended September 30, 1994; and
3. Borden's Current Reports on Form 8-K dated January 5, 1994, March 21,
1994, September 11, 1994 and September 12, 1994, and its two Current Reports
on Form 8-K, each dated October 5, 1994.
All documents and reports filed by Holdings and Borden pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Offering
Circular/Prospectus and prior to the completion of the Transactions (including
Borden's Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule
14D-9") to be filed pursuant to Rules 14d-9 and 14e-2 under the Exchange Act)
shall be deemed to be incorporated by reference in this Offering
Circular/Prospectus and to be a part hereof from the dates of filing of such
documents or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Offering Circular/Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Offering Circular/Prospectus.
THIS OFFERING CIRCULAR/PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. SUCH DOCUMENTS (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY
REFERENCE) ARE AVAILABLE, WITHOUT CHARGE, TO ANY PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM THIS OFFERING CIRCULAR/PROSPECTUS IS DELIVERED, ON
WRITTEN OR ORAL REQUEST, IN THE CASE OF DOCUMENTS RELATING TO HOLDINGS, TO RJR
NABISCO, INC., 1301 AVENUE OF THE AMERICAS, NEW YORK, NEW YORK 10019 (TELEPHONE
NUMBER (212) 258-5600), ATTENTION: INVESTOR RELATIONS DEPARTMENT; OR, IN THE
CASE OF DOCUMENTS RELATING TO BORDEN, TO BORDEN, INC., 180 EAST BROAD STREET,
COLUMBUS, OHIO 43215 (TELEPHONE NUMBER (614) 225-3395), ATTENTION: DOCUMENTS
MAILING DEPT. IN ORDER TO ENSURE TIMELY DELIVERY OF DOCUMENTS, ANY REQUEST
SHOULD BE MADE NO LATER THAN FIVE DAYS PRIOR TO THE EXPIRATION DATE (AS
HEREINAFTER DEFINED), AS IT MAY BE EXTENDED FROM TIME TO TIME.
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The Registration Statement is being filed by Holdings at the request of the
Partnership pursuant to the terms of a Registration Rights Agreement between
Holdings and the Partnership dated as of July 15, 1990 and a Registration Rights
Agreement among Holdings, certain affiliates of KKR and others dated as of
February 9, 1989 (collectively, the "Registration Rights Agreements"). All
information contained or incorporated by reference in this Offering
Circular/Prospectus relating to KKR, the Common Stock Partnerships, the
Purchaser and the Transactions has been supplied by the Purchaser, all such
information relating to Holdings has been supplied by Holdings and all such
information relating to Borden has been supplied by Borden. Although Holdings
does not have any knowledge that would indicate that any of the information
which has been furnished by others is inaccurate or untrue in any material
respect, no assurance can be given that facts or events of which it is unaware
exist that may affect the significance or accuracy of the information furnished.
FOR A SUMMARY OF CERTAIN INFORMATION CONTAINED ELSEWHERE OR INCORPORATED BY
REFERENCE IN THIS OFFERING CIRCULAR/PROSPECTUS, INCLUDING A SUMMARY OF THE
TRANSACTIONS AND CERTAIN INFORMATION CONCERNING HOLDINGS AND BORDEN, SEE
"SUMMARY" BEGINNING ON PAGE 13 HEREOF. AS USED HEREIN, "HOLDINGS" MEANS RJR
NABISCO HOLDINGS CORP. AND ITS CONSOLIDATED SUBSIDIARIES, UNLESS THE CONTEXT
OTHERWISE REQUIRES.
SIGNIFICANT CONSIDERATIONS
Holders of Borden Common Stock should carefully consider the following
factors in connection with their consideration of the Exchange Offer.
INFORMATION CONCERNING HOLDINGS
Tobacco-Related Considerations
General. R.J. Reynolds Tobacco Company ("RJRT"), an operating subsidiary of
Holdings owned through RJR Nabisco, Inc. ("RJRN"), is the second largest
cigarette manufacturer in the United States, and in the year ended December 31,
1993, RJRT's domestic tobacco business comprised approximately 33% of Holdings'
net sales and approximately 42% of Holdings' operating income from continuing
operations before corporate expenses, amortization of trademarks and goodwill
and restructuring expense. Domestic cigarette industry retail unit sales have
declined in the last three calendar years at an average rate of approximately
2.5% per year. Holdings believes that the decline is due to a number of factors,
including manufacturers' price increases in recent years, excise tax increases,
asserted adverse health effects of smoking, diminishing social acceptance of
smoking and governmental and private restrictions on smoking. For many years,
the advertising, sale and use of cigarettes has been under attack by government
and health officials in the United States and in other countries, principally
due to claims that cigarette smoking is harmful to health. This attack has
resulted in a number of substantial restrictions on the marketing, advertising
and use of cigarettes, diminishing social acceptability of smoking and
activities by anti-smoking groups designed to inhibit cigarette sales, the form
and content of cigarette advertising and the testing and introduction of new
cigarette products. Together with substantial increases in state and federal
excise taxes on cigarettes, this attack has had and will likely continue to have
an adverse effect on cigarette sales.
Possible Legislative and Regulatory Activities. The Clinton Administration
and members of Congress have introduced bills in Congress that would
significantly increase the federal excise tax on cigarettes, eliminate the
income tax deductibility of a portion of the cost of tobacco advertising, ban
smoking in public buildings and workplaces, add additional health warnings on
cigarette packaging and advertising and further restrict the marketing of
tobacco products.
In January 1993, the U.S. Environmental Protection Agency released a report
on the respiratory effects of environmental tobacco smoke ("ETS") which
concludes that ETS is a known human lung carcinogen in adults; and in children
causes increased respiratory tract disease and middle ear disorders
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and increases the severity and frequency of asthma. In September 1991, the U.S.
Occupational Safety and Health Administration ("OSHA") issued a Request for
Information relating to indoor air quality, including ETS, in occupational
settings. In March 1994, OSHA announced proposed regulations that would restrict
smoking in the workplace to designated smoking rooms that are separately
exhausted to the outside. Although RJRT cannot predict the form of any
regulations that may be finally adopted by OSHA, if the proposed regulations are
adopted, RJRT expects that many employers who have not already done so will
prohibit smoking in the workplace rather than make expenditures necessary to
establish designated smoking areas to accommodate smokers. Because many
employers currently do not permit smoking in the workplace, RJRT cannot predict
the effect of any regulations that may be adopted, but incremental restrictions
on smokers could have an adverse effect on cigarette sales and RJRT.
During February 1994, the Commissioner of the U.S. Food and Drug
Administration (the "FDA"), which historically has refrained from asserting
jurisdiction over most cigarette products, stated that he intended to cause the
FDA to work with the U.S. Congress to resolve the regulatory status of
cigarettes under the Food, Drug and Cosmetic Act. During the second quarter of
1994, hearings were held in this regard, and RJRT, along with other members of
the United States cigarette industry, were asked to provide voluntarily certain
documents and other information to Congress. RJRT is unable to predict the
outcome of any Congressional deliberations or the likelihood that the FDA will
assert jurisdiction over cigarettes in some manner. Were the FDA to assert
jurisdiction in a manner that materially restricts the availability of
cigarettes to consumers, it would likely have a significant adverse effect on
RJRT and Holdings.
In addition, in June 1994, legislation was introduced in the U.S. Senate
which would authorize the Attorney General of the United States to seek to
recover from tobacco product manufacturers funds paid out in the form of
Medicaid and Medicare payments to treat illnesses allegedly related to the use
of tobacco products. It is not possible to predict whether such legislation will
be enacted or any resulting effect thereof on RJRT.
It is not possible to determine what additional federal, state or local
legislation or regulations relating to smoking or cigarettes will be enacted or
to predict any resulting effect thereof on RJRT, R.J. Reynolds Tobacco
International, Inc. ("Tobacco International"), another operating subsidiary of
Holdings owned through RJRN, or the cigarette industry generally but such
legislation or regulations could have an adverse effect on RJRT, Tobacco
International or the cigarette industry generally.
Tobacco-Related Litigation. Various legal actions, proceedings and claims
are pending or may be instituted against RJRT or its affiliates or indemnitees,
including those claiming that lung cancer and other diseases have resulted from
the use of or exposure to RJRT's tobacco products. The plaintiffs in these
actions seek recovery on a variety of legal theories, including strict liability
in tort, design defect, negligence, breach of warranty, failure to warn, fraud,
misrepresentation, unfair trade practices, conspiracy, unjust enrichment,
indemnity and common law public nuisance. Seven of these cases purport to be
class actions brought on behalf of thousands of claimants. Purported classes
include individuals claiming to be addicted to cigarettes, flight attendants
alleging personal injury from exposure to ETS in their workplace and parents
claiming that Joe Camel advertising constitutes an unfair trade practice. In one
such case, a Florida state court judge granted plaintiffs' motion to certify a
class. Defendants will appeal that ruling to the Florida District Court of
Appeals. In addition, three states, acting through their attorneys general, have
sued RJRT (and in two cases, RJRN) and other industry members on various
theories to recoup expenses incurred by the states in the treatment of diseases
purportedly associated with cigarette smoking and to enjoin certain marketing
practices. A fourth state has enacted legislation which would facilitate the
filing of such an action in that state. Litigation is subject to many
uncertainties, and it is possible that some of the legal actions, proceedings or
claims could be decided against RJRT or its affiliates or indemnitees.
Determinations of liability or adverse rulings against other cigarette
manufacturers that are defendants in similar actions, even if such rulings are
not final, could adversely affect the litigation against RJRT and its affiliates
or
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indemnitees and increase the number of such claims. Although it is impossible to
predict the outcome of such events or their effect on RJRT, a significant
increase in litigation activities could have an adverse effect on RJRT. RJRT
believes that it has a number of valid defenses to any such actions, and intends
to defend vigorously all such actions. Holdings believes that the ultimate
outcome of all pending tobacco litigation matters should not have a material
adverse effect on the financial position of Holdings; however, it is possible
that the results of operations or cash flows of Holdings in particular quarterly
or annual periods or the financial condition of Holdings could be materially
affected by the ultimate outcome of certain pending litigation matters. For an
additional discussion of legislation and litigation relating to the cigarette
industry and RJRT, see Holdings' Annual Report on Form 10-K for the fiscal year
ended December 31, 1993 under "Business--Tobacco--Legislation and other Matters
Affecting the Cigarette Industry" and "--Litigation Affecting the Cigarette
Industry" and Holdings' Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1994 under Note 7 to Holdings' Consolidated Condensed
Financial Statements for the period ended September 30, 1994 and "Legal
Proceedings--Tobacco Related Litigation," both of which are incorporated herein
by reference.
Impact of Competitive Activity
RJRT's largest U.S. competitor announced competitive initiatives in April
1993 that ultimately resulted in significant changes in the U.S. cigarette
market. These competitive actions and responses by RJRT and other competitors
effectively lowered the retail price of full price cigarette brands and raised
the price of the most highly discounted brands in the second half of 1993. This
resulted in a market comprised of a full price tier and a lower price tier of
products (as opposed to the three or more tiers that had previously existed) and
in smaller relative price differences between brands in different tiers.
The costs of responding to these competitive initiatives and the decrease in
list prices for full price cigarette brands of approximately 40 cents per pack
were primarily responsible for a sharp decline in RJRT's 1993 operating company
contribution, since improved net prices of approximately 12 cents per pack
(including the price increase referenced below) in the most highly discounted
brands did not and are not expected to offset the current lower margins on full
price brands. Notwithstanding these lower margins, full price brands remain more
profitable than lower price brands, which consist of certain national brands
designed to have a lower price and of private label brands for retailers and
distributors. The private label brands are generally the least profitable of
RJRT's brands, but are important to facilitate RJRT's service to wholesale and
retail customers.
Although RJRT's full price volume as a percentage of total volume declined
to 56% in 1993 from 65% in 1992, lower retail prices on full price brands since
the third quarter of 1993 have resulted in an increase in full price volume to
59% in the first nine months of 1994. The increased full price volume occurred
despite significantly reduced promotional expenses on full price brands during
this period.
During the fourth quarter of 1993, RJRT increased the list price of its
brands by 4 cents per pack, which was generally matched by other competitors and
reflected increased stability in the marketplace during the latter part of 1993.
This stability has continued into 1994 and, together with operating cost
reductions and favorable product mix shifts, has improved margins, although 1994
profit margins remain below first quarter 1993 levels. However, RJRT is unable
to predict whether pricing stability and profit margin improvements are
sustainable.
The effect of a law requiring U.S. manufacturers to use at least 75%
American-grown tobacco in their cigarettes produced after 1993 has increased
RJRT's raw material costs for all brands, with a larger effect on costs for
lower price brands since these brands historically have contained a higher
percentage of lower cost foreign-grown tobacco than full price brands. The cost
increase is more than offset by higher revenues for lower price brands resulting
from the fourth quarter price increase referenced above. The same result has
occurred for full price brands. For additional information, see "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Tobacco--1993 Competitive Activity" and "Business--Other Matters--Competition"
in Holdings' Annual Report on Form 10-K for the fiscal year ended December 31,
1993 and "Management's
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Discussion and Analysis of Financial Condition and Results of
Operations--Tobacco" in Holdings' Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1994, each of which is incorporated herein
by reference.
Leverage and Debt Service
Holdings, together with its subsidiaries, had, at September 30, 1994, a
ratio of consolidated total debt to total stockholders' equity of 1.0-to-1. On a
pro forma basis, after giving effect to the proposed initial public offering of
shares of Nabisco Holdings Corp. ("Nabisco") and related transactions, which
will result in a reduction of consolidated total debt, Holdings' ratio of
consolidated total debt to total stockholders' equity at September 30, 1994
would be 0.9 to 1. See "RJR Nabisco Holdings Corp. Selected Pro Forma
Consolidated Financial Data."
Although Holdings has significantly reduced its consolidated indebtedness
and improved its consolidated debt-to-equity ratios since the Acquisition, the
indebtedness and debt-to-equity ratio of Holdings and its subsidiaries continue
to have the effect, generally, of restricting the flexibility of Holdings and
its subsidiaries in responding to changing business and economic conditions
insofar as they affect the financial condition and financing requirements of
Holdings and its subsidiaries. Moreover, the Credit Agreement dated as of
December 19, 1991 (as amended from time to time, the "1991 Credit Agreement")
and the Credit Agreement dated as of April 5, 1993 (as amended from time to
time, the "1993 Credit Agreement" and, together with the 1991 Credit Agreement,
the "Credit Agreements") and the terms governing certain other indebtedness
impose significant operating and financial restrictions on Holdings and its
subsidiaries. These restrictions limit the ability of Holdings and its
subsidiaries to incur indebtedness, pay dividends, engage in transactions with
stockholders and affiliates, create liens, sell certain assets and certain
subsidiaries' stock, engage in certain mergers or consolidations and make
investments in unrestricted subsidiaries. RJRN has called certain issues of debt
securities for redemption. See "Description of Capital Stock--Contractual
Restrictions and Policies on Payment of Dividends."
Limitations on Dividends
Although Holdings pays dividends on its outstanding preferred stock, it has
not yet paid a dividend on Holdings Common Stock. In connection with the
initiative recently announced by Holdings (see "RJR Nabisco Holdings
Corp.--Recent Developments"), Holdings has indicated that it anticipates, upon
completion of the proposed initial public offering of common stock of Nabisco,
commencing payment of a quarterly cash dividend on the Holdings Common Stock of
$.075 per share or $.30 per share on an annualized basis. Holdings has also
adopted a policy, which will become effective upon completion of the proposed
Nabisco initial public offering, under which Holdings would limit the aggregate
amount of cash dividends paid on its capital stock prior to December 31, 1998.
The policy would also preclude a dividend or distribution to its shareholders of
the shares of capital stock of a subsidiary until December 31, 1996 and would
set forth certain intentions of Holdings with respect to such a dividend or
distribution prior to December 31, 1998. The timing, amount and form of
dividends on Holdings Common Stock will depend, among other things, upon the
effect of applicable restrictions and policies on the payment of dividends
referred to above, Holdings' results of operations, financial condition, cash
requirements, prospects and other factors deemed relevant by its board of
directors. No assurance can be given that the proposed initial public offering
of Nabisco Common Stock will be consummated. See "Description of Holdings
Capital Stock--Contractual Restrictions and Policies on Payment of Dividends."
Holding Company Structure
Holdings' cash flow and consequent ability to meet its obligations under its
indebtedness and to pay future dividends on the Holdings Common Stock, if any,
and preferred stock are substantially dependent upon the earnings and cash flow
available after debt service of RJRN and the availability of such earnings and
cash flows to Holdings by way of dividends, distributions, loans and other
advances. Holdings Common Stock is junior in right of payment to all existing
and future liabilities, obligations
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(whether or not for borrowed money) and preferred stock of Holdings, and is
structurally subordinate to all existing and future liabilities and obligations
(whether or not for borrowed money) of RJRN and its subsidiaries. As of
September 30, 1994, total current liabilities and long-term debt of Holdings'
subsidiaries were approximately $14.6 billion.
KKR Ownership
As of October 31, 1994, an aggregate of approximately 44.79% (or 32.29% on a
fully diluted basis) of the total voting power of Holdings was held by the
Common Stock Partnerships. After giving effect to the mandatory conversion of
Holdings Series A Preferred Stock on November 15, 1994, and assuming all
outstanding options for Borden Common Stock are exercised, all of Borden's
Series B Preferred Stock is converted to Borden Common Stock and Borden Shares
equal to the Minimum Condition are exchanged in the Exchange Offer at the
minimum and maximum Exchange Ratios, respectively, an aggregate of approximately
31.98% to 29.40% (25.99% to 23.88% on a fully diluted basis) of the total voting
power of Holdings will be held or controlled by the Common Stock Partnerships.
The total voting power of Holdings held or controlled by the Common Stock
Partnerships will decrease to an aggregate of approximately 20.81% to 14.50%
(16.91% to 11.78% on a fully diluted basis) if 100% of the Borden Shares are
exchanged. In addition, seven of Holdings' sixteen directors are partners or
executives of KKR.
Potential Conflicts of Interest
As a result of the ownership of a significant percentage of the total voting
power of Holdings by the Common Stock Partnerships and having partners or
executives of KKR as board members of Holdings as described under "--KKR
Ownership" above, it is possible that conflicts or potential conflicts of
interest may arise between the Common Stock Partnerships and KKR on the one hand
and Holdings on the other. Holdings believes that any such conflicts or
potential conflicts which may arise will be resolved in compliance with Delaware
law, which provides, among other things, that each director has a fiduciary duty
to act in the best interests of the corporation.
For information concerning the decision by Holdings not to pursue a
transaction with Borden, see "RJR Nabsico Holdings Corp.--Recent Developments"
and "The Exchange Offer--Background."
Significant Increase in Shares Available for Trading
Of the 1,148,477,506 shares of Holdings Common Stock outstanding as of
October 31, 1994, approximately 580 million are held by persons that are not
affiliates or management of Holdings and are freely tradeable. After giving
effect to the mandatory conversion of Holdings' Series A Preferred Stock on
November 15, 1994 and assuming Borden Shares equal to the Minimum Condition are
exchanged in the Exchange Offer at the minimum and maximum Exchange Ratios,
respectively, an aggregate of up to approximately an additional 109 million to
145 million shares of Holdings Common Stock will be freely tradeable (265
million to 354 million shares if all of the Borden Shares are exchanged).
Moreover, based on the $6 3/4 closing price of Holdings Common Stock on November
14, 1994, an additional approximately 46,000,000 shares of Holdings Common Stock
would be freely tradeable if the Option were exercised in full and Borden
elected to use its registration rights to sell or dispose of such shares in a
public offering. The Registration Rights Agreements bar Borden from exercising
these rights for nine months commencing on the effective date of the
Registration Statement. Holdings is unable to predict the effect, if any, that
the increase in freely tradeable shares of Holdings Common Stock will have on
the market value of such shares.
INFORMATION CONCERNING THE TRANSACTIONS
Inability to Participate in Future Borden Earnings or Divestitures
Shareholders whose Borden Shares are exchanged for shares of Holdings Common
Stock in the Exchange Offer or the Merger will not be entitled to participate as
shareholders in any future growth of
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Borden's business or earnings, in any future dividends that may be declared by
the Board of Directors of Borden or in the proceeds of any future divestitures
of subsidiaries or businesses conducted by Borden.
Lack of Dissenters' Rights
Holders of Borden Common Stock will not be entitled to dissenters' rights
under New Jersey law in connection with the Exchange Offer or the Merger, and
the Purchaser does not intend to accord dissenters' rights to holders of Borden
Common Stock.
Limitations on Opinions of Borden's Financial Advisors
In connection with the Borden board's fiduciary duties to Borden's
shareholders, the board considered the opinions of its financial advisors,
recognizing that such opinions were addressed solely to the board and that such
opinions stated that they were not intended to confer rights or remedies upon,
among others, Borden's shareholders. Such limitations are common in opinions of
this type and the board and the financial advisors recognized that such opinions
would be publicly disclosed and provided to Borden's shareholders pursuant to
the Commission's rules and regulations. The board believes that it is beneficial
for Borden's shareholders to have the opportunity to review the opinions of the
financial advisors considered by the board in its deliberations, even though
such opinions were not addressed to Borden's shareholders. The board also
recognized that such opinions specifically excluded the effects of future
developments in Holdings' tobacco business. The board believed that since
neither of its financial advisors had the expertise to evaluate such future
liabilities, it was acceptable to exclude such issues from the financial
advisors' opinions. In this regard, the Borden board considered the impact on
Holdings from litigation (including pending and future matters as well as class
action litigation), legislation (pending and future) and governmental regulation
(present and future) involving tobacco products was unknowable and could be
devastating with respect to the value of the Holdings Common Stock. For
additional information regarding such liabilities, see "Significant
Considerations--Information Concerning Holdings--Tobacco-Related
Considerations."
Possible Adverse Effect on Market for Shares of Borden Common Stock
If the Merger is not immediately consummated upon completion of the Exchange
Offer, the exchange of Borden Shares pursuant to the Exchange Offer will reduce
the number of Borden Shares that might otherwise trade publicly and is likely to
reduce the number of holders of Borden Shares, which could adversely affect the
liquidity and market value of the remaining Borden Shares held by shareholders
other than the Purchaser. The Purchaser cannot predict whether the reduction in
the number of Borden Shares that might otherwise trade publicly would have an
adverse or beneficial effect on the market price for or marketability of the
Borden Shares. If the Merger is consummated, all trading of Borden Common Stock
will cease and there will no longer be a market for shares of Borden Common
Stock.
Possible Loss of Stock Exchange Listing of Borden Common Stock
According to the NYSE's published guidelines, the NYSE would consider
delisting the Borden Shares if, among other things, the number of publicly held
Borden Shares (excluding Borden Shares held by officers, directors, their
immediate families and other concentrated holdings of 10% or more) were less
than 600,000, there were fewer than 1,200 holders of at least 100 Borden Shares
or the aggregate market value of the publicly held Borden Shares was less than
$5 million.
As of September 30, 1994, there were approximately 38,729 holders of record
of Borden Shares. Approximately 38,614 holders held in the aggregate
approximately 141,520,602 shares of Borden Common Stock (excluding 53,465,136
shares held in treasury). Because of the large number of shares of Borden Common
Stock held in the names of brokers and nominees, the Purchaser is unable to
estimate the number of beneficial owners of 100 or more shares or the aggregate
number of shares of Borden Common Stock they own. If, upon the completion of the
Exchange Offer (and if the Merger is not immediately thereafter consummated),
the shares of Borden Common Stock no longer meet the
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requirements of the NYSE for continued listing and the listing of shares of
Borden Common Stock is discontinued, the market for the shares of Borden Common
Stock would be adversely affected.
The Borden Common Stock also may be delisted from foreign exchanges on which
it is listed, subject to applicable requirements of such exchanges.
The extent of the public market for the shares of Borden Common Stock and
availability of quotations would depend upon such factors as the number of
holders and/or the aggregate market value of the publicly held shares of Borden
Common Stock at such time, the interest in maintaining a market in the shares of
Borden Common Stock on the part of securities firms, the possible termination of
registration of the shares of Borden Common Stock under the Exchange Act (see
"--Possible Termination of Registration Under the Exchange Act") and other
factors.
Possible Loss of Status as "Margin Securities"
The shares of Borden Common Stock are currently "margin securities" under
the regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which has the effect, among other things, of allowing
brokers to extend credit on the collateral of such shares of Borden Common
Stock. In the event that the shares of Borden Common Stock are no longer listed
on the NYSE upon completion of the Exchange Offer, depending upon factors such
as the number of holders of the shares of Borden Common Stock and the number and
market value of publicly held shares of Borden Common Stock, such shares might
no longer constitute "margin securities" for purposes of the Federal Reserve
Board's margin regulations, in which event the shares of Borden Common Stock may
no longer be used as collateral for loans by brokers. In addition, if
registration of the shares of Borden Common Stock under the Exchange Act is
terminated upon completion of the Exchange Offer, the shares of Borden Common
Stock will no longer constitute "margin securities." There can be no assurance
that, in the future, shares of Borden Common Stock will continue to constitute
"margin securities" and be available as collateral for loans made by brokers;
however, if the Merger is consummated, shares of Borden Common Stock will in any
event no longer constitute "margin securities."
Possible Termination of Registration Under the Exchange Act
The shares of Borden Common Stock are currently registered under the
Exchange Act. Such registration may be terminated upon application of Borden to
the Commission if the shares of Borden Common Stock are not listed on a national
securities exchange and there are fewer than 300 holders of record. Termination
of the registration of the shares of Borden Common Stock under the Exchange Act
would substantially reduce the information required to be furnished by Borden to
holders of shares of Borden Common Stock and to the Commission and would make
certain of the provisions of the Exchange Act, such as the short-swing profit
recovery provisions of Section 16(b), the requirement of furnishing a proxy or
information statement in connection with shareholder action and the related
requirement of an annual report to shareholders and the requirements of Rule
13e-3 under the Exchange Act with respect to "going private" transactions, no
longer applicable to the shares of Borden Common Stock. Furthermore,
"affiliates" of Borden and persons holding "restricted securities" of Borden
Common Stock may be deprived of the ability to dispose of such securities
pursuant to Rule 144 promulgated under the Securities Act. If registration of
the shares of Borden Common Stock under the Exchange Act were terminated, the
shares of Borden Common Stock would no longer be "margin securities" or eligible
for listing or reporting on the Nasdaq National Market. The Purchaser does not
currently intend to seek to terminate registration of the shares of Borden
Common Stock.
Effects of Inability to Consummate the Merger
Pursuant to the Merger Agreement, among other things, following the
consummation of the Exchange Offer, subject to certain conditions, the Purchaser
will be merged with Borden. If, following the Exchange Offer and exercise of the
Option, approval of Borden's shareholders is required by applicable law in order
to consummate the Merger of the Purchaser with Borden, provided that the
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Minimum Condition is satisfied without being reduced or waived, Borden will
submit the Merger to Borden's shareholders for approval. If the Merger is
submitted to Borden's shareholders for approval, the Merger will require the
approval of the holders of not less than 66 2/3% of the outstanding Borden
Shares, including the Borden Shares owned by the Purchaser and its affiliates.
There can be no assurance that the required vote of Borden shareholders will be
obtained or that the Merger will be consummated.
If the Merger is consummated, shareholders of Borden who elected not to
tender their Borden Shares in the Exchange Offer will receive upon consummation
of such Merger the same number of shares of Holdings Common Stock in exchange
for each of their Borden Shares as they would have received in the Exchange
Offer.
If, following the consummation of the Exchange Offer, the Merger is not
consummated, KKR Associates, which is the general partner of the Common Stock
Partnerships, indirectly will control the number of Borden Shares acquired by
the Purchaser pursuant to the Exchange Offer and upon exercise of the Option.
Under the Merger Agreement and the Conditional Purchase/Option Agreement,
following the acceptance for exchange of the Borden Shares to be exchanged
pursuant to the Exchange Offer and/or the purchase of the Option Shares in
accordance with the Conditional Purchase/Option Agreement, and from time to time
thereafter, subject to applicable law, Borden has agreed to take all actions
necessary to cause the Applicable Percentage of directors (and of members of
each committee of the Board of Directors) (rounded in each case to the next
highest director or member) of Borden selected by the Partnership to consist of
persons designated or elected by the Partnership (whether, at the election of
Borden, by means of increasing the size of the board of directors or seeking the
resignation of directors and causing the Partnership's designees to be elected);
provided that, if the Purchaser has acquired at least 28,138,000 Borden Shares,
the Applicable Percentage will not be less than 33 1/3%. As a result of its
ownership of such Borden Shares and right to designate nominees for election to
Borden's Board of Directors, KKR Associates, an affiliate of KKR, indirectly
will be able to influence decisions of the shareholders and such Board. This
concentration of influence in one shareholder may adversely affect the market
value of the Borden Common Stock.
To the extent KKR controls more than 50% of the outstanding Borden Shares
following the consummation of the Exchange Offer and exercise of the Option, but
the Merger is not consummated, Borden shareholders other than those affiliated
with KKR will lack sufficient voting power to elect directors or to cause other
actions to be taken which require majority approval.
Exchange Offer Conditions Related to Indebtedness
The Exchange Offer is conditioned upon, among other things, the obtaining of
all consents and waivers on terms satisfactory to the Partnership necessary in
order that the consummation of the transactions contemplated by the Merger
Agreement and the Conditional Purchase/Option Agreement not constitute events
giving rise to events of default or other rights permitting debt to become due
prior to maturity.
The Exchange Offer is also conditioned upon Borden having refinanced, or
received commitments for refinancing or indications satisfactory to the
Partnership from lenders that it will be able to refinance, in each case on
market terms reasonably acceptable to the Partnership, the principal bank credit
facilities of Borden and T.M.I. Associates, L.P., subject to certain
limitations.
In the event such consents, waivers or refinancing commitments are not
obtained, the Purchaser will have the right not to accept for exchange, exchange
or deliver shares of Holdings Common Stock for, subject to Rule 14e-1(c) under
the Exchange Act, any Borden Shares tendered and may terminate or (subject to
the terms of the Merger Agreement) amend the Exchange Offer or may postpone the
acceptance for exchange of the Borden Shares tendered. No assurance can be given
that such consents, waivers or refinancing commitments will be obtained.
Further, if the Purchaser were to waive the condition to the Exchange Offer that
the aforementioned consents and waivers be obtained, some or all of such
indebtedness or other obligations could become payable prior to their
maturities. See "The Exchange Offer--Terms of the Exchange Offer; Expiration
Date" and "--Certain Conditions of the Exchange Offer."
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SUMMARY
The following is a summary of certain information contained elsewhere or
incorporated by reference in this Offering Circular/Prospectus. Reference is
made to, and this Summary is qualified in its entirety by, the more detailed
information contained or incorporated by reference in this Offering
Circular/Prospectus. Unless otherwise defined herein, capitalized terms used in
this Summary have the respective meanings ascribed to them elsewhere in this
Offering Circular/Prospectus.
-------------------
FOR A DISCUSSION OF CERTAIN IMPORTANT FACTORS THAT SHOULD BE CONSIDERED BY
BORDEN SHAREHOLDERS IN CONNECTION WITH THEIR CONSIDERATION OF THE EXCHANGE
OFFER, INCLUDING CERTAIN FACTORS RELATING TO AN INVESTMENT IN HOLDINGS AND THE
TRANSACTIONS, SEE "SIGNIFICANT CONSIDERATIONS."
RJR NABISCO HOLDINGS CORP.
The operating subsidiaries of Holdings owned through RJRN comprise one of
the largest tobacco and food companies in the world. In the United States, the
tobacco business is conducted by RJRT, the second largest manufacturer of
cigarettes, and the packaged foods business is conducted by Nabisco, the largest
manufacturer and marketer of cookies and crackers. Tobacco operations outside
the United States are conducted by Tobacco International and food operations
outside the United States and Canada are conducted by Nabisco International,
Inc. ("Nabisco International"), a subsidiary of Nabisco. Together, RJRT's and
Tobacco International's tobacco products are sold around the world under a
variety of brand names. Food products are sold in the United States, Canada,
Latin America and certain other international markets.
Domestic Tobacco. RJRT's largest selling cigarette brands in the United
States include WINSTON, DORAL, SALEM, CAMEL, MONARCH and VANTAGE. RJRT's other
cigarette brands, including BEST VALUE, MORE, NOW, STERLING, MAGNA and CENTURY,
are marketed to meet a variety of smoker preferences. All RJRT brands are
marketed in a variety of styles. A primary long-term objective of RJRT is to
increase earnings and cash flow through selective marketing investments in its
key brands and continual improvements in its cost structure and operating
efficiency. Marketing programs for full-price brands are designed to build brand
awareness and add value to the brands in order to retain current adult smokers
and attract adult smokers of competitive brands. RJRT believes it is essential
to compete in all segments of the cigarette market, and accordingly offers a
range of lower-priced brands intended to appeal to more cost-conscious adult
smokers. Based on data collected for RJRT by an independent market research
firm, RJRT had an overall share of retail consumer cigarette sales during 1993
of 29.8%, an increase of approximately one share point from 1992.
International Tobacco. Tobacco International operates in over 160 markets
around the world and is the second largest of two international cigarette
producers that have significant positions in the American Blend segment of the
international tobacco market. Tobacco International markets over 55 brands of
which WINSTON, CAMEL and SALEM, all American Blend cigarettes, are its
international leaders. Tobacco International has strong brand presence in
Western Europe and is well established in its other key markets in the Middle
East/Africa, Asia and Canada. Tobacco International is aggressively pursuing
development opportunities in Eastern Europe and the former Soviet Union.
Nabisco. Nabisco's domestic operations represent one of the largest packaged
food businesses in the world. Through its domestic divisions, Nabisco
manufactures and markets cookies, crackers, snack foods, hard and bite-size
candy, gum, nuts, hot cereals, margarine, pet foods, dry-mix dessert products
and other grocery products under established and well-known trademarks,
including OREO, CHIPS AHOY!, NEWTONS, SNACKWELL'S, RITZ, PREMIUM, LIFE SAVERS,
PLANTERS, A.1, GREY POUPON, MILK-BONE, ORTEGA, CREAM OF WHEAT, FLEISCHMANN'S and
BLUE BONNET. Nabisco Biscuit Company ("Nabisco Biscuit") is the largest
manufacturer and
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marketer in the United States cookie and cracker industry with nine of the top
ten selling brands, each of which had annual sales of over $100 million in 1993.
Overall, in 1993, Nabisco Biscuit had a 37% share of the domestic cookie
industry sales and a 55% share of the domestic cracker industry sales, in the
aggregate more than three times the share of its closest competitor. In 1992,
Nabisco Biscuit became the leading manufacturer and marketer of no fat/reduced
fat cookies and crackers with the introduction of the SNACKWELL'S line. In 1993,
the SNACKWELL'S brand recorded net sales of $186 million, which made SNACKWELL'S
the sixth largest cookie/cracker brand in the United States. Based on 1993 net
sales, LIFE SAVERS is the largest selling hard roll candy in the United States,
with an approximately 25.4% share of the hard roll candy category, and PLANTERS
nuts are the clear leader in the packaged nut category, with a market share of
more than five times that of its nearest competitor.
Nabisco International is also a leading producer of powdered dessert and
drink mixes, biscuits, baking powder and other grocery items, industrial yeast
and bakery ingredients in many of the 17 Latin American countries in which it
has operations. Nabisco International has significantly increased its presence
in Europe through the acquisition of Royal Brands S.A. in Spain and Royal Brands
Portugal.
RJRN was acquired in 1989 by an indirect, wholly owned subsidiary of
Holdings (the "Acquisition") at the direction of KKR. Prior to the Acquisition,
RJRN was a publicly held corporation. See "Significant Considerations--KKR
Ownership."
The principal executive office of Holdings is located at 1301 Avenue of
Americas, New York, New York 10019; its telephone number is (212) 258-5600.
RECENT DEVELOPMENTS
Nabisco Initial Public Offering and Related Transactions. On October 28,
1994, Nabisco filed a registration statement with the Commission for the initial
public offering of 45 million shares of its Class A Common Stock (51.75 million
shares if the underwriters' over-allotment options are exercised in full). For
purposes of the filing, the initial offering price was estimated to be between
$23 and $26 per share. Upon completion of the proposed public offering, Holdings
would beneficially own 100% of Nabisco's outstanding Class B Common Stock, which
would represent approximately 82.6% of the economic interest in Nabisco (80.5%
if the underwriters' over-allotment options are exercised in full). Holders of
Class A Common Stock of Nabisco generally would have identical rights to holders
of Class B Common Stock except that holders of Class A Common Stock would be
entitled to one vote per share while holders of Class B Common Stock would be
entitled to ten votes per share on all matters submitted to a vote of
stockholders. The registration statement has not become effective and there can
be no assurance that such offering will be consummated.
The initial public offering of shares of Nabisco is part of a broader
proposed initiative of Holdings designed to reduce consolidated debt of Holdings
by approximately $1 billion and establish a separately traded common stock for
Nabisco. After completion of the proposed public offering, Holdings anticipates
commencing a quarterly cash dividend on its common stock of $.075 per share or
$.30 per share on an annualized basis. The proposed transactions are subject to
the approval of lenders under RJRN's bank credit facilities.
At the time of the proposed public offering, Nabisco is expected to have
approximately $4.2 billion of intercompany debt and approximately $1.3 billion
of borrowings under a short-term bank credit agreement. The net proceeds of the
proposed public offering will be used by Nabisco to repay a portion of the
borrowings under its bank facility.
As part of the initiative, RJRN has called for redemption several issues of
debt securities, including $1.5 billion of 10 1/2% Senior Notes due 1998,
approximately $374 million of 8 3/8% Sinking Fund Debentures due 2017, $100
million of 13 1/2% Subordinated Debentures due 2001 and approximately $25
million of 7 3/8% Sinking Fund Debentures due 2001, all of which are redeemable
with various
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redemption premiums. RJRN expects to fund these redemptions with borrowings
under its existing credit facilities, proceeds from Holdings' Series C Preferred
Stock offering completed on May 6, 1994 and internally generated cash flow. See
"Selected Pro Forma Consolidated Financial Data."
Upon completion of the proposed public offering of Nabisco, RJRN may seek to
restructure approximately $6 billion of its domestic publicly held debt which
currently limits the ability of Nabisco to incur long-term debt other than
intercompany debt. The restructuring, which would require consent of public
debtholders and lenders under bank facilities, may include one or more offers to
exchange Nabisco debt securities for a portion of such debt. The goal of the
exchange offers would be to permit Nabisco to establish long-term borrowing
capacity independent of its parent and to reduce its intercompany debt. No
assurance can be given that RJRN will seek to restructure its debt or that any
such restructuring will be consummated.
The Board of Directors of Holdings has adopted certain policies that would
become effective upon the closing of the Nabisco initial public offering. One
policy would provide that Holdings would limit, until December 31, 1998, the
aggregate amount of cash dividends on its capital stock. Under this policy,
during that period Holdings would not pay any extraordinary cash dividends and
would limit the amount of its cash dividends, cash distributions and repurchases
for cash of capital stock and subordinated debt to an amount equal to the sum of
$500 million plus (i) 65% of Holdings' cumulative consolidated net income before
extraordinary gains or losses and restructuring charges and (ii) net cash
proceeds of up to $250 million in any year from the sale of capital stock of
Holdings or its subsidiaries (other than proceeds from the Nabisco initial
public offering) to the extent used to repay, purchase or redeem debt or
preferred stock. Another policy would provide that Holdings would not declare a
dividend or distribution to its stockholders of the shares of capital stock of a
subsidiary before December 31, 1996. Another policy sets forth the intention of
Holdings that it would not make such a distribution prior to December 31, 1998
if that distribution would cause the ratings of the senior indebtedness of RJRN
to be reduced from investment grade to non-investment grade or if, after giving
effect to such distribution, any publicly held senior indebtedness of the
distributed company would not be rated investment grade. There is no assurance
that any such distribution will take place. Additional policies provide that an
amount equal to the net cash proceeds from any issuance and sale of equity by
Holdings or from any sale outside the ordinary course of business of material
assets owned or used by subsidiaries in the tobacco business, in each case
before December 31, 1998, would be used either to repay, purchase or redeem
consolidated indebtedness or to acquire properties, assets or businesses to be
used in existing or new lines of business and that an amount equal to the net
cash proceeds of any secondary sale of shares of Nabisco before December 31,
1998 would be used to repay, purchase or redeem consolidated debt. No assurance
can be given that Holdings will issue or sell any equity or sell any material
assets outside the ordinary course of business.
Termination of Agreement in Principle Relating to Borden. On October 25,
1994, Holdings and KKR concluded that they were unable to reach a definitive
agreement for the transaction contemplated by their agreement in principle for
Holdings to acquire a minority interest in Borden, as had been previously
announced on September 12, 1994. The September 12, 1994 announcement indicated
that, following KKR's successful acquisition of Borden, Holdings would issue to
Borden approximately $500 million of newly issued common shares of Holdings for
newly issued shares of Borden common stock representing a 20% pro forma interest
in Borden and a warrant to acquire an additional 10% pro forma interest in
Borden. The inability to reach agreement resulted from various complexities
affecting the transaction, including certain accounting issues. In particular,
because Holdings would have been required to account for its investment in
Borden using the equity method (thereby being required to reflect a portion of
Borden's potentially low or volatile earnings in its financial statements) and
to amortize a substantial amount of goodwill resulting from the transaction, the
proposed transaction would likely have had a dilutive effect on Holdings'
near-term earnings. Attempts to resolve these issues by restructuring the
transaction were unsuccessful. Holdings could in the future explore a basis on
which it or its Nabisco subsidiary may acquire a minority equity interest in
Borden in exchange for
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common stock of Holdings. However, Holdings is not currently engaged in any such
negotiations, and there is no assurance that Holdings will seek to pursue any
such negotiations or that any such negotiations will be successful.
BORDEN, INC.
Borden is engaged primarily in manufacturing, processing, purchasing and
distributing a broad range of products through three operating divisions: North
American Foods, International Foods and Packaging and Industrial Products. North
American Foods is comprised of niche grocery, pasta and sauce, and dairy
products, while International Foods includes international milk powder, European
bakery products and several European grocery and pasta businesses. Packaging and
Industrial Products includes primarily wallcoverings, adhesives and resins, and
plastic films and packaging.
Borden was incorporated in New Jersey on April 24, 1899 as the successor to
a business founded in 1857. Borden's principal executive offices are located at
180 East Broad Street, Columbus, Ohio 43215 (telephone number 614-225-4000).
THE PURCHASER AND THE COMMON STOCK PARTNERSHIPS
The Purchaser, a New Jersey corporation and a subsidiary of the Partnership,
was organized in connection with the Transactions and has not carried on any
activities to date other than those incident to its formation and the
Transactions. Prior to the consummation of the Exchange Offer, KKR Partners II,
L.P. will become a holder of shares of common stock of the Purchaser. Each of
the Common Stock Partnerships is a Delaware limited partnership, whose general
partner is KKR Associates, an affiliate of KKR. The principal assets of each of
the Common Stock Partnerships consist of investments in various entities,
including investments in Holdings Common Stock. The principal offices of the
Purchaser and the Common Stock Partnerships are located at 9 West 57th Street,
New York, New York 10019; telephone number (212) 750-8300. The name, business
address, principal occupation or employment, and five year employment history of
each of the directors and executive officers of the Purchaser and of KKR
Associates, the general partner of each of the Common Stock Partnerships, and
certain other information, are set forth in Schedule I to this Offering
Circular/Prospectus.
The Purchaser has reserved the right to transfer or assign, in whole or from
time to time in part, to one or more affiliates, the right to exchange all or
any portion of the Borden Shares tendered pursuant to the Exchange Offer, but
any such transfer or assignment will not relieve the Purchaser of its
obligations pursuant to the Exchange Offer and will in no way prejudice the
rights of tendering shareholders to exchange for Borden Shares validly tendered
and accepted for exchange pursuant to the Exchange Offer. According to the
Merger Agreement, it is presently contemplated that the right of the Purchaser
to exchange for shares of Borden Common Stock pursuant to the Exchange Offer and
the right of the Purchaser to exercise the Option will be assigned to the
Partnership or to a direct or indirect wholly owned subsidiary of the
Partnership, which may, in any such case, act for itself and/or as agent for one
or both of the Common Stock Partnerships, as the case may be.
For information concerning beneficial ownership of Holdings Common Stock by
affiliates of the Purchaser, see "Security Ownership of Certain Beneficial
Owners and Management."
THE EXCHANGE OFFER, THE MERGER AND RELATED TRANSACTIONS
The Purchaser, the Partnership and Borden have entered into the Merger
Agreement and the Conditional Purchase/Option Agreement, which provide for the
consummation of the Transactions, upon the terms and subject to the conditions
thereof. The Board of Directors of Borden, with seven members voting in favor,
and one member (Borden's chief executive officer) abstaining, has, among other
things, (1) determined that the Merger Agreement and the Conditional
Purchase/Option
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Agreement and the Transactions, including the Exchange Offer and the Merger,
taken together, are fair to the shareholders of Borden, and resolved to
recommend that holders of Borden Shares accept the Exchange Offer, tender their
Borden Shares to the Purchaser in the Exchange Offer and, if required by
applicable law, approve and adopt the Merger Agreement, and (2) approved the
Merger Agreement, the Conditional Purchase/Option Agreement and the
Transactions. See "The Exchange Offer--Borden Background and Reasons for the
Proposed Transactions" and "Description of Merger Agreement and Conditional
Purchase/Option Agreement." As of October 31, 1994, members of Borden's Board of
Directors and Borden's executive officers owned less than 1% of the outstanding
Borden Shares. To Borden's knowledge, all of the directors of Borden intend to
tender their Borden Shares pursuant to the Exchange Offer or vote their Borden
Shares in favor of approval and adoption of the Merger Agreement at the
shareholders' meeting in respect thereof, if any. To Borden's knowledge, all of
Borden's executive officers intend to tender their Borden Shares pursuant to the
Exchange Offer, other than those Borden Shares, if any, held by such persons
which, if tendered, could cause such persons to incur liability under the
provisions of Section 16(b) of the Exchange Act. However, none of these persons
has committed to tender their Borden Shares pursuant to the Exchange Offer, and
there can be no assurance that they will do so.
In the Exchange Offer, each Borden Share accepted by the Purchaser in
accordance with the Exchange Offer shall be converted into the right to receive
from the Purchaser that number of fully paid and nonassessable shares of
Holdings Common Stock equal to the Exchange Ratio, which is the quotient
(rounded to the nearest 1/100,000) obtained by dividing (i) $14.25 by (ii) the
average of the average of the high and low sales prices of the Holdings Common
Stock as reported on the NYSE Composite Tape during the Valuation Period,
provided that the Exchange Ratio shall not be less than 1.78125 or greater than
2.375.
If the Merger is consummated, holders of Borden Shares will receive the same
number of shares of Holdings Common Stock for each Borden Share as are exchanged
for each Borden Share in the Exchange Offer.
The Exchange Offer is being made by the Purchaser for the purpose of
acquiring 100% of the outstanding Borden Shares. If, following the Exchange
Offer and exercise of the Option, the Purchaser and its affiliates own more than
90% of the outstanding Borden Shares, the Purchaser will take all necessary or
appropriate action, without further action by the Board of Directors or
shareholders of Borden, to consummate the Merger of the Purchaser with Borden as
soon as practicable. If, following the Exchange Offer and exercise of the
Option, approval of Borden's shareholders is required by applicable law in order
to consummate the Merger, provided that the Minimum Condition is satisfied
without being reduced or waived, Borden will submit the Merger to the Borden
shareholders for approval. If the Merger is required to be submitted to Borden's
shareholders for approval, the Merger will require the approval of the holders
of not less than 66 2/3% of the outstanding Borden Shares, including the Borden
Shares owned by the Purchaser and its affiliates.
For a discussion of Borden's reasons for entering into the Merger Agreement,
see "The Exchange Offer--Borden Background and Reasons for the Proposed
Transactions."
THIS OFFERING CIRCULAR/PROSPECTUS DOES NOT CONSTITUTE A SOLICITATION OF A
PROXY, CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO ANY SPECIAL MEETING OR
OTHER MEETING OF BORDEN SHAREHOLDERS WHO DO NOT TENDER THEIR BORDEN SHARES OR
ANY ACTION IN LIEU THEREOF. ANY SUCH SOLICITATION WILL BE MADE ONLY PURSUANT TO
SEPARATE PROXY MATERIALS IN COMPLIANCE WITH SECTION 14(A) OF THE EXCHANGE ACT.
EXCHANGE OFFER
Terms of the Exchange Offer; Expiration Date. Upon the terms and subject to
the conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the Purchaser hereby offers to exchange shares of Holdings Common
Stock for all outstanding Borden Shares at the Exchange Ratio, provided that
such Borden
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Shares are validly tendered on or prior to the Expiration Date and not properly
withdrawn as described under "The Exchange Offer--Withdrawal Rights." The term
"Expiration Date" means 12:00 Midnight, New York City time, on December ,
1994, unless the Purchaser shall have extended the period of time for which the
Exchange Offer is open, in which event the term "Expiration Date" shall mean the
latest time and date at which the Exchange Offer, as so extended by the
Purchaser, shall expire.
The Purchaser will announce the exact Exchange Ratio with respect to each
Borden Share that is to be exchanged for shares of Holdings Common Stock in the
Exchange Offer by 9:00 A.M., New York City time, on the first business day of
the ten business day period ending on the Expiration Date. The Purchaser will
make such announcement by issuing a press release to the Dow Jones News Service.
During the ten business day period ending on the Expiration Date, holders of
Borden Shares will be able to obtain the exact Exchange Ratio with respect to
each Borden Share that is to be exchanged for shares of Holdings Common Stock in
the Exchange Offer from the Information Agent or the Dealer Manager for the
Exchange Offer at their respective telephone numbers appearing on the back cover
of this Offering Circular/Prospectus.
The Exchange Offer is subject to, among other things, the Minimum Condition.
The Exchange Offer is also subject to other material terms and conditions, which
Borden shareholders should carefully consider. The Purchaser has reserved the
right (but shall not be obligated) to waive any or all of the conditions,
provided, however, that if the Purchaser shall have exercised the Option in
whole or in part prior to the termination of the Exchange Offer, the Purchaser
shall not be permitted to waive the Minimum Condition. See "Significant
Considerations--Information Concerning the Transactions-- Exchange Offer
Conditions Related to Indebtedness," "The Exchange Offer--Certain Conditions of
the Exchange Offer" and "Description of Merger Agreement and Conditional
Purchase/Option Agreement."
Exchange of Shares of Borden Common Stock. Upon the terms and subject to the
conditions of the Exchange Offer (including, if the Exchange Offer is extended
or amended, the terms and conditions of any such extension or amendment), the
Purchaser will accept for exchange, and will exchange for shares of Holdings
Common Stock, all Borden Shares validly tendered and not properly withdrawn on
or prior to the Expiration Date promptly after the later to occur of (i) the
Expiration Date and (ii) the satisfaction or waiver of the conditions of the
Exchange Offer set forth under "The Exchange Offer-- Certain Conditions of the
Exchange Offer." See "The Exchange Offer--Exchange of Shares of Borden Common
Stock" and "--Withdrawal Rights."
In all cases, exchange of Borden Shares tendered and accepted for exchange
pursuant to the Exchange Offer will be made only after timely receipt by the
Exchange Agent of (i) Share Certificates (and Rights Certificates if applicable)
for Borden Shares, or timely confirmation (a "Book-Entry Confirmation") of a
book-entry transfer of such Borden Shares into the Exchange Agent's account at
The Depository Trust Company, the Midwest Securities Trust Company or the
Philadelphia Depository Trust Company (each a "Book-Entry Transfer Facility"
and, collectively, the "Book-Entry Transfer Facilities") pursuant to the
procedures set forth under "The Exchange Offer--Procedure for Tendering Shares
of Borden Common Stock," (ii) the Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or an Agent's Message (as defined below) in connection with a
book-entry transfer, and (iii) any other documents required by the Letter of
Transmittal.
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility to, and received by, the Exchange Agent and forming a part of
a Book-Entry Confirmation, which states that such Book-Entry Transfer Facility
has received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Borden Shares which are the subject of such
Book-Entry Confirmation, that such participant has received and agrees to be
bound by the terms of the Letter of Transmittal and that the Purchaser may
enforce such agreement against such participant.
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Unless and until the Rights are redeemed in accordance with the Merger
Agreement, holders of Borden Shares will be required to tender the Rights
associated with such Borden Shares in order to effect a valid tender of such
Borden Shares. As of the date hereof, the Rights trade together with the Borden
Shares and a tender of the Borden Shares will be deemed to be a tender of the
associated Rights. If separate Rights Certificates are issued, tendering
shareholders will then be required to tender both Share Certificates and Rights
Certificates in order to effect a valid tender.
If any tendered Borden Shares are not accepted for exchange for any reason
or if Share Certificates (and Rights Certificates if applicable) are submitted
for more Borden Shares than are tendered, Share Certificates (and Rights
Certificates if applicable) for Borden Shares evidencing un-exchanged or un-
tendered Borden Shares will be returned, without expense to the tendering
shareholder (or, in the case of Borden Shares tendered by book-entry transfer
into the Exchange Agent's account at a Book-Entry Transfer Facility pursuant to
the procedures described under "The Exchange Offer--Procedure for Tendering
Shares of Borden Common Stock--Book-Entry Transfer," such Borden Shares will be
credited to an account maintained at such Book-Entry Transfer Facility), in each
case with the related Rights Certificates (if applicable), promptly following
the expiration, termination or withdrawal of the Exchange Offer.
If, prior to the Expiration Date, the Purchaser increases the consideration
offered to shareholders pursuant to the Exchange Offer, such increased
consideration will be given to all shareholders whose Borden Shares are
exchanged pursuant to the Exchange Offer, whether or not such Borden Shares were
tendered or accepted for exchange prior to such increase in consideration.
Procedure for Tendering Shares of Borden Common Stock. Except as set forth
below, in order for Borden Shares (and Rights if applicable) to be validly
tendered pursuant to the Exchange Offer, the Letter of Transmittal (or a
facsimile thereof), properly completed and duly executed, together with any
required signature guarantees, or an Agent's Message in connection with a
book-entry delivery of Borden Shares (and Rights if applicable) and any other
documents required by the Letter of Transmittal, must be received by the
Exchange Agent at one of its addresses set forth on the back cover of this
Offering Circular/Prospectus on or prior to the Expiration Date and either (i)
the Share Certificates (and Rights Certificates if applicable) evidencing
tendered Borden Shares (and Rights if applicable) must be received by the
Exchange Agent at such address or such Borden Shares (and Rights if applicable)
must be tendered pursuant to the procedure for book-entry transfer and a
Book-Entry Confirmation must be received by the Exchange Agent, in each case on
or prior to the Expiration Date, or (ii) the guaranteed delivery procedures must
be complied with.
THE METHOD OF DELIVERY OF BORDEN SHARES (AND RIGHTS IF APPLICABLE), AND ALL
OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING SHAREHOLDER. IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
Withdrawal Rights. Tenders of Borden Shares (and Rights if applicable) made
pursuant to the Exchange Offer are irrevocable, except that Borden Shares (and
Rights if applicable) tendered pursuant to the Exchange Offer may be withdrawn
at any time on or prior to the Expiration Date and, unless theretofore accepted
for exchange by the Purchaser pursuant to the Exchange Offer, may also be
withdrawn at any time after , 1995. If the Purchaser extends the
Exchange Offer, is delayed in its acceptance for exchange of or exchange for
Borden Shares or is unable to exchange Borden Shares validly tendered pursuant
to the Exchange Offer for any reason, then, without prejudice to the Purchaser's
rights under the Exchange Offer, the Exchange Agent may nevertheless, on behalf
of the Purchaser, retain tendered Borden Shares (and Rights if applicable), and
such Borden Shares (and Rights if applicable) may not be withdrawn except to the
extent that tendering shareholders are entitled to withdrawal rights as
described below. Any such delay will be by an extension of the Exchange Offer to
the extent required by law.
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For a withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by the Exchange Agent
at one of its addresses set forth on the back cover of this Offering
Circular/Prospectus. Any notice of withdrawal must specify the name of the
person who tendered the Borden Shares (and Rights if applicable) to be
withdrawn, the number of Borden Shares (and Rights if applicable) to be
withdrawn and the name of the registered holder, if different from that of the
person who tendered such Borden Shares (and Rights if applicable). If Share
Certificates (or Rights Certificates if applicable) for Borden Shares (and
Rights if applicable) to be withdrawn have been delivered or otherwise
identified to the Exchange Agent, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Exchange Agent and the signature(s) on the notice of withdrawal must be
guaranteed by an Eligible Institution unless such Borden Shares (and Rights if
applicable) have been tendered for the account of an Eligible Institution. If
Borden Shares (and Rights if applicable) have been tendered pursuant to the
procedure for book-entry transfer as described under "The Exchange
Offer--Procedure for Tendering Shares of Borden Common Stock--Book-Entry
Transfer," any notice of withdrawal must specify the name and number of the
account at the Book-Entry Transfer Facility to be credited with the withdrawn
Borden Shares (and Rights if applicable), in which case a notice of withdrawal
will be effective if delivered to the Exchange Agent by any method of delivery
described in the first sentence of this paragraph.
Any Borden Shares (and Rights if applicable) properly withdrawn will
thereafter be deemed not to have been validly tendered for purposes of the
Exchange Offer. However, withdrawn Borden Shares (and Rights if applicable) may
be re-tendered at any time on or prior to the Expiration Date by following one
of the procedures described under "The Exchange Offer--Procedure for Tendering
Shares of Borden Common Stock."
Extension of Tender Period; Termination; Amendment. The Purchaser expressly
reserves the right, in its sole discretion, at any time and from time to time,
to extend the period during which the Exchange Offer is open for any reason,
including the occurrence of any of the conditions specified under "The Exchange
Offer--Certain Conditions of the Exchange Offer," by giving oral or written
notice of such extension to the Exchange Agent. During any such extension, all
Borden Shares (and Rights if applicable) previously tendered and not properly
withdrawn will remain subject to the Exchange Offer, subject to the rights of a
tendering shareholder to withdraw such shareholder's Borden Shares (and Rights
if applicable). Pursuant to the Merger Agreement, the Purchaser has agreed that,
upon the request of Borden (and without limiting the number of times that the
Purchaser may extend the Exchange Offer, or the total number of days for which
the Exchange Offer may be extended), the Purchaser will extend the Exchange
Offer, one or more times, for an aggregate of not more than twenty business
days. See "The Exchange Offer--Withdrawal Rights" and "Description of Merger
Agreement and Conditional Purchase/Option Agreement."
The Purchaser acknowledges (i) that Rule 14e-1(c) under the Exchange Act
requires the Purchaser to pay the consideration offered or return the Borden
Shares (and Rights if applicable) tendered promptly after the termination or
withdrawal of the Exchange Offer and (ii) that the Purchaser may not delay
acceptance for exchange of, or exchange for (except as provided in clause (i) of
the succeeding sentence), any Borden Shares upon the occurrence of any of the
conditions specified under "The Exchange Offer--Certain Conditions of the
Exchange Offer" without extending the period of time during which the Exchange
Offer is open. Subject to the foregoing and any other applicable regulations of
the Commission, the Purchaser also reserves the right, in its sole discretion,
at any time or from time to time to (i) delay acceptance for exchange of or,
regardless of whether such Borden Shares were theretofore accepted for exchange,
exchange for any Borden Shares pending receipt of any regulatory approvals
specified under "The Exchange Offer--Certain Regulatory Approvals and Legal
Matters," (ii) terminate the Exchange Offer (whether or not any Borden Shares
have theretofore been accepted for exchange) if any of the conditions referred
to under "The Exchange Offer--Certain Conditions of the Exchange Offer" has not
been satisfied or upon the occurrence of any of the conditions specified
thereunder and (iii) waive any condition or otherwise amend the Exchange Offer
in any respect, in each case, by giving oral or written notice of such delay,
termination, waiver or amendment to the Exchange Agent and by making a public
announcement thereof.
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<PAGE>
Any such extension, delay, termination, waiver or amendment will be followed
as promptly as practicable by public announcement thereof, and such announcement
in the case of an extension will be made no later than 9:00 A.M., New York City
time, on the next business day after the previously scheduled Expiration Date.
Without limiting the manner in which the Purchaser may choose to make any public
announcement, except as provided by applicable law (including Rules 14d-4(c) and
14d-6(d) under the Exchange Act, which require that material changes be promptly
disseminated to holders of Borden Shares), the Purchaser shall have no
obligation to publish, advertise or otherwise communicate any such public
announcement other than by issuing a release to the Dow Jones News Service.
CERTAIN PROVISIONS OF THE MERGER AGREEMENT
Merger. Pursuant to the Merger Agreement, if approval of Borden's
shareholders is required by applicable law in order to consummate the Merger,
provided that the Minimum Condition is satisfied without being reduced or
waived, following the acceptance for exchange of Borden Shares pursuant to the
Exchange Offer, Borden, acting through its Board of Directors, will, in
accordance with applicable law, as soon as practicable following the expiration
or termination of the Exchange Offer, duly call, give notice of, convene and,
subject to the right of the parties to delay a special meeting under certain
circumstances described in the Merger Agreement, hold a special meeting of its
shareholders (the "Borden Shareholders' Meeting") for the purpose of considering
and taking action upon the Merger Agreement and the Merger and to obtain the
necessary approval by its shareholders of the Merger Agreement and the
transactions contemplated thereby, including the Merger.
Under the Merger Agreement, in the event that the Partnership and the
Purchaser, or any other direct or indirect subsidiary of the Partnership
acquires at least 90% of the outstanding Borden Shares, the parties have agreed
to take all necessary or appropriate action to cause the Merger to become
effective as soon as practicable after the expiration of the Exchange Offer
without a meeting of shareholders of Borden, in accordance with applicable
provisions of the New Jersey Business Corporation Act (the "NJBCA").
By virtue of the Merger and without any further action on the part of the
holder of any shares of Borden Common Stock or any shares of capital stock of
the Purchaser, each issued and outstanding share of Borden Common Stock (other
than shares owned by Borden or any subsidiary of Borden or the Partnership, the
Purchaser or any other subsidiary of the Partnership) will be converted into the
right to receive a number of fully paid and nonassessable shares of Holdings
Common Stock equal to the number of fully paid and nonassessable shares of
Holdings Common Stock that were delivered by the Purchaser with respect to each
share of Borden Common Stock that was validly tendered and not properly
withdrawn and accepted for exchange pursuant to the terms of the Exchange Offer.
Representations and Warranties. The Merger Agreement contains certain
representations and warranties of Borden, the Partnership and the Purchaser. See
"Description of Merger Agreement and Conditional Purchaser/Option Agreement."
Covenants Regarding Conduct of Business. Except as contemplated by the
Merger Agreement, during the period from the date of the Merger Agreement to the
date on which a majority of the Board of Directors of Borden consists of
designees or representatives of the Partnership, Borden, with respect to itself
and each of its subsidiaries, has agreed in the Merger Agreement to conduct its
operations according to its ordinary course of business consistent with past
practice and to use its best efforts to preserve intact its business
organization, to keep available the services of its current officers and
employees and to preserve existing relationships with licensors, licensees,
suppliers, contractors, distributors, customers and others having business
relationships with it to the end that its goodwill and ongoing businesses will
be unimpaired at the date on which a majority of the Board of Directors of
Borden consists of designees or representatives of the Partnership.
21
<PAGE>
No Solicitation. Under the Merger Agreement, except with respect to
divestitures in accordance with Borden's January 1994 restructuring plan, Borden
has agreed that neither it nor any of its subsidiaries will, nor will it or any
of its subsidiaries authorize or permit any of its officers, directors or
employees or any investment banker, financial advisor, attorney, accountant or
other representative retained by it or any of its subsidiaries to, (a) solicit,
initiate, encourage (including by way of furnishing information), or take any
other action to facilitate, any inquiry or the making of any proposal which
constitutes, or may reasonably be expected to lead to, any acquisition or
purchase of a substantial amount of assets of, or any equity interest in, Borden
or any of its subsidiaries or any tender offer (including a self tender offer)
or exchange offer, merger, consolidation, business combination, sale of
substantially all assets, sale of securities, recapitalization, liquidation,
dissolution or similar transaction involving Borden or any of its subsidiaries
(other than the transactions contemplated by the Merger Agreement or the
Conditional Purchase/Option Agreement) or any other transaction the consummation
of which would or could reasonably be expected to impede, interfere with,
prevent or materially delay the Merger or the exercise of the Option or which
would or could reasonably be expected to materially dilute the benefits to the
Purchaser of the transactions contemplated by the Merger Agreement
(collectively, "Transaction Proposals") or agree to or endorse any Transaction
Proposal or (b) enter into or participate in any discussions or negotiations
regarding any of the foregoing, or furnish to any other person any information
with respect to its business, properties or assets or any of the foregoing, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any other person to do or seek any of the
foregoing; provided, however, that the foregoing clauses will not prohibit
Borden from (i) furnishing information pursuant to an appropriate
confidentiality letter concerning Borden and its businesses, properties or
assets to a third party who has made a Transaction Proposal, (ii) engaging in
discussions or negotiations with such a third party who has made a Transaction
Proposal or (iii) following receipt of a Transaction Proposal, taking and
disclosing to its shareholders a position contemplated by Rule 14e-2(a) under
the Exchange Act or changing the Recommendations, but in each case referred to
in the foregoing clauses (i) through (iii) only after the Board of Directors of
Borden concludes in good faith that such action is necessary or appropriate in
order for the Board of Directors of Borden to act in a manner which is
consistent with its fiduciary obligations under applicable law. If the Board of
Directors of Borden receives a Transaction Proposal, then Borden has agreed
promptly to inform the Partnership of the terms and conditions of such proposal
and the identity of the person making it and to keep the Partnership generally
informed with reasonable promptness of any steps it is taking pursuant to the
foregoing with respect to such Transaction Proposal.
Cooperation and Best Efforts. Pursuant to the Merger Agreement, subject to
certain conditions and limitations described therein, the parties have agreed to
cooperate with each other and to use their respective best efforts to take
appropriate actions so that the transactions contemplated by the Merger
Agreement and the Conditional Purchase/Option Agreement may be consummated.
In addition, in the Merger Agreement, Borden and the Partnership have agreed
that, as promptly as practicable, they will file notification and report forms
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), with the Federal Trade Commission (the "FTC") and the Antitrust
Division of the Department of Justice (the "Antitrust Division") and make any
other necessary filings with the applicable governmental entities related to the
transactions contemplated by the Merger Agreement, including the Exchange Offer
and the Merger, and the Conditional Purchase/Option Agreement and will use their
best efforts to respond as promptly as practicable to all inquiries received
from the FTC or the Antitrust Division or such other governmental entities for
additional information or documentation. Provided that following receipt of such
approvals the Purchaser (or one of its affiliates) acquires at least 28,138,000
Shares pursuant to the Exchange Offer and/or the Option, Borden has agreed to
make any and all divestitures or undertakings required by the FTC, the Antitrust
Division or any other applicable government entity in connection with the
Transactions, which divestitures in each case shall be reasonably acceptable to
the Partnership and the Purchaser. See "Certain Regulatory Approvals and Legal
Matters" for a discussion of, among other
22
<PAGE>
things, the current status of filings by the Partnership and Borden under the
HSR Act and related matters.
Redemption of Rights. Pursuant to the Merger Agreement, Borden has agreed to
redeem all outstanding Rights at a redemption price of one and two-thirds cents
per Right effective immediately prior to the acceptance for exchange of any
Borden Shares pursuant to the Exchange Offer, provided that the Minimum
Condition is satisfied in the Exchange Offer. In accordance with the Merger
Agreement, Borden has amended the Rights Agreement so that none of the execution
or the delivery of the Merger Agreement or the Conditional Purchase/Option
Agreement, or both such agreements taken together, or commencement of the
Exchange Offer or the acceptance of Borden Shares for exchange pursuant to the
Exchange Offer, or the consummation of the transactions contemplated by the
Conditional Purchase/Option Agreement will, among other things, trigger the
exercisability of the Rights, the separation of the Rights from the stock
certificates to which they are attached or any other provisions of the Rights
Agreement. Borden has agreed, under certain circumstances, to take other
specified actions with respect to the Rights. See "Description of Merger
Agreement and Conditional Purchase/Option Agreement."
Conditions to Each Party's Obligations to Effect the Merger. The Merger
Agreement provides that the respective obligation of each party to effect the
Merger is subject to certain conditions, including, among other things, the
consummation of the Exchange Offer and the truth and correctness as of the
effective date of the Merger of certain representations and warranties of the
parties to the Merger Agreement with respect to material adverse changes in
their business, financial condition or results of operations. See "Description
of Merger Agreement and Conditional Purchase/Option Agreement."
Termination. The Merger Agreement may be terminated and the Merger
contemplated thereby may be abandoned at any time, notwithstanding approval
thereof by the shareholders of Borden, but prior to the effective time of the
Merger: (a) by mutual written consent of the Partnership, the Purchaser and
Borden; (b) by the Partnership or Borden if any court of competent jurisdiction
or other governmental body located or having jurisdiction within the United
States or any country or economic region in which either Borden or the
Partnership, directly or indirectly, has material assets or operations, shall
have issued an order, decree or ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and nonappealable; (c) by
the Partnership if due to an occurrence or circumstance which would result in a
failure to satisfy any of the conditions to the Exchange Offer the Purchaser
shall have terminated the Exchange Offer, unless such termination shall have
been caused by or resulted from the failure of the Partnership or the Purchaser
to perform in any material respect their material covenants and agreements
contained in the Merger Agreement; (d) by the Partnership if Borden shall have
modified or amended in any respect materially adverse to the Partnership or the
Purchaser or withdrawn its approval or recommendation of the Exchange Offer, the
Merger or the Merger Agreement, subject to certain exceptions; (e) by the
Partnership if Borden shall have (i) entered into any definitive agreement to
effect the transaction contemplated by a Transaction Proposal, (ii) recommended
any Transaction Proposal from a person other than the Partnership or the
Purchaser or any of its affiliates or (iii) resolved to do any of the foregoing;
(f) by the Partnership if certain alternative acquisitions shall have occurred;
(g) by Borden if (i) due to an occurrence or circumstance that would result in a
failure to satisfy any of the conditions of the Exchange Offer the Purchaser
shall have terminated the Exchange Offer, subject to certain exceptions; (h) by
the Partnership or Borden if, without fault of the terminating party, the
effective time of the Merger shall not have occurred on or before June 30, 1995
(provided, that the right to terminate the Merger Agreement under this clause
(h) shall not be available to any party whose failure to fulfill any obligation
under the Merger Agreement has been the cause of, or results in, the failure of
the Merger to have been consummated within such period); (i) by Borden if on or
after December 15, 1994, the termination date of a waiver granted to Borden of
certain provisions relating to changes in control of Borden under the credit
agreement dated
23
<PAGE>
as of August 16, 1994 among Borden and the banks' party thereto shall not then
extend past December 15, 1994 and certain other events shall occur as a result
thereof; or (j) by the Partnership or Borden if any required approval of the
shareholders of Borden shall not have been obtained by reason of the failure to
obtain the required vote upon a vote held at a duly held meeting of shareholders
or at any adjournment thereof. See "Description of Merger Agreement and
Conditional Purchase/Option Agreement."
Certain Required Payments. Pursuant to the Merger Agreement, Borden has
agreed to make certain payments to the Partnership and the Purchaser in respect
of expenses (in the aggregate amount of up to $15 million) and fees (in the
aggregate amount of up to $30 million), including upon certain termination
events with respect to the Merger Agreement.
CERTAIN PROVISIONS OF THE CONDITIONAL PURCHASE/OPTION AGREEMENT
Pursuant to the Conditional Purchase/Option Agreement, Borden has granted to
the Purchaser the irrevocable Option to purchase up to 28,138,000 Option Shares
(or approximately 19.9% of the outstanding Borden Shares as of the date hereof),
on the terms and subject to the conditions set forth therein.
Exercise of Option. Under the Conditional Purchase/Option Agreement, the
Option may be exercised by the Purchaser (or its designee, which designee must
be the Partnership or a direct or indirect wholly owned subsidiary of the
Partnership and which may, in any such case, act for itself and/or as agent for
one or both of the Common Stock Partnerships, as the case may be), in whole or
in part, at any time, or from time to time, during the period beginning on the
date of the Conditional Purchase/Option Agreement and ending on the Option
Expiration Date (as defined below), provided that if the Purchaser (or its
designee) has not exercised the Option in whole or in part prior to the
expiration of the Exchange Offer, it will not be entitled to exercise the Option
thereafter if it waives or otherwise reduces the Minimum Condition and accepts
fewer than 41% of the outstanding Borden Shares for payment in the Exchange
Offer. The term "Option Expiration Date" means the first to occur of the
effective time of the Merger and March 21, 1995 (unless the Purchaser has
theretofore sent a written notice of its intention to exercise the Option).
Conversion of Option. The Conditional Purchase/Option Agreement provides
that, upon the Conversion Date (as defined below), if any, the Option will be
converted in part from an irrevocable option to purchase the Borden Shares into
an obligation on the part of the Purchaser (or its designee, which designee must
be the Partnership or a direct or indirect wholly owned subsidiary of the
Partnership and which may, in any such case, act for itself and/or as agent for
one or both of the Common Stock Partnerships, as the case may be) to exercise
the Option to acquire, and of the Partnership to cause the Purchaser to take
such action, subject to applicable law (the "Mandatory Purchase"), on the terms
and subject to the conditions set forth in the Conditional Purchase/Option
Agreement, such number of Borden Shares which, when added to the number of
Borden Shares purchased in the Exchange Offer (together with any Borden Shares
previously purchased pursuant to the Option) will result in the Purchaser
beneficially owning more than 50% of the outstanding shares of Borden Common
Stock (the "Mandatory Purchase Shares"). Borden Shares subject to the Option in
excess of the number of Mandatory Purchase Shares will continue to be subject to
purchase at the option of the Purchaser. The term "Conversion Date" means the
date, if any, on which the Purchaser or the Partnership or a direct or indirect
wholly owned subsidiary of the Partnership acquires more than 41%, but less than
50%, of the outstanding shares of Borden Common Stock pursuant to the Exchange
Offer.
Payments. The Conditional Purchase/Option Agreement provides that, in the
event the Purchaser exercises the Option, the Purchaser (or, at the Purchaser's
option, its designee) will deliver to Borden, such number of shares (rounded to
the nearest whole share) of Holdings Common Stock as will equal the product of
the Option Exchange Ratio (as defined below) and the number of Borden Shares
24
<PAGE>
purchased pursuant to the exercise of the Option. The term "Option Exchange
Ratio" means the quotient (rounded to the nearest 1/100,000) obtained by
dividing (i) $11.00 (the "Option Purchase Price") by (ii) the average of the
average of the high and low prices of Holdings Common Stock as reported on the
NYSE Composite Tape on each of the ten consecutive trading days immediately
preceding the second trading day prior to (x) the date of notice of exercise in
the case of an Option Purchase or (y) the date of exercise in the case of a
Mandatory Purchase, subject to adjustment under certain circumstances.
BOARD REPRESENTATION
The Merger Agreement and the Conditional Purchase/Option Agreement provide
that, if requested by the Partnership, Borden will, following the acceptance for
exchange of the Borden Shares to be exchanged pursuant to the Exchange Offer
and/or the purchase of the Option Shares in accordance with the Conditional
Purchase/Option Agreement, and from time to time thereafter, take all actions
necessary to cause the Applicable Percentage (as defined below) of directors
(and of members of each committee of the Board of Directors) (rounded in each
case to the next highest director or member) of Borden selected by the
Partnership to consist of persons designated or elected by the Partnership
(whether, at the election of Borden, by means of increasing the size of the
Borden Board of Directors or seeking the resignation of directors and causing
the Partnership's designees to be elected). The term "Applicable Percentage"
means the ratio of (i) the total voting power of all Borden Shares accepted for
exchange pursuant to the Exchange Offer and/or purchased in accordance with the
Conditional Purchase/Option Agreement to (ii) the total voting power of the
outstanding voting securities of Borden, rounded to the nearest whole number and
expressed as a percentage; provided that, if the Purchaser has acquired at least
28,138,000 Borden Shares, the Applicable Percentage will not be less than 33
1/3%.
DISSENTERS' RIGHTS
Holders of Borden Common Stock will not be entitled to dissenters' rights
under New Jersey law in connection with the Exchange Offer or the Merger, and
the Purchaser does not intend to accord dissenters' rights to holders of Borden
Common Stock.
MATERIAL TAX CONSEQUENCES
The receipt of shares of Holdings Common Stock pursuant to the Exchange
Offer or the Merger will result in the recognition of gain or loss for federal
income tax purposes by a Borden shareholder in an amount equal to the difference
between the fair market value of the consideration received (including cash
received in lieu of fractional shares) and such shareholder's adjusted tax basis
in the Borden Shares exchanged and may also have tax consequences under
applicable state, local, foreign or other tax laws. See "The Exchange
Offer--Material Tax Consequences."
FEES AND EXPENSES OF THE EXCHANGE OFFER
Morgan Stanley & Co. Incorporated ("Morgan Stanley") is acting as the
Purchaser's financial advisor in connection with the proposed acquisition of
Borden Common Stock and as Dealer Manager for the Exchange Offer. The Purchaser
has retained D.F. King & Co., Inc. to act as the Information Agent and First
Chicago Trust Company of New York to act as the Exchange Agent in connection
with the Exchange Offer.
Morgan Stanley, the Information Agent and the Exchange Agent each will
receive compensation for their respective services, will be reimbursed for
certain reasonable out-of-pocket expenses and will be indemnified against
certain liabilities in connection therewith, including certain liabilities under
the federal securities laws. The aggregate amount of the fees and expenses of
the Dealer Manager, the
25
<PAGE>
Information Agent and the Exchange Agent is estimated to be up to approximately
$8.25 million. See "The Exchange Offer--Fees and Expenses of the Exchange Offer
and Source of Funds."
CERTAIN REGULATORY APPROVALS AND LEGAL MATTERS
Except as set forth in "The Exchange Offer--Certain Regulatory Approvals and
Legal Matters," neither the Purchaser nor the Partnership is aware of any
licenses or other regulatory permits that appear to be material to the business
of Borden and its subsidiaries, taken as a whole, that might be adversely
affected by the Purchaser's acquisition of Borden Shares (and the indirect
acquisition of the stock of Borden's subsidiaries) as contemplated herein, or of
any filings, approvals or other actions by or with any domestic (federal or
state), foreign or supranational governmental authority or administrative or
regulatory agency that would be required prior to the acquisition of Borden
Shares (or the indirect acquisition of the stock of Borden's subsidiaries) by
the Purchaser pursuant to the Exchange Offer as contemplated herein. Should any
such approval or other action be required, it is the Purchaser's present
intention to seek such approval or action. The Purchaser does not presently
intend, however, to delay the exchange of Borden Shares tendered pursuant to the
Exchange Offer pending the receipt of any such approval or the taking of any
such action (subject to the Purchaser's right to delay or decline to exchange
Borden Shares if any of the conditions described under "The Exchange
Offer--Certain Conditions of the Exchange Offer" shall have occurred). There can
be no assurance that any such approval or other action, if needed, would be
obtained without substantial conditions or that adverse consequences might not
result to the business of Borden, the Partnership or the Purchaser or that
certain parts of the businesses of Borden, the Partnership or the Purchaser
might not have to be disposed of or held separate or other substantial
conditions complied with in order to obtain such approval or other action or in
the event that such approval was not obtained or such other action was not
taken, any of which could cause the Purchaser to elect to terminate the Exchange
Offer without the exchange of the Borden Shares thereunder.
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<PAGE>
COMPARATIVE MARKET PRICES AND DIVIDENDS
The Holdings Common Stock and the Borden Common Stock are listed and
principally traded on the NYSE (Symbols: RN and BN, respectively). The following
tables set forth the high and low sales prices per share of the Holdings Common
Stock as reported on the NYSE Composite Tape and the high and low sales prices
per share of the Borden Common Stock and cash dividends paid by Borden for each
period indicated. See "Borden, Inc.--Recent Developments." Holdings has not paid
dividends on the Holdings Common Stock. See "RJR Nabisco Holdings Corp.--Recent
Developments" and "Description of Holdings Capital Stock." The fiscal year for
each company ends on December 31 of each year. On September 9, 1994, the last
full trading day prior to the public announcement of the execution of the letter
of intent with respect to the Transactions, the closing sale price per share, as
reported on the NYSE Composite Tape, was $7 for the Holdings Common Stock and
$11 7/8 for the Borden Common Stock. Recent closing sale prices for shares of
Holdings Common Stock and Borden Common Stock are set forth on the cover page of
this Offering Circular/Prospectus.
SHAREHOLDERS ARE URGED TO OBTAIN CURRENT QUOTATIONS FOR THE HOLDINGS COMMON
STOCK AND THE BORDEN COMMON STOCK.
HOLDINGS COMMON STOCK
<TABLE><CAPTION>
SALES PRICE
-------------------------------
FISCAL YEAR HIGH LOW
- --------------------------------------------------------------- ------------- ------------
<S> <C> <C>
1992
First Quarter................................................ $ 11 3/4 $ 8 3/4
Second Quarter............................................... 10 3/8 8 3/8
Third Quarter................................................ 9 7/8 8
Fourth Quarter............................................... 9 1/4 7 7/8
1993
First Quarter................................................ $ 9 1/4 $ 7 5/8
Second Quarter............................................... 8 1/8 5 1/8
Third Quarter................................................ 5 7/8 4 1/2
Fourth Quarter............................................... 7 3/8 4 3/8
1994
First Quarter................................................ $ 8 1/8 $ 5 5/8
Second Quarter............................................... 7 5 1/2
Third Quarter................................................ 7 1/8 5 5/8
Fourth Quarter (through November 15, 1994)................... 7 1/4 6 1/2
</TABLE>
BORDEN COMMON STOCK
<TABLE><CAPTION>
SALES PRICE
-------------------------------- CASH
FISCAL YEAR HIGH LOW DIVIDEND
- --------------------------------------------------- ------------- ------------- --------
<S> <C> <C> <C>
1992
First Quarter.................................... $ 34 7/8 $ 31 3/8 $ .285
Second Quarter................................... 34 3/4 29 1/2 .300
Third Quarter.................................... 31 1/8 26 1/4 .300
Fourth Quarter................................... 29 1/2 26 1/4 .300
1993
First Quarter.................................... $ 29 1/8 $ 24 1/4 $ .300
Second Quarter................................... 27 17 5/8 .300
Third Quarter.................................... 19 5/8 14 3/4 .150
Fourth Quarter................................... 19 5/8 14 3/8 .150
1994
First Quarter.................................... $ 18 3/8 $ 13 1/8 $ .075
Second Quarter................................... 13 7/8 11 7/8 .075
Third Quarter.................................... 14 1/4 11 .075
Fourth Quarter (through November 15, 1994)....... 13 7/8 13 3/8 .010
</TABLE>
27
<PAGE>
COMPARISON OF CERTAIN HISTORICAL PER SHARE DATA
The following table shows comparative historical per share data for Holdings
and Borden. The information presented below should be read in conjunction with
the historical consolidated financial statements and notes thereto, which appear
elsewhere or are incorporated by reference in this Offering Circular/Prospectus.
See "RJR Nabisco Holdings Corp. Selected Historical Consolidated Financial Data"
and "Borden, Inc. Selected Historical Consolidated Financial Data."
<TABLE><CAPTION>
FOR THE NINE FOR THE YEAR
MONTHS ENDED ENDED
SEPTEMBER 30, 1994 DECEMBER 31, 1993
------------------ -----------------
<S> <C> <C>
HOLDINGS
Book value per common share after conversion Series A
Preferred Stock and Series C Preferred Stock
(at end of period)...................................... $ 5.94 $5.77
Cash dividends declared per common share.................. -- --
Income (loss) from continuing operations
per common and common equivalent share.................. .33 (.05)
BORDEN
Book value per common share
(at end of period)...................................... $ 99 $1.74
Cash dividends paid per
common share............................................ .225 .90
(Loss) income from continuing
operations.............................................. .80 (.40)
</TABLE>
- ------------
28
<PAGE>
RJR NABISCO HOLDINGS CORP.
SUMMARY HISTORICAL CONSOLIDATED FINANCIAL DATA
The summary consolidated financial data presented below as of September 30,
1994 and for the nine months ended September 30, 1994 and 1993 were derived from
Holdings Consolidated Condensed Financial Statements incorporated herein by
reference. The summary consolidated financial data presented below as of
December 31, 1993 and 1992 and for each of the years in the three-year period
ended December 31, 1993 for Holdings were derived from the historical
consolidated financial statements of Holdings and notes thereto (the "Holdings
Consolidated Financial Statements"), incorporated herein by reference, which
have been audited by Deloitte & Touche LLP, independent auditors. In addition,
the summary consolidated financial data as of December 31, 1991, 1990 and 1989,
for the year ended December 31, 1990 and for the period from February 9, 1989
through December 31, 1989 for Holdings and for the period from January 1, 1989
through February 8, 1989 for RJRN were derived from the consolidated financial
statements of Holdings and RJRN as of December 31, 1991, 1990 and 1989, for the
year ended December 31, 1990 and for each of the periods within the one-year
period ended December 31, 1989, not presented or incorporated herein by
reference, which have been audited by Deloitte & Touche LLP, independent
auditors. The data should be read in conjunction with the Holdings Consolidated
Financial Statements and the historical consolidated condensed financial
statements of Holdings and notes thereto (the "Holdings Consolidated Condensed
Financial Statements") incorporated herein by reference.
<TABLE>
<CAPTION>
HOLDINGS RJRN
------------------------------------------------------------------------ ----------
FOR THE NINE
MONTHS ENDED
SEPTEMBER 30,
FOR THE YEARS ENDED DECEMBER 31,
(DOLLARS IN MILLIONS EXCEPT PER ----------------- -----------------------------------------------------------------
SHARE AMOUNTS) 1994 1993 1993 1992 1991 1990 1989
------- ------- ------- ------- ------- ------- -------------------------
2/9 TO 12/31 1/1 TO 2/8
------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
RESULTS OF OPERATIONS
Net sales......................... $11,322 $11,053 $15,104 $15,734 $14,989 $13,879 $ 12,114 $ 650
------- ------- ------- ------- ------- ------- ------ -----
Cost of products sold............. 5,079 4,709 6,640 6,326 6,088 5,652 5,241 332
Selling, advertising,
administrative and
general expenses................ 3,789 4,182 5,731 5,788 5,358 4,801 4,276 295
Amortization of trademarks and
goodwill........................ 469 466 625 616 609 608 557 10
Restructuring expense............. -- -- 730 106 -- -- -- --
------- ------- ------- ------- ------- ------- ------ -----
Operating income(1)............. 1,985 1,696 1,378 2,898 2,934 2,818 2,040 13
Interest and debt expense......... (828) (910) (1,209) (1,449) (2,217) (3,176) (3,340) (44)
Change in control costs........... -- -- -- -- -- -- -- (247)
Other income (expense), net....... (81) (4) (58) 7 (69) (44) 169 15
------- ------- ------- ------- ------- ------- ------ -----
Income (loss) from continuing
operations before income
taxes.......................... 1,076 782 111 1,456 648 (402) (1,131) (263)
Provision (benefit) for income
taxes........................... 474 356 114 680 280 60 (156) (66)
------- ------- ------- ------- ------- ------- ------ -----
Income (loss) from continuing
operations.................... 602 426 (3) 776 368 (462) (975) (197)
Income (loss) from operations of
discontinued businesses, net of
income taxes(2)................. -- -- -- -- -- -- (1) 24
Extraordinary item--(loss) gain on
early extinguishments of debt,
net of income
taxes........................... (145) (110) (142) (477) -- 33 -- --
------- ------- ------- ------- ------- ------- ------ -----
Net income (loss)................. 457 316 (145) 299 368 (429) (976) (173)
Preferred stock dividends......... 98 33 68 31 173 50 -- 4
------- ------- ------- ------- ------- ------- ------ -----
Net income (loss) applicable to
common stock.................... $ 359 $ 283 $ (213) $ 268 $ 195 $ (479) $ (976) $ (177)
------- ------- ------- ------- ------- ------- ------ -----
------- ------- ------- ------- ------- ------- ------ -----
PER SHARE DATA
Income (loss) from continuing
operations
per common and common equivalent
share........................... $ .33 $ .29 $ (.05) $ .55 $ .22 $ (1.19) $ (3.21) $ (.89)
Dividends per share of Series A
Preferred Stock(3).............. 2.51 2.51 3.34 3.34 .49 -- -- --
Dividends per share of Series C
Preferred Stock(3).............. 2.44 -- -- -- -- -- -- --
BALANCE SHEET DATA
(AT END OF PERIODS)
Working capital................... $ 358 -- $ 202 $ 730 $ 165 $(1,089) $ 106 --
Total assets...................... 31,851 -- 31,295 32,041 32,131 32,915 36,412 --
Total debt........................ 11,205 -- 12,448 14,218 14,531 18,918 25,159 --
Redeemable preferred stock(4)..... -- -- -- -- -- 1,795 -- --
Stockholders' equity(5)........... 10,957 -- 9,070 8,376 8,419 2,494 1,237 --
Book value per common share after
conversion of Series A Preferred
Stock and Series C Preferred
Stock........................... 5.94 -- 5.77 -- -- -- -- --
</TABLE>
(Footnotes on following page)
29
<PAGE>
(Footnotes for preceding page)
- ------------
(1) The 1992 amount includes a gain of $98 million on the sale of the
ready-to-eat cold cereal business.
(2) The 1989 amount for Holdings includes $237 million of interest expense
allocated to discontinued operations.
(3) On November 8, 1991, Holdings issued 52,500,000 shares of Series A Preferred
Stock and sold 210,000,000 Series A Depositary Shares. On May 6, 1994,
Holdings issued 26,675,000 shares of Series C Preferred Stock and sold
266,750,000 Series C Depositary Shares. Because Series A Preferred Stock and
Series C Preferred Stock mandatorily convert into Holdings Common Stock,
dividends on such shares are reported similar to common equity dividends.
(4) On December 16, 1991, an amendment to the Amended and Restated Certificate
of Incorporation of Holdings was filed which deleted the provisions
providing for the mandatory redemption of the redeemable preferred stock of
Holdings on November 1, 2015. Accordingly, such securities were presented as
a component of Holdings' stockholders' equity as of December 31, 1992 and
1991. Such securities were redeemed on December 6, 1993.
(5) Holdings' stockholders' equity at September 30, 1994 and December 31 of each
year from 1993 to 1989 includes non-cash expenses related to accumulated
trademark and goodwill amortization of $3.484 billion, $3.015 billion,
$2.390 billion, $1.774 billion, $1.165 billion and $557 million,
respectively.
See Notes to Holdings Consolidated Financial Statements and Holdings
Consolidated Condensed Financial Statements incorporated herein by reference.
30
<PAGE>
RJR NABISCO HOLDINGS CORP.
SUMMARY PRO FORMA CONSOLIDATED FINANCIAL DATA
The following tables present summary pro forma consolidated financial data
of Holdings derived from the pro forma consolidated condensed financial
statements of Holdings and notes thereto (the "Holdings Pro Forma Financial
Statements") set forth herein. The data should be read in conjunction with the
Holdings Consolidated Financial Statements, the Holdings Consolidated Condensed
Financial Statements and other financial information set forth or incorporated
by reference herein. NABISCO HAS FILED A REGISTRATION STATEMENT WITH THE
COMMISSION WITH RESPECT TO A PROPOSED INITIAL PUBLIC OFFERING OF 45,000,000
SHARES OF ITS CLASS A COMMON STOCK, BUT SUCH REGISTRATION STATEMENT HAS NOT BEEN
DECLARED EFFECTIVE BY THE COMMISSION. NO ASSURANCE CAN BE GIVEN THAT SUCH
OFFERING WILL BE CONSUMMATED.
<TABLE><CAPTION>
FOR THE NINE MONTHS FOR THE YEAR ENDED
ENDED SEPTEMBER 30, DECEMBER 31,
1994 1993
------------------- ------------------
(DOLLARS IN MILLIONS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C>
PRO FORMA CONSOLIDATED STATEMENT OF INCOME DATA(1)
Net sales................................................ $11,322 $ 15,104
Cost of products sold.................................... 5,079 6,640
Selling, advertising, administrative and general
expenses............................................... 3,789 5,731
Amortization of trademarks and goodwill.................. 469 625
Restructuring expense.................................... -- 730
------- -------
Operating income....................................... 1,985 1,378
Interest and debt expense................................ (716) (1,048)
Other income (expense), net.............................. (81) (58)
------- -------
Income before income taxes............................. 1,188 272
Provision for income taxes............................... 513 170
------- -------
Income before minority interest in income of Nabisco... 675 102
Minority interest in income of Nabisco................... (32) (29)
------- -------
Net income(2).......................................... 643 73
Less preferred stock dividends........................... 98 68
------- -------
Net income applicable to Common Stock.................. $ 545 $ 5
------- -------
------- -------
PER SHARE DATA
Net income per common and common equivalent(2)........... $ .36 $ .00
Dividends per share of Common Stock...................... .225 .30
Dividends per share of Series A Preferred Stock.......... 2.505 3.34
Dividends per share of Series C Preferred Stock.......... 2.438 --
<CAPTION>
SEPTEMBER 30, 1994
------------------
<S> <C> <C>
PRO FORMA CONSOLIDATED BALANCE SHEET DATA(3)
Working capital................................................................ $ 108
Total assets................................................................... 31,439
Total debt..................................................................... 10,018
Stockholders' equity........................................................... 11,227
Book value per common share after conversion of Series A Preferred Stock and
Series C Preferred Stock..................................................... 6.06
</TABLE>
- ------------
(1) Gives effect to the following transactions and events as if they occurred as
of January 1, 1993: (i) borrowings of $1.3 billion under the Nabisco Credit
Agreement (as hereafter defined) and the application of funds provided
through such borrowings to repay a portion of the borrowings under the 1991
Credit Agreement; (ii) the sale and issuance of 45,000,000 shares of Nabisco
Class A Common Stock in the Nabisco Common Stock Offerings (as hereafter
defined), the resulting reduction in Holdings' proportionate interest in
Nabisco and the application of the estimated net proceeds of approximately
$1,047 million (assuming an initial public offering price of $24.50 per
share) therefrom to repay a portion of the borrowings under the Nabisco
Credit Agreement; (iii) the assumed payment of quarterly dividends on
Holdings' Common Stock of $.075 per share and the increased level of net
indebtedness assumed to be outstanding had such dividend payments been made;
(iv) the redemption of $1.5 billion of the 10 1/2% Senior Notes dues 1998,
approximately $374 million of the 8 3/8% Debentures due 2017, $100 million
of the 13 1/2% Subordinated Debentures due 2001 and approximately $25
million of the 7 3/8% Debentures due 2001 through borrowings under the 1991
Credit Agreement and proceeds from Holdings' Series C Preferred Stock
offering completed on May 6, 1994; and (v) the tax effect of the foregoing.
(2) Excludes extraordinary items related to the loss on early extinguishments of
debt, net of income taxes, for the nine months ended September 30, 1994 and
the year ended December 31, 1993 of $145 million and $142 million,
respectively.
(3) Gives effect to the pro forma transactions and events described in clauses
(i), (ii), and (iv) of Note (1) above as if they occurred on September 30,
1994.
31
<PAGE>
BORDEN, INC.
SUMMARY HISTORICAL CONSOLIDATED FINANCIAL DATA
The summary consolidated financial data presented below for the nine months
ended September 30, 1994 and 1993 were derived from unaudited quarterly
consolidated financial statements contained in Borden's Quarterly Report on Form
10-Q at and for the nine months ended September 30, 1994 and incorporated herein
by reference. The summary consolidated financial data presented below for each
of the years in the three-year period ended December 31, 1993 for Borden were
derived from the consolidated financial statements contained in Borden's Annual
Report on Form 10-K for the year ended December 31, 1993 and incorporated by
reference herein, which have been audited by Price Waterhouse LLP, independent
accountants. The unaudited quarterly consolidated financial statements include
all adjustments which are, in the opinion of Borden management, necessary for a
fair statement of the interim results. Results for interim periods are not
necessarily indicative of results to be expected for the full year. The data
below should be read in conjunction with the audited consolidated financial
statements and unaudited quarterly consolidated condensed financial statements
of Borden, and the related notes thereto, incorporated by reference herein.
<TABLE><CAPTION>
FOR THE NINE MONTHS
ENDED SEPTEMBER 30, FOR THE YEARS ENDED DECEMBER 31,
-------------------- --------------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
-------- -------- -------- -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
REVENUE
Net sales.................................. $ 4,082 $ 4,037 $ 5,506 $ 5,872 $ 5,924 $ 6,273 $ 6,391
COST AND EXPENSES
Cost of goods sold......................... 3,075 2,967 4,078 4,302 4,269 4,644 4,859
Marketing, general and administrative
expenses................................. 859 803 1,224 1,163 1,024 1,020 902
Restructuring charges(1)................... (40) -- 115 298 67 -- 463
Interest expense........................... 92 93 125 116 167 156 129
Equity in income of affiliates............. (9) (10) (16) (19) (24) (23) (17)
Minority interest.......................... 29 30 41 40 3 3 1
Other (income) and expense, net............ 104 29 23 (4) (13) 12 11
Income taxes............................... 27 42 (27) 14 151 169 76
-------- -------- -------- -------- -------- -------- --------
4,137 3,954 5,563 5,910 5,644 5,981 6,424
-------- -------- -------- -------- -------- -------- --------
EARNINGS
(Loss) income from continuing operations... (55) 83 (57) (38) 280 292 (33)
Discontinued operations:(1)(2)
(Loss) income from operations............ -- (46) (66) (86) 15 28 16
Loss on disposal......................... (59) -- (490) -- -- -- --
-------- -------- -------- -------- -------- -------- --------
(Loss) income before extraordinary item and
cumulative effect of accounting
changes.................................. (114) 36 (613) (124) 295 320 (17)
Extraordinary loss on early retirement of
debt..................................... -- -- -- (11) -- -- --
Cumulative effect of change in accounting
for:
Postemployment benefits.................. -- (18) (18) -- -- -- --
Postretirement benefits other than
pensions............................... -- -- -- (189) -- -- --
Income taxes............................. -- -- -- (40) -- -- --
-------- -------- -------- -------- -------- -------- --------
Net (loss) income.......................... $ (114) $ 18 $ (631) $ (364) $ 295 $ 320 $ (17)
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
SHARE DATA
(Loss) income from continuing operations... $ (.39) $ .59 $ (.40) $ (.27) $ 1.90 $ 1.97 $ (0.22)
Discontinued operations:
(Loss) income from operations............ -- (.33) (.47) (.60) .10 0.19 0.11
Loss on disposal......................... (.41) -- (3.47) -- -- -- --
-------- -------- -------- -------- --------
(Loss) income before extraordinary item and
cumulative effect of accounting
changes.................................. (.80) .26 (4.34) (.87) 2.00 2.16 (0.11)
Extraordinary loss on early retirement of
debt..................................... -- -- -- (.07) -- -- --
Cumulative effect of change in accounting
for:
Postemployment benefits.................. -- (.13) (.13) -- -- -- --
Postretirement benefits other than
pensions............................... -- -- -- (1.32) -- -- --
Income taxes............................. -- -- -- (.28) -- -- --
-------- -------- -------- -------- -------- -------- --------
Net (loss) income per common share......... $ (.80) $ .13 $ (4.47) $ (2.54) $ 2.00 $ 2.16 $ (0.11)
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Cash dividends paid per common share....... $ .23 $ .75 $ .90 $ 1.185 $ 1.12 $ 1.035 $ 0.90
Average number of common shares outstanding
during the period........................ 141.5 140.9 141.0 143.4 147.6 147.9 148.2
</TABLE>
32
<PAGE>
<TABLE><CAPTION>
AT
SEPTEMBER 30, AT DECEMBER 31,
---------------- ----------------------------------------------
1994 1993 1992 1991 1990 1989
---------------- ------ ------ ------ ------ ------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA
Current assets....................................... $1,370 $1,290 $1,928 $1,921 $2,026 $2,011
Investments and other assets......................... 561 443 352 319 237 160
Property and equipment............................... 1,321 1,337 1,788 1,904 1,707 1,441
Intangibles.......................................... 762 802 1,178 1,317 1,314 1,213
Total assets......................................... 4,014 3,872 5,246 5,461 5,284 4,825
Current liabilities.................................. 1,418 1,372 1,808 1,414 1,847 1,466
Long-term debt....................................... 1,416 1,241 1,330 1,346 1,340 1,441
Other liabilities (including long-term debt)......... 2,457 2,254 2,312 2,072 1,595 1,670
Shareholders' equity................................. 140 246 1,126 1,975 1,842 1,689
Book value per common share.......................... .99 1.74 8.01 13.39 12.50 11.41
</TABLE>
- ------------
(1) 1993 includes a pretax charge of $752.3 million for business divestitures
and restructuring. 1992, 1991 and 1989 include pretax restructuring charges
of $377.2 million, $71.6 million and $570.7 million, respectively.
(2) Financial data for the years prior to 1993 were restated in 1993 to reflect
discontinued operations.
See Notes to Borden's Consolidated Financial Statements and Borden's Unaudited
Quarterly Consolidated Financial Statements incorporated herein by reference.
33
<PAGE>
THE EXCHANGE OFFER
PURCHASER BACKGROUND
In early 1993, representatives of KKR met with Anthony S. D'Amato, then
chairman and chief executive officer of Borden, Lawrence O. Doza, then vice
president and chief financial officer of Borden, and a representative of one of
Borden's financial advisors to discuss KKR's interest in exploring a possible
transaction involving KKR and Borden. Following that meeting, Mr. D'Amato
advised KKR's representatives that Borden preferred not to pursue a transaction
with KKR at that time. Thereafter, although no formal discussions were held,
KKR's interest in a possible transaction with Borden continued, especially when
Borden's analysis of possible restructuring alternatives became known to KKR in
the late summer of 1993. Borden continued to maintain that it was not interested
in a transaction with any third parties, including KKR.
In December 1993, Lazard Freres & Co., financial advisor to the Borden Board
of Directors, initiated contact with KKR regarding a possible transaction with
KKR. KKR, in turn, brought the possibility of a transaction with Borden to the
attention of senior executives of Holdings. Holdings thereafter had several
investigatory meetings with Borden's advisors in New York City, but no formal
due diligence was conducted at Borden's headquarters in Columbus, Ohio.
Following such meetings and further analysis by Holdings of a possible
transaction with Borden, Holdings decided that it would not pursue a transaction
with Borden. Among other things, Holdings believed that, in light of its own
indebtedness, Borden's debt levels precluded the acquisition of all of Borden.
Additionally, Holdings determined that its strategic interest was in
substantially less than all of Borden's businesses.
Investigatory discussions between representatives of KKR and Borden resumed
in February 1994 and occurred sporadically thereafter. In April 1994, KKR
indicated to Borden's representatives that it might be willing to assist Borden
in connection with Borden's restructuring efforts, although Borden did not
express interest in such assistance at that time. In July and August, KKR again
initiated contact with Borden's advisors to reiterate KKR's continuing interest
in exploring an investment in Borden. In early August 1994, KKR discussed with
Borden's advisors its possible interest in an investment in Borden using
securities owned by partnerships controlled by KKR. Lazard Freres & Co.
indicated to KKR Borden's willingness to pursue discussions and, shortly
thereafter, KKR and Borden signed a confidentiality agreement and KKR began to
receive certain due diligence information concerning Borden.
Following its initial review of this information, KKR indicated an interest
in pursuing more complete due diligence. KKR was advised that, if it planned to
make a proposal to Borden regarding a transaction, it should be prepared to do
so by September 7, 1994, when Borden's Board of Directors was scheduled to meet
to consider its management's proposed new restructuring plan, which Borden was
to consider as an alternative to a transaction with KKR. This plan would have
involved the sale of Borden's dairy business, sale of profitable non-food
businesses and a cut in Borden's quarterly dividend to $.01 per share. On August
25 and 26, 1994, representatives of KKR and representatives of Borden held due
diligence meetings in Columbus, Ohio. Charles M. Harper, Chairman of the Board
and Chief Executive Officer of Holdings, and H. John Greeniaus, Chairman of the
Board and Chief Executive Officer of Nabisco Foods Group, attended the meetings
on August 25, 1994 at the request of KKR.
On Friday, September 2, 1994, KKR made an oral proposal to acquire a 75%
interest in Borden for consideration valued at $13.50 per Borden Share, based on
an exchange of Holdings Common Stock for Borden Common Stock. Negotiations
continued over the next several days, particularly with regard to KKR's
willingness to pursue an acquisition of the entire company. KKR's revised
proposal for all of Borden was presented to Borden's Board of Directors on
September 7, 1994, following meetings between representatives of KKR and the
Chairman of the Board and the Chief Executive Officer of Borden. Discussions and
negotiations continued between representatives of KKR and Borden and, on
September 11, 1994, the Partnership and Borden signed a letter of intent with
respect to the Transactions based on a value of $14.25 per Borden Share.
34
<PAGE>
Following the signing of the letter of intent on September 11, 1994, KKR and
Borden, and their representatives, negotiated the Merger Agreement and
Conditional Purchase/Option Agreement, which were executed on September 23,
1994, following approval by Borden's Board of Directors.
As of November 15, 1994, the Purchaser, the Partnership and Borden entered
into an amendment to the Merger Agreement (the "Amendment") changing the
definition of the term "Valuation Period."
PURPOSE OF THE EXCHANGE OFFER; THE MERGER
The Exchange Offer is being made by the Purchaser for the purpose of
acquiring 100% of the outstanding Borden Shares. If, following the Exchange
Offer and exercise of the Option, the Purchaser and its affiliates own more than
90% of the outstanding Borden Shares, the Purchaser will take all necessary or
appropriate action, without further action by the Board of Directors or
shareholders of Borden, to consummate the Merger of the Purchaser with Borden as
soon as practicable. If, following the Exchange Offer and exercise of the
Option, approval of Borden's shareholders is required by applicable law in order
to consummate the Merger, provided that the Minimum Condition is satisfied
without being reduced or waived, Borden will submit the Merger to Borden's
shareholders for approval. If the Merger is submitted to Borden's shareholders
for approval, the Merger will require the approval of the holders of not less
than 66 2/3% of the outstanding Borden Shares, including the Borden Shares owned
by the Purchaser and its affiliates. In the event the Merger is consummated,
holders of Borden Shares will receive the same number of shares of Holdings
Common Stock for each Borden Share as are exchanged for each Borden Share in the
Exchange Offer.
The Registration Statement is being filed by Holdings pursuant to the terms
of the Registration Rights Agreement.
This Offering Circular/Prospectus also relates to shares of Holdings Common
Stock that may be issued in connection with the consummation of the Merger,
unless the Merger is submitted to Borden's shareholders for approval, in which
case the Purchaser will solicit proxies from Borden shareholders pursuant to
separate proxy materials in compliance with Section 14(a) of the Exchange Act.
The Exchange Offer is subject, among other things, to the Minimum Condition.
Except as described below, the Minimum Condition, and the other conditions to
the Exchange Offer, may be waived by the Purchaser in whole or in part, in its
sole discretion. However, the Minimum Condition may not be waived if the Option
has been exercised in whole or in part prior to the Expiration Date. In
addition, if the Purchaser acquires more than 41% (but not more than 50%) of the
outstanding Borden Shares in the Exchange Offer, the Purchaser must exercise the
Option to the extent necessary so that, following such exercise, the Purchaser
will own more than 50% of the outstanding Borden Shares. In the event the Merger
is not consummated, the Purchaser will control the number of Borden Shares
acquired by the Purchaser pursuant to the Exchange Offer and upon exercise of
the Option. Under the Merger Agreement and the Conditional Purchase/Option
Agreement, following the acceptance for exchange of the Borden Shares to be
exchanged pursuant to the Exchange Offer and/or the purchase of the Option
Shares in accordance with the Conditional Purchase/Option Agreement, and from
time to time thereafter, subject to applicable law, Borden has agreed to take
all actions necessary to cause the Applicable Percentage of directors (and of
members of each committee of the Board of Directors) (rounded in each case to
the next highest director or member) of Borden selected by the Partnership to
consist of persons designated or elected by the Partnership (whether, at the
election of Borden, by means of increasing the size of the board of directors or
seeking the resignation of directors and causing the Partnership's designees to
be elected); provided that, if the Purchaser has acquired at least 28,138,000
Borden Shares, the Applicable Percentage will not be less than 33 1/3%. As a
result of its ownership of such Borden Shares and right to designate nominees
for election to Borden's Board of Directors, the Purchaser will be able
significantly to influence decisions of the shareholders and such
35
<PAGE>
Board. See "Significant Considerations," "The Exchange Offer--Certain Conditions
of the Exchange Offer" and "Description of Merger Agreement and Conditional
Purchase/Option Agreement."
THIS OFFERING CIRCULAR/PROSPECTUS DOES NOT CONSTITUTE A SOLICITATION OF A
PROXY, CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO ANY SPECIAL MEETING OR
OTHER MEETING OF BORDEN SHAREHOLDERS WHO DO NOT TENDER THEIR BORDEN SHARES OR
ANY ACTION IN LIEU THEREOF. ANY SUCH SOLICITATION WILL BE MADE ONLY PURSUANT TO
SEPARATE PROXY MATERIALS IN COMPLIANCE WITH SECTION 14(A) OF THE EXCHANGE ACT.
See "Description of Merger Agreement and Conditional Purchase/Option
Agreement" for a description of certain fees that are or may be payable to KKR
in connection with the Transactions.
BORDEN BACKGROUND AND REASONS FOR THE PROPOSED TRANSACTIONS
Borden Background
The decision by the Borden Board to enter into the Merger Agreement
reflected, in part, an assessment of the risks and potential benefits of ongoing
restructuring efforts against the risks and benefits of a transaction that would
offer all shareholders the opportunity to receive a premium for their Borden
Shares payable in Holdings Common Stock. A significant factor in the Borden
Board's deliberation was the history of Borden's prior restructuring efforts.
Set forth below is a summary of the events that led to the Borden Board's
decision.
1992 Restructuring Plan. In October 1992, Borden announced its third
restructuring program since 1989 (the "1992 Restructuring Plan"). The 1992
Restructuring Plan was aimed at integrating the numerous acquisitions Borden had
made, reducing costs and reversing a downward trend in earnings. In conjunction
with the 1992 Restructuring Plan, Borden established a restructuring reserve of
$642 million (pre-tax) charged against third quarter 1992 results, which reduced
Borden's 1992 year end shareholders' equity to $1.13 billion, down from $1.69
billion in 1989, before the successive restructurings began.
The 1992 Restructuring Plan did not achieve the anticipated results.
Borden's first quarter 1993 net income was $27.2 million and earnings per share
was $.20, a 43% decline in net income from the same period in 1992 (excluding
charges in 1993 and 1992 for accounting changes). Sales in the first quarter of
1993 fell 7.2% to $1.30 billion, from $1.40 billion in the same period of 1992.
In the second quarter of 1993, earnings per share declined 76.4% to $.13 from
$.55 in the second quarter of 1992. Net income of $18.5 million was down 76.7%
from $79.3 million in the second quarter of 1992. Sales were $1.35 billion, down
6% from $1.44 billion in the second quarter of 1992.
In early 1993, at the initiation of KKR, representatives of KKR met with
Anthony S. D'Amato, then Chairman and Chief Executive Officer of Borden,
Lawrence O. Doza, then Vice President and Chief Financial Officer of Borden, and
a representative of Borden's financial advisor, First Boston to discuss a
possible transaction involving KKR and Borden. After discussion, Mr. D'Amato
advised KKR's representatives that Borden did not wish to pursue a transaction
with KKR at that time.
Development of 1993 Restructuring Plan. In 1993, Borden began to develop
alternatives to the 1992 Restructuring Plan. In addition, in June 1993, Borden
hired Ervin R. Shames as President and Chief Operating Officer. Mr. Shames
joined Borden with 22 years of experience in the food business, including
positions as President and Chief Executive Officer of General Foods USA and
President of Kraft USA. On July 28, 1993, Borden announced that it was reviewing
its portfolio of businesses to identify those it would retain and those it would
not, and was reducing the quarterly cash dividend on the Borden Shares to $.15
per share from $.30 per share.
During the fall of 1993, Borden accelerated the review of its portfolio of
businesses and its strategic alternatives. Booz Allen & Hamilton Inc. ("Booz
Allen"), a business consulting firm, was asked to assess the existing businesses
and their long-term potential and to recommend which businesses to retain and
which to divest. In September 1993, First Boston was retained by Borden to
provide financial advice
36
<PAGE>
with respect to this program. In October 1993, the Board engaged Lazard Freres
to act as financial advisor to the Board with regard to the consideration of
strategic alternatives. The Board also engaged Wachtell, Lipton, Rosen & Katz,
which had previously advised Borden in special situations, as special counsel.
Borden's third quarter 1993 results showed a net loss of $9.4 million, or
$.07 per share, versus a net loss in the third quarter of 1992 of $1.8 million,
or $.01 per share before the charge for the 1992 Restructuring Plan. Sales in
the third quarter of 1993 fell to $1.39 billion from $1.53 billion in the
comparable period of 1992. Nearly all of the principal businesses of Borden
posted substantial declines versus prior year performance.
In November 1993, Borden management with the assistance of Booz Allen
presented to the Board a plan (the "1993 Restructuring Plan") for restructuring
the portfolio of Borden's businesses. The 1993 Restructuring Plan provided for
major divestitures, including the sale of Borden's North American snacks
business, its seafood business, its jams and jellies business and certain other
businesses and products representing, in the aggregate, annual revenues of
approximately $1.25 billion, or nearly 20% of projected 1993 sales of $6.75
billion. The 1993 Restructuring Plan also aimed at improving Borden's domestic
dairy business, largely through volume recovery and cost reduction, and
contemplated retention of nearly all of the non-food businesses. The 1993
Restructuring Plan envisioned cost reductions phased in over two years, reaching
an annualized savings rate of $100 million by the end of 1995. These savings
were to be achieved through a combination of divestitures and productivity
gains.
Under the 1993 Restructuring Plan, which was reviewed by Booz Allen,
management projected 1994 earnings per share at the upper end of the $.75 to
$1.00 per share range of estimates by securities analysts, and set performance
targets for annual earnings per share growth in 1995 and 1996 of at least double
the food industry average, sales growth of 6% annually and an increase in return
on investment from a range of 5% to 6% in 1994 to 12% in 1996. Further, the 1993
Restructuring Plan contemplated a further reduction in Borden's quarterly cash
dividend from $.15 per share to $.075 per share, and a $752.3 million pre-tax
restructuring charge against 1993 fourth quarter earnings of which approximately
$637.4 million was for business divestitures and $114.9 million was for
organizational restructuring.
Evaluation of 1993 Restructuring Plan and Possible Sale of Borden. In
reviewing the proposed 1993 Restructuring Plan, the Borden Board considered that
continued poor performance would reduce financial flexibility (which, in turn,
could limit Borden's ability to raise capital at attractive rates and to pursue
strategic growth opportunities); that the 1993 Restructuring Plan was premised
on significant turnarounds within a year or slightly longer in Borden's dairy
and pasta business and improvements in almost all of Borden's other divisions;
that many of the asset sales included in the 1993 Restructuring Plan would be
difficult and time-consuming to consummate; that Borden's quarterly dividend
payout might not be sustainable even at the reduced rate contemplated; and that
a number of key management positions were held by new managers, making it
difficult to assess the likelihood of success of the 1993 Restructuring Plan.
The Borden Board also took into consideration the fact that Borden was highly
leveraged and exposed to liquidity risk by virtue of its relatively high ratio
of short-term debt (particularly commercial paper) to total debt in the event of
rating agency downgrades, and that the 1993 Restructuring Plan would leave
Borden with debt coverages less favorable than the median for investment grade
companies and without tangible net worth.
After weighing these risks and considering that previous restructuring
efforts had not achieved targeted results and after receiving two unsolicited
inquiries regarding the sale of Borden, one from KKR and one from another party,
the Borden Board determined to instruct Lazard Freres to make contacts with a
selected group of companies considered to be potential buyers of Borden. The
potential buyers contacted by Lazard Freres consisted primarily of industrial
buyers, rather than financial buyers, because Lazard Freres believed that a
leveraged buyout did not appear to be feasible given Borden's operating
performance and high debt levels. Lazard Freres, however, did contact KKR
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because of its prior indication of interest in Borden and its ownership interest
in Holdings. KKR, in turn, brought the possibility of a transaction with Borden
to the attention of Holdings. The other party that had previously contacted
Borden was also contacted by Lazard Freres.
In response to Lazard Freres' solicitations, only Holdings and one other
company expressed interest in obtaining information about Borden. Both Holdings
and the other potential buyer (the "Potential Buyer") entered into
confidentiality agreements with Borden and commenced due diligence. Holdings,
however, after preliminary meetings, declined to pursue its interest. Holdings
indicated that, due to the then-current trading price of the Borden Shares,
Holdings' own indebtedness and the debt levels of Borden, Holdings was unwilling
to proceed with an acquisition of Borden. In addition, Holdings said that it had
determined that its strategic interest was in substantially less than all of
Borden's businesses.
At a Borden Board meeting held on December 9, 1993, Lazard Freres indicated
that the Potential Buyer appeared to be interested in acquiring all of Borden.
At the Board meeting, management recommended that Borden proceed with the 1993
Restructuring Plan it had previously recommended. The Borden Board, however,
determined that, given the risks inherent in the 1993 Restructuring Plan, talks
with the Potential Buyer should continue, and the decision as to whether to
implement the 1993 Restructuring Plan was postponed. That same day, the Borden
Board accepted the resignation of Anthony S. D'Amato, as Chairman and Chief
Executive Officer of Borden, and appointed Frank J. Tasco, a director of Borden
and retired Chairman and Chief Executive Officer of Marsh & McLennan Companies,
Inc., as Chairman of the Board of Borden and Ervin R. Shames, as Chief Executive
Officer of Borden.
On December 21, 1993 the Potential Buyer indicated that it would not be
interested in pursuing an acquisition of the entire company but that it would be
willing to explore the acquisition of just Borden's Packaging and Industrial
Products Division ("PIP") and a concurrent investment in the remaining food
company. However, the indicated price levels from the Potential Buyer's proposal
would not have generated proceeds sufficient to reduce Borden's debt to a level
appropriate to the remaining food business. Thus, the Board rejected this
suggestion in part because it was advised that such a divestiture would leave
Borden undercapitalized. The Borden Board then instructed management to prepare
the 1993 Restructuring Plan for final approval.
1993 Restructuring Plan Adopted; Goals Set. On January 4, 1994, the Borden
Board formally approved the 1993 Restructuring Plan. Over the previous months,
the Board had received from management and Booz Allen an extensive review of
Borden's 50 distinct domestic and international businesses. Borden announced
that, with the help of its financial advisors, the Board had evaluated a full
range of alternatives for Borden, including sale or merger, and that Borden was
not aware of any third party expressing interest in proposing such transactions.
The Borden Board also reviewed the alternative of liquidation and concluded that
adverse tax consequences and the uncertainties involved in the sale of Borden in
parts rendered this alternative unattractive.
In announcing the 1993 Restructuring Plan, Borden stated that it had set
financial goals, including earnings per share for 1994 at the upper end of the
$.75 to $1.00 range of analysts' estimates, cash flow of $400 million to $450
million after capital expenditures and including divestiture proceeds,
substantially all of which was intended to be applied to debt repayment, and
cost reductions reaching an annualized rate of $70 million to $85 million by the
end of the year.
As a result of the write-off related to the implementation of the 1993
Restructuring Plan, Borden's shareholders' equity as of December 31, 1993 was
reduced to $245.9 million.
Progress Under the 1993 Restructuring Plan. Following the adoption of the
1993 Restructuring Plan, the Borden Board, with the assistance of its financial
advisors and management, closely monitored its implementation and the associated
divestitures. In its 1993 Annual Report to Shareholders which was issued in late
March 1994, Borden acknowledged that the success of the 1993 Restructuring Plan
depended on multiple divestitures at anticipated prices, sharply reduced costs
throughout Borden, a
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reversal of the weak sales and income performance of Borden's pasta business and
a turnaround of Borden's domestic dairy operations, which, based on early 1994
results, would be a significant challenge.
Borden's first quarter 1994 earnings per share were $.04 and net income was
$5.8 million. In its announcement of first quarter results, Borden also stated
that its earnings projections for 1994 were then "in line" with the current
range of analyst projections of $.70 to $.95 per share, as opposed to the
January 1994 earnings per share target at the "upper end" of the $.75 to $1.00
range.
In June 1994, the Borden Board and management became increasingly concerned
about Borden's progress in achieving the cost reductions and earnings
improvements targeted under the 1993 Restructuring Plan. The Board and
management were particularly concerned that the failure to achieve significant
progress by that time would make it difficult to reach the targets for 1994 and
subsequent years.
Further Restructuring Contemplated in Light of Six-Month Results. On July
26, 1994, management advised the Borden Board that it would begin to explore
possible modifications to the 1993 Restructuring Plan which might involve the
sale or closure of all or part of the dairy operations and other businesses. The
Board determined that the alternative of a sale of the company should also be
explored again. The Board was told that the only parties that had contacted
Borden since January 1994 were KKR and Japonica Partners ("Japonica").
On May 24, 1994, Japonica wrote to Mr. Tasco stating that Japonica was
interested in an equity investment in Borden as a "proactive white knight." In
response, the Borden Board authorized Lazard Freres to contact Japonica to
investigate, on behalf of the Board, Japonica's interest in Borden and its
capacity to effectuate a transaction involving Borden.
On June 13, 1994, Mr. Tasco wrote to Japonica, advising them that Lazard
Freres was acting as Borden's financial advisor and was authorized to represent
Borden in discussions with third parties. Subsequently, a representative of
Japonica contacted Lazard Freres, but did not propose any transaction and did
not provide any evidence of Japonica's source of funds for any transaction,
despite Lazard Freres's repeated inquiries. (Japonica, in letters to Mr. Tasco,
disputed the foregoing characterization of its contacts with Lazard Freres
although it never stated that it had proposed a transaction or provided evidence
of its financial resources.)
Accordingly, on July 16, 1994, Mr. Tasco wrote to Japonica explaining that
in light of the serious challenges facing Borden, it was disinclined to pursue
discussions with a party who was unable or unwilling to make substantive
proposals or to provide any evidence of its financial capacity. At no point
during any of its contacts with Borden or its advisors did Japonica make any
substantive proposal or provide evidence of its ability to finance any
transaction with respect to Borden. The discussion herein of Borden's written
correspondence with Japonica is qualified by reference to the full texts of such
correspondence which are included as exhibits to the Schedule 14D-9, which is
incorporated herein by reference.
Pursuant to its decision to explore the alternative of a sale of Borden, the
Borden Board, at its July 26, 1994 meeting, instructed Lazard Freres to respond
to KKR's prior contacts. Based on the advice of Lazard Freres and given the
publicity concerning Borden's efforts to find a buyer in late 1993 and the lack
of inquiries, the Board determined that it was reasonable to conclude that no
other bidder was interested.
On July 27, 1994, Borden announced that for the second quarter of 1994, it
had net income of $11.1 million or $.08 per share compared with income from
continuing operations of $30.5 million, or $.22 per share, in the same period of
1993. Net sales rose 1.3% to $1.37 billion from $1.35 billion in the second
quarter of 1993. The six-month results included continuing losses in Borden's
dairy business that were considerable. Borden stated that it was moving more
slowly than it had hoped in achieving the goals of the 1993 Restructuring Plan.
Borden further stated that each of Borden's businesses must
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contribute to Borden's objectives by virtue of market position, growth
prospects, profit potential or some combination of those objectives. In light of
this, Borden further stated that it was reviewing progress to date and planned
to take any corrective measure that might become necessary. Borden announced
that, given its results in the first half of 1994, it was clear that its earlier
expectation of earnings for the year would not be realized, and did not give a
further earnings forecast.
The results for the first half of 1994 also caused the Borden Board and
management to focus on the liquidity of Borden. In connection with the 1993
Restructuring Plan, Borden obtained an amendment to its only financial covenant
which was contained in the TMI credit agreement, a covenant related to the net
worth of Borden. The amendment required achievement of financial ratios that
would be met under the goals of the 1993 Restructuring Plan. The Borden Board
and management were particularly concerned about the level of Borden's
short-term liabilities, including the commercial paper used to finance
operations. The Borden Board was advised that, if earnings continued below the
amounts forecasted in the 1993 Restructuring Plan and Borden undertook a further
restructuring, its debt ratings could be lowered and its ability to issue
commercial paper could be limited. In early July 1994, Borden sought to increase
its $520 million credit facilities on terms which were substantially the same
terms as existed previously for a majority of the facilities. Due in part to the
five-year term of the proposed facility and the existence of other Company
credit facilities with terms more favorable to the lenders, these efforts met
resistance in the marketplace. Later in July 1994, Borden determined to pursue a
larger bridge facility that would consolidate Borden's bank lines and backstop
its commercial paper. Accordingly, Borden obtained $1.4 billion, 2 1/2 year
financing facilities in August 1994 from a group of banks led by Citibank, N.A.
and Credit Suisse.
Proposed 1994 Restructuring Plan. At a special meeting of the Board on
August 16, 1994, management presented further analysis of the alternatives
available to Borden. First Boston provided a financial analysis for each such
alternative and management recommended a plan to further reconfigure Borden (the
"Proposed 1994 Restructuring Plan"). The Proposed 1994 Restructuring Plan
provided for the divestiture of the dairy business (excluding cheese), Borden's
largest business, which was depleting Borden's earnings and cash. Management
advised the Board that, in its view, Borden did not have the time or the
resources to turn the dairy business around. While the sale of the dairy
business would improve cash flow, it was expected to generate a substantial
writeoff without meaningful debt reduction. Management also recommended the
additional sale of two profitable businesses from the PIP division,
Wallcoverings and Packaging Resources, principally in order to generate cash to
reduce debt.
The Proposed 1994 Restructuring Plan also called for realigning Borden into
two operating divisions: Consumer Packaged Products and Worldwide Adhesives and
Resins, and significantly reducing costs in Borden's continuing operations by
substantial personnel reductions and other programs. As part of the Proposed
1994 Restructuring Plan, management also recommended that the Borden Board
reduce the quarterly cash dividend on the Borden Shares to $.01 per share. The
Borden Board was advised that adoption of the Proposed 1994 Restructuring Plan
would require a significant charge of approximately $500 million (after-tax) in
the third quarter of 1994, resulting in substantial negative shareholders'
equity. In addition, the Board was advised that in the third quarter of 1994,
Borden would likely incur additional pre-tax charges of approximately $95
million as a result of less than estimated proceeds from the divestiture of
discontinued operations pursuant to the 1993 Restructuring Plan and could
possibly incur certain other balance sheet adjustments of up to $100 million.
Management had projected that Borden's 1994 earnings per share would be $.50
without a restructuring, and earnings per share under the Proposed 1994
Restructuring Plan were projected to be $.47 for 1994, $.75 for 1995, $0.84 for
1996, $1.10 for 1997 and $1.21 for 1998. The Proposed 1994 Restructuring Plan
called for a reduction in Borden's debt level from $2.287 billion in 1994 to
$1.659 billion in 1996 and $1.294 billion in 1998. After presentation by
management and Borden's financial advisors, the Borden Board authorized
management to finalize the details of the Proposed 1994 Restructuring Plan with
a view to its formal approval and announcement in early September 1994.
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Developing the KKR Proposal. On August 3, 1994, KKR signed a confidentiality
agreement (the "Confidentiality Agreement") and began to receive certain
nonpublic information concerning Borden, specifically Borden's then current
"base case" projections for 1994 showing earnings per share of $.50 and net
income from continuing operations of $71 million. The Confidentiality Agreement
contained certain provisions that would prohibit KKR from making an unsolicited
tender offer for Borden's stock. On the same day, KKR proposed exploring a
transaction, the consideration for which would be securities owned by
partnerships controlled by KKR. Following the Borden Board meeting of August 16,
1994, KKR communicated to Lazard Freres that it would be interested in pursuing
a transaction with Borden in which it would pay a "meaningful" premium to
Borden's trading price using Holdings Common Stock as currency. At a special
meeting of the Borden Board on August 18, 1994, management conveyed this to the
Board. Management explained that KKR would require "due diligence" meetings with
the senior management of Borden before it would be in a position to formalize a
proposal. Management further indicated that KKR would be willing to make a
decision prior to the September 7, 1994 Borden Board meeting at which the Board
intended to take final action on the Proposed 1994 Restructuring Plan.
During the course of the Borden Board's deliberations concerning continuing
discussions with KKR, Mr. Shames expressed his view that the Proposed 1994
Restructuring Plan was achievable and should be pursued by Borden. He said that
implementation of the Proposed 1994 Restructuring Plan would make Borden more
saleable if the Board chose to sell Borden in the future. He said that he
believed that it was imperative to commence implementing the Proposed 1994
Restructuring Plan without additional delays. Cognizant that Borden's prior
restructuring plans had fallen short of their goals and that further
restructuring efforts posed significant risks, the Board determined that it was
in the best interests of Borden and its shareholders to continue discussions
with KKR prior to acting on the Proposed 1994 Restructuring Plan. The Board,
therefore, directed management, with the assistance of Lazard Freres and First
Boston, to proceed with KKR to determine whether KKR would make a proposal that
would provide a premium for all shareholders. At the same time, management was
instructed to prepare to implement the Proposed 1994 Restructuring Plan on
September 7, 1994, as had been contemplated, so that there would be no delay in
the event that an acceptable proposal from KKR did not materialize.
On August 22, 1994, Lazard Freres met with KKR. KKR expressed interest in
meeting with management to conduct due diligence and indicated that it would be
ready to make a definitive proposal by September 7, 1994. On August 25 and 26,
1994, Lazard Freres, First Boston and members of senior management met with KKR
in Columbus, Ohio to conduct due diligence. On September 2, 1994, KKR proposed
an offer to acquire 75% of Borden through an exchange offer for approximately
100 million Borden Shares, at $13.50 per share, and a conditional purchase/stock
option agreement wherein it would have the right to acquire 28,138,000 Borden
Shares for $11 per share, with the consideration in both cases to be paid in
Holdings Common Stock valued at market. Over the course of the next three days,
management of Borden, Lazard Freres, and First Boston negotiated with KKR and
Morgan Stanley & Co., KKR's investment banker, particularly with respect to
KKR's willingness to pursue an offer to acquire the entire company.
On September 7, 1994, the Borden Board met to consider both management's
Proposed 1994 Restructuring Plan and the KKR proposal that had resulted from the
negotiations upon the understanding that these were the two viable alternatives
available to Borden. During the meeting, management again reviewed for the
directors the principal elements of the Proposed 1994 Restructuring Plan.
Management then summarized the KKR proposal. Responding to Borden's request for
an offer that could be made for all of the Borden Shares, KKR proposed to
acquire 100% of the Borden Shares at $13.50 per share, payable in Holdings
Common Stock, through an exchange offer for all of the Borden Shares followed by
a merger in which any Borden Shares remaining outstanding would receive the same
consideration that had been paid in the exchange offer. Under New Jersey law,
such a merger would require the affirmative vote of 66 2/3% of Borden's
outstanding shares. KKR's proposal was contingent
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upon Borden agreeing to enter into a conditional purchase/stock option agreement
for up to approximately 28,138,000 Borden Shares, payable in Holdings Common
Stock, at $11 per share. In addition, the KKR proposal contemplated certain fees
and reimbursements for KKR on terms to be negotiated. Finally, KKR proposed that
it would be entitled to representation on the Board proportionate to its
ownership, subject to a minimum of 40% representation if it acquired 28,138,000
Borden Shares (approximately 19.9% of the total then outstanding Shares)
pursuant to the exercise of its option or otherwise. The proposal was contingent
on completion of due diligence, and the exchange offer would be contingent on
certain waivers being obtained under Borden's credit facilities. The proposal
was not otherwise subject to financing. Both the Borden Board and its advisors
believed that KKR intended to keep current management, to offer management an
opportunity to obtain an equity interest in the surviving enterprise and to
restructure Borden. However, the Borden Board was advised that KKR had no
substantive discussions of these matters, had made no commitments to management
and had made no decision with respect to the precise nature of its restructuring
plan. Borden management advised the Borden Board that it understood that any
decisions by KKR would be made only after it had completed a thorough analysis
of Borden.
In reporting to the Borden Board on the negotiations, Borden's
representatives indicated that they wished to ensure that, in the event of a
competing transaction proposal, KKR would not be able both to profit on the
conditional purchase/stock option agreement and to obtain a "topping" fee. KKR
had not yet agreed to that point. The representatives also reported to the Board
that Borden had requested that KKR provide some post-transaction guarantee of
the price level of the Holdings Common Stock that would be issued to Borden's
shareholders in the exchange offer. However, these representatives indicated
that it appeared that while KKR had stated that it would negotiate a "collar" of
approximately 10% around the trading price for Holdings Common Stock at the time
the transaction was announced to protect the value that Borden's shareholders
would receive in the exchange offer, KKR had refused to consider any
post-exchange offer guarantee of the trading value of Holdings Common Stock. The
representatives said that they would press for a wider collar on the Holdings
Common Stock price but that they did not believe that a post-transaction
guarantee would be achievable in the negotiations. The representatives indicated
that they were seeking to reduce as much as possible the fees requested by KKR.
Although the Borden Board thought that the $13.50 per share price then
offered was too low and that certain of the other terms proposed by KKR were not
acceptable, the Board instructed Borden's negotiators to go back to KKR to seek
to improve the price and to seek to negotiate satisfactory arrangements with
respect to the other terms of the transaction. The Board took this action in the
belief that a satisfactory proposal could be elicited from KKR. The Board
considered that such a proposal would offer the shareholders of Borden a premium
for their Borden Shares in the form of a highly liquid security, which presented
its own risks and opportunities. At the same time, the Board noted that while
the Proposed 1994 Restructuring Plan was designed to improve Borden's operating
results and reduce its debt, it nonetheless had significantly lower earnings
projections than previous restructuring plans and that it entailed significant
risks to the equity value of Borden. These risks included, in particular, the
consequences of having substantial negative net worth, the possibility of a
credit rating downgrade and, if results of operations and divestiture proceeds
were not realized as planned, the risk of further deterioration in Borden's
financial condition. The Board also considered the risk that the announcement of
the Proposed 1994 Restructuring Plan would have a negative effect on the trading
price for the Borden Shares, thereby implicitly increasing the premium inherent
in a transaction with KKR. The Board took into account the fact that the
previous restructuring attempts by Borden had fallen short of their goals. The
Board adjourned the meeting in order to permit Borden's negotiators to proceed.
In negotiations on September 7 and 8, 1994, KKR indicated that it would be
willing to increase its offer price to $14.25 per Borden Share, and that the
collar would be approximately 13%, depending on the price of Holdings Common
Stock on the day that the transaction was announced. KKR also accepted Borden's
position that KKR not profit as a result of exercising the option in
circumstances
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where KKR had received a "topping" fee, and agreed that it would receive a 33
1/3% representation on the Board as a minimum if it purchased 28,138,000 Shares,
or approximately 19.9% of the outstanding Shares, pursuant to exercise of the
option. KKR insisted on the payment of(1) a $20 million initial fee, (2) a $50
million topping fee, against which the initial fee would be credited, and (3)
expense reimbursement of up to $15 million. The September 7, 1994 Board meeting
reconvened on September 9, 1994. Mr. Shames said that he believed that the
Proposed 1994 Restructuring Plan could be accomplished and was a better
alternative for Borden. In that regard, Mr. Shames stated he believed that it
was the wrong time to sell Borden because successfully pursuing the Proposed
1994 Restructuring Plan would result, over time, in greater value for
shareholders than that reflected in the KKR proposal. Nonetheless, after careful
consideration of all the factors before it, the Borden Board voted to authorize
management to proceed to negotiate agreements with KKR on the terms outlined, to
complete Borden's due diligence investigation of Holdings, and to permit KKR to
complete its due diligence of Borden. Mr. Shames abstained from the vote of the
Board.
At a special meeting held by the Borden Board on September 11, 1994, the
Board authorized Borden to enter into an agreement-in-principle with the
Partnership. The Letter of Intent expressed the intent of the parties to
negotiate a definitive merger agreement on substantially the terms already
described to the Board. KKR had also requested a condition in the merger
agreement dealing with the refinancing of Borden's debt because, as a result of
its due diligence and in anticipation of costs related to the proposed
transactions, KKR believed that Borden's bank credit facilities should be
increased to provide a cushion for working capital needs and their maturities
extended. It was agreed that this condition would be limited to terms to be set
forth in the merger agreement. The Letter of Intent also provided for the
payment of the $20 million Initial Fee to KKR (which was subsequently paid) and,
in consideration of the Letter of Intent and such Initial Fee, KKR agreed that,
if for any reason no merger agreement was entered into, KKR would be required to
purchase 28,138,000 Shares for $11 per share, payable in Holdings Common Stock,
providing Borden with a saleable asset of over $300 million that could be used
to reduce debt or for other purposes. The Letter of Intent also provided for the
payment of the $50 million topping fee (reduced by the Initial Fee) in the event
that, during the pendency of the Letter of Intent, a third party made a
Transaction Proposal which was subsequently consummated.
The Letter of Intent was announced on September 12, 1994 and the parties
proceeded to negotiate definitive agreements. Following the announcement on
September 12, 1994 that Borden had entered into the Letter of Intent with the
Partnership, Japonica wrote again to Borden, reiterating its interest in acting
as a "proactive white knight." Borden responded with a letter to Japonica
indicating that the Board was prepared to explore all serious, substantive
proposals with a view to maximizing the value of the Borden Shares. Borden noted
that none of Japonica's communications had contained any actual proposal, but it
indicated that if Japonica had a proposal that it believed would maximize
shareholder value and that could be effected, Japonica should contact Lazard
Freres, who would arrange a meeting.
On September 15, 1994, Japonica wrote again to Borden demanding that Borden
forward to Japonica all material and information provided to other potential
bidders, including KKR. In response, Borden wrote to Japonica the next day
indicating once more that, although none of its communications had yet included
any concrete proposal or provided the information regarding financing that
Borden had requested, the Borden Board remained willing to explore all serious
substantive proposals. In response to Japonica's request for information that
had been provided to other bidders, Borden enclosed a form of confidentiality
agreement, already executed by Borden, for Japonica's signature. The
confidentiality agreement did not contain any "stand-still" provisions. Japonica
has never executed and delivered the confidentiality agreement.
On September 19, 1994, Borden offered to meet with Japonica and to make
available to it certain senior members of management and Borden's legal and
financial advisors on the assumption that, in view of its persistence, Japonica
must have believed that it had a proposal to maximize shareholder value that
could be effectuated. A meeting was arranged for September 21, 1994. At the
meeting, Japonica indicated that it did not wish to sign the confidentiality
agreement. Japonica presented a
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"Letter of Continuing Interest" with regard to Borden and attached to it certain
materials with respect to its "Dynamic Tension(TM)" management philosophy.
Although the "Letter of Continuing Interest" contained various nonspecific
suggestions with respect to Borden, it did not contain, and upon questioning by
representatives of Borden and its advisors, Japonica did not make, any proposal
for Borden. Japonica also refused to provide any information with respect to its
financing resources. Borden indicated that it would consider any credible
proposal that Japonica chose to make, and, subject to execution of the
confidentiality agreement, provide appropriate confidential information.
On September 22, 1994, the Borden Board convened to consider the Merger
Agreement and the Conditional Purchase/Option Agreement which had been
negotiated with KKR. For a description of the Merger Agreement and the
Conditional Purchase/Option Agreement, see "Description of Merger Agreement and
Conditional Purchase/Option Agreement." At the meeting, the Board reviewed in
detail the proposed terms of the transaction. The Borden Board received an
updated report on Borden's results of operations and financial condition. The
Borden Board also reviewed investor reaction to the announcement of the Letter
of Intent, the correspondence and meeting with Japonica, the due diligence that
had been performed on Holdings, the presentations of Lazard Freres and First
Boston and the fairness opinions delivered by Lazard Freres and First Boston.
At the September 22, 1994 Board meeting, the Borden Board, with Mr. Shames
abstaining, voted to approve the Merger Agreement and the Conditional
Purchase/Option Agreement and the transactions contemplated thereby, to
recommend to the shareholders of Borden that they accept the Exchange Offer,
that they tender their Borden Shares to Purchaser and that, if required by
applicable law, they approve and adopt the Merger Agreement. Mr. Shames repeated
the views he expressed on September 9, 1994 and stated that he was also
abstaining because he felt a conflict arising from the issue of his future
involvement in Borden (although he stated that he had no agreements with KKR).
The Board further authorized a press release relating to the Merger
Agreement and the Conditional Purchase/Option Agreement, and a letter to be sent
to Japonica, following the execution of the Merger Agreement and the Conditional
Purchase/Option Agreement, indicating that Borden's agreements with the
Partnership do not preclude the Board's consideration of a proposal by Japonica,
and that the Board is interested in obtaining the best possible transaction for
Borden's shareholders and should Japonica decide to make a substantive proposal,
the Board is prepared to work with Japonica to that end. The Board indicated
that if Japonica chose to submit a proposal, it should specify the means and
sources of financing. The letter noted that Japonica had failed to provide
information as to its ability to finance the type of transactions it had
referred to even though the Board had been requesting that information for
several months.
After the Board meeting, Borden and KKR finalized the details of the Merger
Agreement and the Conditional Purchase/Option Agreement and on September 23,
1994, Borden, Purchaser and the Partnership entered into the Merger Agreement
and the Conditional Purchase/Option Agreement. The terms of the transactions
were announced in a joint press release issued on September 23, 1994.
Events Subsequent to Announcement of the KKR Transaction. Subsequent to the
announcement of the Merger Agreement, Japonica wrote to Mr. Tasco, on September
27, 1994, requesting, among other things, that Borden not sell any more assets.
On October 5, 1994, a representative of Japonica wrote to a representative of
Borden that Japonica "is currently working on a proposal which it anticipates
forwarding to Borden in a timely manner." On October 18, 1994, Japonica again
wrote to the Board stating that it was "in the process of preparing a detailed
proposal for Borden." To date, no such proposal has been received. An additional
party, who had expressed an interest in a possible transaction with Borden
following the September 23rd announcement and who, to Borden's knowledge, was
not affiliated with Japonica, executed a confidentiality agreement with Borden
and met with representatives of Borden but, subsequently, indicated it was only
interested in transactions involving Borden's food business or parts thereof.
Borden has been approached by other parties following the
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September 23rd announcement, but none have executed a confidentiality agreement
or made any proposal.
At the regularly-scheduled meeting of the Borden Board on October 25, 1994,
management reported on the third quarter results of Borden and projections for
the remainder of the fiscal year. In the third quarter of 1994, Borden reported
a net loss of $130.5 million or $.92 per share, including pre-tax charges of
$181.2 million. This pretax charge includes an accrual of $52.2 million for the
transaction fees and expenses, of which $20 million has been paid to KKR to
date. Management stated that Borden's dairy operations continued to post a wide
loss, that profits of its pasta products were falling short of expectations, and
that Borden's food businesses overall were progressing more slowly than desired.
In light of the above, management advised the Board that it was revising its
estimate for earnings per share for 1994 to $.38 per share (before special
charges), from the $.50 per share projection which had been reported to the
Board in August. The Board considered the implications of Borden's performance
and of the revised projections for the transaction with KKR.
On October 28, 1994, Nabisco, a wholly-owned subsidiary of Holdings, filed a
registration statement with the Commission for the proposed offering of between
17.4% and 19.5% of Nabisco's common equity. Borden and its advisors were
apprised of Nabisco's intentions immediately prior to the filing of such
registration statement.
On November 14, 1994, the Board met and approved an amendment to the Merger
Agreement changing the end of the Valuation Period for the Exchange Ratio as a
result of comments received from the Commission. The amendment to the Merger
Agreement provides that the ten day Valuation Period will now end immediately
prior to the tenth business day prior to the Expiration Date for the Exchange
Offer, instead of the two business days provided in the original Merger
Agreement. In connection with this amendment, the Board received confirmation
from Lazard Freres and First Boston that the change to the Merger Agreement did
not affect the opinions dated September 22, 1994 and delivered to the Board. In
addition, at this meeting, the Board reviewed with its advisors progress on the
transactions contemplated by the Merger Agreement and the Conditional
Purchase/Option Agreement, reviewed the Exchange Offer and the Schedule 14D-9,
reviewed events subsequent to the execution of the Merger Agreement, including
the proposed public offering by Nabisco and related transactions and the effect
of such announcement on the price of Holdings Common Stock, and ratified its
recommendation that Borden's shareholders accept the Exchange Offer, tender
their Borden Shares to the Purchaser under the Exchange Offer, and, if required
by applicable law, approve and adopt the Merger Agreement, the Conditional
Purchase/Option Agreement and the transactions contemplated thereby.
Reasons For The Exchange Offer And Merger; Recommendation of the Borden
Board of Directors
The Borden Board has determined that the Merger Agreement and the
Conditional Purchase/Option Agreement and the transactions contemplated thereby,
including the Exchange Offer and Merger, taken together, are fair to the
shareholders of Borden and recommends that holders of Shares accept the Exchange
Offer, tender their Borden Shares thereunder to the Purchaser and, if required
by applicable law, approve and adopt the Merger Agreement. This determination
and recommendation was made by the entire Board at its meeting on September 22,
1994, with Mr. Shames, Borden's Chief Executive Officer, abstaining.
As described above under "--Background," the Borden Board was confronted
with two realistic choices: to approve the Proposed 1994 Restructuring Plan or
to authorize Borden to enter into the Merger Agreement. The Board's decision to
enter into the Merger Agreement was based, in large part, upon balancing the
risks and opportunities of the Proposed 1994 Restructuring Plan recommended by
management against the risks and benefits of the Merger Agreement. On the one
hand, the Board considered the Proposed 1994 Restructuring Plan to involve risk
to the equity value of Borden in the short run and, if the restructuring were to
be unsuccessful, a substantial future risk. On the other hand, although the
Merger Agreement offers all shareholders the opportunity to receive a premium
for their
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Borden Shares, because the form of consideration to be paid to shareholders is
Holdings Common Stock, the Board took into account the risk to the Holdings
Common Stock because of tobacco developments (including litigation, legislation
and governmental regulation) that the Borden Board recognized were not
determinable. In balancing the two alternatives, the Borden Board determined
that the transactions contemplated by the Merger Agreement were the less risky
and preferable alternative.
The recommendation by the Borden Board that Borden's shareholders accept the
Exchange Offer and tender their Borden Shares is not, and should not be
considered to be, a recommendation that Borden's shareholders continue to own
or, alternatively, make a decision to sell the Holdings Common Stock acquired by
such holders as a result of the Exchange Offer or the Merger.
In its deliberations, the Board considered a number of factors including,
without limitation, the following which includes all of the factors the Board
considered material:
1. The Borden Board's knowledge of the business, operations, properties,
assets, financial condition, operating results and prospects of Borden,
including, in particular, its close monitoring of the adoption and
implementation of the 1993 Restructuring Plan, and the failure of that plan
to attain its goals (see "--Borden Background" for a description of the 1993
Restructuring Plan);
2. The Borden Board's knowledge and judgments as to the results of
Borden's restructurings in 1989, 1991 and 1992, and their failure to achieve
the anticipated results;
3. The Borden Board's judgment as to the future prospects of Borden in
light of management's Proposed 1994 Restructuring Plan (see "--Background"
for a description of the Proposed 1994 Restructuring Plan), which the Borden
Board viewed as posing significant risks for the equity value of Borden
including that it would result in Borden having a substantial negative net
worth; that it would require the sale of some of Borden's profitable
businesses; that there were risks inherent in selling such businesses and
attendant uncertainties as to what prices could be realized; and that the
proposed restructuring would still leave Borden highly leveraged with a
significant amount of indebtedness even after application of the proceeds
from the sales of the businesses. The Borden Board considered that the
projected earnings for Borden following implementation of the proposed
restructuring would not, based upon the advice of Lazard Freres, even if
such earnings projections were met, likely result in an implied stock price
on an undiscounted basis (calculated by multiplying leading earnings per
share amounts by assumed multiples) exceeding $14.25 until 1997, using a
multiple of 13, or until mid-1996, using a multiple of 16;
4. The view expressed by Borden's Chief Executive Officer that the
Proposed 1994 Restructuring Plan could be accomplished and that it was a
better alternative for Borden (see "--Borden Background");
5. The oral and written presentations of First Boston and Lazard Freres
and the opinions of First Boston and Lazard Freres that, as of September 22,
1994, the consideration to be received by the shareholders of Borden (other
than KKR and its affiliates) in the Exchange Offer and the Merger is fair to
such shareholders from a financial point of view. These opinions were based
on drafts of the Merger Agreement and the Conditional Purchase/Option
Agreement and were subsequently reconfirmed in writing upon the financial
advisors' review of the definitive agreements. Such opinions, which are
subject to limitations, qualifications and assumptions, including those
relating to the absence of adverse future developments in Holdings' tobacco
business, are filed as exhibits to this Registration Statement and should be
read in their entirety;
6. The terms and conditions of the Merger Agreement and the Conditional
Purchase/Option Agreement; the Board considered in particular the
"no-solicitation" provision of the Merger Agreement, the fees and expense
reimbursements payable to KKR (which could require payments of up to $65
million in the aggregate and which provisions were negotiated at arms'
length between the parties) and the termination provisions of the Merger
Agreement and concluded that the terms
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of the Merger Agreement and the Conditional Purchase/Option Agreement would
not preclude the Board from considering alternative transaction proposals
for Borden;
7. Possible alternatives to the Exchange Offer and the Merger, including
continuing to operate Borden as an independent public company, approving the
further restructuring proposed by Borden's management, or liquidating
Borden, as well as a range of potential values to Borden's shareholders
associated with such alternatives determined with the assistance of Borden's
financial advisors, the timing of effectuating such alternatives and the
likelihood of achieving those values;
8. Information concerning the business, financial condition and results
of operations of Holdings, including a discussion by Borden's management and
advisors regarding the due diligence investigation of Holdings undertaken on
the Board's behalf; in that connection the Board took into account that the
impact on Holdings from litigation (including pending and future matters as
well as class action litigation), legislation (pending and future) and
governmental regulation (present and future) involving tobacco products was
unknowable and could be devastating with respect to the value of Holdings
Common Stock;
9. The historical market prices of the Borden Shares and the Holdings
Common Stock;
10. The fact that the consideration to be received by Borden's
shareholders in the Exchange Offer and the Merger represented a premium over
the trading price of the Borden Shares prior to the announcement of the
Letter of Intent. In this regard, the Board considered the risk that
announcement of the Proposed 1994 Restructuring Plan might negatively impact
the trading price of the Borden Shares;
11. The fact that the consideration to be received by shareholders of
Borden in the Exchange Offer and the Merger will consist of equity
securities of Holdings, a widely followed, publicly-traded company,
affording them a significant degree of liquidity should Borden's
shareholders determine to sell Borden Shares of Holdings Common Stock
acquired in the Exchange Offer or the Merger;
12. The fact that the Exchange Offer is for all of the outstanding
Borden Shares and holders of Borden Shares have the right to choose whether
or not to exchange their shares in the Exchange Offer;
13. The taxable nature of the transaction (as opposed to a transaction
that would be tax-free), recognizing that shareholders of Borden subject to
taxation whose basis in the Borden Shares was less than $14.25 would be
required to pay taxes even though they would receive no cash proceeds in the
transaction.
14. The correspondence from, and the results of, the discussions and the
meeting with Japonica and its representatives, the fact that no specific
transaction was proposed by Japonica, that Japonica would provide no
information with respect to its potential sources of financing and that the
Merger Agreement does not, in the Board's judgment, preclude consideration
by the Board of any proposal made by Japonica or any other party; and
15. The fact that the efforts to sell Borden in late 1993 were not
successful and that despite the public disclosure that Borden was
considering a number of alternatives for Borden, including the possible sale
or merger of Borden, no third party contacted Borden subsequent to such
announcement and prior to the execution of the Merger Agreement except the
Partnership and Japonica and only the Partnership made a proposal to acquire
Borden (see "--Borden Background").
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In reaching the conclusion that the holders of Borden Shares will receive
fair value in the Exchange Offer and the Merger in Holdings Common Stock,
Borden's Board considered the opinions of its financial advisors which are filed
as exhibits to this Registration Statement (see "Available Information"), and
are further described under "--Opinions of Financial Advisors", its knowledge of
Borden's businesses and discussions with Borden's management and Borden's and
Board's financial advisors of their views concerning the businesses, financial
condition and prospects of Holdings. The Board, with the assistance of Borden's
financial advisors, also considered recent and current market prices of Holdings
Common Stock, on which the Exchange Ratio for the Exchange Offer and the Merger
was based. The board recognized that if KKR and its affiliates acquire more than
51% of Borden, the financial advisors would be entitled to aggregate fees equal
to $20,000,000 which the Board believed to be reasonable for complex
transactions of this type and appropriate in light of the services provided by
such financial advisors to the Board and Borden.
In connection with the opinions of its financial advisors First Boston and
Lazard Freres noted in Paragraph 6 above, the Board elected to obtain such
opinions to assist it in exercising its fiduciary duties to Borden's
stockholders. In connection with such obligations, the Board considered the
opinions of its financial advisors, recognizing that such opinions stated that
they were addressed solely to the Board and that such opinions stated they were
not intended to confer rights or remedies upon, among others, Borden's
stockholders. Such limitations are common in opinions of this type and the Board
and the financial advisors recognized that such opinions would be publicly
disclosed and provided to Borden's stockholders pursuant to the Commission's
rules and regulations. The Board believes that it is beneficial for Borden's
stockholders to have the opportunity to review the opinions of the financial
advisors considered by the Board in its deliberations, even though such opinions
were not addressed to Borden's stockholders. The Board also recognized that such
opinions specifically excluded the effects of future developments in Holdings'
tobacco business. The Board believed that since neither of its financial
advisors had the expertise to evaluate such future liabilities, it was
acceptable to exclude such issues from the financial advisors' opinions. In this
regard, the Board considered the impact on Holdings from litigation (including
pending and future matters as well as class action litigation), legislation
(pending and future) and governmental regulation (present and future) involving
tobacco products was unknowable and could be devastating with respect to the
value of Holdings Shares. As noted in the second paragraph of "--Reasons for the
Exchange Offer and; Recommendation of the Borden Board of Directors", the Board
gave considerable weight to this risk in weighing the risks and benefits of the
Merger Agreement against the risks and benefits of fifth restructuring of
Borden.
Prior to the commencement of the Exchange Offer, the Board reviewed
developments since September 22, 1994, including Borden's financial performance,
contacts from third parties and Nabisco's proposed public offering, and ratified
the recommendation set forth above.
The foregoing discussion of the information and factors considered and given
weight by the Borden Board is not intended to be exhaustive. In view of the
variety of factors considered in connection with its evaluation of the Exchange
Offer and the Merger, the Borden Board did not find it practicable to, and did
not quantify or otherwise assign relative weights to, the specific factors
considered in reaching its determination. In addition, individual members of the
Borden Board may have given different weights to different factors.
OPINIONS OF BORDEN FINANCIAL ADVISORS
Opinion of Lazard Freres. Lazard Freres delivered its written opinion to the
Borden Board to the effect that, as of September 22, 1994, the consideration to
be received by the shareholders of Borden (other than the Partnership, Purchaser
or any other subsidiary of the Partnership) in the Exchange Offer and the Merger
is fair to such shareholders, from a financial point of view.
The full text of the written opinion of Lazard Freres, dated September 22,
1994, which sets forth the assumptions made, matters considered and the review
undertaken with regard to such opinion, is
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filed as an exhibit to this Registration Statement. Lazard Freres' opinion is
directed only to the fairness of the consideration to be received by the
shareholders of Borden (other than the Partnership, the Purchaser or any other
subsidiary of the Partnership) and does not address any other terms of any
transaction involving Borden, the Partnership and its affiliates, including
Holdings, or Borden's underlying business decision to affect the transaction
with the Partnership. Lazard Freres' opinion was delivered for the information
of the Board and does not constitute a recommendation to any shareholder of
Borden as to whether such shareholder should tender Shares in the Exchange Offer
or as to how such shareholder should vote at any meeting of Borden's
shareholders called to consider the Merger. The Lazard Freres opinion is solely
for the benefit of the Board and is not on behalf of, and is not intended by the
Board or Lazard Freres to confer rights or remedies upon, any other party,
including the shareholders of Borden. The summary of the opinion of Lazard
Freres set forth below is qualified in its entirety by reference to the full
text of the opinion. Borden's shareholders are urged to read this opinion in its
entirety.
In rendering its opinion, Lazard Freres, among other things, (i) reviewed
the terms and conditions of a draft of each of the Merger Agreement, the
Conditional Purchase/Option Agreement and the financial terms of the
transactions as set forth therein; (ii) analyzed historical business and
financial information relating to Borden and Holdings, including certain public
filings of each of Borden and Holdings; (iii) reviewed certain financial
forecasts and other data provided by Borden and each of Holdings and the
Partnership relating to the businesses of Borden and Holdings, respectively,
including the most recent business plan for Borden prepared by Borden's senior
management, the Proposed 1994 Restructuring Plan; (iv) conducted discussions
with members of the senior managements of Borden and each of Holdings and the
Partnership with respect to the businesses and prospects of Borden and Holdings,
respectively, and the strategic objectives of each; (v) reviewed public
information with respect to certain other companies in lines of businesses
believed by Lazard Freres to be generally comparable in whole or in part to the
businesses of Borden and Holdings, and reviewed the financial terms of certain
other business combinations that have recently been effected; (vi) reviewed the
historical stock prices and trading volumes of Borden Common Stock and Holdings
Common Stock; and (vii) conducted such other financial studies, analyses and
investigations as Lazard Freres deemed appropriate. The foregoing factors
represent all of the material factors considered by Lazard Freres.
In connection with its review, Lazard Freres relied upon the accuracy and
completeness of the financial and other information concerning Borden and
Holdings that had been received by Lazard Freres and did not assume any
responsibility for independent verification of such information or any
independent valuation or appraisal of any of the assets of Borden or Holdings,
nor did Lazard Freres receive any such appraisals. With respect to the financial
forecasts, Lazard Freres assumed that they had been reasonably prepared on the
bases reflecting the best currently available estimates and judgments of
management of Borden and Holdings as to the future financial performance of
Borden and Holdings, respectively. Lazard Freres assumed no responsibility for
and expressed no view as to such forecasts or the assumptions upon which they
were based. Lazard Freres' opinion stated that it was based on economic,
monetary, market and other conditions as in effect on, and information made
available to it as of, the date of the opinion.
In giving the opinion, Lazard Freres noted that it was not in a position to
make an independent evaluation of certain matters described below and thus, with
the concurrence of the Board, Lazard Freres assumed, for purposes of the
opinion, that no material adverse effect on Holdings or on the trading value of
Holdings' Common Stock would result from (x) the proposal, enactment or adoption
after September 22, 1994 of any laws or regulations (including the imposition of
additional taxes on the manufacture, sale or distribution of tobacco products)
by any federal, state, local or other jurisdiction or any governmental or
regulatory body or agency thereunder relating to, arising out of, or otherwise
affecting the tobacco industry, including, without limitation, the manufacture,
sale, distribution or use of tobacco products, or (y) any judicial or
administrative proceeding initiated or decided after the date hereof, including
any civil or criminal litigation or arbitration, relating to, arising out of or
otherwise
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involving or affecting Holdings, the tobacco industry, or any other company
engaged in said industry, including, without limitation, the manufacture, sale,
distribution or use of tobacco products. Lazard Freres advised the Board that
Lazard Freres was not assuming any responsibility for or expressing any view
with respect to the matters described in the preceding sentence.
Lazard Freres assumed that the transactions described in the draft Merger
Agreement and draft Conditional Purchase/Option Agreement referred to above
would be identical in all material respects to the Merger Agreement and the
Conditional Purchase/Option Agreement, respectively, that the transactions would
be consummated on terms described in the draft Merger Agreement, without any
waiver of any terms or conditions by Borden and that obtaining the necessary
regulatory approvals for such transactions would not have an adverse affect on
Holdings or on the trading of the Holdings Common Stock. Lazard Freres has since
advised the Board that the changes incorporated in the Merger Agreement,
including the Amendment, and the Conditional Purchase/Option Agreement from the
drafts made available to Lazard Freres on which the opinion was based, would not
have affected Lazard Freres' ability to deliver its opinion set forth therein.
The following is a brief summary of the analyses performed by Lazard Freres
in connection with rendering its opinion as to the fairness of the consideration
to be received by the shareholders of Borden (other than the Partnership, the
Purchaser or any other subsidiary of the Partnership) from a financial point of
view and discussed with the Board at its meeting on September 22, 1994.
The financial analyses used by Lazard Freres in arriving at its opinion
included, (i) a "has-gets" comparison, which compared the various
characteristics, including dividend payments and earnings per share data, of a
Borden Share with the characteristics of shares of Holdings Common Stock to be
received in the Exchange Offer or the Merger at exchange ratios within the range
provided for in the Merger Agreement; (ii) valuation analyses, which consisted
of (w) discounting to the present value potential future trading values of
Borden's Common Stock to be achieved under the Proposed 1994 Restructuring Plan,
(x) discounting to the present value projected cash flow forecasted by Borden's
management to be derived under the Proposed 1994 Restructuring Plan, (y)
discounting to the present value potential proceeds that might have been
obtained from implementation of the Proposed 1994 Restructuring Plan for a
period of time, followed by the distribution to Borden's shareholders of its
non-food business segment and sale of Borden's food business segment and (z)
valuing the proceeds on an after-tax basis that might have been obtained from
divestitures of Borden's business units; (iii) comparable company trading
analyses, which consisted of comparing financial, market and operating
performances of selected publicly traded companies to business segments of
Borden; and (iv) comparable transaction analyses, which consisted of reviewing
financial aspects of selected acquisitions of assets or businesses comparable to
those of Borden.
The material portions of the foregoing analyses are summarized in more
detail below.
Has--Gets Comparison
Lazard Freres compared the various characteristics, including dividend
payments and earnings per share data, of a share of Borden Common Stock with the
characteristics of shares of Holdings Common Stock to be received in the
Exchange Offer or the Merger, assuming a price of Holdings Common Stock in the
range of $6 to $8, which represents the trading value of Holdings Common Stock
within the collar. Lazard Freres noted that, based upon this comparison,
Borden's shareholders would be receiving a premium of 22.6% over the closing
price of a share of Borden Common Stock on September 9, 1994, and a premium of
19.2% over the average price of a share of Borden Common Stock during the period
from August 9, 1994 to September 9, 1994.
Valuations of Alternative Scenarios
Lazard Freres also analyzed Borden's possible value under four alternative
scenarios. These scenarios included (i) a discounted present value analysis of
the potential future public market trading values of Borden Common Stock based
upon management's earnings per share forecast under the
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Proposed 1994 Restructuring Plan; (ii) a discounted unleveraged cash flow
analysis based upon unleveraged cash flow projected under the Proposed 1994
Restructuring Plan through 1998 plus terminal values based on projected EBITA
under the Plan; (iii) a valuation analysis assuming that the Proposed 1994
Restructuring Plan is implemented through December 31, 1995 and, on January 1,
1996, a tax-free distribution of the non-food business segment to Borden's
shareholders, as well as a tax-free disposition of the food business segment,
are consummated; and (iv) an after-tax breakup analysis. These alternative
valuation scenarios are described below.
Discounted Value--Proposed 1994 Restructuring Plan
Lazard Freres analyzed the potential future public market trading values of
Borden suggested by management's earnings per share forecasts under the Proposed
1994 Restructuring Plan, applying multiples of 13 to 16 times the forecasted
earnings per share for that year, and discounting the result at a 13.7% discount
rate. This analysis, which was conducted for the 1995 through 1998 earnings per
share forecast, generated per share present values of future trading values
ranging from $9.60 to $13.61.
Unleveraged Discounted Cash Flow Analysis
Lazard Freres' unleveraged discounted cash flow analysis was based upon the
four-year financial information for each of Borden's major business units
forecast by management to be derived under the Proposed 1994 Restructuring Plan.
Lazard Freres calculated a range of the net present values of the projected
unleveraged free cash flows in the forecast, using various discount rates
reflecting a weighted average cost of capital in the range of 10% to 12%, of
approximately $894 million to $932 million. Lazard Freres also calculated a
range of terminal values for Borden by multiplying projected EBITA for 1998 by a
range of exit multiples from 8.5 to 10.5 and discounting the result to present
value using the same discount rates. The net present value of projected free
cash flow, when combined with the terminal values, yielded a total enterprise
value in the range of $3.416 billion to $3.929 billion. In order to derive total
equity value and the equity value per share of Borden, Lazard Freies subtracted
from the total enterprise value the estimated net debt and other liabilities
forecasted under the Proposed 1994 Restructuring Plan at December 31, 1994 to
yield a total equity value range of $1.646 billion to $2.158 billion, or a per
share equity value in the range of $12.42 to $15.26.
1996 Tax-free Distribution/Sale
In analyzing the possible value of Borden assuming a tax-free distribution
of the non-food business segment and concurrent tax-free disposition of the food
business segment as of January 1, 1996, Lazard Freres established a range of
potential per share public trading values for the Borden's non-food business
segment as of January 1, 1996, as well as a range of aggregate sales valuations
for each of the Borden's food business segments. This analysis yielded a value
range per share, discounted to January 1, 1995, at a 13.7% discount rate, of
$10.40 to $15.09.
After-tax Breakup Analysis
Lazard Freres also analyzed Borden's possible value under an after-tax
breakup analysis, assuming that its businesses are sold in separate taxable
transactions. In determining such possible values, Lazard Freres deducted
potential tax payments from the reference range for each of the business units,
assuming a tax rate of 38%. For purposes of this analysis, Lazard Freres relied
upon tax data (including as to basis) provided by Borden. This analysis yielded
a valuation range of $7.64 to $12.87 per share.
Comparable Company Trading Analysis
Lazard Freres selected other publicly traded companies whose lines of
business made them, in Lazard Freres' judgment, comparable to Borden (the
"Comparable Group"). Using publicly available financial and stock price data for
historical periods, as well as publicly available financial data estimates for
1994 and 1995, Lazard Freres determined the relationship for the companies in
the Comparable Group between price per share and earnings per share ("P/E
Ratio"), as well as between aggregate valuation and EBITDA ("AV/EBITDA Ratio"),
EBITA ("AV/EBITA Ratio") and EBIT ("AV/EBIT
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Ratio"). Lazard Freres also performed similar analyses for Borden based upon the
multiples implied by a transaction value estimated at $14.25 per share in
relation to the results forecasted under the Proposed 1994 Restructuring Plan.
These analyses generated an estimated 1994 and 1995 P/E Ratio for Borden of 30.3
and 19.0, respectively, as compared to the average, median, high and low 1994
P/E Ratios for the Comparable Group of 16.1, 15.9, 17.7 and 14.6, and the
average, median, high and low 1995 P/E Ratios for the Comparable Group of 14.6,
14.3, 15.5 and 13.7. These analyses generated AV/EBITDA Ratios for Borden for
the last 12 months, 1994 and 1995 of 13.2, 10.2 and 8.4, respectively, as
compared to the average, median, high and low AV/EBITDA Ratios for the
Comparable Group of 8.3, 8.4, 9.2 and 5.8 for the last 12 months, of 8.0, 8.0,
9.0 and 7.2 for 1994 and of 7.5, 7.4, 8.4 and 7.0 for 1995. These analyses also
generated AV/EBITA Ratios for Borden for the last 12 months, 1994 and 1995 of
30.0, 13.1 and 10.5, respectively, as compared to the average, median, high and
low AV/EBITA Ratios for the Comparable Group of 10.3, 10.4, 11.3 and 7.6 for the
last 12 months, of 9.8, 9.7, 10.7 and 8.9 for 1994 and of 9.2, 9.1, 9.7 and 8.7
for 1995. These analysis also generated AV/EBIT Ratios for Borden for the last
12 months, 1994 and 1995 of 41.0, 14.0 and 11.0, respectively, as compared to
the average, median, high and low AV/EBIT Ratios for the Comparable Group of
10.7, 10.9, 11.7 and 8.0 for the last 12 months, of 10.1, 10.1, 10.9, and 9.3
for 1994 and of 9.5, 9.6, 10.1 and 9.0 for 1995. The Comparable Companies
examined in Lazard Freies analysis included Campbell Soup Company; Conagra,
Inc.; CPC International Inc.; General Mills, Inc.; H.J. Heinz Company; Hershey
Foods Corporation; Pet Incorporated; The Quaker Oats Company; and Ralston Purina
Company.
Comparable Acquisition Analysis
Lazard Freres reviewed acquisitions of companies and businesses similar to
those of Borden over the past several years, and selected a number of those
acquisitions which it believed were most comparable to a transaction involving
the sale of Borden. Using publicly available information, Lazard Freres
determined for the Comparable Transactions the relationship between the
transaction price per target company share and the last twelve months earnings
per target company share ("P/E Ratio") and book value per target company share
("P/BV Ratio"), as well as between the aggregate target company valuation and
the last twelve months target company sales ("AV/Sales Ratio"), EBITDA
("AV/EBITDA Ratio") and EBIT ("AV/EBIT Ratio"). Lazard Freres also noted the
premium of the transaction price over the target company price one month prior
to the announcement of the transaction. Lazard Freres also performed similar
analyses for Borden based upon an acquisition at $14.25 in relation to its
actual results for the 12 months ended June 1994 and its forecasted results for
1994 and 1995 on a pro forma basis as forecasted by the Proposed 1994
Restructuring Plan. These analyses generated an estimated P/E Ratio for Borden
of 30.3, as compared to the average, median, high and low P/E Ratios for the
Comparable Transactions of 26.5, 25.9, 60.1 and 13.1, respectively. These
analyses also generated a P/BV Ratio for Borden of 7.8, as compared to the
average, median, high and low P/BV Ratios for the Comparable Transactions of
8.1, 5.2, 37.6 and 1.4, respectively. These analyses also generated AV/Sales
Ratios for Borden of 0.8 (actual to June 1994) and 1.1 (pro forma 1994), as
compared to the average, median, high and low AV/Sales Ratios for the Comparable
Transactions of 1.3, 1.1, 3.3 and 0.5, respectively. These analyses also
generated AV/EBITDA Ratios for Borden of 13.2 (actual to June 1994) and 10.2
(pro forma 1994), as compared to the average, median, high and low AV/EBITDA
Ratios for the Comparable Transactions of 9.8, 9.0, 17.5 and 6.1, respectively.
These analyses also generate AV/EBIT Ratios for Borden of approximately 41.0
(actual to June 1994) and 14.0 (pro forma 1994), as compared to the average,
median, high and low AV/EBIT Ratios for the Comparable Transactions of 13.8,
13.9, 20.9 and 7.9, respectively. Finally, this analysis reflected a premium
over trading price one month prior to announcement for Borden of 17.5%, as
compared to the average, median, high and low premium for the Comparable
Transactions of 63.4%, 57.9%, 131.9% and 18.5%, respectively. The comparable
acquiror/target transactions examined in Lazard Freres' analyses included, among
others: Sandoz Ltd./Gerber Products Company; Specialty Foods Corporation/North
American food business of Beledia N.V. (Delmonte Foods); Tomkins
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plc/Ranks, Hovis, McDougall plc; Campbell Soup Company/Arnotts Ltd.; The Phillip
Morris Companies Inc./Freia Marabou Danmark A/S; Nestle S.A./Source Perrier
Company; The Phillip Morris Companies Inc./Jacobs Suchard Berline G.m.b.H. &
Co.; Conagra Inc./Beatrice International Food Co.; Kohlberg Kravis Roberts &
Co., L.P./RJ Nabisco, Inc.; The Phillip Morris Companies Inc./Kraft Inc.; Grand
Metropolitan plc/The Pillsbury Companies Inc.; Nestle S.A./Rowntree Company;
Kohlberg Kravis Roberts & Co., L.P./Beatrice International Food Co.; The Phillip
Morris Companies Inc./General Foods Bakery Companies Inc.; R.J. Reynolds
Company/Nabisco, Inc.; and Nestle S.A./Carnation Company.
In arriving at its written opinion and in discussing its opinion with the
Borden Board, Lazard Freres performed various financial analyses, portions of
which are summarized above. The summary set forth above does not purport to be a
complete description of Lazard Freres' analyses. Lazard Freres believes that its
analyses and the summaries set forth above must be considered as a whole and
that selecting portions of its analyses, without considering all analyses, could
create an incomplete view of the process underlying the opinion. In performing
its analyses, Lazard Freres made numerous assumptions with respect to industry
performance, general business and economic conditions and other matters, many of
which are beyond the control of Borden or Holdings. Although, in connection with
the delivery of its opinion, Lazard Frres also analyzed Holdings, Lazard Freres'
opinion is not a valuation of Holdings or of the Holdings Common Stock and does
not represent Lazard Freres' view as to what the value of the shares of Holdings
Common Stock will be upon consummation of the Exchange Offer or the Merger.
Because of the large aggregate amount of shares of Holdings Common Stock being
issued to shareholders of Borden and other factors, such shares may trade at
prices below those at which they would trade initially on a fully distributed
basis. In addition, as described above, in its analyses, Lazard Freres assumed,
with Borden's concurrence, the absence of certain future adverse developments
affecting Holdings or the tobacco industry in general. The analyses performed by
Lazard Frres are not necessarily indicative of actual values or actual future
results, which may be significantly more or less favorable than suggested by
such analyses. Additionally, analyses relating to the values of businesses do
not purport to be appraisals or to reflect actual market valuations or trading
ranges, which may vary significantly from amounts set forth above.
Opinion of First Boston. On September 22, 1994, First Boston delivered its
written opinion to the Board that, as of such date, the consideration to be
received by the shareholders of Borden, other than KKR and its affiliates, in
each of the Exchange Offer and the Merger was fair to such shareholders from a
financial point of view. No limitations were imposed by the Board upon First
Boston with respect to the investigations made or the procedures followed by it
in rendering its opinion, except that First Boston was not requested to, and did
not, solicit third party offers to acquire all or any part of Borden or
participate in efforts other advisors may have made to solicit alternative
offers.
First Boston's opinion was directed only to the fairness of the
consideration to be received by the shareholders of Borden, other than KKR and
its affiliates, and did not address any other terms of any transaction involving
Borden and KKR and its affiliates or Borden's underlying business decision to
effect the transaction with the Partnership. First Boston's opinion was
delivered for the information of the Board and does not constitute a
recommendation to any Borden shareholder as to whether such shareholder should
tender Borden Shares into the Exchange Offer or how such shareholder should vote
at any meeting of Borden shareholders called to consider the Merger. The First
Boston opinion is solely for the benefit of the Borden Board and neither Borden
nor First Boston intends First Boston's delivery of its opinion or its inclusion
in the Schedule 14D-9 to confer any rights on any other party, including Borden
shareholders.
In arriving at its opinion, First Boston reviewed, among other things, the
Letter of Intent, the Merger Agreement and the Conditional Purchase/Option
Agreement, as well as certain publicly available business and financial
information relating to each of Borden and Holdings. First Boston also
considered certain financial and stock market data for each of Borden and
Holdings and compared that data with similar data for other publicly held
companies in businesses similar to those of Borden and
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Holdings, respectively, and considered the financial terms of certain other
business combinations that have recently been effected. In addition, First
Boston participated in discussions with Borden's management and with management
of Holdings and representatives of KKR concerning the past and current
operations, financial condition and prospects of each of Borden and Holdings,
respectively, and considered such other information, financial studies, analyses
and investigations and financial, economic and market criteria which it deemed
relevant. The foregoing factors represent all of the material factors considered
by First Boston.
In connection with its review, First Boston did not assume any
responsibility for independent verification of any of the foregoing information
and relied on its being complete and accurate in all material respects. With
respect to the financial forecasts, First Boston assumed that they had been
reasonably prepared on bases reflecting the best currently available estimates
and judgments of each of Borden's and Holdings' managements as to the future
financial performance of Borden and Holdings, respectively, and First Boston's
opinion did not express any views as to such forecasts or the assumptions
underlying such forecasts. First Boston also did not assume any responsibility
for an independent evaluation or appraisal of the assets or liabilities of
Borden or Holdings, nor was First Boston furnished with any such appraisals.
In giving its opinion First Boston also assumed, with Borden's consent, that
there will not be any material adverse effect on Holdings or on the trading
value of the Holdings Common Stock as a result of or relating to (x) the
proposal, enactment or adoption after September 22, 1994, of any laws or
regulations (including the imposition of additional taxes on the manufacture,
sale or distribution of tobacco products) by any federal, state, local or other
jurisdiction or any governmental or regulatory body or agency thereunder
relating to, arising out of, or otherwise affecting the tobacco industry,
including without limitation the manufacture, sale, distribution or use of
tobacco products, or (y) any judicial or administrative proceeding initiated or
decided after the date hereof, including any civil or criminal litigation or
arbitration relating to or arising out of or otherwise involving or affecting
Holdings, the tobacco industry, or any other company engaged in said industry,
including without limitation the manufacture, sale, distribution or use of
tobacco products. First Boston advised the Borden Board that First Boston was
not in a position to make an independent evaluation of these matters and assumed
no responsibility for and expressed no view with respect to these matters.
First Boston assumed that the transactions described in the draft Merger
Agreement and draft Conditional Purchase/Option Agreement referred to above
would be identical in all material respects to the Merger Agreement and the
Conditional Purchase/Option Agreement, respectively. First Boston also assumed
that the transactions contemplated by the Merger Agreement and the Conditional
Stock Purchase/Option Agreement would be consummated on the anticipated terms,
without any waiver of terms or conditions by Borden and that obtaining necessary
regulatory consents will not have an adverse effect on Holdings or the trading
value of Holdings Common Stock. First Boston has since advised the Board that
the changes incorporated in the Merger Agreement, including the Amendment, and
the Conditional Purchase/Option Agreement from the drafts made available to
First Boston on which the opinion was based, would not have affected Lazard
Freres' ability to deliver its opinion set forth herein.
The full text of the opinion of First Boston dated September 22, 1994, which
sets forth assumptions made, matters considered and limits on the review
undertaken, filed as an exhibit to this Registration Statement. Borden
shareholders are urged to read this opinion in its entirety. The summary of the
opinion of First Boston set forth as an exhibit hereto is qualified in its
entirety by reference to the full text of such opinion.
The financial analyses First Boston performed in connection with rendering
its opinion included (i) discounted cash flow analyses, which consisted of
discounting to present value the projected future free cash flows and terminal
values of each of Borden's major business units on a business unit by business
unit basis, (ii) comparable company trading analyses, which consisted of
reviewing market statistics and financial and operating information in respect
of selected publicly traded companies
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considered for comparability to Borden's major business units, (iii) comparable
acquisition analyses, which consisted of reviewing operating statistics and
purchase price information with respect to selected acquisitions of assets or
businesses similar to those of Borden's major business units and (iv) a
disaggregation analysis in which First Boston supplemented the other three
analyses by taking into account tax costs related to the disposition in the
short term of Borden's major business units. The foregoing does not purport to
be a complete description of First Boston's analyses. First Boston believes that
its analyses must be considered as a whole and that selecting portions of its
analyses, without considering all factors and analyses, could create an
incomplete view of the processes underlying First Boston's opinions. First
Boston's analyses depend upon numerous assumptions with respect to industry
performance, general business, economic, market and financial conditions and
other matters, many of which are beyond the control of Borden and Holdings.
First Boston's analyses are not necessarily indicative of actual values or
actual future results that might be achieved and are not and do not purport to
be appraisals or otherwise reflective of prices at which business actually could
be sold or prices at which securities actually would trade.
The material portions of the foregoing analyses are summarized in more
detail below.
The generally accepted financial analyses First Boston used in reaching its
opinion included (i) discounted cash flow ("DCF") analyses, which consisted of
discounting to present value the projected future free cash flows and terminal
values of each of the Borden's major business units on a business unit by
business unit basis, (ii) comparable company trading analyses, which consisted
of reviewing market statistics and financial and operating information in
respect of selected publicly traded companies considered for comparability to
the Borden's major business units, (iii) comparable acquisition analyses, which
consisted of reviewing operating statistics and purchase price information with
respect to selected acquisitions of assets or businesses similar to those of the
Borden's major business units and (iv) a disaggregation analysis in which First
Boston supplemented the other three analyses by taking into account tax costs
related to the disposition in the short term of the Borden's major business
units. These analyses are summarized below. To derive an implied equity
reference range for the Borden as a whole, First Boston used the analyses
described in (i) through (iii) above for each major business unit to obtain a
reference range for each unit, totalled these reference ranges, and then
subtracted debt and minority interests, pension underfunding and capitalized
non-allocated administrative costs and added the present value of the benefit of
net operating losses and excess cash.
Discounted Cash Flow Analysis
First Boston's DCF analysis was based upon the four-year financial forecast
for each of the Borden's major business units contained in management's
financial forecast, as well as a forecast for years five through nine prepared
by First Boston with underlying assumptions similar to management's projections
for years one through four. First Boston also calculated a range of terminal
values for each business unit by multiplying projected earnings for each
business unit for 2004 by a range of exit multiples (8.5x to 9.0x for Niche
Grocery; 8.0x to 8.5x for Pasta and Packaging; 7.5x to 8.0x for International
Foods Unit; 8.0x to 9.0x for Resin and Consumer Adhesives; and 6.5x to 7.0x for
Decorative Products) derived from comparable companies and transactions. First
Boston discounted the projected unleveraged free cash flows in the forecast and
the projected terminal values at a range of discount rates for each business
unit (12% to 13% for Niche Grocery, Pasta and International Foods Unit; and 12%
to 14% for Packaging, Resin, Decorative Products and Consumer Adhesives) to
arrive at an estimated present value range for each of the Borden's major
business units. The hypothetical range of values for each of the Borden's major
business units derived from the DCF analysis ranged from approximately $675 to
$800 million for Niche Grocery; $800 to $1,050 million for Pasta; $750 to $900
million for International Foods Unit; $300 to $375 million for Packaging; $800
to $1,000 million for Resin; $275 to $325 million for Decorative Products; and
$140 to $180 million for Consumer Adhesives.
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Comparable Borden Trading Analysis
For each of the Borden's major business units, First Boston selected other
publicly traded companies whose market positions and capital structures made
them, in its judgment, most closely comparable to the relevant Borden unit.
Using publicly available financial and stock price data, First Boston determined
the relationship for these comparable companies between equity value (total
market value of outstanding equity securities) and net income and book value and
between capitalized value (equity value plus debt, preferred stock and minority
interest less cash and marketable securities) and sales, earnings before
interest, taxes, depreciation and amortization ("EBITDA") and earnings before
interest and taxes ("EBIT"). First Boston then derived a range of multiples of
capitalized value as a multiple of 1994 and 1995 sales, EBITDA and EBIT (1.8x to
2.1x, 8.5x to 10.0x and 9.2x to 10.8x, respectively, for 1994, and 1.8x to 2.1x,
8.6x to 10.1x and 9.3x to 11.0x, respectively, for 1995, for Niche Grocery; 1.0x
to 1.0x, 11.5x to 12.4x and 19.1x to 20.5x, respectively, for 1994, and 0.9x to
1.0x, 7.0x to 7.5x and 9.8x to 10.5x, respectively, for 1995, for Pasta; 0.9x to
1.0x, 7.0x to 7.9x and 9.7x to 10.9x, respectively, for 1994, and 0.9x to 1.0x,
6.9x to 7.8x and 9.6x to 10.8x, respectively, for 1995, for International Foods
Unit; 0.6x to 0.7x, 6.7x to 8.1x and 10.0x to 12.0x, respectively, for 1994, and
0.6x to 0.7x, 5.3x to 6.3x and 7.2x to 8.6x, respectively, for 1995, for
Packaging; 1.1x to 1.2x, 7.1x to 8.0x and 8.3x to 9.3x, respectively, for 1994,
and 1.1x to 1.2x, 7.0x to 7.9x and 8.3x to 9.3x, respectively, for 1995, for
Resins; 0.6x to 0.7x, 6.0x to 7.2x and 8.3x to 9.9x, respectively, for 1994, and
0.5x to 0.6x, 5.0x to 6.0x and 6.4x to 7.7x, respectively, for 1995, for
Decorative Products; and 1.3x to 2.0x, 5.7x to 9.2x and 6.1x to 9.8x,
respectively, for 1994, and 1.2x to 1.9x, 5.3x to 8.5x and 5.7x to 9.1x,
respectively, for 1995, for Consumer Adhesives) based on the high, average,
median and low multiples among comparable companies and applied these ranges to
financial data for each of the Borden's major business units. The hypothetical
range of values for each of the Borden's major business units derived from such
analysis ranged from approximately $725 to $850 million for Niche Grocery; $755
to $810 million for Pasta; $800 to $900 million for International Foods Unit;
$275 to $330 million for Packaging; $900 to $1,010 million for Resins; $250 to
$300 million for Decorative Products; and $100 to $160 million for Consumer
Adhesives. The comparable companies examined in First Boston's analysis for each
Borden unit included, among others: Niche Grocery, Pasta and the International
Foods Unit: Campbell Soup Borden; CPC International, Inc.; Flowers Industries;
General Mills, Inc.; Hershey Foods Corporation; H.J. Heinz Borden; Interstate
Bakeries Corporation; Kellogg Borden; Pet Incorporated; Ralston Continental
Baking Group. Packaging Unit: Bemis Borden, Inc.; Sealed Air Corporation; Sonoco
Products Borden; Union Camp Corporation; The Valspar Corporation. Decorative
Products Unit: Armstrong World Industries, Inc.; Collins & Aikman Group, Inc.;
Premark International, Inc.; Sherwin-Williams Borden. Worldwide Resins Unit:
Grow Group, Inc.; H.B. Fuller Borden; Lilly Industries, Inc.; Loctite
Corporation. Consumer Adhesives Unit: BIC Corporation; Duracell International,
Inc.; First Brands Corporation; Rubbermaid Incorporated.
Comparable Acquisition Analysis
For each of the Borden's major business units, First Boston reviewed
acquisitions of companies in similar industries over the past several years.
First Boston then selected a number of those acquisitions which it believed were
most comparable to a hypothetical transaction involving the particular Borden
business unit. Using publicly available information, First Boston determined for
the comparable transactions the relationship between capitalized value (equity
value plus debt, preferred stock and minority interest less cash and marketable
securities) and sales, EBITDA and EBIT. First Boston then derived a range of
these multiples of estimated sale value as a multiple of 1994 sales, EBITDA and
EBIT (1.8x to 2.3x, 8.8x to 11.2x and 9.5x to 12.0x, respectively, for Niche
Grocery; 1.0x to 1.2x, 11.5x to 14.5x and 19.0x to 24.1x, respectively, for
Pasta; 0.9x to 1.1x, 7.5x to 9.2x and 10.3x to 12.7x, respectively, for
International Foods Unit; 0.7x to 0.9x, 7.3x to 9.2x and 10.9x to 13.7x,
respectively, for Packaging; 1.1x to 1.3x, 7.5x to 8.6x and 8.8x to 10.0x,
respectively, for Resins; 0.6x to 0.9x, 6.6x to 9.7x and 9.1x to 13.2x,
respectively, for Decorative Products; and 1.3x to 2.3x, 6.0x to 10.3x and 6.4x
to 11.0x, respectively, for Consumer Adhesives) and applied these ranges to
financial data for each Borden
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unit. The hypothetical range of values for each of the Borden's major business
units derived from this analysis ranged from approximately $750 to $950 million
for Niche Grocery; $750 to $950 million for Pasta; $850 to $1,050 million for
International Foods Unit; $300 to $375 million for Packaging; $950 to $1,080
million for Resins; $275 to $400 million for Decorative Products; and $105 to
$180 million for Consumer Adhesives. The comparable acquiror/target transactions
examined in First Boston's analysis for each Borden unit included, among others:
Niche Grocery, Pasta and the International Foods Unit: Investor Group/Del Monte
Foods; Sandoz AG/Gerber Products; Doskocil Cos./Frozen Specialty Foods Unit
(Int'l Multifood); Tomkins PLC/Ranks Hovis McDougall; Campbell Soup
Borden/Arnotts Ltd. Packaging Unit: Applied Extrusion/Technologies,
Inc./Packaging Film Group (Hercules, Inc.); Sonoco Products Borden/Engraph, Inc.
Decorative Products Unit: Arjo Wiggins Appleton PLC/Gebrueder Buhl
Papierfabrite; Coloroll Group PLC/Burlington; Wickes Companies/Collins & Aikman
Group, Inc. Worldwide Resins Unit: Scapa Group PLC/Society des Adhesifs de
Bellgrade; Laporte/Evode Group PLC. Consumer Adhesives Unit: Orkem SA/Bostic
Division (Black & Decker Corp.); Borden, Inc./Jadow & Sons, Inc. (Krazy Glue).
Disaggregation Analysis
First Boston analyzed the Borden's possible value assuming the Borden was
sold in pieces in a tax efficient manner. In this analysis, First Boston added
the reference range for each business unit derived from the analyses described
above to arrive at an enterprise value for the Borden. The hypothetical range of
values for each of the Borden's major business units derived from such analysis
ranged from approximately $800 to $900 million for Niche Grocery; $750 to $950
million for Pasta; $800 to $900 million for International Foods Unit; $290 to
$350 million for Packaging; $900 to $1,050 million for Resins; $250 to $325
million for Decorative Products; $130 to $170 million for Consumer Adhesives;
and $140 to $295 million for miscellaneous businesses. Using these ranges gives
a range of enterprise values of $4,060 to $4,940 million for the Borden. After
subtracting debt ($2,287 million), pension underfunding ($97 million) and
capitalized administrative overhead costs ($257 million), and adding in the
present value of the net operating loss carryforwards (reduced by the amount
used to offset the tax liability incurred in the hypothetical disaggregation of
the business units) (from $34 (corresponding to the upper end of the divested
businesses' value range) to $125 (corresponding to the lower end of the divested
businesses' value range) million depending on the proceeds of the hypothetical
divestitures) the range of equity values for the Borden is $1,544 to $2,333
million, or $10.92 to $16.50 per share of Borden Common Stock. For purposes of
this analysis, First Boston relied upon tax data and calculations provided by
the Borden and assumed the Packaging and Industrial Products Unit and the Dairy
Unit were sold separately in taxable transactions and the balance of the food
segment was sold tax-free or retained by the Borden.
Although in connection with the delivery of its opinion First Boston also
analyzed Holdings, First Boston's opinion is not a valuation of Holdings or the
Holdings Common Stock and does not represent First Boston's view as to what the
value of the Holdings Common Stock to be exchanged for Borden Shares actually
will be when the Exchange Offer or the Merger is consummated. As a result of the
limitation on the Exchange Ratio, such actual value could be higher or lower
than $14.25 per share at such times depending on the value of Holdings Common
Stock. Because of the large aggregate amount of Holdings Common Stock being
distributed to shareholders of Borden in exchange for their Borden Shares and
other factors, such securities may trade initially at prices below those at
which they would trade on a fully distributed basis.
In arriving at its opinion dated September 22, 1994, First Boston performed
a variety of financial analyses, including those summarized above. The summary
set forth in this section does not purport to be a complete description of First
Boston's analyses. First Boston believes that its analyses and the summary set
forth above must be considered as a whole and that selecting portions of its
analyses, without considering all analyses, or of the summary above, without
considering all factors and analyses, could create an incomplete view of the
processes underlying First Boston's opinion. In addition, First Boston may have
given various analyses more or less weight than other analyses, and may have
deemed
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various assumptions more or less probable than other assumptions, so that the
ranges of valuation resulting from any particular analysis described above
should not be taken to be First Boston's view of the actual value of the Borden
or Holdings. First Boston's analyses depend upon numerous assumptions with
respect to industry performance, general business, economic, market and
financial conditions and other matters, many of which are beyond the control of
the Borden and Holdings. As described above, in its analyses First Boston
assumed, with the Borden's consent, the absence of future adverse developments
affecting Holdings's tobacco business. First Boston's analyses are not
necessarily indicative of actual values or actual future results that might be
achieved and are not and do not purport to be appraisals or otherwise reflective
of prices at which the business units actually could be sold or prices at which
securities actually would trade.
OTHER INFORMATION CONCERNING BORDEN FINANCIAL ADVISORS
Borden has retained Lazard Freres and First Boston as financial advisors in
connection with the Merger, the Exchange Offer and other matters arising in
connection therewith. Pursuant to an engagement letter agreement dated September
13, 1994, between Borden and Lazard Freres, Borden paid Lazard Freres (i) a fee
of $3,000,000 on execution of the Merger Agreement and has agreed to pay (ii) an
additional fee of $7,000,000, in the event KKR and its affiliates acquire at
least 50.1% of the outstanding Borden Shares. Lazard Freres was originally
retained by Borden on October 11, 1993 to provide certain financial advisory
services to Borden and has earned fees aggregating $1.5 million for such
services. Borden has also agreed to reimburse Lazard Freres for its
out-of-pocket expenses, including reasonable fees and disbursements of counsel,
and to indemnify Lazard Freres and its partners, employees, agents, affiliates
or controlling persons against certain liabilities, including certain
liabilities under the federal securities laws, relating to or arising out of its
engagement.
Lazard Freres is an internationally recognized investment banking firm and
regularly engages in the valuation of businesses and their securities in
connection with mergers and acquisitions and for other purposes. The Borden
Board selected Lazard Freres to act as its financial advisor with respect to
certain matters, including the transactions with the Partnership, on the basis
of Lazard Freres' qualifications, expertise and reputation in investment
banking, in general, and mergers and acquisitions specifically. From time to
time, in the past, Lazard Freres has represented KKR and received customary fees
therefore.
Pursuant to an engagement letter dated as of October 26, 1993, as amended on
September 22, 1994, between Borden and First Boston, Borden has agreed to pay
First Boston (i) a fee of $3,000,000 upon commencement of the Exchange Offer and
(ii) an additional fee of $7,000,000 in the event KKR and its affiliates acquire
at least 51% of the outstanding Borden Shares. First Boston has earned fees
aggregating $2.3 million for other services rendered pursuant to this engagement
letter. Borden has also agreed to reimburse First Boston for its out-of-pocket
expenses, including reasonable fees and disbursements of counsel. Borden has
also agreed to indemnify First Boston and its affiliates, their respective
directors, officers, partners, agents and employees and each person, if any,
controlling First Boston or any of its affiliates against certain liabilities,
including certain liabilities under the federal securities laws, relating to or
arising out of its engagement.
First Boston is an internationally recognized investment banking firm and
regularly engages in the valuation of businesses and their securities in
connection with mergers and acquisitions and for other purposes. The Board
selected First Boston to act as its financial advisor on the basis of First
Boston's international reputation, Borden's prior relationship with First Boston
and First Boston's familiarity with Borden. In the past, First Boston has
provided investment banking services for Borden, Holdings and KKR for which
First Boston has received customary compensation. In the ordinary course of
First Boston's business, First Boston actively trades the debt and equity
securities of both Borden and Holdings for its own account and for the accounts
of customers and, accordingly, may at any time hold a long or short position in
such securities.
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TERMS OF THE EXCHANGE OFFER; EXPIRATION DATE
Upon the terms and subject to the conditions of the Exchange Offer
(including, if the Exchange Offer is extended or amended, the terms and
conditions of any such extension or amendment), the Purchaser hereby offers to
exchange shares of Holdings Common Stock for all outstanding Borden Shares at
the Exchange Ratio, provided that such Borden Shares are validly tendered on or
prior to the Expiration Date and not properly withdrawn as described under
"--Withdrawal Rights."
The Purchaser will announce the exact Exchange Ratio with respect to each
Borden Share that is to be exchanged for shares of Holdings Common Stock in the
Exchange Offer by 9:00 A.M., New York City time, on the first business day of
the ten business day period ending on the Expiration Date. The Purchaser will
make such announcement by issuing a press release to the Dow Jones News Service.
During the ten business day period ending on the Expiration Date, holders of
Borden Shares will be able to obtain the exact Exchange Ratio with respect to
each Borden Share that is to be exchanged for shares of Holdings Common Stock in
the Exchange Offer from the Information Agent or the Dealer Manager for the
Exchange Offer at their respective telephone numbers appearing on the back cover
of this Offering Circular/Prospectus.
Upon the terms and subject to the conditions of the Exchange Offer,
including without limitation the Minimum Condition, the Purchaser will exchange
all such Borden Shares for shares of Holdings Common Stock. Tendering
shareholders will not be obligated to pay any charges or expenses of the
Exchange Agent or any brokerage commissions. Except as set forth in the Letter
of Transmittal, transfer taxes on the exchange of Borden Shares pursuant to the
Exchange Offer will be paid by or on behalf of the Purchaser.
No fractional shares of Holdings Common Stock will be distributed. The
Exchange Agent, acting as agent for record holders of Borden Shares otherwise
entitled to receive fractional shares of Holdings Common Stock, will aggregate
all fractional shares and sell them for the accounts of such shareholders.
Proceeds from sales of fractional shares will be paid by the Exchange Agent
based upon the average net selling price per share of all such sales (following
the deduction of applicable transaction costs of third parties other than the
Exchange Agent, Borden, the Purchaser or affiliates of any of the foregoing).
The Exchange Agent has advised the Purchaser that nominees or other
intermediaries customarily effect sales of fractional shares otherwise held for
the account of a beneficial holder of such fractional shares and distribute the
proceeds of such sales to the beneficial holder of such shares. Beneficial
holders of Borden Shares should consult with the nominee or other intermediary
through whom their Borden Shares are held in order to determine the procedures
of such nominee or other intermediary with respect to fractional shares of
Holdings Common Stock that may otherwise be held for the account of such
beneficial holders by such nominee or other intermediary. Depending on the
procedures of such nominee or other intermediary, a beneficial holder of Borden
Shares may not receive cash in lieu of fractional shares of Holdings Common
Stock. See "--Procedure for Tendering Shares of Borden Common Stock--Backup
Federal Tax Withholding."
The Exchange Offer is subject to certain conditions set forth under
"--Certain Conditions of the Exchange Offer," any of which may be waived by the
Purchaser, except that in the event the Purchaser exercises the Option in whole
or in part, then the Purchaser is not permitted to waive the Minimum Condition.
If any condition is not satisfied, the Purchaser may (i) terminate the Exchange
Offer and return all tendered Borden Shares to tendering shareholders, (ii)
extend the Exchange Offer and, subject to withdrawal rights as set forth under
"--Withdrawal Rights," retain all such Borden Shares until the expiration of the
Exchange Offer as so extended, (iii) waive such condition (other than, in
certain circumstances described herein, the Minimum Condition) and, subject to
any requirement to extend the period of time during which the Exchange Offer is
open, exchange all Borden Shares validly tendered for exchange on or prior to
the Expiration Date and not properly withdrawn, or (iv) subject to applicable
law, delay acceptance for exchange of or exchange for any Borden Shares until
satisfaction or waiver of such condition to the Exchange Offer even though the
Exchange Offer has expired. For a
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description of the Purchaser's right to extend the period of time during which
the Exchange Offer is open and to amend, delay or terminate the Exchange Offer
and for a description of withdrawal rights of Borden's shareholders in such
circumstances, see "--Extension of Tender Period; Termination; Amendment" and
"--Withdrawal Rights." The Purchaser's right to delay acceptance for exchange of
or exchange for Borden Shares tendered for exchange pursuant to the Exchange
Offer is subject to provisions of applicable law, including, to the extent
applicable, Rule 14e-1(c) promulgated under the Exchange Act, which requires
that the Purchaser pay the consideration offered or return the Borden Shares
deposited by or on behalf of Borden shareholders promptly after the termination
or withdrawal of the Exchange Offer. Pursuant to the Merger Agreement, the
Purchaser has agreed that, upon the request of Borden (and without limiting the
number of times that the Purchaser may extend the Exchange Offer, or the total
number of days for which the Exchange Offer may be extended), the Purchaser will
extend the Exchange Offer, one or more times, for an aggregate of not more than
twenty business days. See "Description of Merger Agreement and Conditional
Purchase/Option Agreement."
Following the effectiveness of the Registration Statement, this Offering
Circular/Prospectus and the related Letter of Transmittal will be mailed to
record holders of Borden Shares and will be furnished to brokers, banks and
similar persons whose names, or the names of whose nominees, appear on the
Borden shareholder list or, if applicable, who are listed as participants in a
clearing agency's security position listing for subsequent transmittal to
beneficial owners of Borden Shares.
EXCHANGE OF SHARES OF BORDEN COMMON STOCK
Upon the terms and subject to the conditions of the Exchange Offer
(including, if the Exchange Offer is extended or amended, the terms and
conditions of any such extension or amendment), the Purchaser will accept for
exchange, and will exchange for shares of Holdings Common Stock, all Borden
Shares validly tendered and not properly withdrawn on or prior to the Expiration
Date promptly after the later to occur of (i) the Expiration Date and (ii) the
satisfaction or waiver of the conditions of the Exchange Offer set forth under
"--Certain Conditions of the Exchange Offer." Subject to applicable rules of the
Commission, which, under certain circumstances, require extension of the
Exchange Offer and related withdrawal rights, the Purchaser expressly reserves
the right to delay acceptance for exchange of or exchange for Borden Shares
pending receipt of regulatory approvals referred to under "--Certain Regulatory
Approvals and Legal Matters." See "--Withdrawal Rights" and "--Extension of
Tender Period; Termination Amendment."
Unless and until the Rights are redeemed in accordance with the Merger
Agreement, holders of Borden Shares will be required to tender the Rights
associated with such Borden Shares in order to effect a valid tender of such
Borden Shares. As of the date hereof, the Rights trade together with the Borden
Shares and a tender of the Borden Shares will be deemed to be a tender of the
associated Rights. If separate Rights Certificates are issued, tendering
shareholders will then be required to tender both Share Certificates and Rights
Certificates in order to effect a valid tender. See "--Procedure for Tendering
Shares of Borden Common Stock."
In all cases, exchange of Borden Shares tendered and accepted for exchange
pursuant to the Exchange Offer will be made only after timely receipt by the
Exchange Agent of (i) Share Certificates (and Rights Certificates if applicable)
for Borden Shares, or a Book-Entry Confirmation of a book-entry transfer of such
Borden Shares into the Exchange Agent's account at a Book-Entry Transfer
Facility pursuant to the procedures set forth under "--Procedure for Tendering
Shares of Borden Common Stock," (ii) the Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or an Agent's Message in connection with a book-entry transfer, and
(iii) any other documents required by the Letter of Transmittal.
For purposes of the Exchange Offer, the Purchaser will be deemed to have
accepted for exchange Borden Shares validly tendered and not properly withdrawn
as, if and when the Purchaser gives oral or
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written notice to the Exchange Agent of the Purchaser's acceptance for exchange
of such Borden Shares pursuant to the Exchange Offer. Upon the terms and subject
to the conditions of the Exchange Offer, exchange of Borden Shares accepted for
exchange pursuant to the Exchange Offer will be made by deposit of tendered
Borden Shares with the Exchange Agent, which will act as agent for the tendering
shareholders for the purpose of receiving shares of Holdings Common Stock from
the Purchaser and transmitting such shares of Holdings Common Stock to tendering
shareholders. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID PURSUANT TO THE
EXCHANGE OFFER, REGARDLESS OF ANY DELAY IN MAKING SUCH EXCHANGE. If, for any
reason whatsoever, acceptance for exchange of or exchange for any Borden Shares
tendered pursuant to the Exchange Offer is delayed, or the Purchaser is unable
to accept for exchange or exchange for Borden Shares tendered pursuant to the
Exchange Offer, then, without prejudice to the Purchaser's rights set forth
herein, the Exchange Agent may, nevertheless, on behalf of the Purchaser and
subject to Rule 14e-1(c) under the Exchange Act, retain tendered Borden Shares
and such Borden Shares may not be withdrawn except to the extent that the
tendering stockholder is entitled to and duly exercises withdrawal rights as
described under "--Withdrawal Rights."
If any tendered Borden Shares are not accepted for exchange for any reason
or if Share Certificates (and Rights Certificates if applicable) are submitted
for more Borden Shares than are tendered, Share Certificates (and Rights
Certificates if applicable) for Borden Shares evidencing un-exchanged or un-
tendered Borden Shares will be returned, without expense to the tendering
shareholder (or, in the case of Borden Shares tendered by book-entry transfer
into the Exchange Agent's account at a Book-Entry Transfer Facility pursuant to
the procedures described under "--Procedure for Tendering Shares of Borden
Common Stock--Book-Entry Transfer," such Borden Shares will be credited to an
account maintained at such Book-Entry Transfer Facility), in each case with the
related Rights Certificates (if applicable), promptly following the expiration,
termination or withdrawal of the Exchange Offer.
If, prior to the Expiration Date, the Purchaser increases the consideration
offered to shareholders pursuant to the Exchange Offer, such increased
consideration will be given to all shareholders whose Borden Shares are
exchanged pursuant to the Exchange Offer, whether or not such Borden Shares were
tendered or accepted for exchange prior to such increase in consideration.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to one or more of its affiliates, the right to exchange
all or any portion of the Borden Shares tendered pursuant to the Exchange Offer,
but any such transfer or assignment will not relieve the Purchaser of its
obligations under the Exchange Offer and will in no way prejudice the rights of
tendering shareholders to exchange for Borden Shares validly tendered and
accepted for exchange pursuant to the Exchange Offer. According to the Merger
Agreement, it is presently contemplated that the right of the Purchaser to
exchange for shares of Borden Common Stock pursuant to the Exchange Offer and
the right of the Purchaser to exercise the Option will be assigned to the
Partnership or to a direct or indirect wholly owned subsidiary of the
Partnership, which may, in any such case, act for itself and/or as agent for one
or both of the Common Stock Partnerships, as the case may be.
PROCEDURE FOR TENDERING SHARES OF BORDEN COMMON STOCK
Except as set forth below, in order for Borden Shares (and Rights if
applicable) to be validly tendered pursuant to the Exchange Offer, the Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed,
together with any required signature guarantees, or an Agent's Message in
connection with a book-entry delivery of Borden Shares (and Rights if
applicable) and any other documents required by the Letter of Transmittal, must
be received by the Exchange Agent at one of its addresses set forth on the back
cover of this Offering Circular/Prospectus on or prior to the Expiration Date
and either (i) the Share Certificates (and Rights Certificates if applicable)
evidencing tendered Borden Shares (and Rights if applicable) must be received by
the Exchange Agent at such address or such Borden Shares (and Rights if
applicable) must be tendered pursuant to the procedure for book-entry transfer
described below and a Book-Entry Confirmation must be received by the Exchange
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Agent, in each case on or prior to the Expiration Date, or (ii) the guaranteed
delivery procedures described below must be complied with.
Unless and until the Rights are redeemed in accordance with the Merger
Agreement, holders of Borden Shares will be required to tender the Rights
associated with such Borden Shares in order to effect a valid tender of such
Borden Shares. Accordingly, shareholders who sell their Rights separately from
their Borden Shares and do not otherwise acquire Rights may not be able to
satisfy the requirements of the Exchange Offer for a valid tender of Borden
Shares. If the Distribution Date (as defined in the Rights Agreement) has
occurred and Rights Certificates have been distributed to such holders prior to
the date of tender pursuant to the Exchange Offer, Rights Certificates
representing a number of Rights equal to the number of Borden Shares being
tendered must be delivered to the Exchange Agent in order for such Borden Shares
to be validly tendered. If the Distribution Date has occurred and Rights
Certificates have not been distributed prior to the time Borden Shares are
tendered pursuant to the Exchange Offer, Rights may be tendered prior to a
shareholder receiving Rights Certificates by use of the guaranteed delivery
procedures described below. A tender of Borden Shares without Rights
Certificates constitutes an agreement by the tendering shareholder to deliver
Rights Certificates representing a number of Rights equal to the number of
Borden Shares tendered pursuant to the Exchange Offer to the Exchange Agent
within five business days after the date such Rights Certificates are
distributed. Unless and until the Rights are redeemed in accordance with the
Merger Agreement, the Purchaser reserves the right to require that it receive
such Rights Certificates prior to accepting Borden Shares for exchange. In that
event, exchange for Borden Shares tendered and accepted for exchange pursuant to
the Exchange Offer will be made only after timely receipt by the Exchange Agent
of, among other things, Rights Certificates, if Rights Certificates have been
distributed to holders of Borden Shares. See "Description of Merger Agreement
and Conditional Purchase/Option Agreement."
THE METHOD OF DELIVERY OF BORDEN SHARES (AND RIGHTS IF APPLICABLE), AND ALL
OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING SHAREHOLDER. IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
Book-Entry Transfer
The Exchange Agent will make a request to establish accounts with respect to
the Borden Shares at the Book-Entry Transfer Facilities for purposes of the
Exchange Offer within two business days after the date of this Offering
Circular/Prospectus. Any financial institution that is a participant in the
system of any Book-Entry Transfer Facility may make book-entry delivery of
Borden Shares by causing such Book-Entry Transfer Facility to transfer such
Borden Shares into the Exchange Agent's account at such Book-Entry Transfer
Facility in accordance with such Book-Entry Transfer Facility's procedures for
such transfer. However, although delivery of Borden Shares may be effected
through book-entry transfer at a Book-Entry Transfer Facility, the Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed,
together with any required signature guarantees, or an Agent's Message in
connection with a book-entry transfer, and any other documents required by the
Letter of Transmittal, must, in any case, be received by the Exchange Agent at
one of its addresses set forth on the back cover of this Offering
Circular/Prospectus prior to the Expiration Date, or the guaranteed delivery
procedures described below must be complied with.
If Rights Certificates are issued, to the extent that the Rights become
eligible for book-entry transfer under procedures established by a particular
Book-Entry Transfer Facility, the Exchange Agent will make a request to
establish an account with respect to the Rights at such Book-Entry Transfer
Facility as soon as practicable. No assurance can be given, however, that
book-entry delivery of Rights will be available. If book-entry delivery of
Rights is available, the foregoing book-entry transfer procedure will also apply
to Rights. If book-entry delivery is not available and if separate
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Rights Certificates have been issued, a tendering shareholder is not relieved of
delivery requirements hereunder and thus will be required to tender Rights by
means of actual delivery of Rights Certificates or pursuant to the guaranteed
delivery procedures set forth below.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH
SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO
THE EXCHANGE AGENT.
Signature Guarantees
Signatures on Letters of Transmittal must be guaranteed by a firm which is a
member of a registered national securities exchange or of the National
Association of Securities Dealers, Inc., or by a commercial bank or trust
company having an office or correspondent in the United States (each of the
foregoing being referred to as an "Eligible Institution"), except in cases where
Borden Shares are tendered (i) by a registered holder of Borden Shares who has
not completed either the box labeled "Special Exchange Instructions" or the box
labeled "Special Delivery Instructions" on the Letter of Transmittal or (ii) for
the account of an Eligible Institution. See Instructions 1 and 5 of the Letter
of Transmittal.
If the Share Certificates (or the Rights Certificates if applicable) are
registered in the name of a person other than the signer of the Letter of
Transmittal, or if payment in respect of fractional shares of Holdings Common
Stock is to be made, or Share Certificates (or Rights Certificates if
applicable) not accepted for exchange or not tendered are to be returned, to a
person other than the registered holder(s), the Share Certificates (or Rights
Certificates if applicable), as the case may be, must be endorsed or accompanied
by appropriate stock powers, in either case, signed exactly as the name(s) of
the registered holder(s) appear on such certificates, with the signature(s) on
such certificates or stock powers guaranteed as aforesaid. See Instructions 1
and 5 of the Letter of Transmittal.
If Share Certificates (and Rights Certificates if applicable) are forwarded
separately to the Exchange Agent, a properly completed and duly executed Letter
of Transmittal (or a facsimile thereof) must accompany each such delivery.
Guaranteed Delivery
If a shareholder desires to tender Borden Shares (and Rights if applicable)
pursuant to the Exchange Offer and such shareholder's Share Certificates (or
Rights Certificates if applicable) are not immediately available or such
shareholder cannot deliver Share Certificates (or Rights Certificates if
applicable) and all other required documents to reach the Exchange Agent on or
prior to the Expiration Date, or such shareholder cannot complete the procedure
for delivery by book-entry transfer on a timely basis, such Borden Shares (and
Rights if applicable) may nevertheless be tendered, provided that all of the
following conditions are satisfied:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the Purchaser, is
received by the Exchange Agent, as provided below, on or prior to the
Expiration Date; and
(iii) the Share Certificates and Rights Certificates, as the case may be
(or a Book-Entry Confirmation), representing all tendered Borden Shares (and
Rights if applicable), in proper form for transfer, in each case together
with the Letter of Transmittal (or a facsimile thereof), properly completed
and duly executed, with any required signature guarantees (or, in the case
of a book-entry transfer, an Agent's Message) and any other documents
required by the Letter of Transmittal are received by the Exchange Agent
within (A) in the case of Borden Shares, five NYSE trading days after the
date of execution of such Notice of Guaranteed Delivery, and (B) in the case
of Rights, a period ending on the later of (x) five NYSE trading days after
the date of execution of
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such Notice of Guaranteed Delivery and (y) five business days after the date
Rights Certificates are distributed to shareholders of Borden (if
applicable).
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, telex, facsimile transmission or mail to the Exchange Agent and must
include a guarantee by an Eligible Institution in the form set forth in such
Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, exchange of Borden Shares
accepted for exchange pursuant to the Exchange Offer will in all cases be made
only after timely receipt by the Exchange Agent of Shares Certificates for, or
of Book-Entry Confirmation with respect to, such Borden Shares, and if the
Distribution Date has occurred, Rights Certificates for, or a Book-Entry
Confirmation, if available, with respect to, the associated Rights (unless the
Purchaser elects, in its sole discretion, to exchange such Borden Shares pending
receipt of the Rights Certificates for, or a Book-Entry Confirmation with
respect to, such Rights), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), together with any required signature
guarantees (or, in the case of a book-entry transfer, an Agent's Message), and
any other documents required by the Letter of Transmittal. Accordingly, exchange
of Borden Shares might not be made to all tendering shareholders at the same
time, and will depend upon when Share Certificates (or Rights Certificates if
applicable) or Book-Entry Confirmations of such Borden Shares (or Rights if
applicable) are received into the Exchange Agent's account at a Book-Entry
Transfer Facility.
If the Rights are redeemed by Borden in accordance with the Merger
Agreement, the guaranteed delivery procedure with respect to Rights Certificates
and the requirement for the tender of Rights will no longer apply.
Appointment as Proxy
By executing the Letter of Transmittal, a tendering shareholder irrevocably
appoints designees of the Purchaser, and each of them, as such shareholder's
attorneys-in-fact and proxies, with full power of substitution, in the manner
set forth in the Letter of Transmittal, to the full extent of such shareholder's
rights with respect to the Borden Shares (and Rights if applicable) tendered by
such shareholder and accepted for exchange by the Purchaser (and with respect to
any and all other Borden Shares (and Rights if applicable) or other securities
issued or issuable in respect of such Borden Shares (and Rights if applicable)
on or after the date hereof). All such powers of attorney and proxies shall be
considered irrevocable and coupled with an interest in the tendered Borden
Shares (and Rights if applicable). Such appointment will be effective when, and
only to the extent that, the Purchaser accepts such Borden Shares for exchange.
Upon such acceptance for exchange, all prior powers of attorney and proxies
given by such shareholder with respect to such Borden Shares (and Rights if
applicable) (and such other shares and securities) will be revoked without
further action, and no subsequent powers of attorney and proxies may be given
nor any subsequent written consents executed (and, if given or executed, will
not be deemed effective). The designees of the Purchaser will be empowered to
exercise all voting and other rights of such shareholder as they in their sole
discretion may deem proper at any annual or special meeting of Borden's
shareholders or any adjournment or postponement thereof, by written consent in
lieu of any such meeting or otherwise. The Purchaser reserves the right to
require that, in order for Borden Shares (and Rights if applicable) to be deemed
validly tendered, immediately upon the Purchaser's exchange for such Borden
Shares, the Purchaser must be able to exercise full voting rights with respect
to such Borden Shares (and Rights if applicable) and other securities, including
voting at any meeting of shareholders.
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Determination of Validity
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance for exchange of any tender of Borden Shares (and Rights
if applicable) will be determined by the Purchaser, in its sole discretion,
which determination shall be final and binding on all parties. The Purchaser
reserves the absolute right to reject any and all tenders determined by it not
to be in proper form or the acceptance for exchange of which may, in the opinion
of its counsel, be unlawful. Except as otherwise described herein, the Purchaser
also reserves the absolute right to waive any of the conditions of the Exchange
Offer or any defect or irregularity in any tender of Borden Shares (and Rights
if applicable) of any particular shareholder whether or not similar defects or
irregularities are waived in the case of other shareholders. No tender of Borden
Shares (and Rights if applicable) will be deemed to have been validly made until
all defects and irregularities have been cured or waived. None of the Purchaser,
the Common Stock Partnerships, the Dealer Manager, the Exchange Agent, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. The Purchaser's interpretation of the
terms and conditions of the Exchange Offer (including the Letter of Transmittal
and the instructions thereto) will be final and binding.
Backup Federal Tax Withholding
UNDER THE FEDERAL INCOME TAX LAWS, THE EXCHANGE AGENT WILL BE REQUIRED TO
WITHHOLD 31 PERCENT OF THE AMOUNT OF ANY PAYMENTS MADE TO CERTAIN SHAREHOLDERS
PURSUANT TO THE EXCHANGE OFFER. TO PREVENT BACKUP FEDERAL INCOME TAX
WITHHOLDING, EACH SUCH SHAREHOLDER MUST PROVIDE THE EXCHANGE AGENT WITH SUCH
SHAREHOLDER'S CORRECT TAXPAYER IDENTIFICATION NUMBER AND CERTIFY THAT SUCH
SHAREHOLDER IS NOT SUBJECT TO BACKUP FEDERAL INCOME TAX WITHHOLDING BY
COMPLETING THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL. SEE
INSTRUCTION 9 OF THE LETTER OF TRANSMITTAL.
Other Matters
The Purchaser's acceptance for exchange of Borden Shares tendered pursuant
to any of the procedures described above will constitute a binding agreement
between the tendering shareholder and the Purchaser upon the terms and subject
to the conditions of the Exchange Offer.
WITHDRAWAL RIGHTS
Tenders of Borden Shares (and Rights if applicable) made pursuant to the
Exchange Offer are irrevocable, except that Borden Shares (and Rights if
applicable) tendered pursuant to the Exchange Offer may be withdrawn at any time
on or prior to the Expiration Date and, unless theretofore accepted for exchange
by the Purchaser pursuant to the Exchange Offer, may also be withdrawn at any
time after , 1995. If the Purchaser extends the
Exchange Offer, is delayed in its acceptance for exchange of or exchange for
Borden Shares or is unable to exchange Borden Shares validly tendered pursuant
to the Exchange Offer for any reason, then, without prejudice to the Purchaser's
rights under the Exchange Offer, the Exchange Agent may nevertheless, on behalf
of the Purchaser, retain tendered Borden Shares (and Rights if applicable), and
such Borden Shares (and Rights if applicable) may not be withdrawn except to the
extent that tendering shareholders are entitled to withdrawal rights as
described below. Any such delay will be by an extension of the Exchange Offer to
the extent required by law.
For a withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by the Exchange Agent
at one of its addresses set forth on the back cover of this Offering
Circular/Prospectus. Any notice of withdrawal must specify the name of the
person who tendered the Borden Shares (and Rights if applicable) to be
withdrawn, the number of Borden Shares (and Rights if applicable) to be
withdrawn and the name of the registered holder, if different from that of the
person who tendered such Borden Shares (and Rights if applicable). If Share
Certificates (or Rights Certificates if applicable) for Borden Shares (and
Rights if applicable) to be
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withdrawn have been delivered or otherwise identified to the Exchange Agent,
then, prior to the physical release of such certificates, the serial numbers
shown on such certificates must be submitted to the Exchange Agent and the
signature(s) on the notice of withdrawal must be guaranteed by an Eligible
Institution unless such Borden Shares (and Rights if applicable) have been
tendered for the account of an Eligible Institution. If Borden Shares (and
Rights if applicable) have been tendered pursuant to the procedure for
book-entry transfer as described under "--Procedure for Tendering Shares of
Borden Common Stock--Book-Entry Transfer," any notice of withdrawal must specify
the name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Borden Shares (and Rights if applicable), in which
case a notice of withdrawal will be effective if delivered to the Exchange Agent
by any method of delivery described in the first sentence of this paragraph.
All questions as to the form and validity (including time of receipt) of any
notice of withdrawal will be determined by the Purchaser, in its sole
discretion, whose determination will be final and binding. None of the
Purchaser, the Partnership, any of their affiliates or assigns, the Dealer
Manager, the Exchange Agent, the Information Agent or any other person will be
under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification.
Any Borden Shares (and Rights if applicable) properly withdrawn will
thereafter be deemed not to have been validly tendered for purposes of the
Exchange Offer. However, withdrawn Borden Shares (and Rights if applicable) may
be re-tendered at any time on or prior to the Expiration Date by following one
of the procedures described under "--Procedure for Tendering Shares of Borden
Common Stock."
EXTENSION OF TENDER PERIOD; TERMINATION; AMENDMENT
The Purchaser expressly reserves the right, in its sole discretion, at any
time and from time to time, to extend the period during which the Exchange Offer
is open for any reason, including the occurrence of any of the conditions
specified under "--Certain Conditions of the Exchange Offer," by giving oral or
written notice of such extension to the Exchange Agent. During any such
extension, all Borden Shares (and Rights if applicable) previously tendered and
not properly withdrawn will remain subject to the Exchange Offer, subject to the
rights of a tendering shareholder to withdraw such shareholder's Borden Shares
(and Rights if applicable). See "--Withdrawal Rights."
Pursuant to the Merger Agreement, the Purchaser has agreed that, upon the
request of Borden (and without limiting the number of times that the Purchaser
may extend the Exchange Offer, or the total number of days for which the
Exchange Offer may be extended), the Purchaser will extend the Exchange Offer,
one or more times, for an aggregate of not more than twenty business days. See
"Description of Merger Agreement and Conditional Purchase/Option Agreement."
The Purchaser acknowledges (i) that Rule 14e-1(c) under the Exchange Act
requires the Purchaser to pay the consideration offered or return the Borden
Shares (and Rights if applicable) tendered promptly after the termination or
withdrawal of the Exchange Offer and (ii) that the Purchaser may not delay
acceptance for exchange of, or exchange for (except as provided in clause (i) of
the succeeding sentence), any Borden Shares upon the occurrence of any of the
conditions specified under "--Certain Conditions of the Exchange Offer" without
extending the period of time during which the Exchange Offer is open. Subject to
the foregoing and any other applicable regulations of the Commission, the
Purchaser reserves the right, in its sole discretion, at any time or from time
to time to (i) delay acceptance for exchange of or, regardless of whether such
Borden Shares were theretofore accepted for exchange, exchange for any Borden
Shares pending receipt of any regulatory approvals specified under "--Certain
Regulatory Approvals and Legal Matters," (ii) terminate the Exchange Offer
(whether or not any Borden Shares have theretofore been accepted for exchange)
if any of the conditions referred to under "--Certain Conditions of the Exchange
Offer" has not been satisfied or upon the occurrence of any of the conditions
specified thereunder and (iii) waive any condition or otherwise amend the
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Exchange Offer in any respect, in each case, by giving oral or written notice of
such delay, termination, waiver or amendment to the Exchange Agent and by making
a public announcement thereof.
Any such extension, delay, termination, waiver or amendment will be followed
as promptly as practicable by public announcement thereof, and such announcement
in the case of an extension will be made no later than 9:00 A.M., New York City
time, on the next business day after the previously scheduled Expiration Date.
Without limiting the manner in which the Purchaser may choose to make any public
announcement, except as provided by applicable law (including Rules 14d-4(c) and
14d-6(d) under the Exchange Act, which require that material changes be promptly
disseminated to holders of Borden Shares), the Purchaser shall have no
obligation to publish, advertise or otherwise communicate any such public
announcement other than by issuing a release to the Dow Jones News Service.
If the Purchaser makes a material change in the terms of the Exchange Offer,
or if it waives a material condition of the Exchange Offer, the Purchaser will
extend the Exchange Offer to the extent required by Rules 14d-4(c) and 14d-6(d)
under the Exchange Act. The minimum period during which an offer must remain
open following material changes in the terms of the offer, other than a change
in price or a change in percentage of securities sought or a change in any
dealer's soliciting fee, will depend upon the facts and circumstances, including
the materiality, of the changes. With respect to a change in price or, subject
to certain limitations, a change in the percentage of securities sought or a
change in any dealer's soliciting fee, a minimum ten business day period from
the day of such change is generally required to allow for adequate dissemination
to shareholders. Accordingly, if prior to the Expiration Date, the Purchaser
decreases the number of Borden Shares being sought, increases or decreases the
consideration offered pursuant to the Exchange Offer or changes any dealer's
soliciting fee, and if the Exchange Offer is scheduled to expire at any time
earlier than the period ending on the tenth business day from the date that
notice of such increase, decrease or change is first published, sent or given to
shareholders, the Exchange Offer will be extended at least until the expiration
of such ten business day period. For purposes of the Exchange Offer, a "business
day" means any day other than a Saturday, Sunday or a federal holiday and
consists of the time period from 12:01 A.M. through 12:00 Midnight, New York
City time.
CERTAIN CONDITIONS OF THE EXCHANGE OFFER
Notwithstanding any other provision of the Exchange Offer, the Purchaser
shall not be required to accept for exchange, exchange or deliver any shares of
Holdings Common Stock for, subject to Rule 14e-1(c) under the Exchange Act, any
Borden Shares tendered and may terminate or (subject to the terms of the Merger
Agreement) amend the Exchange Offer or may postpone the acceptance for exchange
of the Borden Shares tendered, if immediately before acceptance for exchange of
any such Borden Shares (whether or not any Borden Shares have theretofore been
accepted for exchange pursuant to the Exchange Offer): (i) the Minimum Condition
shall not have been satisfied; (ii) any waiting period under the HSR Act
applicable to the purchase of Borden Shares pursuant to the Exchange Offer shall
not have expired or been terminated or the requisite approvals, authorizations
or consents required by the Investment Canada Act, Canada's Competition Act and
the European Community (see "--Certain Regulatory Approvals and Legal Matters")
shall not have been obtained; (iii) all consents and waivers on terms
satisfactory to the Partnership necessary in order that the consummation of the
transactions contemplated by the Merger Agreement and the Conditional
Purchase/Option Agreement not constitute (A) an event of default or an event
which with or without notice or the passage of time would constitute an event of
default under any indebtedness, partnership agreement or equityholders agreement
of Borden or any subsidiary (or Borden Chemicals and Plastics Limited
Partnership, Borden Chemicals and Plastics Operating Limited Partnership and
T.M. Investors Limited Partnership) ("Indebtedness"), including, without
limitation, Borden's Amended and Restated Credit Agreement dated as of August
16, 1994 with Citibank, N.A., as Administrative Agent, and T.M. Investors
Limited Partnership's Amended and Restated Credit Agreement dated as of August
16, 1994 with Citibank, N.A., as Administrative Agent, or (B) an event which
would
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individually or in combination with other events give rise to an obligation on
the part of Borden to repay or repurchase any Indebtedness, partnership interest
or equity interest, which event of default or other event described in clause
(A) or (B) above would give rise to, with or without notice or the passage of
time and taking into account any cross-acceleration or cross-default provisions,
the obligation to repay prior to maturity or the acceleration of an aggregate of
at least $25 million of Indebtedness or other obligations shall not have been
obtained; (iv) Borden shall not have refinanced, or received commitments for
refinancing or indications satisfactory to the Partnership from lenders that it
will be able to refinance, in each case on market terms reasonably acceptable to
the Partnership, the principal bank credit facilities of Borden and T.M.I.
Associates, L.P., provided that such refinancing shall not be required to
increase the available lines of credit under such facilities except to meet the
working capital and other reasonable needs of Borden and its subsidiaries and
shall principally be related to extending maturities and renegotiating repayment
schedules under such facilities as appropriate to meet Borden's business plan as
determined by the Partnership and Borden; (v) the Registration Statement and any
required post-effective amendment thereto shall not have become effective under
the Securities Act or shall be the subject of any stop order or proceedings
seeking a stop order, or any material "blue sky" and other state securities laws
applicable to the registration of the Holdings Common Stock to be exchanged for
Borden Common Stock shall not have been complied with; or (vi) any of the
following shall occur and remain in effect and shall, in the reasonable judgment
of the Purchaser in any such case, make it inadvisable to proceed with the
Exchange Offer or such acceptance for exchange of any of the Borden Shares or to
proceed with the Merger:
(a) (i) any representation or warranty of Borden in the Merger Agreement
shall have been untrue as of the date of the Merger Agreement and shall
continue to be untrue, which untrue representations or warranties, in the
aggregate, would have a Material Adverse Effect (as defined below) on
Borden; or there has been a breach by Borden of any covenant or agreement
set forth in the Merger Agreement or the Conditional Purchase/Option
Agreement having a Material Adverse Effect on Borden which has not been
cured; (ii) the SEC Documents (as defined below) filed by Borden with the
Commission since the date of the Merger Agreement did not comply in all
material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be, and the rules and regulations of the
Commission promulgated thereunder applicable to such SEC Documents, and the
SEC Documents (including any and all financial statements included therein),
except to the extent revised or superseded by a subsequent filing with the
Commission, as of such dates contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; or (iii) the
consolidated financial statements of Borden included in the SEC Documents
filed since the date of the Merger Agreement did not comply as to form in
all material respects with applicable accounting requirements and the
published rules and regulations of the Commission with respect thereto, were
not prepared in accordance with generally accepted accounting principles
(except, in the case of unaudited consolidated quarterly statements, as
permitted by Form 10-Q of the Commission) applied on a consistent basis
during the periods involved (except as may be indicated in the notes
thereto) and did not fairly present the consolidated financial position of
Borden and its consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited quarterly statements, to normal
year-end audit adjustments);
(b) there shall be any United States or foreign statute, rule,
regulation, decree, order or injunction promulgated, enacted, entered into
or enforced by any governmental entity, that (i) restrains or prohibits the
making or consummation of the Exchange Offer or the Merger or restrains or
prohibits the performance of the Merger Agreement or the Conditional
Purchase/Option Agreement, (ii) prohibits or materially limits the ownership
or operation by the Partnership or the Purchaser of all or any substantial
portion of the business or assets of Borden or any of its subsidiaries or
compels the Partnership or the Purchaser to dispose of or to hold separate
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all or any substantial portion of the business or assets of Borden or any of
its subsidiaries, or imposes any material limitation on the ability of the
Partnership or the Purchaser to conduct such business or own such assets or
(iii) imposes material limitations on the ability of the Partnership or the
Purchaser (or any other affiliate of the Partnership or the Purchaser) to
acquire or hold or to exercise full rights of ownership of the Borden
Shares, including, but not limited to, the right to vote the Borden Shares
acquired by the Purchaser on all matters properly presented to the
shareholders of Borden; provided, however, that the Partnership and the
Purchaser shall have used their best efforts to have any such decree, order
or injunction vacated or reversed;
(c) any change shall have occurred since the date of the Merger
Agreement in the business, financial condition or results of operations of
Borden or any of its subsidiaries which has had, or would reasonably be
expected to have, a Material Adverse Effect with respect to Borden,
including, without limitation, the commencement in respect of, or by, Borden
of an involuntary, or voluntary, proceeding under any applicable bankruptcy
law, decree, order or any other case or proceeding adjudging Borden a
bankrupt or insolvent, or the condition of Borden is such that it is unable
to pay all of its liabilities as such liabilities mature or has unreasonably
small capital for conducting the business theretofore or proposed to be
conducted by it;
(d) there shall have occurred (and the adverse effect of such occurrence
shall, in the reasonable judgment of the Purchaser, be continuing) (i) any
general suspension of trading in, or limitation on prices for, securities on
any national securities exchange or in the over-the-counter market in the
United States, (ii) any extraordinary or material adverse change in United
States financial markets generally, including, without limitation, a decline
of at least 25% in either the Dow Jones Average of Industrial Stocks or the
Standard & Poor's 500 index from the date of the Merger Agreement, (iii) a
declaration of a banking moratorium or any suspension of payments in respect
of banks in the United States, (iv) any limitation (whether or not
mandatory) by any governmental entity, on, or any other event that would
reasonably be expected to materially adversely affect, the extension of
credit by banks or other lending institutions, (v) a commencement of a war
or armed hostilities or other national or international calamity directly or
indirectly involving the United States (other than in Haiti) which would
reasonably be expected to have a Material Adverse Effect or materially
adversely affect (or materially delay) the consummation of the Exchange
Offer or (vi) in the case of any of the foregoing existing at the time of
commencement of the Exchange Offer, a material acceleration or worsening
thereof; or
(e) the Merger Agreement shall have been terminated in accordance with
its terms or the Exchange Offer shall have been amended or terminated with
the consent of Borden.
The foregoing conditions are for the sole benefit of the Partnership and the
Purchaser and may be asserted by the Partnership or the Purchaser regardless of
the circumstances giving rise to any such condition and may be waived by the
Partnership or the Purchaser in whole or in part, provided, however, that if the
Purchaser shall have exercised the Option in whole or in part prior to the
termination of the Exchange Offer, the Purchaser shall not be permitted to waive
the Minimum Condition. The Partnership's or the Purchaser's failure at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any such
right and each such right shall be deemed an ongoing right which may be asserted
at any time and from time to time.
The term "Material Adverse Effect" means, when used in connection with any
person, any change or effect that either individually or in the aggregate with
all other such other changes or effects is materially adverse to the business,
financial condition or results of operations of such person and its subsidiaries
taken as a whole or adversely affects the ability of such person to consummate
the transactions contemplated by the Merger Agreement in any material respect.
The term "SEC Documents" means, with respect to any person, all reports,
schedules, forms, statements and other documents filed with the Commission by
such person since January 1, 1990, in each case including all exhibits and
schedules thereto and documents incorporated by reference therein.
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MATERIAL TAX CONSEQUENCES
Certain Federal Income Tax Consequences. In the opinion of Simpson Thacher &
Bartlett, the following summary sets forth the material federal income tax
consequences of the Exchange Offer and the Merger to a Borden shareholder. The
tax treatment of each Borden shareholder will depend in part upon his particular
situation. The discussion below applies to a Borden shareholder that is, for
United States federal income tax purposes, a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source. Moreover, the discussion below deals only
with Borden Shares held as capital assets and does not deal with persons in
special tax situations, such as financial institutions, insurance companies,
broker-dealers, persons who are not citizens or residents of the United States,
shareholders who acquired their Borden Shares through the exercise of an
employee stock option or otherwise as compensation, and persons who received
payments in respect of options to acquire Borden Shares. ALL SHAREHOLDERS SHOULD
CONSULT WITH THEIR OWN TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES OF THE
EXCHANGE OFFER AND THE MERGER TO THEM, INCLUDING THE APPLICABILITY AND EFFECT OF
ANY STATE, LOCAL AND FOREIGN TAX LAWS.
The receipt of shares of Holdings Common Stock pursuant to the Exchange
Offer or the Merger will be a taxable transaction for federal income tax
purposes and may also be a taxable transaction under applicable state, local,
foreign or other tax laws. A Borden shareholder will recognize gain or loss for
federal income tax purposes in an amount equal to the difference between the
fair market value of the consideration received (including cash received in lieu
of fractional shares) and such shareholder's adjusted tax basis in the Borden
Shares. The fair market value of the Holdings Common Stock will be the mean
between the high and the low trading prices on the NYSE Composite Tape on the
date the Purchaser accepts such Borden Shares for exchange pursuant to the
Exchange Offer or the effective date of the Merger, as the case may be. For
federal income tax purposes, such gain or loss will be a capital gain or loss,
and a long-term capital gain or loss if such shareholder's holding period is
more than one year as of the date the Purchaser accepts such Borden Shares for
exchange pursuant to the Exchange Offer or the effective date of the Merger, as
the case may be. There are limitations on the deductibility of capital losses.
The exchange of Borden Shares for shares of Holdings Common Stock pursuant to
the Exchange Offer or the Merger may also have tax consequences under applicable
state, local, foreign or other tax laws.
A Borden shareholder will have a tax basis in the shares of Holdings Common
Stock received pursuant to the Exchange Offer or the Proposed Merger equal to
the fair market value of such shares as of the date the Purchaser accepts such
Borden Shares for exchange pursuant to the Exchange Offer or the effective date
of the Merger, as the case may be, and a new holding period for such shares will
commence on the day after such date.
New York Real Estate Transfer Taxes. The New York State Real Property
Transfer Gains Tax, the New York State Real Estate Transfer Tax and the New York
City Real Property Transfer Tax (collectively, the "Real Estate Transfer Taxes")
are imposed on the transfer or acquisition, directly or indirectly, of
controlling interests in an entity which owns interests in real property located
in New York State or New York City, as the case may be. The Exchange Offer and
the Merger will result in the taxable transfer of controlling interests in
entities which own New York State or New York City real property for purposes of
the Real Estate Transfer Taxes. Although any Real Estate Transfer Taxes could be
imposed directly on the shareholders of Borden, Borden will complete and file
any necessary tax returns, and Borden will pay all Real Estate Transfer Taxes
that are imposed as a result of the Exchange Offer and the Merger. Upon receipt
of the consideration for either the Exchange Offer or the Merger, each
shareholder of Borden will be deemed to have agreed to be bound by the Real
Estate Transfer Tax returns filed by Borden.
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FEES AND EXPENSES OF THE EXCHANGE OFFER AND SOURCE OF FUNDS
Morgan Stanley is acting as the Purchaser's financial advisor in connection
with the proposed acquisition of Borden Common Stock and as Dealer Manager for
the Exchange Offer. In connection with such services, the Purchaser has agreed
to pay to Morgan Stanley an advisory fee (based on the time and effort expended
by Morgan Stanley in connection with the transaction) estimated to be between
$200,000 and $300,000, a fee of $3 million payable upon commencement of the
Exchange Offer (against which the advisory fee will be credited) and a
successful transaction fee of up to $7.95 million (against which both the
advisory fee and the Exchange Offer commencement fee will be credited) based on
the aggregate value of the consideration exchanged for Borden Shares in the
transaction. The successful transaction fee will become payable in the event
that the Purchaser acquires more than 51% of the Borden Shares (pursuant to the
Exchange Offer, the Merger or otherwise). In addition, the Purchaser has agreed
to reimburse Morgan Stanley for its reasonable out-of-pocket expenses, including
fees and expenses of its legal counsel, in connection with the provision of its
financial advisory services to the Purchaser and the Exchange Offer, and has
agreed to indemnify Morgan Stanley against certain liabilities and expenses
relating to, arising out of or in connection with its engagement, including
certain liabilities under the federal securities laws.
The Purchaser has retained D.F. King & Co., Inc. to act as the Information
Agent and First Chicago Trust Company of New York to act as the Exchange Agent
in connection with the Exchange Offer. The Information Agent may contact holders
of shares of Borden Common Stock by mail, telephone, telex, telegraph and
personal interviews and may request brokers, dealers and other nominee
shareholders to forward materials relating to the Exchange Offer to beneficial
owners. The Information Agent and the Exchange Agent each will receive
reasonable and customary compensation for their respective services, will be
reimbursed for certain reasonable out-of-pocket expenses and will be indemnified
against certain liabilities in connection therewith, including certain
liabilities under the federal securities laws. Neither the Information Agent nor
the Exchange Agent has been retained to make solicitations or recommendations in
their respective roles as Information Agent or Exchange Agent.
The Purchaser will not pay any fees or commissions to any broker or dealer
or any other person for soliciting tenders of shares of Borden Common Stock
pursuant to the Exchange Offer. Brokers, dealers, commercial banks and trust
companies will, upon request, be reimbursed by the Purchaser for reasonable and
necessary costs and expenses incurred by them in forwarding materials to their
customers.
The consideration to be provided to Borden's shareholders pursuant to the
Exchange Offer and the Merger will be shares of Holdings Common Stock currently
owned by the Common Stock Partnerships. Certain fees and expenses of the
Partnership and the Purchaser in connection with the Transactions will be paid
by Borden pursuant to the Merger Agreement or by the Partnership and/or KKR,
from internally generated funds. See "Description of Merger Agreement and
Conditional Purchase/Option Agreement--Merger Agreement."
Pursuant to the Registration Rights Agreement, Holdings will pay certain
expenses incident to the registration of the Holdings Common Stock to be
exchanged for Borden Common Stock, including filing fees.
Pursuant to an Indemnification Agreement, each of Holdings, Borden and the
Partnership and the Purchaser have agreed to indemnify the other parties for
certain liabilities under the Securities Act and the Exchange Act with respect
to certain information furnished by such parties to the others in connection
with the preparation of the Registration Statement and this Offering
Circular/Prospectus.
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CERTAIN REGULATORY APPROVALS AND LEGAL MATTERS
General
Except as set forth below, neither the Purchaser nor the Partnership is
aware of any governmental licenses or other regulatory permits that appear to be
material to the business of Borden and its subsidiaries, taken as a whole, that
might be adversely affected by the Purchaser's acquisition of Borden Shares (and
the indirect acquisition of the stock of Borden's subsidiaries) as contemplated
herein, or of any filings, approvals or other actions by or with any domestic
(federal or state), foreign or supranational governmental authority or
administrative or regulatory agency that would be required prior to the
acquisition of Borden Shares (or the indirect acquisition of the stock of
Borden's subsidiaries) by the Purchaser pursuant to the Exchange Offer as
contemplated herein. Should any such approval or other action be required, it is
the Purchaser's present intention to seek such approval or action. The Purchaser
does not presently intend, however, to delay the exchange of Borden Shares
tendered pursuant to the Exchange Offer pending the receipt of any such approval
or the taking of any such action (subject to the Purchaser's right to delay or
decline to exchange Borden Shares if any of the conditions described under
"--Certain Conditions of the Exchange Offer" shall have occurred). There can be
no assurance that any such approval or other action, if needed, would be
obtained without substantial conditions or that adverse consequences might not
result to the business of Borden, the Partnership or the Purchaser or that
certain parts of the businesses of Borden, the Partnership or the Purchaser
might not have to be disposed of or held separate or other substantial
conditions complied with in order to obtain such approval or other action or in
the event that such approval was not obtained or such other action was not
taken, any of which could cause the Purchaser to elect to terminate the Exchange
Offer without the exchange of the Borden Shares thereunder. In the Merger
Agreement, Borden has agreed to make any and all divestitures or undertakings
required by the FTC, the Antitrust Division or any other applicable governmental
entity in connection with the Transactions, which divestitures in each case
shall be reasonably acceptable to the Partnership and the Purchaser, provided
that certain conditions are met. See "Description of Merger Agreement and
Conditional Purchase/Option Agreement--Merger Agreement."
State Takeover Laws
A number of states (including New Jersey, where Borden is incorporated) have
adopted takeover laws and regulations which purport, to varying degrees, to be
applicable to attempts to acquire securities of corporations which are
incorporated in such states or which have, or whose business operations have
substantial economic effects in such states, or which have substantial assets,
security holders, principal executive offices or principal places of business
therein. However, in 1982, the Supreme Court of the United States, in Edgar v.
Mite Corp., invalidated on constitutional grounds the Illinois Business
Takeovers Act, which, as a matter of state securities law, made takeovers of
corporations meeting certain requirements more difficult, and the reasoning in
such decision is likely to apply to certain other state takeover statutes. In
1987, however, in CTS Corp. v. Dynamics Corp. of America, the Supreme Court of
the United States held that the State of Indiana could, as a matter of corporate
law and, in particular, those aspects of corporate law concerning corporate
governance, constitutionally disqualify a potential acquiror from voting on the
affairs of a target corporation without the prior approval of the remaining
stockholders, provided that such laws were applicable only under certain
conditions. Subsequently, in TLX Acquisition Corp. v. Telex Corp., a federal
district court in Oklahoma ruled that the Oklahoma takeover statutes were
unconstitutional insofar as they applied to corporations incorporated outside of
Oklahoma in that they would subject such corporations to inconsistent
regulations. Similarly, in Tyson Foods, Inc. v. McReynolds, a federal district
court in Tennessee ruled that four Tennessee takeover statutes were
unconstitutional as applied to corporations incorporated outside Tennessee. This
decision was affirmed by the United States Court of Appeals for the Sixth
Circuit. In December 1988, a federal district court in Florida held in Grand
Metropolitan PLC v. Butterworth that the provisions of the Florida Affiliated
Transactions Act and the Florida Control Share Acquisition Act were
unconstitutional as applied to corporations incorporated outside of Florida.
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Under New Jersey law, a publicly-traded New Jersey corporation with its
principal executive offices or significant business operations located in New
Jersey is prohibited from consummating a business combination with an interested
shareholder for a period of five years unless the business combination is
approved by the board of directors prior to the date the shareholder became
interested. In addition, after the five-year period a New Jersey corporation may
not engage in a business combination with an interested shareholder unless
either (i) the business combination is approved by the board of directors prior
to the date the shareholder became an interested shareholder or (ii) the
business combination is approved by the holders of two-thirds of the voting
stock not held by the interested shareholder or (iii) subject to certain other
requirements, the consideration per share received in the business combination
is at least equal to the greater of (x) the highest price per share of the same
class paid by the interested shareholder in the five years prior to either the
announcement of the business combination or the date at which the interested
shareholder became such, whichever results in a higher price, and (y) the market
price on either the date the business combination is announced or on the date
the interested shareholder first became such, whichever is higher. New Jersey
law defines "interested shareholder" as a person beneficially owning 10% or more
of the outstanding voting stock of the corporation. Because Borden's Board of
Directors approved the Merger Agreement and the transactions contemplated
thereby prior to the Purchaser attaining the status of an "interested
shareholder," the Merger may be effected prior to the expiration of the five
year waiting period provided in the New Jersey business combination statutes.
See "Description of Merger Agreement and Conditional Purchase/Option
Agreement--Merger Agreement--Merger" for a discussion of certain limitations on
business combinations between the Partnership (and its affiliates) and Borden
under certain circumstances. See "Comparison of Rights of Holders of Borden and
Holdings Common Stock."
Except as described herein, the Purchaser has not attempted to comply with
any state takeover statutes in connection with the Exchange Offer. The Purchaser
reserves the right to challenge the validity or applicability of any state law
allegedly applicable to the Exchange Offer and nothing in this Offering
Circular/Prospectus nor any action taken in connection herewith is intended as a
waiver of that right. In the event that any state takeover statute is found
applicable to the Exchange Offer, the Purchaser might be unable to accept for
exchange or exchange for Borden Shares tendered pursuant to the Exchange Offer
or be delayed in continuing or consummating the Exchange Offer. In such case,
the Purchaser may not be obligated to accept for exchange, or exchange for, any
Borden Shares tendered. See "--Certain Conditions of the Exchange Offer."
Antitrust
Under the HSR Act and the rules that have been promulgated thereunder by the
FTC, certain acquisition transactions may not be consummated unless certain
information has been furnished to the Antitrust Division and the FTC and certain
waiting period requirements have been satisfied. The acquisition of Borden
Shares pursuant to the Exchange Offer is subject to such requirements.
The Partnership filed on September 19, 1994 with the FTC and the Antitrust
Division a Premerger Notification and Report Form in connection with the
exchange of Borden Shares pursuant to the Exchange Offer. Under the provisions
of the HSR Act applicable to the Exchange Offer, the exchange of Borden Shares
pursuant to the Exchange Offer was not permitted to be consummated until the
expiration of a 30-calendar day waiting period following the filing by the
Partnership. Accordingly, the waiting period under the HSR Act applicable to
such exchange of Borden Shares pursuant to the Exchange Offer was to expire at
11:59 P.M., New York City time, on October 19, 1994, unless extended by a
request from the FTC or the Antitrust Division for additional information or
documentary material prior to its expiration. On October 19, 1994, the FTC
requested additional information and documentary material from the Partnership
and the Partnership responded to such request on November 4, 1994. Accordingly,
the waiting period will expire at 11:59 P.M., New York City time, on the
twentieth calendar day after the date of substantial compliance by the
Partnership with such request. Thereafter, the waiting period could be extended
only by court order. If the acquisition of Borden Shares is delayed as a result
thereof, the Exchange Offer may, but need not, be extended and, in any event,
the exchange
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of and exchange for Borden Shares will be deferred until 20 days after the
request is substantially complied with. Only one extension of the waiting period
pursuant to a request for additional information is authorized by the HSR Act
and the rules promulgated thereunder, except by court order. Any such extension
of the waiting period will not give rise to any withdrawal rights not otherwise
provided for by applicable law. See "--Withdrawal Rights." Although Borden is
required to file certain information and documentary material with the Antitrust
Division and the FTC in connection with the Exchange Offer, neither Borden's
failure to make such filings nor a request from the Antitrust Division or the
FTC for additional information or documentary material made to Borden will
extend the waiting period.
On September 29, 1994, Borden filed a Premerger Notification and Report Form
in connection with the Exchange Offer and the other Transactions. Accordingly,
the waiting period under the HSR Act was to expire at 11:59 P.M., New York City
time, on October 19, 1994, subject to extension as described above with respect
to the Partnership's HSR Act filing. On October 19, 1994, Borden received a
request from the FTC for additional information and documentary material. Borden
is currently engaged in complying with this request. While Borden has a duty
substantially to comply with the request within a reasonable period of time, its
compliance does not affect the waiting period.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed acquisition of Borden
Shares by the Purchaser pursuant to the Exchange Offer. At any time before or
after the exchange by the Purchaser of Borden Shares pursuant to the Exchange
Offer, the FTC and the Antitrust Division could take such action under the
antitrust laws as it deems necessary or desirable in the public interest,
including seeking to enjoin the exchange of Borden Shares pursuant to the
Exchange Offer or seeking the divestiture of Borden Shares acquired by the
Purchaser or the divestiture of substantial assets of Holdings, the Partnership,
its subsidiaries or Borden. Private parties and state attorneys general may also
bring legal action under federal or state antitrust laws under certain
circumstances. Based upon an examination of publicly available information
relating to the businesses in which Holdings, the Partnership and its
subsidiaries and Borden and its subsidiaries are engaged, the Partnership and
the Purchaser believe that the Exchange Offer will not violate the antitrust
laws. Nevertheless, there can be no assurance that a challenge to the Exchange
Offer on antitrust grounds will not be made or, if such a challenge is made, of
the result. See "--Certain Conditions of the Exchange Offer" for a discussion of
certain conditions of the Exchange Offer, including conditions with respect to
litigation.
In the Merger Agreement, Borden has agreed to make any and all divestitures
or undertakings required by the FTC, the Antitrust Division or any other
applicable governmental entity in connection with the Transactions, which
divestitures in each case shall be reasonably acceptable to the Partnership and
the Purchaser, provided that certain conditions are met. See "Description of
Merger Agreement and Conditional Purchase/Option Agreement--Merger Agreement."
New Jersey Industrial Site Recovery Act
The New Jersey Industrial Site Recovery Act (formerly known as the
Environmental Cleanup Responsibility Act, or "ECRA") and the implementing
regulations thereunder (collectively "ISRA") subjects the "transfer" of an
"industrial establishment" in New Jersey to various requirements concerning the
identification of certain environmental matters and their remediation.
Requirements include the timely submission to the New Jersey Department of
Environmental Protection (the "NJDEP") of detailed information about
environmental matters at the industrial establishment. The NJDEP may also
require additional investigation of environmental conditions at the industrial
establishment, the development of an NJDEP-approved cleanup plan to address
environmental conditions, and the implementation of the plan, along with a
financial guarantee, such as a surety bond, self guarantee or a letter of
credit, of the implementation of the cleanup plan. Under specified conditions,
the NJDEP may defer actual implementation of the cleanup plan if the entity
acquiring control of the industrial establishment is certified to have the
financial ability to implement the plan.
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Under ISRA, the acquisition of a controlling stock interest in a company
which is the owner or operator of an industrial establishment is generally a
"transfer" subject to ISRA.
Borden has certain facilities located in New Jersey. If these facilities are
industrial establishments subject to ISRA, the acquisition of more than a
majority of the outstanding Borden Shares by the Purchaser pursuant to the
Exchange Offer may constitute a "transfer" subject to ISRA.
After consummation of the Exchange Offer and after the Purchaser has
reviewed the nature and extent of Borden's operations in New Jersey and
consulted with counsel, the Purchaser will determine whether any of Borden's
properties are establishments subject to ISRA and, if so, the Purchaser will
comply, or seek to cause Borden to comply, with ISRA in the time frame set forth
in ISRA. See "--Certain Conditions of the Exchange Offer."
Connecticut Environmental Transfer Law
The Connecticut Transfer Act, Conn. Gen. Stat. Sec.Sec.22a-134 et seq. (the
"CTA"), requires that prior to the transfer of ownership of an establishment
subject to the CTA, the transferor must submit a "Negative Declaration" to the
transferee stating (i) that there has been no spillage or discharge of hazardous
waste on the property or that any such spillage or discharge has been cleaned up
according to the procedures and requirements of the Connecticut Department of
Environmental Protection (the "CDEP") and (ii) that any hazardous waste
remaining on-site is being managed in accordance with all applicable
regulations. If the transferor cannot submit a "Negative Declaration," the
transferee or another party to the transfer must certify to the Commissioner of
the CDEP that such transferee or other party will contain or otherwise mitigate
the effects of any spillage or discharge in accordance with the procedures and
timetable approved by the Commissioner pursuant to an order or consent decree.
Borden operates certain facilities in Connecticut. The Purchaser will seek to
determine whether any of Borden's properties are establishments subject to the
CTA and, if so, the Purchaser will comply, or seek to cause Borden to comply,
with the CTA as promptly as practicable following consummation of the Exchange
Offer. See "--Certain Conditions of the Exchange Offer."
EEA Merger Regulation
Borden conducts substantial operations within the European Economic Area
("EEA") and certain of the individual member states of the EEA. Regulation (EEC)
No. 4064/89 (the "Merger Regulation") and Article 57 of the EEA Agreement
require that notices of concentrations with a "Community dimension" be provided
to the European Commission for review and approval for compatibility with the
common market prior to being put into effect. The Exchange Offer would be deemed
to have a "Community dimension" if the combined aggregate worldwide consolidated
annual revenues of both the Partnership and Borden exceed ECU 5 billion, if the
Community-wide annual revenues of each of the Partnership and Borden exceed ECU
250 million, and if both the Partnership and Borden do not receive more than
two-thirds of their respective Community-wide revenues from one and the same
member state. The Purchaser believes that the Exchange Offer may be considered
to have a "Community dimension." If the Exchange Offer falls within the Merger
Regulation, the European Commission, as opposed to individual member states, has
exclusive jurisdiction to review it, subject to certain exceptions. The
Purchaser filed the required notifications on October 24, 1994.
Under the Merger Regulation, a concentration that meets the foregoing
criteria requires the filing of a notification in a prescribed form with the
European Commission. As indicated above, this filing was made on October 24,
1994. Transactions subject to the filing requirements of the Merger Regulation
are suspended automatically until three weeks after receipt of the notification.
The European Commission may extend the suspension period for such period as it
finds necessary to make a final decision on the legality of the transaction. In
the case of a public bid, the bidder may acquire shares of the target company
during the suspension period, but may not vote such shares until after the end
of the period unless the European Commission grants permission to do so in order
to maintain the full value of the bidder's investment.
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The European Commission must decide whether to initiate proceedings within
one month after the receipt of the notification, subject to certain extensions
for holidays or if an individual member state has requested a referral of the
transaction (or part of it) to itself. If proceedings are initiated, the
European Commission must reach a decision in the proceedings within four months
of the commencement of the proceedings. If the European Commission fails to
reach a decision within either of these time periods the transaction will be
deemed to be compatible with the common market.
If the European Commission declares the Exchange Offer to be not compatible
with the common market, it may prevent the consummation of the transaction,
order a divestiture if the transaction has already been consummated or impose
conditions or other obligations. In the event that the transaction is found not
to be subject to the Merger Regulation, various national merger control regimes
of the member states of the EEA may apply, resulting in the possibility that
approvals may be necessary from the various national authorities.
There can be no assurance that a challenge to the Exchange Offer will not be
made pursuant to the Merger Regulation or, alternatively, pursuant to the merger
regulations of one or more of the various member states, or, if such a challenge
is made, what the outcome will be. See "--Certain Conditions of the Exchange
Offer."
Investment Canada Act
The Investment Canada Act (the "ICA") requires certain "non-Canadian"
persons (as defined in the ICA) that wish to acquire "control" (as defined in
the ICA) of a "Canadian business" (as defined in the ICA) to file either a
notification or an application for review with a Canadian governmental agency
known as Investment Canada. Whether such an acquisition is reviewable or only
requires notification depends on various factors, including the size of the
parties and the nature of the Canadian business being acquired. The Exchange
Offer and Merger only require notification under the ICA and the Purchaser
intends to submit a notice within the requisite time period. See "--Certain
Conditions of the Exchange Offer."
Canadian Pre-Merger Notification Requirements
Certain provisions of Canada's Competition Act require pre-notification to
the Director of Investigation and Research appointed under the Competition Act
(the "Canadian Director") of significant corporate transactions, such as the
acquisition of a large percentage of the stock of a public company which has
Canadian operations, or a merger or consolidation involving such an entity.
Pre-notification is generally required with respect to transactions in which the
parties to the transactions and their affiliates have assets in Canada, or
annual gross revenues from sales in, from or into Canada, in excess of Cdn. $400
million and which involve the direct or indirect acquisition of an operating
business, the value of the assets of which, or the gross revenues from sales in
or from Canada generated from these assets, exceed Cdn. $35 million per year.
For transactions subject to the notification requirements, notice must be given
seven or 21 days prior to the completion of the transaction depending on the
information provided to the Canadian Director. The Canadian Director may waive
the waiting period. After the applicable waiting period expires or is waived,
the transaction may be completed. If the Canadian Director determines that the
proposed transaction prevents or lessens, or is reasonably likely to prevent or
lessen, competition substantially in a definable market, the Canadian Director
may apply to the Competition Tribunal, a special purpose Canadian tribunal, to,
among other things, require the disposition of the Canadian assets acquired in
such transaction. The Purchaser has filed the required notice and has provided
information with respect to its proposed acquisition with the Canadian Director
and has observed the applicable waiting period. In addition, the Purchaser has
applied to the Canadian Director for an advance ruling certificate to the effect
that he would not have sufficient grounds on which to apply to the Competition
Tribunal for a review of the Exchange Offer or Merger on the basis that it would
prevent or lessen, or be likely to prevent or lessen, competition substantially.
See "--Certain Conditions of the Exchange Offer."
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Other Foreign Approvals
Borden also owns property and conducts business in a number of other foreign
countries and jurisdictions. In connection with the acquisition of the Borden
Shares pursuant to the Exchange Offer, the laws of certain of those foreign
countries and jurisdictions, including, without limitation, Australia, may
require the filing of information with, or the obtaining of the approval of,
governmental authorities in such countries and jurisdictions. The governments in
such countries and jurisdictions might attempt to impose additional conditions
on Borden's operations conducted in such countries and jurisdictions as a result
of the acquisition of the Borden Shares pursuant to the Exchange Offer. There
can be no assurance that the Purchaser will be able to cause Borden or its
subsidiaries to satisfy or comply with such laws or that compliance or
non-compliance will not have adverse consequences for Borden or any subsidiary
after purchase of the Borden Shares pursuant to the Exchange Offer.
PENDING LITIGATION
Litigation Against Holdings. Six putative class and derivative actions have
been filed by purported Holdings shareholders in the Court of Chancery of the
State of Delaware in and for New Castle County against the members of the
Holdings Board of Directors, KKR, and Holdings challenging the proposed
acquisition by Holdings of an interest in Borden. These actions, encaptioned
Mushala v. Greeniaus, et al., C.A. No. 13738; Leffler v. Greeniaus, et al., C.A.
No. 13751; Schreiber v. Greeniaus, et al., C.A. No. 13749; Malloy v. Greeniaus,
et al., C.A. No. 13748; Schwartz v. Greeniaus, et al., C.A. No. 13758; and
Alessi v. Greeniaus, et al., C.A. No. 13750 (collectively, the "Class and
Derivative Complaints"), allege, among other things, that the "agreement for
[Holdings] to purchase a 20% stake in Borden is manifestly unfair" to Holdings'
shareholders and constitutes a breach of fiduciary duty in that (i) the price
paid by Holdings for its Borden stake is inflated because it includes a "control
premium" and (ii) the issuance of "new [Holdings] common stock will
substantially dilute the cash value and shareholdings of the non-controlling
public stockholders of [Holdings]." The Class and Derivative Complaints also
allege that the proposed acquisition of a stake in Borden "serves no corporate
interest of [Holdings], but rather serves to facilitate KKR's acquisition of
Borden while ensuring KKR's continued control of [Holdings]," and constitutes
corporate waste. The Class and Derivative Complaints seek preliminary and
permanent relief, including declaratory relief, a preliminary injunction,
rescission, damages and attorneys' fees. The plaintiff in the Mushala case has
filed a First Request for Production of Documents.
An additional putative class and derivative action, encaptioned Debora v.
Greeniaus, et al., C.A. No. 13755, has also been brought in the Court of
Chancery of the State of Delaware in and for New Castle County by a purported
holder of Holdings' Series A Preferred Stock. The Debora action names the same
defendants and contains the same allegations and prayers for relief as the Class
and Derivative Complaints.
A putative shareholder's derivative complaint, encaptioned Shingala v.
Harper, et al., C.A. No. 13739, has been filed in the Court of Chancery of the
State of Delaware in and for New Castle County by a putative Holdings
shareholder against Borden, Holdings and members of the Board of Directors of
Holdings alleging that the proposed acquisition by Holdings of a stake in Borden
constitutes a breach of the fiduciary duty of loyalty of Holdings' Board of
Directors. The Shingala complaint alleges that the purpose of the Borden
transaction is "solely to benefit KKR," "serves no legitimate business purpose
of [Holdings]" and that Holdings "has been required to participate in the
transaction" due to "KKR's domination and effective control of the Holdings
Board." The Shingala complaint further alleges that the investment by Holdings
in Borden "makes it less likely that Holdings will be in position to restructure
itself to divide its tobacco and food operations" to the "detriment" of
Holdings, and that the price paid by Holdings for its Borden shares is inflated.
The Shingala complaint seeks an injunction of the Borden transaction, damages,
and attorneys' fees.
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An additional putative shareholder's derivative complaint, encaptioned Kahn
v. Kohlberg Kravis Roberts & Co., et al., C.A. No. 13767, has also been filed in
the Court of Chancery of the State of Delaware in and for New Castle County by a
purported holder of common stock and depositary shares representing 1/4 share of
Series A Preferred Stock of Holdings. This action is against KKR, KKR
Associates, Holdings and members of the Holdings Board of Directors who are also
directors of KKR and alleges, among other things, breach of an investment
banking services contract between KKR and Holdings, breach of fiduciary duty and
waste of corporate assets. The Kahn complaint alleges that "the right to
purchase Borden was a corporate opportunity" belonging to Holdings and the
"failure of KKR and the KKR directors to offer the above described corporate
opportunity to [Holdings] constitutes a violation of fiduciary duty." The
complaint further alleges that KKR was required to acquire Borden for Holdings
"[b]y reason of the Services Contract and KKR's fiduciary duty to [Holdings]
resulting therefrom and from KKR's position as the Company's management,
financial and investment adviser" and therefore KKR violated "contractual and
fiduciary duties" to Holdings by failing to offer Borden to Holdings. The
complaint seeks declaratory relief, an accounting, damages, expenses and
attorneys' fees.
On October 25, 1994, the Court of Chancery signed an order consolidating the
nine actions described above for all purposes.
Holdings believes that the ultimate outcome of the litigation described
above should not have a material adverse effect on Holdings' financial condition
or results of operations.
Litigation Against Borden. Eleven putative class actions have been filed by
purported Borden shareholders in the New Jersey and Ohio state courts against
Borden, members of its Board and, in two of the cases, KKR. These actions,
encaptioned Kohnstamm v. Borden, Inc., et al., C-257-94; Hartman v. Borden,
Inc., et al., 94-CV-H09-6306; Jaroslawicz v. Borden, Inc., et al.,
94-CV-H09-6654; Lubin v. Borden, Inc., et al.; Weiss v. Borden, Inc., et al.;
Stepak v. Borden, Inc., et al.; Strougo v. Borden, Inc., et al.; Krim v. Borden,
Inc., et al.; Peterson v. Borden, Inc., et al.; Marcus v. Borden, Inc., et al.;
and Dwyer v. Borden, Inc., et al. (collectively, the "Class Complaints"),
allege, among other things, that Borden is being sold at too low a price, and
that Borden's directors have breached their fiduciary duties by failing to
"auction" Borden and by "locking up" a transaction that is not in the best
interests of shareholders. KKR is alleged to have aided and abetted these
breaches of fiduciary duty. The Class Complaints seek preliminary and permanent
relief, including a preliminary injunction, damages in an unspecified amount and
attorneys' fees.
The parties have agreed to consolidate all pending New Jersey actions into
one action in Mercer County under Docket No. C-139-94. The Ohio cases, Hartman
v. Borden, Inc., et al., 94-CV-HO9-6306 and Jaroslawicz v. Borden, Inc., et al.,
94 CV-H09-6654, have been stayed pursuant to a court order pending resolution of
the New Jersey consolidated action.
Borden has also been named as a defendant in a putative shareholder
derivative action, encaptioned Shingala v. Harper, et al., C.A. No. 13739, filed
against Holdings in the Court of Chancery of the State of Delaware. See
"--Pending Litigation--Litigation Against Holdings."
Borden believes that the ultimate outcome of the litigation described above
should not have a material adverse effect on Borden's financial condition or
results of operations.
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DESCRIPTION OF MERGER AGREEMENT AND
CONDITIONAL PURCHASE/OPTION AGREEMENT
The following are summaries of certain provisions of the Merger Agreement
and the Conditional Purchase/Option Agreement, which are filed as exhibits to
the Registration Statement of which this Offering Circular/Prospectus is a part
and are incorporated herein by reference. Such summaries include the material
terms of such agreements but are not necessarily complete and are qualified in
their entirety by reference to such exhibits.
MERGER AGREEMENT
Exchange Offer. Pursuant to the Merger Agreement, on the terms and subject
to the conditions described herein under "--The Exchange Offer," the Partnership
and the Purchaser have agreed to commence the Exchange Offer as soon as
reasonably practicable following the effectiveness of the Registration Statement
of which this Offering Circular/Prospectus is a part. Without the written
consent of Borden, the Purchaser may not decrease the number of Borden Shares
being sought in the Exchange Offer, change the form of consideration payable in
the Exchange Offer (other than by adding consideration), add additional
conditions to the Exchange Offer or make any other change in the terms or
conditions of the Exchange Offer which is adverse to the holders of Borden
Shares, except that a waiver by the Purchaser of any condition in whole or in
part at any time and from time to time in its discretion will not be deemed to
be materially adverse to any holder of Borden Shares. If the Purchaser shall
have exercised the Option in whole or in part prior to the termination of the
Exchange Offer, the Purchaser may not waive the Minimum Condition. The Purchaser
has agreed with Borden that upon the request of Borden (and without limiting the
number of times that the Purchaser may extend the Exchange Offer, or the total
number of days for which the Exchange Offer may be extended), the Purchaser will
extend the Exchange Offer, one or more times, for an aggregate of not more than
twenty business days. See "The Exchange Offer--Certain Conditions of the
Exchange Offer."
In accordance with the Merger Agreement, Borden has approved of and
consented to the Exchange Offer and represented and warranted that (a) its Board
of Directors has (i) determined that the Merger Agreement and the Conditional
Purchase/Option Agreement and the transactions contemplated thereby, including
the Exchange Offer and the Merger, taken together, are fair to the shareholders
of Borden, and resolved to recommend that holders of Borden Shares (A) accept
the Exchange Offer, (B) tender their Borden Shares to the Purchaser, and (C) if
required by applicable law, approve and adopt the Merger Agreement and the
Merger (collectively, the "Recommendations") and (ii) approved the Merger
Agreement and the Conditional Purchase/Option Agreement and the transactions
contemplated thereby, and that such approval constitutes approval of the Merger
Agreement and the Conditional Purchase/Option Agreement and the transactions
contemplated thereby for purposes of Sections 14A:10A-4 and 14A:10A-5 of the
NJBCA and Article VIII of Borden's Restated Certificate of Incorporation (the
"Charter") (relating to the approval requirements for certain business
combinations) and renders inapplicable certain change in control provisions of
certain debt securities and loan documents of Borden and its subsidiaries and
(b) Borden's financial advisors have delivered to the Board of Directors of
Borden their respective written opinions to the effect that, as of September 22,
1994, the consideration to be received by holders of Borden Shares pursuant to
each of the Exchange Offer and the Merger was fair to such holders from a
financial point of view. Borden has agreed, subject to certain exceptions
described below under "--No Solicitation," not to change the Recommendations
unless the average of the average of the high and the low sales prices of the
Holdings Common Stock as reported on the NYSE Composite Tape for the Valuation
Period is less than the price per share that would yield an Exchange Ratio of
2.375 or less (without giving effect to the limitation regarding the minimum and
maximum Exchange Ratio pursuant to the definition thereof). Borden will not have
any right to terminate the Merger Agreement as a result of any such change in
the Recommendations and
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notwithstanding any such change in the Recommendations, Borden will continue to
be bound by its representations and warranties and covenants contained in the
Merger Agreement (except representations and warranties and covenants with
respect to the Recommendations), including, without limitation, those with
respect to the Rights Agreement, antitrust approvals and divestitures (provided
that following receipt of such approvals the Purchaser purchases at least
28,138,000 Borden Shares), Article VIII of the Charter and Sections 14A:10A-4
and 14A:10A-5 of the NJBCA.
According to the Merger Agreement, to the knowledge of Borden after due
inquiry, all the directors of Borden intend to tender their Borden Shares
pursuant to the Exchange Offer or to vote their Borden Shares in favor of
approval and adoption of the Merger and the Merger Agreement at the
shareholders' meeting in respect thereof, if any.
The Purchaser has reserved the right to transfer or assign, in whole or from
time to time in part, to one or more affiliates, the right to exchange all or
any portion of the Borden Shares tendered pursuant to the Exchange Offer, but
any such transfer or assignment will not relieve the Purchaser of its
obligations pursuant to the Exchange Offer and will in no way prejudice the
rights of tendering shareholders to exchange for Borden Shares validly tendered
and accepted for exchange pursuant to the Exchange Offer. According to the
Merger Agreement, it is presently contemplated that the right of the Purchaser
to exchange for shares of Borden Common Stock pursuant to the Exchange Offer and
the right of the Purchaser to exercise the Option will be assigned to the
Partnership or to a direct or indirect wholly owned subsidiary of the
Partnership, which may, in any such case, act for itself and/or as agent for one
or both of the Common Stock Partnerships, as the case may be.
The Merger Agreement provides that, if requested by the Partnership, Borden
will, following the acceptance for exchange of the Borden Shares to be exchanged
pursuant to the Exchange Offer and/or the purchase of the Option Shares in
accordance with the Conditional Purchase/Option Agreement, and from time to time
thereafter, take all actions necessary to cause the Applicable Percentage of
directors (and of members of each committee of the Board of Directors) (rounded
in each case to the next highest director or member) of Borden selected by the
Partnership to consist of persons designated or elected by the Partnership
(whether, at the election of Borden, by means of increasing the size of the
board of directors or seeking the resignation of directors and causing the
Partnership's designees to be elected); provided that, if the Purchaser has
acquired at least 28,138,000 Borden Shares, the Applicable Percentage shall not
be less than 33 1/3%.
Following the election or appointment of the Partnership's designees as
described in the preceding paragraph and prior to the effective time of the
Merger, any amendment by Borden or termination by Borden of the Merger Agreement
or the Conditional Purchase/Option Agreement, extension by Borden for the
performance or waiver of the obligations, conditions or other acts of the
Partnership or the Purchaser or waiver by Borden of its rights under the Merger
Agreement or the Conditional Purchase/Option Agreement, will require the
concurrence of a majority of directors of Borden then in office who are not
affiliated with the Partnership or the Purchaser or selected by the Partnership
for appointment or election to the board of directors of Borden ("Independent
Borden Directors").
Merger. Pursuant to the Merger Agreement, if approval of Borden's
shareholders is required by applicable law in order to consummate the Merger,
provided that the Minimum Condition is satisfied without being reduced or
waived, following the acceptance for exchange of Borden Shares pursuant to the
Exchange Offer, Borden, acting through its Board of Directors, will, in
accordance with applicable law, as soon as practicable following the expiration
or termination of the Exchange Offer: duly call, give notice of, convene and,
subject to the right of the parties to delay a special meeting under certain
circumstances described in the Merger Agreement, hold the Borden Shareholders'
Meeting for the purpose of considering and taking action upon the Merger
Agreement and the Merger and use its best efforts to obtain the necessary
approval by its shareholders of the Merger Agreement and the transactions
contemplated thereby, including the Merger.
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In the Merger Agreement, Borden has agreed that (a) its obligations
described in the preceding paragraph (including, without limitation, the
obligation to submit the Merger Agreement and the Merger to a vote of Borden's
shareholders) will not be affected by the withdrawal or modification of the
Recommendations (but there shall be no obligation of the Board of Directors of
Borden to continue the Recommendation that shareholders approve and adopt the
Merger Agreement and the Merger) and (b) (i) if the Merger is not approved by
the shareholders of Borden following the acceptance for exchange of Borden
Shares pursuant to the Exchange Offer or the purchase of Borden Shares pursuant
to the Conditional Purchase/Option Agreement or (ii) if the Merger is not
submitted to the shareholders of Borden but the Purchaser has acquired at least
28,138,000 Borden Shares, the approval of the transactions contemplated by the
Merger Agreement, including the Exchange Offer and the Merger, by the Board of
Directors of Borden shall constitute, solely for the purposes of Sections
14A:10A-4 and 14A:10A-5 of the NJBCA and, to the extent that there are no
Continuing Directors (as defined in the Charter), Article VIII of the Charter,
an approval of any future "Business Combination" (as defined in Section
14A:10A-3 of the NJBCA and Article VIII of the Charter) between Borden and the
Partnership or any affiliate thereof, provided that (x) such "Business
Combination" is approved by a majority of the Independent Borden Directors and
(y) if appropriate, Borden shall have received the opinion of an investment
banking firm selected by the Independent Directors that such "Business
Combination" is fair to Borden's shareholders from a financial point of view (an
"Excepted Future Transaction").
At the Borden Shareholders' Meeting, each of the Partnership and the
Purchaser has agreed that it will vote, or cause to be voted, all Borden Shares
acquired in the Exchange Offer or otherwise beneficially owned by it or any of
its respective subsidiaries in favor of the approval and adoption of the Merger
Agreement and the transactions contemplated thereby, including the Merger.
Under the Merger Agreement, in the event that the Partnership and the
Purchaser, or any other direct or indirect subsidiary of the Partnership
acquires at least 90% of the outstanding Borden Shares, the parties have agreed
to take all necessary or appropriate action to cause the Merger to become
effective as soon as practicable after the expiration of the Exchange Offer
without a meeting of shareholders of Borden, in accordance with applicable
provisions of the NJBCA.
Upon the effective time of the Merger, the Purchaser will be merged with and
into Borden, and Borden will continue as the surviving corporation in the Merger
under the name "Borden, Inc."
The directors of the Purchaser at the effective time of the Merger will be
the directors of the surviving corporation, each to hold office in accordance
with the restated certificate of incorporation and by-laws of the surviving
corporation and until the earlier of his or her resignation or removal or until
his or her successor is duly elected and qualified, as the case may be. The
officers of Borden at the effective time of the Merger will be the officers of
the surviving corporation, each to hold office in accordance with the restated
certificate of incorporation and by-laws of the surviving corporation and until
the earlier of his or her resignation or removal or until his or her successor
is duly appointed and qualified, as the case may be.
By virtue of the Merger and without any action on the part of the holder of
any shares of Borden Common Stock or any shares of capital stock of the
Purchaser: (a) each share of common stock of the Purchaser issued and
outstanding immediately prior to the effective time of the Merger will be
converted into a number of shares of common stock, par value $.01 per share, of
the surviving corporation equal to one one-thousandth of the total number of
outstanding shares of Borden Common Stock immediately prior to the Merger, which
will be all of the issued and outstanding capital stock of the surviving
corporation; (b) each share of Borden Common Stock that is owned by Borden or by
any subsidiary of Borden and each share of Borden Common Stock that is owned by
the Partnership, the Purchaser or any other subsidiary of the Partnership will
automatically be cancelled and retired and cease to exist, and no cash, Holdings
Common Stock or other consideration will be delivered or deliverable in exchange
therefor; and (c) each issued and outstanding share of Borden Common Stock
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will be converted into the right to receive a number of fully paid and
nonassessable shares of Holdings Common Stock equal to the number of fully paid
and nonassessable shares of Holdings Common Stock that were delivered by the
Purchaser with respect to each share of Borden Common Stock that was validly
tendered and not properly withdrawn and accepted for exchange pursuant to the
terms of the Exchange Offer.
The Merger Agreement provides that, as of the effective time of the Merger,
each holder of a then outstanding option to purchase Borden Common Stock (a
"Stock Option") shall receive with respect to each share subject to such Stock
Option an amount in cash equal to the excess, if any, of (i) the product of the
final Exchange Ratio and the average of the average of the high and the low
sales prices of the Holdings Common Stock as reported on each of the ten
consecutive trading days immediately preceding the effective time of the Merger
over (ii) the per share exercise price of such Stock Option, and Borden shall
cause the surrender and cancellation of each Stock Option (and any related stock
appreciation right) with respect to which a payment by Borden is made. Based
upon the closing stock price of $6 5/8 for the Holdings Common Stock on November
7, 1994, the estimated aggregate net payment to holders of Borden Stock Options
would be $2,722,928. With respect to Stock Options not so surrendered and
cancelled, such Stock Options shall, if not previously terminated or expired in
accordance with their terms, terminate upon the grantee leaving Borden except
upon such grantee's death, Disability (as defined for purposes of the plans
under which the Stock Options were granted) or retirement at or after age
sixty-five (or such earlier age as the Purchaser may expressly agree) and except
that, to the extent provided under any such existing Stock Option, if the
grantee is terminated by Borden without Cause (as defined for purposes of the
plans under which the Stock Options were granted) within two years following a
Change in Control (as defined for purposes of the plans under which the Stock
Options were granted) of Borden, the grantee shall have a period of ninety days
following such termination within which to exercise such Stock Option. No
employee who has been previously granted a Stock Option or stock appreciation
right will be approved for retirement for purposes of any plan or agreement
under which such Stock Option or right has been granted without the express
consent of the Purchaser. The Purchaser and Borden have agreed to continue to
discuss the manner in which outstanding Stock Options shall be treated after the
Merger is consummated. According to the Merger Agreement, as of September 23,
1994, there were outstanding Stock Options with respect to 7,357,473 Borden
Shares. Of these, as of November 1, 1994, Stock Options with respect to
1,397,876 Borden Shares, with an average exercise price of $12.31, were
exercisable at prices of $14.25 or less.
Under the Merger Agreement, Borden has agreed to take all steps necessary so
that no participant in any employee plans, programs or arrangements of Borden
will have any right to acquire or receive any Borden Common Stock or other
equity interest in Borden on or after the effective time of the Merger other
than in connection with the exercise of Stock Options outstanding on the date of
the Merger Agreement which have not been cancelled as described in the preceding
paragraph. On or prior to the effective time of the Merger, Borden has agreed to
amend each of its (and cause the amendment of each of its affiliate's) qualified
defined contribution plans to eliminate any investment in Borden Common Stock
after such effective time. In addition, Borden has agreed to cause an amendment
of each of its employee plans, programs and arrangements pursuant to which an
employee may be entitled to receive Borden Common Stock (each a "Stock Plan") to
provide that any employee entitled to receive Borden Common Stock in respect of
previously deferred bonuses or compensation will receive instead cash equal to
the product of (i) the final Exchange Ratio multiplied by the average of the
average of the high and the low closing sales prices of the Holdings Common
Stock as reported on each of the ten consecutive trading days immediately
preceding the effective time of the Merger and (ii) the number of shares of
Borden Common Stock so deferred, plus interest equal to the rate otherwise
credited on deferred amounts under the applicable plans or, if no such rate is
credited, the prime rate established by Chemical Bank, from time to time on such
deferred bonuses or compensation from the effective time of the Merger to the
date of distribution.
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Pursuant to the Merger Agreement, subject to the terms of any Borden plan,
any merger consideration paid in respect of restricted shares of Borden Common
Stock held by any employee or former employee of Borden or any of its affiliates
will remain restricted and subject to the same terms and conditions imposed on
such restricted shares.
Exchange of Certificates and Exchange Procedures in the Merger. Pursuant to
the Merger Agreement, at or prior to the effective time, the Purchaser shall
deposit with or for the account of a bank or trust company designated by the
Partnership, which shall be reasonably satisfactory to Borden (the "Merger
Exchange Agent"), for the benefit of the holders of shares of Borden Common
Stock, for exchange, the consideration to be paid in the Merger in respect of
each Borden Share outstanding immediately prior to the effective time (other
than Borden Shares to be cancelled and retired in connection with the Merger).
As soon as reasonably practicable after the effective time of the Merger,
the Purchaser will instruct the Merger Exchange Agent to mail to each holder of
record immediately prior to the effective time (other than holders of Borden
Shares to be cancelled and retired in connection with the Merger) of a Share
Certificate or Share Certificates (i) a letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the Share
Certificates shall pass, only upon proper delivery of the Share Certificates to
the Merger Exchange Agent and shall be in such form and have such other
provisions as the Partnership or the Purchaser may reasonably specify) (the
"Merger Letter of Transmittal") and (ii) instructions for use in effecting the
surrender of the Share Certificates in exchange for Holdings Common Stock. Upon
surrender to the Merger Exchange Agent of Share Certificates, together with such
Merger Letter of Transmittal duly executed and any other required documents, and
acceptance thereof by the Merger Exchange Agent, each holder of a Share
Certificate shall be entitled to a certificate or certificates representing the
number of full shares of Holdings Common Stock into which the aggregate number
of shares of Borden Common Stock previously represented by such Share
Certificate surrendered shall have been converted pursuant to the Merger
Agreement. The Merger Exchange Agent shall accept such Share Certificates upon
compliance with such reasonable terms and conditions as the Merger Exchange
Agent may impose to effect an orderly exchange thereof in accordance with normal
exchange practices. After the effective time of the Merger, there shall be no
further transfer on the books and records of Borden or its transfer agent of
Share Certificates and if such Share Certificates are presented to Borden for
transfer, they shall be cancelled against delivery of certificates for Holdings
Common Stock as described herein. If any certificate for such Holdings Common
Stock is to be issued in a name other than that in which the Share Certificate
surrendered for exchange is registered, it shall be a condition of such exchange
that the Share Certificate so surrendered shall be properly endorsed, with
signature guaranteed, or otherwise in proper form for transfer and that the
person requesting such exchange shall pay to the Purchaser or its transfer agent
any transfer or other taxes required by reason of the issuance of certificates
for such Holdings Common Stock in a name other than that of the registered
holder of the Share Certificate surrendered, or establish to the satisfaction of
the Purchaser or its transfer agent that such tax has been paid or is not
applicable. Until surrendered as described herein, each Share Certificate shall
be deemed at any time after the effective time of the Merger to represent only
the right to receive upon such surrender the merger consideration.
No certificates or scrip representing fractional shares of Holdings Common
Stock shall be issued upon the surrender for exchange of Share Certificates, and
such fractional share interests will not entitle the owner thereof to vote or to
any rights of a stockholder of Holdings; and notwithstanding any other provision
of the Merger Agreement, each holder of shares of Borden Common Stock exchanged
pursuant to the Merger who would otherwise have been entitled to receive a
fraction of a share of Holdings Common Stock (after taking into account all
shares of Borden Common Stock delivered by such holder) shall receive, in lieu
thereof, a cash payment (without interest) representing such holder's
proportionate interest in the net proceeds from the sale by the Merger Exchange
Agent (following the
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deduction of applicable transaction costs of third parties other than the Merger
Exchange Agent, Borden, the Purchaser or affiliates of any of the foregoing), on
behalf of all such holders, of the shares (the "Excess Shares") of Holdings
Common Stock representing all such fractions. Such sale shall be made as soon as
practicable after the effective time.
No dividends or other distributions with respect to Holdings Common Stock
with a record date after the effective time of the Merger shall be paid to the
holder of any unsurrendered Share Certificate for shares of Borden Common Stock
with respect to the shares of Holdings Common Stock represented thereby, and no
cash payment in lieu of fractional shares shall be paid to any such holder as
described above, until the surrender of such Share Certificate as described
herein. Subject to the effect of applicable laws, following surrender of any
such Share Certificate, there shall be delivered to the holder of such Share
Certificate a certificate representing whole shares of Holdings Common Stock
issued in exchange therefor and, without interest, (i) at the time of such
surrender or as promptly after the sale of the Excess Shares as practicable, the
amount of any cash payable in lieu of a fractional share of Holdings Common
Stock to which such holder is entitled as described herein and the amount of
dividends or other distributions with a record date after the effective time of
the Merger theretofore paid with respect to such whole shares of Holdings Common
Stock and (ii) at the appropriate payment date, the amount of dividends or other
distributions payable with respect to such whole shares of Holdings Common Stock
with a record date after the effective time of the Merger but prior to such
surrender and a payment date subsequent to such surrender. In no event shall the
persons entitled to receive such dividends or other distributions be entitled to
receive interest on such dividends or other distributions.
All shares of Holdings Common Stock delivered and cash paid upon the
surrender for exchange of Share Certificates which represented shares of Borden
Common Stock (including any cash paid in respect of fractional shares of
Holdings Common Stock) shall be deemed to have been delivered (and paid) in full
satisfaction of all rights pertaining to the shares of Borden Common Stock
theretofore represented by such Share Certificates, subject, however, to the
surviving corporation's obligation, with respect to shares of Borden Common
Stock, to pay any dividends or make any other distributions with a record date
prior to the effective time of the Merger which may have been declared or made
by Borden on such shares of Borden Common Stock prior to the date of the Merger
Agreement and which remain unpaid at the effective time of the Merger.
Any portion of the consideration in the Merger deposited with the Merger
Exchange Agent (the "Exchange Fund") which remains undistributed to the holders
of the certificates representing shares of Borden Common Stock for nine months
after the effective time of the Merger shall be delivered to the Partnership,
upon demand, and any holders of shares of Borden Common Stock who have not
theretofore complied with the foregoing exchange procedures shall thereafter
look only to the Partnership and only as general creditors thereof for payment
of their claim for Holdings Common Stock (or any security or consideration into
which Holdings Common Stock is converted) and any cash in lieu of fractional
shares of Holdings Common Stock and shall look only to the Partnership and only
as general creditors thereof for payment of any dividends or distributions with
respect to Holdings Common Stock to which such holders may be entitled.
None of the Partnership, the Purchaser, Holdings, Borden or the Merger
Exchange Agent shall be liable to any person in respect of any shares of
Holdings Common Stock (or dividends or distributions with respect thereto) or
cash from the Exchange Fund delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law. If any Share Certificates
which represented shares of Borden Common Stock shall not have been surrendered
prior to five years after the effective time of the Merger (or immediately prior
to such earlier date on which any shares of Holdings Common Stock, any cash in
lieu of fractional shares of Holdings Common Stock or any dividends or
distributions with respect to Holdings Common Stock in respect of such Share
Certificate would otherwise escheat to
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or become the property of any governmental entity), any such shares, cash,
dividends or distributions in respect of such certificate shall, to the extent
permitted by applicable law, become the property of the Partnership, free and
clear of all claims or interest of any person previously entitled thereto.
The Merger Exchange Agent shall invest any cash included in the Exchange
Fund, as directed by the Partnership, on a daily basis. Any interest and other
income resulting from such investments shall be paid to the Partnership.
Representations and Warranties. The Merger Agreement contains customary
representations and warranties of Borden relating, with respect to Borden and
its subsidiaries, to, among other things, (a) organization, standing and similar
corporate matters; (b) certain subsidiaries; (c) Borden's capital structure; (d)
the authorization, execution, delivery, performance and enforceability of the
Merger Agreement, the Conditional Purchase/Option Agreement and related matters;
(e) documents filed by Borden with the Commission and the accuracy of
information contained therein; (f) the accuracy of information supplied by
Borden in connection with this Offering Circular/Prospectus and other documents
filed with the Commission in connection with the Exchange Offer and the Merger;
(g) the absence of certain changes or events since the date of the most recent
audited financial statements filed with the Commission, including material
adverse changes with respect to Borden; (h) benefit plans and other matters
relating to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and employment matters; (i) filing of tax returns and payment of
taxes; (j) the inapplicability of provisions of Borden's Charter and the NJBCA
relating to business combinations with interested stockholders and state
takeover or similar statutes, to the Merger Agreement, the Conditional
Purchase/Option Agreement and related agreements and transactions; (k)
environmental matters; (l) brokers' fees and expenses; (m) no material conflicts
with laws or agreements of Borden and its subsidiaries; (n) any required vote of
shareholders to approve the Merger Agreement, the Merger and the other
transactions contemplated thereby and the Conditional Purchase/Option Agreement
and the transactions contemplated thereby; (o) certain matters relating to the
Rights; and (p) certain resolutions of Borden's Board of Directors relating to
the declaration and payment of future dividends.
The Merger Agreement also contains customary representations and warranties
of the Purchaser and the Partnership relating to, among other things, (a)
organization, standing and similar corporate matters with respect to the
Purchaser and Holdings; (b) subsidiaries of the Purchaser and Holdings; (c) the
Purchaser's and Holdings' capital structures; (d) the authorization, execution,
delivery, performance and enforceability of the Merger Agreement and the
Conditional Purchase/Option Agreement and related matters with respect to the
Purchaser, the Partnership and Holdings, as applicable; (e) documents filed by
Holdings with the Commission and the accuracy of information contained therein;
(f) the accuracy of information supplied by the Partnership or the Purchaser in
connection with this Offering Circular/Prospectus and other documents filed with
the Commission in connection with the Exchange Offer and the Merger; (g)
brokers' fees and expenses; (h) interim operations of the Purchaser; and (i) the
absence of certain changes or events since the most recent financial statements
filed with the Commission, including material adverse changes with respect to
Holdings.
In addition, the Merger Agreement contains representations of the
Partnership relating to, among other things, (a) the authorization, execution,
delivery, performance and enforceability of the Merger Agreement and related
matters; (b) the Partnership's good title to the Holdings Common Stock to be
transferred pursuant to the Merger Agreement and the Conditional Purchase/Option
Agreement, and the listing thereof on the NYSE; and (c) no material conflicts
with laws or agreements of the Partnership.
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Covenants Regarding Conduct of Business. Except as contemplated by the
Merger Agreement, during the period from the date of the Merger Agreement to the
date on which a majority of the Board of Directors of Borden consist of
designees or representatives of the Partnership, Borden, with respect to itself
and each of its subsidiaries, has agreed in the Merger Agreement to conduct its
operations according to its ordinary course of business consistent with past
practice and to use its best efforts to preserve intact its business
organization, to keep available the services of its current officers and
employees and to preserve existing relationships with licensors, licensees,
suppliers, contractors, distributors, customers and others having business
relationships with it to the end that its goodwill and ongoing businesses will
be unimpaired at the date on which a majority of the Board of Directors of
Borden consist of designees or representatives of the Partnership. Without
limiting the generality of the foregoing, and except as otherwise contemplated
by the Merger Agreement, or as required by law or contract existing on the date
of the Merger Agreement, prior to the date on which a majority of the Board of
Directors of Borden consists of designees or representatives of the Partnership,
Borden has agreed that neither it nor any of its subsidiaries will, without the
prior written consent of the Partnership: (i) (x) declare, set aside or pay any
dividends on, or make any other distributions in respect of, any of its capital
stock (except (A) certain dividends and distributions by subsidiaries of Borden
to their respective parents and (B) that Borden may continue the declaration and
payment of regular quarterly cash dividends not in excess of $.01 per share on
the shares of Borden Common Stock (with usual record and payment dates and in
accordance with its past dividend policy)), (y) split, combine or reclassify any
of its capital stock or issue or authorize the issuance of any other securities
in respect of, in lieu of or in substitution for shares of its capital stock or
(z) except for the redemption of the Rights and the outstanding Preferred
Stock-Series B of Borden, purchase, redeem or otherwise acquire any shares of
capital stock of Borden or any of its subsidiaries or any other securities
thereof or any rights, warrants or options to acquire any such shares or other
securities; (ii) subject to certain exceptions, authorize for issuance, issue,
deliver, sell or agree or commit to issue, sell or deliver (whether through the
issuance or granting of options, warrants, commitments, subscriptions, rights to
purchase or otherwise), pledge or otherwise encumber any shares of its capital
stock or the capital stock of any of its subsidiaries, any other voting
securities or any securities convertible into, or any rights, warrants or
options to acquire, any such shares, voting securities or convertible securities
or any other securities or equity equivalents; (iii) amend its certificate of
incorporation, by-laws or other comparable charter or organizational documents
or alter through merger, liquidation, reorganization, restructuring or in any
other fashion the corporate structure or ownership of any subsidiary not
constituting an inactive subsidiary of Borden; (iv) acquire or agree to acquire
(x) by merging or consolidating with, or by purchasing a substantial portion of
the stock or assets of, or by any other manner, any business or any corporation,
partnership, joint venture, association or other business organization or
division thereof or (y) any assets that are material, individually or in the
aggregate, to Borden and its subsidiaries taken as a whole, except purchases of
inventory in the ordinary course of business consistent with past practice; (v)
sell, lease, license, mortgage or otherwise encumber or subject to any lien or
otherwise dispose of any of its properties or assets, except sales of (A)
inventory in the ordinary course of business consistent with past practice, (B)
properties or assets (x) with a value of less than $10 million individually but
not more than $25 million in the aggregate, (y) that are currently being
marketed or sold by Borden pursuant to Borden's January 1994 restructuring plan
(but for consideration not lower than certain specified prices to the extent
disclosed in writing to the Partnership) or (z) with respect to which a
definitive agreement has been entered into by Borden prior to September 12, 1994
(provided that no material modification or amendment shall be made to any such
agreements), (C) sales of accounts receivable in the ordinary course of
business, (D) certain sales and pledges of accounts receivable, or mortgages of
other property in connection with certain financings or refinancings outside the
United States and (E) in connection with certain capital expenditures otherwise
permitted by the Merger Agreement; (vi) except in the ordinary course of
business consistent with past practice and except for an increase of up to $300
million of the amount available or outstanding under a certain credit agreement
and the refinancing of certain industrial revenue bonds in an aggregate
outstanding principal amount of $40 million, subject to certain conditions, (y)
incur any indebtedness for borrowed money or guarantee any such indebtedness of
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another person (other than certain guarantees by Borden in favor of subsidiaries
or by any of its subsidiaries in favor of Borden), issue or sell any debt
securities or warrants or other rights to acquire any debt securities of Borden
or any of its subsidiaries, guarantee any debt securities of another person,
enter into any "keep well" or other agreement to maintain any financial
statement condition of another person or enter into any arrangement having the
economic effect of any of the foregoing, except for short-term borrowings
incurred in the ordinary course of business consistent with past practice or (z)
make any loans, advances or capital contributions to, or investments in, any
other person, other than to Borden or any direct or indirect wholly owned
subsidiary of Borden; (vii) expend funds for capital expenditures other than in
accordance with Borden's current capital expenditure plans; (viii) waive,
release, grant, or transfer any rights of value or modify or change in any
material respect any existing license, lease, contract or other document, other
than in the ordinary course of business consistent with past practice; (ix)
adopt a plan of complete or partial liquidation or resolutions providing for or
authorizing such a liquidation or a dissolution, merger, consolidation,
restructuring, recapitalization or reorganization; (x) enter into or amend any
material collective bargaining agreement, other than in the ordinary course of
business; (xi) change any accounting principle used by it, unless required by
the Commission or the Financial Accounting Standards Board; (xii) subject to
certain exceptions, make any tax election or settle or compromise any income tax
liability or file its 1994 federal income tax return prior to the last day
(including extensions) prescribed by law, in the case of any of the foregoing,
material to the business, financial condition or results of operations of Borden
and its subsidiaries taken as a whole; (xiii) settle or compromise any
litigation (whether or not commenced prior to the date of the Merger Agreement)
or settle, pay or compromise any claims not required to be paid, individually in
an amount in excess of $1 million and in the aggregate in an amount in excess of
$10 million, other than in consultation and cooperation with the Purchaser, and,
with respect to any such settlement, with the prior written consent of the
Purchaser; (xiv) take any action which would cause any debt securities of Borden
or any of its subsidiaries no longer to be listed on any national securities
exchange or registered pursuant to the Exchange Act, other than with respect to
any such debt securities that have become due as a result of the maturity
thereof; or (xv) authorize any of, or commit or agree to take any of, the
foregoing actions.
In the Merger Agreement, Borden has also agreed, subject to certain
exceptions, that neither it nor any of its subsidiaries will adopt or amend any
bonus, profit sharing, compensation, severance, termination, stock option, stock
appreciation right, pension, retirement, employment or other employee benefit
agreement, trust, plan or other arrangement for the benefit or welfare of any
director, officer or, except in the ordinary course of business consistent with
past practice with respect to employees of Borden or any of its subsidiaries,
increase in any manner the compensation or fringe benefits of any director,
officer or, except in the ordinary course of business consistent with past
practice with respect to employees of Borden or any of its subsidiaries, pay any
benefit not required by any existing agreement or place any assets in any trust
for the benefit of employees or directors of Borden or any of its subsidiaries,
other than contributions to the directors trust fund in the ordinary course of
business and consistent with past practice; provided, however, that
notwithstanding the foregoing, any amendments required to be made to the
provisions of any employee pension plan which is intended to be qualified under
Section 401(a) of the Internal Revenue Code in order to maintain such status may
be made.
Pursuant to the Merger Agreement, the Partnership and the Purchaser have
agreed that, during the period from the date of the Merger Agreement to the
effective time of the Merger, the Purchaser will not engage in any activities of
any nature except as provided in, or in connection with the transactions
contemplated by, the Merger Agreement.
No Solicitation. Under the Merger Agreement, except with respect to
divestitures in accordance with Borden's January 1994 restructuring plan, Borden
has agreed that neither it nor any of its subsidiaries will, nor will it or any
of its subsidiaries authorize or permit any of its officers, directors or
employees or any investment banker, financial advisor, attorney, accountant or
other representative retained by it or any of its subsidiaries to, (a) solicit,
initiate, encourage (including by way of furnishing
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information), or take any other action to facilitate, any Transaction Proposal
or agree to or endorse any Transaction Proposal or (b) enter into or participate
in any discussions or negotiations regarding any of the foregoing, or furnish to
any other person any information with respect to its business, properties or
assets or any of the foregoing, or otherwise cooperate in any way with, or
assist or participate in, facilitate or encourage, any effort or attempt by any
other person to do or seek any of the foregoing; provided, however, that the
foregoing clauses will not prohibit Borden from (i) furnishing information
pursuant to an appropriate confidentiality letter concerning Borden and its
businesses, properties or assets to a third party who has made a Transaction
Proposal, (ii) engaging in discussions or negotiations with such a third party
who has made a Transaction Proposal or (iii) following receipt of a Transaction
Proposal, taking and disclosing to its shareholders a position contemplated by
Rule 14e-2(a) under the Exchange Act or changing the Recommendations, but in
each case referred to in the foregoing clauses (i) through (iii), only after the
Board of Directors of Borden concludes in good faith that such action is
necessary or appropriate in order for the Board of Directors of Borden to act in
a manner which is consistent with its fiduciary obligations under applicable
law. If the Board of Directors of Borden receives a Transaction Proposal, then
Borden has agreed promptly to inform the Partnership of the terms and conditions
of such proposal and the identity of the person making it and to keep the
Partnership generally informed with reasonable promptness of any steps it is
taking pursuant to the foregoing with respect to such Transaction Proposal.
Under the Merger Agreement, neither Borden nor any subsidiary will waive any
provision of any confidentiality or standstill or similar agreement to which it
is a party without the prior written consent of the Partnership, unless the
Board of Directors of Borden or such subsidiary concludes in good faith that
waiving such provision is necessary or appropriate in order for the Board of
Directors of Borden to act in a manner which is consistent with its fiduciary
obligations under applicable law.
Access to Information. Subject to applicable provisions regarding
confidentiality, each of Borden and the Partnership has agreed in the Merger
Agreement to, and to cause each of its subsidiaries to, afford to the other
parties and to their representatives reasonable access during normal business
hours during the period prior to the effective time of the Merger to all its
properties, books, contracts, commitments, personnel and records and, during
such period, to, and to cause each of its subsidiaries to, furnish as promptly
as practicable to the other parties and their respective representatives such
information concerning its business, properties, financial conditions,
operations and personnel as they may from time to time reasonably request.
Cooperation and Best Efforts. Pursuant to the Merger Agreement, subject to
certain conditions and limitations described therein, the parties have agreed to
cooperate with each other and to use their respective best efforts to take
actions appropriate so that the transactions contemplated by the Merger
Agreement and the Conditional Purchase/Option Agreement may be consummated.
Certain Antitrust Matters and Divestitures. In the Merger Agreement, Borden
and the Partnership have agreed, as promptly as practicable, to file
notification and report forms under the HSR Act with the FTC and the Antitrust
Division and to make any other necessary filings with the applicable
governmental entities related to the transactions contemplated by the Merger
Agreement, including the Transactions, and the Conditional Purchase/Option
Agreement and to use their best efforts to respond as promptly as practicable to
all inquiries received from the FTC or the Antitrust Division or such other
governmental entities for additional information or documentation. Provided that
following receipt of such approvals the Purchaser (or one of its affiliates)
acquires at least 28,138,000 Borden Shares pursuant to the Exchange Offer and/or
the Option, Borden has agreed to make any and all divestitures or undertakings
required by the FTC, the Antitrust Division or any other applicable governmental
entity in connection with the Transactions, which divestitures in each case
shall be reasonably acceptable to the Partnership and the Purchaser.
Employee Benefits Matters. Pursuant to the Merger Agreement, prior to the
occurrence of a "Change in Control" as defined in the Supplemental Benefit Trust
Agreement between Borden and
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Wachovia Bank of North Carolina, N.A. (the "Trust Agreement"), Borden has agreed
to take all such action as may be necessary so that no funding of the Trust
created thereunder will occur as a result of the transactions contemplated by
the Merger Agreement. The Trust Agreement will be amended prior to a Change in
Control to permit the disposition of all Borden Shares held thereunder. Borden
may amend certain benefit plans that would have been required to be funded
pursuant to the terms of the Trust Agreement in a manner which provides for a
lump-sum distribution to, but does not result in the constructive receipt of
compensation by, a covered employee of his or her deferred compensation
thereunder in the event of the involuntary termination or normal retirement
(under Borden's Employees Retirement Income Plan) of such employee.
Prior to the effective time of the Merger, the Purchaser will not request
that Borden cancel, and Borden will be under no obligation to cancel, certain
agreements ("Core Management Agreements") between Borden and certain executives
of Borden designated by Borden which provide for certain payments and benefits
in the event of certain terminations of employment.
The Purchaser (or its affiliate) has agreed to continue Borden's Non-Exempt
Associate Assistance Program and Exempt Associate Assistance Program, on terms
no less favorable than the terms in existence on the date of the Merger
Agreement, for the one-year period following the effective time of the Merger.
Pursuant to the Merger Agreement, Borden is required to maintain, for the
two-year period following the effective time of the Merger, employee plans and
programs which are substantially similar in the aggregate to those pension and
welfare plans maintained for employees of Borden generally.
Borden has agreed that neither it nor any of its affiliates will accelerate
the payment of any deferred award under any bonus plan or arrangement nor award
or pay any pro rata awards thereunder as a result, or in anticipation, of the
transactions contemplated by the Merger Agreement; provided that Borden may pay
the 1994 annual bonuses pursuant to its Management Incentive Plan or other
similar annual bonus plan in a manner which is consistent with past practice and
the achievement of goals set forth therein.
Borden also has agreed to ensure that no prohibited transaction (within the
meaning of Section 406 of ERISA or 4975 of the Internal Revenue Code) will occur
with respect to any Borden Plan as a result of the transactions contemplated by
the Merger Agreement.
With respect to any of certain employees of Borden, in lieu of any other
severance arrangement for such individual, Borden has agreed to pay such
employee in the event of that employee's termination by Borden after a "Change
in Control" without "Cause" (as those terms are defined in the Core Management
Agreements) a cash severance amount equal to twelve months of salary. The
special severance payments described herein will no longer be applicable when
twelve (eighteen for one employee) months have elapsed after the Change in
Control. For certain executives of Borden, such executive's letter of employment
will be modified so that a termination without Cause prior to the second
anniversary of a Change in Control (as defined in such letters) will include a
termination by the executive due to the occurrence of any one of the following
events without his advance consent: (i) the executive's office is relocated to a
different city; (ii) the executive's base salary is reduced or his bonus
opportunity is materially lower than other Borden executives of comparable rank;
(iii) there is a material diminution in the nature or scope of the authority or
responsibilities attached to the executive's position (and, for this purpose, a
diminution in nature or scope of authority or responsibilities will not be
deemed to occur simply because the company or business in which the executive is
engaged has changed in size or structure); or (iv) in the case of one executive,
the business (either separately or as part of a larger business unit) in which
the executive is engaged is sold or otherwise disposed of. The maximum payment
Borden would be required to pay to management described above as a result of the
transaction assuming all change in control payments on termination and other
severance payments are triggered (including those in the immediately preceding
sentence) is estimated to be approximately $31 million.
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Indemnification and Insurance. Under the Merger Agreement, the certificate
of incorporation and by-laws of the surviving corporation in the Merger shall
contain provisions eliminating personal liability of directors and officers of
the surviving corporation and with respect to indemnification, which provisions
shall not be amended, repealed or otherwise modified for a period of six years
from the effective time of the Merger in any manner that would adversely affect
the rights thereunder of individuals who at such time were directors, officers,
agents or employees of Borden.
In addition, pursuant to the Merger Agreement, the surviving corporation in
the Merger will maintain in effect for six years from the effective time of the
Merger policies of directors' and officers' liability insurance containing terms
and conditions which are not less advantageous than those policies maintained by
Borden at the date of the Merger Agreement, with respect to matters occurring
prior to the effective time of the Merger, to the extent available, and having
the maximum available coverage under the current policies of directors and
officers' liability insurance; provided that such surviving corporation will not
be required to spend in excess of a $3 million annual premium therefor; provided
further that if such surviving corporation would be required to spend in excess
of a $3 million premium per annum to obtain insurance having the maximum
available coverage under the current policies, such surviving corporation will
be required, subject to availability, to spend $3 million to maintain or procure
such insurance coverage, subject to its availability.
In furtherance of and not in limitation of the preceding paragraph, the
Partnership and the Purchaser have agreed that the officers and directors of
Borden that are defendants in all litigation commenced by shareholders of Borden
with respect to (x) the performance of their duties as such officers and/or
directors under federal or state law (including litigation under federal and
state securities laws) and (y) the Purchaser's offer or proposal to acquire
Borden, including, without limitation, any and all such litigation commenced on
or after September 11, 1994 (the "Subject Litigation"), will be entitled to be
represented, at the reasonable expense of Borden, in the Subject Litigation by
one counsel (and New Jersey counsel if appropriate and one local counsel in each
jurisdiction in which a case is pending) each of which such counsel will be
selected by a plurality of such director defendants; provided that neither
Borden nor the surviving corporation nor the Partnership shall be liable for any
settlement effected without its prior written consent (which consent shall not
be unreasonably withheld) and that a condition to the indemnification payments
provided as described above shall be that such director defendant not have
settled any Subject Litigation without the consent of the Partnership or the
surviving corporation; and provided further that the surviving corporation and
the Partnership shall have no obligation to any officer/director defendant when
and if a court of competent jurisdiction shall ultimately determine, and such
determination shall have become final and non-appealable, that indemnification
of such officer/director defendant in the manner contemplated by the Merger
Agreement is prohibited by applicable law.
Redemption of Series B Preferred Stock. The Merger Agreement provides that,
if the Minimum Condition is satisfied without having been waived or lowered,
Borden will, promptly after consummation of the Exchange Offer, in the manner
and to the extent permitted by the Charter, redeem all of its outstanding shares
of Preferred Stock-Series B prior to any record date in connection with the
Proposed Merger at the amount provided for redemption in the Charter, and Borden
has agreed, subject to first obtaining required approvals under certain debt
instruments of Borden, promptly to commence taking all steps necessary to effect
such redemptions.
Redemption of Rights. Pursuant to the Merger Agreement, Borden has agreed to
redeem all outstanding Rights at a redemption price of one and two-thirds cents
per Right effective immediately prior to the acceptance for exchange of any
Borden Shares pursuant to the Exchange Offer, provided that the Minimum
Condition is satisfied in the Exchange Offer. In accordance with the Merger
Agreement, Borden has amended the Rights Agreement so that none of the execution
or the delivery of the Merger Agreement or the Conditional Purchase/Option
Agreement, or both such agreements taken together, or commencement of the
Exchange Offer or the acceptance of Borden Shares for exchange pursuant to the
Exchange Offer, or the consummation of the transactions contemplated by the
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Conditional Purchase/Option Agreement will (i) trigger the exercisability of the
Rights, the separation of the Rights from the stock certificates to which they
are attached or any other provisions of the Rights Agreement, including causing
the Partnership and/or the Purchaser from becoming an Acquiring Person (as
defined in the Rights Agreement), the occurrence of a Distribution Date (as
defined in the Rights Agreement) or a Shares Acquisition Date (as defined in the
Rights Agreement) or (ii) trigger the right of the holders of the common units
of Borden Chemicals and Plastics Limited Partnership, pursuant to the Second
Amended and Restated Deposit Agreement dated February 16, 1993, to require
Borden to purchase the common units held by such holders. Borden and the
Partnership have also agreed in the Merger Agreement that, if Borden amends any
provision of the Rights Agreement in connection with a Transaction Proposal (or
with respect to any person) or if the application of the Rights Agreement or any
provision thereof is enjoined with respect to any person or Transaction Proposal
or if Borden agrees to redeem the Rights on terms more favorable than the terms
set forth with respect to the Partnership and the Purchaser in the Merger
Agreement (any of such events, a "Third Party Rights Amendment") in a manner
that makes such Third Party Rights Amendment less restrictive with respect to
such person, or in connection with such Transaction Proposal, or is otherwise
more favorable with respect to such person, or in connection with such
Transaction Proposal, than the Rights Agreement as then in effect with respect
to Parent and Purchaser, Borden will be deemed (if and to the extent possible
and without derogating the obligations of Borden pursuant to the next sentence),
without the necessity of any action by Borden or the Rights Agent, to have so
amended the Rights Agreement with respect to the Partnership and the Purchaser
to the same extent or to have agreed to redeem the Rights with respect to
Partnership and the Purchaser on terms as favorable. Borden has agreed to notify
the Partnership promptly of any Third Party Rights Amendment and simultaneously
with the execution of the Third Party Rights Amendment to execute a written
amendment to the Rights Agreement with respect to the foregoing.
Conditions to Each Party's Obligations to Effect the Merger. The Merger
Agreement provides that the respective obligation of each party to effect the
Merger is subject to the following conditions: (i) if required by New Jersey law
or the Charter, the approval of Borden's shareholders shall have been obtained;
(ii) any waiting period applicable to the Merger under the HSR Act shall have
terminated or expired; (iii) Borden Shares shall have been purchased pursuant to
the Exchange Offer; (iv) the Registration Statement shall have become effective,
and any required post-effective amendment shall have become effective, under the
Securities Act and shall not be the subject of any stop order or proceedings
seeking a stop order, and any material "blue sky" and other state securities
laws applicable to the registration of the Holdings Common Stock to be exchanged
for shares of Borden Common Stock shall have been complied with; and (v) no
statute, rule, regulation, executive order, decree, or injunction shall have
been enacted, entered, promulgated or enforced by any governmental entity which
prohibits the consummation of the Merger, whether temporary, preliminary or
permanent, provided, however, that the parties have agreed to use their best
efforts to have any such order, decree or injunction vacated.
Conditions to Obligation of Borden. Pursuant to the Merger Agreement, if
fewer than 66 2/3% of the Borden Shares outstanding on a fully diluted basis
(other than dilution due to the Rights) shall have been accepted for exchange in
the Exchange Offer, the obligation of Borden to effect the Merger is further
subject to the condition that the representation and warranty of the Purchaser
and the Partnership to the effect that, except as disclosed in documents filed
by Holdings with the Commission, since the date of the most recent audited
financial statements included in such documents, Holdings has conducted its
business only in the ordinary course consistent with past practice, and there is
not and has not been any change in the business, financial condition or results
of operations of Holdings or any of its subsidiaries which has had, or would
reasonably be expected to have, a Material Adverse Effect with respect to
Holdings shall be true and correct, as of the date of the Merger Agreement and
as of the closing date as though made on and as of the closing date.
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Conditions to Obligations of the Purchaser and the Partnership to Effect the
Merger. If fewer than 66 2/3% of the Borden Shares outstanding on a fully
diluted basis (other than dilution due to the Rights) shall have been accepted
for exchange in the Exchange Offer, the obligations of the Purchaser and the
Partnership to effect the Merger are further subject to the following
conditions: (i) the representation and warranty of Borden to the effect that,
except as disclosed in SEC Documents filed by Borden with the Commission, since
the date of the most recent audited financial statements included in such
documents, Borden has conducted its business only in the ordinary course
consistent with past practice, and there is not and has not been any change in
the business, financial condition or results of operations of Borden or any of
its subsidiaries which has had, or would reasonably be expected to have a
Material Adverse Effect with respect to Borden shall be true and correct, as of
the date of the Merger Agreement and as of the closing date as though made on
and as of the closing date; (ii) subject to certain exceptions, Borden shall
have performed in all material respects certain affirmative covenants required
to be performed by it under the Merger Agreement at or prior to the effective
date; and (iii) the representation and warranty referred to in clause (e) of the
second paragraph under "Representations and Warranties" above, applied mutatis
mutandis to the documents filed by Borden with the Commission since the date of
the Merger Agreement, shall be true and correct in all material respects as of
closing date as though made on and as of the closing date.
Notwithstanding the foregoing, the obligations of Borden or the Purchaser
and the Partnership under the Merger Agreement to effect the Merger are not
subject to the satisfaction or waiver of any of the conditions described in the
two preceding paragraphs to the extent that the failure of any such condition to
be satisfied is the result of any action approved by a majority of those
directors of Borden who are designees or representatives of the Partnership or
to the extent the same results from affirmative action taken by Borden with the
knowledge of its Board of Directors while a majority of the directors of Borden
consists of persons designated or elected by the Partnership.
Termination. The Merger Agreement may be terminated and the Merger
contemplated thereby may be abandoned at any time, notwithstanding approval
thereof by the shareholders of Borden, but prior to the effective time of the
Merger: (a) by mutual written consent of the Partnership, the Purchaser and
Borden; (b) by the Partnership or Borden, if any court of competent jurisdiction
or other governmental body located or having jurisdiction within the United
States or any country or economic region in which either Borden or the
Partnership, directly or indirectly, has material assets or operations, shall
have issued an order, decree or ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and nonappealable; (c) by
the Partnership if due to an occurrence or circumstance which would result in a
failure to satisfy any of the conditions to the Exchange Offer the Purchaser
shall have terminated the Exchange Offer, unless such termination shall have
been caused by or resulted from the failure of the Partnership or the Purchaser
to perform in any material respect their material covenants and agreements
contained in the Merger Agreement; (d) by the Partnership, if Borden shall have
modified or amended in any respect materially adverse to the Partnership or the
Purchaser or withdrawn its approval or recommendation of the Exchange Offer, the
Merger or the Merger Agreement, provided that any communication that advises
that Borden has received a Transaction Proposal or is engaging in certain
permitted activities with respect to a Transaction Proposal and that takes no
action or position with respect to the Exchange Offer, the Merger, the Merger
Agreement or any Transaction Proposal shall not be deemed to be a withdrawal,
modification or amendment of Borden's approval or recommendation of the Exchange
Offer, the Merger or the Merger Agreement and provided, further, that a
"stop-look-and-listen" communication with respect to the Exchange Offer, the
Merger or the Merger Agreement of the nature contemplated in Rule 14d-9(e) under
the Exchange Act made by Borden as a result of a Transaction Proposal (whether
or not a tender offer), without more, shall not be deemed to be a modification
or amendment of Borden's approval or recommendation of the Exchange Offer, the
Merger or the Merger Agreement that is materially adverse to the Partnership or
the Purchaser, if within 10 business days after the date of such communication
Borden shall have reaffirmed its recommendation of the Exchange Offer, the
Merger and the Merger Agreement; (e) by
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the Partnership if Borden shall have (i) entered into any definitive agreement
to effect the transaction contemplated by a Transaction Proposal, (ii)
recommended any Transaction Proposal from a person other than the Partnership or
the Purchaser or any of its affiliates or (iii) resolved to do any of the
foregoing; (f) by the Partnership, if any corporation (including Borden or any
of its subsidiaries), partnership, person, other entity or group (as defined in
Section 13(d)(3) of the Exchange Act) other than the Partnership or any of its
subsidiaries (collectively, "Persons") shall have become the beneficial owner of
more than 35% of the outstanding Borden Shares (excluding any dilution due to
the Rights) (an "Alternative Acquisition"); (g) by Borden if (i) due to an
occurrence or circumstance that would result in a failure to satisfy any of the
conditions of the Exchange Offer the Purchaser shall have terminated the
Exchange Offer, unless such termination shall have been caused by or resulted
from the failure of Borden to perform in any material respect its material
covenants and agreements contained in the Merger Agreement or (ii) prior to the
exchange of Borden Shares pursuant to the Exchange Offer, any person shall have
made a bona fide Transaction Proposal (A) that the Board of Directors of Borden
determines in its good faith judgment is more favorable to Borden's shareholders
than the Exchange Offer and the Merger and (B) as a result of which the Board of
Directors concludes in good faith that termination of the Merger Agreement is
necessary or appropriate in order for the Board of Directors to act in a manner
which is consistent with its fiduciary obligations under applicable law,
provided that such termination under this clause (ii) shall not be effective
until payment of the full fee and expense reimbursement required as described
under "--Certain Required Payments" below; (h) by the Partnership or Borden if,
without fault of the terminating party, the effective time of the Merger shall
not have occurred on or before June 30, 1995 (provided, that the right to
terminate the Merger Agreement under this clause (h) shall not be available to
any party whose failure to fulfill any obligation under the Merger Agreement has
been the cause of, or results in, the failure of the Merger to have been
consummated within such period); (i) by Borden if (i) on or after December 15,
1994, the termination date of the waiver granted to Borden of certain provisions
relating to changes in control of the credit agreement dated as of August 16,
1994 among Borden and the banks' party thereto shall not then extend past
December 15, 1994 and (ii) Borden (A) shall have received written notice from
the administrative agent under such credit agreement that, as a result of the
applicability of such provisions, all amounts payable under the credit agreement
and the other related loan documents shall have become and be due and payable
(and provided that the Merger Agreement shall be deemed to be terminated without
any further action by any party immediately prior to the receipt by Borden of
such notice), (B) shall have been advised in writing by the administrative agent
that, as a result of such provisions, the required number of banks have
requested or consented to such action or (C) Borden shall reasonably believe
either such action referred to in (A) or (B) above to be imminent based on
communications with the administrative agent, any of the banks party to such
credit agreement or representatives thereof; or (j) by the Partnership or Borden
if any required approval of the shareholders of Borden shall not have been
obtained by reason of the failure to obtain the required vote upon a vote held
at a duly held meeting of shareholders or at any adjournment thereof.
Amendment. Subject to the concurrence of a majority of the Independent
Borden Directors (following the election or appointment of the Partnership's
designees pursuant to the Merger Agreement and prior to the effective time of
the Merger), the Merger Agreement may be amended or supplemented at any time
before or after the date on which a majority of the board of directors of Borden
shall consist of designees or representatives of the Partnership but, after such
date, no amendment shall be made which decreases or increases the Exchange Ratio
or which adversely affects the rights of Borden's shareholders under the Merger
Agreement without the approval of Borden and Borden's shareholders. The Merger
Agreement may not be amended except by an instrument in writing signed on behalf
of the parties.
Extension; Waiver. Subject to the concurrence of a majority of the
Independent Borden Directors (following the election or appointment of the
Partnership's designees pursuant to the Merger Agreement and prior to the
effective time of the Merger), at any time prior to the effective time of the
Merger, the parties may (i) extend the time for the performance of any of the
obligations or other acts of the
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other parties hereto, (ii) waive any inaccuracies in the representations and
warranties contained herein of the other parties hereto or in any document,
certificate or writing delivered pursuant hereto or (iii) waive compliance by
the other parties hereto with any of the agreements or conditions contained
herein. Any agreement on the part of any party to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of
such party. The failure of any party to assert any of its rights under the
Merger Agreement shall not constitute a waiver of such rights.
Certain Required Payments. Pursuant to the Merger Agreement, Borden has
agreed promptly, but in no event later than two business days following written
notice thereof, together with related bills or receipts, to reimburse the Parent
and the Purchaser for all of their Expenses (as defined below) as incurred from
time to time in an aggregate amount of up to $15 million, against which
aggregate amount Expenses actually reimbursed (other than the fee in the amount
of $20 million (the "Initial Advisory Fee") reimbursed by Borden upon the
execution of a certain letter agreement dated September 11, 1994 between the
Parent and Borden (the "Letter Agreement")) may be credited. The term "Expenses"
includes all out-of-pocket expenses and fees including the fees and
disbursements of counsel, financial printers, experts, consultants and
accountants, as well as all fees and expenses payable to investment banking
firms and other financial institutions and their respective agents and counsel,
whether incurred prior to, on or after the date of the Merger Agreement,
incurred in connection with the transactions contemplated by the Merger
Agreement, the Letter Agreement and the Conditional Purchase/Option Agreement.
The parties have acknowledged that the reimbursement of the Initial Advisory Fee
shall not limit the reimbursement of any additional advisory fees paid by the
Parent or the Purchaser to non-affiliates of the Purchaser.
Under the Merger Agreement, if (i) (x) prior to termination of the Merger
Agreement, any Person shall have commenced, publicly proposed or communicated to
Borden a Transaction Proposal (a "Pre-Termination Transaction Proposal") (y) the
Merger Agreement is terminated and (z) on or prior to June 30, 1996, any Person
who commenced, publicly proposed or communicated to Borden a Pre-Termination
Transaction Proposal enters into any definitive agreement to effect the
transaction contemplated by such Transaction Proposal (whether or not related to
such Pre-Termination Transaction Proposal) or effects an Alternative
Acquisition; or (ii) prior to the purchase of Borden Shares pursuant to the
Exchange Offer, the Merger Agreement is terminated pursuant to clause (d) under
"--Termination" above (other than solely in the event that the average of the
closing sales prices of the Holdings Common Stock as reported on the NYSE
Composite Tape for the Valuation Period is less than the price per share that
would yield an Exchange Ratio of 2.375 or less without giving effect to any
minimum or maximum Exchange Ratio pursuant to the definition thereof) or (iii)
prior to the purchase of Borden Shares pursuant to the Exchange Offer, the
Merger Agreement is terminated pursuant to clause (e), (f) or clause (g)(ii)
under "--Termination" above, then in each case, Borden shall promptly, but in no
event later than one business day after the first of such events shall occur,
pay KKR a fee of $30 million in cash, which amount shall be payable in same day
funds. No more than $30 million in aggregate shall be payable to KKR and no fee
shall be payable to KKR pursuant to this provision if $30 million has been paid
to KKR as described in the succeeding paragraph.
If the Parent, together with any subsidiary or affiliate of the Parent
including the Purchaser, shall acquire beneficial ownership (in one or more
transactions) of a majority of the outstanding shares of Borden Common Stock,
then Borden shall promptly, but in no event later than one business day after
such event shall occur, pay KKR a fee of $30 million in cash, which amount shall
be payable in same day funds. No fee shall be payable to KKR pursuant to this
provision if $30 million has been paid to KKR as described in the preceding
paragraph.
If the fee of $30 million in cash required to be paid by Borden to KKR as
described in the two immediately preceding paragraphs (the "Transaction Fee") is
not paid within five business days after the events set forth above requiring
payment of the Transaction Fee occur, KKR, at its sole option, may demand (the
"Fee Demand") that Borden tender to KKR, immediately in satisfaction of the
Transaction Fee, such number of shares (rounded to the nearest whole share) of
(i) Borden Common Stock
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((A) if it is publicly traded and (B) which at the request of KKR shall be
issued in shares of treasury stock, if available) or (ii), at the sole option of
KKR if the Option shall have been exercised, and Borden shall at the time own
Holdings Common Stock that is not subject to any other call or exchange right,
Holdings Common Stock equal to (x) $30 million divided by (y) the Average Market
Price. The term "Average Market Price" means the average of the average of the
high and low prices of Borden Common Stock, or Holdings Common Stock, as the
case may be, as reported on the NYSE Composite Tape on each of the ten
consecutive trading days immediately preceding the second trading day prior to
the Fee Demand. Borden has acknowledged that it is obligated to pay the
Transaction Fee in cash and that such obligation is not derogated in any respect
by the existence of the option of KKR to seek satisfaction of such obligation by
means of the Fee Demand.
In addition to the foregoing, Borden has agreed in the Merger Agreement
promptly, but in no event later than two business days following written notice
thereof, together with related bills or receipts, to reimburse KKR, the Parent
and the Purchaser for all reasonable out-of-pocket costs, fees and expenses,
including, without limitation, the reasonable fees and disbursements of counsel
and the expenses of litigation, incurred in connection with collecting Expenses
and the Transaction Fee as a result of any willful breach by Borden of its
obligations described above.
Except as otherwise provided above, under the Merger Agreement, whether or
not the Merger is consummated, all costs and expenses incurred in connection
with the transactions contemplated by the Merger Agreement and the Conditional
Purchase/Option Agreement will be paid by the party incurring such expenses
(including, in the case of Borden, the costs of printing the Schedule 14D-9 and
any other filings to be printed, and in each case all exhibits, amendments or
supplements thereto). Notwithstanding the foregoing, the costs and expenses of
preparing and distributing any proxy statement and obtaining and complying with
the antitrust requirements of any governmental entity will be paid by Borden.
No Recourse Provisions. Nothwithstanding anything that may be expressed or
implied in the Merger Agreement, no recourse under the Merger Agreement or the
Conditional Purchase/Option Agreement or any documents or instruments delivered
in connection therewith shall be had against any officer, agent or employee of
the Partnership or against any partner of the Partnership or any director,
officer, employee, partner, affiliate or assignee of any of the foregoing,
whether by the enforcement of any assessment or by any legal or equitable
proceeding, or by virtue of any statute, regulation or other applicable law, and
no personal liability whatsoever shall attach to, be imposed on or otherwise be
incurred by an officer, agent or employee of the Partnership or any partner of
the Partnership or any director, officer, employee, partner, affiliate or
assignee of any of the foregoing, as such for any obligations of the Partnership
under the Merger Agreement or any documents or instruments delivered in
connection with the Merger Agreement or the Conditional Purchase/Option
Agreement or for any claim based on, in respect of or by reason of such
obligations or their creation; provided, however, that the foregoing limitation
of liability shall in no way constitute a limitation on the rights of Borden to
enforce any remedies it may have against the undistributed assets of the
Partnership for the collection of any obligations or liabilities in connection
with the Merger Agreement or the Conditional Purchase/Option Agreement.
Dissenters' Rights. Holders of Borden Common Stock will not be entitled to
dissenters' rights under New Jersey law in connection with the Exchange Offer or
the Merger, and the Purchaser does not intend to accord dissenters' rights to
holders of Borden Common Stock unless required by applicable law.
CONDITIONAL PURCHASE/OPTION AGREEMENT
Pursuant to the Conditional Purchase/Option Agreement, Borden has granted to
the Purchaser the irrevocable Option to purchase up to 28,138,000 Option Shares
(or approximately 19.9% of the outstanding Borden Shares as of the date hereof),
on the terms and subject to the conditions set forth
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therein. At the time that the Option is exercised, Borden will designate whether
the Option Shares shall be newly issued shares or shares of treasury stock of
Borden.
Exercise of Option. Under the Conditional Purchase/Option Agreement, the
Option may be exercised by the Purchaser (or its designee, which designee must
be the Partnership or a direct or indirect wholly owned subsidiary of the
Partnership and which may, in any such case, act for itself and/or as agent for
one or both of the Common Stock Partnerships, as the case may be), in whole or
in part, at any time, or from time to time, during the period beginning on the
date of the Conditional Purchase/Option Agreement and ending on the Option
Expiration Date, provided that if the Purchaser (or its designee) has not
exercised the Option in whole or in part prior to the expiration of the Exchange
Offer, it will not be entitled to exercise the Option thereafter if it waives or
otherwise reduces the Minimum Condition and accepts fewer than 41% of the
outstanding Borden Shares for payment in the Exchange Offer.
Pursuant to the Conditional Purchase/Option Agreement, the purchase of
Borden Shares upon exercise of the Option will occur only if (i) such purchase
would not otherwise violate or cause the violation of, any applicable law or
regulations (including, the HSR Act, the Exchange Act and the rules and
regulations thereunder, or the rules of the NYSE) and (ii) no statute, rule,
regulation, decree, order or injunction shall have been promulgated, enacted,
entered into or enforced by any governmental agency or authority or court which
prohibits delivery of the Borden Shares, whether temporary, preliminary or
permanent (provided, however, that the parties shall have agreed to use their
best efforts to have any such order, decree or injunction vacated or reversed).
In the event a closing of such purchase is delayed as a result of clause (i) or
(ii) above, the Purchaser shall not be obligated to purchase any Borden Shares
after the date nine months following the date of its notice of exercise of the
Option.
Conversion of Option. The Conditional Purchase/Option Agreement provides
that, upon the Conversion Date, if any, the Option will be converted in part
from an irrevocable option to purchase the Borden Shares into an obligation on
the part of the Purchaser (or its designee, which designee must be the
Partnership or a direct or indirect wholly owned subsidiary of the Partnership
and which may, in any such case, act for itself and/or as agent for one or both
of the Common Stock Partnerships, as the case may be) to make the Mandatory
Purchase, on the terms and subject to the conditions set forth in the
Conditional Purchase/Option Agreement, of the Mandatory Purchase Shares. Borden
Shares subject to the Option in excess of the number of Mandatory Purchase
Shares will continue to be subject to purchase at the option of the Purchaser.
Payments. The Conditional Purchase/Option Agreement provides that, in the
event the Purchaser exercises the Option, the Purchaser (or, at the Purchaser's
option, its designee) will, at any closing or Mandatory Purchase closing, as the
case may be, deliver to Borden, such number of shares (rounded to the nearest
whole share) of Holdings Common Stock as will equal the product of the Option
Exchange Ratio and the number of Borden Shares purchased pursuant to the
exercise of the Option.
In the event that a payment is actually made to the Partnership pursuant to
the provisions of the Merger Agreement described in the second paragraph under
"--Merger Agreement--Certain Required Payments," the Option Purchase Price will
be adjusted upward (retroactively if necessary and net of any taxes or brokerage
fees paid in connection with the sale, tender or exchange of shares by Purchaser
or its designee, which designee must be the Partnership or a direct or indirect
wholly owned subsidiary of the Partnership) to reflect (i) with respect to any
Borden Shares sold, tendered, or exchanged in any third party transaction that
triggers a payment pursuant to such provisions of the Merger Agreement, the
price per share (subject to the calculation principles described in the next
succeeding sentence) actually paid to holders of Borden Common Stock as a result
of any such third party transaction and (ii) with respect to any Borden Shares
sold, tendered or exchanged to another party or parties by Purchaser (or its
designee) other than pursuant to such third party transaction, the price per
share (subject to the calculation principles set forth in the next succeeding
sentence) actually paid to Purchaser (or its designee) by such other party or
parties in consideration for such Borden
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Shares (the "Option Purchase Price Adjustment"). To the extent the "price per
share" referred to in the preceding sentence consists in whole or in part of
non-cash consideration, it will be based on the trading market value thereof or
if there is no trading market for such consideration, the fair market value as
determined by an independent investment banker jointly selected by the Purchaser
and Borden. The Option Purchase Price Adjustment shall be payable with respect
to shares actually sold, tendered or exchanged promptly following receipt of the
consideration therefor (and, if necessary, the valuation thereof), and the
Purchaser agrees promptly, but in no event later than two business days
following such event, to notify Borden of the receipt of such consideration. The
Partnership agrees promptly, but in no event later than two business days
following written notice thereof, together with related bills or receipts, to
reimburse Borden for all reasonable out-of-pocket costs, fees and expenses,
including, without limitation, the reasonable fees and disbursements of counsel
and the expenses of litigation, incurred in connection with collecting the
Option Purchase Price Adjustment as a result of any willful breach by the
Partnership of its obligations in connection with the Option Purchase Price
Adjustment.
Representations and Warranties of the Purchaser. The Conditional
Purchase/Option Agreement contains customary representations and warranties of
the Purchaser and the Partnership relating to, among other things: (a)
organization, standing and similar matters; (b) the authorization, execution,
delivery, performance and enforceability of the Conditional Purchase/Option
Agreement and related matters; (c) no material conflicts with laws or agreements
of the Purchaser, the Partnership and Holdings; (d) with respect to the
Purchaser only, distribution of the Borden Shares that would be acquired upon
exercise of the Option in compliance with the Securities Act; and (e) with
respect to the Partnership only, title to shares of Holdings Common Stock.
The Conditional Purchase/Option Agreement also contains customary
representations and warranties of Borden relating to, among other things: (a)
organization, standing and similar corporate matters; (b) the authorization,
execution, delivery, performance and enforceability of the Conditional
Purchase/Option Agreement and related matters; (c) no material conflicts with
laws or agreements of Borden or its subsidiaries; (d) certain resolutions of
Borden's Board of Directors; (e) certain amendments to the Rights Agreement in
connection with the Transactions; and (f) distribution of the shares of Holdings
Common Stock that would be acquired upon exercise of the Option in compliance
with the Securities Act.
Adjustment Upon Changes in Capitalization. Pursuant to the Conditional
Purchase/Option Agreement, in the event of any change in the number (or
conversion or exchange) of issued and outstanding shares of Borden Common Stock
by reason of any stock dividend, split-up, merger, recapitalization,
combination, exchange of shares, spin-off or other change in the corporate or
capital structure of Borden which could have the effect of diluting or otherwise
diminishing the Purchaser's rights under the Conditional Purchase/Option
Agreement (including any issuance of Borden Common Stock or other equity
security of Borden at a price below the fair value thereof), the number and kind
of Borden Shares or other securities subject to the Option and the Option
Exchange Ratio therefor will be appropriately adjusted so that the Purchaser
will receive upon exercise of the Option (or at the closing of the purchase upon
such exercise) the number and kind of shares or other securities or property
that the Purchaser would have received in respect of the Borden Shares that the
Purchaser is entitled to purchase upon exercise of the Option if the Option had
been exercised (or such closing had occurred) immediately prior to such event.
Registration Rights. The Conditional Purchase/Option Agreement provides
that, if the Option is exercised, Borden will extend to the Purchaser (or its
designee) registration rights with respect to the Option Shares on substantially
the same terms and subject to the same conditions as Holdings has extended to
the Partnership pursuant to the Registration Rights Agreement dated July 15,
1990 between Holdings and the Partnership (the "Registration Rights Agreement"),
a copy of which is on file with the Commission, except that only the first two
registrations of Registrable Securities (as defined in the Registration Rights
Agreement) will be at the expense of Borden.
97
<PAGE>
The Conditional Purchase/Option Agreement also provides that, if the Option
is exercised, then subject in all respects to the terms and conditions of the
Registration Rights Agreement, Borden will succeed with respect to the shares of
Holdings Common Stock acquired as a result of the exercise of the Option to the
rights and obligations of a subsequent Holder (as defined in the Registration
Rights Agreement) under such agreement, unless, in the written opinion of
counsel to Holdings, which opinion shall be delivered to Borden and shall be
reasonably satisfactory in form and substance to Borden and its counsel,
registration of the shares of Holdings Common Stock acquired as a result of the
exercise of the Option is not required to lawfully sell and distribute such
shares in the manner contemplated by Borden. By its execution of the Conditional
Purchase/Option Agreement, Borden has agreed to be bound by the terms of the
Registration Rights Agreement. If the Option is exercised, the Partnership and
Borden have agreed that Borden will be entitled to two registrations at the
expense of Holdings (or if Holdings refuses to bear such expenses, at the
expense of the Partnership or the Purchaser) of Registrable Securities and,
subject to the terms of the Registration Rights Agreement, such other
registrations at its own expense as it shall request.
Board of Directors. The Conditional Purchase/Option Agreement includes
provisions relating to the Purchaser's designation of persons as directors of
Borden following the exercise of the Option similar to those described with
respect to the Merger Agreement under "--Merger Agreement--Board of Directors"
above.
Amendments. The Conditional Purchase/Option Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties thereto.
Certain Antitrust Matters and Divestitures. In the Conditional
Purchase/Option Agreement, Borden has made certain agreements relating to
antitrust matters and divestitures similar to those described with respect to
the Merger Agreement under "--Merger Agreement--Certain Antitrust Matters and
Divestitures."
98
<PAGE>
RJR NABISCO HOLDINGS CORP.
The operating subsidiaries of Holdings owned through RJRN comprise one of
the largest tobacco and food companies in the world. In the United States, the
tobacco business is conducted by RJRT, the second largest manufacturer of
cigarettes, and the packaged foods business is conducted by Nabisco, the largest
manufacturer and marketer of cookies and crackers. Tobacco operations outside
the United States are conducted by Tobacco International and food operations
outside the United States and Canada are conducted by Nabisco International, a
subsidiary of Nabisco. Together, RJRT's and Tobacco International's tobacco
products are sold around the world under a variety of brand names. Food products
are sold in the United States, Canada, Latin America and certain other
international markets.
Domestic Tobacco. RJRT's largest selling cigarette brands in the United
States include WINSTON, DORAL, SALEM, CAMEL, MONARCH and VANTAGE. RJRT's other
cigarette brands, including BEST VALUE, MORE, NOW, STERLING, MAGNA and CENTURY,
are marketed to meet a variety of smoker preferences. All RJRT brands are
marketed in a variety of styles. A primary long-term objective of RJRT is to
increase earnings and cash flow through selective marketing investments in its
key brands and continual improvements in its cost structure and operating
efficiency. Marketing programs for full-price brands are designed to build brand
awareness and add value to the brands in order to retain current adult smokers
and attract adult smokers of competitive brands. RJRT believes it is essential
to compete in all segments of the cigarette market, and accordingly offers a
range of lower-priced brands intended to appeal to more cost-conscious adult
smokers. Based on data collected for RJRT by an independent market research
firm, RJRT had an overall share of retail consumer cigarette sales during 1993
of 29.8%, an increase of approximately one share point from 1992.
International Tobacco. Tobacco International operates in over 160 markets
around the world and is the second largest of two international cigarette
producers that have significant positions in the American Blend segment of the
international tobacco market. Tobacco International markets over 55 brands of
which WINSTON, CAMEL and SALEM, all American Blend cigarettes, are its
international leaders. Tobacco International has strong brand presence in
Western Europe and is well established in its other key markets in the Middle
East/Africa, Asia and Canada. Tobacco International is aggressively pursuing
development opportunities in Eastern Europe and the former Soviet Union.
Nabisco. Nabisco's domestic operations represent one of the largest packaged
food businesses in the world. Through its domestic divisions, Nabisco
manufactures and markets cookies, crackers, snack foods, hard and bite-size
candy, gum, nuts, hot cereals, margarine, pet foods, dry-mix dessert products
and other grocery products under established and well-known trademarks,
including OREO, CHIPS AHOY!, NEWTONS, SNACKWELL'S, RITZ, PREMIUM, LIFE SAVERS,
PLANTERS, A.1, GREY POUPON, MILK-BONE, ORTEGA, CREAM OF WHEAT, FLEISCHMANN'S and
BLUE BONNET. Nabisco Biscuit Company ("Nabisco Biscuit") is the largest
manufacturer and marketer in the United States cookie and cracker industry with
nine of the top ten selling brands, each of which had annual sales of over $100
million in 1993. Overall, in 1993, Nabisco Biscuit had a 37% share of the
domestic cookie industry sales and a 55% share of the domestic cracker industry
sales, in the aggregate more than three times the share of its closest
competitor. In 1992, Nabisco Biscuit became the leading manufacturer and
marketer of no fat/reduced fat cookies and crackers with the introduction of the
SNACKWELL'S line. In 1993, the SNACKWELL'S brand recorded net sales of $186
million, which made SNACKWELL'S the sixth largest cookie/cracker brand in the
United States. Based on 1993 net sales, LIFE SAVERS is the largest selling hard
roll candy in the United States, with an approximately 25.4% share of the hard
roll candy category, and PLANTERS nuts are the clear leader in the packaged nut
category, with a market share of more than five times that of its nearest
competitor.
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<PAGE>
Nabisco International is a leading producer of powdered dessert and drink
mixes, biscuits, baking powder and other grocery items, industrial yeast and
bakery ingredients in many of the 17 Latin American countries in which it has
operations. Nabisco International has significantly increased its presence in
Europe through the acquisition of Royal Brands S.A. in Spain and Royal Brands
Portugal.
RJRN was acquired in 1989 by an indirect, wholly owned subsidiary of
Holdings (the "Acquisition") at the direction of KKR. Prior to the Acquisition,
RJRN was a publicly held corporation. See "Significant Considerations--KKR
Ownership."
RECENT DEVELOPMENTS
Nabisco Initial Public Offering and Related Transactions. On October 28,
1994, Nabisco filed a registration statement with the Commission for the initial
public offering of 45 million shares of its Class A Common Stock (51.75 million
shares if the underwriters' over-allotment options are exercised in full). For
purposes of the filing, the initial offering price was estimated to be between
$23 and $26 per share. Upon completion of the proposed public offering, Holdings
would beneficially own 100% of Nabisco's outstanding Class B Common Stock, which
would represent approximately 82.6% of the economic interest in Nabisco (80.5%
if the underwriters' over-allotment options are exercised in full). Holders of
Class A Common Stock of Nabisco generally would have identical rights to holders
of Class B Common Stock except that holders of Class A Common Stock would be
entitled to one vote per share while holders of Class B Common Stock would be
entitled to ten votes per share on all matters submitted to a vote of
stockholders. The registration statement has not become effective and there can
be no assurance that such offering will be consummated.
The initial public offering of shares of Nabisco is part of a broader
proposed initiative of Holdings designed to reduce consolidated debt of Holdings
by approximately $1 billion and establish a separately traded common stock for
Nabisco. After completion of the proposed public offering, Holdings anticipates
commencing a quarterly cash dividend on its common stock of $.075 per share or
$.30 per share on an annualized basis. The proposed transactions are subject to
the approval of lenders under RJRN's bank credit facilities.
At the time of the proposed public offering, Nabisco is expected to have
approximately $4.2 billion of intercompany debt and approximately $1.3 billion
of borrowings under a short-term bank credit agreement. The net proceeds of the
proposed public offering will be used by Nabisco to repay a portion of the
borrowings under its bank facility.
As part of the initiative, RJRN has called for redemption several issues of
debt securities, including $1.5 billion of 10 1/2% Senior Notes due 1998,
approximately $374 million of 8 3/8% Sinking Fund Debentures due 2017, $100
million of 13 1/2% Subordinated Debentures due 2001 and approximately $25
million of 7 3/8% Sinking Fund Debentures due 2001, all of which are redeemable
with various redemption premiums. RJRN expects to fund these redemptions with
borrowings under its existing credit facilities, proceeds from Holdings' Series
C Preferred Stock offering completed on May 6, 1994 and internally generated
cash flow. See "Selected Pro Forma Consolidated Financial Data."
Upon completion of the proposed public offering of Nabisco, RJRN may seek to
restructure approximately $6 billion of its domestic publicly held debt which
currently limits the ability of Nabisco to incur long-term debt other than
intercompany debt. The restructuring, which would require consent of public
debtholders and lenders under bank facilities, may include one or more offers to
exchange Nabisco debt securities for a portion of such debt. The goal of the
exchange offers would be to permit Nabisco to establish long-term borrowing
capacity independent of its parent and to reduce its intercompany debt. No
assurance can be given that RJRN will seek to restructure its debt or that any
such restructuring will be consummated.
The Board of Directors of Holdings has adopted certain policies, which would
become effective upon the closing of the Nabisco initial public offering. One
policy would provide that Holdings would
100
<PAGE>
limit, until December 31, 1998, the aggregate amount of cash dividends on its
capital stock. Under this policy, during that period Holdings would not pay any
extraordinary cash dividends and would limit the amount of its cash dividends,
cash distributions and repurchases for cash of capital stock and subordinated
debt to an amount equal to the sum of $500 million plus (i) 65% of Holdings'
cumulative consolidated net income before extraordinary gains or losses and
restructuring charges and (ii) net cash proceeds of up to $250 million in any
year from the sale of capital stock of Holdings or its subsidiaries (other than
proceeds from the Nabisco initial public offering) to the extent used to repay,
purchase or redeem debt or preferred stock. Another policy would provide that
Holdings would not declare a dividend or distribution to its stockholders of the
shares of capital stock of a subsidiary before December 31, 1996. Another policy
sets forth the intention of Holdings that it would not make such a distribution
prior to December 31, 1998 if that distribution would cause the ratings of the
senior indebtedness of RJRN to be reduced from investment grade to
non-investment grade or if, after giving effect to such distribution, any
publicly held senior indebtedness of the distributed company would not be rated
investment grade. There is no assurance that any such distribution will take
place. Additional policies provide that an amount equal to the net cash proceeds
from any issuance and sale of equity by Holdings or from any sale outside the
ordinary course of business of material assets owned or used by subsidiaries in
the tobacco business, in each case before December 31, 1998, would be used
either to repay, purchase or redeem consolidated indebtedness or to acquire
properties, assets or businesses to be used in existing or new lines of business
and that an amount equal to the net cash proceeds of any secondary sale of
shares of Nabisco before December 31, 1998 would be used to repay, purchase or
redeem consolidated debt. No assurance can be given that Holdings will issue or
sell any equity or sell any material assets outside the ordinary course of
business.
Termination of Agreement in Principle Relating to Borden. On October 25,
1994, Holdings and KKR concluded that they were unable to reach a definitive
agreement for the transaction contemplated by their agreement in principle for
Holdings to acquire a minority interest in Borden, as had been previously
announced on September 12, 1994. The September 12, 1994 announcement indicated
that, following KKR's successful acquisition of Borden, Holdings would issue to
Borden approximately $500 million of newly issued common shares of Holdings for
newly issued shares of Borden common stock representing a 20% pro forma interest
in Borden and a warrant to acquire an additional 10% pro forma interest in
Borden. The inability to reach agreement resulted from various complexities
affecting the transaction, including certain accounting issues. In particular,
because Holdings would have been required to account for its investment in
Borden using the equity method (thereby being required to reflect a portion of
Borden's potentially low or volatile earnings in its financial statements) and
to amortize a substantial amount of goodwill resulting from the transaction, the
proposed transaction would likely have had a dilutive effect on Holdings'
near-term earnings. Attempts to resolve these issues by restructuring the
transaction were unsuccessful. Holdings could in the future explore a basis on
which it or its Nabisco subsidiary may acquire a minority equity interest in
Borden in exchange for common stock of Holdings. However, Holdings is not
currently engaged in any such negotiations, and there is no assurance that
Holdings will seek to pursue any such negotiations or that any such negotiations
will be successful.
101
<PAGE>
RJR NABISCO HOLDINGS CORP.
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data presented below as of September 30,
1994 and for the nine months ended September 30, 1994 and 1993 were derived from
the Holdings Consolidated Condensed Financial Statements incorporated herein by
reference. The selected consolidated financial data presented below as of
December 31, 1993 and 1992 and for each of the years in the three-year period
ended December 31, 1993 for Holdings were derived from the Holdings Consolidated
Financial Statements, incorporated herein by reference, which have been audited
by Deloitte & Touche LLP, independent auditors. In addition, the selected
consolidated financial data as of December 31, 1991, 1990 and 1989, for the year
ended December 31, 1990 and for the period from February 9, 1989 through
December 31, 1989 for Holdings and for the period from January 1, 1989 through
February 8, 1989 for RJRN were derived from the consolidated financial
statements of Holdings and RJRN as of December 31, 1991, 1990 and 1989, for the
year ended December 31, 1990 and for each of the periods within the one-year
period ended December 31, 1989, not presented or incorporated herein by
reference, which have been audited by Deloitte & Touche LLP, independent
auditors. The data should be read in conjunction with the Holdings Consolidated
Financial Statements and the Holdings Consolidated Condensed Financial
Statements incorporated herein by reference.
<TABLE><CAPTION>
HOLDINGS RJRN
------------------------------------------------------------------------ ----------
FOR THE NINE
MONTHS ENDED
SEPTEMBER 30, FOR THE YEARS ENDED DECEMBER 31,
(DOLLARS IN MILLIONS EXCEPT PER ----------------- -----------------------------------------------------------------
SHARE AMOUNTS) 1994 1993 1993 1992 1991 1990 1989
------- ------- ------- ------- ------- ------- -------------------------
2/9 TO 12/31 1/1 TO 2/8
------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
RESULTS OF OPERATIONS
Net sales......................... $11,322 $11,053 $15,104 $15,734 $14,989 $13,879 $ 12,114 $ 650
------- ------- ------- ------- ------- ------- ------ ----------
Cost of products sold............. 5,079 4,709 6,640 6,326 6,088 5,652 5,241 332
Selling, advertising,
administrative and
general expenses................ 3,789 4,182 5,731 5,788 5,358 4,801 4,276 295
Amortization of trademarks and
goodwill........................ 469 466 625 616 609 608 557 10
Restructuring expense............. -- -- 730 106 -- -- -- --
------- ------- ------- ------- ------- ------- ------ ----------
Operating income(1)............. 1,985 1,696 1,378 2,898 2,934 2,818 2,040 13
Interest and debt expense......... (828) (910) (1,209) (1,449) (2,217) (3,176) (3,340) (44)
Change in control costs........... -- -- -- -- -- -- -- (247)
Other income (expense), net....... (81) (4) (58) 7 (69) (44) 169 15
------- ------- ------- ------- ------- ------- ------ ----------
Income (loss) from continuing
operations before income
taxes.......................... 1,076 782 111 1,456 648 (402) (1,131) (263)
Provision (benefit) for income
taxes........................... 474 356 114 680 280 60 (156) (66)
------- ------- ------- ------- ------- ------- ------ ----------
Income (loss) from continuing
operations.................... 602 426 (3) 776 368 (462) (975) (197)
Income (loss) from operations of
discontinued businesses, net of
income taxes(2)................. -- -- -- -- -- -- (1) 24
Extraordinary item--(loss) gain on
early extinguishments of debt,
net of income
taxes........................... (145) (110) (142) (477) -- 33 -- --
------- ------- ------- ------- ------- ------- ------ ----------
Net income (loss)................. 457 316 (145) 299 368 (429) (976) (173)
Preferred stock dividends......... 98 33 68 31 173 50 -- 4
------- ------- ------- ------- ------- ------- ------ ----------
Net income (loss) applicable to
common stock.................... $ 359 $ 283 $ (213) $ 268 $ 195 $ (479) $ (976) $ (177)
------- ------- ------- ------- ------- ------- ------ ----------
------- ------- ------- ------- ------- ------- ------ ----------
PER SHARE DATA
Income (loss) from continuing
operations
per common and common equivalent
share........................... $ .33 $ .29 $ (.05) $ .55 $ .22 $ (1.19) $ (3.21) $ (.89)
Dividends per share of Series A
Preferred Stock(3).............. 2.51 2.51 3.34 3.34 .49 -- -- --
Dividends per share of Series C
Preferred Stock(3).............. 2.44 -- -- -- -- -- -- --
BALANCE SHEET DATA
(AT END OF PERIODS)
Working capital................... 358 -- $ 202 $ 730 $ 165 $(1,089) $ 106 --
Total assets...................... 31,851 -- 31,295 32,041 32,131 32,915 36,412 --
Total debt........................ 11,205 -- 12,448 14,218 14,531 18,918 25,159 --
Redeemable preferred stock(4)..... -- -- -- -- -- 1,795 -- --
Stockholders' equity(5)........... 10,957 -- 9,070 8,376 8,419 2,494 1,237 --
Book value per common share after
conversion of Series A Preferred
Stock and Series C Preferred
Stock........................... 5.94 -- 5.77 -- -- -- -- --
</TABLE>
(Footnotes on following page)
102
<PAGE>
(Footnotes for preceding page)
- ------------
(1) The 1992 amount includes a gain of $98 million on the sale of the
ready-to-eat cold cereal business.
(2) The 1989 amount for Holdings includes $237 million of interest expense
allocated to discontinued operations.
(3) On November 8, 1991, Holdings issued 52,500,000 shares of Series A Preferred
Stock and sold 210,000,000 Series A Depositary Shares. On May 6, 1994,
Holdings issued 26,675,000 shares of Series C Preferred Stock and sold
266,750,000 Series C Depositary Shares. Because Series A Preferred Stock and
Series C Preferred Stock mandatorily convert into Holdings Common Stock,
dividends on such shares are reported similar to common equity dividends.
(4) On December 16, 1991, an amendment to the Amended and Restated Certificate
of Incorporation of Holdings was filed which deleted the provisions
providing for the mandatory redemption of the redeemable preferred stock of
Holdings on November 1, 2015. Accordingly, such securities were presented as
a component of Holdings' stockholders' equity as of December 31, 1992 and
1991. Such securities were redeemed on December 6, 1993.
(5) Holdings' stockholders' equity at September 30, 1994 and December 31 of each
year from 1993 to 1989 includes non-cash expenses related to accumulated
trademark and goodwill amortization of $3.484 billion, $3.015 billion,
$2.390 billion, $1.774 billion, $1.165 billion and $.557 billion,
respectively.
See Notes to Holdings Consolidated Financial Statements and Holdings Unaudited
Quarterly Consolidated Condensed Financial Statements incorporated herein by
reference.
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<PAGE>
RJR NABISCO HOLDINGS CORP.
SELECTED PRO FORMA CONSOLIDATED FINANCIAL DATA
The Holdings Pro Forma Financial Statements reflect the effects of
adjustments to the historical results of operations and financial condition of
Holdings. The Holdings Pro Forma Financial Statements should be read in
conjunction with the Holdings Consolidated Financial Statements, the Holdings
Consolidated Condensed Financial Statements and other financial information set
forth or incorporated by reference herein.
The Holdings pro forma consolidated condensed statements of income excluding
extraordinary items related to the loss on early extinguishments of debt, net of
income taxes, give effect to the following transactions and events as if they
occurred as of January 1, 1993: (i) borrowings of $1.3 billion under the Nabisco
Credit Agreement and the application of funds provided through such borrowings
to repay a portion of the borrowings under the 1991 Credit Agreement; (ii) the
sale and issuance of 45,000,000 shares of Nabisco Class A Common Stock in the
Nabisco Common Stock Offerings, the resulting reduction in Holdings'
proportionate interest in Nabisco and the application of the estimated net
proceeds of approximately $1,047 million (assuming an initial public offering
price of $24.50 per share) therefrom to repay a portion of the borrowings under
the Nabisco Credit Agreement; (iii) the assumed payment of quarterly dividends
on Holdings' Common Stock of $.075 per share and the increased level of net
indebtedness assumed to be outstanding had such dividend payments been made;
(iv) the redemption of $1.5 billion of the 10 1/2% Senior Notes due 1998,
approximately $374 million of the 8 3/8% Debentures due 2017, $100 million of 13
1/2% Subordinated Debentures due 2001 and approximately $25 million of the 7
3/8% Debentures due 2001 through borrowings under the 1991 Credit Agreement and
proceeds from Holdings' Series C Preferred Stock offering completed on May 6,
1994; and (v) the tax effect of the foregoing. Holdings' pro forma consolidated
condensed balance sheet gives effect to the pro forma transactions and events
described in clauses (i), (ii) and (iv) above, as if they occurred on September
30, 1994.
Management believes the assumptions used provide a reasonable basis on which
to present the pro forma financial data. THE HOLDINGS PRO FORMA FINANCIAL
STATEMENTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE
CONSTRUED TO BE INDICATIVE OF HOLDINGS' RESULTS OF OPERATIONS OR FINANCIAL
POSITION HAD THE TRANSACTIONS AND EVENTS DESCRIBED ABOVE BEEN CONSUMMATED ON THE
DATES ASSUMED AND DO NOT PROJECT HOLDINGS' RESULTS OF OPERATIONS OR FINANCIAL
POSITION FOR ANY FUTURE DATE OR PERIOD. NABISCO HAS FILED A REGISTRATION
STATEMENT WITH THE COMMISSION WITH RESPECT TO A PROPOSED INITIAL PUBLIC OFFERING
OF 45,000,000 SHARES OF ITS CLASS A COMMON STOCK, BUT SUCH REGISTRATION
STATEMENT HAS NOT BEEN DECLARED EFFECTIVE BY THE COMMISSION. NO ASSURANCE CAN BE
GIVEN THAT SUCH OFFERING WILL BE CONSUMMATED.
104
<PAGE>
RJR NABISCO HOLDINGS CORP.
PRO FORMA CONSOLIDATED CONDENSED STATEMENT OF INCOME
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1994
(DOLLARS IN MILLIONS EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
HISTORICAL ADJUSTMENTS PRO FORMA
---------- ----------- ---------
<S> <C> <C> <C>
Net sales...................................................... $ 11,322 $11,322
---------- ---------
Cost and expenses:
Cost of products sold.......................................... 5,079 5,079
Selling, advertising, administrative and general expenses...... 3,789 3,789
Amortization of trademarks and goodwill........................ 469 469
---------- ---------
Operating income............................................. 1,985 1,985
Interest and debt expense....................................... (828) $ 112(a) (716)
Other income (expense), net..................................... (81) (81)
---------- --- ---------
Income before income taxes................................... 1,076 112 1,188
Provision for income taxes...................................... 474 39(b) 513
---------- --- ---------
Income before minority interest in income of Nabisco......... 602 73 675
Minority interest in income of Nabisco.......................... -- (32)(c) (32)
---------- --- ---------
Net income................................................... 602 41 643
Less preferred stock dividends.................................. 98 98
---------- --- ---------
Net income applicable to Common Stock........................ $ 504 $ 41 $ 545
---------- --- ---------
---------- --- ---------
Per Share Data
Net income per common and common equivalent.................. $ .33 $ .36
Dividends per share of Common Stock.......................... -- .225
Dividends per share of Series A Preferred Stock.............. 2.505 2.505
Dividends per share of Series C Preferred Stock.............. 2.438 2.438
</TABLE>
See Notes to Pro Forma Consolidated Condensed Statements of Income.
105
<PAGE>
RJR NABISCO HOLDINGS CORP.
PRO FORMA CONSOLIDATED CONDENSED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1993
(DOLLARS IN MILLIONS EXCEPT PER SHARE AMOUNTS)
<TABLE><CAPTION>
HISTORICAL ADJUSTMENTS PRO FORMA
---------- ----------- ---------
<S> <C> <C> <C>
Net sales....................................................... $ 15,104 $15,104
---------- ---------
Cost and expenses:
Cost of products sold.......................................... 6,640 6,640
Selling, advertising, administrative and general expenses...... 5,731 5,731
Amortization of trademarks and goodwill........................ 625 625
Restructuring expense.......................................... 730 730
---------- ---------
Operating income............................................. 1,378 1,378
Interest and debt expense....................................... (1,209) $ 161(a) (1,048)
Other income (expense), net..................................... (58) (58)
---------- --- ---------
Income before income taxes................................... 111 161 272
Provision for income taxes...................................... 114 56(b) 170
---------- --- ---------
Income (loss) before minority interest in income of
Nabisco......................................................... (3) 105 102
Minority interest in income of Nabisco.......................... -- (29)(c) (29)
---------- --- ---------
Net income (loss)............................................ (3) 76 73
Less preferred stock dividends.................................. 68 68
---------- --- ---------
Net income (loss) applicable to Common Stock................. $ (71) $ 76 $ 5
---------- --- ---------
---------- --- ---------
Per Share Data
Net income (loss) per common and common equivalent........... $ (.05) $ .00
Dividends per share of Common Stock.......................... -- .30
Dividends per share of Series A Preferred Stock.............. 3.34 3.34
</TABLE>
See Notes to Pro Forma Consolidated Condensed Statements of Income.
106
<PAGE>
RJR NABISCO HOLDINGS CORP.
NOTES TO PRO FORMA CONSOLIDATED CONDENSED STATEMENTS OF INCOME
The following is a summary of the pro forma adjustments reflected in the Pro
Forma Consolidated Condensed Statements of Income:
(a) Adjust historical interest and debt expense, as applicable, based
upon (i) borrowings of $1.3 billion under the Nabisco Credit Agreement and
the application of funds provided through such borrowings to repay a portion
of the borrowings under the 1991 Credit Agreement; (ii) the sale and
issuance of 45,000,000 shares of Nabisco Class A Common Stock in the Nabisco
Common Stock Offerings, the resulting reduction in Holdings' proportionate
interest in Nabisco and the application of the estimated net proceeds of
approximately $1,047 million (assuming an initial public offering price of
$24.50 per share) therefrom to repay a portion of the borrowings under the
Nabisco Credit Agreement; (iii) the assumed payment of quarterly dividends
on Holdings' Common Stock of $.075 per share and the increased level of net
indebtedness assumed to be outstanding had such dividend payments been made;
(iv) the redemption of $1.5 billion of the 10 1/2% Senior Notes due 1998,
approximately $374 million of the 8 3/8% Debentures due 2017, $100 million
of 13 1/2% Subordinated Debentures due 2001 and approximately $25 million of
the 7 3/8% Debentures due 2001 through borrowings under the 1991 Credit
Agreement and proceeds from Holdings' Series C Preferred Stock offering
completed on May 6, 1994.
(b) Recognize income taxes on the pro forma adjustments at the U.S.
statutory rate of 35%.
(c) Record the reduction of Holdings' proportionate interest in Nabisco
resulting from the Nabisco Common Stock Offerings.
107
<PAGE>
RJR NABISCO HOLDINGS CORP.
PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET
SEPTEMBER 30, 1994
(DOLLARS IN MILLIONS)
<TABLE><CAPTION>
PRO FORMA
HISTORICAL ADJUSTMENTS AFTER ADJUSTMENTS
---------- ----------- -----------------
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents............................ $ 647 $ (399) (a) $ 248
Accounts and notes receivable, net................... 1,107 1,107
Inventories.......................................... 2,504 2,504
Prepaid expenses and excise taxes.................... 414 414
---------- ----------- -------
TOTAL CURRENT ASSETS............................. 4,672 (399) 4,273
---------- ----------- -------
Property, plant and equipment, at cost................. 7,710 7,710
Less accumulated depreciation.......................... (2,281) (2,281)
---------- -------
Net property, plant and equipment.................... 5,429 5,429
---------- -------
Trademarks, net........................................ 8,573 8,573
Goodwill, net.......................................... 12,761 12,761
Other assets and deferred charges...................... 416 (13)(a) 403
---------- ----------- -------
$ 31,851 $ (412) $31,439
---------- ----------- -------
---------- ----------- -------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable........................................ $ 229 $ 229
Accounts payable..................................... 469 469
Accrued liabilities.................................. 2,646 (83)(a) 2,563
Current maturities of long-term debt................. 613 613
Income taxes accrued................................. 357 $ (66)(a) 291
---------- ----------- -------
TOTAL CURRENT LIABILITIES........................ 4,314 (149) 4,165
---------- ----------- -------
Long-term debt (less current maturities)............... 10,363 (140)(a) 9,176
-- (b)
(1,300)(c)
253 (c)
Other noncurrent liabilities........................... 2,534 654 (c) 3,188
Deferred income taxes.................................. 3,683 3,683
Stockholders' equity:
ESOP convertible preferred stock..................... 247 247
Series A convertible preferred stock................. 2 2
Series B preferred stock............................. 1,250 1,250
Series C convertible preferred stock................. 3 3
Common Stock......................................... 11 11
Paid-in capital...................................... 10,214 393(c) 10,607
Retained earnings (accumulated deficit).............. (427) (123)(a) (550)
Receivable from ESOP................................. (190) (190)
Other stockholders' equity........................... (153) (153)
---------- ----------- -------
TOTAL STOCKHOLDERS' EQUITY....................... 10,957 270 11,227
---------- ----------- -------
$ 31,851 $ (412) $31,439
---------- ----------- -------
---------- ----------- -------
</TABLE>
See Notes to Pro Forma Consolidated Condensed Balance Sheet.
108
<PAGE>
RJR NABISCO HOLDINGS CORP.
NOTES TO PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET
The following is a summary of the pro forma adjustments reflected in the Pro
Forma Consolidated Condensed Balance Sheet:
(a) The redemption of $1.5 billion of the 10 1/2% Senior Notes dues
1998, approximately $374 million of the 8 3/8% Debentures due 2017, $100
million of the 13 1/2% Subordinated Debentures due 2001 and approximately
$25 million of the 7 3/8% Debentures due 2001, including the payment of
accrued interest on such notes and debentures in the aggregate amount of $83
million, through borrowings under the 1991 Credit Agreement and proceeds
from Holdings' Series C Preferred Stock offering completed on May 6, 1994,
the write off of related unamortized financing costs of $13 million and the
resulting extraordinary loss of $123 million net of related income taxes of
$66 million.
(b) Borrowings of $1.3 billion under the Nabisco Credit Agreement and
the application of funds provided through such borrowings to repay a portion
of the borrowings under the 1991 Credit Agreement.
(c) The sale and issuance of 45,000,000 shares of Nabisco Class A Common
Stock in the Nabisco Common Stock Offerings, the resulting reduction in
Holdings' proportionate interest in Nabisco and the application of the
estimated net proceeds of approximately $1,047 million (assuming an initial
public offering price of $24.50 per share) therefrom to repay a portion of
the borrowings under the Nabisco Credit Agreement.
109
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the beneficial
ownership of Holdings Common Stock as of October 31, 1994 by (a) persons known
to Holdings to be the beneficial owners of more than five percent of the
outstanding Holdings Common Stock, (b) each director of Holdings, (c) each of
the five most highly compensated executive officers of Holdings during the 1993
fiscal year of Holdings, (d) one individual who served as Chief Executive
Officer of Holdings during the 1993 fiscal year of Holdings and (e) all
directors and executive officers of Holdings as a group. The following table
assumes: (i) the mandatory conversion of Holdings' Series A Preferred Stock,
(ii) all outstanding options for Borden Common Stock are exercised, (iii) all
outstanding shares of Borden's Series B Preferred Stock are converted into
Borden Common Stock and (iv) Borden Shares equal to the Minimum Condition are
exchanged in the Exchange Offer at an Exchange Ratio of 1.78125 to 1. If 100% of
the Borden Shares are exchanged at an Exchange Ratio of 2.375 to 1, the
Beneficial Ownership After Exchange Offer and Mandatory Conversion for KKR
Associates shown in the table below would be 203,073,859 shares and 14.95%
(11.78% on a fully diluted basis), respectively. Information concerning Borden
shares and options outstanding is based on information available on September
30, 1994. Except as otherwise noted, the persons named in the table below have
sole voting and investment power with respect to all shares shown as
beneficially owned by them.
<TABLE><CAPTION>
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
PRIOR TO EXCHANGE AFTER EXCHANGE OFFER
OFFER AND AND
NAME OF BENEFICIAL OWNER MANDATORY CONVERSION MANDATORY CONVERSION
- ------------------------------------------------- ---------------------- ----------------------
SHARES PERCENT SHARES PERCENT
----------- ------- ----------- -------
<S> <C> <C> <C> <C>
KKR Associates(1)................................ 556,766,236 48.48% 448,005,830 32.98%
9 West 57th Street
New York, New York 10019
FMR Corp.(2)..................................... 120,887,980 10.21 120,883,980 8.90
82 Devonshire Street
Boston, Massachusetts 02109
John T. Chain, Jr.(3)............................ 40,000 * 40,000 *
John L. Clendenin................................ 2,266 * 2,266 *
Louis V. Gerstner, Jr.(4)........................ 2,114,213 .18 2,114,213 .16
James H. Greene, Jr.(1).......................... 27,301 * 27,301 *
H. John Greeniaus(3)............................. 2,234,093 .19 2,234,093 .16
Charles M. Harper(3)............................. 2,810,490 .24 2,810,490 .21
James W. Johnston(3)(5).......................... 2,174,455 .19 2,174,455 .16
Henry R. Kravis(1)............................... 289,189 * 289,189 *
John G. Medlin, Jr............................... 34,333 * 34,333 *
Paul E. Raether(1)............................... 94,185 * 94,185 *
Lawrence R. Ricciardi(4)(6)...................... 1,435,339 .12 1,435,339 .11
Rozanne L. Ridgway(3)............................ 30,000 * 30,000 *
Clifton S. Robbins(1)............................ 21,614 * 21,614 *
George R. Roberts(1)............................. 289,189 * 289,189 *
Scott M. Stuart(1)............................... 14,106 * 14,106 *
G. Richard Thoman(3)............................. -- -- -- --
Michael T. Tokarz(1)............................. 29,577 * 29,577 *
Karl M. von der Heyden(3)........................ 1,921,315 .17 1,921,315 .14
All directors and executive officers of Holdings
as a group (other than as set forth above in
relation to KKR Associates)(1)(3).............. 19,029,327 1.64% 19,029,327 1.39%
</TABLE>
- ------------
* Less than 0.1%.
(1) Shares of Holdings Common Stock shown as beneficially owned by KKR
Associates include shares owned of record by the limited partnerships of
which KKR Associates is the sole general partner and as to which it
possesses sole voting and investment power, including the Partnership and,
after giving effect to the Exchange Offer, any shares of Holdings Common
Stock held by Borden upon exercise of the Option and indirectly controlled
by KKR Associates. KKR Associates is a limited partnership of which Messrs.
Greene, Kravis, Raether, Roberts and Tokarz, all directors of Holdings, and
Saul A. Fox, Robert I. MacDonnell and Michael N. Michelson are the general
partners. Such persons may be deemed to share beneficial ownership of the
shares shown as owned
(Footnotes continued on following page)
110
<PAGE>
(Footnotes continued from preceding page)
by KKR Associates. The foregoing persons disclaim beneficial ownership of
any such shares. Messrs. Robbins and Stuart, both directors of Holdings, are
limited partners of KKR Associates.
(2) According to the Schedule 13G dated October 7, 1994 jointly filed by FMR
Corp. and Edward C. Johnson 3d, Chairman of FMR Corp. and a member of a
controlling group with respect to FMR Corp., the 120,887,980 shares of
Holdings Common Stock shown as beneficially owned by FMR Corp. and Mr.
Johnson include (i) 112,056,000 shares (including 33,841,300 shares issuable
within 60 days upon the Mandatory Conversion) beneficially owned by Fidelity
Management & Research Company, a registered investment adviser and wholly
owned subsidiary of FMR Corp., as a result of acting as investment adviser
to several registered investment companies that own such shares (the
"Fidelity Funds") and (ii) 8,831,980 shares (including 1,914,500 shares
issuable within 60 days upon the Mandatory Conversion) beneficially owned by
Fidelity Management Trust Company, a bank and wholly owned subsidiary of FMR
Corp., as a result of serving as investment manager of institutional
accounts. The 8,938,950 shares of Series A Preferred Stock reflected in the
number of shares of Holdings Common Stock shown as beneficially owned
represented 17.02% of the outstanding Series A Preferred Stock as of October
31, 1994. According to the Schedule 13G, FMR Corp. and Mr. Johnson also
beneficially own 580,150 shares of Series C Preferred Stock as a result of
(i) the Fidelity Funds owning 4,383,100 Series C Depositary Shares and (ii)
such investment accounts owning 1,418,400 Series C Depositary Shares.
According to the Schedule 13G, (a) FMR Corp. and Mr. Johnson each has sole
investment power, but neither has sole voting power, over the shares owned
by the Fidelity Funds and (b) FMR Corp. has sole investment power over all
of, has sole voting power over certain of, and has no voting power over the
remainder of, the shares owned by the institutional accounts.
(3) For purposes of this table, a person or group of persons is deemed to be the
"beneficial owner" of any shares that such person has the right to acquire
within 60 days. For purposes of computing the percentage of outstanding
shares held by each person or group of persons named above on a given date,
any security that such person or persons has the right to acquire within 60
days is deemed to be outstanding, but is not deemed to be outstanding for
the purpose of computing the percentage ownership of any other person. The
number of shares beneficially owned includes (i) 30,000 shares subject to
currently exercisable options granted to each of Mr. Chain and Ms. Ridgway;
2,187,500 shares subject to currently exercisable options granted to Mr.
Harper; 1,602,600 shares subject to currently exercisable options granted to
each of Messrs. Greeniaus and Johnston; 1,069,799 shares subject to
currently exercisable options granted to Mr. Ricciardi; and 11,918,850
shares subject to currently exercisable options granted to all directors and
executive officers as a group; and (ii) 768, 1,308, 1,317, 1,315, 1,315 and
19,486 shares of Holdings Common Stock currently issuable on conversion of a
like number of shares of ESOP Preferred Stock (as defined below) owned by,
respectively, Messrs. Harper, Greeniaus, Johnston, Ricciardi, von der Heyden
and all directors and executive officers as a group.
(4) The outstanding shares of Holdings Common Stock shown as beneficially owned
by Mr. Gerstner include 103,600 shares held in trust for the benefit of Mr.
Gerstner's children, as to which Mr. Gerstner disclaims beneficial
ownership.
(5) The outstanding shares of Holdings Common Stock shown as beneficially owned
by Mr. Johnston include 60,000 shares held in trust for the benefit of Mr.
Johnston's children, as to which Mr. Johnston disclaims beneficial
ownership.
(6) The outstanding shares of Holdings Common Stock shown as beneficially owned
by Mr. Ricciardi include 60,000 shares held in trust for the benefit of Mr.
Ricciardi's children, as to which Mr. Ricciardi disclaims beneficial
ownership.
As of October 31, 1994, Wachovia Bank of North Carolina, N.A. ("Wachovia"),
Box 3875, Trust Operations, Winston-Salem, North Carolina 27102, beneficially
owned 15,490,964 shares of ESOP Convertible Preferred Stock of Holdings ("ESOP
Preferred Stock"), representing 100% of the issued and outstanding ESOP
Preferred Stock. Wachovia holds such shares in its capacity as Trustee of the
RJRN Defined Contribution Master Trust. Under the terms of the Master Trust,
Wachovia is required to vote shares of ESOP Preferred Stock allocated to
participants' accounts in accordance with instructions received from such
participants and to vote allocated shares of ESOP Preferred Stock for which it
has not received instructions and unallocated shares in the same ratio as shares
with respect to which instructions have been received. Wachovia has no
investment power with respect to shares of ESOP Preferred Stock.
111
<PAGE>
BORDEN, INC.
Borden is engaged primarily in manufacturing, processing, purchasing and
distributing a broad range of products through three operating divisions: North
American Foods, International Foods and Packaging and Industrial Products. North
American Foods is comprised of niche grocery, pasta and sauce, and dairy
products, while International Foods includes international milk powder, European
bakery products and several European grocery and pasta businesses. Packaging and
Industrial Products includes primarily wallcoverings, adhesives and resins, and
plastic films and packaging.
112
<PAGE>
BORDEN, INC.
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data presented below for the nine months
ended September 30, 1994 and 1993 were derived from unaudited quarterly
consolidated financial statements contained in Borden's Quarterly Report on Form
10-Q at and for the nine months ended September 30, 1994 and incorporated herein
by reference. The selected consolidated financial data presented below for each
of the years in the three-year period ended December 31, 1993 for Borden were
derived from the consolidated financial statements contained in Borden's Annual
Report on Form 10-K for the year ended December 31, 1993 and incorporated by
reference herein, which have been audited by Price Waterhouse LLP, independent
accountants. The unaudited quarterly consolidated financial statements include
all adjustments which are, in the opinion of Borden management, necessary for a
fair statement of the interim results. Results for interim periods are not
necessarily indicative of results to be expected for the full year. The data
below should be read in conjunction with the audited consolidated financial
statements and unaudited quarterly consolidated condensed financial statements
of Borden, and the related notes thereto, incorporated by reference herein.
<TABLE><CAPTION>
FOR THE NINE MONTHS
ENDED SEPTEMBER 30, FOR THE YEARS ENDED DECEMBER 31,
-------------------- ----------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
-------- -------- -------- -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
REVENUE
Net sales........................................ $ 4,082 $ 4,037 $ 5,506 $ 5,872 $ 5,924 $ 6,273 $ 6,391
COST AND EXPENSES
Cost of goods sold............................... 3,075 2,967 4,078 4,302 4,269 4,644 4,859
Marketing, general and administrative expenses... 859 803 1,224 1,163 1,024 1,020 902
Restructuring charges(1)......................... (40) -- 115 298 67 -- 463
Interest expense................................. 92 93 125 116 167 156 129
Equity in income of affiliates................... (9) (10) (16) (19) (24) (23) (17)
Minority interest................................ 29 30 41 40 3 3 1
Other (income) and expense, net.................. 104 29 23 (4) (13) 12 11
Income taxes..................................... 27 42 (27) 14 151 169 76
-------- -------- -------- -------- -------- -------- --------
4,137 3,954 5,563 5,910 5,644 5,981 6,424
-------- -------- -------- -------- -------- -------- --------
EARNINGS
(Loss) income from continuing operations......... (55) 83 (57) (38) 280 292 (33)
Discontinued operations:(1)(2)
(Loss) income from operations.................. -- (46) (66) (86) 15 28 16
Loss on disposal............................... (59) -- (490) -- -- -- --
-------- -------- -------- -------- -------- -------- --------
(Loss) income before extraordinary item and
cumulative effect of
accounting changes............................. (114) 36 (613) (124) 295 320 (17)
Extraordinary loss on early retirement of debt... -- -- -- (11) -- -- --
Cumulative effect of change in accounting for:
Postemployment benefits........................ -- (18) (18) -- -- -- --
Postretirement benefits other than pensions.... -- -- -- (189) -- -- --
Income taxes................................... -- -- -- (40) -- -- --
-------- -------- -------- -------- -------- -------- --------
Net (loss) income................................ $ (114) $ 18 $ (631) $ (364) $ 295 $ 320 $ (17)
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
SHARE DATA
(Loss) income from continuing operations......... $ (.39) $ .59 $ (.40) $ (.27) $ 1.90 $ 1.97 $ (0.22)
Discontinued operations:
(Loss) income from operations.................. -- (.33) (.47) (.60) .10 0.19 0.11
Loss on disposal............................... (.41) -- (3.47) -- -- -- --
-------- -------- -------- -------- -------- -------- --------
(Loss) income before extraordinary item and
cumulative effect of
accounting changes............................. (.80) .26 (4.34) (.87) 2.00 2.16 (0.11)
Extraordinary loss on early retirement of debt... -- -- -- (.07) -- -- --
Cumulative effect of change in accounting for:
Postemployment benefits........................ -- (.13) (.13) -- -- -- --
Postretirement benefits other than pensions.... -- -- -- (1.32) -- -- --
Income taxes................................... -- -- -- (.28) -- -- --
-------- -------- -------- -------- -------- -------- --------
Net (loss) income per common share............... $ (.80) $ .13 $ (4.47) $ (2.54) $ 2.00 $ 2.16 $ (0.11)
-------- -------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- -------- --------
Cash dividends paid per common share............. $ .23 $ .75 $ .90 $ 1.185 $ 1.12 $ 1.035 $ 0.90
Average number of common shares outstanding
during the period.............................. 141.5 140.9 141.0 143.4 147.6 147.9 148.2
</TABLE>
<TABLE><CAPTION>
AT DECEMBER 31,
AT SEPTEMBER 30, ----------------------------------------------
1994 1993 1992 1991 1990 1989
---------------- ------ ------ ------ ------ ------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA
Current assets....................................... $1,370 $1,290 $1,928 $1,921 $2,026 $2,011
Investments and other assets......................... 561 443 352 319 237 160
Property and equipment............................... 1,321 1,337 1,788 1,904 1,707 1,441
Intangibles.......................................... 762 802 1,178 1,317 1,314 1,213
Total assets......................................... 4,014 3,872 5,246 5,461 5,284 4,825
Current liabilities.................................. 1,418 1,372 1,808 1,414 1,847 1,466
Long-term debt....................................... 1,416 1,241 1,330 1,346 1,340 1,441
Other liabilities (including long-term debt)......... 2,457 2,254 2,312 2,072 1,595 1,670
Shareholders' equity................................. 140 246 1,126 1,975 1,842 1,689
Book value per common share.......................... 0.99 1.74 8.01 13.39 12.50 11.41
</TABLE>
(Footnotes on following page)
113
<PAGE>
(Footnotes for preceding page)
- ------------
(1) 1993 includes a pretax charge of $752.3 million for business divestitures
and restructuring. 1992, 1991 and 1989 include pretax restructuring charges
of $377.2 million, $71.6 million and $570.7 million, respectively.
(2) Financial data for the years prior to 1993 were restated in 1993 to reflect
discontinued operations.
See Notes to Borden's Consolidated Financial Statements and Borden's Unaudited
Quarterly Consolidated Financial Statements incorporated herein by reference.
114
<PAGE>
THE PURCHASER AND THE COMMON STOCK PARTNERSHIP
The Purchaser, a New Jersey corporation and a subsidiary of the Partnership,
was organized in connection with the Transactions and has not carried on any
activities to date other than those incident to its formation and the
Transactions. Prior to the consummation of the Exchange Offer, KKR Partners II,
L.P. will become a holder of shares of common stock of the Purchaser. Each of
the Common Stock Partnerships is a Delaware limited partnership, whose general
partner is KKR Associates, an affiliate of KKR. The principal assets of each of
the Common Stock Partnerships consist of investments in various entities,
including investments in Holdings. The name, business address, principal
occupation or employment, and five year employment history of each of the
directors and executive officers of the Purchaser and of KKR Associates, the
general partner of each of the Common Stock Partnerships, and certain other
information, are set forth in Schedule I to this Offering Circular/Prospectus.
DESCRIPTION OF HOLDINGS CAPITAL STOCK
The authorized capital stock of Holdings consists of 2,200,000,000 shares of
Holdings Common Stock and 150,000,000 shares of preferred stock, par value $.01
per share (the "Preferred Stock"). As of October 31, 1994, 1,148,477,506 shares
of Holdings Common Stock were outstanding. As of such date, 94,664,699 shares of
Preferred Stock were outstanding, of which 52,500,000 shares were Series A
Preferred Stock, 50,000 shares were Series B Cumulative Preferred Stock (the
"Series B Preferred Stock"), 26,675,000 shares were Series C Preferred
Conversion Stock (the "Series C Preferred Stock") and 15,490,964 shares were
ESOP Preferred Stock.
The following is a description of the terms of the capital stock of
Holdings. This description does not purport to be complete and is qualified in
its entirety by reference to Holdings' Amended and Restated Certificate of
Incorporation, as amended (the "Holdings Certificate of Incorporation"), which
has been incorporated by reference as an exhibit to the Registration Statement
of which this Offering Circular/Prospectus is a part and is incorporated by
reference herein. Holdings believes that the summaries of the Holdings
Certificate of Incorporation set forth below are accurate and complete summaries
of the material terms of such instruments.
COMMON STOCK
Each share of Holdings Common Stock is entitled to one vote at all meetings
of stockholders of Holdings for the election of directors of Holdings and on all
other matters. Dividends may be paid to the holders of Holdings Common Stock
when, as and if declared by the board of directors of Holdings out of funds
legally available therefor. The Holdings Common Stock has no preemptive or
similar rights. Holders of Holdings Common Stock are not liable to further call
or assessment. Upon liquidation, dissolution or winding up of the affairs of
Holdings, any assets remaining after provision for payment of creditors (and any
liquidation preference of any outstanding preferred stock) would be distributed
pro rata among holders of the Holdings Common Stock. Holdings has never paid any
cash dividends on shares of the Holdings Common Stock. Holdings' and RJRN's
credit agreement, dated as of December 1, 1991, as amended (the "1991 Credit
Agreement") and Holdings' and RJRN's credit agreement dated as of April 5, 1993,
the amended (the "1993 Credit Agreement," and together with the 1991 Credit
Agreement, the "Credit Agreements") restrict cash dividends and other
distributions on Holdings Common Stock. The indenture relating to subordinated
debentures (the "RJRN Subordinated Debentures") of RJRN (the "RJRN Subordinated
Debenture Indenture") and the indenture relating to certain senior notes (the
"Senior Notes") of RJRN (the "Senior Note Indenture") restrict dividends or
distributions to Holdings from RJRN and its subsidiaries which could otherwise
be used for the payment of cash dividends on the Holdings Common Stock by
Holdings. The timing, amount and form of future dividends, if any, will depend,
among other things, upon the effect of applicable restrictions on the payment of
dividends, results of operations, financial condition, cash requirements,
prospects and other factors deemed relevant by the board of directors of
Holdings. See "Certain
115
<PAGE>
Significant Considerations--Holding Company Structure" and "Description of
Holdings Capital Stock--Contractual Restrictions on Payment of Dividends."
The Holdings Common Stock is listed on the NYSE.
First Chicago Trust Company of New York is the registrar and transfer agent
for the Holdings Common Stock.
PREFERRED STOCK
Series A Preferred Stock. Each share of Series A Preferred Stock was
entitled to receive, when, as and if declared by the board of directors of
Holdings, out of funds legally available therefor, cumulative cash dividends at
a rate of $3.34 per annum, payable quarterly in arrears. On November 15, 1994
each share of Series A Preferred Stock mandatorily converted into four shares of
Holdings Common Stock (the "Series A Common Equivalent Rate").
Holders of Series A Preferred Stock had the right, voting together with the
holders of Holdings Common Stock (and any other class of capital stock of
Holdings entitled to vote together with the Holdings Common Stock, including the
Series C Preferred Stock and ESOP Preferred Stock) as one class, to vote in the
election of directors and upon each other matter coming before any meeting of
the stockholders on the basis initially of one vote (equal to one-fourth of the
Series A Common Equivalent Rate) for each Series A Preferred Stock held;
provided that the holders of Series A Preferred Stock are not entitled to vote
on any increase or decrease in the number of authorized shares of any class or
classes of stock. In the event dividends on all series of Preferred Stock,
including the Series A Preferred Stock, were in arrears and unpaid for six
quarterly periods, the holders of Series A Preferred Stock, together with the
holders of all other outstanding series of Preferred Stock entitled to vote
thereon, were entitled to elect two additional directors to the board of
directors of Holdings until all cumulative dividends on all series of Preferred
Stock, have been paid or declared and set aside for payment; provided that such
directors may not have exceeded 25% of the total board of directors or be less
than one director. While such holders were entitled to elect two directors, they
were not entitled to participate with the holders of Holdings Common Stock in
the election of any other directors, but would have continued to vote with the
holders of Holdings Common Stock upon each other matter coming before any
meeting of the stockholders.
Upon any voluntary or involuntary liquidation, dissolution or winding up of
Holdings, holders of Series A Preferred Stock were entitled to receive $40.50
per share, plus an amount equal to any accrued and unpaid dividends, before any
distribution is made on any class of junior securities, including Holdings
Common Stock.
Series B Preferred Stock. Each share of Series B Preferred Stock is entitled
to receive, when, as and if declared by the board of directors of Holdings, out
of funds legally available therefor, cumulative preferential cash dividends at
the rate per annum of 9.25%, payable quarterly in arrears. On and after August
19, 1998, Holdings, at its option upon not less than 30 nor more than 60 days'
notice, may redeem shares of the Series B Preferred Stock, as a whole or in
part, at any time, at a redemption price equivalent to $25,000 per share, plus
accrued and unpaid dividends thereon to the date fixed for redemption, without
interest, to the extent Holdings will have funds legally available therefor.
The Series B Preferred Stock has no stated maturity and is not subject to
any sinking fund or mandatory redemption. The Series B Preferred Stock is not
convertible into, or exchangeable for, shares of any other class or series of
stock of Holdings.
The holders of the Series B Preferred Stock do not have any voting rights,
except as otherwise provided by law and under certain other limited
circumstances.
Upon any voluntary or involuntary liquidation, dissolution or winding up of
Holdings, holders of Series B Preferred Stock will be entitled to receive
$25,000 per share, plus an amount equal to any
116
<PAGE>
accrued and unpaid dividends, before any distribution is made on any class of
junior securities, including Holdings Common Stock.
Series C Preferred Stock. Each share of Series C Preferred Stock is entitled
to receive, when, as and if declared by the board of directors of Holdings, out
of funds legally available therefor, cumulative preferential cash dividends
accruing at a rate of $6.012 per annum, payable quarterly in arrears. Each share
of Series C Preferred Stock will mandatorily convert into ten shares of Holdings
Common Stock on May 15, 1997, subject to adjustment in certain events (the
"Series C Common Stock Equivalent"), plus accrued and unpaid dividends on the
Series C Preferred Stock until the date of conversion. In addition, each share
of Series C Preferred Stock may be redeemed by Holdings, in whole or in part, at
any time or from time to time prior to the mandatory conversion date at a
redemption price to be paid in shares of Holdings Common Stock (or following
certain circumstances, other consideration), plus accrued and unpaid dividends.
The optional redemption price declines from $112.286 per share by $.01656 per
share on each day following May 6, 1994 to $95.246 per share on March 15, 1997,
and is $94.25 thereafter (the "Call Price").
Immediately prior to a merger or consolidation of Holdings (other than a
merger or consolidation of Holdings with or into a wholly owned subsidiary of
Holdings) that results in the conversion or exchange of Holdings Common Stock
into other securities or property, outstanding Series C Preferred Stock may be
converted at the option of Holdings into (i) shares of Holdings Common Stock at
a rate equal to the Series C Common Stock Equivalent (currently ten shares for
each share of Series C Preferred Stock), in effect immediately prior to such
merger or consolidation, plus (ii) the right to receive an amount in cash (which
may, at the option of Holdings, be payable in shares of Holdings Common Stock)
equal to all accrued and unpaid dividends on such Series C Preferred Stock to
and including the Settlement Date, plus (iii) the right to receive an amount of
cash (which may, at the option of Holdings, be payable in shares of Holdings
Common Stock) initially equal to $18.036 per share, declining by $.01656 on each
day following May 6, 1994 to $.996 on March 15, 1997 and equal to zero
thereafter. The shares of Holdings Common Stock issuable under clause (i) above
will be reduced, if necessary, so that the value of the aggregate consideration
described in clauses (i) and (iii) above does not exceed the Call Price on the
Settlement Date. Alternatively, Holdings may cause the Series C Preferred Stock
to remain outstanding or convert into a substantially similar security of
Holdings or of the entity issuing the consideration in such merger or
consolidation. In that event, each holder of a share of Series C Preferred Stock
may elect to convert the Series C Preferred Stock into Holdings Common Stock at
a rate equal to the Series C Common Stock Equivalent immediately prior to the
merger or consolidation (provided that the number of shares of Holdings Common
Stock issuable will be reduced, if necessary, so that the value of such shares
does not exceed the Call Price on the Settlement Date), plus the right to
receive an amount of cash (which may, at the option of Holdings, be payable in
shares of Holdings Common Stock) equal to all accrued and unpaid dividends on
such Series C Preferred Stock to and including the Settlement Date.
If Holdings has recommended acceptance of (or has expressed no opinion and
is remaining neutral toward) a tender offer which would result in the ownership
by the bidder (or an affiliate of the bidder) of more than 50% of the then
outstanding Holdings Common Stock, then each holder of Series C Preferred Stock
will have the option to convert such shares, in whole (but not in part), into
Holdings Common Stock at the Series C Stock Equivalent in effect at the close of
business on the day prior to the date of expiration or termination of such
tender offer; provided that the number of shares of Holdings Common Stock
issuable upon such conversion will be reduced if necessary, so that the value of
such shares does not exceed the Call Price on such date.
If Holdings distributes to holders of Holdings Common Stock the capital
stock of a subsidiary representing all or substantially all of either of
Holdings' two present principal lines of business (the "Spinoff Company"),
Holdings will (subject to the final sentence of this paragraph) convert each
share of Series C Preferred Stock into one-half of a share of the existing
Series C Preferred Stock and one-half of a share of a substantially equivalent
security of the Spinoff Company. In such case, the
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conversion rate per share of the new Series C Preferred Stock will be equal to a
fraction, of which the numerator will be the product of the market price of
Holdings Common Stock prior to the distribution and the Series C Common Stock
Equivalent and of which the denominator will be the excess of the market price
of Holdings Common Stock prior to the distribution over the market value of a
share of the Spinoff Company. The conversion rate per share of the new security
of the Spinoff Company will be equal to a fraction, of which the numerator will
be the product of the market price of Holdings Common Stock prior to the
distribution and the Series C Common Stock Equivalent and of which the
denominator will be the market value of a share of the Spinoff Company.
Alternatively, Holdings may elect to distribute to each holder of Series C
Preferred Stock the number of shares of capital stock of the Spinoff Company
that such holder would have been entitled to receive if the Series C Preferred
Stock had been converted to Holdings Common Stock immediately prior to the
distribution at the Series C Common Stock Equivalent then in effect. In the
event that either (a) the fair value of the shares of the Spinoff Company
distributed are greater than or equal to 95% of the market price of Holdings
Common Stock prior to the distribution or (b) the record date for the
distribution is fixed less than twenty-one trading days prior to such record
date, then Holdings must elect to distribute the shares of the Spinoff Company
to the holders of the shares of Series C Preferred Stock in accordance with the
preceding sentence.
The voting rights of the holders of Series C Preferred Stock are generally
consistent with those of the holders of Series A Preferred Stock prior to its
mandatory conversion on November 15, 1994.
Upon any voluntary or involuntary liquidation, dissolution or winding up of
Holdings, holders of Series C Preferred Stock will be entitled to receive $60.50
per share, plus an amount equal to any accrued and unpaid dividends, before any
distribution is made on any class of junior securities, including Holdings
Common Stock.
ESOP Preferred Stock. Each share of ESOP Preferred Stock is entitled to
receive, when, as and if declared by the board of directors of Holdings, out of
funds legally available therefor, cumulative cash dividends at a rate of 7.8125%
of stated value per annum ($1.25 per annum) at least until April 10, 1999,
payable semi-annually in arrears. Each share of ESOP Preferred Stock is
convertible into one share of Holdings Common Stock, subject to adjustment in
certain events. The ESOP Preferred Stock is redeemable at the option of
Holdings, in whole or in part, at any time on or after April 10, 1999, at an
initial optional redemption price of $16.25 per share, declining thereafter on
an annual basis in the amount of $.125 a year to $16 per share on April 10,
2001, plus accrued and unpaid dividends. Under certain other circumstances, the
ESOP Preferred Stock is subject to redemption at any time. Holders of ESOP
Preferred Stock have voting rights which are generally consistent with those of
the holders of the Series A Preferred Stock prior to its mandatory conversion on
November 15, 1994.
Upon any voluntary or involuntary liquidation, dissolution or winding up of
Holdings, holders of ESOP Preferred Stock will be entitled to receive $16.00 per
share, plus an amount equal to any accrued and unpaid dividends, before any
distribution is made on any class of junior securities, including Holdings
Common Stock.
CONTRACTUAL RESTRICTIONS AND POLICIES ON PAYMENT OF DIVIDENDS
Holdings is subject to various contractual restrictions on its ability to
pay dividends on its Preferred Stock and Holdings Common Stock.
Under the Credit Agreements, if no event of default exists thereunder in the
case of clauses (i), (iii) and (iv) below, Holdings may (i) declare and pay
regularly scheduled dividends on its preferred or preference stock outstanding
on December 9, 1991, in the case of the 1991 Credit Agreement, and April 5,
1993, in the case of the 1993 Credit Agreement, when and as scheduled at
dividend rates not exceeding those in effect on December 19, 1991, in the case
of the 1991 Credit Agreement, and April 5, 1993, in the case of the 1993 Credit
Agreement; (ii) issue shares of Holdings Common Stock upon the exercise of any
warrants or options or upon the conversion or redemption of any convertible or
redeemable preferred stock, and in connection with any such exercise, conversion
or redemption,
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Holdings may pay cash in lieu of issuing fractional shares of Holdings Common
Stock; (iii) repurchase shares of Holdings Common Stock (and/or options or
warrants in respect thereof) pursuant to and in accordance with the terms of,
management and/or employee stock plans; (iv) declare and pay, or otherwise
effect, any other cash dividend or other dividend or distribution, or repurchase
or redeem any capital stock, provided that the aggregate amount of such
dividends, distributions, repurchases and redemptions, when added to all
dividends, distributions, repurchases and redemptions, made in accordance with
this clause (iv) after December 9, 1991, in the case of the 1991 Credit
Agreement, and January 1, 1992, in the case of the 1993 Credit Agreement, will
not exceed an amount equal to the sum of (x) 50% of the sum of (A) consolidated
net income of Holdings and its subsidiaries for the period (taken as one
accounting period) from January 1, 1992 to the last day of the last fiscal
quarter of Holdings then ended plus (B) all losses from debt retirement deducted
in determining consolidated net income of Holdings and its subsidiaries for the
period referred to in clause (A) above plus (y) the aggregate cash proceeds (net
of underwriting discounts and commissions) received by Holdings after March 22,
1993, in the case of the 1991 Credit Agreement, and April 5, 1993, in the case
of the 1993 Credit Agreement, from issuances of its equity securities; (v) issue
and exchange shares of any class or series of Holdings common stock now or
hereafter outstanding for shares of any other class or series of Holdings common
stock now or hereafter outstanding and (vi) in connection with any
reclassification of Holdings common stock and any exchange permitted by clause
(v) above, pay cash in lieu of issuing fractional shares of any class or series
of Holdings common stock.
RJRN and Holdings are seeking to amend the Credit Agreements to permit the
completion of the proposed Nabisco initial public offering and to allow Nabisco
Inc., Nabisco's immediate subsidiary, to obtain a $1.5 billion short-term credit
facility. In the amendments (the "Amendments") to the Credit Agreements proposed
by RJRN and Holdings, Holdings would be subject to new limits on its ability to
pay dividends on its Preferred Stock and Holdings Common Stock. Specifically, if
the proposed Amendments become effective, Holdings would be able to (i) issue
shares of Holdings Common Stock upon the exercise of any warrants or options or
upon the conversion or redemption of any convertible or redeemable preferred
stock and, in connection with any such exercise, conversion or redemption,
Holdings would be able to pay cash in lieu of issuing fractional shares of
Holdings Common Stock; (ii) if no event of default existed under the Credit
Agreements, repurchase Holdings Common Stock (and/or options or warrants in
respect thereof) pursuant to, and in accordance with the terms of, management
and/or employee stock plans; (iii) if no event of default existed under the
Credit Agreements, declare and pay, or otherwise effect, any other cash dividend
or other dividend or distribution, or repurchase or redeem any capital stock,
provided that the aggregate amount of such dividends, distributions, repurchases
and redemptions, when added to all dividends, distributions, repurchases and
redemptions made in accordance with this clause (iii) after the effective date
of the Amendments, would not exceed an amount equal to the sum of (x) $1 billion
plus (y) 50% of the sum of (A) consolidated net income of Holdings and its
subsidiaries for the period (taken as one accounting period) from January 1,
1995 to the last day of the last fiscal quarter of Holdings then ended plus (B)
all losses from debt retirement deducted in determining consolidated net income
of Holdings and its subsidiaries for the period referred to in clause (A) above
plus (z) the aggregate cash proceeds (net of underwriting discounts and
commissions) received by Holdings after the effective date of the Amendments
from issuances of its equity securities (provided that the aggregate amount of
such aggregate net cash proceeds received in any twelve-month period shall be
deemed not to exceed $250 million for purposes of this clause (iii)(z)), in each
case determined at the time of the declaration thereof, provided that such
dividend, distribution or redemption payment was paid within 45 days of the
making of such declaration; (iv) issue and exchange shares of any class or
series of its common stock now or hereafter outstanding for shares of any other
class or series of its common stock now or hereafter outstanding; and (v) in
connection with any reclassification of its common stock and any exchange
permitted by clause (v) above, pay cash in lieu of issuing fractional shares of
any class or series of its common stock. RJRN and Holdings anticipate that their
lenders will consent to the proposed amendments and to the establishment of a
short-term credit facility for Nabisco, Inc.
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The Senior Note Indenture, under which $1.5 billion of 10 1/2% Senior Notes
due 1998 (the "Senior Notes") are outstanding, and the RJRN Subordinated
Debenture Indenture, under which $100 million of 13 1/2% Subordinated Debentures
due 2001 (the "Subordinated Debentures") are outstanding, by containing
restrictions on the payment of cash dividends or the making of other
distributions by RJRN to Holdings in excess of certain specified amounts and for
certain specified purposes, also effectively limit the payment of dividends on
the Holdings Common Stock or any Preferred Stock. Holdings has called all of the
Senior Notes and Subordinated Debentures for redemption on November 30, 1994 and
December 2, 1994, respectively.
In addition to the contractual restrictions referred to above, the Board of
Directors of Holdings has adopted a policy, which will become effective upon the
closing of the proposed Nabisco initial public offering, under which Holdings
would limit, until December 31, 1998, the aggregate amount of cash dividends on
its Capital Stock. Under this policy, Holdings:
(a) would not pay any extraordinary cash dividends;
(b) would not make any Restricted Payment if, after giving effect to such
Restricted Payment, the aggregate amount expended for all Restricted Payments
subsequent to December 31, 1994 exceeds the sum of (i) $500 million, plus (ii)
65% of Consolidated Net Income of Holdings on a cumulative basis subsequent to
December 31, 1994, plus (iii) aggregate cash proceeds of up to $250 million
received in any year subsequent to December 31, 1994 by Holdings or a Subsidiary
from the issuance and sale (other than to a Subsidiary) of Holdings' or such
Subsidiary's Capital Stock (or of other securities that are subsequently
converted into or exchanged for Holdings' or such Subsidiary's Capital Stock)
(other than proceeds from the initial public offering of Nabisco), it being
understood that any aggregate net cash proceeds from any issuance and sale of
any Capital Stock will be counted only up to the amount of any indebtedness or
preferred stock of Holdings or any Subsidiary that has been repaid, purchased,
redeemed or otherwise acquired for value by Holdings or any Subsidiary within
one year before or after such issuance and sale. If Holdings or a Subsidiary
repays, purchases, redeems or otherwise acquires for value indebtedness or
preferred stock of Holdings or a Subsidiary in exchange for Capital Stock of
Holdings or a Subsidiary, Holdings or such Subsidiary shall be deemed to have
received the net cash proceeds equal to the market value of the Capital Stock so
issued in exchange (such market value to be determined by Holdings' Board of
Directors, whose good faith determination shall be conclusive);
(c) will use an amount equal to the net cash proceeds received prior to
December 31, 1998 from (i) the issuance and sale by Holdings of any Capital
Stock (other than to a Subsidiary or current, future or former directors,
officers or employees of Holdings or any Subsidiary (or their estates or
beneficiaries under their estates) or (ii) any sale outside the ordinary course
of business of material assets owned or used by any of its Subsidiaries in the
tobacco business (other than to another Subsidiary) either to repay, purchase,
redeem or otherwise acquire for value indebtedness of Holdings or a Subsidiary
or to acquire properties, assets or businesses to be used in existing or new
lines of business of Holdings or its Subsidiaries; and
(d) will use an amount equal to the net cash proceeds received by Holdings
or RJRN prior to December 31, 1998 from the sale to third parties of shares of
common stock of Nabisco held by either of them to repay, purchase, redeem or
otherwise acquire for value indebtedness of Holdings or a Subsidiary.
The foregoing policy will not prevent the payment of a cash dividend within
90 days of its declaration if, at the time of declaration, such payment would
have complied with the foregoing policy or the purchase, redemption,
acquisition, cancellation or other retirement for value of Capital Stock,
options on Capital Stock, stock appreciation rights or similar securities held
by current, future or former directors, officers or employees of Holdings or any
Subsidiary or certain trusts or estates for their benefit.
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Holdings has also adopted a policy, which will become effective upon the
closing of the proposed Nabisco initial public offering, to the effect that it
will not declare a dividend or distribution on its Capital Stock prior to
December 31, 1996 that is paid in Capital Stock of a Subsidiary owned by
Holdings or a Subsidiary and that it is its intent not to make such a
distribution to its stockholders prior to December 31, 1998 if (a) such
distribution would cause the ratings of RJRN's publicly held senior indebtedness
to be reduced from investment grade to non-investment grade or (b) any publicly
held senior indebtedness of the distributed Subsidiary would, after giving
effect to such distribution, be rated non-investment grade.
For purposes of the foregoing policies:
"Capital Stock" means any and all shares, interests, participations or other
equivalents (however designated) of capital stock and any rights (other than
debt securities convertible into capital stock), warrants or options to acquire
such Capital Stock.
"Consolidated Net Income" of Holdings means, for any period, the aggregate
consolidated net income of Holdings and its Subsidiaries for such period,
determined on a consolidated basis in accordance with generally accepted
accounting principles as in effect from time to time, adjusted by excluding (to
the extent not otherwise excluded in calculating consolidated net income) any
net extraordinary gain or net extraordinary loss, as the case may be, and any
restructuring charges.
"Restricted Payment" means (i) any payment of any cash dividend or
distribution by Holdings on its Capital Stock, (ii) any purchase, redemption or
other acquisition for cash by Holdings of its Capital Stock (other than any such
purchase, redemption or acquisition for value in exchange for, or in an amount
equal to the proceeds of, an offering of Capital Stock of Holdings or any
Subsidiary or, in the case of Holdings' Series B Preferred Stock or any other
non-convertible preferred stock of Holdings outstanding from time to time, for
indebtedness of Holdings or any Subsidiary and (iii) any purchase, redemption or
other acquisition for cash by Holdings of any Subordinated Debt prior to any
scheduled maturity, scheduled repayment or scheduled sinking fund payment (other
than any such purchase, redemption or other acquisition for value in exchange
for, or in an amount equal to the proceeds of, an offering of Capital Stock or
Subordinated Debt of Holdings or any Subsidiary).
"Subordinated Debt" means any indebtedness of Holdings or any Subsidiary
which by its terms is expressly subordinated in right of payment to any other
indebtedness of Holdings or any Subsidiary, provided, however, that the term
Subordinated Debt shall not include any intercompany indebtedness.
"Subsidiary" means any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned by Holdings.
CERTAIN STATUTORY AND BY-LAW PROVISIONS
Holdings is currently, and following the consummation of the offering will
be, subject to the "business combination" statute of the Delaware General
Corporation Law (the "DGCL"). In general, Section 203 of the DGCL prohibits a
publicly held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an "interested stockholder," unless
(a) prior to such date the board of directors of the corporation approved either
the "business combination" or the transaction which resulted in the stockholder
becoming an "interested stockholder," (b) upon consummation of the transaction
which resulted in the stockholder becoming an "interested stockholder," the
"interested stockholder" owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced, excluding for
purposes of determining the number of shares outstanding those shares owned (i)
by persons who are directors and also officers and (ii) employee stock plans in
which employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or exchange
offer, or (c) on or subsequent to such date the
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"business combination" is approved by the board of directors and authorized at
an annual or special meeting of stockholders by the affirmative vote of at least
66 2/3% of the outstanding voting stock which is not owned by the "interested
stockholder." A "business combination" includes mergers, certain stock or asset
sales and certain other transactions resulting in a financial benefit to, or
increase in voting power held by, the "interested stockholders." An "interested
stockholder" is a person who, together with affiliates and associates, owns (or
if such person is an affiliate or associate of the corporation within three
years, did own) 15% or more of the corporation's voting stock.
Holdings' By-laws establish an advance notice procedure for stockholders to
make nominations of candidates for election as directors, or to bring other
business before an annual meeting of stockholders of Holdings. The By-laws
provide that only persons who are nominated by, or at the direction of, the
board of directors of Holdings or any committee designated by the board of
directors of Holdings, or by a stockholder who has given timely written notice
to the Secretary of Holdings prior to the meeting at which directors are to be
elected, will be eligible for election as directors of Holdings. The By-laws
also provide that in order to properly submit any business to an annual meeting
of stockholders, a stockholder must give timely written notice to the Secretary
of Holdings of such stockholder's intention to bring such business before such
meeting. Generally, for notice of stockholder nominations or other business to
be made at an annual meeting to be timely under the By-laws, such notice must be
received by Holdings (i) not less than 120 days nor more than 150 days before
the first anniversary date of Holdings' proxy statement in connection with the
last annual meeting of stockholders or (ii) if no annual meeting was held in the
previous year or the date of the applicable annual meeting has been changed by
more than 30 days from the date contemplated at the time of the previous year's
proxy statement, not less than a reasonable time, as determined by the board of
directors of Holdings, prior to the date of the applicable annual meeting. Under
the By-laws, a stockholder's notice must also contain certain information
specified in the By-laws.
The provisions described above, together with certain terms of Holdings
outstanding Preferred Stock and its ability to issue additional Preferred Stock,
may have the effect of delaying stockholder actions with respect to certain
business combinations and the election of new members of the board of directors
of Holdings. As such, the provisions could have the effect of discouraging open
market purchases of Holdings Common Stock because they may be considered
disadvantageous by a stockholder who desires to participate in a business
combination or elect a new director.
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DESCRIPTION OF BORDEN CAPITAL STOCK AND RIGHTS
Borden has authorized 480,000,000 shares of Borden Common Stock, of which
141,515,502 shares were issued and outstanding as of September 23, 1994
(excluding 53,465,136 shares held in Borden's treasury). Borden has also
authorized 10,000,000 shares of Preferred Stock, without par value. Of these
10,000,000 Preferred Shares, 475,000 have been designated Preferred
Stock--Series A, none of which were issued or outstanding as of September 23,
1994. In addition, 688,700 shares of Preferred Stock have been designated
Preferred Stock--Series B, of which 6,822 were issued and outstanding as of
September 23, 1994. Each share of preferred series B stock has an involuntary
liquidating value of $28.88, bears an annual cumulative dividend of $1.32, is
convertible into 6.6 shares of Borden Common Stock and is redeemable at Borden's
option. At September 23, 1994, 45,031 shares of Borden Common Stock were
reserved for issuance upon conversion of the preferred series B stock. In
addition, 2,400,000 shares of Preferred Stock have been designated Series C
Junior Participating Preferred Stock of Borden (the "Series C Stock"), none of
which were issued and outstanding as of September 23, 1994.
Under the Rights Agreement, each outstanding share of Borden Common Stock
has one Right, which entitles the shareholder to purchase, under certain
circumstances, one one-hundredth of a share of Series C Stock at a purchase
price of $175, subject to adjustment (the "Purchase Price").
The Rights Agreement provides that the Rights become exercisable on the
tenth day (calendar days in the case of clause (i) and business days in the case
of clause (ii)) (the "Distribution Date") following the earlier of: (i) the
acquisition by any person or group (an "Acquiring Person") of beneficial
ownership of 20% or more of the outstanding Borden Common Stock or (ii) the
commencement by any person or group of a tender offer which would result in such
person owning 20% or more of the outstanding Borden Common Stock. After the
acquisition by any Acquiring Person of 20% of the Borden Common Stock but before
such person has acquired 50% of the Borden Common Stock, Borden may exchange all
or part of the Rights at the rate of one share of Borden Common Stock per Right.
Subsequent to the date that the Rights become exercisable, the Rights will trade
separately from the Borden Common Stock. The percentage ownership required to
trigger a Distribution Date may be reduced by Borden to not less than the
greater of (i) the sum of 0.001% and the largest percentage of the outstanding
Borden Common Stock then known by Borden to be beneficially owned by any person
and (ii) 10%.
Under the Rights Agreement, the Rights are redeemable at a price of one and
two-thirds cents per Right by the vote of the Board of Directors of Borden, at
any time until the time when a person has acquired 20% or more of the
outstanding Borden Common Stock.
In the event that Borden were acquired in a merger or other business
combination transaction or more than 50% of its consolidated assets or earning
power were sold, proper provision will be made so that each holder of a Right
will thereafter have the right to receive, upon the exercise thereof at the then
current Purchase Price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction would have a market
value of two times the Purchase Price of the Right.
In the event any person becomes an Acquiring Person, each holder of a Right
will thereafter have the right to purchase, upon payment of the Purchase Price,
such number of shares of Borden Common Stock having a market value equal to
twice the Purchase Price. The Acquiring Person will not be entitled to the
benefit of such right and Rights beneficially owned by such Acquiring Person
will thereafter be void.
In the event of any merger, consolidation or other transaction in which
shares of Borden Common Stock are exchanged, each share of the Series C Stock
will be entitled to receive 100 times the amount and type of consideration
received per share of Borden Common Stock.
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The Rights Agreement was amended as of September 11, 1994 and as of
September 23, 1994 to provide that (i) the letter agreement dated as of
September 11, 1994 between Borden and the Partnership pursuant to which the
Partnership stated its intent to enter into the Merger Agreement and
transactions contemplated thereby does not cause the Partnership or the
Purchaser to be the "Beneficial Owner" (as defined in the Rights Agreement) of
any Borden Shares or cause a Distribution Date to occur and (ii) none of the
execution or delivery of the Merger Agreement or the Conditional Purchase/Option
Agreement, or both such agreements taken together, or commencement of the
Exchange Offer, or the consummation of the transactions contemplated by the
Conditional Purchase/Option Agreement will trigger the exercisability of the
Rights, the separation of the Rights from the stock certificates to which they
are attached or any other provisions of the Rights Agreement, including causing
the Partnership and/or the Purchaser from becoming an Acquiring Person (as
defined in the Rights Agreement), the occurrence of the Distribution Date or a
Share Acquisition Date (as defined in the Rights Agreement).
COMPARISON OF RIGHTS OF HOLDERS
OF BORDEN AND HOLDINGS COMMON STOCK
The rights of shareholders of Borden are currently governed by applicable
New Jersey law, including the NJBCA, and by Borden's Charter and By-laws. If the
Merger is consummated, shareholders of Borden will become shareholders of
Holdings and their rights will be governed by applicable Delaware law, including
the DGCL, and by Holdings' Certificate of Incorporation and By-laws. Although it
is not practicable to compare all of the differences between the corporation
laws of Delaware and New Jersey and between the governing corporate documents of
Borden and Holdings, the following is a summary of the material differences
which may significantly affect the rights of Borden's shareholders.
Antitakeover Provisions
Both Delaware and New Jersey have enacted legislation which encourages a
potential acquiror of certain publicly-held corporations organized in the state
to negotiate with the board of directors and make it more difficult to effect an
acquisition not approved by the board. Under Delaware law, a publicly-held
corporation may be prohibited from consummating a business combination with an
"interested shareholder" for a period of three years after the shareholder
became interested unless (i) the business combination was approved by the board
of directors prior to the date the shareholder became interested, (ii) the
business combination was approved by the holders of 66 2/3% of the outstanding
voting other than shares held by the interested shareholder or (iii) upon
consummation of the transaction that resulted in the shareholder becoming an
interested shareholder, the interested shareholder owned at least 85% of the
corporation's voting stock. Under Delaware law, "beneficial ownership" of 15% or
more of the outstanding voting stock results in "interested shareholder" status.
Under New Jersey law, a publicly-traded New Jersey corporation with its
principal executive offices or significant business operations located in New
Jersey is prohibited from consummating a business combination with an interested
shareholder for a period of five years unless the business combination is
approved by the board of directors prior to the date the shareholder became
interested. In addition, after the five-year period, a New Jersey corporation
may not engage in a business combination with an interested shareholder unless
either (i) the business combination is approved by the board of directors prior
to the date the shareholder became an interested shareholder or (ii) the
business combination is approved by the holders of two-thirds of the voting
stock not held by the interested shareholder or (iii) subject to certain other
requirements, the consideration per share received in the business combination
is at least equal to the greater of (x) the highest price per share paid by the
interested shareholder in the five years prior to either the announcement of the
business combination or the date at which the interested shareholder became
such, whichever results in a higher price, and (y) the market price on either
the date the business combination is announced or on the date the
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interested shareholder first became such, whichever is higher. New Jersey law
defines "interested shareholder" as a person beneficially owning 10% or more of
the outstanding voting stock of the corporation.
Borden's Charter adds to the requirements of the NJBCA and provides that no
business combination with a "related person" (defined as a shareholder who
beneficially owns 20% or more of any class of capital stock of the corporation)
may occur unless (i) the business combination is approved by the affirmative
vote of at least 80% of the outstanding shares of capital stock entitled to vote
for directors, (ii) the business combination is approved by a majority of the
continuing directors (defined as a director who is not affiliated with any
"related person" and was a director prior to the time that the "related person"
crossed the threshold of 5% voting power of any class of capital stock) or (iii)
the consideration to be received per share in the business combination is at
least as high as the greater of the highest price per share of prior purchases
of Borden's capital stock by the "related person" and the average closing price
per share on the NYSE for the prior 200 trading days. See "The Exchange
Offer--Description of Merger Agreement and Conditional Purchase/Option
Agreement" for a discussion of certain agreements of Borden with respect to the
antitakeover provisions of the NJBCA and Borden's Charter in connection with the
Exchange Offer, the Merger and the Option.
Dissenters' or Appraisal Rights
Both the DGCL and the NJBCA give shareholders the right to dissent from
certain business acquisitions, dispositions and combinations and to demand and
receive cash payment of the fair value of their shares. These rights are known
as "appraisal rights" in Delaware and "dissenters' rights" in New Jersey.
Shareholders of a Delaware corporation generally have appraisal rights with
respect to a merger or consolidation. Unless the corporation's certificate of
incorporation provides otherwise, such appraisal rights generally are not
available (i) when the corporation is to be the surviving corporation and no
vote of its shareholders is required for the merger, except that appraisal
rights are available in certain short-form mergers under Section 253 of the DGCL
in which the parent corporation of a subsidiary more than 90% (but less than
100%) of the common stock of which is owned by the parent merges with such
subsidiary, or (ii) when the stock of the constituent corporation, on the record
date fixed to determine the shareholders entitled to receive notice of and vote
on the agreement of merger, is listed on a national securities exchange or held
of record by more than 2,000 shareholders, unless in the case of (i) or (ii)
above, such shareholders are required by the terms of the merger to accept
anything other than shares of stock of the surviving corporation, shares of
stock of another corporation that are so listed or held by such number of record
holders, cash in lieu of fractional shares of such stock, or any combination
thereof. Shareholders of a Delaware corporation do not have appraisal rights
with respect to the disposition of all or substantially all the assets of the
corporation unless the corporation's certificate of incorporation provides
otherwise.
Shareholders of a New Jersey corporation generally have dissenters' rights
with respect to a merger or consolidation as well as with respect to the
disposition of all or substantially all of the assets of the corporation. Such
dissenters' rights are not available to shareholders of a New Jersey corporation
(i) if the shares that they hold are a class or series that is listed on a
national securities exchange or is held of record by 1,000 or more shareholders
or (ii) if, pursuant to such disposition of assets, merger or consolidation,
they will receive stock or other securities so listed or held, cash, or a
combination of cash and such securities. A shareholder of a surviving
corporation in a merger will not have dissenters' rights if the vote of
shareholders of the corporation was not required for approval of the plan of
merger. Dissenters' rights are not available to holders of Borden Shares in the
Exchange Offer or the Merger. See "The Exchange Offer--Right to Dissent and
Appraisal Rights."
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Special Meetings of Shareholders
Under Delaware law, special meetings of shareholders may be called by the
board of directors of a corporation or by such person or persons as may be
authorized by the certificate of incorporation or by the by-laws of the
corporation. Holdings' By-laws permit the chairman of the board of directors or,
upon written request to the chairman or secretary, the holders of not less than
25% of the outstanding shares of Holdings Common Stock to call a special
meeting.
Under New Jersey law, special meetings of shareholders may be called by the
president or board of directors of a corporation or by such other officers,
directors or shareholders, as may be provided in the by-laws. The By-laws of
Borden permit the chairman, chief executive officer, president or a majority of
directors to call a special meeting. In addition, under New Jersey law, upon the
application of a holder or holders of not less than 10% of all the shares
entitled to vote at a meeting, a court for good cause shown may order a special
meeting to be called and held.
Action By Written Consent
The DGCL provides that, unless otherwise provided in the certificate of
incorporation, any action required or permitted to be taken at any annual or
special meeting of shareholders of a corporation may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, is signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted. Holdings' Certificate of Incorporation does not contain a
provision limiting the right to act by written consent.
Under the NJBCA, except as otherwise provided in a corporation's certificate
of incorporation, any action required or permitted to be taken at a meeting of
shareholders, other than the annual election of directors, may be taken without
a meeting upon (i) the written consent of shareholders who would have been
entitled to cast the minimum number of votes that would be necessary to
authorize such action at a meeting at which all shareholders entitled to vote
thereon were present and voting and (ii) ten or twenty days' (depending on the
circumstances) written notice to all non-consenting shareholders who would have
been entitled to notice of a meeting to vote on such action. Borden's Charter
does not contain a provision limiting the right to act by written consent.
Statutory Voting Requirements
The DGCL generally requires the approval of a majority of the outstanding
voting shares for merger, consolidation, sale of all or substantially all of the
corporation's assets, or an amendment to its certificate of incorporation unless
the corporation's certificate of incorporation provides for a higher voting
requirement. The NJBCA generally requires approval by a majority of votes cast
at a meeting of shareholders by those entitled to vote, unless the charter or
another provision of the NJBCA requires a greater plurality. Holdings'
Certificate of Incorporation does not contain any higher voting requirement.
Borden's Charter provides that the affirmative vote of two-thirds of all issued
and outstanding voting stock is required to adopt a plan of merger or
consolidation involving Borden. In addition, Borden's Charter provides that the
consent of 85% of all the issued and outstanding voting stock is required to
approve the lease or sale of all the property and assets of Borden.
The NJBCA permits a New Jersey corporation, without shareholder approval, to
sell all or substantially all of its assets if such sale is in the ordinary
course of the corporation's business. The DGCL contains no similar provision.
Limiting of Liability and Indemnification of Directors and Officers
Delaware law permits a corporation to indemnify its directors and officers
and limit the liability of its directors for monetary damages for breach of the
fiduciary duty of care as a director or officer except in certain circumstances.
New Jersey law permits a corporation to indemnify and limit the liability of
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both directors and officers under similar circumstances. Holdings' Certificate
of Incorporation and By-laws contain provisions limiting the liability of
directors and officers to the maximum extent permitted by the DGCL. Borden's
Charter and By-laws contain provisions indemnifying and limiting the liability
of directors and officers to the maximum extent permitted by the NJBCA.
Classified Board of Directors
Under Delaware law, a corporation may have a classified board of directors
providing for up to three classes of directors each having a term of up to three
years, and newly elected directors selected by the board of directors may serve
to the expiration of the term of the class to which they are named. Under New
Jersey law a corporation may have a classified board of directors, but no class
of directors shall hold office for a term shorter than one year or longer than
five years, and the term of at least one class shall expire in each year. In
addition, directors elected to the board of directors to fill newly created
directorships serve until the next annual meeting of shareholders. Neither
Holdings nor Borden has a classified board of directors.
Dividends
Delaware law permits corporations to pay dividends out of surplus or, in the
event there is no surplus, out of (i) net profits for the fiscal year in which
the dividend is declared or (ii) net profits for the preceding year.
Under New Jersey law, a dividend may not be paid if the corporation would be
unable to pay its debts as they become due in the usual course of business or if
the corporation's total assets would be less than its total liabilities.
Shareholder Derivative Actions
Under New Jersey law, if the shareholder-plaintiffs in a shareholder
derivative action own less than 5% of the outstanding shares of any class of the
stock of the corporation on behalf of which such shareholders are bringing suit
(unless such shares have a fair market value in excess of $25,000), the
corporation may require the shareholder-plaintiffs to give security for the
reasonable expenses, including attorneys' fees of the corporation or any
defendants; moreover, shareholders found by a court of competent jurisdiction to
have instituted a derivative suit without reasonable cause may be required to
pay the reasonable expenses, including attorney's fees, of the defendants named
in such action.
No comparable provisions exist under the DGCL.
Loans to and Guarantees of Obligations of Officers and Employees
Under both Delaware and New Jersey law, a corporation may lend money to, or
guarantee of an obligation of, an officer, employee or director of a corporation
whenever in the judgment of the board of directors of the corporation such loan
or guarantee may reasonably be expected to benefit the corporation. Delaware law
also requires that loans or guarantees may be made for a director only if the
director is an officer or employee.
LEGAL MATTERS
The legality of the Holdings Common Stock being offered hereby is being
passed upon for Holdings by Jo-Ann Ford, Vice President, Assistant General
Counsel and Secretary of Holdings. Ms. Ford owns options to purchase shares of
Holdings Common Stock which represent less than 0.1% of the currently
outstanding shares of Holdings Common Stock.
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EXPERTS
The consolidated financial statements of Holdings as of December 31, 1993
and 1992 and for each of the years in the three year period ended December 31,
1993 incorporated in this Offering Circular/Prospectus by reference from (1)
Holdings' Registration Statement No. 33-52381 on Form S-3, at the time such
Registration Statement was declared effective and (2) Holdings' Annual Report on
Form 10-K for the year ended December 31, 1993 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
The consolidated financial statements of Borden, Inc. incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 1993, have been so incorporated in reliance on the report (which
contains an explanatory paragraph relating to the restatement and
reclassification of the 1992 consolidated financial statements as described in
note 3 to the financial statements) of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
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SCHEDULE I
CERTAIN INFORMATION REGARDING THE PURCHASER,
THE COMMON STOCK PARTNERSHIPS AND KKR ASSOCIATES
The following table sets forth the name, business address, age, principal
occupation or employment at the present time and during the last five years, the
name, principal business and address of any corporation or other organization in
which such occupation or employment is or was conducted and current
directorships of the executive officers and directors of the Purchaser and the
general partners of KKR Associates, all of whom are citizens of the United
States. KKR Associates is the general partner of each of the Common Stock
Partnerships. Except as otherwise noted, the address of each such corporation or
organization listed and the business addresses of such persons is the address of
KKR Associates, 9 West 57th Street, New York, New York 10019. Each person has
had the principal occupation or employment listed for more than the past five
years except as otherwise noted.
EXECUTIVE OFFICERS AND DIRECTORS OF THE PURCHASER
<TABLE><CAPTION>
NAME AND PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT
BUSINESS ADDRESS AGE AND FIVE YEAR EMPLOYMENT HISTORY
- -------------------------------------------- --- --------------------------------------------------
<S> <C> <C>
Clifton S. Robbins.......................... 36 Director and President of the Purchaser and
executive of Kohlberg Kravis Roberts & Co., a
private investment firm ("KKR"). Member of the
Board of Directors of Flagstar Companies, Inc.,
Flagstar Corporation, IDEX Corporation, RJR
Nabisco Holdings Corp., RJR Nabisco, Inc. and
The Stop & Shop Companies, Inc.
Scott M. Stuart............................. 35 Director, Vice President and Secretary of the
Purchaser and executive of KKR. Member of the
Board of Directors of Duracell International
Inc., RJR Nabisco Holdings Corp., RJR Nabisco,
Inc. and World Color Press, Inc.
Alexander Navab............................. 29 Director, Vice President and Treasurer of the
Purchaser and, since June 1993, executive of
KKR; from September 1991 to June 1993, employee
of James D. Wolfensohn Incorporated, an
investment banking firm located at 599 Lexington
Avenue, New York, New York 10022.
</TABLE>
GENERAL PARTNERS OF KKR ASSOCIATES
<TABLE><CAPTION>
NAME AND PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT
BUSINESS ADDRESS AGE AND FIVE YEAR EMPLOYMENT HISTORY
- ------------------------------------------- --- --------------------------------------------------
<S> <C> <C>
Henry R. Kravis............................ 50 General Partner, KKR. Member of the Board of
Directors of American Re Corporation, AutoZone,
Inc., Duracell International Inc., Flagstar
Companies, Inc., Flagstar Corporation, IDEX
Corporation, K-III Communications Corp., Owens-
Illinois, Inc., Owens-Illinois Group, Inc., RJR
Nabisco Holdings Corp., RJR Nabisco, Inc.,
Safeway Inc., The Stop & Shop Companies, Inc.,
Union Texas Petroleum Holdings, Inc., Walter
Industries, Inc. and World Color Press, Inc.
</TABLE>
I-1
<PAGE>
<TABLE><CAPTION>
NAME AND PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT
BUSINESS ADDRESS AGE AND FIVE YEAR EMPLOYMENT HISTORY
- ------------------------------------------- --- --------------------------------------------------
<S> <C> <C>
George R. Roberts.......................... 51 General Partner, KKR. Member of the Board of
2800 Sand Hill Road Directors of American Re Corporation, AutoZone,
Suite 200 Inc., Duracell International Inc., Flagstar
Menlo Park, CA 94025 Companies, Inc., Flagstar Corporation, IDEX
Corporation, K-III Communications Corp., Owens-
Illinois, Inc., Owens-Illinois Group, Inc., Red
Lion Properties, Inc., RJR Nabisco Holdings
Corp., RJR Nabisco, Inc., Safeway Inc., The Stop
& Shop Companies, Inc., Union Texas Petroleum
Holdings, Inc., Walter Industries, Inc. and
World Color Press, Inc.
Robert I. MacDonnell....................... 56 General Partner, KKR. Member of the Board of
2800 Sand Hill Road Directors of AutoZone, Inc., Owens-Illinois,
Suite 200 Inc., Owens-Illinois Group, Inc., Safeway Inc.
Menlo Park, CA 94025 and The Vons Companies, Inc.
Paul E. Raether............................ 48 General Partner, KKR. Member of the Board of
Directors of Duracell International Inc.,
Flagstar Companies, Inc., Flagstar Corporation,
Fred Meyer, Inc., IDEX Corporation, RJR Nabisco
Holdings Corp., RJR Nabisco, Inc., The Stop &
Shop Companies, Inc. and Walter Industries, Inc.
Michael W. Michelson....................... 43 General Partner, KKR. Member of the Board of
2800 Sand Hill Road Directors of AutoZone, Inc., Fred Meyer, Inc.,
Suite 200 Owens-Illinois, Inc., Owens-Illinois Group,
Menlo Park, CA 94025 Inc., Red Lion Properties, Inc. and Union Texas
Petroleum Holdings, Inc.
Saul A. Fox................................ 41 General Partner, KKR. Member of the Board of
2800 Sand Hill Road Directors of American Re Corporation, Fred
Suite 200 Meyer, Inc., Layne, Inc. and Union Texas
Menlo Park, CA 94025 Petroleum Holdings, Inc.
James H. Greene, Jr........................ 44 General Partner, KKR. Member of the Board of
2800 Sand Hill Road Directors of Owens-Illinois, Inc.,
Suite 200 Owens-Illinois Group, Inc., RJR Nabisco Holdings
Menlo Park, CA 94025 Corp., RJR Nabisco, Inc., Safeway Inc., The Stop
& Shop Companies, Inc., Union Texas Petroleum
Holdings, Inc. and The Vons Companies, Inc.
Michael T. Tokarz.......................... 45 General Partner, KKR. Member of the Board of
Directors of Flagstar Companies, Inc., Flagstar
Corporation, Homes Holdings Corporation, IDEX
Corporation, K-III Communications Corp., RJR
Nabisco Holdings Corp., RJR Nabisco, Inc.,
Safeway Inc. and Walter Industries, Inc.
</TABLE>
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<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates for Borden
Shares and/or Rights and any other required documents should be sent or
delivered by each shareholder of Borden or his broker, dealer, commercial bank,
trust company or other nominee to the Exchange Agent as follows:
The Exchange Agent for the Exchange Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
<TABLE>
<S> <C>
BY MAIL: BY HAND OR OVERNIGHT DELIVERY:
First Chicago Trust Company of New York First Chicago Trust Company of New York
Tenders & Exchanges Tenders & Exchanges
P.O. Box 2563--Suite 4660 14 Wall Street
Jersey City, New Jersey 07303-2563 Suite 4680--BOR, 8th Floor
New York, New York 10005
</TABLE>
Any questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective telephone numbers and addresses
listed below. Additional copies of this Offering Circular/Prospectus, the Letter
of Transmittal and the Notice of Guaranteed Delivery may also be obtained from
the Information Agent. You may also contact your broker, dealer, commercial bank
or trust company for assistance concerning the Exchange Offer.
The Information Agent for the Exchange Offer is:
D.F. KING & CO., INC.
<TABLE>
<S> <C>
UNITED STATES EUROPE
77 Water Street Royex House, Aldermanbury Square
New York, New York 10005 London, England EC2V 7HR
1-800-829-6551 (Toll Free) (44) 71 600 5005 (Collect)
</TABLE>
The Dealer Manager for the Exchange Offer is:
MORGAN STANLEY & CO.
Incorporated
1251 Avenue of the Americas
New York, New York 10020
(212) 703-4774
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any person who was
or is, or is threatened to be made, a party to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. A Delaware corporation may indemnify any
person who was or is a director, officer, employee or agent of the corporation
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the director, officer, employee or agent
is adjudged to be liable to the corporation. Where a director, officer, employee
or agent is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses
(including attorneys' fees) which such director, officer, employee or agent
actually and reasonably incurred in connection therewith.
In accordance with the Delaware Law, Article Sixth of the Certificate of
Incorporation of Holdings contains a provision to limit the personal liability
of the directors of Holdings for monetary damages for breach of their fiduciary
duty. This provision eliminates each director's liability to Holdings or its
stockholders for monetary damages except (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the Delaware Law providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions, or (iv) for any transaction from which a director derived an
improper personal benefit. The effect of this provision is to eliminate the
personal liability of directors for monetary damages for actions involving a
breach of their fiduciary duty of care, including any such actions involving
gross negligence.
Article IV of the By-laws of Holdings provides for indemnification of any
current or former officer or director of Holdings to the full extent permitted
by applicable law.
In connection with the Exchange Offer, the Partnership has agreed to
indemnify Holdings and its directors, officers, affiliates and controlling
persons and Borden and its directors, officers, affiliates and controlling
persons from certain liabilities under the federal securities laws to the extent
they arise out of or are based upon information relating to the Partnership
furnished by the Partnership to Holdings for inclusion in the Registration
Statement or required to be included therein and omitted from the information
furnished. In addition, Borden has provided a similar indemnity to Holdings and
its directors, officers, affiliates and controlling persons and the Partnership
and its partners and affiliates and their respective directors, officers and
controlling persons with respect to information it furnishes to Holdings for
inclusion in the Registration Statement or required to be included therein and
omitted from the information furnished. Holdings has provided a similar
indemnity to the Partnership and its partners and affiliates and their
respective directors, officers and controlling persons and Borden and its
directors, officers, affiliates and controlling persons with respect to
information it furnishes for inclusion in the Registration Statement or required
to be included therein and omitted from the information furnished. See
"Summary."
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<PAGE>
ITEM 21. EXHIBITS.
<TABLE><CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------
<C> <S>
+1.1 Form of Dealer Manager Agreement.
**2.1(a) Agreement and Plan of Merger dated as of September 23, 1994 among
Borden Acquisition Corp., Whitehall Associates, L.P. and
Borden, Inc.
+2.1(b) Form of Amendment, dated as of November 15, 1994, among Borden
Acquisition Corp., Whitehall Associates, L.P. and Borden, Inc.
**2.2 Conditional Purchase/Stock Option Agreement dated as of September
23, 1994 by and among Whitehall Associates, L.P., Borden
Acquisition Corp. and Borden, Inc.
3.1 Amended and Restated Certificate of Incorporation of RJR Nabisco
Holdings Corp., filed October 1, 1990 (incorporated by
reference to Exhibit 3.1 to Amendment No. 4 filed on October 2,
1990, to the Registration Statement on Form S-4 of RJR Nabisco
Holdings Corp., Registration No. 33-36070, filed on July 25,
1990, as amended (the "Form S-4, Registration No. 33-36070")).
3.1(a) Certificate of Amendment to Amended and Restated Certificate of
Incorporation of RJR Nabisco Holdings Corp., filed January 29,
1991 (incorporated by reference to Exhibit 3.1(a) to Amendment
No. 3, filed on January 31, 1991, to the Registration Statement
on Form S-4 of RJR Nabisco Holdings Corp., Registration No.
33-38227).
3.1(b) Certificate of Designation of ESOP Convertible Preferred Stock,
filed April 10, 1991 (incorporated by reference to Exhibit
3.1(b) to Amendment No. 2 filed on April 11, 1991, to the
Registation Statement on Form S-1 of RJR Nabisco Holdings
Corp., Registration No. 33-39532, filed on March 20, 1991).
3.1(c) Certificate of Designation of Series A Conversion Preferred
Stock, filed November 7, 1991 (incorporated by reference to
Exhibit 3.1(c) to Amendment No. 3, filed on November 1, 1991,
to the Registration Statement on Form S-1 of RJR Nabisco
Holdings Corp., Registration No. 33-43137, filed October 2,
1991).
3.1(d) Certificate of Amendment to Amended and Restated Certificate of
Incorporation of RJR Nabisco Holdings Corp., filed December 16,
1991 (incorporated by reference to Exhibit 3.1(d) of the Annual
Report on Form 10-K of RJR Nabisco Holdings Corp., RJR Nabisco
Holdings Group, Inc., RJR Nabisco Capital Corp. and RJR
Nabisco, Inc. for the fiscal year ended December 31, 1991, File
Nos. 1-10215, 1-10214, 1-10248 and 1-6388 (the "1991 Form
10-K")).
3.1(e) Certificate of Amendment to the Amended and Restated Certificate
of Incorporation of RJR Nabisco Holdings Corp. (relating to the
authorization of the issuance of additional shares of Common
Stock) filed April 6, 1993 (incorporated by reference to
Exhibit 3.3 of the Quarterly Report on Form 10-Q of RJR Nabisco
Holdings Corp. and RJR Nabisco, Inc. for the fiscal quarter
ended March 31, 1993, filed April 30, 1993 (the "March 1993
Form 10-Q")).
3.1(f) Certificate of Designation of Series B Cumulative Preferred
Stock, filed August 16, 1993 (incorporated by reference to
Exhibit 3.1(f) of the Annual Report on Form 10-K of RJR Nabisco
Holdings Corp. and RJR Nabisco, Inc. for the fiscal year ended
December 31, 1993, File Nos. 1-10215 and 1-6388 (the "1993 Form
10-K")).
3.1(g) A composite of the Amended and Restated Certificate of
Incorporation of RJR Nabisco Holdings Corp., as amended to
August 16, 1993 (incorporated by reference to Exhibit 3.1(g) of
the 1993 Form 10-K).
3.1(h) Certificate of Designation of Series C Conversion Preferred Stock
(incorporated by reference to Exhibit 4.1(h) to the
Registration Statement on Form S-3 of RJR Nabisco Holdings
Corp., Registration No. 33-52381 filed on February 2, 1994, as
amended (the Form S-3, Registration No. 33-52381).
3.2 Amended and Restated By-laws of RJR Nabisco Holdings Corp., as
amended, effective January 20, 1994 (incorporated by reference
to Exhibit 3.2 to the 1993 Form 10-K).
4.1 Credit Agreement dated as of December 1, 1991, among RJR Nabisco
Holdings Corp., RJR Nabisco Holdings Group, Inc., RJR Nabisco
Capital Corp., RJR Nabisco, Inc. and the lending institutions
party thereto (incorporated by reference to Exhibit 4.1 of the
1991 Form 10-K) (the "Credit Agreement").
4.1(a) Amendment No. 1 to Credit Agreement, dated as of October 21, 1992
(incorporated by reference to Exhibit 4.1(a) of the Annual
Report on Form 10-K of RJR Nabisco Holdings Corp. and RJR
Nabisco, Inc. for the fiscal year ended December 31, 1992, File
Nos. 1-10215 and 1-6388).
4.1(b) Amendment No. 2 to Credit Agreement, dated as of March 4, 1993
(incorporated by reference to Exhibit 4.2 of the March 1993
Form 10-Q).
</TABLE>
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<TABLE>
<C> <S>
4.1(c) Amendment No. 3 to Credit Agreement, dated as of October 12, 1993
(incorporated by reference to Exhibit 10.1 of the Quarterly
Report on Form 10-Q of RJR Nabisco Holdings Corp. and RJR
Nabisco, Inc. for the quarter ended September 30, 1993 (the
"September 1993 Form 10-Q").
4.2 Credit Agreement dated as of April 5, 1993 among RJR Nabisco
Holdings Corp., RJR Nabisco, Inc. and the lending institutions
party thereto (incorporated by reference to Exhibit 4.3 of the
March 1993 Form 10-Q) (the "1993 Credit Agreement")
4.2(a) Amendment No. 1 to 1993 Credit Agreement, dated October 12, 1993
(incorporated by reference to Exhibit 10.1 of the September
1993 10-Q).
4.3 Indenture dated as of April 25, 1991 among RJR Nabisco Capital
Corp., RJR Nabisco Holdings Corp., RJR Nabisco Holdings Group,
Inc., RJR Nabisco, Inc. and Citibank, N.A., as Trustee,
relating to the 10 1/2% Senior Notes due 1998, including form
of securities. (incorporated by reference to Exhibit 4.5 to
Amendment No. 7 filed on August 11, 1993, to the Registration
Statement on Form S-3 of RJR Nabisco Holdings Corp.,
Registration No. 33-58930, filed March 1, 1993, as amended (the
"Form S-3, Registration No. 33-58930")).
4.3(a) First Supplemental Indenture dated as of May 18, 1992 among RJR
Nabisco, Inc., RJR Nabisco Holdings Corp., RJR Nabisco Holdings
Group, Inc. and Citibank, N.A., as Trustee, relating to the 10
1/2% Senior Notes due 1998 (incorporated by reference to
Exhibit 4.5(a) to the Form S-3, Registration No. 33-58930).
4.5 Indenture dated as of May 22, 1989 among RJR Holdings Capital
Corp., RJR Holdings Corp., RJR Holdings Group, Inc., RJR
Nabisco, Inc. and Security Pacific National Trust Company (New
York), as Trustee, relating to the 15% Payment-in-Kind
Subordinated Debentures due 2001, including form of securities
(incorporated by reference to Exhibit 4.6 to the Form S-3,
Registration No. 33-58930).
4.5(a) First Supplemental Indenture dated as of May 18, 1992 among RJR
Nabisco, Inc., RJR Nabisco Holdings Corp., RJR Nabisco Holdings
Group, Inc. and Security Pacific National Trust Company (New
York), as Trustee, relating to the 15% Payment-in-Kind
Subordinated Debentures due 2001 (incorporated by reference to
Exhibit 4.6(a) to the Form S-3, Registration No. 33-58930).
4.6 Indenture dated as of May 22, 1989 among RJR Holdings Capital
Corp., RJR Holdings Corp., RJR Holdings Group, Inc., RJR
Nabisco, Inc. and Security Pacific National Trust Company (New
York), as Trustee, relating to the Subordinated Discount
Debentures due 2001, including form of securities (incorporated
by reference to Exhibit 4.7 to the Form S-3, Registration No.
33-58930).
4.6(a) First Supplemental Indenture dated as of May 18, 1992 among RJR
Nabisco, Inc., RJR Nabisco Holdings Corp., RJR Nabisco Holdings
Group, Inc. and Security Pacific National Trust Company (New
York), as Trustee, relating to the Subordinated Discount
Debentures due 2001 (incorporated by reference to Exhibit
4.7(a) to the Form S-3, Registration No. 33-58930).
4.7 Indenture dated as of May 22, 1989 among RJR Holdings Capital
Corp., RJR Holdings Corp., RJR Holdings Group, Inc., RJR
Nabisco, Inc. and U.S. Trust Company of California, N.A., as
Trustee, relating to the 13 1/2% Subordinated Debentures due
2001, including form of securities (incorporated by reference
to Exhibit 4.8 to the Form S-3, Registration No. 33-58930).
4.7(a) First Supplemental Indenture dated as of May 18, 1992 among RJR
Nabisco, Inc., RJR Nabisco Holdings Corp., RJR Nabisco Holdings
Group, Inc. and Security Pacific National Trust Company (New
York), as trustee, relating to the 13 1/2% Subordinated
Debentures due 2001 (incorporated by reference to Exhibit
4.8(a) to the Form S-3, Registration No. 33-58930).
+5.1 Opinion of Jo-Ann Ford regarding the legality of the securities
being registered.
+5.2 Opinion of Simpson Thacher & Bartlett regarding certain United
States federal income tax consequences.
10.1 Registration Rights Agreement, dated as of February 9, 1989,
among RJR Holdings Corp., RJR Associates, L.P., KKR Partners
II, L.P., Drexel Burnham Lambert Incorporated and Merrill Lynch
& Co. (incorporated by reference to Exhibit 4.3 to the
Registration Statement on Form S-1 of RJR Holdings Corp.,
Registration No. 33-29401, filed on June 20, 1989, as amended).
10.28 Registration Rights Agreement (Common Stock), dated as of July
15, 1990, between RJR Nabisco Holdings Corp. and Whitehall
Associates, L.P. (incorporated by reference to Exhibit 4.5 to
the Form S-4, Registration No. 33-36070).
</TABLE>
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<TABLE>
<C> <S>
+10.50 Form of Indemnification Agreement, dated as of October 4, 1994,
among RJR Nabisco Holdings Corp., Whitehall Associates, L.P.,
Borden Acquisition Corp. and Borden, Inc.
21 Subsidiaries of the Registrant (incorporated by reference to
Exhibit 21 of the 1993 Form 10-K).
+23.1 Consent of Deloitte & Touche LLP, Independent Auditors for RJR
Nabisco Holdings Corp. and RJR Nabisco, Inc.
+23.2 Consent of Price Waterhouse LLP, Independent Accountants for
Borden, Inc.
+23.3 Consent of Jo-Ann Ford (included in her opinion filed as Exhibit
5.1).
+23.4 Consent of Simpson Thacher & Bartlett (included in their opinion
filed as Exhibit 5.2).
+23.5 Consent of Lazard Freres & Co.
+23.6 Consent of CS First Boston Corporation.
**24.1 Powers of Attorney of Charles M. Harper, Stephen R. Wilson,
Robert S. Roath, John T. Chain, Jr., John R. Clendenin, James
H. Greene, Jr., H. John Greeniaus, James W. Johnston, Henry R.
Kravis, John G. Medlin, Jr., Paul E. Raether, Lawrence R.
Ricciardi, Rozanne L. Ridgway, Clifton S. Robbins and Scott M.
Stuart.
+99.1 Form of Letter of Transmittal.
+99.2 Form of Notice of Guaranteed Delivery.
+99.3 Form of Letter from the Dealer Manager to Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.
+99.4 Form of letter to clients for use by Brokers, Dealers, Commercial
Banks and Other Nominees.
+99.5 Form of Guidelines for Certification of Taxpayer Indentification
Number on Substitute Form W-9.
+99.6 Opinion of Lazard Freres & Co.
+99.7 Opinion of CS First Boston Corporation
</TABLE>
- ------------
+ Filed herewith.
** Previously filed.
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of Regulation S-X at the start of
any delayed offering or throughout a continuous offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or
II-4
<PAGE>
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospects is sent or given, the
latest quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
The undersigned registrant hereby undertakes that prior to any public
reoffering of the securities registered hereunder through use of a prospectus
which is a part of this registration statement, by any person or party who is
deemed to be an underwriter within the meaning of Rule 145(c), such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other Items of
the applicable form.
The undersigned registrant hereby undertakes that every prospectus (i) that
is filed pursuant to the paragraph immediately preceding, or (ii) that purports
to meet the requirements of Section 10(a)(3) of the Securities Act of 1933 and
is used in connection with an offering of securities subject to Rule 415, will
be filed as part of an amendment to the registration statement and will not be
used until such amendment is effective, and that, for purposes of determining
any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned hereby undertakes to supply by means of a post-effective
amendment all information concerning a transaction, and the company being
acquired involved therein, that was not the subject of and included in the
registration statement when it became effective.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on November 15, 1994.
RJR NABISCO HOLDINGS CORP.
By: /s/ JO-ANN FORD
..................................
Title: Vice President, Assistant
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed below by the following persons in
the capacities indicated on November 15, 1994.
<TABLE><CAPTION>
SIGNATURE TITLE
- ----------------------------- ----------------------------
<C> <S>
* Chairman of the Board and
............................. Chief Executive Officer
(Charles M. Harper) (principal executive
officer) and Director
* Executive Vice President and
............................. Chief Financial Officer
(Stephen R. Wilson) (principal financial
officer)
* Senior Vice President and
............................. Controller (principal
(Robert S. Roath) accounting officer)
* Director
.............................
(John T. Chain, Jr.)
............................. Director
(Julius L. Chambers)
* Director
.............................
(John L. Clendenin)
* Director
.............................
(James H. Greene, Jr.)
* Director
.............................
(H. John Greeniaus)
* Director
.............................
(James W. Johnston)
* Director
.............................
(Henry R. Kravis)
* Director
.............................
(John G. Medlin, Jr.)
* Director
.............................
(Paul E. Raether)
</TABLE>
II-6
<PAGE>
<TABLE><CAPTION>
SIGNATURE TITLE
- ----------------------------- ----------------------------
<C> <S>
* Director
.............................
(Lawrence R. Ricciardi)
* Director
.............................
(Rozanne L. Ridgway)
* Director
.............................
(Clifton S. Robbins)
............................. Director
(George R. Roberts)
* Director
.............................
(Scott M. Stuart)
............................. Director
(Michael T. Tokarz)
</TABLE>
*By: /s/ JO-ANN FORD
.....................................
Jo-Ann Ford
Attorney-in-fact
II-7
EXHIBIT 1.1
DEALER MANAGER AGREEMENT
November __, 1994
Morgan Stanley & Co.
Incorporated
1251 Avenue of the Americas
New York, New York 10020
Dear Sirs:
1. General. Borden Acquisition Corp., a New Jersey corporation
-------
("Bidder") and a subsidiary of Whitehall Associates, L.P. (and, prior to the
consummation of the Exchange Offer referred to below, common stock of which
will also be held by KKR Partners II, L.P. (collectively "Parents")), limited
partnerships affiliated with Kohlberg Kravis Roberts & Co., L.P., plans to make
an offer (such offer, as it may from time to time be amended and supplemented,
being the "Exchange Offer") for all outstanding shares of common stock, par
value $.625 per share (the "Shares"), of Borden, Inc., a New Jersey corporation
(the "Company"), in exchange for shares of common stock, par value $.01 per
share (the "Exchange Shares") of RJR Nabisco Holdings Corp. ("Holdings"), on the
terms and subject to the conditions set forth in the Exchange Offer Materials
(as defined below).
2. Engagement as Dealer Manager. Bidder hereby engages you as sole
----------------------------
Dealer Manager in connection with the Exchange Offer. As Dealer Manager, you
agree, in accordance
<PAGE>
with your customary practice, to perform in connection with the Exchange Offer
the services that are customarily performed by investment banking concerns in
connection with similar exchange offers, including, without limitation,
soliciting the tender of Shares pursuant to the Exchange Offer. As Dealer
Manager in connection with the Exchange Offer, you shall act as an independent
contractor (and shall not be deemed to act as an agent of Bidder) with duties
solely to Bidder.
3. Solicitation of Tenders. In soliciting tenders, no securities
-----------------------
broker or dealer, commercial bank or trust company shall be deemed to act as
your agent or the agent of Bidder or Parent; and you, as Dealer Manager, shall
not be deemed the agent of any other securities broker or dealer or of any
commercial bank or trust company.
4. Exchange Offer Material. (a) Holdings has filed with the
-----------------------
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), and the rules and regulations of the Commission
thereunder, a registration statement (File No. 33-55767) in respect of the
Exchange Shares issuable pursuant to the Exchange Offer and such registration
statement and any post-effective amendment thereto has been declared effective
by the Commission. Any offering circular-prospectus used before the time such
registration statement becomes effective is hereinafter referred to as a
"Preliminary
-2-
<PAGE>
Prospectus"; the various parts of such registration statement, including all
exhibits thereto and including the documents incorporated by reference in the
offering circular-prospectus contained in the registration statement at the time
such part of the registration statement became effective, each as amended at the
time such part of the registration statement became effective, is hereinafter
called the "Registration Statement"; and the final offering circular-prospectus,
in the form included in the Registration Statement at the time it became
effective, is hereinafter called the "Prospectus," except that if the final
offering circular-prospectus furnished to you for use in connection with the
Exchange Offer differs from the offering circular-prospectus set forth in the
Registration Statement (whether or not such prospectus is required to be filed
pursuant to Rule 424(b) under the Act), the term "Prospectus" shall refer to the
final offering circular-prospectus furnished to you for such use. Any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
11 of Form S-4 under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
-3-
<PAGE>
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; and any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of Holdings filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration Statement that
is incorporated by reference in the Registration Statement.
(b) Bidder has prepared and filed, or agrees that prior to or on the
Commencement Date (as defined below) it will file, with the Commission under the
Exchange Act and the rules and regulations promulgated thereunder a Statement on
Schedule 14D-1 with respect to the Exchange Offer (including the exhibits
thereto and any documents incorporated by reference therein, the
"Schedule 14D-1").
(c) The Registration Statement and the Prospectus, and the related
letter of transmittal to be used by holders tendering Shares pursuant to the
Exchange Offer (the "Letter of Transmittal"), notice of guaranteed delivery, and
any other offering materials and information as the Bidder may use or prepare,
approve or authorize for use in connection with the Exchange Offer, including
the Schedule 14D-1, each as amended or supplemented from time to
-4-
<PAGE>
time, are herein collectively referred to as the "Exchange Offer Materials."
(d) Bidder agrees that, a reasonable time prior to using, or filing
with the Commission, it will furnish to you draft copies of the Exchange Offer
Materials (other than documents incorporated by reference therein by Holdings)
and will give reasonable consideration to your and your counsel's prompt
comments, if any, thereon, provided, however, that Bidder may issue press
releases without furnishing you with draft copies thereof if due to time
constraints it is not practicable to do so.
5. Exchange Offer. (a) Bidder intends to commence the Exchange
--------------
Offer as soon as practicable after the Registration Statement becomes effective
under the Act by publicly announcing its commencement and by mailing, or causing
to be mailed on its behalf, copies of the Prospectus, the related Letter of
Transmittal and such of the other Exchange Offer Materials as may be required or
as Bidder may elect to furnish to each holder of record of the Shares (the date
of the commencement of such distribution being herein called the "Commencement
Date").
(b) Bidder has approved the Exchange Offer Materials and authorizes
you and any other securities dealer or any commercial bank or trust company to
use the Exchange Offer Materials in connection with the solicitation of tenders
and you agree not to provide any information to
-5-
<PAGE>
holders of Shares in connection with any solicitation other than the information
contained in the Exchange Offer Materials. You shall not have any obligation to
cause any Exchange Offer Materials to be transmitted generally to the holders of
the Shares.
6. Withdrawal. In the event that (i) Bidder or Parent uses or
----------
permits the use of, any Exchange Offer Materials (a) which are required to be
but have not been timely submitted to you previously for your and your counsel's
comments or (b) which have been so submitted, and you have or your counsel has
made comments which have not been reflected in a manner reasonably satisfactory
to you and your counsel; (ii) any of Bidder or Holdings shall have breached, in
any material respect, any of its representations, warranties, agreements or
covenants herein; (iii) the Registration Statement shall not have become
effective on or prior to the Commencement Date, or, at any time during the
Exchange Offer, a stop order suspending the effectiveness of the Registration
Statement shall have been issued or a proceeding for that purpose shall have
been instituted or shall be pending or threatened by the Commission, or a
request for additional information on the part of the Commission shall not have
been satisfied to your reasonable satisfaction; or there shall have been issued,
at any time during the Exchange Offer, any temporary restraining order or
injunction restraining or enjoining you
-6-
<PAGE>
from acting in your capacity as Dealer Manager with respect to the Exchange
Offer; (iv) Deloitte & Touche LLP, independent public accountants to Holdings,
shall not have furnished to you on the Commencement Date, a letter dated the
date of delivery thereof, in form and substance satisfactory to you, containing
statements and information of the type ordinarily included in accountants'
"procedures letters" with respect to the financial statements and certain
financial information relating to Holdings contained in or incorporated by
reference into the Registration Statement or the Prospectus and confirming that
they are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations thereunder; or
(v) on the Commencement Date you shall not have received a certificate of an
executive officer of Bidder, dated as of the date of delivery thereof, to the
effect that all representations and warranties of Bidder contained herein are
true and correct in all material respects as though expressly made at such time
and Bidder has performed in all material respects, all of its obligations
hereunder theretofore required to be performed; then you shall be entitled to
withdraw as Dealer Manager in connection with the Exchange Offer without any
liability or penalty to you or any other Indemnified Person (as defined in
Section 14 below) and without loss of any
-7-
<PAGE>
right to indemnification or contribution provided in Section 14.
7. Fees. Pursuant to a letter agreement dated September 12, 1994
----
between Bidder and you (the "Engagement Letter"), Bidder has agreed, among other
things, to compensate you for your services as financial advisor to Bidder,
including your services as Dealer Manager. No separate compensation shall be
payable hereunder.
8. Reimbursement of Expenses, Etc. Whether or not any Shares are
-------------------------------
acquired pursuant to the Exchange Offer, Bidder agrees to reimburse all dealers
and brokers (including you), commercial banks, trust companies and nominees for
their customary mailing and handling expenses incurred in forwarding the
Exchange Offer Materials to their customers. The expense reimbursement
provisions of the Engagement Letter are incorporated herein by reference as if
restated herein in their entirety, and Bidder agrees to reimburse your expenses
as provided therein.
9. The Exchange Agent and Information Agent. Bidder has appointed,
----------------------------------------
and authorizes you to communicate with, First Chicago Trust Company of New York,
in its capacity as exchange agent (the "Exchange Agent"), and D.F. King & Co.,
Inc., in its capacity as information agent (the "Information Agent"), in
connection with the Exchange Offer. Bidder shall advise or cause the Exchange
Agent to advise you at 5:00 p.m., New York City time, or as promptly
-8-
<PAGE>
as practicable thereafter, daily or more frequently if requested as to major
tally figures, by telephone or facsimile transmission as to, as of 4:00 p.m.,
the following information with respect to Shares (and Rights if applicable)
tendered: (i) the number of Shares (and Rights if applicable) validly tendered
on such day; (ii) the number of Shares (and Rights if applicable) validly
tendered represented by certificates physically held by the Exchange Agent (or
for which the Exchange Agent has received confirmation of receipt of book-entry
transfer of such Shares (and Rights if applicable) into its account at a Book-
Entry Transfer Facility pursuant to the procedures set forth in the Exchange
Offer) on such day; (iii) the number of Shares (and Rights if applicable)
represented by Notices of Guaranteed Delivery on such day; (iv) the number of
Shares (and Rights if applicable) properly withdrawn on such day; and (v) the
cumulative totals of the number of Shares (and Rights if applicable) in
categories (i) through (iv) above. On the day following such oral
communication, Bidder shall furnish or cause the Exchange Agent to furnish you
with a written report confirming the above information which has been
communicated orally. Bidder shall furnish or cause the Exchange Agent to
furnish you with such reasonable information on the tendering shareholders of
Borden as may be reasonably requested from time to time.
-9-
<PAGE>
10. Representations and Warranties of Bidder. Bidder represents and
----------------------------------------
warrants to you that:
(a) Bidder is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation,
each Parent is a limited partnership duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization,
Bidder has all necessary power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and each of Bidder and
each Parent has all necessary power and authority to consummate the
Exchange Offer.
(b) The Exchange Offer, this Agreement and all other actions by
Bidder and each Parent contemplated in the Exchange Offer Materials and
this Agreement have been duly and validly authorized by all necessary
corporate or partnership action by Bidder and each Parent, and no other
corporate or partnership proceedings by Bidder or either Parent are
necessary to authorize any such actions.
(c) This Agreement has been duly and validly executed and
delivered by Bidder and is a legal, valid and binding obligation of Bidder,
enforceable against Bidder in accordance with its terms, except as affected
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws
-10-
<PAGE>
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law), an
implied covenant of good faith and fair dealing and considerations of
public policy. The Engagement Letter and the indemnity letter dated
September 12, 1994 between Bidder and you (the "Indemnity Letter") each has
been duly and validly executed and delivered by Bidder and each is a legal,
valid and binding obligation of Bidder enforceable against it in accordance
with their respective terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law), an
implied covenant of good faith and fair dealing and considerations of
public policy.
(d) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Exchange Act and the rules and regulations of the
Commission thereunder; the Registration Statement did not, as of its
effective date, and will not, as of the date of effectiveness of any
amendment thereto, contain an untrue statement of a
-11-
<PAGE>
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Prospectus did not and will not, as of its filing date or as of the filing
date of any amendment or supplement thereto, include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to Bidder or
Holdings by you expressly for use therein; provided, further, that this
representation and warranty does not cover information regarding the
Company.
(e) The Schedule 14D-1, as originally filed and subsequently
amended, the other Exchange Offer Materials and any amendment or supplement
thereto conform, or will conform, in all material respects with all
applicable requirements of the Act and the Exchange Act and the rules and
regulations of the Commission thereunder; and none of the Schedule 14D-1,
the other Exchange Offer Materials or any amendment or supplement thereto
includes, or will include, an untrue statement of a material fact or omit
to state a material fact
-12-
<PAGE>
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to Bidder or Holdings by you expressly for
use therein; provided, further, that this representation and warranty does
not cover information regarding the Company.
(f) Bidder will accept Shares for exchange in accordance with
and subject to the terms and conditions of the Exchange Offer; and Bidder
has requested the Exchange Agent and the Exchange Agent has agreed with
Bidder to make appropriate arrangements with The Depository Trust Company,
the Midwest Securities Trust Company, the Philadelphia Depository Trust
Company and any other "qualified" registered securities depository to allow
for the book-entry movement of exchanged Shares between depository
participants and the Exchange Agent.
(g) Except as disclosed in the Prospectus, (i) the Exchange
Offer, the consummation of the transactions contemplated by the Exchange
Offer and the execution and delivery of, and the consummation of the
transactions contemplated in, this Agreement will
-13-
<PAGE>
comply in all material respects with all applicable requirements of law,
including the Act, the Exchange Act, the various state securities or "blue
sky" laws and state "takeover" statutes (collectively, "State Statutes")
and all applicable regulations of the Commission or any other governmental
agency (an "Other Agency"), and (ii) except for permits and similar
authorizations required under the securities or "blue sky" laws of certain
jurisdictions, and except for such consents which are required and have
been obtained, the commencement and consummation by Bidder and Parent of
the Exchange Offer and the other transactions contemplated herein and in
the Exchange Offer do not and will not require any material consent,
approval, authorization or permit of, filing with or notification to, the
Commission or any Other Agency.
(h) Except as would not have a material adverse effect on the
ability of Bidder to perform its obligations hereunder and of Bidder and
each Parent to consummate the Exchange Offer and the other transactions
contemplated thereby, the Exchange Offer, the consummation of the
transactions contemplated by the Exchange Offer and the execution and
delivery of, and the consummation of the transactions contemplated in, this
Agreement do not and will not (i) conflict with or violate the certificate
of incorporation or by-
-14-
<PAGE>
laws or equivalent organizational documents of Bidder or either Parent,
(ii) conflict with or violate any order, judgment or decree applicable to
Bidder or either Parent or by which any property or asset of Bidder or
either Parent is bound, or (iii) result in a breach of or constitute a
default (or an event which with notice or lapse of time or both would
become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a
lien or other encumbrance on any property or asset of Bidder or either
Parent pursuant to, any loan or credit agreement, indenture, mortgage, note
or other agreement or instrument to which Bidder or either Parent or any of
their subsidiaries or affiliates is a party or by which any of them or any
of their respective properties or assets is bound.
(i) Neither Bidder nor either Parent is, or will be as a result
of the consummation of the Exchange Offer, an "investment company" under
the Investment Company Act of 1940, as amended, and the rules and
regulations promulgated by the Commission thereunder.
11. Representations and Warranties Relating to Holdings. Bidder
---------------------------------------------------
represents and warrants to you that:
(a) Holdings is a corporation duly organized, validly existing
and in good standing under
-15-
<PAGE>
the laws of the jurisdiction of its incorporation, and has all necessary
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder.
(b) The execution and delivery of this Agreement and the
performance by Holdings of its obligations hereunder have been duly and
validly authorized by all necessary corporate actions by Holdings.
(c) This Agreement has been duly and validly executed and
delivered by Holdings and is a legal, valid and binding obligation of
Holdings, enforceable against it in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law), an implied covenant of good faith and fair
dealing and considerations of public policy.
(d) The execution and delivery of this Agreement and the
performance by Holdings of its obligations hereunder do not and will not
(i) conflict with the certificate of incorporation or by-laws of Holdings,
(ii) conflict with or violate any order, judgment or decree applicable to
Holdings or by which
-16-
<PAGE>
any property or asset of Holdings is bound, or (iii) except as disclosed in
the Exchange Offer Materials result in a material breach of or constitute a
material default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a
lien or other encumbrance on any property or asset of Holdings pursuant to,
any loan or credit agreement, indenture, mortgage, note or other agreement
or instrument to which Holdings or any of its subsidiaries or affiliates is
a party or by which any of them or any of their respective properties or
assets is bound.
(e) Holdings has obtained all consents, approvals,
authorizations and orders of, and has duly made all registrations,
qualifications and filings with, any court or regulatory authority or other
governmental agency or instrumentality required on its part to be obtained
or made in connection with the execution, delivery and performance of this
Agreement by it and the registration of the Exchange Shares for exchange.
(f) The financial statements of Holdings and its subsidiaries
set forth or incorporated by reference in the Exchange Offer Materials
fairly present the
-17-
<PAGE>
financial condition of Holdings and its consolidated subsidiaries as of
the dates indicated and the results of operations and changes in financial
position for the periods therein specified, and have been prepared in
conformity with generally accepted accounting principles consistently
applied throughout the periods involved (except as otherwise stated
therein).
(g) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and the Registration
Statement on the date it became effective did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to Holdings by you expressly for use
therein.
(h) Except as disclosed in the Prospectus, since the date of the
most recent audited financial statements included in the Exchange Offer
Materials, Holdings has conducted its business only in the ordinary course
consistent with past practice, and there is not and has not been any change
in the
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<PAGE>
business, financial condition or results of operations of Holdings or any
of its subsidiaries which has had, or would reasonably be expected to have,
a material adverse effect on the business, financial condition or results
of operations of Holdings and its subsidiaries, taken as a whole.
(i) All of the issued and outstanding shares of Holdings common
stock have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the Holdings common stock
contained in the Prospectus. All of the Exchange Shares transferred to
holders of the Shares pursuant to the Exchange Offer will be transferred
free and clear of all liens, charges and encumbrances of all kinds.
12. Opinions of Counsel to Bidder and Holdings. Bidder has delivered
------------------------------------------
to you opinions in form and substance satisfactory to you, of Lowenstein,
Sandler, Kohl, Fisher & Boylan, P.A., special New Jersey counsel to Bidder,
Simpson Thacher & Bartlett, counsel to Bidder, Davis, Polk & Wardwell, counsel
to Holdings, and Jo-Ann Ford, counsel of Holdings.
13. Covenants of Bidder and Holdings. (a) Bidder will notify you,
--------------------------------
promptly after it receives notice thereof, of the time when the Registration
Statement, or any amendment thereto, has been filed or becomes effective, or
-19-
<PAGE>
any amendment or supplement to the Prospectus or any amendment to the Schedule
14D-1 or any amended or additional Exchange Offer Materials shall have been
filed, of the receipt of any comments from the Commission relating to the
Exchange Offer, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus or any of the Exchange Offer Materials, of the suspension of the
qualification of the Exchange Shares for offering or sale in connection with the
Exchange Offer in any jurisdiction, of any request by the Commission to amend or
supplement the Registration Statement, the Prospectus, or the Schedule 14D-1 or
the other Exchange Offer Materials. Bidder will also inform you, promptly after
it receives notice thereof, of any material litigation or other administrative
proceeding with respect to the Exchange Offer.
(b) Holdings will notify you, promptly after it receives notice
thereof, of the time when the Registration Statement, or any amendment thereto,
has been filed or becomes effective, or any amendment or supplement to the
Prospectus of the receipt of any comments from the Commission relating to the
Registration Statement, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Exchange Shares for
offering or sale in
-20-
<PAGE>
connection with the Exchange Offer in any jurisdiction, of any request by the
Commission to amend or supplement the Registration Statement. Holdings will
also inform you, promptly after it receives notice thereof, of any material
litigation or other administrative proceeding with respect to the Exchange Offer
in which it is named as a party.
(c) Bidder will cause all amendments and supplements filed with the
Commission to be distributed to holders of the Shares as may be required by the
Act and the Exchange Act and the rules and regulations of the Commission
thereunder. During the period referred to in the second sentence of paragraph
(d) below, Bidder will deliver to you, without charge, such number of copies of
the Prospectus and the other Exchange Offer Materials (as supplemented or
amended) as you may reasonably request. Prior to the consummation of the
Exchange Offer and before amending or supplementing the Registration Statement,
any Preliminary Prospectus, the Prospectus, the Schedule 14D-1 or the other
Exchange Offer Materials, or approving any other material for use in connection
with the Exchange Offer, other than, in each case, documents incorporated by
reference therein by Holdings, Bidder will furnish you with a copy of each such
proposed amendment or supplement, provided, however, that Bidder may issue press
releases without furnishing you with draft copies thereof if due to time
constraints it is not practicable to do so.
-21-
<PAGE>
(d) Bidder will comply in all material respects with the Act and the
Exchange Act and the rules and regulations of the Commission thereunder in
connection with the Registration Statement and the Prospectus, and the other
Exchange Offer Materials, the Exchange Offer and the transactions contemplated
hereby and thereby. If at any time during the period when a prospectus is
required to be delivered by the Act or the Exchange Act and the rules and
regulations promulgated thereunder in connection with the Exchange Offer any
event shall occur as a result of which it is necessary to amend or supplement
the Prospectus or any of the other Exchange Offer Materials in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus or other Exchange Offer Materials are delivered, not
misleading, or if in the opinion of your counsel or in the opinion of Bidder, it
shall be necessary to amend or supplement the Registration Statement or the
Prospectus or any of the other Exchange Offer Materials in order to comply with
law, Bidder will notify you and promptly prepare and furnish, at its own
expense, to you and file with the Commission, if required, such amendment or
supplement as may be necessary so that the statements in the Prospectus or other
Exchange Offer Materials, as amended or supplemented, will not, in the light of
the circumstances under which they were made when the Prospectus or the other
Exchange Offer Materials are
-22-
<PAGE>
delivered, be misleading or so that the Registration Statement and the
Prospectus or such other Exchange Offer Materials comply with law.
(e) Holdings will comply in all material respects with the Act and
the Exchange Act and the rules and regulations of the Commission thereunder in
connection with the Registration Statement and the Prospectus. If at any time
during the period when a prospectus is required to be delivered by the Act or
the Exchange Act and the rules and regulations promulgated thereunder in
connection with the Exchange Offer any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or if in the opinion of your
counsel or in the opinion of Holdings, it shall be necessary to amend or
supplement the Registration Statement or the Prospectus in order to comply with
law, Holdings will notify you and promptly prepare and furnish, at its own
expense, to you and file with the Commission, if required, such amendment or
supplement as may be necessary so that the statements in the Prospectus, as
amended or supplemented, will not, in the light of the circumstances under which
they were made when the Prospectus is delivered, be misleading or so that the
Registration Statement and the Prospectus comply with law.
-23-
<PAGE>
(f) Bidder and Holdings will endeavor to qualify the Exchange Shares
for offering and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and Bidder will pay all expenses
(including reasonable fees and disbursements of its counsel) in connection
therewith.
(g) Holdings will make generally available to its security holders as
soon as practicable, but in any event not later than 12 months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act) an earnings statement of Holdings and its subsidiaries complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of Holdings, Rule 158 under the Act).
(h) Bidder shall promptly give you notice of any change of the
expiration date of the Exchange Offer, of the occurrence of any event which
could cause Bidder and Parent to withdraw, rescind, modify or amend the Exchange
Offer and of any consummation of the Exchange Offer.
(i) Bidder shall promptly give you notice of any material request for
additional information or other material action by (i) the Federal Trade
Commission or the Antitrust Division of the Department of Justice under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or the rules
promulgated thereunder, (ii) the European Commission under Regulations (EEC) No.
4064/89, or
-24-
<PAGE>
(iii) the Director of Investigation and Research under Canada's Competition Act.
(j) Bidder shall promptly give you any other information relating to
the Exchange Offer which you may from time to time reasonably request.
14. Indemnification and Contribution; Settlement of Litigation;
-----------------------------------------------------------
Release. (a) The provisions of the Indemnity Letter relating to
- -------
indemnification are incorporated herein by reference as if restated herein in
their entirety, and Bidder agrees to indemnify you and the other Indemnified
Persons as provided in the Indemnity Letter.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 14(a), such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the
-25-
<PAGE>
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there shall be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
Bidder will not, without your prior written consent, settle, compromise, consent
to the entry of any judgment in or otherwise seek to terminate any action,
claim, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not you are a party thereto) unless such settlement,
compromise,
-26-
<PAGE>
consent or termination includes a release of you from any liabilities arising
out of such action, claim, suit or proceeding.
(c) If the indemnification provided for in Section 14(a) above is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by Bidder on the one hand and you on the
other from the Exchange Offer or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of Bidder and Holdings on the one hand and of you on the
other, in the case of statements or omissions in connection with the statements
or omission or, in the case of any other action or omission, the action or
omission which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by Bidder on the one hand and you on the other in connection with the Exchange
Offer shall be deemed to be in the same proportion as the maximum aggregate
value of the
-27-
<PAGE>
consideration proposed to be paid by Bidder to acquire the Shares pursuant to
the Exchange Offer bears to the maximum aggregate fee proposed to be paid to you
pursuant to Section 7 of this Agreement (including any such fee payable pursuant
to the Engagement Letter) as a result of the acquisition of the Shares pursuant
to the Exchange Offer. The relative fault of Bidder and Holdings on the one
hand and you on the other shall be determined by reference to, among other
things, in the case of statements or omission, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by Bidder or Holdings on the one
hand or you on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission
and, in the case of any other action or omission, whether such action or
omission was taken or omitted to be taken by Bidder or Holdings on the one hand
or you on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action or omission.
(d) Bidder and you agree that it would not be just and equitable if
contribution pursuant to subsection (c) of this Section 14 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to
-28-
<PAGE>
in subsection (c) of this Section 14. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 14(c) above shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 14,
you shall not be required to contribute any amount in excess of the amount by
which the fee paid to you as provided in Section 7 of this Agreement (including
any such fee payable pursuant to the Engagement Letter) exceeds the amount of
any damages which you have been required to pay in the case of statements or
omissions, by reason of such untrue or alleged untrue statement or omission or
alleged omission, or, in the case of actions or omissions, by reason of such
action or omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The agreements contained in Section 7, the indemnity and
contribution agreement contained in this Section 14 and the representations and
warranties of Bidder set forth in Sections 10 and 11 hereof shall remain
operative and in full force and effect regardless of (i) any termination or
cancellation of this Agreement, (ii) any
-29-
<PAGE>
completion of the engagement provided by this Agreement or (iii) any
investigation made by or on behalf of you and your officers, partners or
directors or of any person controlling you and shall survive any acquisition of
the Shares, whether pursuant to the Exchange Offer or otherwise.
(f) The reimbursement, indemnity and contribution obligations of
Bidder under this Section 14 shall be in addition to any liability which the
Bidder may otherwise have, shall extend upon the same terms and conditions to
your affiliates and your partners, directors, agents, employees and controlling
persons, if any (such persons, collectively referred to herein as, the
"Indemnified Person"), and shall inure to the benefit of any successors,
assigns, heirs and personal representative of Morgan Stanley & Co. Incorporated
and any other such Indemnified Persons referred to above.
15. Severability. If any term or other provision of this Agreement
------------
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic and legal substance of the agreements
contained herein is not affected in any manner adverse to any party.
16. Counterparts. This Agreement may be executed by the different
------------
parties hereto in one or more separate counterparts, each of which when executed
shall be deemed an
-30-
<PAGE>
original, but all of which together shall constitute one and the same agreement.
17. Binding Effect. This Agreement shall be binding upon and inure
--------------
solely to the benefit of each party hereto and the Indemnified Persons, and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person any right, benefit or remedy.
18. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York applicable to contracts
executed in and to be performed in that State.
19. Entire Agreement. This Agreement, together with the Engagement
----------------
Letter and the Indemnity Letter, constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof.
20. Amendment. This Agreement may not be amended except in writing
---------
signed by each party to be bound thereby.
21. Notices. All notices and other communications required or
-------
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered in person, or by registered or
certified mail (postage prepaid, return receipt requested) to the parties hereto
as follows (or, as to each party, at such
-31-
<PAGE>
other address as shall be designated by such party in a written notice complying
as to delivery with the terms of this paragraph):
(a) If to you:
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Attention: O. Griffith Sexton
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Neil T. Anderson
(b) If to Bidder:
c/o Kohlberg Kravis Roberts & Co.
9 West 57th Street, Suite 4200
New York, New York 10019
Attention: Clifton S. Robbins and
Scott M. Stuart
With a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Attention: Charles I. Cogut and
David J. Sorkin
(c) If to Holdings:
RJR Nabisco Holdings Corp.
1301 Avenue of the Americas
New York, New York 10019
Attention: Lawrence R. Ricciardi
-32-
<PAGE>
With a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Samuel F. Pryor III
22. Subheadings. The descriptive headings contained in this
-----------
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
Please indicate your willingness to act as Dealer Manager on the terms
set forth herein and your acceptance of the foregoing provisions by signing in
the space provided below for that purpose and returning to us a copy of this
letter, whereupon this letter and your acceptance shall constitute a binding
agreement among us.
Very truly yours,
BORDEN ACQUISITION CORP.
By
-------------------------------------------------
Name:
Title:
RJR NABISCO HOLDINGS CORP.
By
-------------------------------------------------
Name:
Title:
-33-
<PAGE>
Accepted as of the date
first set forth above:
MORGAN STANLEY & CO.
INCORPORATED
By
-----------------------
Name:
Title:
-34-
EXHIBIT 2.1(b)
AMENDMENT
---------
AMENDMENT, dated as of November 15, 1994 (the
"Amendment"), among BORDEN ACQUISITION CORP., a New Jersey
---------
corporation ("Purchaser"), WHITEHALL ASSOCIATES, L.P., a Delaware
---------
limited partnership ("Parent"), and BORDEN, INC., a New Jersey
------
corporation (the "Company") to the Agreement and Plan of Merger,
-------
dated as of September 23, 1994 (the "Original Agreement"), among
------------------
Purchaser, Parent and the Company.
1. Amendment to Section 1.1. Section 1.1 of the
------------------------
Original Agreement is hereby amended by deleting the third
sentence thereof in its entirety and inserting in lieu thereof
the following:
"The 'Exchange Ratio' shall mean the quotient (rounded
to the nearest 1/100,000) obtained by dividing (i) $14.25 by
(ii) the average of the average of the high and low sales
prices of Holdings Common Stock as reported on the New York
Stock Exchange Composite Tape on each of the ten full
consecutive trading days ending immediately prior to the ten
business day period ending on the date of expiration of the
Offer (the "Valuation Period"); provided that the Exchange
Ratio shall not be less than 1.78125 or greater than 2.375."
2. Authorization; Effectiveness. (a) This Amendment
----------------------------
has been duly executed and delivered by each party hereto and
constitutes a valid and binding obligation of each such party,
enforceable against such party in accordance with its terms
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing.
(b) This Amendment shall become effective upon
execution and delivery by the parties hereto. Except as
expressly amended hereby, the provisions of the Original
Agreement are and shall remain in full force and effect.
3. Governing Law. This Amendment shall be governed by
-------------
and construed in accordance with the laws of the State of New
Jersey, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
4. Counterparts. This Amendment may be executed in
------------
two or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same
agreement.
<PAGE>
2
IN WITNESS WHEREOF, each of the parties has caused this
Amendment to be executed on its behalf by its officers thereunto
duly authorized, all as of the day and year first above written.
WHITEHALL ASSOCIATES, L.P.
By: KKR Associates, a limited
partnership, its General
Partner
By:
------------------------------
Title: General Partner
BORDEN ACQUISITION CORP.
By:
------------------------------
Name: Clifton S. Robbins
Title: President
BORDEN, INC.
By:
------------------------------
Name: Allan I. Miller
Title: Senior Vice President,
Chief Administrative
Officer and General
Counsel
EXHIBIT 5.1
November 16, 1994
RJR Nabisco Holdings Corp.
1301 Avenue of the Americas
New York, NY 10019-6013
Ladies and Gentlemen:
I have acted as counsel for RJR Nabisco Holdings Corp., a Delaware
corporation (the "Company"), in connection with the Registration Statement, as
amended, on Form S-4, File No. 33-55767 (the "Registration Statement"),
relating to up to 353,680,264 shares of the Company's common stock, par
value $.01 per share (the "Common Stock"), to be exchanged by Borden
Acquisition Corp., an affiliate of Kohlberg Kravis Roberts & Co., L.P., for
shares of common stock of Borden, Inc.
I have examined the Registration Statement and the exhibits thereto
and the Amended and Restated Certificate of Incorporation of the Company, as
further amended. I have also examined originals or copies, certified or
otherwise identified to my satisfaction, of such other documents, evidence of
corporate action and other instruments and have made such other investigations
of law and fact, as I have deemed necessary or appropriate for the purpose of
this opinion. As to questions of fact relevant to this opinion, I have relied
upon certificates or written statements from officers and other appropriate
representatives of the Company and its subsidiaries or public officials. In
all such examinations I have assumed the genuineness of all signatures, the
authority to sign, and the authenticity of all documents submitted to me as
originals. I have also assumed the conformity with the originals of all
documents submitted to me as copies.
Based upon and subject to the foregoing, and to the qualifications
hereinafter specified, I am of the opinion that, the shares of Common Stock
have been duly authorized and are validly issued, fully paid and nonassessable.
The opinions set forth herein relate solely to the laws of the State of
New York, the General Corporation Law of the State of Delaware and the federal
laws of the United States.
I hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of my name under the heading "Legal
Matters" in the prospectus forming a part of the Registration Statement.
Very truly yours,
Jo-Ann Ford
Vice President, Secretary and
Assistant General Counsel
EXHIBIT 5.2
Simpson Thacher & Bartlett
November 16, 1994
Re: Registration Statement No. 33-55767
-----------------------------------
RJR Nabisco Holdings Corp.
1301 Avenue of the Americas
New York, New York 10019
Gentlemen:
We hereby consent to the filing under the above-
referenced Registration Statement of, and to the use of our
name in, the Offering Circular/Prospectus to the extent that
such Offering Circular/Prospectus includes our opinion
regarding United States federal income tax consequences of an
exchange of Borden Common Stock for Holdings Common Stock
pursuant to the Exchange Offer or the Merger described
therein.
Very truly yours,
SIMPSON THACHER & BARTLETT
EXHIBIT 10.50
INDEMNIFICATION AGREEMENT
-------------------------
INDEMNIFICATION AGREEMENT, dated as of October 4, 1994
(this "Agreement"), among RJR NABISCO HOLDINGS CORP., a Delaware
---------
corporation ("Holdings"), WHITEHALL ASSOCIATES, L.P., a Delaware
--------
limited partnership ("Whitehall Associates"), BORDEN ACQUISITION
--------------------
CORP., a New Jersey corporation ("BAC"), and BORDEN, INC., a New
---
Jersey corporation ("Borden").
------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Holdings and Whitehall Associates are parties
to a Registration Rights Agreement, dated as of July 15, 1990
(the "1990 Registration Rights Agreement") and Holdings,
----------------------------------
Whitehall Associates and KKR Partners II, L.P. ("KKR Partners"),
------------
an affiliate of the general partner of Whitehall Associates, are
parties to a Registration Rights Agreement dated as of February
9, 1989 (the "1989 Registration Rights Agreement" and together
----------------------------------
with the 1990 Registration Rights Agreement, the "Registration
------------
Rights Agreements"), pursuant to which, among other things,
-----------------
Holdings has agreed to use its best efforts to effect from time
to time registrations of certain of its securities under the
Securities Act of 1933, as amended (the "Securities Act");
--------------
WHEREAS, Whitehall Associates, BAC and Borden are
parties to an Agreement and Plan of Merger, dated as of September
23, 1994 (as amended, the "Merger Agreement"), pursuant to which,
----------------
subject to the terms and conditions thereof, BAC has agreed to
commence an exchange offer (the "Exchange Offer") for shares of
--------------
Borden's outstanding common stock, par value $.625 per share
("Borden Shares"), in which holders of Borden Shares would, upon
-------------
consummation of such Exchange Offer or the merger of BAC with and
into Borden (the "Merger") pursuant thereto (the Exchange Offer,
------
the Merger and the option given to BAC to acquire additional
Borden Shares being herein collectively referred to as the
"Transactions"), receive shares of common stock, par value $.01
------------
per share ("Holdings Shares"), of Holdings;
---------------
WHEREAS, pursuant to requests by Whitehall Associates
and KKR Partners under the Registration Rights Agreements,
Holdings has filed or will file with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-
----------
4 (including the Offering Circular/Prospectus (as defined below)
and as amended, including pre-effective and post-effective
amendments, and/or supplemented from time to time, the
"Registration Statement") in order to register the Holdings
----------------------
Shares under the Securities Act for purposes of the Exchange
Offer and the Merger;
<PAGE>
2
WHEREAS, pursuant to the requirements of Form S-4,
information concerning each party hereto will be included or
incorporated by reference in such Registration Statement and the
Offering Circular/Prospectus filed as a part thereof (as amended
and/or supplemented from time to time, the "Offering Circular/
------------------
Prospectus") and, in order to facilitate the registration of the
----------
Holdings Shares pursuant to the Registration Rights Agreements,
Holdings has agreed to enter into this Agreement;
WHEREAS, following the effectiveness of the
Registration Statement, Whitehall Associates and BAC will, in
accordance with the Merger Agreement, commence the Exchange Offer
and file with the Commission a Tender Offer Statement on Schedule
14D-1 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which Schedule 14D-1 will include as an exhibit
------------
thereto and incorporate by reference the Registration Statement
and the Offering Circular/Prospectus; and
WHEREAS, the parties hereto acknowledge that the
information included or incorporated by reference in the
Registration Statement has been furnished (i) in the case of
information relating to Whitehall Associates and BAC and the
Transactions, by Whitehall Associates and BAC, (ii) in the case
of information relating to Borden, by Borden and (iii) in the
case of information relating to Holdings, by Holdings, and the
parties hereto desire to set forth their agreement with respect
to indemnification of each other for such information in a manner
consistent with the source of such information;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, the parties hereto hereby
agree as follows:
Section 1. Definitions. As used in this Agreement,
-----------
the term "Indemnified Party" means, as to a particular party or
-----------------
parties hereto, each other party hereto, each affiliate of such
other party and their respective directors and officers or
general and limited partners (including any director, officer,
affiliate, employee, agent and controlling person of any of the
foregoing) and each other person, if any, who controls such other
party within the meaning of the Securities Act.
Section 2. Indemnification. (a) Whitehall Associates
---------------
and BAC, jointly and severally, shall, and each of them hereby
agrees to, indemnify and hold harmless, to the extent permitted
by law, each Indemnified Party against any and all losses,
claims, damages or liabilities, joint or several, and expenses
(including reasonable attorney's fees and reasonable expenses of
investigation) to which such Indemnified Party may become subject
under the Securities Act, the Exchange Act, common law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof, whether or not
such Indemnified Party is a party thereto) arise out of or are
based upon:
<PAGE>
3
(i) any untrue statement or alleged untrue statement
of any material fact; or
(ii) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein (in the case of a prospectus,
in light of the circumstances under which they were made)
not misleading,
contained in or omitted from the Whitehall/BAC Information (as
hereinafter defined) included or incorporated by reference, or
required to be included or incorporated by reference, in the
Registration Statement (it being understood that whether
information is required to be included or incorporated by
reference or whether there has been an omission shall be
determined without reference to any other information in the
Registration Statement that is not Whitehall/BAC information) and
Whitehall Associates and BAC, jointly and severally, will
reimburse such Indemnified Party for any legal or any other
expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability,
action or proceeding. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf
of any party hereto or any Indemnified Party and shall survive
the transfer of the Holdings Shares under the Registration
Statement.
"Whitehall/BAC Information" means the information which
-------------------------
is included or incorporated by reference in the Registration
Statement and is referred to under the caption "Whitehall/BAC
Information" on Schedule A hereto, as such Schedule may be
amended, supplemented or otherwise modified from time to time in
accordance with Section 4 hereof (the "Schedule").
--------
(b) Borden shall, and it hereby agrees to, indemnify
and hold harmless, to the extent permitted by law, each
Indemnified Party against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including reasonable
attorney's fees and reasonable expenses of investigation) to
which such Indemnified Party may become subject under the
Securities Act, the Exchange Act, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof, whether or not such
Indemnified Party is a party thereto) arise out of or are based
upon:
(i) any untrue statement or alleged untrue statement
of any material fact; or
(ii) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein (in the case of a prospectus,
in light of the circumstances under which they were made)
not misleading,
<PAGE>
4
contained in or omitted from the Borden Information (as
hereinafter defined) included or incorporated by reference, or
required to be included or incorporated by reference, in the
Registration Statement (it being understood that whether
information is required to be included or incorporated by
reference or whether there has been an omission shall be
determined without reference to any other information in the
Registration Statement that is not Borden Information) and Borden
will reimburse such Indemnified Party for any legal or any other
expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability,
action or proceeding. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf
of any party hereto or any Indemnified Party and shall survive
the transfer of the Holdings Shares under the Registration
Statement.
"Borden Information" means the information which is
------------------
included or incorporated by reference in the Registration
Statement and is referred to under the caption "Borden
Information" on the Schedule.
(c) Holdings shall, and it hereby agrees to, indemnify
and hold harmless, to the extent permitted by law, each
Indemnified Party against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including reasonable
attorney's fees and reasonable expenses of investigation) to
which such Indemnified Party may become subject under the
Securities Act, the Exchange Act, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof, whether or not such
Indemnified Party is a party thereto) arise out of or are based
upon:
(i) any untrue statement or alleged untrue statement
of any material fact; or
(ii) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein (in the case of a prospectus,
in light of the circumstances under which they were made)
not misleading,
contained in or omitted from the Holdings Information (as
hereinafter defined) included or incorporated by reference, or
required or to be included or incorporated by reference, in the
Registration Statement (it being understood that whether
information is required to be included or incorporated by
reference or whether there has been an omission shall be
determined without reference to any other information in the
Registration Statement that is not Holdings Information) and
Holdings will reimburse such Indemnified Party for any legal or
any other expenses reasonably incurred by it in connection with
<PAGE>
5
investigating or defending any such loss, claim, liability,
action or proceeding. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf
of any party hereto or any Indemnified Party and shall survive
the transfer of the Holdings Shares under the Registration
Statement.
"Holdings Information" means the information which is
--------------------
included or incorporated by reference in the Registration
Statement and is referred to under the caption "Holdings
Information" on the Schedule.
(d) Promptly after receipt by an Indemnified Party
hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may
be made pursuant to the Section 1(a), (b) or (c), such
Indemnified Party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided that the
--------
failure of the Indemnified Party to give notice as provided
herein shall not relieve the indemnifying party of its
obligations under Section 1(a), (b) or (c), as the case may be,
except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such
action is brought against an Indemnified Party, unless in such
Indemnified Party's reasonable judgment a conflict of interest
between such Indemnified Party and indemnifying parties may exist
in respect of such claim, the indemnifying party will be entitled
to participate in and to assume the defense thereof, jointly with
any other indemnifying party similarly notified to the extent
that it may wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the indemnifying party
to such Indemnified Party of its election so to assume the
defense thereof, the indemnifying party will not be liable to
such Indemnified Party for any legal or other expenses
subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party will consent to entry of any judgment or enter
into any settlement which does not include as an unconditional
term thereof, the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to
such claim or litigation.
(e) If the indemnification provided for in this
Section 1 shall for any reason be unavailable (including, without
limitation, as a result of an inability to allocate
responsibility for a material omission in accordance herewith to
any party hereto) to or insufficient to hold harmless an
Indemnified Party hereunder in respect of losses, claims, damages
or liabilities, joint or several, and expenses (including
reasonable attorney's fees and reasonable expenses of
investigation) to which such Indemnified Party may become subject
under the Securities Act, the Exchange Act, common law or
otherwise (or actions or proceedings in respect thereof), then
<PAGE>
6
each indemnifying party shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, claim, damage or
liability, or expenses (or actions or proceedings in respect
thereof), in such proportion as shall be appropriate to reflect
the relative benefits received by such indemnifying party on the
one hand and the Indemnified Party on the other from the offering
and exchange of the Holdings Shares and the relative fault of the
indemnifying party on the one hand and the Indemnified Party on
the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or expenses
(or actions or proceedings in respect thereof), as well as any
other relevant equitable considerations. The relative benefits
of a party hereunder shall be determined by reference to the
benefits received by each of them from the offering of the
Holdings Shares pursuant to the Registration Statement and the
Exchange Offer. The relative fault of a party hereunder shall be
determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information referred to in
Section 1(a), (b) or (c), as the case may be, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Each party hereto agrees that it would not be just and equitable
if contributions pursuant to this Section 1(e) were to be
determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by
an indemnifying party as a result of the loss, claim, damage or
liability, or expenses (or action or proceeding in respect
thereof) referred to above shall be deemed to include, for
purposes of this Section 1(e), any legal or any other expenses
reasonably incurred by an Indemnified Party in connection with
investigating or defending any such loss, claim, liability,
action or proceeding. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) Indemnification and contribution similar to that
specified in the preceding paragraphs of this Section 1 (with
appropriate modifications) shall be given by each party hereto
with respect to any required registration or other qualification
of the Holdings Shares for purposes of the Exchange Offer and the
Merger under any federal or state law or regulation or
governmental authority other than the Securities Act.
(g) The obligations of the parties under this Section
1 shall be in addition to any liability which any party may
otherwise have to any other party.
Section 3. Parties in Interest. This Agreement shall
-------------------
be binding upon and inure solely to the benefit of each party
hereto, and, with respect to the provisions of Section 1 shall
<PAGE>
7
inure to the benefit of the persons or entities benefitting from
the provisions thereof who are intended to be third-party
beneficiaries thereof. Except as provided in the preceding
sentence, nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason
of this Agreement.
Section 4. Amendments and Waivers. The parties hereto
----------------------
acknowledge that the registration statement as originally filed
may be amended by one or more pre-effective or post-effective
amendments thereto. Subject to Section 5, the parties hereto
agree to amend the Schedule to reflect the scope of the
information for which each is providing indemnification hereunder
in a manner consistent with the intention of the parties set
forth in the fifth recital hereto. This Agreement may be
otherwise amended and any party may take any action herein
prohibited, or omit to take any action herein required to be
performed by it, only if such party shall have obtained the
written consent to such amendment, action or omission to act of
each of the other parties hereto.
Section 5. Cooperation; SEC Discussions. Each party
----------------------------
hereto (a) agrees to cooperate with and provide assistance to the
other parties in connection with the preparation and filing of
the Registration Statement, (b) will be provided the opportunity
to review each filing before it is made and (c) will be afforded
the opportunity to receive and participate, to the extent
reasonably practicable, in oral and written communications with
the staff of the Commission in connection therewith. Each party
shall be deemed to have consented to any information included in
or omitted from a particular caption designated as its
information on the Schedule unless, prior to the filing of the
Registration Statement (or a particular amendment or supplement
thereto), such party objects to the inclusion or omission of such
information in writing (or orally if promptly confirmed in
writing). Information to the inclusion or omission of which a
party has timely objected in writing (the "Excluded Information")
--------------------
shall not be Whitehall/BAC Information, Borden Information or
Holdings Information, as the case may be, for purposes of Section
1 hereof. Notwithstanding the foregoing provisions of this
Section 5(b), Excluded Information shall not include information
incorporated by reference or derived (without material
modification) from documents otherwise filed by the objecting
party with the Commission.
Section 6. Rights Under Other Agreements. Except with
-----------------------------
respect to rights to indemnification, each party agrees that
nothing herein will limit or otherwise modify or affect any of
its rights, duties or obligations under (a) in the case of
Holdings, Whitehall Associates and the Purchaser, the
Registration Rights Agreements or (b) in the case of Whitehall
Associates, the Purchaser and Borden, the Merger Agreement.
<PAGE>
8
Section 7. Notices. All notices and other
-------
communications provided for hereunder shall be in writing and
shall be by first class mail, telex, telecopier or hand delivery:
If to Holdings:
1301 Avenue of the Americas
New York, New York 10019
Attention: Lawrence R. Ricciardi, Esq.
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: David W. Ferguson, Esq.
If to BAC or Whitehall Associates:
c/o Kohlberg Kravis Roberts & Co.
9 West 57th St., Suite 4200
New York, New York 10019
Attention: Clifton S. Robbins
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: David J. Sorkin, Esq.
If to Borden:
180 East Broad Street
Columbus, Ohio 43215
Attention: Frank J. Tasco
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Andrew R. Brownstein, Esq.
All such notices and communications shall be deemed to have been
given or made (1) when delivered by hand, (2) five business days
after being deposited in the mail, postage prepaid, or (3) when
telecopied, receipt acknowledged.
Section 8. Governing Law. This Agreement shall be
-------------
governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be
performed therein. The parties to this Agreement hereby agree to
submit to the jurisdiction of the courts of the State of New York
<PAGE>
9
in any action or proceeding arising out of or relating to this
Agreement.
Section 9. Descriptive Headings. The descriptive
--------------------
headings used herein are inserted for convenience of reference
only and shall not limit or otherwise affect the meaning of terms
contained herein.
Section 10. Counterparts. This Agreement may be
------------
executed in two or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one
and the same agreement.
Section 11. Severability. In the event that any one
------------
or more of the provisions, paragraphs, words, clauses, phrases or
sentences contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality or enforceability
of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not
be in any way impaired, it being intended that all rights, powers
and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
[Signatures appear on following page.]
<PAGE>
10
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its officers thereunto
duly authorized, all as of the day and year first above written.
RJR NABISCO HOLDINGS CORP.
By:
--------------------------
Name:
Title:
WHITEHALL ASSOCIATES, L.P.
By: KKR Associates, a limited
partnership, its General
Partner
By:
------------------------------
Name:
Title:
BORDEN ACQUISITION CORP.
By:
------------------------------
Name:
Title:
BORDEN, INC.
By:
-------------------------------
Name:
Title:
<PAGE>
Schedule A
----------
(Dated as of November 8, 1994)
Whitehall/BAC Information
-------------------------
(a) The inside and outside front and back cover pages
of the Offering Circular/Prospectus.
(b) The information in the Offering
Circular/Prospectus under the captions:
"Available Information" (insofar as it relates to
Whitehall Associates or BAC); "Summary--The Purchaser and the
Common Stock Partnerships" and "--The Exchange Offer, the
Merger and Related Transactions"; "Certain Significant
Considerations--Information Concerning the Transactions"
(other than the second paragraph under "--Possible Loss of
Stock Exchange Listing of Borden Common Stock"); "The
Exchange Offer" (other than the third paragraph under
"--Certain Regulatory Approvals and Legal Matters--Antitrust"
and "--Pending Litigation"); "Description of Merger Agreement
and Conditional Purchase/Option Agreement"; "Security
Ownership of Certain Beneficial Owners and Management"
(insofar as such information relates to KKR Associates);
"The Purchaser and the Common Stock Partnerships"; and
"Comparison of Rights of Holders of Borden and Holdings
Common Stock".
(c) The last paragraph of Item 20 in Part II of the
Registration Statement.
(d) Exhibits 1.1, 2.1, 2.2, 99.1, 99.2, 99.3, 99.4 and
99.5 of the Registration Statement, and Item 21 in Part II of the
Registration Statement with respect to such Exhibits.
Borden Information
------------------
(a) The information in the Offering
Circular/Prospectus under the captions:
"Available Information" (insofar as it relates to
Borden); "Incorporation of Certain Documents by Reference"
and the documents incorporated or deemed to be incorporated
by reference thereby (insofar as it lists documents filed by
Borden, documents subsequently filed by Borden and where
Borden documents may be obtained); "Summary--Borden, Inc.,"
"--Comparative Market Prices and Dividends" and "--Comparison
of Certain Historical Per Share Data" (insofar as the
information relates to per share data of Borden) and
"--Borden, Inc. Summary Historical Consolidated Financial
Data"; "Certain Significant Considerations--Information
Concerning the Transactions" (solely with respect to the
second paragraph under "--Possible Loss of Stock Exchange
Listing of Borden Common Stock"); "The Exchange Offer"
(solely with respect to the third paragraph under "--Certain
<PAGE>
2
Regulatory Approvals and Legal Matters--Antitrust" and
"--Pending Litigation--Litigation Against Borden"); "Borden,
Inc."; "Borden, Inc. Selected Historical Consolidated
Financial Data"; "Description of Borden Capital Stock and
Rights"; and "Experts" (insofar as it relates to Borden's
financial statements and auditors).
(b) Exhibit 23.2 of the Registration Statement, and
Item 21 in Part II of the Registration Statement with respect to
such Exhibit.
Holdings Information
--------------------
(a) The information in the Offering
Circular/Prospectus under the captions:
"Available Information" (insofar as it relates to
Holdings); "Incorporation of Certain Documents By Reference"
and the documents incorporated or deemed to be incorporated
by reference thereby (insofar as it lists documents filed by
Holdings, documents subsequently filed by Holdings and where
Holdings documents may be obtained); "Summary--RJR Nabisco
Holdings Corp.", "--Comparative Market Prices and Dividends"
(insofar as the information relates to market prices and
dividends of Holdings), "--Comparison of Certain Historical
and Per Share Data (insofar as the information relates to
per share data of Holdings), "--RJR Nabisco Holdings Corp.
Summary Historical Consolidated Financial Data" and "--RJR
Nabisco Holdings Corp. Summary Pro Forma Consolidated
Financial Data"; "Certain Significant
Considerations--Information Concerning Holdings"; "The
Exchange Offer--Pending Litigation--Litigation Against
Holdings"; "RJR Nabisco Holdings Corp."; "RJR Nabisco
Holdings Corp. Selected Historical Consolidated Financial
Data"; "RJR Nabisco Holdings Corp. Selected Pro Forma
Consolidated Financial Data"; "Security Ownership of Certain
Beneficial Owners and Management" (other than information
relating to KKR Associates); "Description of Holdings
Capital Stock"; "Legal Matters"; and "Experts" (insofar as
it relates to Holdings' financial statements and auditors).
(b) Item 20 (other than the last paragraph thereof) in
Part II of the Registration Statement.
(c) The Exhibits of the Registration Statement (other
than Exhibits 1.1, 2.1, 2.2, 10.50, 23.2, 99.1, 99.2, 99.3, 99.4
and 99.5), and Item 21 in Part II of the Registration Statement
relating to such Exhibits (other than Exhibits 1.1, 2.1, 2.2,
10.50, 23.2, 99.1, 99.2, 99.3, 99.4 and 99.5).
(d) Item 22 in Part II of the Registration Statement,
and the Signature Pages of the Registration Statement.
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 2 to
Registration Statement No. 33-55767 of RJR Nabisco Holdings Corp. ("Holdings")
on Form S-4 (the "Registration Statement") of (1) our report dated February 1,
1994 (except with respect to the subsequent events discussed in Note 17, as to
which the date is April 13, 1994), included in Holdings' Registration Statement
No. 33-52381 on Form S-3 ("Form S-3"), at the time such Form S-3 was declared
effective by the Commission and (2) our report dated February 1, 1994 (except
with respect to the subsequent event discussed in Note 17, as to which the date
is February 24, 1994), appearing in the Annual Report on Form 10-K of Holdings
for the year ended December 31, 1993.
We also consent to the reference to us under the headings "Summary
Historical Consolidated Financial Data", "Selected Historical Consolidated
Financial Data" and "Experts" in the Offering Circular/Prospectus, which is part
of this Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
November 16, 1994
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Amendment No. 2 to Registration Statement No. 33-55767
on Form S-4 of RJR Nabisco Holdings Corp. of our report dated March 20, 1994,
which appears on page 41 of Borden, Inc.'s 1993 Annual Report to Shareholders,
which is incorporated by reference in its Annual Report on Form 10-K for the
year ended December 31, 1993. We also consent to the incorporation by reference
of our report on the Financial Statement Schedules, which appears on page 12 of
such Annual Report on Form 10-K. We also consent to the reference to us under
the headings "Experts" and "Borden, Inc. Selected Historical Consolidated
Financial Data" in such Prospectus. However, it should be noted that Price
Waterhouse LLP has not prepared or certified such "Borden, Inc. Selected
Historical Consolidated Financial Data."
PRICE WATERHOUSE LLP
Columbus, Ohio
November 16, 1994
EXHIBIT 23.5
[LETTERHEAD OF LAZARD FRERES & CO.]
November 15, 1994
Board of Directors
Borden, Inc.
180 East Broad Street
Columbus, OH 43215
Re: Registration Statement on Form S-4 of
RJR Nabisco Holdings Corp.
Registration No. 33-55767
-------------------------------------
Ladies and Gentlemen:
Attached is our opinion letter, dated September 22, 1994, with respect to a
series of transactions to be effected pursuant to the Agreement and Plan of
Merger, dated as of September 23, 1994, as amended, among Borden, Inc.,
Whitehall Associates, L.P., and Borden Acquisition Corp. The foregoing opinion
letter has been furnished for the information and assistance of the Board of
Directors of Borden, Inc. and may not be disclosed or otherwise referred to
without our prior written consent.
In that regard, we hereby consent to the reference to the opinion of our
Firm in the Prospectus contained in the Registration Statement and to the
inclusion of the foregoing opinion as an exhibit to the above-mentioned
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ LAZARD FRERES & CO.
......................................
EXHIBIT 23.6
CONSENT OF CS FIRST BOSTON CORPORATION
We hereby consent to the inclusion as an exhibit to this Registration
Statement of our letter dated September 22, 1994, to the Board of Directors of
Borden, Inc. and to the references made to such letter and to the firm in the
Prospectus constituting part of this Registration Statement. In giving such
consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933 or the
rules and regulations of the Securities and Exchange Commission thereunder.
CS FIRST BOSTON CORPORATION
By /s/ CS FIRST BOSTON CORPORATION
...................................
New York, New York
November 15, 1994
EXHIBIT 99.1
Letter of Transmittal
To Tender Shares of Common Stock
(Including the Associated Preferred Stock Purchase Rights)
of
Borden, Inc.
Pursuant to the Exchange Offer
by
Borden Acquisition Corp.
a corporation formed at the direction of
Kohlberg Kravis Roberts & Co.
------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON , 1994,
UNLESS THE EXCHANGE OFFER IS EXTENDED.
------------------
The Exchange Agent for the Exchange Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
<TABLE>
<S> <C>
BY MAIL: BY HAND OR OVERNIGHT DELIVERY:
First Chicago Trust Company of New York First Chicago Trust Company of New York
Tenders & Exchanges Tenders & Exchanges
P.O. Box 2563--Suite 4660 14 Wall Street
Jersey City, New Jersey 07303-2563 Suite 4680--BOR, 8th Floor
New York, New York 10005
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by shareholders, either (i) if
certificates for shares of Common Stock, par value $.625 per share ("Borden
Shares"), or the associated Preferred Stock Purchase Rights (the "Rights") are
to be forwarded herewith or (ii) unless an Agent's Message (as defined in the
Offering Circular/Prospectus dated November , 1994 (the "Offering
Circular/Prospectus")) is utilized, if tenders of Borden Shares are to be made
by book-entry transfer into the account of First Chicago Trust Company of New
York, as Exchange Agent (the "Exchange Agent"), at The Depository Trust Company
("DTC"), the Midwest Securities Trust Company ("MSTC") or the Philadelphia
Depository Trust Company ("PDTC") (each a "Book-Entry Transfer Facility" and
collectively the "Book-Entry Transfer Facilities") pursuant to the procedures
described under "The Exchange Offer--Procedure for Tendering Shares of Borden
Common Stock--Book-Entry Transfer" in the Offering Circular/Prospectus.
Shareholders who tender Borden Shares (or Rights if applicable) by book-entry
transfer are referred to herein as "Book-Entry Shareholders."
The Merger Agreement (as defined in the Offering Circular/Prospectus)
provides that, immediately prior to consummation of the Exchange Offer, Borden,
Inc., a New Jersey corporation ("Borden"), will redeem the outstanding Rights
issued pursuant to the Rights Agreement, dated as of January 28, 1986, (the
"Rights Agreement"), as amended, between Borden and The Bank of New York, as
Rights Agent, at a redemption price of one and two-thirds cents per Right.
Unless and until the Rights have been redeemed, holders of Borden Shares will be
required to tender one Right for each Borden Share tendered in order to effect a
valid tender of such Borden Share. If the Distribution Date (as defined in the
Offering Circular/Prospectus) has not occurred prior to the time Borden Shares
are tendered pursuant to the Exchange Offer, a tender of Borden Shares will also
constitute a tender of the associated Rights. See "The Exchange Offer--Procedure
for Tendering Shares of Borden Common Stock" in the Offering
Circular/Prospectus. If the Distribution Date has occurred, and certificates
representing Rights (the "Rights Certificates") have been distributed to holders
of Borden Shares, such holders of Borden Shares will be required to tender
Rights Certificates representing a number of Rights equal to the number of
Borden Shares being tendered in order to effect a valid tender of such Borden
Shares. If, in accordance with the Merger Agreement, the Rights are redeemed by
the Board of Directors of Borden prior to the consummation of the Exchange
Offer, tendering shareholders who are holders of record as of the applicable
record date will be entitled to receive and retain the redemption price of one
and two-thirds cents per Right in accordance with the Rights Agreement. Holders
of Borden Shares and Rights whose certificates for such Borden Shares (the
"Share Certificates") (and Rights Certificates if applicable) are not
immediately available or who cannot deliver their Share Certificates (or Rights
Certificates if applicable) and all other required documents to the Exchange
Agent prior to the Expiration Date (as defined in the Offering
Circular/Prospectus), or who cannot complete the procedure for book-entry
transfer on a timely basis, must tender their Borden Shares (and Rights if
applicable) according to the guaranteed delivery procedure set forth under "The
Exchange Offer--Procedure for Tendering Shares of Borden Common
Stock--Guaranteed Delivery" in the Offering Circular/Prospectus. See Instruction
2. DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE
DELIVERY TO THE EXCHANGE AGENT.
<PAGE>
<TABLE>
<CAPTION>
DESCRIPTION OF BORDEN SHARES TENDERED
NAME(S) & ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS SHARE CERTIFICATE(S) AND BORDEN SHARE(S) TENDERED
NAME(S) APPEAR(S) ON CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
TOTAL NUMBER
OF BORDEN
SHARES NUMBER
SHARE REPRESENTED OF BORDEN
CERTIFICATE BY SHARE SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
<S> <C> <C> <C>
Total Borden Shares...........
</TABLE>
* Need not be completed by Book-Entry Shareholders.
** Unless otherwise indicated, all Borden Shares represented by certificates
delivered to the Exchange Agent will be deemed to have been tendered. See
Instruction 4.
<TABLE>
<CAPTION>
DESCRIPTION OF RIGHTS TENDERED*
NAME(S) & ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS RIGHTS CERTIFICATE(S) AND RIGHTS TENDERED
NAME(S) APPEAR(S) ON CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
TOTAL NUMBER
OF RIGHTS
RIGHTS REPRESENTED NUMBER
CERTIFICATE BY RIGHTS OF RIGHTS
NUMBER(S)** CERTIFICATE(S)** TENDERED***
<S> <C> <C> <C>
Total Rights..................
</TABLE>
* Need not be completed if the Distribution Date has not occurred.
** Need not be completed by Book-Entry Shareholders.
*** Unless otherwise indicated, all Rights represented by certificates
delivered to the Exchange Agent will be deemed to have been tendered.
See Instruction 4.
<PAGE>
/ / CHECK HERE IF BORDEN SHARES ARE BEING TENDERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH A BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A
BOOK-ENTRY TRANSFER FACILITY MAY DELIVER BORDEN SHARES BY BOOK-ENTRY
TRANSFER):
Name of Tendering Institution ___________________________________________
Check box of Book-Entry Transfer Facility:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Account Number _____________________Transaction Code Number _______________
/ / CHECK HERE IF BORDEN SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING:
Name(s) of Registered Owner(s): ___________________________________________
Window Ticket Number (if any): ____________________________________________
Date of Execution of Notice of Guaranteed Delivery: _______________________
Name of Institution that Guaranteed Delivery: _____________________________
If delivered by Book-Entry Transfer check box of Book-Entry Transfer
Facility:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Account Number _____________________Transaction Code Number _______________
<PAGE>
/ / CHECK HERE IF RIGHTS ARE BEING TENDERED BY BOOK-ENTRY TRANSFER MADE TO AN
ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH A BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A BOOK-ENTRY
TRANSFER FACILITY MAY DELIVER RIGHTS BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution ___________________________________________
Check box of Book-Entry Transfer Facility:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Account Number _____________________Transaction Code Number _______________
/ / CHECK HERE IF RIGHTS ARE BEING TENDERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING:
Name(s) of Registered Owner(s): _________________________________________
Window Ticket Number (if any): __________________________________________
Date of Execution of Notice of Guaranteed Delivery: _____________________
Name of Institution that Guaranteed Delivery: ___________________________
If delivered by Book-Entry Transfer check box of Book-Entry Transfer
Facility:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Account Number ____________________ Transaction Code Number _______________
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Borden Acquisition Corp., a New Jersey
corporation (the "Purchaser"), the above-described Borden Shares and (unless and
until redeemed by Borden) the associated Rights, for exchange for a number of
shares of Common Stock, par value $.01 per share (the "Holdings Common Stock"),
of RJR Nabisco Holdings Corp., a Delaware corporation ("Holdings"), equal to the
Exchange Ratio (as defined in the Offering Circular/Prospectus), upon the terms
and subject to the conditions set forth in the Offering Circular/Prospectus and
in this Letter of Transmittal (which together constitute the "Exchange Offer").
Unless the context requires otherwise, all references to Borden Shares shall be
deemed to refer also to the associated Rights. The undersigned understands that
the Purchaser reserves the right to transfer or assign, in whole or from time to
time in part, to one or more of its affiliates, the right to exchange all or any
portion of the Borden Shares (or Rights if applicable) tendered pursuant to the
Exchange Offer, receipt of which is hereby acknowledged.
The undersigned understands that if the Distribution Date has occurred and
Rights Certificates have been distributed to holders of Borden Shares prior to
the date of tender of the Borden Shares and Rights tendered herewith, Rights
Certificates representing a number of Rights equal to the number of Borden
Shares being tendered herewith must be delivered to the Exchange Agent or, if
available, a Book-Entry Confirmation received with respect thereto, in order for
the Borden Shares tendered herewith to be validly tendered. If the Distribution
Date has occurred and Rights Certificates have not been distributed prior to the
time Borden Shares and Rights are tendered herewith, the undersigned agrees to
deliver Rights Certificates representing a number of Rights equal to the number
of Borden Shares tendered herewith to the Exchange Agent within five business
days after the date such Rights Certificates are distributed. A tender of Borden
Shares without Rights Certificates constitutes an agreement by the tendering
shareholder to deliver Rights Certificates representing a number of Rights equal
to the number of Borden Shares tendered pursuant to the Exchange Offer to the
Exchange Agent within five business days after the date such Rights Certificates
are distributed. The undersigned understands that if the Rights are not
redeemed, the Purchaser reserves the right to require that the Exchange Agent
receive such Rights Certificates prior to accepting Borden Shares for exchange.
In that event, exchange for Borden Shares tendered and accepted for exchange
pursuant to the Exchange Offer will be made only after timely receipt by the
Exchange Agent of, among other things, Rights Certificates, if Rights
Certificates have been distributed to holders of Borden Shares.
Subject to, and effective upon, acceptance for exchange of the Borden Shares
(and Rights if applicable) tendered herewith in accordance with the terms of the
Exchange Offer, the undersigned hereby sells, assigns and transfers to, or upon
the order of, the Purchaser all right, title and interest in and to all of the
Borden Shares that are being tendered hereby and any and all dividends and
distribution, except for regular quarterly cash dividends in the amount of $.01
per Borden Share declared or paid with respect to the tendered Borden Shares on
or after November , 1994 and payable to the undersigned on a date prior to the
transfer to the name of the Purchaser or nominee or transferee of the Purchaser
on Borden's stock transfer records of the Borden Shares tendered herewith
(except that if the Rights are redeemed by Borden's Board of Directors in
accordance with the terms of the Rights Agreement, tendering shareholders who
are holders of record as of the applicable record date will be entitled to
receive and retain the redemption price of one and two-thirds cents per Right in
accordance with the Rights Agreement) (any such dividend or distribution, except
for those referred to in the immediately preceding clause, collectively, a
"Distribution"), and appoints the Exchange Agent the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Borden Shares (and
Rights if applicable) (and any Distribution) with full power of substitution
(such power of attorney being deemed to be an irrevocable power coupled with an
interest) to (a) deliver such Share Certificates (and Rights Certificates if
applicable) (and any Distribution), or transfer ownership of such Borden Shares
(and Rights if applicable) (and any Distribution) on the account books
maintained by a Book-Entry Transfer Facility, together in either case with
appropriate evidences of transfer, to the Exchange Agent for the account of the
Purchaser, (b) present such Borden Shares (and Rights if applicable) (and any
Distribution) for transfer on the books of Borden and (c) receive all benefits
and otherwise exercise all rights of beneficial ownership of such Borden Shares
(and Rights if applicable) (and any Distribution), all in accordance with the
terms and subject to the conditions of the Exchange Offer.
<PAGE>
The undersigned irrevocably appoints designees of the Purchaser as such
shareholder's proxy, with full power of substitution, to the full extent of such
shareholder's rights with respect to the Borden Shares (and Rights if
applicable) tendered by such shareholder and accepted for exchange by the
Purchaser and with respect to any and all other Borden Shares or other
securities issued or issuable in respect of such Borden Shares on or after
November , 1994. Such appointment will be effective when, and only to the
extent that, the Purchaser accepts such Borden Shares for exchange. Upon such
acceptance for exchange, all prior proxies given by such shareholder with
respect to such Borden Shares (and Rights if applicable) (and such other shares
and securities) will be revoked without further action, and no subsequent
proxies may be given nor any subsequent written consents executed (and, if given
or executed, will not be deemed effective). The designees of the Purchaser will
be empowered to exercise all voting and other rights of such shareholder as they
in their sole discretion may deem proper at any annual or special meeting of
Borden's shareholders or any adjournment or postponement thereof, by written
consent in lieu of any such meeting or otherwise. The Purchaser reserves the
right to require that, in order for Borden Shares (and Rights if applicable) to
be deemed validly tendered, immediately upon the Purchaser's exchange for such
Borden Shares (and Rights if applicable), the Purchaser must be able to exercise
full voting rights with respect to such Borden Shares (and Rights if
applicable).
The undersigned hereby represents and warrants that (a) the undersigned has
full power and authority to tender, sell, assign and transfer the Borden Shares
(and Rights if applicable) tendered hereby (and any Distribution) and (b) when
the Borden Shares (and Rights if applicable) are accepted for exchange by the
Purchaser, the Purchaser will acquire good, marketable and unencumbered title to
the Borden Shares (and Rights if applicable) (and any Distribution), free and
clear of all liens, restrictions, charges and encumbrances, and the same will
not be subject to any adverse claim. The undersigned, upon request, will execute
and deliver any additional documents deemed by the Exchange Agent or the
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the Borden Shares (and Rights if applicable) tendered hereby (and
any Distribution). In addition, the undersigned shall promptly remit and
transfer to the Exchange Agent for the account of the Purchaser any and all
Distributions in respect of the Borden Shares and Rights tendered hereby,
accompanied by appropriate documentation of transfer; and pending such
remittance or appropriate assurance thereof, the Purchaser will be, subject to
applicable law, entitled to all rights and privileges as owner of any such
Distribution and may withhold the entire exchange consideration or deduct
therefrom the amount or value thereof, as determined by the Purchaser in its
sole discretion.
All authority herein conferred or agreed to be conferred shall not be
affected by and shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned.
Tenders of Borden Shares and Rights made pursuant to the Exchange Offer are
irrevocable, except that Borden Shares and Rights tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date
and, unless theretofore accepted for exchange by the Purchaser pursuant to the
Exchange Offer, may also be withdrawn at any time after , 1995. See
"The Exchange Offer--Procedure for Tendering Shares of Borden Common
Stock--Withdrawal Rights" in the Offering Circular/Prospectus.
The undersigned understands that tenders of Borden Shares and Rights
pursuant to any of the procedures described under "The Exchange Offer--Procedure
for Tendering Shares of Borden Common Stock," and in the instructions hereto
will constitute a binding agreement between the undersigned and the Purchaser
upon the terms and subject to the conditions set forth in the Exchange Offer,
including the undersigned's representation that the undersigned owns the Borden
Shares and Rights being tendered.
Unless otherwise indicated herein under "Special Exchange Instructions,"
please (i) issue any check for any cash payment in lieu of a fractional share of
Holdings Common Stock, (ii) issue shares of Holdings Common Stock exchanged for
Borden Shares tendered pursuant hereto and/or (iii) issue or return any
certificate(s) for Borden Shares (and Rights if applicable) not tendered or not
accepted for exchange in the name(s) of the registered holder(s) appearing under
"Description of Borden Shares Tendered" and "Description of Rights Tendered,"
respectively. Similarly, unless otherwise indicated herein under "Special
Delivery Instructions," please mail any check for any cash payment in lieu of a
fractional share of Holdings Common Stock, the certificates for shares of
Holdings Common Stock exchanged for Borden Shares tendered pursuant hereto
and/or any certificate(s) for Borden Shares (and Rights if applicable) not
tendered or not accepted for exchange (and accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing under
"Description of Borden Shares Tendered" and "Description of Rights Tendered,"
respectively. In the event that both the Special Delivery Instructions and the
Special Exchange Instructions are completed, please issue (i) any check for any
cash payment in lieu of a fractional share of Holdings Common Stock, (ii) the
shares of Holdings Common Stock exchanged for Borden Shares tendered pursuant
hereto and/or (iii) any certificate(s) for Borden Shares (and Rights if
applicable) not tendered or accepted for exchange in the name of, and deliver
such certificates to, the person or persons so indicated. Unless otherwise
indicated herein under "Special Exchange Instructions," please credit any Borden
Shares (and Rights if applicable) tendered herewith by book-entry transfer that
are not accepted for exchange by crediting the account at the Book-Entry
Transfer Facility designated above. The undersigned recognizes that the
Purchaser has no obligation, pursuant to the Special Exchange Instructions, to
transfer any Borden Shares (or Rights if applicable) from the name(s) of the
registered holder(s) thereof if the Purchaser does not accept for exchange any
of the Borden Shares (or Rights if applicable) so tendered.
<PAGE>
SPECIAL EXCHANGE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if (i) the check for any cash payment in lieu of a
fractional share of Holdings Common Stock, (ii) certificate(s) for Borden Shares
(and Rights if applicable) not tendered or not accepted for exchange and/or
(iii) the shares of Holdings Common Stock exchanged for Borden Shares tendered
pursuant hereto are to be issued in the name of someone other than the
undersigned or if Borden Shares (or Rights if applicable) tendered by book-entry
transfer which are not accepted for exchange are to be returned by credit to an
account maintained at a Book-Entry Transfer Facility.
Issue / / check / / certificates to:
Name............................................................................
(PLEASE PRINT)
Address.........................................................................
...............................................................................
(INCLUDE ZIP CODE)
...............................................................................
(TAX ID. OR SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9 ON THE REVERSE SIDE)
Credit Borden Shares (and Rights if applicable) tendered by book-entry transfer
that are not accepted for exchange to (Check one):
/ / DTC / / MSTC / / PDTC
...............................................................................
(DTC, MSTC or PDTC Account No.)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if (i) the check for any cash payment in lieu of a
fractional share of Holdings Common Stock, (ii) certificate(s) for Borden Shares
(and Rights if applicable) not tendered or not accepted for exchange and/or
(iii) the shares of Holdings Common Stock exchanged for Borden Shares tendered
pursuant hereto accepted for exchange are to be sent to someone other than the
undersigned or to the undersigned at an address other than that shown above.
Mail / / check / / certificates to:
Name............................................................................
(PLEASE PRINT)
Address.........................................................................
...............................................................................
(INCLUDE ZIP CODE)
...............................................................................
(TAX ID. OR SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9 ON THE REVERSE SIDE)
<PAGE>
SIGN HERE
AND COMPLETE SUBSTITUTE FORM W-9 ON REVERSE
SIGN HERE SIGN HERE
- ----> X......................................................... <----
X.........................................................
(SIGNATURE(S) OF HOLDER(S))
Dated: ........................... , 19 .................
(Must be signed by the registered holder(s) exactly as name(s)
appear(s) on Share Certificate(s) or Rights Certificate(s)
or on a security position listing or by person(s) authorized to
become registered holder(s) by certificates and documents
transmitted herewith. If signature is by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative
capacity, please provide the following information and see
Instruction 5.)
Name(s).............................................................
....................................................................
(PLEASE PRINT)
Capacity (full title)...............................................
Address.............................................................
....................................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number......................................
Tax Identification or
Social Security No..................................................
COMPLETE SUBSTITUTE FORM W-9 ON REVERSE
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature................................................
Name................................................................
Name of Firm........................................................
(PLEASE PRINT)
Address.............................................................
....................................................................
(INCLUDE ZIP CODE)
Area Code and Telephone Number......................................
Dated: ........................... , 19 ...........................
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this document, shall include
any participant in a Book-Entry Transfer Facility whose name appears on a
security position listing as the owner of Borden Share(s) and/or Rights) of
Borden Shares and Rights tendered herewith, unless such holder(s) has completed
either the box entitled "Special Exchange Instructions" or the box entitled
"Special Delivery Instructions" above, or (b) if such Borden Share(s) and/or
Right(s) are tendered for the account of a firm which is a member of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc., or by a commercial bank or trust company having an
office or correspondent in the United States (each of the foregoing being
referred to as an "Eligible Institution"). In all other cases, all signatures on
this Letter of Transmittal must be guaranteed by an Eligible Institution. See
Instruction 5 of this Letter of Transmittal.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by
shareholders either if certificates are to be forwarded herewith or, unless an
Agent's Message is utilized, if tenders are to be made pursuant to the procedure
for tender by book-entry transfer set forth under "The Exchange Offer--Procedure
for Tendering Shares of Borden Common Stock--Book-Entry Transfer" in the
Offering Circular/Prospectus. Share Certificates, or timely confirmation (a
"Book-Entry Confirmation") of a book-entry transfer of such Borden Shares into
the Exchange Agent's account at a Book-Entry Transfer Facility, as well as this
Letter of Transmittal (or a facsimile hereof), properly completed and duly
executed, with any required signature guarantees, or an Agent's Message in the
case of a book-entry delivery, and any other documents required by this Letter
of Transmittal, must be received by the Exchange Agent at one of its addresses
set forth herein prior to the Expiration Date and, unless and until the Rights
have been redeemed, Rights Certificates or timely confirmation of a book-entry
transfer of Rights into the Exchange Agent's account at a Book-Entry Transfer
Facility, if available (together with, if Rights are forwarded separately from
Borden Shares, a properly completed and duly executed Letter of Transmittal (or
a facsimile hereof), and any required signature guarantees, or an Agent's
Message in the case of a book-entry delivery, and any other documents required
by this Letter of Transmittal), must be received by the Exchange Agent at one of
its addresses set forth herein prior to the Expiration Date or, if later, within
five business days after the date such Rights Certificates are distributed.
Shareholders whose Share Certificates (or Rights Certificates if applicable) are
not immediately available (including Rights Certificates that have not yet been
distributed by Borden) or who cannot deliver their Share Certificates (or Rights
Certificates if applicable) and all other required documents to the Exchange
Agent prior to the Expiration Date or who cannot complete the procedure for
delivery by book-entry transfer on a timely basis may tender their Borden Shares
(and Rights if applicable) by properly completing and duly executing a Notice of
Guaranteed Delivery pursuant to the guaranteed delivery procedure set forth
under "The Exchange Offer--Procedure for Tendering Shares of Borden Common
Stock--Guaranteed Delivery" in the Offering Circular/Prospectus. Pursuant to
such procedure: (i) such tender must be made by or through an Eligible
Institution; (ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the Purchaser, must be
received by the Exchange Agent prior to the Expiration Date; (iii) the Share
Certificates (or a Book-Entry Confirmation) representing all tendered Borden
Shares, in proper form for transfer, in each case together with the Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed, with
any required signature guarantees (or, in the case of a book-entry delivery, an
Agent's Message) and any other documents required by this Letter of Transmittal,
must be received by the Exchange Agent within five New York Stock Exchange, Inc.
("NYSE") trading days after the date of execution of such Notice of Guaranteed
Delivery; and (iv) unless and until the Rights have been redeemed, the Rights
Certificates, if issued, representing the appropriate number of Rights or a Book
Entry Confirmation, if available, in each case together with a properly
completed and duly executed Letter of Transmittal (or a facsimile thereof), any
required signature guarantees (or, in the case of a book-entry delivery, an
Agent's Message) and any other documents required by this Letter of Transmittal,
must be received by the Exchange Agent within five NYSE trading days after the
date of execution of such Notice of Guaranteed Delivery or, if later, five NYSE
trading days after Rights Certificates are distributed to shareholders, all as
provided in "The Exchange Offer--Procedure for Tendering Shares of Borden Common
Stock" in the Offering Circular/Prospectus. If Share Certificates and Rights
Certificates are forwarded separately to the Exchange Agent, a properly
completed and duly executed Letter of Transmittal must accompany each such
delivery.
<PAGE>
THE METHOD OF DELIVERY OF SHARE CERTIFICATES OR OF RIGHTS CERTIFICATES AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING SHAREHOLDER. IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Borden Shares will be exchanged. All tendering shareholders, by
execution of this Letter of Transmittal (or a facsimile hereof), waive any right
to receive any notice of the acceptance of their Borden Shares (and Rights if
applicable) for exchange.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Borden Shares and Rights and any other
required information should be listed on a separate signed schedule attached
hereto.
4. PARTIAL TENDERS. (Not Applicable to Book-Entry Shareholders) If fewer
than all the Borden Shares evidenced by any Share Certificate submitted are to
be tendered, fill in the number of Borden Shares which are to be tendered in the
box entitled "Number of Borden Shares Tendered." If fewer than all the Rights
evidenced by any Rights Certificates submitted are to be tendered, fill in the
number of Rights which are to be tendered in the box entitled "Number of Rights
Tendered." In such cases, new Share Certificates or Rights Certificates (if the
Rights have not been redeemed), as the case may be, for the Borden Shares or
Rights that were evidenced by your old Share Certificates or Rights
Certificates, but were not tendered by you, will be sent to you, unless
otherwise provided in the appropriate box on this Letter of Transmittal, as soon
as practicable after the Expiration Date. All Borden Shares represented by Share
Certificates and all Rights represented by Rights Certificates delivered to the
Exchange Agent will be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Borden
Shares and Rights tendered hereby, the signature(s) must correspond with the
name(s) as written on the face of the certificate(s) without alteration,
enlargement or any change whatsoever.
If any of the Borden Shares and Rights tendered hereby are owned of record
by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If any of the tendered Borden Shares and Rights are registered in different
names on several certificates, it will be necessary to complete, sign and submit
as many separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal or any certificates or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the
Purchaser of their authority so to act must be submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares and Rights listed and transmitted hereby, no endorsements of certificates
or separate stock powers are required unless shares of Holdings Common Stock are
to be issued or delivered to, payment in respect of fractional shares of
Holdings Common Stock is to be made to or certificates for Borden Shares or
Rights not tendered or not exchanged are to be issued in the name of a person
other than the registered holder(s). Signatures on such certificates or stock
powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the certificate(s) listed, the certificate(s) must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear on the certificate(s).
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution.
Unless and until the Rights have been redeemed, if Rights Certificates have
been distributed to holders of Borden Shares, such holders are required to
tender Rights Certificate(s) representing a number of Rights equal to the number
of Borden Shares tendered in order to effect a valid tender of such Borden
Shares. It is necessary that shareholders follow all signature requirements of
this Instruction 5 with respect to the Rights in order to tender such Rights.
<PAGE>
6. STOCK TRANSFER TAXES. The Purchaser will pay any stock transfer taxes
with respect to the transfer and sale of Borden Shares (and Rights if
applicable) to it or its order pursuant to the Exchange Offer. If, however,
certificates for shares of Holdings Common Stock or payment of cash in lieu of
fractional shares of Holdings Common Stock is to be made to, or if certificates
for Borden Shares (and Rights if applicable) not tendered or accepted for
exchange are to be registered in the name of, any person other than the
registered holder(s), or if tendered certificates are registered in the name of
any person other than the person(s) signing this Letter of Transmittal, the
amount of any stock transfer taxes (whether imposed on the registered holder(s)
or such person) payable on account of the transfer to such person will be
deducted from the consideration to be received by such holder(s) (i.e., such
consideration will be reduced) unless satisfactory evidence of the payment of
such taxes or an exemption therefrom is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATE(S) LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If (i) a check is to be issued
in the name of, (ii) certificates for shares of Holdings Common Stock exchanged
for Borden Shares and Rights (if applicable) are not to be issued to, and/or
(iii) certificates for Borden Shares and Rights not tendered or not accepted for
exchange are to be issued or returned to, a person other than the signer of this
Letter of Transmittal or if a check and/or such certificates are to be returned
to a person other than the signer of this Letter of Transmittal or to an address
of the signer other than that shown in this Letter of Transmittal, the
appropriate boxes on this Letter of Transmittal must be completed. Book-Entry
Shareholders may request that Borden Shares and/or Rights not accepted for
exchange be credited to such account maintained at a Book-Entry Transfer
Facility as such Book-Entry Shareholder may designate under "Special Payment
Instructions." If no such instructions are given, such Borden Shares or Rights
not accepted for exchange will be returned by crediting the account at the
Book-Entry Transfer Facility designated above.
8. WAIVER OF CONDITIONS. The conditions of the Exchange Offer may be waived
by the Purchaser from time to time in accordance with, and subject to the
limitations described in, the Offering Circular/Prospectus.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. federal income
tax law, a shareholder whose tendered Borden Shares (or Rights if applicable)
are accepted for exchange is required to provide the Exchange Agent with such
shareholder's correct taxpayer identification number ("TIN") on Substitute Form
W-9 below. If the Exchange Agent is not provided with the correct TIN, the
Internal Revenue Service may subject the shareholder or other payee to a $50
penalty. In addition, payments that are made to such shareholder or other payee
with respect to Borden Shares (or Rights if applicable) exchanged pursuant to
the Exchange Offer may be subject to 31% backup withholding.
Certain shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, the shareholder must submit a Form W-8, signed under penalties of
perjury, attesting to that individual's exempt status. A Form W-8 can be
obtained from the Exchange Agent. See the enclosed "Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9" for more instructions.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any such payments made to the shareholder or other payee. Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
shareholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
shareholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent.
The shareholder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the record owner of the
Borden Shares and Rights or of the last transferee appearing on the transfers
attached to, or endorsed on, the Borden Shares and Rights. If the Borden Shares
or Rights are in more than one name or are not in the name of the actual owner,
consult the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" for additional guidance on which number to
report.
<PAGE>
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions or requests for
assistance may be directed to the Dealer Manager or the Information Agent at
their respective addresses and telephone numbers set forth below. Additional
copies of the Offering Circular/Prospectus, this Letter of Transmittal and the
Notice of Guaranteed Delivery may also be obtained from the Information Agent or
from brokers, dealers, commercial banks or trust companies.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate representing
Borden Shares (or Rights if applicable) has been lost, destroyed or stolen, the
shareholder should promptly notify the Exchange Agent. The shareholder will then
be instructed as to the steps that must be taken in order to replace the
certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost or destroyed certificates have
been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF), TOGETHER WITH
CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED
DOCUMENTS, OR THE NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE
AGENT PRIOR TO THE EXPIRATION DATE.
<PAGE>
<TABLE>
<S> <C>
PAYER'S NAME: FIRST CHICAGO TRUST COMPANY OF NEW YORK
Part 1--PLEASE PROVIDE
YOUR TIN IN THE BOX AT THE RIGHT
SUBSTITUTE AND CERTIFY BY SIGNING AND
DATING BELOW.
Form W-9
Social Security Number
or Employer
Identification Number
-------------------------
Part 2--Certification--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct
Taxpayer Identification Number (or I am waiting
for a number to be issued to me) and
Department of the
Treasury (2) I am not subject to backup withholding because:
Internal Revenue Service (a) I am exempt from backup withholding, or (b) I
have not been notified by the Internal Revenue
Service (the "IRS") that I am subject to backup
withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup
withholding.
PAYER'S REQUEST FOR
TAXPAYER IDENTIFICATION
NUMBER ("TIN") Certification Instructions--You must cross out
item (2) above if you have been notified by the
IRS that you are currently subject to backup
withholding because of under-reporting interest
or dividends on your tax return. However, if
after being notified by the IRS that you were
subject to backup withholding you received
another notification from the IRS that you are no
longer subject to backup withholding, do not
cross out such Item (2).
SIGN HERE
----> SIGNATURE.................................... Part 3--
Awaiting TIN / /
DATE......................., 19 ...
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office, or
(2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all reportable payments made to me will be withheld,
but that such amounts will be refunded to me if I then provide a Taxpayer
Identification Number within sixty (60) days.
Signature...................................... Date................ , 19 ...
<PAGE>
The Information Agent for the Exchange Offer is:
D.F. KING & CO., INC.
UNITED STATES EUROPE
77 Water Street Royex House, Aldermanbury Square
New York, New York 10005 London, England EC2V 7HR
1-800-829-6551 (Toll Free) (44) 71 600 5005 (Collect)
The Dealer Manager for the Exchange Offer is:
MORGAN STANLEY & CO.
Incorporated
1251 Avenue of the Americas
New York, New York 10020
(212) 703-4774
November , 1994
EXHIBIT 99.2
Notice of Guaranteed Delivery
To Tender Shares of Common Stock
(Including the Associated Preferred Stock Purchase Rights)
of
Borden, Inc.
As set forth under "The Exchange Offer--Procedure for Tendering Shares of
Borden Common Stock" in the Offering Circular/Prospectus described below, this
instrument or one substantially equivalent hereto must be used to accept the
Exchange Offer (as defined below) if certificates for Borden Shares (as defined
below) and the associated Preferred Stock Purchase Rights (the "Rights") are not
immediately available or the certificates for Borden Shares (or Rights if
applicable) and all other required documents cannot be delivered to the Exchange
Agent referred to below on or prior to the Expiration Date (as defined in the
Offering Circular/Prospectus described below) or if the procedure for delivery
by book-entry transfer cannot be completed on a timely basis. This instrument
may be delivered by hand or transmitted by facsimile transmission or mail to the
Exchange Agent referred to below.
The Exchange Agent for the Exchange Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND OR OVERNIGHT
DELIVERY:
First Chicago Trust Company (201) 222-4720 First Chicago Trust Company
of New York (201) 222-4721 of New York
Tenders & Exchanges Confirm by Telephone: Tenders & Exchanges
P.O. Box 2563--Suite 4660 (201) 222-4707 14 Wall Street
Jersey City, New Jersey Suite 4680--BOR, 8th Floor
07303-2563 New York, New York 10005
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box in the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tenders to Borden Acquisition Corp., a New Jersey
corporation, upon the terms and subject to the conditions set forth in the
Offering Circular/Prospectus dated November , 1994 (the "Offering
Circular/Prospectus") and in the related Letter of Transmittal (which together
constitute the "Exchange Offer"), receipt of which is hereby acknowledged, the
number of shares of Common Stock, par value $.625 per share (the "Borden
Shares"), and the number of Rights, indicated below, of Borden, Inc., a New
Jersey corporation, pursuant to the guaranteed delivery procedure set forth
under "The Exchange Offer--Procedure for Tendering Shares of Borden Common
Stock" in the Offering Circular/Prospectus.
<PAGE>
Signature(s)........................... Address(es)...........................
Name(s) of Record Holders ......................................
ZIP CODE
......................................
PLEASE TYPE OR PRINT Area Code and Tel. No(s)..............
Number of Borden Shares and Rights..... (Check one box if Borden Shares and
Rights will be tendered by book-entry
Certificate Nos. (If Available) transfer)
...................................... / / The Depository Trust Company
...................................... / / Midwest Securities Trust Company
Dated............................19 ... / / Philadelphia Depository Trust
Company
Account Number........................
......................................
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a member of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office, branch or agency in the
United States, (a) guarantees to deliver to the Exchange Agent either the
certificates evidencing all tendered Borden Shares, in proper form for transfer,
or to deliver Borden Shares pursuant to the procedure for book-entry transfer
into the Exchange Agent's account at The Depository Trust Company, the Midwest
Securities Trust Company or the Philadelphia Depository Trust Company (each a
"Book-Entry Transfer Facility"), in either case together with the Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed, with
any required signature guarantees or an Agent's Message (as defined in the
Offering Circular/Prospectus) in the case of a book-entry delivery, and any
other required documents, all within five New York Stock Exchange, Inc. ("NYSE")
trading days after the date hereof and (b) guarantees, if applicable, to deliver
certificates representing the Rights ("Rights Certificates") in proper form for
transfer, or, if available, to deliver such Rights pursuant to the procedure for
book-entry transfer into the Exchange Agent's account at a Book-Entry Transfer
Facility together with, if Rights are forwarded separately, the Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed with
any required signature guarantees or an Agent's Message in the case of a book-
entry delivery, if available, and any other required documents, all within five
NYSE trading days after the date hereof or, if later, five business days after
Rights Certificates are distributed to holders of Shares.
..................................... .....................................
NAME OF FIRM AUTHORIZED SIGNATURE
..................................... Name ................................
ADDRESS PLEASE TYPE OR PRINT
..................................... Title ...............................
ZIP CODE
Area Code and Tel. No. .............. Dated..........................19 ...
NOTE: DO NOT SEND CERTIFICATES FOR BORDEN SHARES OR RIGHTS WITH THIS NOTICE.
CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
EXHIBIT 99.3
MORGAN STANLEY
MORGAN STANLEY & CO.
INCORPORATED
1251 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10020
(212) 703-4000
Exchange Offer for
All Outstanding Shares of Common Stock
(Including the Associated Preferred Stock Purchase Rights)
of
Borden, Inc.
By Exchanging for Each Such Share
A Number of Shares of Common Stock
of
RJR Nabisco Holdings Corp.
Based on the Exchange Ratio Described Below
by
Borden Acquisition Corp.
a corporation formed at the direction of
Kohlberg Kravis Roberts & Co.
------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON , 1994,
UNLESS THE EXCHANGE OFFER IS EXTENDED.
------------------
November , 1994
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by Borden Acquisition Corp., a New Jersey corporation
(the "Purchaser"), to act as Dealer Manager in connection with the Purchaser's
offer to exchange for shares of Common Stock, par value $.01 per share
("Holdings Common Stock"), of RJR Nabisco Holdings Corp., a Delaware corporation
("Holdings"), equal to the Exchange Ratio (as defined in the Offering
Circular/Prospectus referred to below) all the outstanding shares of Common
Stock, par value $.625 per share (the "Borden Shares"), of Borden, Inc., a New
Jersey corporation ("Borden"), upon the terms and subject to the conditions set
forth in the Offering Circular/Prospectus, dated November , 1994 (the
"Offering Circular/Prospectus"), and in the related Letter of Transmittal (which
together constitute the "Exchange Offer") enclosed herewith. The Merger
Agreement (as defined in the Offering Circular/Prospectus) provides that Borden
will redeem the outstanding Preferred Stock Purchase Rights (the "Rights")
issued pursuant to the Rights Agreement, dated as of January 28, 1986, as
amended, between Borden and The Bank of New York, as Rights Agent, at a
redemption price of one and two-thirds cents per Right immediately prior to
consummation of the Exchange Offer. Unless and until the Rights have been
redeemed, holders of Borden Shares will be required to tender one Right for each
Borden Share tendered in order to effect a valid tender of such Borden Share. If
the Distribution Date (as defined in the Offering Circular/Prospectus) has not
occurred prior to the time Borden Shares are tendered pursuant to the Exchange
Offer, a tender of Borden Shares will constitute a tender of the associated
Rights. If the Distribution Date has occurred and certificates representing
Rights ("Rights Certificates") have been distributed by Borden to holders of
Borden Shares, such holders of Borden Shares shall be required to tender Rights
Certificates representing a number of Rights equal to the number of Borden
Shares being tendered in order to effect a valid tender of such Borden Shares.
Holders of Borden Shares and Rights whose certificates for such Borden Shares
(the "Share Certificates") and, if applicable, Rights Certificates are not
immediately available or who
<PAGE>
cannot deliver their Share Certificates or, if applicable, their Rights
Certificates, and all other required documents to the Exchange Agent (as defined
below) prior to the Expiration Date (as defined in the Offering
Circular/Prospectus), or who cannot complete the procedures for book-entry
transfer on a timely basis, must tender their Borden Shares and Rights according
to the guaranteed delivery procedures set forth under "The Exchange
Offer--Procedure for Tendering Shares of Borden Common Stock--Guaranteed
Delivery" in the Offering Circular/Prospectus. Unless the context otherwise
requires, all references to Borden Shares shall be deemed to refer also to the
associated Rights, unless and until redeemed by Borden.
Please furnish copies of the enclosed materials to those of your clients for
whose accounts you hold Borden Shares registered in your name or in the name of
your nominee.
The Exchange Offer is conditioned upon, among other things, there being
validly tendered and not properly withdrawn prior to the expiration of the
Exchange Offer a number of Borden Shares which, when added to any Borden Shares
previously acquired by the Purchaser or Whitehall Associates, L.P. (other than
pursuant to the Option (as defined in the Offering Circular/Prospectus)),
represents more than 41% of the Borden Shares outstanding on a fully diluted
basis (other than dilution due to the Rights). The Exchange Offer is also
subject to other material terms and conditions, which Borden shareholders should
carefully consider. See "The Exchange Offer--Certain Conditions of the Exchange
Offer" and "Description of Merger Agreement and Conditional Purchase/Option
Agreement" in the Offering Circular/Prospectus.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offering Circular/Prospectus.
2. The Letter of Transmittal to tender Borden Shares (and Rights if
applicable) for your use and for the information of your clients. Facsimile
copies of the Letter of Transmittal may be used to tender Borden Shares (and
Rights if applicable).
3. The Notice of Guaranteed Delivery for Borden Shares (and Rights if
applicable) to be used to accept the Exchange Offer if Share Certificates
(or Rights Certificates if applicable) are not immediately available or if
such certificates and all other required documents cannot be delivered to
First Chicago Trust Company of New York (the "Exchange Agent") by the
Expiration Date or if the procedure for book-entry transfer cannot be
completed by the Expiration Date.
4. A printed form of letter which may be sent to your clients for whose
accounts you hold Borden Shares registered in your name or in the name of
your nominee, with space provided for obtaining such clients' instructions
with regard to the Exchange Offer.
5. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
6. A return envelope addressed to First Chicago Trust Company of New
York, the Exchange Agent.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON ,
1994, UNLESS THE EXCHANGE OFFER IS EXTENDED.
In order to take advantage of the Exchange Offer, (i) a duly executed and
properly completed Letter of Transmittal and any required signature guarantees,
or an Agent's Message (as defined in the Offering Circular/Prospectus) in
connection with a book-entry delivery of Borden Shares (or Rights if
applicable), and other required documents should be sent to the Exchange Agent,
and (ii) either Share Certificates representing the tendered Borden Shares (and,
if applicable, tendered Rights) should be delivered to the Exchange Agent, or
such Borden Shares (and, if applicable, tendered Rights) should be
2
<PAGE>
tendered by book-entry transfer into the Exchange Agent's account maintained at
one of the Book-Entry Transfer Facilities (as described in the Offering
Circular/Prospectus), all in accordance with the instructions set forth in the
Letter of Transmittal and the Offering Circular/Prospectus.
Unless and until the Rights are redeemed by Borden, shareholders will be
required to tender one Right for each Borden Share tendered in order to effect a
valid tender of such Borden Share. If separate Rights Certificates are not
issued, a tender of Borden Shares will also constitute a tender of Rights. See
"The Exchange Offer--Procedure for Tendering Shares of Borden Common Stock" in
the Offering Circular/Prospectus for a discussion of procedures for tendering
Rights in the event that a Distribution Date occurs and Rights Certificates are
distributed to shareholders prior to the date of tender pursuant to the Exchange
Offer. If, in accordance with the Merger Agreement, the Rights are redeemed by
the Board of Directors prior to the consummation of the Exchange Offer,
tendering shareholders who are holders of record as of the applicable record
date will be entitled to receive and retain the redemption price of one and
two-thirds cents per Right in accordance with the Rights Agreement.
If holders of Borden Shares wish to tender, but it is impracticable for them
to forward their Share Certificates or, if applicable, Rights Certificates, or
other required documents on or prior to the Expiration Date or to comply with
the book-entry transfer procedures on a timely basis, a tender may be effected
by following the guaranteed delivery procedures specified under "The Exchange
Offer-- Procedure for Tendering Shares of Borden Common Stock--Guaranteed
Delivery" in the Offering Circular/Prospectus.
The Purchaser will not pay any commissions or fees to any broker, dealer or
other person (other than Morgan Stanley & Co. Incorporated (the "Dealer
Manager"), the Exchange Agent and D.F. King & Co., Inc. (the "Information
Agent") (as described in the Offering Circular/Prospectus)) for soliciting
tenders of Borden Shares pursuant to the Exchange Offer. The Purchaser will,
however, upon request, reimburse you for customary clerical and mailing expenses
incurred by you in forwarding any of the enclosed materials to your clients. The
Purchaser will pay or cause to be paid any stock transfer taxes payable on the
transfer of Borden Shares to it, except as otherwise provided in Instruction 6
of the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer should be
addressed to the Dealer Manager or the Information Agent, at their respective
addresses and telephone numbers set forth on the back cover of the Offering
Circular/Prospectus. Additional copies of the enclosed material may be obtained
from the Information Agent.
Very truly yours,
MORGAN STANLEY & CO.
Incorporated
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF THE PURCHASER, THE DEALER MANAGER, BORDEN, THE
EXCHANGE AGENT OR THE INFORMATION AGENT, OR ANY AFFILIATE OF ANY OF THEM, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON
BEHALF OF ANY OF THEM IN CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE
ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
3
EXHIBIT 99.4
Exchange Offer for
All Outstanding Shares of Common Stock
(Including the Associated Preferred Stock Purchase Rights)
of
Borden, Inc.
by
Borden Acquisition Corp.
a corporation formed at the direction of
Kohlberg Kravis Roberts & Co.
------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON , 1994,
UNLESS THE EXCHANGE OFFER IS EXTENDED.
------------------
To Our Clients:
Enclosed for your consideration is an Offering Circular/Prospectus dated
November , 1994 (the "Offering Circular/Prospectus"), and the related Letter
of Transmittal relating to an offer by Borden Acquisition Corp., a New Jersey
corporation (the "Purchaser"), to exchange for shares of Common Stock, par value
$.01 per share ("Holdings Common Stock"), of RJR Nabisco Holdings Corp., a
Delaware corporation, equal to the Exchange Ratio (as defined below) all of the
outstanding shares of Common Stock, par value $.625 per share (the "Borden
Shares"), of Borden, Inc., a New Jersey corporation ("Borden"), and (unless and
until the outstanding Preferred Stock Purchase Rights (the "Rights") issued
pursuant to the Rights Agreement, dated as of January 28, 1986, as amended,
between Borden and The Bank of New York, as Rights Agent, are redeemed by
Borden) the associated Rights, upon the terms and subject to the conditions set
forth in the Offering Circular/Prospectus and the related Letter of Transmittal
(which together constitute the "Exchange Offer"). Unless the context requires
otherwise, all references to "Borden Shares" shall be deemed to refer also to
the associated Rights. We are the holder of record of Borden Shares held by us
for your account. A tender of such Borden Shares can be made only by us as the
holder of record and pursuant to your instructions. The Letter of Transmittal is
furnished to you for your information only and cannot be used by you to tender
Borden Shares held by us for your account.
The Merger Agreement (as defined in the Offering Circular/Prospectus)
provides that Borden will redeem the Rights at a redemption price of one and
two-thirds cents per Right immediately prior to consummation of the Exchange
Offer. Unless and until the Rights have been redeemed, if certificates
representing Rights (the "Rights Certificates") have been distributed to holders
of Borden Shares, such holders are required to tender Rights Certificate(s)
representing a number of Rights equal to the number of Borden Shares being
tendered in order to effect a valid tender of such Borden Shares. Until the
Distribution Date (as defined in the Offering Circular/Prospectus), the
surrender for transfer of any of the certificates representing Borden Shares
(the "Share Certificates") will also constitute the surrender for transfer of
the Rights associated with the Borden Shares represented by such Share
Certificates.
We request instructions as to whether you wish to have us tender on your
behalf any or all of such Borden Shares held by us for your account, pursuant to
the terms and subject to the conditions set forth in the Offering
Circular/Prospectus. Your instructions to tender Borden Shares held by us for
your account will also constitute a direction to us to tender a number of Rights
held by us for your account equal to the number of Borden Shares tendered. If,
in accordance with the Merger Agreement, the Rights are redeemed by the Board of
Directors of Borden prior to the consummation of the Exchange Offer, tendering
shareholders who are holders of record as of the applicable record date will be
entitled to receive and retain the redemption price of one and two-thirds cents
per Right in accordance with the Rights Agreement.
<PAGE>
Your attention is directed to the following:
1. The "Exchange Ratio" means the quotient (rounded to the nearest
1/100,000) obtained by dividing (i) $14.25 by (ii) the average of the high
and low sales prices of the Holdings Common Stock as reported on the New
York Stock Exchange Composite Tape on each of the ten full consecutive
trading days ending immediately prior to the ten business day period ending
on the date of expiration of the Exchange Offer, provided that the Exchange
Ratio shall not be less than 1.78125 or greater than 2.375.
2. The Exchange Offer is made for all of the outstanding Borden Shares
(and Rights if applicable).
3. The Exchange Offer and withdrawal rights will expire at 12:00
Midnight, New York City time, on , , 1994, unless the
Exchange Offer is extended.
4. The Exchange Offer is conditioned upon, among other things, there
being validly tendered and not properly withdrawn prior to the expiration of
the Exchange Offer a number of Borden Shares which, when added to any Borden
Shares previously acquired by the Purchaser or Whitehall Associates, L.P.
(other than pursuant to the Option (as defined in the Offering
Circular/Prospectus)), represents more than 41% of the Borden Shares
outstanding on a fully diluted basis (other than dilution due to the
Rights). The Exchange Offer is also subject to other material terms and
conditions, which Borden shareholders should carefully consider. See "The
Exchange Offer--Certain Conditions of the Exchange Offer" and "Description
of Merger Agreement and Conditional Purchase/Option Agreement" in the
Offering Circular/Prospectus.
5. Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the exchange of Borden Shares pursuant
to the Exchange Offer.
The Exchange Offer is being made solely by the Offering Circular/Prospectus
and the related Letter of Transmittal and is being made to all holders of Borden
Shares. The Exchange Offer is not being made to (nor will tenders be accepted
from or on behalf of) holders of Borden Shares in any jurisdiction in which the
making of the Exchange Offer or the acceptance thereof would not be in
compliance with the laws of such jurisdiction. In any jurisdiction where the
securities, blue sky or other laws require the Exchange Offer to be made by a
licensed broker or dealer, the Exchange Offer shall be deemed to be made on
behalf of the Purchaser by Morgan Stanley & Co. Incorporated or one or more
registered brokers or dealers that are licensed under the laws of such
jurisdiction.
If you wish to have us tender any or all of the Borden Shares held by us for
your account, please instruct us by completing, executing and returning to us
the instruction form contained in this letter. If you authorize a tender of your
Borden Shares, all such Borden Shares will be tendered unless otherwise
specified in such instruction form. Your instructions should be forwarded to us
in ample time to permit us to submit a tender on your behalf prior to the
expiration of the Exchange Offer.
If Borden Shares are accepted for exchange and exchanged for by the
Purchaser pursuant to the Exchange Offer, Borden shareholders will receive,
subject to the conditions of the Exchange Offer, the number of shares of
Holdings Common Stock equal to the Exchange Ratio per Borden Share. See "The
Exchange Offer--Withdrawal Rights" in the Offering Circular/Prospectus for the
procedures for withdrawing Borden Shares tendered pursuant to the Exchange
Offer.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER FOR
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
BORDEN, INC.
The undersigned acknowledge(s) receipt of your letter enclosing the Offering
Circular/Prospectus dated November , 1994 (the "Offering Circular/Prospectus")
and the related Letter of Transmittal pursuant to an offer by Borden Acquisition
Corp., a New Jersey corporation, to exchange for all outstanding shares of
Common Stock, par value $.625 per share (the "Borden Shares"), of Borden, Inc.,
a New Jersey corporation ("Borden"), and (unless and until redeemed by Borden)
the associated Preferred Stock Purchase Rights (the "Rights").
This will instruct you to tender the number of Borden Shares and Rights
indicated below (or, if no number is indicated below, all Borden Shares and
Rights) which are held by you for the account of the undersigned, upon the terms
and subject to the conditions set forth in the Offering Circular/Prospectus and
in the related Letter of Transmittal furnished to the undersigned.
Number of Borden Shares (and Rights) to be Tendered*
..........................Borden Shares (and Rights)
Dated: ......................................, 19 ..
SIGN HERE
.....................................................
.....................................................
Signature(s)
.....................................................
Please print name(s)
.....................................................
Address
.....................................................
Area Code and Telephone Number
.....................................................
Tax Identification or Social Security Number
- ------------
* Unless otherwise indicated, it will be assumed that all of your Borden Shares
(and Rights) held by us for your account are to be tendered.
3
EXHIBIT 99.5
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
<TABLE><CAPTION>
- ------------------------------------------------------------
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- ------------------------------------------------------------
<S> <C>
1. An individual's account The individual
2. Two or more individuals The actual owner of the
(joint account) account or, if combined
funds, the first
individual on the
account(1)
3. Husband and wife (joint The actual owner of the
account) account or, if joint
funds, either person(1)
4. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if the
account) minor is the only
contributor, the
minor(1)
6. Account in the name of The ward, minor, or
guardian or committee for a incompetent person(3)
designated ward, minor, or
incompetent person
7. a. The usual revocable The grantor-trustee(1)
savings trust account
(grantor is also
trustee)
b. So-called trust account The actual owner(1)
that is not a legal or
valid trust under State law
<CAPTION>
- ------------------------------------------------------------
GIVE THE EMPLOYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- ------------------------------------------------------------
<S> <C>
8. Sole proprietorship account The owner(4)
9. A valid trust, estate, or The legal entity (Do not
pension trust furnish the identifying
number of the personal
representative or
trustee unless the legal
entity itself is not
designated in the
account title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization
account
12. Partnership account held The partnership
in the name of the
business
13. Association, club, or The organization
other tax-exempt
organization
14. A broker or registered The broker or nominee
nominee
15. Account with the The public entity
Department of Agriculture
in the name of a public
entity (such as a State or
local government, school
district, or prison) that
receives agricultural
program payments
</TABLE>
- --------------------------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner. If the owner does not have an employer
identification number, furnish the owner's social security number.
(5) List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you do not have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Number Card (for
individuals), or Form SS-4, Application for Employer Identification Number (for
businesses and all other entities), at the local office of the Social Security
Administration or the Internal Revenue Service.
To complete Substitute Form W-9 if you do not have a taxpayer identification
number, write "Applied For" in the space for the taxpayer identification number
in Part I, sign and date the Form, and give it to the requester. Generally, you
will then have 60 days to obtain a taxpayer identification number and furnish it
to the requester. If the requester does not receive your taxpayer identification
number within 60 days, backup withholding, if applicable, will begin and
continue until you furnish your taxpayer identification number to the requester.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include
the following:
. A corporation.
. A financial institution.
. An organization exempt from tax under section 501(a), or an individual
retirement plan, or a custodial account under section 403(b)(7).
. The United States or any agency or instrumentality thereof.
. A State, the District of Columbia, a possession of the United States, or any
political subdivision or instrumentality thereof.
. A foreign government or a political subdivision, agency or instrumentality
thereof.
. An international organization or any agency or instrumentality thereof.
. A registered dealer in securities or commodities registered in the United
States or a possession of the United States.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a).
. An entity registered at all times during the tax year under the Investment
Company Act of 1940.
. A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the United
States and which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid in
the course of the payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
. Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to nonresident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
EXEMPT PAYEES DESCRIBED ABOVE SHOULD FILE A SUBSTITUTE FORM W-9 TO AVOID
POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FILE THIS FORM WITH THE PAYER, FURNISH
YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM,
SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividends,
interest, or other payments to give taxypayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes and to help verify the accuracy of your tax return. Payers must be
given the numbers whether or not recipients are required to file tax returns.
Payers must generally withhold 31% of taxable interest, dividends, and certain
other payments to a payee who does not furnish a taxpayer identification number
to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT
YOUR TAX CONSULTANT OR
THE INTERNAL REVENUE SERVICE
2
EXHIBIT 99.6
[LETTERHEAD OF LAZARD FRERES & CO.]
September 22, 1994
The Board of Directors Borden, Inc.
180 East Broad Street
Columbus, OH 43215
Dear Members of the Board:
You have requested our opinion as to the fairness, from a financial point of
view, to the holders of shares of Common Stock, par value $.625 per share
("Company Common Stock"), of Borden, Inc. (the "Company") of the consideration
to be received in a series of transactions (collectively, the "Transactions")
pursuant to the Agreement and Plan of Merger, to be entered into among the
Company, Whitehall Associates, L.P. ("WA") and Borden Acquisition Corp. ("Merger
Co."), a draft of which, dated September 19, 1994 (the "Merger Agreement"), has
been furnished to us. The terms of the Merger Agreement provide, among other
things, that (i) WA promptly will offer to exchange (the "Exchange Offer"), for
each outstanding share of Company Common Stock, a number (the "Applicable
Number") of shares of common stock, par value $.01 per share ("RJR Common
Stock"), of RJR Nabisco Holdings Corp. ("RJR"), having a trading value (as
determined in the Merger Agreement) equal to $14.25; provided that the
Applicable Number may not be less than 1.78125 nor exceed 2.375, and (ii)
following the consummation of the Exchange Offer, subject to, among other
things, WA having obtained the favorable vote of holders of at least 66 2/3% of
the outstanding shares of Company Common Stock, Merger Co. will merge with and
into the Company, and each of the remaining outstanding shares of Company Common
Stock (other than shares owned by the Company as treasury stock or owned by WA,
Merger Co. or any other subsidiary of WA) will be converted into the right to
receive the Applicable Number of shares of RJR Common Stock.
In connection with the rendering of this opinion, we have:
(i) Reviewed the terms and conditions of the Merger Agreement and the
financial terms of the Transactions as set forth therein, and the
Conditional Purchase/Stock Option Agreement, to be entered into among the
Company, WA and Merger Co., a draft of which, dated September 19, 1994 (the
"Option Agreement"), has been furnished to us;
(ii) Analyzed certain historical business and financial information
relating to the Company and RJR, including the Annual Reports to
Stockholders and Annual Reports on Forms 10-K of each of the Company and RJR
for each of the fiscal years ended December 31, 1991 through 1993, and the
Quarterly Reports on Forms 10-Q of each of the Company and RJR for the
quarters ended March 31, 1994 and June 30, 1994;
(iii) Reviewed certain financial forecasts and other data provided to us
by the Company and each of RJR and WA relating to the businesses of the
Company and RJR, respectively, including the most recent business plan for
the Company prepared by the Company's senior management, in the form
furnished to us;
(iv) Conducted discussions with members of senior management of the
Company and each of RJR and WA with respect to the businesses and prospects
of the Company and RJR, respectively, and the strategic objectives of each;
(v) Reviewed public information with respect to certain other companies
in the lines of businesses we believe to be generally comparable in whole or
in part to the businesses of the
<PAGE>
Company and RJR and reviewed the financial terms of certain other business
combinations that have recently been effected;
(vi) Reviewed the historical stock prices and trading volumes of Company
Common Stock and RJR Common Stock; and
(vii) Conducted such other financial studies, analyses and
investigations as we deemed appropriate.
We have relied upon the accuracy and completeness of the financial and other
information concerning the Company and RJR that have been received by us and
have not assumed any responsibility for independent verification of such
information or any independent valuation or appraisal of any of the assets of
the Company or RJR nor have we been furnished with any such appraisals. With
respect to financial forecasts, we have assumed that they have been reasonably
prepared on bases reflecting the best currently available estimates and
judgments of management of the Company and RJR as to the future financial
performance of the Company and RJR, respectively. We assume no responsibility
for and express no view as to such forecasts or the assumptions on which they
are based.
Our opinion is necessarily based on economic, monetary, market and other
conditions as in effect on, and the information made available to us as of, the
date hereof. In that regard, as you are aware, we are not in a position to make
an independent evaluation of the matters discussed below. Accordingly, for
purposes of this opinion, we have assumed, with your concurrence, that no
material adverse effect on RJR or on the trading value of RJR Common Stock will
result from (x) the proposal, enactment or adoption after the date hereof of any
laws or regulations (including the imposition of additional taxes on the
manufacture, sale or distribution of tobacco products) by any federal, state,
local or other jurisdiction or any governmental or regulatory body or agency
thereunder relating to, arising out of, or otherwise affecting the tobacco
industry, including without limitation the manufacture, sale, distribution or
use of tobacco products, or (y) any judicial or administrative proceeding
initiated or decided after the date hereof, including any civil or criminal
litigation or arbitration, relating to or arising out of or otherwise involving
or affecting RJR, the tobacco industry, or any other company engaged in said
industry, including without limitation the manufacture, sale, distribution or
use of tobacco products. We assume no responsibility for and express no view
with respect to the matters described in the previous sentence.
In rendering our opinion, we have assumed that the actual Agreement and Plan
of Merger and the actual Conditional Purchase/Stock Option Agreement, entered
into among the parties thereto, will be identical in all material respects to
the Merger Agreement and the Option Agreement, respectively, and that the
Transactions will be consummated on the terms described in the Merger Agreement,
without any waiver of any terms or conditions by the Company and that obtaining
the necessary regulatory approvals for the Transactions will not have an adverse
effect on RJR or on the trading value of RJR Common Stock. In addition, we note
that because of the large number of Shares of RJR Common Stock being issued to
shareholders of the Company and other factors, such securities may trade
initially at prices below those at which they would trade on a fully distributed
basis.
We are acting as financial advisor to the Company's Board of Directors in
connection with the Transactions and will receive fees for such services, a
substantial portion of which fees are contingent upon the consummation of the
Transactions. Our firm has in the past provided and is currently providing
investment banking and financial advisory services to the Company and has
received fees for rendering such services. Our firm has in the past also
provided investment banking and financial advisory services to RJR and
affiliates of WA and has received fees for rendering such services.
Our engagement and the opinion expressed herein are solely for the benefit
of the Company's Board of Directors and are not on behalf of, and are not
intended to confer rights or remedies upon, RJR, WA, any shareholder of the
Company or RJR or any other person. It is understood that, except for inclusion
of this letter in its entirety in a proxy statement or exchange offer
recommendation
2
<PAGE>
statement on Schedule 14D-9 from the Company to holders of shares of Company
Common Stock relating to the Transactions, this letter may not be disclosed or
otherwise referred to without our prior written consent, except as may otherwise
be required by law or by a court of competent jurisdiction.
Based on and subject to the foregoing, we are of the opinion that, as of the
date hereof, the consideration to be paid to the shareholders of the Company
(other than WA, Merger Co. or any other subsidiary of WA) in the Exchange Offer
and the Merger is fair to such shareholders, from a financial point of view.
Very truly yours,
/s/ LAZARD FRERES & CO.
......................................
3
EXHIBIT 99.7
[LETTERHEAD OF CS FIRST BOSTON]
September 22, 1994
Board of Directors
Borden, Inc.
277 Park Avenue
New York, NY 10172
Gentlemen and Madame:
You have requested our opinion as to the fairness, from a financial point of
view, to the holders of Common Stock, par value $.625 per share (the "Company
Shares"), of Borden, Inc., a New Jersey corporation ("Borden" or the "Company"),
other than Kohlberg Kravis Roberts & Co. ("KKR") and its affiliates, of the
consideration to be received by Borden's stockholders pursuant to the Merger
Agreement expected to be dated as of September 22, 1994 among Borden Acquisition
Corp., a New Jersey corporation ("Acquisition"), Whitehall Associates, L.P., a
Delaware limited partnership ("Whitehall"), and the Company (the "Merger
Agreement"). The Merger Agreement provides for an exchange offer (the "Exchange
Offer") and subsequent merger (the "Merger"; the Exchange Offer and Merger,
together, the "Transaction") in which each Company Share (other than treasury
stock and shares owned by Whitehall or any of its subsidiaries) will be
exchanged for a number of shares of Common Stock, par value $.01 per share ("RN
Shares"), of RJR Nabisco Holdings Corp., a Delaware corporation ("RN"),
determined by dividing $14.25 by the average of the average of the high and low
sales prices of RN Shares as reported on the New York Stock Exchange Composite
Tape on each of the ten consecutive trading days immediately preceding the
second trading day prior to the date of expiration of the Exchange Offer, but
subject to the limitation that in no event will Borden shareholders receive more
than 2.375 RN Shares nor less than 1.78125 RN Shares for each Company Share.
In arriving at our opinion, we have reviewed, among other things, the letter
of intent dated as of September 11, 1994 between the Company and Whitehall (the
"Letter of Intent"), a draft of the Merger Agreement and a draft of the
Conditional Purchase/Stock Option Agreement expected to be dated as of September
22, 1994 by and among Whitehall, Acquisition and the Company (the "Option
Agreement"), as well as certain publicly available business and financial
information relating to each of RN and the Company. We have also reviewed
certain other information, including financial forecasts provided to us by each
of RN and the Company. We have met with RN's management and representatives of
KKR and with the Company's management to discuss the past and current operations
and financial condition and prospects of each of RN and the Company,
respectively. We have also considered certain financial and stock market data
for each of RN and the Company and we have compared that data with similar data
for other publicly held companies in businesses similar to those of RN and the
Company, respectively, and we have considered the financial terms of certain
other business combinations that have recently been effected. We also considered
such other information, financial studies, analyses and investigations and
financial, economic and market criteria that we deemed relevant.
In connection with our review, we have not assumed any responsibility for
independent verification of any of the foregoing information and have relied on
its being complete and accurate in all material respects. With respect to the
financial forecasts, we have assumed that they have been reasonably prepared on
bases reflecting the best currently available estimates and judgments of each of
RN's and the Company's management as to the future financial performance of RN
and the Company, respectively. We express no view as to such forecasts or the
assumptions on which they are based (which, in the case of RN, includes the
assumption that RN's tobacco business will not become subject to materially
<PAGE>
more burdensome litigation costs or regulatory requirements) and there cannot be
any assurance that actual results of the Company or RN will not differ
materially from those reflected in the projections. We have not assumed any
responsibility for an independent evaluation or appraisal of the assets or
liabilities of RN or the Company, nor have we been furnished with any such
appraisals. In rendering our opinion, we have assumed that the execution
versions of the Merger Agreement and the Option Agreement will not differ
materially from the drafts we have reviewed, that the Transaction will be
consummated on the terms described in the Merger Agreement and the Option
Agreement, without any waiver of any terms or conditions by the Company and that
obtaining the necessary regulatory approvals for the Transaction will not have
an adverse effect on RN or on the trading value of the RN Shares.
In giving this opinion we have assumed, with your consent, that there will
not be any material adverse effect on RN or on the trading value of the RN
Shares as a result of or relating to (x) the proposal, enactment or adoption
after the date hereof of any laws or regulations (including the imposition of
additional taxes on the manufacture, sale or distribution of tobacco products)
by any federal, state, local or other jurisdiction or any governmental or
regulatory body or agency thereunder relating to, arising out of, or otherwise
affecting the tobacco industry, including without limitation the manufacture,
sale, distribution or use of tobacco products, or (y) any judicial or
administrative proceeding initiated or decided after the date hereof, including
any civil or criminal litigation or arbitration relating to or arising out of or
otherwise involving or affecting RN, the tobacco industry, or any other company
engaged in said industry, including without limitation the manufacture, sale,
distribution or use of tobacco products. We are not in a position to make an
independent evaluation of these matters and we assume no responsibility for and
express no view with respect to these matters.
Our opinion addresses only the fairness from a financial point of view of
the consideration to be received by stockholders of the Company, other than KKR
and its affiliates, in each of the Exchange Offer and the Merger. We do not
express any views on any other terms of the Transaction or any related
agreements or arrangements, including any transactions which might occur among
KKR, RN and the Company after consummation of the Exchange Offer or the Merger.
Our opinion also does not address the Company's underlying business decision to
effect the Transaction. We were not requested to, and did not, solicit third
party offers to acquire all or any part of the Company or participate in efforts
other advisors may have made to solicit alternative offers. Our opinion is
necessarily based solely upon information available to us and business, market,
economic and other conditions as they exist on, and can be evaluated as of, the
date hereof. This opinion does not represent our opinion as to what the value of
the RN Shares to be exchanged for Company Shares actually will be when the
Exchange Offer or the Merger is consummated. As a result of the limitation on
the number of RN Shares to be received as described in the first paragraph of
this letter, such actual value could be higher or lower than $14.25 per share at
such times. Because of the large aggregate amount of RN shares being issued to
stockholders of the Company and other factors, such securities may trade
initially at prices below those at which they would trade on a fully distributed
basis.
We have acted as financial advisor to the Company in connection with the
Transaction and will receive a fee for our services, a significant portion of
which is contingent upon KKR's acquisition of a majority of the outstanding
Company Shares. In the past, we have provided investment banking services for
the Company, RN and KKR for which we have received customary compensation. In
the ordinary course of our business, we actively trade the debt and equity
securities of both the Company and RN for our own account and for the accounts
of customers and, accordingly, may at any time hold a long or short position in
such securities.
It is understood that this opinion is only for the information of the Board
of Directors of the Company. However, this opinion may be included in its
entirety in any proxy statement or exchange offer recommendation statement on
Schedule 14D-9 from the Company to holders of Company Shares. This opinion may
not, however, be summarized, excerpted from or otherwise publicly referred to
2
<PAGE>
without our prior written consent. In addition, we may not be otherwise publicly
referred to without our prior consent.
Based upon and subject to the foregoing, it is our opinion that, as of the
date hereof, the consideration to be received by the stockholders of the
Company, other than KKR and its affiliates, in each of the Exchange Offer and
the Merger is fair to such stockholders from a financial point of view.
Very truly yours,
CS FIRST BOSTON CORPORATION
By /s/ CS FIRST BOSTON CORPORATION
........................................
3
