===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 9 TO
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
---------------
AMP INCORPORATED
(NAME OF SUBJECT COMPANY)
PMA ACQUISITION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
ALLIEDSIGNAL INC.
(BIDDER)
COMMON STOCK, WITHOUT PAR VALUE
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
(TITLE OF CLASS OF SECURITIES)
031897101
(CUSIP NUMBER OF CLASS OF SECURITIES)
PETER M. KREINDLER, ESQ.
ALLIEDSIGNAL INC.
101 COLUMBIA ROAD
MORRISTOWN, NEW JERSEY 07692
(973) 455-5513
----------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
Copies to:
ARTHUR FLEISCHER, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004 - 1980
(212) 859-8120
===========================================================================
SCHEDULE 13D
CUSIP No. 031897101
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NO. OF ABOVE PERSON
ALLIEDSIGNAL INC. (E.I.N.: 22-2640650)
- -----------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- -----------------------------------------------------------------------
3. SEC USE ONLY
- -----------------------------------------------------------------------
4. SOURCE OF FUNDS
BK, WC, OO
- -----------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS
2(d) or 2(c) [ ]
- -----------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------------------------------------------------------
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
20,000,100 Common Shares
- -----------------------------------------------------------------------
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES
[ ]
- -----------------------------------------------------------------------
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
9.1% of outstanding Common Shares
- -----------------------------------------------------------------------
10. TYPE OF REPORTING PERSON
HC and CO
- -----------------------------------------------------------------------
SCHEDULE 13D
CUSIP No. 031897101
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NO. OF ABOVE PERSON
PMA ACQUISITION CORPORATION (E.I.N.: 22-3610482)
- -----------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- -----------------------------------------------------------------------
3. SEC USE ONLY
- -----------------------------------------------------------------------
4. SOURCE OF FUNDS
BK, WC, OO
- -----------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS
2(d) or 2(c) [ ]
- -----------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------------------------------------------------------
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
20,000,100 Common Shares
- -----------------------------------------------------------------------
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES
[ ]
- -----------------------------------------------------------------------
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
9.1% of outstanding Common Shares
- -----------------------------------------------------------------------
10. TYPE OF REPORTING PERSON
CO
- -----------------------------------------------------------------------
The Schedule 13D filed by PMA Acquisition Corporation ("PMA"), a
Delaware corporation, a wholly owned subsidiary of AlliedSignal Inc.
("AlliedSignal"), a Delaware corporation, on October 9, 1998 is hereby
amended as follows:
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
(a)(16) AlliedSignal and PMA's Memorandum of Law in Opposition to AMP
Incorporated's Motion for Partial Summary Judgment on Count Four
of its First Amended Complaint and in Support of AlliedSignal and
PMA's Cross-Motion for Partial Summary Judgment Dismising Count
Four filed on October 29, 1998 in AMP Incorporated v.
AlliedSignal Inc. and PMA Acquisition Corporation in the United
States District Court for the Eastern District of Pennsylvania
(C.A. No. 98-CV-4405).
SIGNATURE
After reasonable inquiry and to the best of their knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: October 30, 1998
PMA ACQUISITION CORPORATION
By: /s/ Peter M. Kreindler
------------------------------
Name: Peter M. Kreindler
Title: Vice President, Secretary
and Director
ALLIEDSIGNAL INC.
By: /s/ Peter M. Kreindler
------------------------------
Name: Peter M. Kreindler
Title: Senior Vice President,
General Counsel and
Secretary
EXHIBIT (a)(16)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
- ------------------------------------------x
AMP INCORPORATED, :
:
Plaintiff, :
- against - : C.A. No. 98-CV-4405
:
ALLIEDSIGNAL INC., and :
PMA ACQUISITION CORPORATION, :
:
Defendants. :
- ------------------------------------------x
DEFENDANTS' MEMORANDUM OF LAW IN OPPOSITION TO AMP
INCORPORATED'S MOTION FOR PARTIAL SUMMARY JUDGMENT
ON COUNT FOUR OF ITS FIRST AMENDED COMPLAINT AND IN
SUPPORT OF DEFENDANTS' CROSS-MOTION FOR PARTIAL
SUMMARY JUDGMENT DISMISSING COUNT FOUR
--------------------------------------------------
Plaintiff AMP Incorporated ("AMP") has moved for partial summary
judgment on Count Four of its First Amended Complaint and sought from this
Court a judgment: (i) declaring that defendants AlliedSignal Inc. and its
subsidiary PMA Acquisition Corporation (collectively, "AlliedSignal") have
acquired "control shares" within the meaning of Subchapter G of Chapter 25
of the Pennsylvania Business Corporation Law ("PBCL"), 15 Pa. Cons. Stat.
ss. ss. 2561-68 (the "Control Share Acquisitions Statute"), and (ii)
enjoining defendants from voting any AMP shares they own unless and until
its voting rights are restored under the Control Share Acquisitions
Statute.
Defendants respectfully submit this memorandum in opposition to
plaintiff's motion and in support of their cross-motion for summary
judgment dismissing Count Four of plaintiff's First Amended Complaint. For
the reasons set forth below, AlliedSignal's acquisition of approximately
9.1% of AMP's shares pursuant to its tender offer has not triggered a loss
of voting rights under ss. 2564 of the Control Share Acquisitions Statute.
Accordingly, this Court should deny plaintiff's motion and grant
defendants' cross-motion.
ARGUMENT
--------
As AMP alleges, AlliedSignal has announced its intention to
acquire the remaining shares of AMP through a tender offer or other
transaction. Since Allied Signal has "propose[d] to make a control-share
acquisition," AlliedSignal agrees that it is an "acquiring person" as that
term is defined in ss. 2562 of the Control Share Acquisitions Statute. The
AMP shares AlliedSignal owns today are not, however, disenfranchised
"control shares" under the Control Share Acquisitions Statute, because the
statute is quite clear that no shares are "control shares" until there has
been a "control share acquisition" (also as defined in the statute), and
AlliedSignal has not made such an acquisition.(FN1) Contrary to the clear
language of the statute, AMP contends that any shares acquired with the
intention of making a "control-share acquisition" are "control shares,"
even if a "control share acquisition" never occurs. As we shall show, by
its plain language and intent the statute does not take away voting rights
for any shares unless and until there has been an actual control-share
acquisition. Only after there has been such an acquisition, the statute
takes away voting rights for all shares acquired with the requisite intent,
even if they were acquired before the transaction that results in the
actual "control-share acquisition."
- --------
1 Under the Pennsylvania Control Share Acquisitions Statute, an
"acquiring person" who for the first time acquires any one of three
specified percentages of stock ownership (20%, 33-1/3%, and 50%) in a
Pennsylvania corporation (a "control-share acquisition") loses its
right to vote those shares the acquisition of which puts that person
over the relevant threshold (the "control shares") unless disinterested
shareholders have approved voting rights for those control shares at a
shareholders meeting. 15 Pa. Cons. Stat. Ann. ss.ss. 2562, 2564.
The statute defines a "control-share acquisition" as an
acquisition in which a person for the first time acquires voting control of
one of three statutorily enumerated percentages of stock ownership: 20
percent, 33 1/3 percent, or 50 percent. 15 Pa. Cons. Stat. Ann. ss. 2562.
AlliedSignal's purchase of approximately 9.1% of AMP's shares pursuant to its
tender offer therefore does not constitute a control-share acquisition under
ss. 2562. Thus, AlliedSignal is entitled to vote its AMP shares, unless and
until it acquires another 10.9%, taking it to the 20% threshold.(FN2)
- --------
2 AlliedSignal agrees that if it were to buy additional shares that took
it past the 20% threshold, it could not vote any of its shares,
including the 9.1% it already owns, unless AMP shareholders voted to
approve AlliedSignal's voting rights as to those shares.
I. PBCL SS. SS. 2562 AND 2564 TAKE AWAY VOTING RIGHTS ONLY AFTER
AN ACQUIRING PERSON ACTUALLY ACQUIRES A STOCK INTEREST OF 20%
OR MORE
PBCL sections 2562 and 2564, read together, make it clear that
"control shares" (those as to which voting rights are forfeited) come into
existence only upon the actual occurrence of a control-share acquisition
(i.e., an acquisition that results in the acquiror owning 20% or more of
the voting securities).
The basic statutory definition of "control shares" is stated in
the first sentence of the "control shares" definition found in ss. 2562:
"Those voting shares of a corporation, that upon acquisition of voting
power over such shares by an acquiring person, would result in a
control-share acquisition." 15 Pa. Cons. Stat. Ann. ss. 2562 (emphasis
added). Based on this sentence, the event that results in shares becoming
control shares (and as such, losing voting rights under ss. 2564) is an
acquisition of voting poweR constituting a "control share acquisition,"
i.e., the acquisition by the acquiring person of a number of shares that
takes that person's holdings to one of the statutory thresholds of 20%, 33
1/3%, or 50%. See ss. 2562 (definition); 1/23/90 Senate Journal (Comments
of Senator Wenger) ("the control share acquisition section would prohibit a
raider who acquires more than 20 percent of a company from voting his or
her own shares to change corporate control without the approval of the
remaining shareholders"; emphasis added).
AMP mistakenly relies upon the second sentence of the "control
shares" definition contained in ss. 2562(FN3) which provides that:
Voting shares beneficially owned by an acquiring person shall also be
deemed to be control shares where such beneficial ownership was
acquired by the acquiring person:
(1) within 180 days of the day the person makes a control-share
acquisition; or
(2) with the intention of making a control-share acquisition.
15 Pa. Cons. Stat. Ann. ss. 2562 (emphasis added).
- --------
3 AMP's brief also attempts to support its proposed interpretation of
"control shares" by citing a Draftsmen's Comment on the definition of
"acquiring person." AMP Br. at 5. The Comment, however, is irrelevant
-- at issue is the definition of "control shares," not the definition
of an "acquiring person," as AlliedSignal concedes that it is an
"acquiring person".
AMP's reliance on a Pennsylvania corporation law treatise is likewise
misplaced. The passage quoted at p. 5 of AMP's brief says nothing
about when disenfranchisement of certain shares acquired prior to a
control-share acquisition occurs. See Vincent F. Garrity, Jr.,
Pennsylvania Takeover Legislation, in Pennsylvania Business Corporation
Practice ss. 10-7.3. Indeed, the preceding page of the treatise supports
AlliedSignal's interpretation of the statute, not AMP's. See id.,
ss. 10-7.1 ("The Pennsylvania [statute] . . . states that a person who
acquires any one of three specified percentages of stock ownership . .
. for the first time will not be permitted to vote the 'control'
shares,' i.e., those shares the ownership of which puts that person
over the relevant threshold . . . ."; emphasis added).
This second sentence of the "control shares" definition provides
for a retrospective imposition of "control shares" status on two categories
of shares acquired by an acquiring person before a control-share
acquisition was made, the key being that this sentence cannot be read in
isolation from the first sentence in the definition -- it applies only if
the acquiring person has "control shares" within the first sentence.(FN4)
Before pre-acquired shares can "also be deemed" to be control shares, the
person must already have acquired "control shares" within the meaning of
the first sentence of the definition, and that happens only when the
acquiror reaches one of the statutory thresholds without first having
obtained stockholder approval for crossing the threshold under PBCL ss.
2565.
- --------
4 If the legislature had intended shares covered by the second sentence
to be "control shares" when purchased, it would have defined them
directly as "control shares," for example by utilizing substantially
the following definition of "control shares":
"Those voting shares of a corporation that upon acquisition of
the voting power over such shares by an acquiring person, would
result in a control-share acquisition, and those voting shares of
a corporation acquired by an acquiring person: (1) within 180
days of the day the person makes a control-share acquisition; or
(2) with the intention of making a control-share acquisition."
The second sentence of the definition of "control shares" says
only that when a control-share acquisition occurs, two kinds of shares (in
addition to the shares acquired in the control-share acquisition) take on
"control shares" status: (1) those acquired within 180 days of a
control-share acquisition, and (2) those acquired at any time prior to the
control-share acquisition with the intention of making a control-share
acquisition.
The purpose of the second sentence of the definition is obvious
and important. It is meant to cover a circumstance where the acquiring
person reaches the 20% threshold through incremental acquisitions in two or
more steps. Absent the second sentence of the definition of control shares,
only the shares acquired in the final step would be "control shares"
subject to disenfranchisement. Had the Pennsylvania legislature not added
the second sentence of the definition, evasion of the statutory policy
would have been easy. An acquiring person would have been free to buy
19.99% of a company's shares in step one, and when it reached or crossed
the 20% threshold (e.g., by buying an additional .02%), only that last .02%
would be "control shares" under the first sentence of the definition. It
was only to avoid this anomaly that the legislature added the second
sentence of the definition of "control shares."
The legislature's choice of the past tense in the second sentence
of the "control shares" definition is also telling. See 15 Pa. Cons. Stat.
Ann. ss. 2562 ("Voting shares . . . shall also be deemed to be control
shares where . . . beneficial ownership was acquired by the acquiring
person . . . with the intention of making a control-share acquisition";
emphasis added). Had the legislature intended the forfeiture of voting
rights to be triggered immediately upon the acquisition of any shares with
the intention to make a control-share acquisition, it would have chosen the
present tense ("is acquired"). Instead, the language the legislature chose
looks back only after a control-share acquisition has taken place -- not
sooner -- to sweep two kinds of earlier-acquired shares into the definition
of control shares. See also Draftsmen's Comment to ss. 2562 (discussing the
"determination of whether beneficial ownership of shares was acquired at a
time that the acquiring person had the intention of making a control-share
acquisition"; emphasis added).(FN5)
- --------
5 For the Court's convenience, the Draftmen's Comments to Subchapter G of
the PBCL are attached as Exhibit 1.
The only section of Subchapter G, entitled "Control-Share
Acquisitions," that takes away voting rights is ss. 2564. That section,
entitled "Voting rights of shares acquired in a control-share acquisition,"
provides that, if not previously approved under PBCL ss. 2565, "[c]ontrol
shares shall not have any voting rights unless a resolution approved by a
vote of shareholders . . . restores to the control shares the same voting
rights as other shares . . . ." 15 Pa. Cons. Stat. Ann. ss. 2564. The
titles chosen by the legislature for Subchapter G ("Control-Share
Acquisitions"; emphasis added) as well as ss. 2564 ("Voting rights of
shares acquired in a control-share acquisition"; emphasis added) evince a
clear intent not to affect the voting rights of shares of an acquiring
person until the acquiring person actually acquires shares "in a
control-share acquisition."(FN6) The definition of "control shares" (i.e.,
the shares subject to disenfranchisement under ss. 2564) contained in ss.
2562, the definitional provision of the Control Share Acquisitions Statute,
must be read in a manner consistent with the intent of ss. 2564, the
statute's core disenfranchisement provision.
- --------
6 The titles and headings of a statute may be considered in statutory
construction. 1 Pa. Cons. Stat. Ann. ss. 1924. See, e.g., Fedor v.
Borough of Dormont, 409 A.2d 334, 337 & n.3 (Pa. 1979); Fairmount Ins.
Co. v. Commonwealth Ins. Dept., 481 A.2d 696, 698 & n.2 (Pa. Commw. Ct.
1984).
In determining legislative intent, sections of a statute must be
read together and construed with reference to the entire statute. Wilson v.
Central Penn Indus., Inc., 452 A.2d 257, 259 (Pa. Super. Ct. 1982). A
construction which fails to give effect to all provisions of a statute or
which achieves an unreasonable or absurd result must be avoided. Id. See
also Turner v. May Corp., 427 A.2d 203, 206-07 (Pa. Super. Ct. 1981) (each
statutory section must be read in relation to other sections to obtain
exact conception of section's aim, scope and objective).
Thus, when both parts of section 2562's definition of "control
shares" are read together, and also taking into account the title of ss.
2564 (as well as the title of all of Subchapter G), the second sentence of
the definition can be construed only as a reach-back provision that
operates only following the occurrence of a control-share acquisition to
describe two classes of shares that become "control shares" (i.e., shares
disenfranchised until shareholder approval is obtained): shares acquired
(1) within the 180 day period prior to a control-share acquisition or (2)
earlier, if acquired "with the intention of making a control-share
acquisition."(FN7)
- --------
7 Significantly, AMP's view that shares purchased by an "acquiring
person" prior to a control share acquisition become "control shares"
immediately when purchased renders superfluous the first sentence of
the definition of "control shares" (providing that shares acquired in a
control-share acquisition are "control shares"). Since any acquiring
person crossing one of the quantitative control-share acquisition
thresholds presumably does so intentionally (as opposed to
accidentally), any shares that take the acquiror over a quantitative
threshold ("control shares" under part one of the definition in ss. 2562)
also would necessarily be shares acquired with the intent to cross a
threshold ("control shares" under part two of the definition). AMP's
interpretation of the Control Share Acquisitions Statute should be
rejected because it would reduce the first sentence of ss. 2562's
definition of "control shares" to mere surplusage. See 1 Pa. Cons.
Stat. Ann. ss. 1921(a) ("Every statute shall be construed, if possible,
to give effect to all its provisions."; emphasis added).
II. THE PENNSYLVANIA LEGISLATURE INTENDED TO TRIGGER A LOSS OF
VOTING RIGHTS ONLY UPON THE OCCURRENCE OF A CONTROL-SHARE
ACQUISITION
A. LEGISLATIVE PURPOSE TO ENABLE COLLECTIVE SHAREHOLDER
ACTION IN THE EVENT OF A FUNDAMENTAL CORPORATE CHANGE
AlliedSignal's interpretation of ss. 2562 is supported by
referencE to the purpose of the Control Share Acquisitions Statute -- to
enable a company's shareholders to vote as a group to approve (or
disapprove) the exercise of voting power by a shareholder who has reached
the 20%, 33- 1/3% or 50% levels. The legislature made the judgment that
when one shareholder (or group of related shareholders) obtains voting
power at any of these levels, the company could undergo a fundamental
change and, as in the case of other fundamental changes (e.g., a merger),
prior approval of the shareholders as a group is necessary. See Draftsmen's
Comment to ss. 2561. See also S. Wallman & L. Gordon, Pennsylvania's
Anti-Raider Legislation, 4 No. 8 INSIGHTS 38, *39 (Aug. 1990) ("Similar to
statutes in approximately half the states, the [Control Share Acquisitions
Statute] treats a person's acquiring voting power over twenty percent of
the voting shares of a corporation as a fundamental corporate transaction
requiring prior shareholder approval."). The Control Share Acquisitions
Statute serves this purpose by giving the other shareholders an opportunity
for such collective action in connection with an actual control-share
acquisition, not whenever an acquiring person obtains any shares of the
company.
B. 20% TRIGGERS IN OTHER SECTIONS OF THE PBCL
The notion that any acquisition of shares, no matter how small,
with the intent of making a control-share acquisition triggers the Control
Share Acquisitions Statute also is inconsistent with the 20% triggers
contained in Pennsylvania's other anti-takeover statutes. See Draftsmen's
Comment to ss. 2562 ("the 20% threshold is within the range of levels set
in similar statutes in other states and conforms with the levels set in
other BCL provisions affecting corporate control"). Underlying these
different statutes is a common judgment that once an individual shareholder
amasses shares of the company totaling 20% or more -- but not before --
certain measures are appropriate for the protection of shareholders and
other corporate constituencies.(FN8) In every one of these related statutes, it
is the actual acquisition of a 20% share in the company that triggers the
statute's protective provisions, not the announced intention to make such
an acquisition.
- --------
8 See, e.g., 15 Pa. Cons. Stat. Ann. ss. ss. 2541-2548 (Subchapter E --
Control Transactions statute) (acquisition of at least 20% of the
voting power by a "controlling person or group" triggers shareholder
right to put its shares to the "controlling person or group" at fair
value); ss. ss. 2551-2556 (Subchapter F -- Business Combinations statute)
(requiring certain transactions with an "interested shareholder" --
defined as the beneficial owner of shares entitling the person to cast
at least 20% of the votes entitled to be cast in an election of
directors -- to be approved by the shareholders or in advance by the
board, and imposing other requirements with respect to such
transactions); ss. ss. 2581-2583 (Subchapter I -- Severance Compensation)
(specified employee severance benefits triggered by a control-share
acquisition as defined in the Control Share Acquisitions Statute);
ss. ss. 2585-2588 (Subchapter J -- Business Combination Transactions --
Labor Contracts) (preserving labor contracts in the event of a business
combination tied to a control-share acquisition under Subchapter G).
AMP mistakenly argues that in the case of Subchapter G, the
Control Share Acquisitions Statute, the trigger is not the acquisition of
20% of the company's shares, but the acquisition of any shares so long as
the acquiror harbors an intent to acquire 20% or more at some time in the
future. However, the Control Share Acquisitions Statute and the legislative
history simply offer no evidence that in the case of Subchapter G, the
legislature intended to effect such a fundamental departure from its
overall legislative scheme. Nor, for that matter, is it appropriate to
presume that the Pennsylvania legislature intended to visit upon purchasers
of shares in a public company so substantial a penalty without expressing
such intent in a clear manner that puts potential acquirors on notice that
any acquisition with the intent of making a "control-share acquisition"
triggers a loss of voting rights. See, e.g., Masters v. Alexander, 225 A.2d
905, 910 (Pa. 1967) (where disadvantage or harm may result from supposed
infraction of law, words must be interpreted strictly); Sugalski v.
Cochran, 529 A.2d 1104, 1107 (Pa. Super. Ct. 1987) ("forfeiture is a
drastic remedy that is not favored by the law and . . . such statutes must
be strictly construed"). See also Board of Trade of City of Chicago v.
Johnson, 264 U.S. 1, 15 (1924) (intent to effect a drastic forfeiture must
be clearly expressed).
C. OTHER STATES' CONTROL SHARE ACQUISITIONS STATUTES
Tellingly, neither Pennsylvania's Control Share Acquisitions
Statute nor comparable statutes in other jurisdictions have ever been
interpreted or applied in the manner that AMP advocates.(FN9) More than
half of the states have adopted control-share acquisitions statutes, all of
which are triggered solely by actual share acquisitions that place the
acquiror over 20% or another fixed numerical threshold. See, e.g., In. St.
23-1-42-1 (Indiana statute); Gen. Stat. N.C. ss. 55-9A-01 (North Carolina
statute); Neb. Rev. St. ss. 21-2439 (Nebraska statute); Mo. St. 351.015
(Missouri statute). It appears that no litigant in any jurisdiction has
even argued (let alone prevailed in arguing) that a stock purchase which
does not itself constitute a control-share acquisition, but is made with
the intention of ultimately making a control-share acquisition, triggers
disenfranchisement under a control share acquisitions statute.
- --------
9 Under Pennsylvania law, a court may consider interpretations of similar
statutes in other jurisdictions in order to interpret a Pennsylvania
statute. Gen. Elec. Environmental Services, Inc. v. Envirotech Corp.,
763 F. Supp. 113, 118-19 (M.D. Pa. 1991).
It is clear from the legislative history that Pennsylvania's
Control Share Acquisitions Statute was modeled after the Indiana statute,
In. St. 23-1-42-1 et seq., and other similar control-share acquisitions
statutes. See 1/23/90 Senate Journal (Comments of Senator Wenger);
Draftsmen's Comment to ss. 2162 ("the 20% threshold is within the range of
levels set in similar statutes in other states"). The same legislative
history is devoid of any suggestion that the Pennsylvania legislature
intended to vary from the standard model of control-share acquisitions
statutes by making the Pennsylvania statute applicable before the first
quantitative threshold had been crossed by an acquiring person. It is
inconceivable that the Pennsylvania legislature would have embarked upon
such a fundamental departure from a well-established statutory model
without making very clear its intention to do so. This circumstance only
strengthens the conclusion compelled by the language, structure, and
purpose of Pennsylvania's Control Share Acquisitions Statute and other
provisions of the PBCL: an acquiring person forfeits his right to vote
"control shares" only if he has completed a "control-share acquisition,"
i.e., acquired a stock interest in the company of 20% or more.
For the foregoing reasons, AMP's proffered interpretation of the
definition of "control shares" in PBCL ss. 2562 should be rejected and
AlliedSignal should be permitted to vote its shares in connection with its
contemplated consent solicitation.(FN10)
- --------
10 If this Court nevertheless should rule that the AMP shares acquired by
AlliedSignal constitute "control shares" within the meaning of ss. 2562
and may not be voted by AlliedSignal without a shareholder vote to
reinstate AlliedSignal's voting rights, AlliedSignal's shares would not
be counted in the denominator for purposes of determining the number of
shares needed to elect directors or to authorize the Shareholder Rights
Proposal. See 15 Pa. Cons. Stat. Ann. ss. 1766(b) (for purposes of
determining whether action by consent may be taken, the calculation of
the required vote is made based on the number of shares held by "all
shareholders entitled to vote . . . ."); AMP Articles of Incorporation,
Article IX (same).
CONCLUSION
For the reasons set forth herein, AlliedSignal respectfully
requests that AMP's motion for partial summary judgment be denied and that
AlliedSignal's cross-motion for partial summary judgment be granted.
Respectfully Submitted,
/s/ Mary A. McLaoughlin
---------------------------
Mary A. McLaughlin
George G. Gordon
DECHERT PRICE & RHOADS
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2703
and
/s/ Alexander R. Sussman
---------------------------
Alexander R. Sussman
Peter R. Jerdee
FRIED FRANK HARRIS, SHRIVER & JACOBSON
(A Partnership Including
Professional Corporation)
One New York Plaza
New York, NY 10004
Dated: October 29, 1998