SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No. ____)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[X ] Soliciting Material Pursuant to Section 240.14a-12
Nabisco Group Holdings Corp.
(Name of Registrant as Specified In Its Charter)
Carl C. Icahn, Barberry Corp., High River Limited Partnership,
Icahn & Co., Inc. and Riverdale,LLC
(Name of Person(s) Filing Proxy Statement, if other than the
Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and
0-11.
1) Title of each class of securities to which transaction
applies:
2) Aggregate number of securities to which transaction
applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was determined):
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4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
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EXHIBIT 1
March 30, 2000
VIA TELECOPY AND FEDERAL EXPRESS
Board of Directors
Nabisco Group Holdings Corp.
7 Campus Drive
Parsippany, NJ 07054-0311
Ladies and Gentlemen:
As the largest non-institutional stockholder of Nabisco Group Holdings (NGH),
with over 31 million shares, I want our company to enhance- not destroy - value
for investors.
Last year, the company's board and management claimed to act in the interests of
stockholders by spinning off the tobacco business of RJR Nabisco. As you know, I
fought long and hard to spin off the food company and not tobacco. I think that
you will now agree that this would have achieved a far superior result for
stockholders. Soon after the tobacco business spin-off, the price of NGH began a
long, steep decline - falling by approximately 54% from June 15, 1999 through
March 29, 2000. Astoundingly, however, as reported by Bloomberg on March 15,
2000, CEO Steven Goldstone received more than $29 million in cash, securities
and benefits last year.
In yet another expression of contempt for stockholders, this month - right after
I named my slate of directors to be voted on at the forthcoming annual meeting
of stockholders - NGH adopted a "poison pill" in the form of a preferred-stock
purchase plan. That poison pill is triggered if an investor acquires 10% of the
company's shares. The board adopted this anti-stockholder device immediately
after I raised my ownership to 8.9%.
On behalf of all stockholders, I am fully prepared to address this record of
anti-shareholder conduct. Besides submitting a slate of nominees for election as
directors, I am prepared to commence a tender offer for 100 million shares of
NGH common stock at $13.00 per share in cash. That is a 48% premium over NGH's
closing price on March 10, the day I notified NGH of my board nominees. The
tender offer will not be subject to financing and will not even contain a
condition providing for an out in the event of a material adverse change
regarding NGH. If successful in the tender offer, I will own approximately 40%
of the shares outstanding, and my slate of proposed directors should be elected.
Then, the first order of business for the new directors will be to consider the
sale of NGH at a favorable price.
My offer will be subject to the following reasonable conditions. Specifically, I
ask that the board of directors (a) eliminate the poison pill and not institute
another poison pill device, (b) approve my purchase of shares in the tender
offer so that Section 203 of the Delaware General Corporation Law would not
limit me when I own more than 15% of
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the outstanding shares, and (c) change the 2000 annual meeting so that I am able
to vote the shares I purchase in the tender offer at that annual meeting. I am
prepared to commence the tender offer on Tuesday, April 4, 2000 if you inform us
by that date that you will meet the above conditions. If you need more time to
decide, please inform us of how much more time you will need. A draft copy of
the offer to purchase will be sent to you tomorrow.
My aim is to avoid an unnecessary and debilitating proxy contest for control of
NGH in a manner that will (a) provide those stockholders who desire to sell
their shares an opportunity to do so above the recent market price and (b)
generate an opportunity to sell NGH promptly. My willingness to make this tender
offer, without question, proves that I firmly believe that NGH, if offered for
sale now, can command a very attractive price.
Bear in mind that the clock is ticking on tobacco litigation. In the widely
publicized Engle case in Florida, there is a real possibility that any jury
award of punitive damages could result in an appeal bond that is prohibitively
expensive. Obviously, the litigation and other liability issues relating to
tobacco matters could have a very adverse effect on tobacco-related companies
and their securities.
Since the number of NGH shares now owned by NGH board members is relatively
small, the current board is well insulated from the pain of any further price
decline for the company's securities. Other stockholders are not so lucky. They
have been hurt badly by a declining share price in the past, and further
impairment of the company's asset value - because of real or perceived issues
concerning tobacco - will only add to their woes. I call upon you to let
stockholders decide for themselves whether they wish to take advantage of a
significant premium for their shares right now as well as select a Board of
Directors that will immediately consider the sale of NGH. By denying them this
choice, you will be forcing stockholders not only to take the risks mentioned
above but also to take the risk that there will be no buyer when and if the
current Board determines to sell.
I hope that you, as fiduciaries, will recognize that my offer is very much in
the best interest of stockholders and that you will accept it accordingly.
Very truly yours,
/s/ Carl C. Icahn
Carl C. Icahn
WE HAVE NOT YET COMMENCED THE TENDER OFFER REFERRED TO IN THIS STATEMENT. UPON
THE COMMENCEMENT OF ANY TENDER OFFER, WE WILL FILE A TENDER OFFER STATEMENT WITH
THE SECURITIES AND EXCHANGE COMMISSION. THAT STATEMENT WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE TENDER OFFER AND SHOULD BE READ BY SECURITY HOLDERS. IF A
TENDER OFFER IS COMMENCED, SECURITY HOLDERS WILL BE ABLE TO OBTAIN AT NO CHARGE
(I) THE TENDER OFFER STATEMENT AND
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OTHER DOCUMENTS WHEN THEY BECOME AVAILABLE ON THE SECURITIES AND EXCHANGE
COMMISSION'S WEBSITE AT http://www.sec.gov AND (II) THE OFFER TO PURCHASE, THE
LETTER OF TRANSMITTAL AND THE NOTICE OF GUARANTEED DELIVERY FROM THE INFORMATION
AGENT FOR THE TENDER OFFER.
WE HAVE NOT YET FILED A PROXY STATEMENT. SECURITY HOLDERS ARE ADVISED TO READ
THE PROXY STATEMENT AND OTHER DOCUMENTS RELATED TO OUR SOLICITATION OF PROXIES
FROM THE STOCKHOLDERS OF NABISCO GROUP HOLDINGS FOR USE AT ITS 2000 ANNUAL
MEETING WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION. WHEN COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY
WILL BE MAILED TO STOCKHOLDERS OF NABISCO GROUP HOLDINGS AND WILL BE AVAILABLE
AT NO CHARGE ON THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT
http://www.sec.gov. INFORMATION RELATING TO THE PARTICIPANTS IN THE PROXY
SOLICITATION IS CONTAINED IN THE SCHEDULE 13D FILED BY CARL C. ICAHN AND OTHERS
WITH RESPECT TO NABISCO GROUP HOLDINGS. THAT SCHEDULE 13D IS CURRENTLY AVAILABLE
AT NO CHARGE ON THE SEC'S WEBSITE.
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EXHIBIT 2
Icahn Prepared To Make Tender Offer
For 100 Million Shares of Nabisco Group Holdings
At $13.00 a Share in Cash
Offering Price Is 48% Premium Over Stock's March 10 Closing Price
`First Order of Business' for His Slate of Directors
Would Be To Consider Sale of Company
Attacks NGH's `Contempt for Stockholders,'
Citing Steep Stock Decline, CEO Compensation and New `Poison Pill'
New York, NY, March 30, 2000 - Investor Carl Icahn today, by letter, informed
the board of directors of Nabisco Group Holdings Corp. (NYSE: NGH) that he is
prepared to initiate a tender offer on Tuesday April 4, 2000, for 100 million
shares of NGH common stock at $13.00 a share in cash. Mr. Icahn stated, "The
tender offer will not be subject to financing and will not even contain a
condition providing for an out in the event of a material adverse change
regarding NGH." The letter stated the offer would commence if the board informed
Mr. Icahn by April 4, 2000, that it would meet the following three "reasonable
conditions" (a) eliminate the newly-adopted poison pill and not institute
another one, (b) approve his purchase of shares in the tender offer so that
Section 203 of the Delaware General Corporation Law would not limit him when he
owns more than 15% of NGH's outstanding shares, and (c) change the date of the
2000 annual meeting so that he would be able to vote the shares he purchases in
the tender offer at that annual meeting. Mr. Icahn asked the board to inform him
if it needed more time to decide whether to meet the conditions.
Mr. Icahn noted that $13.00 a share represents a 48% premium over the company's
closing share price on March 10, the day that Mr. Icahn announced his slate of
board nominees to be voted on at the company's annual meeting of shareholders.
Aim of Tender Offer
Mr. Icahn, the owner of over 31 million shares, is now the company's largest
non-institutional stockholder. If he were successful in his tender offer, he
would own approximately 40% of NGH's outstanding shares - an ownership stake
that would facilitate the election of his nominees as NGH directors. Once
elected, Mr. Icahn stated, "the first order of business for the new
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directors will be to consider the sale of NGH at a favorable price." Mr. Icahn's
letter stated that his aim in making the tender was (a) to avoid a debilitating
proxy contest for control of NGH, (b) to provide those stockholders who desire
to sell their shares an opportunity to do so at a substantial premium above the
recent market price and (c) to generate an opportunity to sell NGH promptly. The
letter added, "My willingness to make this tender offer, without question,
proves that I firmly believe that NGH, if offered for sale now, can command a
very attractive price."
Anti-shareholder conduct of NGH Board and Managment
Mr. Icahn indicated that his aim is "to enhance, not destroy, value for
investors" and that he seeks to address the "record of anti-shareholder conduct"
of the NGH board and management. "Last year," Mr. Icahn wrote, "the company's
board and management claimed to act in the interests of stockholders by spinning
off the tobacco business of RJR Nabisco. As you know, I fought long and hard to
spin off the food company and not tobacco. I think that you will now agree that
this would have achieved a far superior result for stockholders. Soon after the
tobacco business spin-off, the price of NGH began a long, steep decline -
falling by approximately 54% from June 15, 1999, through March 29, 2000.
Astoundingly, however, as reported by Bloomberg on March 15, 2000, CEO Steven
Goldstone received more than $29 million in cash, securities and benefits last
year."
"In yet another expression of contempt for stockholders, this month - right
after I named my slate of directors to be voted on at the forthcoming annual
meeting of stockholders - NGH adopted a `poison pill' in the form of a
preferred-stock purchase plan. That poison pill is triggered if an investor
acquires 10% of the company's shares. The board adopted this anti-stockholder
device immediately after I raised my ownership to 8.9%."
Urging the directors to heed their fiduciary responsibilities, Mr. Icahn stated:
"The NGH board should not deprive stockholders of the opportunity to choose for
themselves what they want to do with their shares."
`The clock is ticking on tobacco litigation'
The letter stated that the clock is ticking on tobacco litigation. In the widely
publicized Engle case in Florida, there is a real possibility that a jury award
of punitive damages could result in an appeal bond that is prohibitively
expensive. Obviously, the litigation and other liability issues relating to
tobacco matters could have a very adverse effect on tobacco-related companies,
their securities and their appeal to potential buyers in the future. The letter
stressed that now, not later, is the time to sell NGH.
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3
Board is `well insulated' ... other stockholders `not so lucky'
"Since the number of NGH shares now owned by NGH board members is relatively
small, the current board is well insulated from the pain of any further price
decline for the company's securities. Other stockholders are not so lucky. They
have been hurt badly by a declining share price in the past, and further
impairment of the company's asset value - because of real or perceived issues
concerning tobacco - will only add to their woes. I call upon you to let
stockholders decide for themselves whether they wish to take advantage of a
large premium for their shares right now as well as select a board of directors
that will immediately consider the sale of NGH. By denying them this choice you
will be forcing stockholders not only to take the risks mentioned above but also
to take the risk that there will be no buyer when and if the current board
determines to sell."
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Mr. Icahn and his affiliates have not yet commenced the tender offer referred
to in this statement. Upon the commencement of any tender offer, they will
file a tender offer statement with the Securities and Exchange Commission.
That statement will contain important information about the tender offer and
should be read by security holders. If a tender offer is commenced, security
holders will be able to obtain at no charge (i) the tender offer statement
and other documents when they become available on the Securities and Exchange
commission's website at http://www.sec.gov and (ii) the offer to purchase,
the letter of transmittal and the notice of guaranteed delivery from the
information agent for the tender offer.
Mr. Icahn and his affiliates have not yet filed a proxy statement. Security
holders are advised to read the proxy statement and other documents related
to the solicitation of proxies by Mr. Icahn and his affiliates from the
stockholders of Nabisco Group Holdings for use at its 2000 annual meeting
when they become available because it will contain important information.
When completed, a definitive proxy statement and a form of proxy will be
mailed to stockholders of Nabisco Group Holdings and will be available at no
charge on the Securities and Exchange Commission's website at
http://www.sec.gov. Information relating to the participants in the proxy
solicitation is contained in the Schedule 13D filed by Mr. Icahn and his
affiliates with respect to Nabisco Group Holdings. That Schedule 13D is
currently available at no charge on the Securities and Exchange Commission's
website.
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Contact: Susan Gordon: (212) 702-4309 or Karen Kavanagh: (212) 702-4310
