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AMP Incorporated
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(Name of Registrant as Specified In Its Charter)
ALLIEDSIGNAL INC.
PMA ACQUISITION CORPORATION
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EXHIBIT I
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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ALLIEDSIGNAL INC., :
a Delaware Corporation, :
P.O. Box 3000 :
Morristown, NJ 07962-2496 :
Plaintiff, :
- against - : C.A. No. 98-CV- 4058
AMP INCORPORATED, :
a Pennsylvania Corporation, :
470 Friendship Road :
Harrisburg, PA 17111 :
Defendant. :
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VERIFIED AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF
---------------------------------
Plaintiff AlliedSignal Inc. ("AlliedSignal"), by its undersigned
attorneys, as and for its Verified Amended Complaint, alleges upon knowledge
with respect to itself and its own acts, and upon information and belief as
to all other matters, as follows:
Nature of the Action
--------------------
1. This action arises out of AMP Incorporated's ("AMP's") illegal
attempt to thwart the fundamental right of AMP shareholders -- including
AlliedSignal -- to vote to change the leadership and direction of AMP, the
corporation they own.
2. In contravention of Pennsylvania and federal law, and its own
governing articles of incorporation ("Articles") and bylaws ("Bylaws"), AMP
has attempted to nullify the shareholder voting process by taking actions
to delay and interfere with the ability of AMP's shareholders to cast a
meaningful vote in AlliedSignal's current consent solicitation and to
accept the benefits of the tender offer and merger proposed by
AlliedSignal.
3. In particular, AMP has attempted to effect a fundamental
change in corporate governance in the midst of a takeover contest, by
creating a new form of defensive shareholder rights plan, or "poison pill,"
that appears to be unique in the history of American corporations. This
poison pill deprives AMP shareholders of a voice in important economic
decisions by (a) making any merger or tender offer that is not approved by
AMP's current board of directors ("Board") impossible to complete, even if
supported by a majority of shareholders, and (b) preventing any directors
- -- old or newly elected to AMP's Board by the shareholders -- from
redeeming the poison pill once a new majority of directors is elected to
the Board (the "Nonredemption Provision").
4. In order to protect the fundamental voting and corporate
governance rights of AMP's shareholders, AlliedSignal seeks relief: (a)
invalidating the Nonredemption Provision of AMP's poison pill; and (b)
preventing AMP from manipulating the corporate machinery or taking other
steps to delay and obstruct the consent solicitation.
Parties
-------
5. Plaintiff AlliedSignal is a Delaware corporation with its
principal executive offices in Morristown, New Jersey. AlliedSignal is an
advanced technology and manufacturing company with worldwide operations in
the aerospace, automotive and engineered materials businesses. AlliedSignal
is the beneficial and record owner of 100 shares of AMP common stock.
6. Defendant AMP is a Pennsylvania corporation with its principal
executive offices in Harrisburg, Pennsylvania. AMP designs, manufactures
and markets electronic, electrical and electro-optic connection devices,
interconnection systems and connector-intensive assemblies.
Jurisdiction and Venue
----------------------
7. This Court has jurisdiction over this action pursuant to 28
U.S.C. ss.ss. 1331, 1332 and 1367. The amount in controversy is in excess
of $75,000.
8. Venue is proper in this District under 28 U.S.C.ss. 1391 (b)
and (c).
AlliedSignal and its Proposal
-----------------------------
9. AlliedSignal wishes to acquire AMP because it believes that a
business combination with AMP will provide an attractive business
opportunity for both AlliedSignal and AMP.
10. Accordingly, after AMP rejected Allied Signal's overtures for
a negotiated transaction, on August 4, 1998, AlliedSignal announced that it
would commence a tender offer for all of the outstanding shares of the
common stock of defendant AMP at $44.50 in cash per share (the "Tender
Offer" or the "Offer"), pursuant to federal securities laws. AlliedSignal's
proposed $44.50 tender offer price represented a premium of more than 55%
over the trading price of AMP common stock immediately prior to the
announcement of the Offer. AlliedSignal would acquire, through a
second-step merger for the same $44.50 per share in cash (the "Merger"),
any shares of AMP that are not tendered.
11. AlliedSignal's Tender Offer gives AMP shareholders the
opportunity to accept the Offer if they determine that it is in their best
interests as the owners of AMP, and, alternatively, to reject the Offer if
they do not believe it is in their best interests.
12. On September 14, 1998, AlliedSignal amended its Offer (the
"Amended Offer") to permit it to acquire for $44.50 per share in cash 40
million AMP shares, approximately the number of shares it can acquire
without triggering AMP's poison pill. Following completion of the Amended
Offer, AlliedSignal intends to proceed with a new tender offer for all
remaining AMP shares outstanding at the $44.50 per share cash price, with
the intention of then consummating the proposed Merger.
13. AlliedSignal believes that a combined company under
AlliedSignal's strong management will permit AlliedSignal to offer a
broader range of products to a more diverse customer base in a wider
variety of markets than either company could achieve alone. Lawrence
Bossidy, AlliedSignal's chief executive officer since 1991, is a highly
respected corporate manager who, together with his management team, has
produced an almost fourfold increase in AlliedSignal's stock price since
1991. Mr. Bossidy was named "Chief Executive of the Year" in Chief
Executive magazine's July/August, 1998 issue, and Fortune magazine recently
named AlliedSignal, under Mr. Bossidy's leadership, to its lists of the
"Most Admired Companies" and "100 Best Companies To Work For." AlliedSignal
believes that Mr. Bossidy would provide similarly strong leadership to a
combined company.
14. For all of AMP's shareholders, a transaction with
AlliedSignal will provide the opportunity to be rewarded today for the
future value AlliedSignal believes it can create if it merges with AMP.
15. As of Midnight on September 11, 1998, the expiration date for
the Tender Offer, shareholders owning approximately 157 million shares of
AMP common stock, or approximately 72% of AMP's total outstanding shares,
had tendered their shares to AlliedSignal. These figures are exceptionally
high for a hostile tender offer for the shares of a publicly held company
and demonstrate the overwhelming support of AMP's shareholders for the
proposed business combination with AlliedSignal.
The Shareholder Franchise and Limitations on Directors
------------------------------------------------------
16. Pennsylvania statutory law and AMP's Articles and Bylaws
explicitly vest in AMP's shareholders, not AMP's Board, the ultimate
authority to decide whether to accept AlliedSignal's Offer and whether to
permit a merger with AlliedSignal. Moreover, federal law mandates
disclosure so that shareholders can make an informed choice. Thus,
corporate governance rules under Pennsylvania law and the federal
securities laws together are designed to let informed shareholders decide
the future of the corporations they own.
17. Shareholder voting rights are fundamental under Pennsylvania
law. Pennsylvania's Business Corporations Law ("PBCL") Section 1758(a)
provides in pertinent part that "every shareholder of a business
corporation shall be entitled to one vote for every share standing in his
name on the books of the corporation."
18. Section 1.10(a) of AMP's Bylaws similarly provides that each
shareholder shall be entitled to one vote for each outstanding share of
AMP.
19. Pennsylvania statutory law sanctifies a shareholder's right
to vote because, ultimately, the shareholders, as the corporation's owners,
have the right and ability to direct the actions of the corporation through
that vote. PBCL Section 1757(a), for example, provides that, "[e]xcept as
otherwise provided in [the PBCL] or in a bylaw adopted by the shareholders,
whenever any corporate action is to be taken by vote of the shareholders of
a business corporation, it shall be authorized upon receiving the
affirmative vote of a majority of the votes cast by all shareholders
entitled to vote thereon. . . ." Section 1.10(b) of AMP's Bylaws embodies
this majority-vote principle.
20. The PBCL is structured to recognize and effectuate
Pennsylvania's underlying goal of preserving for shareholders the ultimate
authority to control the affairs of the corporations they own. For example,
PBCL Section 1521(c) provides that shareholders may adopt bylaws setting
forth "provisions regulating or restricting the exercise of corporate
powers."
21. Shareholders of Pennsylvania corporations are also entitled
to use their voting power to effect corporate action by written consent.
PBCL Section 2524(a) provides that, if a registered corporation's articles
of incorporation permit it, corporate "action may be authorized by the
shareholders [of such corporation] without a meeting by less than unanimous
written consent."
22. Under PBCL Sections 1504(c), 1766(b) and 2524(a), if
permitted by a corporation's articles or bylaws, the corporation's
shareholders may take "any action" permitted to be taken at a shareholders'
meeting "upon the written consent of shareholders who would have been
entitled to cast the minimum number of votes that would be necessary to
authorize the action at a meeting at which all shareholders entitled to
vote thereon were present and voting." PBCL ss. 1766(b).
23. Article IX of AMP's Articles authorizes shareholder action by
written consent.
24. One of the most basic rights held by shareholders is the
right to elect a corporation's directors. PBCL Section 1725 and Section
1.11 of AMP's bylaws vest the right to elect directors in AMP's
shareholders.
25. The directors serve and execute their powers pursuant to the
will of the shareholders. PBCL Section 1721 provides that "a bylaw adopted
by the shareholders" can modify, limit, or even eliminate the authority of
a board of directors to exercise corporate powers.
26. Article VII of AMP's Articles explicitly provides that:
"Except as otherwise provided . . . by By-Laws . . . , all corporate powers
may be exercised by the Board of Directors. . . ."
27. The federal securities laws, by providing for informed voting
and tendering decisions by shareholders, also recognize that shareholders
have the ultimate choice in contests for corporate control and in deciding
whether to accept or reject proposed corporate transactions.
28. All these state and federal laws are designed to give
shareholders the right to make an informed decision concerning the future
of the corporations which they own, in an environment of full disclosure.
AMP's Efforts to Frustrate Shareholder Will
-------------------------------------------
29. Despite Pennsylvania's clear mandate in favor of shareholder
choice and corporate flexibility, and the policies underlying the federal
securities laws, AMP has taken illegal and manipulative actions designed to
frustrate the will of its shareholders.
30. First and foremost, AMP has a shareholder rights plan
commonly known as a "poison pill," which was adopted by the AMP Board in
1989 without shareholder approval. On August 20, 1998, AMP amended that
poison pill solely in response to AlliedSignal's Offer (as amended, the
"Poison Pill"). AMP's Poison Pill, if enforceable, makes it economically
prohibitive to acquire control of AMP in a transaction opposed by the
current AMP Board, even if the requisite majority of AMP shareholders and a
majority of a future Board favor the acquisition. The Poison Pill thus
effectively frustrates and prevents an effort by AlliedSignal or any other
hostile bidder to place into office a new majority of directors supported
by the requisite majority of AMP shareholders.
31. AMP's Poison Pill is designed to work as follows: in the
event that any person acquires more than 20% of AMP's stock, all other AMP
shareholders have the right to buy additional shares at half-price, causing
a massive dilution of the value of the holdings of the unwanted acquiror
(the "Flip-In Provision"). In addition, if AMP subsequently is acquired in
a merger, all AMP shareholders other than the acquiring corporation have
the right to buy shares of the acquiring corporation at a bargain price,
subjecting that corporation to a massive discount sale of its own stock
(the "Flip-Over Provision").
32. One function of a poison pill is to furnish a board of
directors with bargaining power to negotiate with a prospective acquiror.
To facilitate those negotiations, a board typically retains the right to
"redeem" -- or eliminate the effect of -- a poison pill, by paying rights
holders a nominal value. This permits directors on a continuing and
case-by-case basis to evaluate corporate opportunities according to their
fiduciary duties.
33. In most poison pills, a change in the composition of a
corporation's board, standing by itself, has no effect on a poison pill.
This feature protects shareholder democracy while giving any board --
whether long-incumbent or newly elected -- maximum flexibility to accept a
transaction that is in the best interests of the corporation. Indeed, a
critical aspect of the judicial acceptance of poison pills has been the
basic precept that they would not inhibit proxy contests, including those
involving a change of control of a company.
34. Until August 20, 1998, AMP's Poison Pill contained a
particularly draconian feature not typically found in poison pills -- a
so-called "Dead Hand" provision. Under the Dead Hand provision, if there
were a change in a majority of AMP's directors, the Poison Pill would have
been redeemable only by a majority of the "continuing directors" -- i.e.,
the present directors of AMP or their hand-picked successors. The Dead Hand
provision thus eliminated the authority of new directors, who would have
been elected by a majority of shareholders, to redeem the Poison Pill. For
these very reasons, comparable Dead Hand provisions have been held illegal
under the corporate law of Delaware and New York.
35. In order to avoid the impact of AMP's Dead Hand Poison Pill,
AlliedSignal commenced a consent solicitation (the "Consent Solicitation")
to obtain the consent of AMP's shareholders for certain proposals.
36. On August 12, 1998, AlliedSignal filed a preliminary consent
statement (the "Consent Solicitation Materials") with the Securities and
Exchange Commission (the "SEC"), publicly disclosing the precise terms of
proposals upon which AlliedSignal intended to seek shareholder approval.
37. AlliedSignal's initial consent proposals provided AMP's
shareholders with the opportunity to elect to AMP's Board AlliedSignal
nominees who, subject to their fiduciary duties, would support a business
combination with AlliedSignal. These new directors could have persuaded a
majority of AMP's continuing directors that the merits of AlliedSignal's
Offer and Merger proposal warranted redemption of the Dead Hand Poison
Pill.
The "Nonredemption" Amendment of AMP's Poison Pill
--------------------------------------------------
38. In light of AlliedSignal's Offer and Consent Solicitation,
the AMP Board concluded that its Dead Hand Poison Pill might not prove
draconian enough to thwart the will of its shareholders. On August 20,
1998, AMP therefore amended its Poison Pill to include an unprecedented,
outrageous and self-destructive feature.
39. In total disregard of shareholder voting rights generally,
and of the shareholder voting rights contained in its own Articles and
Bylaws, AMP's Board amended its Poison Pill by eliminating the Dead Hand
provision and replacing it with the Nonredemption Provision. This action by
AMP's Board made the Poison Pill nonredeemable by any directors, including
"continuing" directors and even disinterested directors, if a new majority
of directors is elected to the Board. Once this Nonredemption Provision is
triggered, no tender offer or merger can be completed until November 6,
1999, the expiration date of the Poison Pill.
40. The AMP Board also changed the Poison Pill to make it
non-amendable as soon as it becomes nonredeemable, which makes the
Nonredemption Provision, once triggered, irreversible.
41. Moreover, the AMP Board changed the definition of a
"Qualifying Offer" -- i.e., an offer that, because it is favored by the
Board, does not trigger the Poison Pill -- so that once the Pill is
nonredeemable, no offer can be deemed a Qualifying Offer.
42. Since AlliedSignal's Offer and Merger proposal would be of no
effect without, at a minimum, support of the holders of a majority of AMP's
shares, the AMP Board could have had no motive to take these actions other
than to strip the AMP shareholders of their right to elect new directors
who would act in the shareholders' interests and, subject to their
fiduciary duties, would support the Offer and Merger.
43. The Nonredemption Provision purports to prevent newly elected
directors -- whether elected through the Consent Solicitation or at AMP's
next annual meeting -- from redeeming the Poison Pill, even though that is
the very purpose for their election by the shareholders. This Board action
was designed to deny AMP's shareholders the opportunity to decide for
themselves whether to approve a change in control or sale of the
corporation.
44. The AMP Board's Nonredemption Provision also removes from a
newly constituted board of directors any ability to approve extraordinary
transactions -- such as a merger or sale of assets -- until the Poison Pill
expires, no matter how beneficial those transactions may be to AMP and its
constituents. Unilateral removal of this authority, responsibility and
discretion is an illegal encroachment on the power of the board of
directors as set forth under PBCL Sections 1502(18), 1525, 1712, 1715, and
1721.
AlliedSignal's Consent Solicitation
-----------------------------------
45. On September 14, 1998, AlliedSignal amended its Consent
Solicitation to include a proposal pursuant to PBCL Section 1721 and
Article VII of AMP's Articles (the "Shareholder Rights Proposal") which, if
approved by AMP's shareholders, will remove from AMP's Board all powers
with respect to AMP's Rights Agreement, and will vest those powers in a
group of agents (the "Rights Agreement Managing Agents").
46. The Rights Agreement Managing Agents will cause the Rights
Agreement to be amended to make it inapplicable to (i) any tender or
exchange offer (including AlliedSignal's Tender Offer), if as a result of
completion of the offer, the offeror would own a majority of outstanding
shares of AMP common stock, and (ii) any merger that either does not
require shareholder approval or is approved by the requisite vote of AMP
shareholders.
AMP's Other Manipulations of the Corporate Machinery
----------------------------------------------------
47. In addition to the amendment of its Poison Pill, AMP's Board
initiated several other entrenchment maneuvers.
AMP's Delay of the Record Date
- ------------------------------
48. On August 11, 1998, AlliedSignal formally requested in
writing that AMP fix August 31, 1998 as the record date for the Consent
Solicitation. On August 21, 1998, the AMP Board fixed the record date for
the AlliedSignal Consent Solicitation, not on August 31, 1998, but
forty-five days later, on October 15, 1998 (the "October 15 Record Date").
49. The purported grounds for the Board's fixing the October 15
Record Date, as publicly stated by the AMP Board, were (a) to ensure that
"adequate information is available" to AMP's shareholders, and (b) to give
AMP "sufficient time to comply with the broker search card requirements of
Rule 14a-13 under the Securities Exchange Act of 1934, as amended" (the
"Search Provision"). Neither of those purported justifications warranted
putting off the record date beyond August 31, let alone delaying it until
October 15.
50. There was no basis for the AMP Board's stated concerns
because the requested August 31 record date was suitable to provide
adequate information to AMP's shareholders. Moreover, the SEC proxy rules,
which govern the Consent Solicitation, are designed to ensure that AMP's
shareholders would have all material information to make an informed
decision before they gave their written consents. The AMP shareholders will
not be pressured or hurried to make a decision; the decision can be made
whenever they believe themselves properly knowledgeable.
51. In fact, on August 13, even before the AMP Board fixed the
record date, AMP filed with the SEC a preliminary Consent Revocation
Statement, pursuant to Section 14(a) of the Exchange Act, and the
information was publicized and made available to AMP shareholders. That
filing, which was amended on August 26, 1998 (as amended, "the preliminary
Schedule 14A"), was made for the purpose of commencing a solicitation
campaign to obtain consent revocations from AMP shareholders and thereby
seek to block AlliedSignal's Consent Solicitation.
52. Similarly, the notice period contemplated by the Search
Provision was effectively satisfied by AlliedSignal's request for the
fixing of an August 31 record date, since the request was made and widely
publicized on August 11, twenty days in advance of AlliedSignal's requested
record date.
53. AMP's fixing of the October 15 Record Date was arbitrary and
unnecessary for the orderly functioning of the consent process.
54. Nevertheless, AlliedSignal agreed not to contest the October
15 Record Date in a letter agreement, dated September 4, 1998, which
provided for notice to be given by AMP before it took certain actions
AMP's Frivolous Lawsuit Against AlliedSignal
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55. On August 21, 1998, AMP filed a complaint against
AlliedSignal, alleging that if "the seventeen AlliedSignal nominees to
AMP's Board were elected, they could not fulfill their fiduciary duties
both to AlliedSignal and its shareholders and to AMP" because "the
AlliedSignal officers and directors have already determined that AMP should
be combined with AlliedSignal . . . ." AMP further alleges in its complaint
that "[w]hile committed to this course of action on behalf of AlliedSignal,
the AlliedSignal nominees could not fully and completely discharge their
fiduciary duty to AMP."
56. AMP'S allegations are specious as a matter of law. first,
Pennsylvania law safeguards the right of shareholders to elect directors of
their own choosing, provided that such directors meet the minimal
qualifications set forth in the PBCL and AMP's bylaws, as do all of
AlliedSignal's nominees. Nothing in Pennsylvania law or AMP's articles or
bylaws remotely suggests that the shareholders' right to elect the
directors of the corporation they own does not apply to the election of a
director nominee who may have an outside interest in a proposed transaction
and/or has publicly taken a position in support of a proposed transaction
prior to the election.
57. Second, under PBCL Section 1728(a)(2) and Section 2.12 of
AMP's bylaws, "interested directors" are clearly permitted to submit a
proposed transaction to shareholders for approval. So long as the
shareholders have the right to decide whether a transaction is in their
best interests, Pennsylvania laws permit its adoption by interested
directors.
58. Thus, PBCL Section 1728(a)(2) permits a transaction between
AMP and a second corporation, like AlliedSignal, "in which one or more of
its directors or officers are directors or officers or have a financial or
other interest" (an "Interested Director"), as long as the "material facts
as to [the interested director's] relationship or interest and as to the
contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon and the contract or transaction is specifically
approved in good faith by vote of those shareholders" (the "Interested
Director Statute"). Section 2.12 of AMP's bylaws substantially mirrors the
provisions of the Interested Director Statute.
59. Third, unless the merger partner owns 80% or more of the
outstanding AMP shares, any merger must be approved by holders of
two-thirds of the outstanding Amp shares in accordance with Article X of
the AMP charter; this is even greater than the majority vote required under
Section 1924 of the PBCL. Moreover, if a proposed merger is consummated
involving all or part cash consideration, dissenters' rights would be
provided in accordance with Section 1930(a) of the PBCL.
60. Finally, in any event, there is no basis whatsoever for
suggesting that the nominees, who are persons of outstanding abilities,
experience and integrity, will not conduct themselves in full compliance
with their fiduciary duties to AMP. Nor will consideration of any of
AlliedSignal's proposals prevent an AMP director -- new or old -- from
acting in a manner consistent with his or her fiduciary duty.
61. In a separate claim for relief, AMP alleges in its complaint
that AlliedSignal has violated its disclosure obligations under Section 14
of the securities exchange act and the rules adopted thereunder because
AlliedSignal failed to disclose that its consent solicitation is
(allegedly) unlawful. This disclosure claim is equally frivolous. It is
well-established law that an entity is under no obligation to characterize
its consent solicitation proposals as unlawful. This is particularly true
where, as here, AlliedSignal has fully disclosed the underlying facts
giving rise to the proposals' alleged unlawfulness -- the nominees'
affiliation with AlliedSignal and their position with respect to the tender
offer.
AMP's Schedule 14D-9 and Public Statements
- ------------------------------------------
62. On August 21, 1998, AMP announced that it opposes the Tender
Offer and Merger, and filed with the SEC a Schedule 14D-9, which has since
been amended (the "Schedule 14D-9"), describing the AMP Board's opposition
to AlliedSignal's Tender Offer.
63. AMP's Schedule 14D-9 states that AlliedSignal's Tender Offer
is "not in the best interests of AMP and its relevant constituencies"
because AMP's "current strategic initiatives and business plans offer the
potential for greater benefits for AMP's various constituencies, including
its shareholders." AMP's so-called current Restructuring and AMP's
"initiatives" and "business plans," however, are merely the latest
iteration of AMP management's past unsuccessful efforts to improve AMP's
operations -- efforts which have done nothing to improve the value of AMP.
Indeed, AMP acknowledges that, prior to AlliedSignal's announcement of the
Tender Offer, AMP's share price was the lowest it has been in twelve years,
despite the prior announcement of its restructuring plan.
64. AMP's Schedule 14D-9 also describes the AMP Board's "belief
that [AMP's] new management team is well suited to implement the profit
improvement program" it allegedly has instituted. But AMP's purported "new
management" consists of the very same individuals who have attempted,
without success, to improve AMP's operations over the past several years.
65. AMP apparently has no intention of ceasing its campaign to
keep control of AMP in the hands of current management despite the will of
AMP's shareholders. AMP's Chairman Robert Ripp was reported in a Wall
Street Journal article, dated September 11, 1998, as stating that, even if
75% of AMP's shares are tendered, he still plans to fight AlliedSignal's
Offer until AMP's Poison Pill expires in November 1999.
Risk of Irreparable Harm
- ------------------------
66. Both the proposed Offer and the proposed Merger will afford
enormous benefits to AlliedSignal and AMP shareholders.
67. Consummating the Merger with AMP will give AlliedSignal an
important new business segment that will complement its current businesses.
AlliedSignal will be irreparably harmed if, because of the AMP Board's
actions, it is not permitted to complete its Tender Offer and Merger within
a reasonable period of time.
68. AMP's conduct effectively disenfranchises AMP's shareholders
by depriving them of the ability to control the affairs of their
corporation and to obtain desired representation on AMP's Board.
69. Through the actions described above, AMP has attempted to
deny shareholders the right to exercise their franchise by electing
directors who can remove the critical obstacle -- the Poison Pill -- to
consummation of the Offer and the proposed Merger. Furthermore, the
uncertainties created by AMP's actions in adopting a nonredeemable poison
pill adversely affect the consent process, since shareholders do not know
what actions AlliedSignal may take to implement the proposed Merger, the
timing of the Merger, or whether AlliedSignal would withdraw the Offer and
proposed Merger if the Poison Pill were not defused. AMP's interference
with the shareholder franchise will cause shareholders irreparable harm.
70. Moreover, while interference with shareholder voting rights
under any circumstances will cause shareholders irreparable harm, the right
to vote in favor of, or against, a fundamental corporate change like
AlliedSignal's Merger proposal, is one of the quintessential issues for
which voting rights are intended to be protected.
71. The Tender Offer and Merger also provide AMP's shareholders
the opportunity to realize a more than 55% premium for their AMP stock
based on AMP's market price immediately prior to the announcement of the
Offer on August 4, 1998. Presumably, AlliedSignal's Offer represents an
even greater premium value today in view of the substantial stock market
decline since that date. AMP's shareholders will lose the opportunity
presented by the Offer and proposed Merger, if the AMP Board of Directors
is permitted to frustrate the rights of AMP shareholders.
First Claim for Relief
----------------------
(Declaratory Judgment and Injunctive Relief
with Respect to Illegal Nonredemption Provision of AMP's Poison Pill)
72. Plaintiff repeats and realleges the allegations contained in
each of the preceding paragraphs as if fully set forth herein.
73. The Nonredemption Provision -- which effectively strips duly
elected directors of the ability to redeem the Poison Pill -- undermines
the mandate embedded in Pennsylvania law, including PBCL Section 1725, that
(a) only those directors validly elected by shareholders are entitled to
manage the corporation; and (b) once directors are elected, they cannot be
prevented from acting to manage the corporation.
74. By denying the Board any ability, "following a majority
change of disinterested directors," to redeem the Poison Pill, the
Nonredemption Provision also violates Section 1.11 of AMP's Bylaws, which
provides for the election of AMP directors by AMP's shareholders, and Section
2.1 of AMP's Bylaws, which provides that directors duly elected by the
shareholders have the authority to manage AMP's business and affairs.
75. The Nonredemption Provision also violates PBCL Section 1721,
which requires that, unless otherwise provided by statute or in a bylaw
adopted by the shareholders, all powers vested in a corporation "shall be
exercised" by, or at the direction of, a corporation's directors. One such
power expressly vested in the corporation under PBCL ss. 1502(18), is the
power to "accept, reject, respond to, or take no action in respect of an
actual or potential . . . tender offer." Since the shareholders of AMP have
not (as yet) adopted a bylaw restricting their directors' ability to
exercise this power, AMP's Board cannot by itself so limit the discretion
of future directors through adoption of the Nonredemption Provision.
76. The Nonredemption Provision is illegal under PBCL Sections
1525, 1712 and 1715, because it restricts the Board from redeeming the
Poison Pill even if that is required by the Board members' fiduciary
duties.
77. Shareholders have fundamental voting rights that cannot be
contravened by a corporation's board of directors. In an election contest,
the adoption of a nonredeemable poison pill like AMP's is a patently
unreasonable and disproportionate defensive measure, because it is designed
to eradicate the AMP shareholders' rights to receive tender offers and wage
proxy contests and consent solicitations to replace the AMP Board. And,
because the Nonredemption Provision is specifically intended to take effect
when shareholders have voted or consented to a change in control of the
Board, it is inherently suspect as an entrenchment mechanism of the current
AMP Board and AMP management.
78. The Nonredemption Provision thus purposefully interferes with
the shareholder voting franchise without any reasonable justification.
79. In violating the PBCL and AMP's Bylaws, the adoption of the
Nonredemption Provision exceeds the powers granted to the corporation and
its directors under PBCL Section 1502. This act is, therefore, ultra vires
and of no effect.
80. AMP's adoption of the Nonredemption Provision also
constitutes fraud and/or fundamental unfairness on the part of AMP,
entitling AlliedSignal to declaratory relief, and to injunctive relief
invalidating the Nonredemption Provision under PBCL Section 1105.
Second Claim for Relief
-----------------------
(Declaratory Judgment
for Commerce Clause Violation)
81. Plaintiff repeats and realleges the allegations contained
in each of the preceding paragraphs as if fully set forth herein.
82. To the extent that the Nonredemption Provision and other
anti-takeover devices that preclude tender offers and consent solicitations
are permitted under Pennsylvania law, such law is unconstitutional under
the Commerce Clause because it impermissibly burdens interstate commerce
far in excess of local benefits.
83. The Nonredemption Provision renders futile the Consent
Solicitation and other contests for corporate control, because the
shareholders will be powerless to elect a board that is both willing and
able to accept an insurgent's bid. If Pennsylvania law is deemed to permit
the Nonredemption Provision, such law gives a Pennsylvania corporation's
pre-existing board of directors a de facto veto power over tender offers
and mergers, thwarts shareholder democracy and the rights of all AMP
shareholders located throughout the United States, and impermissibly
burdens interstate commerce.
84. To the extent the Nonredemption Provision is permissible
under Pennsylvania law, such law injures and will continue to injure
AlliedSignal and all AMP shareholders because it creates an absolute
barrier to the proposed Tender Offer and Merger, or any other similar
transaction proposed by anyone else, even if the holders of a majority --
or, indeed, all -- of AMP's shares support the proposed transaction.
Third Claim for Relief
----------------------
(Declaratory Judgment
for Supremacy Clause Violation)
85. Plaintiff repeats and realleges the allegations contained in
each of the preceding paragraphs as if fully set forth herein.
86. To the extent that the Nonredemption Provision and other
anti-takeover devices that preclude tender offers and consent solicitations
are permitted under Pennsylvania law, such law is preempted by the federal
securities laws and thereby violates the Supremacy Clause of the United
States Constitution. It frustrates the purposes and objectives of Congress
in enacting the Williams Act and proxy laws by: (a) giving intransigent
management the ability to defeat a noncoercive proposal without a vote by
shareholders; (b) impermissibly tilting the balance between management and
a potential acquiror in the context of a noncoercive proposal; and (c)
creating an absolute barrier to the right of AMP shareholders to exercise
their voting rights in favor of the proposed Tender Offer and Merger.
87. To the extent the Nonredemption Provision is permissible
under Pennsylvania law, such law injures and will continue to injure
AlliedSignal because it creates an absolute barrier to the proposed Tender
Offer and Merger, or any other similar transaction proposed by anyone else,
even if the holders of a majority of AMP's shares support the proposed
transaction.
Fourth Claim for Relief
-----------------------
(Declaratory Judgment and Injunctive Relief
for Record Date Abuse or Other Manipulation of AMP's Corporate Machinery)
88. Plaintiff repeats and realleges the allegations contained in
each of the preceding paragraphs as if fully set forth herein.
89. AMP should be enjoined from using the time prior to the
October 15 Record Date to take additional action that has the effect of
interfering with the rights of AMP's shareholders to vote on the Consent
Solicitation proposals.
90. In particular, AMP should be enjoined from: (a) amending its
Bylaws or Poison Pill in any way to impede the effective exercise of the
shareholder franchise; or (b) utilizing the delay caused by AMP's fixing of
the October 15 Record Date to interfere with the AMP shareholders' right to
vote on matters presented by AlliedSignal's Consent Solicitation.
91. AlliedSignal has no adequate remedy at law.
WHEREFORE, plaintiff respectfully requests that this Court enter
judgment against defendant, as follows:
A. Declaring pursuant to the Declaratory Judgment Act, 28
U.S.C. ss. 2201(a) and Fed. R. C. P., Rule 57, that:
(a) the Nonredemption Provision is in violation of
Pennsylvania law; and
(b) to the extent Pennsylvania law authorizes the
Nonredemption Provision, such law (i) constitutes an impermissible burden
on interstate commerce in violation of the Commerce Clause of the United
States Constitution, and (ii) is preempted by the Williams Act and
therefore unconstitutional under the Supremacy Clause of the United States
Constitution.
B. Enjoining enforcement of the Nonredemption Provision of AMP's
Poison Pill.
C. Preliminarily and permanently enjoining the defendant, its
directors, officers, partners, employees, agents, subsidiaries and
affiliates, and all other persons acting in concert with or on behalf of
the defendant directly or indirectly, from taking any steps to impede or
frustrate the ability of AMP's shareholders to consider or make their own
determination as to whether to accept the terms of AlliedSignal's tender
offers and the proposals in AlliedSignal's Consent Solicitation, or taking
any other action to manipulate the corporate machinery or thwart or
interfere with AlliedSignal's tender offers or Consent Solicitation,
including, among other things, (i) amending its bylaws or Rights Agreement
in any way to impede the effective exercise of the shareholder franchise;
or (ii) utilizing the delay caused by AMP's fixing of the October 15 Record
Date to interfere with the AMP shareholders' right to vote on matters
presented by AlliedSignal's Consent Solicitation.
D. Granting compensatory damages for all incidental injuries
suffered as a result of defendant's unlawful conduct.
E. Awarding plaintiff the costs and disbursements of this action,
including attorney's fees.
F. Granting plaintiff such other and further relief as the court
deems just and proper.
/s/ Alexander R. Sussman
---------------------------------
Marc P. Cherno
Alexander R. Sussman
Barry G. Sher
Thea A. Winarsky
Fried, Frank, Harris, Shriver &
Jacobson
One New York Plaza
New York, NY 10004
(212) 859-8000
and
/s/ Mary A. McLaughlin
---------------------------------
Mary A. McLaughlin
George G. Gordon
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
(215) 994-4000
Attorneys for Plaintiff
DATED: September 14, 1998
EXHIBIT II
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
- ------------------------------------------x
ALLIEDSIGNAL INC., :
:
Plaintiff, :
:
- against - : C.A. No. 98-CV-4058
:
AMP INCORPORATED, :
:
Defendant. :
:
- ------------------------------------------x
MEMORANDUM IN SUPPORT OF ALLIEDSIGNAL'S MOTION
FOR SUMMARY JUDGMENT AND FOR AN IMMEDIATE
DECLARATORY JUDGMENT AND PRELIMINARY INJUNCTION
Alexander R. Sussman Mary A. McLaughlin
Barry G. Sher George G. Gordon
Rana Dershowitz DECHERT, PRICE & RHOADS
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON 4000 Bell Atlantic Tower
(A Partnership Including Professional 1717 Arch Street
Corporations) Philadelphia, PA 19103
One New York Plaza (215) 994-4000
New York, NY 10004
(212) 859-8000
ATTORNEYS FOR ALLIEDSIGNAL INC.
Dated: September 14, 1998
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES........................................................ii
PRELIMINARY STATEMENT........................................................2
STATEMENT OF FACTS...........................................................8
I. THE NONREDEMPTION PROVISION SHOULD IMMEDIATELY BE DECLARED INVALID
OR, ALTERNATIVELY, ENJOINED...........................................13
A. AlliedSignal Is Entitled To Summary Judgment Declaring The
Nonredemption Provision Invalid Under Pennsylvania Law..............13
1. The Nonredemption Provision Illegally Interferes With The
Shareholder Franchise.............................................14
2. The Nonredemption Provision Is An Illegal Restriction On The
Board's Discretion................................................21
B. Alternatively, AlliedSignal Is Entitled To A Preliminary Injunction
Against The Enforcement Of The Nonredemption Provision...............24
1. Alliedsignal And AMP's Other Shareholders Will Suffer Irreparable
Harm If The Nonredemption Provision Is Not Enjoined...............25
2. The Balance Of The Equities Tips Decidedly In Favor Of AlliedSignal
And The AMP Shareholders..........................................29
3. A Preliminary Injunction Is In The Public Interest................30
II. THE AMP BOARD SHOULD BE PRELIMINARILY ENJOINED FROM TAKING ANY FURTHER
ACTION THAT WOULD AS A PRACTICAL MATTER RENDER THE SHAREHOLDER VOTE ON
THE CONSENT SOLICITATION MEANINGLESS.................................30
CONCLUSION..................................................................33
TABLE OF AUTHORITIES
CASES PAGE
American Crystal Sugar Co. v. Cuban-American Sugar Co.,
276 F. Supp. 45 (S.D.N.Y. 1967)............................................ 19
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986)........................................................ 13
Arapahamian v. HBO & Co.,
531 A.2d 1204 (Del. Ch. 1987).................................. 18 n. 13
Bank of New York Co. v. Irving Bank Corp.,
528 N.Y.S.2d 482 (Sup. Ct. N.Y. Co. 1988)...................... 14, 23, 26, 29
Bieros v. Nicola,
857 F. Supp. 445 (E.D. Pa. 1994)..................................... 24
Blasius Indus. Inc. v. Atlas Comp.,
564 A.2d 651 (Del. Ch. 1988)............................... 18, 18 n. 13
Calderon v. Ashmus,
118 S. Ct. 1694 (1998)............................................... 13
Carmody v. Toll Brothers, Inc.,
C.A. No. 15983,
1998 Del. Ch. LEXIS 131
(Del Ch. July 24, 1998)........................ 14, 17, 20, 22, 23 n. 14
Coalition to Advocate Public Utility Responsibility, Inc. v. Engels,
364 F. Supp. 1202 (D. Minn. 1973).............................. 17 n. 13
Commonwealth v. Coward,
489 Pa. 327, 414 A.2d 91 (1980)................................ 27 n. 18
CASES PAGE
Conoco Inc. v. Seagram Co., Ltd.,
517 F. Supp. 1299 (S.D.N.Y. 1981).................................... 19
Danaher Corp. v. Chicago Pneumatic Tool Co.,
Nos. 86 Civ. 3499, 86 Civ. 3638,
1986 WL 7001 (S.D.N.Y. Jun. 19, 1986)................ 17 n. 13, 25 n. 16
Davis Acquisition Inc. v. NWA, Inc.,
Civ. A. No. 10761, 1989 WL 40845 (Del. Ch. Apr. 24, 1989)............ 26
EAC Industries Inc. v. Frantz Mfg. Co.,
C.A. No. 8003 (Del. Ch. June 28, 1985), aff'd
Fed. Sec. L. Rep. (CCH) P. 92,405 (Del.)....................... 25 n. 16
ECRI v. McGraw-Hill, Inc.,
809 F.2d 223 (3d Cir. 1987).......................................... 24
Frank's GMC Truck Ctr., Inc. v. GMC,
847 F.2d 100 (3d Cir. 1988).......................................... 24
Hilton Hotels Corp. v. ITT Corp.,
962 F. Supp. 1309 (D. Nev.), aff'd
1997 WL 345963 (9th Cir. June 19, 1997)........................... 18-19
Hilton Hotels Corp. v. ITT Corp.,
978 F. Supp. 1342 (D. Nev. 1997)............................... 17 n. 13
IBS Financial Corp. v. Seidman & Assocs., L.L.C.,
136 F.3d 940 (3d Cir. 1998).......................................... 18
In re Jones & Laughlin Steel Corp.,
488 Pa. 524, 412 A.2d 1099 (1980).......................................... 28
CASES PAGE
International Banknote Co. v. Muller,
713 F. Supp. 612 (S.D.N.Y. 1989)..................................... 25
International Brotherhood of Teamsters General Fund v. Fleming Cos., Inc.,
1997 U.S. Dist. LEXIS 2980 (W.D. Okla. Jan. 24, 1997).......... 32 n. 20
Invacare Corp. v. Healthdyne Technologies, Inc.,
968 F. Supp. 1578 (N.D.Ga. 1997)..................... 23 n. 14, 33 n. 20
Moran v. Household International, Inc.,
500 A.2d 1346 (Del. 1985)............................................ 20
Norfolk Southern Corp. v. Conrail,
Civ. Act. No. 96-7167 (E.D.Pa. Dec 17, 1996)..................... 16, 28
Norlin Corp. v. Rooney, Pace Inc.,
744 F.2d 255 (2d Cir. 1984).......................................... 19
Opticians Ass'n of America v. Independent Opticians of America,
920 F.2d 187 (3d Cir. 1990)...................................... 24, 29
Peabody Holding Co., Inc. v. Costain Group, PLC,
813 F. Supp. 1402 (E.D. Mo. 1993).............................. 26 n. 17
Prudential Ins. Co. of America v. Stella,
1998 WL 57505 (E.D. Pa. Feb. 12, 1998)............................... 29
Reifsnyder v. Pittsburgh Outdoor Advertising Co.,
405 Pa. 142, 173 A.2d 319 (1961)..................................... 16
San Francisco Real Estate Investors v. Real Estate Investment
Trust of America,
701 F.2d 1000 (1st Cir. 1983).................................. 25 n. 17
CASES PAGE
Shoen v. AMERCO,
885 F. Supp. 1332 (D. Nev. 1994) vacated by stipulation,
(D. Nev. Feb 9, 1995)...................................... 19, 25 n. 16
Stahl v. Apple Bancorp, Inc.,
579 A.2d 1115 (Del. Ch. 1990).................................. 18 n. 13
Steinberg v. American Bantam Car Co.,
76 F.Supp. 426 (W.D.Pa. 1948).................................. 18 n. 13
University of Maryland at Baltimore v. Peat, Marwick, Main & Co.,
996 F.2d 1534........................................................ 24
Weeks Dredging & Contracting, Inc. v. American Dredging Co.,
451 F. Supp. 468 (E.D.Pa. 1978)................................ 25 n. 17
STATUTES AND RULES PAGE
PBCL ss. 1105................................................................ 28
PBCL ss. 1306.......................................................... 16 n. 12
PBCL ss. 1504................................................ 23 n. 14, 31 n. 19
PBCL ss. 1521.......................................................... 15 n. 12
PBCL ss. 1525................................................................ 21
PBCL ss. 1712........................................................ 21, 22, 23
PBCL ss. 1715................................................................ 23
PBCL ss. 1721....................................... 3, 16, 22, 23 n. 14, 31, 32
Amended Committee Comment to PBCL ss. 1721................................... 32
PBCL ss. 1727.......................................................... 16 n. 12
PBCL ss. 1728......................................................... 4, 5 n. 5
STATUTES AND RULES PAGE
PBCL ss. 1729.......................................................... 15 n. 12
PBCL ss. 1731.......................................................... 15 n. 12
PBCL ss. 1756.......................................................... 16 n. 12
PBCL ss. 1758.......................................................... 16 n. 12
PBCL ss. 1766......................................................... 2 n. 2, 3
PBCL ss. 1768.......................................................... 16 n. 12
PBCL ss. 2513................................................................ 21
Committee Comment to PBCL ss. 2513...........................................22
PBCL ss. 2524......................................................... 2 n. 2, 3
PBCL ss. 2555 .................................................................4
PBCL ss. 2556 .................................................................4
PBCL ss. 2564 .................................................................4
Fed. R. Civ. P. 56........................................................... 13
Fed. R. Civ. P. 57........................................................... 13
28 U.S.C. ss. 2201........................................................... 13
8 Del. C. ss. 141(a)................................................... 23 n. 14
8 Del. C. ss. 141(d) .................................................. 23 n. 14
Ga. Stat. Ann. ss. 14-2-624.................................. 23 n. 14, 33 n. 20
N.Y. Bus. Corp. Law ss. 620.............................................23 n. 14
N.Y. Bus. Corp. Law ss. 701.............................................23 n. 14
MISCELLANEOUS AUTHORITIES PAGE
13 Fletcher, Cyclopedia Corporations ss. 5717............................. 16
William H. Clark, Jr., What the Business World is Looking for in an
Organizational Form:
The Pennsylvania Experience, 32 Wake Forest L.Rev. (1997)................. 15
Gordon Fairclough, AMP Chief Promises Economic Incentive to get
Stockholders to Reject Takeover, WALL ST. J. Sept. 11, 1998 at A4......... 12
Gary M. Holihan, Pennsylvania's Antitakeover Statute: An Impermissible
Regulation of the Interstate Market for Corporate Control, 66 Chi-Kent
L.Rev.863 (1990)...................................................... 4 n. 3
Shawn C. Lee, Preventing Control from the Grave: A Proposal for Judicial
Treatment of Dead Hand Provisions in Poison Pills, 96 Colum.
L.Rev. 2175 (1996).................................................... 9 n. 9
Steven Lipin, More Potent Weapons Dwell in Takeover Arsenal,
WALL ST. J. Sep. 5, 1995, at C1....................................... 9 n. 9
Steven M.H. Wallman, The Proper Interpretation of Corporate Constituency
Statutes and Formulation of Director Duties, 21 Stetson L.Rev. 163 (1991)
23 n...................................................................... 15
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
- ------------------------------------------x
ALLIEDSIGNAL INC., :
:
Plaintiff, :
:
- against - : C.A. No. 98-CV-4058
:
AMP INCORPORATED, :
:
Defendant. :
:
- ------------------------------------------x
MEMORANDUM IN SUPPORT OF ALLIEDSIGNAL'S MOTION
FOR SUMMARY JUDGMENT AND FOR AN IMMEDIATE
DECLARATORY JUDGMENT AND PRELIMINARY INJUNCTION
This is an action by AlliedSignal Inc. ("AlliedSignal") to set
aside and prevent further illegal actions by the board of directors of AMP
Incorporated ("AMP"), in order to preserve the fundamental right of AMP's
shareholders to decide for themselves whether they want to sell their
company and accept AlliedSignal's offer of $44.50 cash per share.
AlliedSignal submits this memorandum in support of its motion for
(1) summary judgment on its claim for a declaratory judgment that the
August 20, 1998 amendment to AMP's Shareholder Rights Agreement (referred
to as a "poison pill") adding a "nonredemption provision" was ultra vires,
or, in the alternative, a preliminary injunction preventing enforcement of
the nonredemption provision; [FN1] and (2) a preliminary injunction prohibiting
the AMP board of directors from amending the AMP bylaws or poison pill or
taking any other action that would, as a practical matter, make the
shareholder vote on AlliedSignal's consent solicitation meaningless or
would delay the record date beyond October 15, 1998. [FN2]
- ---------------
1 A poison pill, commonly adopted by many publicly traded corporations in
the form of a "shareholders rights agreement," is designed to repel, or
at least delay, takeover attempts that are not approved by the board of
directors. In general terms, a poison pill works as follows: if an
acquiring entity (the "acquiror") acquires more than a specified
percentage of a target company's stock (20% in AMP's case), each share
of the stock (other than stock held by the acquiror) carries with it a
"right" to acquire newly-issued shares of the company's stock at half
price. The effect of the right is to place huge amounts of half-price
stock in the hands of the target's shareholders, thereby diluting the
interest of the acquiror and making it economically prohibitive for the
acquiror to complete the acquisition of control (i.e., swallow the
pill). This is commonly referred to as the "flip-in" provision. In
the event the acquiror seeks to complete the acquisition by way of a
merger, the rights held by the target's shareholders entitle those
shareholders to acquire newly-issued shares of the acquiror's stock at
half-price. This provision, referred to as the "flip-over" provision,
makes a merger economically prohibitive.
All poison pills include a "redemption" provision that allows the
target company to redeem the rights at any time prior to a "triggering
event," usually an acquisition of more than 20% of the stock of the
target or a merger in which the target is not the surviving entity.
Because of the redemption provision, if the target company's board of
directors approves an acquisition of control, it can extinguish the
rights to permit the sale or merger of the company. By contrast, the
new AMP "nonredemption provision" would make it impossible to redeem
the poison pill upon a change in control.
2 A right to act by written consent allows shareholders to take action,
such as amending bylaws and electing directors, without the necessity
for an annual or special meeting. See Pennsylvania Business
Corporation Law ss.ss. 1766, 2524. Thus, if a majority of the
shareholders are dissatisfied with the current board of directors,
they can at any time, through simple shareholder democracy, effect a
change in the majority of the board and redirect the course of the
corporation. In the case of publicly-held companies like AMP, the
shareholder consents are obtained through a "consent solicitation"
conducted in compliance with the proxy rules under the federal
Securities Exchange Act of 1934.
PRELIMINARY STATEMENT
This is a case about the fundamental division of power between
the shareholders - the owners of a corporation - and their elected
representatives, the board of directors. It is NOT a case about the
latitude given to directors in exercising the powers properly vested in
them; nor is it about a breach of fiduciary duties. It is a case about
shareholder rights.
On the critical question at issue here - the limits that are
placed on the directors' powers vis-a-vis the shareholders - Pennsylvania
law gives the directors less authority and reserves to the shareholders
greater rights than most states, including Delaware. In most states, all
powers to run a corporation on a day-to-day basis are vested solely in the
board of directors, its committees and the officers elected by the board.
By contrast, Section 1721 of the Pennsylvania Business Corporation Law
("PBCL") provides that all powers of the corporation "shall be exercised by
or under authority of" a board of directors, "[U]NLESS OTHERWISE PROVIDED
. . . IN A BYLAW ADOPTED BY THE SHAREHOLDERS" (emphasis added). The section
goes on to state, in clear and unequivocal terms:
If any such provision is made in the bylaws, the powers and
duties conferred or imposed upon the board of directors by this
subpart shall be exercised or performed to such extent and by
such person or persons as shall be provided in the bylaws.
PBCL ss. 1721. Thus, in Pennsylvania, the shareholders retain the right to
remove powers from the board, either to exercise those powers themselves or
to vest them in persons of their own choosing. This is in addition, of
course, to the shareholders' most basic right to elect their directors by
democratic vote.
This reservation of power to the shareholders is confirmed in
AMP's Articles of Incorporation, the company's "constitution" or basic
corporate governance document. Article VII of AMP's Articles provides that
"all powers may be exercised by the Board of Directors" "[e]xcept as
otherwise provided by . . . By-Laws."
Sections 1766 and 2524 of the PBCL also provide that the
requisite majority of shareholders may take action by written consent,
rather than at a meeting of all shareholders, if permitted by the articles
of incorporation. In AMP's case, the shareholders decided, when they
adopted the current Articles of Incorporation, that they wanted this basic
right of shareholder suffrage. Accordingly, Article IX of AMP's Articles
specifically allows action to be taken by shareholder consent without a
meeting:
Any action that may be taken at a meeting of the shareholders or
of a class of shareholders may be taken without a meeting if
proper consent is made to the action. Any such action may be
taken without a meeting upon the written consent of shareholders
who would have been entitled to cast the minimum number of votes
that would be necessary to authorize the action at a meeting at
which all shareholders entitled to vote were present and voting.
Chapter 25 of the PBCL, widely regarded as being among the
strictest anti-takeover legislation of any state, erects substantial
hurdles to a takeover that is not approved by the board of directors. But
it does NOT ban such takeovers. It merely imposes terms and conditions to
prevent abusive tactics. [FN3] In the end, so long as a majority of the
disinterested shareholders (i.e., the shareholders other than management
and the acquiror) support the offer or proposed merger, the combination can
be effected. See, e.g., PBCL ss. 1728 (authorizing transactions involving
interested directors if all material facts are disclosed and the
transaction is approved by a majority of disinterested shareholders). See
also PBCL ss.ss. 2555, 2556, 2564.
- ---------------
3 The Pennsylvania anti-takeover legislation was adopted in response to
the abusive tactics, including coercive partial tender offers and
greenmail, that characterized the takeover attempts of the corporate
raiders of the 1980's, such as the Belzberg family's bid for Armstrong
World Industries, Inc., and other attempted takeovers by raiders such
as Carl Icahn and T. Boone Pickens. See Gary M. Holihan,
Pennsylvania's Antitakeover Statute: An Impermissible Regulation of
the Interstate Market for Corporate Control, 66 Chi-Kent L. Rev. 863
(1990). It was not targeted at tender offers by another company
seeking a strategic business combination through a premium all cash
offer.
The AMP board adopted a poison pill in 1989. [FN4] AMP's poison
pill, in its original form, was more "toxic" than most. It included a
so-called "dead hand" provision, which provided that the pill could be
redeemed only by a majority of the directors in office before a hostile
takeover began. These directors were referred to as the "continuing
directors." As set forth in Section I.A.1 below, courts that have
considered "dead hand" provisions under governance schemes like
Pennsylvania's have ruled that those provisions violate the rights of
shareholders.
- ---------------
4 For the Court's convenience, AMP's poison pill (Rights Agreement, dated
as of October 25, 1989, as amended, between AMP Incorporated and
ChaseMellon Shareholder Services L.L.C., as Rights Agent) is included
in the accompanying Appendix as Exhibit C-3. The Appendix also
contains the statutory provisions, legislative materials, SEC filings
and AMP's Articles and Bylaws which are cited in this Memorandum.
Citations to exhibits included in the Appendix are "App. Ex. __".
It was against this backdrop that AlliedSignal, on August 4,
1998, announced its tender offer for all shares of AMP at $44.50 cash per
share. The offer was conditioned on, among other things, the redemption of
AMP's poison pill by the AMP board. At the same time, AlliedSignal also
announced that it would conduct a consent solicitation of AMP's
shareholders to (1) approve bylaw amendments that would increase the size
of AMP's board from 11 to 28 and (2) elect AlliedSignal nominees to the 17
vacancies. As specified in the consent solicitation, the nominees, subject
to their fiduciary duties to consider a superior offer, would approve a
cash merger between AlliedSignal and AMP at $44.50 for each AMP share.
Under AMP's Articles, the merger could not be consummated without a
two-thirds vote of the outstanding AMP shares (unless AlliedSignal already
owned 80% of the shares). [FN5] In addition, AlliedSignal clearly stated in
its tender offer and its communication to the AMP board that it was willing
to pay more in a negotiated transaction.
- ---------------
5 AMP has filed an action in this Court against AlliedSignal asserting
among other things that AlliedSignal's consent solicitation is illegal
because its nominees have a conflict of interest. As we will explain
in our opposition to AMP's motion for summary judgment, AMP's position
is frivolous in light of the explicit provisions of the PBCL, including
Section 1728 which provides rules for transactions involving interested
directors. Indeed, it is not unusual in proxy contests or consent
solicitations for a change of control that the party seeking control
nominates directors affiliated with that party, which occurred, for
example, in WHX's 1996 bid for Teledyne and Alliance Gaming's 1995 bid
for Bally Gaming. See Affidavit of Ronald E. Knox ("Knox Aff.") filed
herewith, P. 14.
It was AlliedSignal's belief that, if shareholders owning more
than 50% of the outstanding shares of AMP signed consents in support of the
AlliedSignal proposals, thereby electing AlliedSignal's nominees, and
subsequently, if more than two-thirds of the outstanding shares were voted
in favor of the merger, the merger could have been consummated in
compliance with Pennsylvania law and without triggering the poison pill.
[FN6]
- ---------------
6 At the time AlliedSignal announced its tender offer and consent
solicitation, AMP's poison pill did not prevent a majority of
newly-elected directors from approving a merger to be voted upon by AMP
shareholders.
In short, the Pennsylvania legislature, the AMP Articles of
Incorporation (approved by the shareholders) and the AMP board had
established a set of rules governing takeovers by which a takeover could be
accomplished without the consent of the continuing directors and without
triggering the pill. AlliedSignal announced a plan to acquire AMP that was
carefully designed in accordance with those rules.
Fearful that the AMP shareholders would approve the AlliedSignal
proposal, the AMP board changed the rules, taking the ultimate
decision-making authority out of the hands of the shareholders. Without
even talking to AlliedSignal, the AMP board rejected the offer as
"inadequate" and refused to redeem the pill. In addition, the board amended
the pill to provide that, if AlliedSignal's consent solicitation were
successful, the poison pill would become irrevocably non-redeemable and
that any subsequent merger would trigger the pill. These steps, taken after
AlliedSignal had commenced its offer and announced the consent
solicitation, attempted to render the consent solicitation meaningless and
effectively deprive AMP's shareholders of the right to vote.
This was done in flagrant disregard of the rights of
shareholders, who we now know overwhelmingly support AlliedSignal's
acquisition of AMP at $44.50 per share. By September 11, the initial
expiration date of AlliedSignal's tender offer, 72% of the outstanding
shares had been tendered, more shares than needed to approve a merger.
[FN7] This huge percentage of shares was tendered even though the AMP board
and management had conducted an active campaign urging shareholders not to
tender. [FN8] In election terms, the vote can be fairly described as a
landslide against the AMP board and management and a mandate in favor of
the AlliedSignal offer.
- ---------------
7 See Knox Aff. P. P. 11-12.
8 For example, in a letter to all AMP shareholders dated September 5,
1998, Robert Ripp, the AMP Chairman and Chief Executive Officer,
exhorted shareholders not to tender their shares: "You can best
protect your interest by NOT tendering any of your shares to
AlliedSignal and NOT signing any consent that will be solicited by
AlliedSignal." App. Ex. C-5.
In order to effectuate the will of the shareholders, AlliedSignal
has taken two additional steps. First, it has amended its tender offer to
buy 40 million shares of AMP now at the original tender offer price of
$44.50 per share. Forty million shares is approximately the number of
shares AlliedSignal can buy without triggering the poison pill, and the
amended offer is not conditioned on the redemption of the pill. When the
purchase is complete on September 25, 1998, AlliedSignal will be AMP's
largest shareholder. AlliedSignal will then make an offer at $44.50 for the
remaining shares of AMP.
Second, AlliedSignal has amended its consent solicitation to
include an additional proposal - an amendment to AMP's bylaws that removes
all powers from the board with respect to the poison pill and vests those
powers in agents approved by the shareholders. Those agents will amend the
pill to make it inapplicable to (a) any tender offer for all shares of the
company as a result of which the offeror will own a majority of the
outstanding shares and (b) any merger that is approved by the requisite
majority of shareholders. This amendment will ensure that the AMP
shareholders, and not the current AMP board and management, decide whether
to sell their shares. It also will enable them to choose between any
competing offers that may be made for AMP, ensuring that they will be able
to accept the best offer.
By changing the rules of the game and making the poison pill
non-redeemable if there is a change in control of AMP, the AMP board
exceeded its powers and egregiously violated the right of the shareholders
to decide for themselves whether it is in their best interests that the
company be sold. This motion is designed to: (1) restore the rights of
AMP's shareholders by invalidating the nonredemption provision and (2)
prevent the AMP board from taking any further illegal action that would
have the effect of rendering meaningless or delaying the shareholder
consent solicitation relating to AlliedSignal's proposals.
STATEMENT OF FACTS
AlliedSignal believes that the following facts, based on
AlliedSignal's Verified Amended Complaint and the parties' public filings
with the Securities and Exchange Commission, are not reasonably subject to
dispute.
AlliedSignal's Tender Offer and Consent Solicitation.
AlliedSignal is a manufacturing company with operations in the aerospace,
automotive and engineered materials businesses, and is a shareholder of
AMP. Verified Amended Complaint ("Compl.") P. 5. AMP is a Pennsylvania
corporation which manufactures and markets electronic, electrical and
electro-optic connection devices, interconnection systems and
connector-intensive assemblies. Id. P. 6.
AlliedSignal is seeking to acquire AMP, and on August 4, 1998,
announced a tender offer for all shares of AMP at a price of $44.50 cash
per share. Id. P. 10. The offer represents a premium to AMP's shareholders
of more than 55% over the price of AMP's stock just before the offer was
announced, which reflects AlliedSignal's belief that both AlliedSignal and
AMP will benefit greatly from a combination of the two companies. Id.
Before the offer was publicly announced and at all times since,
AlliedSignal has continuously expressed to AMP its preference for a
negotiated transaction and its willingness to consider a higher price.
AMP's board, however, without discussing the offer with AlliedSignal, has
rejected the AlliedSignal offer out of hand.
At the time it announced the offer, AlliedSignal commenced a
consent solicitation to give the shareholders the opportunity to express
their own view on whether a combination between AlliedSignal and AMP was in
their best interests. If successful, the consent solicitation would result
in the election to AMP's board of directors of individuals nominated by
AlliedSignal who, subject to their fiduciary duties to consider a superior
offer, would support a sale of AMP to AlliedSignal. Id. P. 37. [FN9]
- ---------------
9 This is a common strategy in takeover contests. See, e.g., Shawn C.
Lee, Preventing Control from the Grave: A Proposal for Judicial
Treatment of Dead Hand Provisions in Poison Pills, 96 Colum. L. Rev.
2175 (1996) ("[T]oday, [hostile bidders'] method for gaining control
usually involves commencing a tender offer in combination with a proxy
or consent solicitation."); Steven Lipin, More Potent Weapons Dwell in
Takeover Arsenal, Wall St. J., Sept. 7, 1995, at C1 ("The joining of
proxy or consent solicitations with takeover bids is almost standard
operating procedure now.") (quoting Peter Atkins of Skadden, Arps,
Slate, Meagher & Flom, currently AMP's principal corporate advisors in
connection with AlliedSignal's offer). App. Ex. C-7.
The AMP board's ultimate defensive tactic is simply to stand
behind its poison pill, which, unless redeemed by the board or declared
invalid by the Court, will prevent AlliedSignal or anyone else from
consummating an acquisition of AMP. In attempting to justify to its
shareholders its response, the AMP board promised its shareholders that
AMP's "profit improvement program" would be more valuable to shareholders
than AlliedSignal's offer. [FN10]
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10 See AMP's Schedule 14D-9, App. Ex. C-4 at 7. According to the Schedule
14D-9 filed by AMP with the SEC, the AMP board "in particular"
determined that "AMP's current strategic initiatives and business plans
offer the potential for greater benefits for AMP's various
constituencies, including its shareholders, than the AlliedSignal
Offer." Id.
The AMP board, however, was not willing to let the shareholders
decide for themselves whether they wanted to trust AMP management to
deliver on its latest promises or to take advantage of AlliedSignal's
$44.50 cash offer, which offered them a premium of more than 55% over the
market price of AMP's shares just before the offer was announced. At the
same time the AMP board rejected AlliedSignal's offer, it also amended its
poison pill to prevent shareholders as a practical matter from accepting
the offer (or any other offer the incumbent board disapproves). In short,
the board eviscerated the right of the shareholders to decide for
themselves and rendered the consent solicitation meaningless.
AMP's Poison Pill. AMP's poison pill, as amended, makes it
economically prohibitive to acquire control of AMP in a transaction opposed
by the current AMP board, even if a significant majority of the
shareholders were to favor the acquisition. See note 1, above. Until August
20, 1998, AMP's poison pill included a so-called "dead hand" provision.
Under that provision, if there were a change in a majority of the directors
of the Company, the poison pill would have been redeemable only by a
majority of the "continuing directors," essentially the present directors
of the Company or their hand-picked successors. Compl. P. 34. The dead hand
provision thus prevented new directors from exercising their authority to
redeem the poison pill, even if the shareholders of AMP had elected those
directors specifically to do so.
At AMP's board meeting on August 20, 1998, in response to the
AlliedSignal offer and consent solicitation, AMP's board amended the poison
pill to make it even more draconian. The amendment deleted the dead hand
provision and replaced it with the nonredemption provision, which makes the
poison pill non-redeemable by any directors, including "continuing" or
disinterested directors, if there has been any change in control of the
board. Id. P. 39; see App. Ex. C-3 (Amendment No. 3 at ss. 4). In other
words, if a new majority of directors is elected to the board by the
shareholders, the poison pill cannot be redeemed by anyone, and, therefore,
no tender offer, merger or other business combination can be completed
until the poison pill expires, regardless of how many shareholders approve
the transaction. Essentially, this amendment was designed to and has the
effect of preventing the acquisition of the company by anyone at any price
until November 1999, entrenching AMP's current board and management.
At the same time, the AMP board added other amendments cutting
off any "escape hatches" in the poison pill. The pill was changed so that
if it becomes non-redeemable, it cannot be amended. See App. Ex. C-3
(Amendment No. 3 at ss. 5); Compl. P. 40. This makes the nonredemption
provision, once triggered, irreversible until the pill expires. The board
also changed the definition of a "qualifying offer" - an offer that,
because it is favored by the incumbent board, does not trigger the poison
pill - so that once the pill is non-redeemable, no offer can be deemed a
qualifying offer. See App. Ex. C-3 (Amendment No. 3 at ss. 1); Compl. P.
41. Thus, if there is a change in the control of the board of directors,
the nonredemption provision, in combination with these other changes,
removes all discretion from the board to amend or redeem the pill,
regardless of whether an offer is in the best interests of the Company, and
irrespective of any shareholder vote supporting redemption. The
nonredemption provision effectively disfranchises AMP's shareholders by
making it impossible to elect new directors without foreclosing a sale of
the company; therefore, it is illegal and ultra vires.
Again and again, AMP's current board members have made it clear
that they do not care what AMP's shareholders want, and that they are
prepared to go to any lengths to keep themselves in power even if the
shareholders want them out. For example, in a Wall Street Journal article
dated September 11, 1998, Robert Ripp, AMP's former CFO and now CEO, made
his disdain for AMP's shareholders starkly evident: "Even if 75% of AMP's
shares are tendered, Mr. Ripp said, he still plans to seek refuge in
Pennsylvania law which allows companies to 'just say no' to takeover bids,
and fight until AMP's poison pill expires in November 1999." App. Ex. C-8.
In short, Mr. Ripp (i) revealed that he has no concerns for the wishes of
AMP's shareholders and (ii) underestimated the authority under Pennsylvania
law of the shareholders of a company to control its destiny.
AlliedSignal's Proposed Shareholder Bylaw. In response to the AMP
board's amendments, on September 14, 1998, AlliedSignal amended its consent
solicitation to restore to AMP shareholders their right to decide the
future of their company. The new proposal, referred to as the "Shareholder
Rights Proposal," would amend AMP's bylaws to remove from the board of
directors all authority with respect to the poison pill. Compl. P. 45. It
would vest that authority in newly appointed Rights Agreement Managing
Agents. Id. [FN11] The Rights Agreement Managing Agents would be appointed
by the shareholders for the specific purpose of amending the poison pill to
make it inapplicable to any offer supported by a majority of AMP's
shareholders, including the AlliedSignal offer.
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11 The Preliminary Consent Statement of AlliedSignal Inc. and PMA
Acquisition Corporation, dated September 14, 1998, will be provided to
the Court promptly.
We now know that the AMP shareholders want the company sold.
Seventy-two percent of AMP's shares, more than the two-thirds majority
required to approve a merger, were tendered to AlliedSignal. Yet
AlliedSignal, because of the poison pill, was unable to acquire any of the
tendered shares. Such a manifest disregard of shareholder democracy cannot
stand.
I. THE NONREDEMPTION PROVISION SHOULD IMMEDIATELY BE DECLARED INVALID OR,
ALTERNATIVELY, ENJOINED
A. ALLIEDSIGNAL IS ENTITLED TO SUMMARY JUDGMENT DECLARING
THE NONREDEMPTION PROVISION INVALID UNDER PENNSYLVANIA LAW
A party is entitled to summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure whenever the record shows "that there
is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). In this instance, AlliedSignal is entitled
to a declaratory judgment that the nonredemption provision is invalid as a
matter of Pennsylvania law.
The Declaratory Judgment Act, 28 U.S.C. ss. 2201(a), confers
jurisdiction on federal courts to "resolve[] a concrete controversy
susceptible to conclusive judicial determination." Calderon v. Ashmus, 118
S. Ct. 1694, 1699 (1998). AlliedSignal's challenge to the legality and
validity of the nonredemption provision presents a concrete controversy
suitable to a declaration by this Court. Moreover, the Federal Rules of
Civil Procedure further provide that a court "may order a speedy hearing"
of a declaratory judgment action. Fed. R. Civ. P. 57. As demonstrated
below, AlliedSignal is entitled to an immediate declaratory judgment on the
issues presented.
Poison pills that impede shareholder voting rights or that
withdraw from a duly elected board of directors its ability to redeem a
poison pill are invalid. See Carmody v. Toll Brothers, Inc., C.A. No.
15983, 1998 Del. Ch. LEXIS 131, at *36-37 (Del. Ch. July 24, 1998); and
Bank of New York Co. v. Irving Bank Corp., 528 N.Y.S.2d 482 (Sup. Ct. N.Y.
County 1988). In those cases, the poison pills at issue could be redeemed
only by "continuing directors" (so-called "dead hand" poison pills), but
nevertheless were ruled invalid. By contrast, AMP's poison pill becomes
absolutely non-redeemable and, therefore, significantly more restrictive of
shareholder rights and future board discretion than the poison pills
invalidated in Toll Brothers and Bank of New York. AlliedSignal is
therefore entitled to summary judgment declaring the nonredemption
provision invalid.
1. THE NONREDEMPTION PROVISION ILLEGALLY INTERFERES WITH
THE SHAREHOLDER FRANCHISE
AMP's nonredemption provision effectively disenfranchises AMP's
shareholders. AlliedSignal has placed a choice before AMP's shareholders -
to vote to retain AMP's current board of directors, who have committed
themselves to reject AlliedSignal's tender offer, or to vote to elect a new
majority of directors to the board, who will support a business combination
with AlliedSignal on the terms of the tender offer, subject to their
fiduciary duties to consider a superior offer. AMP's nonredemption
provision takes away this choice. Under the nonredemption provision, if a
new majority is elected to AMP's board, all of AMP's directors lose the
power to redeem AMP's poison pill and accept AlliedSignal's (or any other
company's) tender offer until the poison pill expires on November 6, 1999.
Thus, AMP's shareholders no longer have the choice to vote for a board that
is both willing and able to accept Allied Signal's bid. Moreover, AMP's
shareholders are forced to retain the incumbent directors in order to
preserve the board's power to accept any offer for the company, whether by
AlliedSignal or another corporation. As a result, the nonredemption
provision violates the fundamental principles of corporate democracy
underlying the PBCL by illegally infringing on the basic right of
shareholders to choose the directors of the company they own.
The basic philosophy underlying the PBCL is to preserve for
shareholders the ultimate authority in structuring and controlling the
affairs of their corporation. This philosophy stems from a deep respect for
shareholder voting rights that permit the shareholders to direct the
actions of the corporation. Indeed, Pennsylvania, more so than most other
states (including Delaware), is actively committed to shareholders
maintaining ultimate control over their companies. As one of the draftsmen
of the 1988 amendments to the PBCL recently commented, the PBCL is unique
in the degree of authority it grants to the shareholders of a Pennsylvania
corporation:
One of the most important differences between the 1988 PA BCL and
the corporation laws of other states is the extent to which the
Pennsylvania law validates the ability of the owners of a
Pennsylvania business corporation to control the internal affairs
of their corporation by contract.
William H. Clark, Jr., What the Business World is Looking for in an
Organizational Form: The Pennsylvania Experience, 32 Wake Forest L. Rev. 149,
169 (1997).
Recognizing that the shareholders must always retain the ultimate
power to direct corporate affairs through their right to vote, the PBCL is
structured in large part as a collection of default provisions that
shareholders can reject or otherwise modify, and which control only if
shareholders do not decide otherwise. [FN12] The PBCL applies this same
flexible approach to the statutory powers granted to a corporation's board
of directors, by making all such powers expressly subject to the right of
the shareholders to modify, limit or even eliminate completely the
directors' authority. See PBCL ss. 1721.
- ---------------
12 See, e.g., ss.1521(c) (providing that shareholders may adopt bylaws
setting forth "[a]dditional provisions regulating or restricting the
exercise of corporate powers"); ss.1729(a) (allowing shareholders to
modify directors' voting rights through a bylaw amendment); ss.1731
(providing that corporate bylaws may restrict the powers of board
committees); ss.1306(a)(8), (b) (allowing corporate articles to relax, be
inconsistent with or supersede statutory provisions); see also
ss.ss.1727(a), 1756 (providing that a bylaw amendment may modify the
general rule concerning quorums for the transaction of business at
board meetings and shareholder meetings); ss.1758 (allowing flexibility
in the creation of voting rights); ss.1768 (allowing shareholders to
transfer their voting rights to other persons).
Pennsylvania law thus reflects Pennsylvania's public policy of
affording shareholder voting rights the highest level of protection. As the
Pennsylvania Supreme Court has stated, "[t]he right to vote is often
considered a shareholder's most fundamental right." Reifsnyder v.
Pittsburgh Outdoor Advertising Co., 405 Pa. 142, 149 n.8, 173 A.2d 319, 322
n.8 (1961) (citing 13 Fletcher, Cyclopedia Corporations, ss. 5717 (rev.
Col. 1961)).
More recently, Judge VanArtsdalen ruled in Norfolk Southern Corp.
v. Conrail, Civ. Act. No. 96-7167 (E.D. Pa. Dec. 17, 1996), that a
Pennsylvania board of directors may not "effectively disenfranchise[] those
shareholders who may be opposed to [a] proposal." App. Ex. A-6 at 68. In
Norfolk Southern, the Conrail board, like AMP's board, attempted to
manipulate a shareholder vote by coercing the outcome. The Conrail board
attempted to postpone indefinitely an announced shareholder meeting called
to approve Conrail's merger with CSX, unless and until Conrail could be
assured it had enough proxies to win the vote. Conrail's action, Judge
VanArtsdalen found, "effectively disenfranchises those shareholders who may
be opposed to [Conrail's] proposal because it says to them that . . . we
will not allow the vote to go ahead if there is any [chance] . . . the
proposal will not be approved." App. Ex. A-6 at 68. By depriving
shareholders of a meaningful choice, the directors created a "sham
election" that was "fundamentally unfair to those who may be opposed to the
transaction." Id. at 68-69. Such interference with shareholder voting
rights, Judge VanArtsdalen held, justified an injunction against the
directors' actions.
The AMP board's enactment of the nonredemption provision, which
would nullify shareholders' vote for directors who would effectuate the
AlliedSignal offer or some other offer, raises the same concerns. Under
Pennsylvania law and AMP's corporate governance documents, the AMP board
simply cannot take action that impedes or effectively prevents shareholders
from voting on proposals already put before them.
Numerous courts nationwide have recognized that directors'
conduct which manipulates shareholder voting rights in any way - including
undermining it by preemptive action like the nonredemption provision - is
ultra vires and may be invalidated. One recent case is squarely on point.
In Carmody v. Toll Brothers, Inc., C.A. No. 15983, 1998 Del. Ch. LEXIS 131,
*44 (Del. Ch. July 24, 1998), the court invalidated a "dead hand" poison
pill, similar to AMP's pill before it was amended, as purposefully
disfranchising shareholders who may wish to elect a board that is both
willing and able to accept a takeover bid. The court stated: "[p]rovisions
in corporate instruments that are intended principally to restrain or
coerce the free exercise of the shareholder franchise are deeply suspect.
The shareholder vote is the basis upon which an individual serving as a
corporate director must rest his or her claim to legitimacy."[FN13] Id. In
light of this principle, there can be no question about the invalidity of
the nonredemption provision. First, it is more intrusive on shareholder
voting rights than the "dead hand" provision. And, second, it was not
adopted outside the context of a shareholders referendum, but in specific
response to the consent solicitation that threatened the current directors'
control of the board.
- ---------------
13 See Hilton Hotels Corp. v. ITT Corp., 978 F. Supp. 1342, 1348 (D. Nev.
1997) (in deciding whether to enjoin a board action, "Court must
determine whether the response purposefully disenfranchises [company]
shareholders"); Coalition to Advocate Public Utility Responsibility,
Inc. v Engels, 364 F. Supp. 1202, 1206-07 (D. Minn. 1973) (concluding
that plaintiff was substantially likely to prevail on claim that board
had manipulated corporate machinery by reducing number of board seats
and enacting staggered board provision shortly before annual
shareholder meeting and by failing to disclose such changes to
plaintiff); Danaher Corp. v. Chicago Pneumatic Tool Co., No. 86 Civ.
3499, 1986 WL 7001 (S.D.N.Y. Jun. 19, 1986) (board of directors may not
refuse to set a record date in an effort to interfere with shareholder
franchise); Stahl v. Apple Bancorp., Inc., 579 A.2d 1115, 1122 (Del.
Ch. 1990) (reading cases as "approximating a per se rule that board
action taken for the principal purpose of impeding the effective
exercise of the stockholder franchise is inequitable and will be
restrained or set aside in proper circumstances"); Blasius Indus. Inc.
v. Atlas Corp., 564 A.2d 651, 660 (Del. Ch. 1988) (invalidating board's
attempts to add two board members in an effort to thwart an election,
noting "[a]ction designed principally to interfere with the
effectiveness of a vote inevitably involves a conflict between the
board and a shareholder majority"); Aprahamian v. HBO & Co., 531 A.2d
1204, 1206-07 (Del. Ch. 1987) ("in the interests of corporate
democracy, those in charge of the election machinery of a corporation
must be held to the highest standards in providing for and conducting
corporate elections") (citing Steinberg v. American Bantam Car Co., 76
F. Supp. 426, 435-36 (W.D. Pa. 1948)).
The Third Circuit has recognized that a board may not take
actions which interfere with the shareholder franchise. In IBS Financial
Corp. v. Seidman & Assocs., L.L.C., 136 F.3d 940 (3d Cir. 1998), the court
invalidated a board's attempt to reduce its size because the only purpose
to the board's action was to prevent dissident shareholders from gaining
seats on the board through a shareholder vote. The court emphasized that
"[the shareholder franchise] is critical to the theory that legitimates the
exercise of power by some (directors and officers) over vast aggregations
of property that they do not own. . . . [M]atters involving the integrity
of the shareholder voting process involve considerations not present in any
other context in which directors exercise delegated power." Id. at 949
(quoting Blasius, 564 A.2d at 659 (brackets in original)).
"'Interference with shareholder voting is an especially serious
matter, not to be left to the directors' business judgment . . . .'" Hilton
Hotels Corp. v. ITT Corp., 962 F. Supp. 1309, 1310 (D. Nev.) (quoting Shoen
v. AMERCO, 885 F. Supp. 1332, 1340 (D. Nev. 1994), vacated by stipulation,
(D. Nev. Feb. 9, 1995)), aff'd, 1997 WL 345963 (9th Cir. June 19, 1997). As
the United States Court of Appeals for the Second Circuit stated,
"[D]ecisions affecting a corporation's ultimate destiny are for the
shareholders to make in accordance with democratic procedures." Norlin
Corp. v. Rooney, Pace Inc., 744 F.2d 255, 258 (2d Cir. 1984). In Conoco
Inc. v. Seagram Co., Ltd., 517 F. Supp. 1299 (S.D.N.Y. 1981), applying New
York law (which, if anything, is less protective of shareholder rights than
is Pennsylvania law), the court noted:
To be sure, the Board of Directors are under a duty to exercise
their best business judgment with respect to any proposal
pertaining to corporate affairs, including tender offers. They
may be right; they may know what is best for the corporation, but
their judgment is not conclusive upon the shareholders. What is
sometimes lost sight of in these tender offer controversies is
that the shareholders, not the directors, have the right of
franchise with respect to the shares owned by them;
"stockholders, once informed of the facts, have a right to make
their own decisions in matters pertaining to their economic
self-interest, whether consonant with or contrary to the advice
of others, whether such advice is tendered by management or
outsiders or those motivated by self-interest."
(emphasis added). 517 F. Supp. at 1303 (quoting American Crystal Sugar Co.
v. Cuban-American Sugar Co., 276 F. Supp. 45, 50 (S.D.N.Y. 1967)).
AMP's board recommended to AMP's shareholders that they reject
the AlliedSignal offer and not tender their shares. The board claimed that
it had determined that "AMP's current strategic initiatives and business
plans offer the potential for greater benefits" to shareholders than the
AlliedSignal offer. See AMP's Schedule 14D-9, App. Ex. C-4 at 7. While
AMP's board certainly has the right to express its views and advocate a
course of action to the shareholders, it has no right to make the decision
for the shareholders. But that is exactly what AMP's board has done. The
nonredemption provision as a practical matter makes it impossible for the
offer to go forward, regardless of how the shareholders vote on the consent
solicitation.
It is the ability of a board to redeem a poison pill and, if it
does not, for shareholders to overrule the board in a proxy contest, that
legitimizes a poison pill in the first place - because otherwise it would
present an absolute bar to a change in corporate control no matter how
desirable in the eyes of the shareholders. Moran v. Household
International, Inc., 500 A.2d 1346, 1354 (Del. 1985) (approving rights plan
because "the Rights Plan is not absolute. When the [board] is faced with a
tender offer and a request to redeem the Rights, they will not be able to
arbitrarily reject the offer," and because a poison pill does not preclude
a proxy contest by the shareholders for control); Carmody v. Toll Brothers,
Inc., C.A. No. 15983, 1998 Del. Ch. LEXIS 131, *43 (Del. Ch. July 24, 1998)
("In Moran, the Supreme Court upheld the adoption of a poison pill, in part
because its effect upon a proxy contest would be 'minimal,' but also
because if the board refused to redeem the plan, the shareholders could
exercise their prerogative to remove and replace the board.") (emphasis
added).
Under a typical, redeemable poison pill, shareholders can
exercise their franchise by electing a board that will facilitate the
desires of the majority of shareholders, including the redemption of a
poison pill to allow a transaction to proceed if the shareholders believe
that it is in their best interests. By contrast, AMP's nonredemption
provision makes it effectively impossible for AMP's shareholders to accept
any tender offer opposed by incumbent management, including the
AlliedSignal offer, regardless of its merits. Similarly, it makes it
impossible for AMP's shareholders to elect directors who could effectuate a
business combination that the shareholders want, and ties the hands of both
current and future directors because it does not allow for further
amendment once the poison pill becomes non-redeemable. Such a powerful
restraint on the corporate franchise offends basic policies of corporate
law recognized by virtually every United States jurisdiction, including
Pennsylvania.
2. THE NONREDEMPTION PROVISION IS AN ILLEGAL RESTRICTION ON
THE BOARD'S DISCRETION
The nonredemption provision turns AMP's poison pill into an
automatic and absolute bar to all tender offers and mergers upon a change
in control. It prohibits future boards, however constituted, from even
considering any bid for as long as the pill remains in effect. This is
totally repugnant to Pennsylvania law, which imposes upon a board of
directors the fiduciary duty to review and analyze each offer before it.
The Pennsylvania legislature laid out the fiduciary standard for boards of
directors in PBCL ss. 1712:
A director of a business corporation shall stand in a fiduciary
relation to the corporation and shall perform his duties as a
director, including his duties as a member of any committee of
the board upon which he may serve, in good faith, in a manner he
reasonably believes to be in the best interests of the
corporation and with such care, including reasonable inquiry,
skill and diligence, as a person of ordinary prudence would use
under similar circumstances.
PBCL ss. 1712(a) (emphasis added). PBCL ss. 1525(c) makes it clear that
Pennsylvania boards of directors must fulfill their fiduciary duties with
respect to poison pills: "The provisions of subsections (a) and (b) and
Section 2513 [the provisions authorizing poison pills in Pennsylvania] shall
not be construed to effect a change in the fiduciary relationship. . . or to
change the standard of care of a director. . ." PBCL ss. 1525(c) (emphasis
added). The commentary to PBCL ss. 2513 confirms the obvious: boards must be
able to exercise their discretion with regard to decisions to redeem poison
pills once enacted. According to the committee comment, "[Section] 1525(c)
makes clear that decisions of a board of directors in connection with a
shareholder rights plan, including such matters as adoption of a plan and,
once adopted, redemption of the rights, will be subject to the standard of
care provided in [Section 1721, now 1712]." Committee Comment to
Section 2513 (emphasis added).
The nonredemption provision also violates PBCL ss. 1721, which
requires that unless otherwise provided by statute or in a bylaw adopted by
the shareholders, all powers vested in a corporation "shall be exercised"
by, or at the direction of, a corporation's directors. PBCL ss. 1721
(emphasis added). Thus, only AMP's shareholders, not the board itself, may
limit the discretion of future directors through adoption of the
nonredemption provision. By denying the board any ability following a
change in control to redeem the poison pill, the nonredemption provision
also violates ss. 1.11 of AMP's bylaws, which provides for the election of
AMP directors by AMP's shareholders, and ss. 2.1, which provides that those
duly elected directors have the authority to manage AMP's business and
affairs.
The Pennsylvania statutes do not permit a corporation's board to
abdicate all responsibility for considering the merits of takeover offers
by putting a poison pill on "auto-pilot" - i.e., by making it irreversibly
non-redeemable. A blanket prohibition on the consideration of any offer to
purchase the company once there has been a change of control, such as AMP's
current board seeks to impose through the nonredemption provision, prevents
a newly elected board from evaluating or making reasonable inquiry about
the feasibility of any proposal, whether AlliedSignal's $44.50 offer or any
superior offer. By implementing what is effectively an a priori,
across-the-board rejection of all offers that may come along, the board has
unlawfully restricted the discretion and duties of future boards. See,
e.g., Carmody v. Toll Brothers, Inc., C.A. No. 15983, 1998 Del. Ch. LEXIS
131, *36-37 (Del. Ch. July 24, 1998) (holding that a valid claim against a
"dead hand" provision in a poison pill had been stated under Delaware law
because the provision would deprive a newly elected future board, not
approved by the present board, of the power to redeem a poison pill); Bank
of New York Co. v. Irving Bank Corp., 528 N.Y.S.2d 482 (Sup. Ct. N.Y.
County 1988) (finding restrictions on a board's powers invalid under New
York law unless expressed in the certificate of incorporation). [FN14]
- ---------------
14 The only case upholding a "continuing director" provision in a poison
pill is Invacare Corp. v. Healthdyne Technologies, Inc., 968 F. Supp.
1578 (N.D. Ga. 1997). Invacare is distinguishable and inapposite
because it relied on a statutory scheme which is fundamentally
different from Pennsylvania's (and, as the Toll Brothers court made
clear, different from Delaware's and New York's as well). See Toll
Brothers, 1998 Del. Ch. LEXIS 131, at *40 n.38). The Georgia statue,
unlike Delaware's, New York's and Pennsylvania's gave Georgia boards
"sole discretion" over shareholder rights plans. Compare 8 Del. C.
ss.ss. 141(a) and 141(d) (Delaware); N.Y. Bus. Corp. Law ss.ss. 701, 620
(New York); PBCL ss.ss. 1504, 1721 (Pennsylvania) with Ga. Code Ann.
ss. 14-2-624(c) (Georgia).
No provision of the Pennsylvania statute shields the AMP board
from this conclusion. Section 1715(d) of the PBCL, while affording
Pennsylvania boards substantial flexibility in accepting or rejecting
offers, nonetheless requires a review of each individual acquisition or
takeover offer:
In assessing whether the standard set forth in section 1712 has
been satisfied, there shall not be any greater obligation to
justify, or higher burden of proof with respect to, any act as
the board of directors . . . relating to or affecting an
acquisition or potential or proposed acquisition of control of
the corporation than is applied to any other act as a board of
directors . . . .
PBCL ss. 1715(d) (emphasis added). [FN15]
- ---------------
15 The so-called "anti-takeover" provisions of the PBCL do nothing to
change these conclusions. These provisions do not provide immunity to
directors. See Steven M.H. Wallman, The Proper Interpretation of
Corporate Constituency Statutes and Formulation of Director Duties, 21
Stetson L. Rev. 163, 165-66 (1991). While these provisions grant a
board of directors of a Pennsylvania corporation the power to erect and
execute a variety of defenses against a tender offer, the key issue
with respect to the Nonredemption Provision is not the powers that the
PBCL gives to AMP's board. Rather it is the authority that the statute
grants to shareholders to control the ultimate fate of the company and
the responsibility of a board of directors to examine all proposals
that render it invalid. See pages 3-4, above.
By enacting the nonredemption provision, the board has, in
essence, announced to the AMP shareholders that if they elect new
directors, the new AMP board cannot consider any offer until the pill
expires, regardless of the merits of any such offer, and regardless of the
views of the shareholders. This direct threat to the basic right of
shareholder to elect directors of their choosing violates Pennsylvania law.
B. ALTERNATIVELY, ALLIEDSIGNAL IS ENTITLED TO A PRELIMINARY
INJUNCTION AGAINST THE ENFORCEMENT OF THE NONREDEMPTION
PROVISION
If the Court for any reason should decide that there is a dispute
as to a material fact that prevents the Court from immediately granting a
declaratory judgment, AlliedSignal is entitled to a preliminary injunction
enjoining the effectiveness of the nonredemption provision.
A party seeking a preliminary injunction must demonstrate a
likelihood of success on the merits; the prospect of immediate irreparable
harm if relief is not granted; that granting relief will not result in
greater harm to another party; and that granting relief is in the public
interest. Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D. Pa. 1994) (citing
Frank's GMC Truck Ctr., Inc. v. GMC, 847 F.2d 100, 102 (3d Cir. 1988)); see
also University of Maryland at Baltimore v. Peat, Marwick, Main & Co., 996
F.2d 1534, 1541 (3d Cir. 1993) (a preliminary injunction may be granted upon
a showing of the likelihood of success on the merits and a probability of
irreparable harm if an injunction is not issued); Opticians Ass'n of America
v. Independent Opticians of America, 920 F.2d 187, 197 (3d Cir. 1990) (the
balance of hardships must favor the party requesting the preliminary
relief.); ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987).
As argued above in support of AlliedSignal's motion for summary
judgment, there can be no question that AlliedSignal has demonstrated a
likelihood of success. We discuss below the threat of irreparable injury to
both AlliedSignal and AMP's shareholders, as well as the balance of
equities.
1. ALLIEDSIGNAL AND AMP'S OTHER SHAREHOLDERS WILL SUFFER
IRREPARABLE HARM IF THE NONREDEMPTION PROVISION IS NOT
ENJOINED
If the nonredemption provision is not declared invalid or
enjoined, both AlliedSignal and the other shareholders of AMP will suffer
irreparable injury. The nonredemption provision deprives AlliedSignal of the
opportunity to acquire AMP, and it deprives all of AMP's shareholders of the
opportunity to sell their shares at a substantial premium to market or to
accept any other offer, no matter how beneficial. The AMP board's extreme
proposal also illegally destroys the effectiveness of the consent
solicitation. The nonredemption provision thereby curtails the power of the
shareholders to control the fundamental direction of their company either by
electing new directors or by enacting bylaws.
It is axiomatic that "management subjects shareholders to
irreparable harm by denying them the right to vote their shares or
unnecessarily frustrating them in their attempt to obtain representation on
the board." International Banknote Co. v. Muller, 713 F. Supp. 612, 623
(S.D.N.Y. 1989). [FN16] It is equally established that the opportunity to
acquire a company is a unique one, and that the loss of an opportunity to
effect a change in corporate control constitutes irreparable harm. [FN17]
[CHECK FOOTNOTE 16]
- ---------------
16 See also Danaher Corp. v. Chicago Pneumatic Tool Co., No. 86 Civ.
3499, 1986 WL 7001, *14 (S.D.N.Y. Jun. 19, 1986) ("It is well settled
in law that corporate management subjects shareholders to irreparable
harm by denying them the right to vote their shares and to exercise
their rightful control over the corporation."); Shoen v. AMERCO, 885
F. Supp. 1332, 1352 (D. Nev. 1994) ("The denial or frustration of the
right of the shareholders to vote their shares or obtain
representation on the board of directors amounts to an irreparable
injury.")(citations omitted); EAC Industries Inc. v. Frantz Mfg. Co.,
CA No. 8003, 1985 del.Ch.LEXIS 464 (Del. Ch Jun. 1985), aff'd, Fed.
Sec. L. Rep. (CCH) P. 92,405 (Del.) ("[Shareholders"] continued
inability to secure the benefit of its written consents in the face
of the defendants' refusal to [recognize the consents] is clear
evidence of irreparable injury.").
17 See, e.g., San Francisco Real Estate Investors v. Real Estate
Investment Trust of America, 701 F.2d 1000, 1003 (1st Cir. 1983) (loss
of opportunity to obtain control of a corporation is irreparable harm);
Weeks Dredging & Contracting, Inc. v. American Dredging Co., 451 F.
Supp. 468, 479 (E.D. Pa. 1978) (tender offeror showed irreparable
injury without preliminary injunction to force target company to
correct misleading information to shareholders about the state of its
financial affairs); Peabody Holding Co. v. Costain Group PLC, 813 F.
Supp. 1402, 1421 (E.D. Mo. 1993) ("Many authorities acknowledge the
inherent uniqueness of a company sought to be acquired, and the
irreparable harm suffered by the . . . loss of the opportunity to . . .
control that business.").
A decision on the invalidity of the nonredemption provision is
necessary prior to the beginning of the consent solicitation process on
October 15, 1998, because the presence of the nonredemption provision may
significantly impact the outcome of the consent process. Shareholders,
aware of the nonredemption provision, will believe that if they vote for
AlliedSignal's slate of directors, no directors - neither the newly elected
directors nor the incumbent directors - will have the power to redeem the
pill. Shareholders who desire to elect AlliedSignal's nominees so that the
newly elected directors can redeem the pill and complete the tender offer
may be deterred from doing so for fear that no board would thereafter be
able to redeem the pill. Others may simply see voting as a futile exercise.
It was for exactly this reason that the Supreme Court of New York
entered a preliminary injunction against a dead hand provision of a poison
pill in Bank of New York, 528 N.Y.S.2d at 482: "If the amendment is
invalid, its presence is likely to taint the electoral process which a
subsequent invalidation by this court will not cure." See also Davis
Acquisition Inc. v. NWA Inc., Civ. A. No. 10761, 1989 WL 40845 (Del. Ch.
Apr. 25, 1989).
A preliminary injunction is also necessary where the action in
question - here the nonredemption provision - is illegal on its face. See
Bank of New York Co. v. Irving Bank Corp., 528 N.Y.S.2d 482, 484 (Sup. Ct.
N.Y. County 1988) ("where a provision is illegally adopted in conflict with
the statutory law, an injunction is appropriate regardless of the extent of
the harm"). [FN18]
- ---------------
18 See also Commonwealth v. Coward, 489 Pa. 327, 341, 414 A.2d 91, 98
(1980) ("Where a statute proscribes certain activity, all that need be
done is for the court to make a finding that the illegal activity
occurred. . . .When the Legislature declares certain conduct to be
unlawful it is tantamount in law to calling it injurious to the
public. For one to continue such unlawful conduct constitutes
irreparable injury.") (citations omitted).
The nonredemption provision also threatens AMP shareholders who
desire to sell their shares for $44.50 with irreparable economic injury.
AlliedSignal's offer gives the AMP shareholders the opportunity to realize
a premium of more than 55% over the market price of AMP shares before the
AlliedSignal offer was announced. Since AlliedSignal's offer, AMP's stock,
instead of trading at $28 to $29 per share as it did before the offer, has
generally traded in the high $30's. While some shareholders have sold their
shares, others have retained them with the hope of realizing $44.50 or more
as a result of AlliedSignal's offer.
If this court were to uphold the nonredemption provision,
effectively barring AlliedSignal from proceeding with its offer, and
AlliedSignal then terminated its efforts to acquire AMP, there can be no
question that the AMP share price would drop significantly in the near
term. Indeed, since the time AlliedSignal announced its tender offer, the
Dow Jones Industrial Average has declined more than 11% and the S&P 500
stock index has declined more than 9%.
To be sure, the AMP board has promised the shareholders that they
will be better off if they reject the offer and trust management to
implement the new profit improvement plan. There is no way, however, that
the AMP board can guarantee its prognostications; nor is there any way to
indemnify the shareholders if the AMP share price never recovers to $44.50.
On the contrary, there is reason to doubt whether the AMP board and
management can fulfill its promises. Even the financial advisors to AMP
have questioned the ability of AMP to deliver. Consider what Credit Suisse
First Boston, in a financial report released just six weeks before
AlliedSignal's tender offer and prior to its retention by AMP in connection
with the offer, stated:
If the company does announce a major restructuring initiative, we
do not believe that it would have any credibility with the
market, given that this would be the third major restructuring in
the last 18 months. Until AMP shows signs of getting its act
together, investors are better served putting their money
elsewhere.
Credit Suisse First Boston Equity Research Report, dated May 19, 1998, App.
Ex. C-6.
The point here is not that AMP management necessarily will fail,
but that there is a significant risk that they will fail. If they do, the
AMP shareholders will be irreparably injured. As a matter of fundamental
equity, as well as the requirements of Pennsylvania law, the decision
whether to trust AMP management should be left to the shareholders and
should not be made by the AMP board. The shareholders are the ones who risk
financial misfortune, and an overwhelming majority of them have said they
want to accept AlliedSignal's offer of $44.50 per share.
Moreover, Pennsylvania law entitles AlliedSignal to an injunction
to prevent the fundamental unfairness that would result from the
nonredemption provision. Pennsylvania law "implicitly recognizes the right
of shareholders to seek an injunction to prevent any proposed corporate
plan fraught with fraud or fundamental unfairness." In re Jones & Laughlin
Steel Corp., 488 Pa. 524, 532, 412 A.2d 1099, 1103 (1980) (interpreting
PBCL ss. 1105). Fundamental unfairness will be found where a corporation
interferes with the voting process effectively to disenfranchise
shareholders. Norfolk Southern Corp. v. Conrail, Civ. Act. No. 96-7167
(E.D. Pa. Dec. 17, 1996), App. Ex. A-6 at 69. That is exactly what AMP's
board, through the enactment of the nonredemption provision, seeks to do
here.
2. THE BALANCE OF THE EQUITIES TIPS DECIDEDLY IN FAVOR
OF ALLIEDSIGNAL AND THE AMP SHAREHOLDERS
In light of the foregoing, the balance of the equities favors the
grant of a preliminary injunction. If, after being preliminarily enjoined,
the nonredemption provision ultimately were upheld, AMP would not be harmed
by the interim relief because the tender offer or merger could not be
consummated before the Court had ample opportunity to hold a hearing,
resolve any factual disputes, and reach a final determination.
Moreover, if the nonredemption provision is preliminarily
enjoined, the AMP board still has the same opportunity as AlliedSignal to
seek the support of the AMP shareholders. If the AMP board can convince the
shareholders that they should trust management to deliver greater value
than the $44.50 offered by AlliedSignal, the shareholders will not tender
their shares and will not support the consent solicitation.
AlliedSignal, however, will be severely and irreparably harmed
absent the requested relief, because the opportunity to complete the offer
and consent solicitation will be lost. Preliminary relief is appropriate
where, as here, one party risks severe and irreparable harm unless the
court intervenes at this juncture, while the other party does not. See
Opticians Ass'n of America v. Independent Opticians of America, 920 F.2d
187, 197 (3d Cir. 1990) (the balance of hardships must favor the party
requesting the preliminary relief); Prudential Ins. Co. of Am. v. Stella,
Civ. 97-4163, 1998 WL 57505, *9 (E.D. Pa. Feb. 12, 1998) ("the basic
purpose behind the task of balancing the hardships to the respective
parties is to ensure that the issuance of an injunction would not harm the
infringer more than a denial would harm the party seeking the injunction."
(quoting Opticians Ass'n, 920 F.2d at 196)); Bank of New York, 528 N.Y.S.2d
at 484.
This is especially true here, where AMP has already unjustifiably
taken action to interfere with AlliedSignal's consent solicitation by
delaying the record date for 45 days. Compl. P. P. 48-53. AMP should not be
allowed to take advantage of that delay to work further mischief.
3. A PRELIMINARY INJUNCTION IS IN THE PUBLIC INTEREST
Finally, a preliminary injunction would serve the public
interest. By ensuring that AMP's board does not deprive shareholders of
their right to decide for themselves whether to support AlliedSignal's
offer and proposed merger or some other acquisition of AMP, the injunction
protects the public's interest in safeguarding the fundamental principle of
corporate democracy that shareholders have the right to exercise their vote
freely and without manipulation by an entrenched board of directors. This
public interest is explicitly recognized in the PBCL and Pennsylvania
decisions. See Section I.A.1, above.
II. THE AMP BOARD SHOULD BE PRELIMINARILY ENJOINED FROM TAKING ANY FURTHER
ACTION THAT WOULD AS A PRACTICAL MATTER RENDER THE SHAREHOLDER VOTE ON
THE CONSENT SOLICITATION MEANINGLESS
As a result of the AMP board's amendment adding the nonredemption
provision to the poison pill, AlliedSignal amended its consent solicitation
to afford the shareholders an alternate way to decide for themselves
whether AMP should be sold. AlliedSignal's new Shareholder Rights Proposal,
added to the consent solicitation on September 14, 1998, would amend AMP's
bylaws to remove responsibility for AMP's Poison Pill from AMP's board and
place it in the hands of Rights Agreement Managing Agents. The Rights
Agreement Managing Agents would amend the poison pill to make it
inapplicable to any offer as a result of which the offeror would own a
majority of AMP's shares, thereby guaranteeing to the shareholders the
right to determine whether AMP should be sold, as well as the right to
choose between any competing offers available.
AlliedSignal's Shareholder Rights Proposal is explicitly
authorized by AMP's own Articles and bylaws, as well as by the PBCL. This
reflects a recognition of the shareholders' right to exercise their
ultimate authority over a corporation through bylaws adopted by the
shareholders. Article VII of the AMP Articles provides that "[e]xcept as
otherwise provided by statute or by these Articles of Incorporation as the
same may be amended from time to time or by Bylaws as the same may be
amended from time to time, all corporate powers may be exercised by the
Board of Directors." [FN19] Similarly, Section 1721 of the PBCL provides
that any of the powers granted to a business corporation may be exercised
by the board unless the shareholders decide otherwise:
- ---------------
19 See also bylaws ss. 9.1 ("The shareholders or the Board may adopt new
bylaws. . . and the Board may not alter or repeal any bylaw adopted by
shareholders which prescribes that such bylaw shall not be altered or
repealed by the Board."). Moreover, the PBCL expressly provides that
shareholders entitled to vote shall have the power to adopt, amend and
repeal the bylaws of a business corporation. PBCL ss.1504(a).
Unless otherwise provided by statute or in a bylaw
adopted by the shareholders, all powers enumerated in
section 1502 (relating to general powers) and
elsewhere in this subpart or otherwise vested by law
in a business corporation shall be exercised by or
under the authority of, and the business and affairs
of every business corporation shall be managed under
the direction of a board of directors.
PBCL ss.1721 (emphasis added). The Pennsylvania statute further states that
even if the PBCL itself grants powers to a board of directors, the
shareholders can confer such powers upon another person or group of persons
rather than the board:
If any such provision is made in the bylaws, the powers and
duties conferred or imposed upon the board of directors by this
subpart shall be exercised or performed to such extent and by
such person or persons as shall be provided in the bylaws.
PBCL ss.1721 (emphasis added). The Amended Committee Comment to Section 1721
emphasizes the flexibility given to shareholders by this section, explaining
that "[t]he persons who perform some or all of the duties of the board of
directors may be designated `trustees,' `agents,' `managers,' or `managing
directors,' and they may be selected in ways other than the traditional
election by the shareholders."
This is exactly what the Shareholder Rights Proposal would do
with respect to AMP's poison pill - place the responsibility for the poison
pill in the hands of individuals other than the board. Indeed, under
Section 1721, the shareholders could do away with the board entirely and
place all of its powers in the hands of another group of persons if they so
choose: "[t]he board of directors is the traditional form of corporate
governance but this section provides it is not the exclusive form." Amended
Committee Comment to Section 1721. In short, Article VII of AMP's Articles,
as authorized by the PBCL, allows shareholders to decide who should
exercise the powers initially given to the board by the statute. [FN20]
- ---------------
20 One of the few courts to examine the issue of a shareholder bylaw
regarding a poison pill has found such a bylaw to be valid.
International Brotherhood of Teamsters General Fund v. Fleming Cos.,
Inc., No. Civ-96-1650-A, 1997 U.S. Dist. LEXIS 2980 (W.D. Okla. Jan.
24, 1997). In the Fleming case, a shareholder proposed a bylaw that
required the Fleming board to redeem its poison pill and obtain
shareholder approval before adopting any new pill. Upholding the
validity of the proposed bylaw under Oklahoma law (which parallels
Delaware, not Pennsylvania law), the court recognized that, although
boards may adopt poison pills, they cannot deprive shareholders of
ultimate control. Id. at *2. In fact, the bylaw approved by the
Oklahoma District Court was significantly more invasive of the
authority of a board of directors than the Shareholder Rights Proposal
at issue here. Whereas the Fleming bylaw required the board to redeem
the poison pill, the bylaw proposed here by AlliedSignal would simply
transfer authority over the pill to three agents of the shareholders
who would amend the poison pill to provide that it will not apply to an
offer supported by AMP's shareholders, but otherwise leave the pill
intact. Given that (i) the bylaw amendment in the Shareholder Rights
Proposal is less intrusive than that in Fleming, and (ii) Pennsylvania
law, unlike either Oklahoma or Delaware law, explicitly authorizes
shareholder bylaws, there can be no doubt that the Shareholder Rights
Proposal is valid.
In Invacare Corp. v. Healthdyne Technologies, Inc., 968 F. Supp. 1578
(N.D. Ga. 1997), the Georgia District Court ruled that Georgia
corporate law section 14-2-624(c), which gives Georgia boards "sole
discretion" over shareholder rights plans, barred a shareholder bylaw
seeking to force the board to get rid of the poison pill. Based as it
was on the explicit "sole discretion" language of the Georgia statute
and other provisions which have no counterpart in the PBCL, that
decision is irrelevant here.
Based upon the AMP board's response to AlliedSignal's original
consent solicitation, it is reasonable to conclude that the board will go
to any length necessary, including actions that are clearly ultra vires, to
deprive shareholders of their right to cast a meaningful vote and determine
the future of the company they own. For the reasons stated in Section
I.B.1, above, such action by the board threatens both AlliedSignal and the
AMP shareholders with irreparable injury. Since the balance of equities
also favors the entry of a preliminary injunction, the AMP board, pending
AlliedSignal's amended consent solicitation, should be enjoined from
amending the AMP bylaws or the poison pill or taking any other action that
would, as a practical matter, make the shareholder vote on AlliedSignal's
consent solicitation meaningless.
CONCLUSION
For the foregoing reasons, AlliedSignal respectfully requests
that the Court grant its motion for (1) summary judgment declaring that the
nonredemption provision is invalid or, alternatively, a preliminary
injunction enjoining the effectiveness of the nonredemption provision; and
(2) a preliminary injunction prohibiting the AMP board of directors from
amending the AMP bylaws or poison pill or taking any other action that
would, as a practical matter, make the shareholder vote on AlliedSignal's
consent solicitation meaningless, or would delay the record date beyond
October 15, 1998.
Respectfully submitted,
/s/ Alexander R. Sussman
-------------------------------
Alexander R. Sussman
Barry G. Sher
Rana Dershowitz
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004
(212) 859-8000
and
/s/ Mary A. McLaughlin
-------------------------------
Mary A. McLaughlin
George G. Gordon
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
(215) 994-4000
Attorneys for AlliedSignal Inc.
DATED: September 14, 1998
EXHIBIT III
VERIFICATION
Pursuant to 28 U.S.C. ss. 1746, I, Peter M. Kreindler,
hereby verify under penalty of perjury that the allegations and
averments in the foregoing Verified Amended Complaint for Declaratory
and Injunctive Relief are, with respect to AlliedSignal and its own
acts, true and correct to my own knowledge, and as to all other
matters, I believe them to be true.
/s/ Peter M. Kreindler
------------------------------
Peter M. Kreindler, Esq.
Senior Vice President,
General Counsel and Secretary
AlliedSignal Inc.
Executed on September 14, 1998
EXHIBIT IV
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
- -----------------------------------------------x
:
ALLIEDSIGNAL INC., :
: C.A. No. 98-CV-4058
Plaintiff, :
:
- against - : September 14, 1998
:
AMP INCORPORATED, : AFFIDAVIT OF
: RONALD E. KNOX
Defendant. :
:
- -----------------------------------------------x
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
RONALD E. KNOX, being duly sworn, deposes and says:
1. I am a Managing Director of Morrow & Co., Inc. ("Morrow"), the
proxy solicitation firm retained by AlliedSignal Inc. ("AlliedSignal") to
assist AlliedSignal in its tender offer to acquire AMP Incorporated ("AMP")
(the "Tender Offer" or "Offer").
2. I submit this affidavit in support of AlliedSignal's motion
for summary judgment and for an immediate declaratory judgment and
preliminary injunction.
POSITION AND EXPERIENCE AT MORROW
- ---------------------------------
3. Morrow is one of the major professional proxy solicitation
firms in the United States, servicing over 500 public companies each year,
many of them Fortune 500 companies.
4. I have been a Managing Director of Morrow for more than four
years and have worked at the firm since 1992. I have been involved in
various aspects of the proxy solicitation, tender offer and merger advisory
businesses for approximately 11 years. Over those years, I have solicited
proxies on behalf of incumbent management and bidders in more than 150
proxy contests and have been involved in more than 250 tender and exchange
offers, including over 125 hostile takeover bids.
ALLIEDSIGNAL'S TENDER OFFER
- ---------------------------
5. On August 10, 1998, AlliedSignal commenced its Tender Offer
for all of the outstanding shares of the common stock of AMP at $44.50 in
cash per share. AlliedSignal's proposed $44.50 tender offer price
represented a premium of more than 55% over the trading price of AMP common
stock immediately prior to the announcement of the Offer on August 4, 1998.
6. As set forth in AlliedSignal's tender offer statement, the
Tender Offer had an initial expiration date of September 11, 1998 (12:00
Midnight). Effective September 14, 1998, AlliedSignal amended the Tender
Offer and extended the expiration date to September 25, 1998.
LIMITATIONS ON MORROW'S SOLICITATION EFFORTS
- --------------------------------------------
7. In a letter to AMP's Corporate Secretary dated August 17,
1998, Cede & Co., the nominee of the Depository Trust Company and the
holder of record of the 100 shares of AMP common stock beneficially owned
by AlliedSignal, requested on behalf of AlliedSignal that AMP furnish,
among other things, a complete list of shareholders from AMP's official
books and records (the "Record List"), in hard copy and computer tape form,
and a list of non-objecting beneficial owners of AMP common stock (the
"NOBO List").
8. The Record List is the only means for Morrow to ascertain the
identities and addresses of record holders of AMP shares representing
approximately 3-4% of AMP's total shares outstanding. Without either the
Record List in computer tape form or a hard copy of the Record List
received well in advance of the expiration date, Morrow is unable to
solicit these shareholders directly. AMP did not provide AlliedSignal with
the Record List in hard copy form until September 9, 1998 and did not
provide AlliedSignal with the Record List in computer tape form until
September 11, 1998. Morrow, therefore, had essentially no time before the
expiration of the Tender Offer to solicit tenders from record holders
representing approximately 3-4% of AMP's shares outstanding.
9. AMP told AlliedSignal that it did not have the NOBO List --
the only means for Morrow to ascertain the identities and addresses of
beneficial owners of AMP common stock who do not object to the release of
their identity, representing an estimated 6-7% of AMP's total shares
outstanding. (We estimate that beneficial owners representing approximately
an additional 4% of AMP's total shares outstanding have objected to
identification and therefore would not appear on the NOBO List.) Without
the NOBO List, Morrow was therefore unable to solicit these shareholders
directly.
10. As a result of the foregoing, Morrow's direct solicitation
efforts on behalf of AlliedSignal have largely been limited to contacts
with broker-dealers, banks, and institutional and professional investors
with holdings representing approximately 85% of AMP's total shares
outstanding.
RESULTS OF THE TENDER OFFER
- ---------------------------
11. The Bank of New York, the official Depositary for the Tender
Offer, has completed its tally of AMP shares tendered by 12:00 Midnight on
September 11, 1998, and has informed Morrow that 157,391,059 shares of AMP
common stock were tendered, or 71.999% of the total of 218,601,033 shares
of AMP common stock outstanding. The Bank of New York's Final Report
certifying these results is attached as Exhibit A.
12. Based on my experience in the proxy solicitation business,
nearly 72% is an exceptionally high tender percentage on the initial
expiration date for a hostile tender offer, especially considering that for
virtually the entire 20 business-day period of the Tender Offer, Morrow was
unable to engage in any direct solicitation efforts with record holders and
beneficial owners representing approximately 15% of AMP's shares
outstanding.
OWNERSHIP OF AMP SHARES BY AMP MANAGEMENT
- -----------------------------------------
13. As of August 3, 1998, according to AMP's public filings, the
executive officers and directors of AMP were the beneficial owners of a
combined total of 3,096,221 shares of AMP common stock, or 1.49% of AMP's
total shares of common stock outstanding.
THE NOMINATION OF AFFILIATES OF THE BIDDER IN HOSTILE TAKEOVER BIDS
- -------------------------------------------------------------------
14. Based on my experience in the proxy solicitation business, it
is not unusual in proxy contests or consent solicitations for a change of
control that the party seeking control nominates directors affiliated with
that party. For example, as set forth in the relevant public filings, in
WHX Corporation's bid for Teledyne, Inc. in 1996, all eight of WHX's
nominees for Teledyne's eight-seat board were affiliated with WHX. Another
example is Alliance Gaming Corporation's bid for Bally Gaming
International, Inc., in 1995, in which Alliance sought to replace Bally's
seven directors with six Alliance-affiliated nominees, as set forth in the
relevant public filings.
/s/ Ronald E. Knox
-----------------------
Ronald E. Knox
Sworn to before me this
14th day of September, 1998.
/s/ Kenneth S. Browd
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Notary Public
EXHIBIT V
CERTIFICATE OF SERVICE
I hereby certify that I caused this day the foregoing Complaint
for Declaratory and Injunctive Relief to be served on the following by
Federal Express:
Charles Goonrey, Esq.
General Counsel
AMP Incorporated
470 Friendship Road
Harrisburg, PA 17111
/s/ Joseph A. O'Connor
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Dated: September 14, 1998 Joseph A. O'Connor, Esq.