EXHIBIT 99.6
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- -----------------------------------------:
:
SUSAN LURIA, TRUSTEE FOR CARRIE A. :
LURIA, individually and on behalf of :
all others similarly situated, :
:
Plaintiff, :
: Index No. 95118961
-against- :
:
CAPITAL CITIES/ABC, INC., ROBERT P. :
BAUMAN, WARREN E. BUFFET, FRANK T. :
CARY, THOMAS S. MURPHY, FRANK S. JONES, :
JOHN B. FAIRCHILD, ANN D. JORDAN, :
LEONARD H. GOLDENSON, WYNDHAM :
ROBERTSON, NICHOLAS F. BRADY, DANIEL B. :
BURKE, M. CABELL WOODWARD, JR., JOHN H. :
MULLER, JR., ROBERT A. IGER and WALT :
DISNEY CO., :
:
Defendants. :
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CLASS ACTION COMPLAINT
Plaintiff, by and through her attorneys, alleges as
follows:
1. Plaintiff brings this action as a class action
on behalf of herself and all other shareholders of Capital
Cities/ABC Inc. ("CCA" or the "Company") who are similarly
situated, against the directors of CCA to enjoin certain
actions of the defendants related to the merger of CCA with
Walt Disney Co. ("Disney").
I. PARTIES
2. Plaintiff is and has been at all relevant times
the owner of CCA common stock.
3. Defendant CCA is a corporation organized and
existing under the laws of the State of New York with
executive offices located at 77 West 66th Street, New York,
New York. The Company operates the ABC Television and Radio
Networks, and owns various newspapers and magazines. As of
December 31, 1994, there were approximately 154 million
shares of CCA common stock issued and outstanding held by
approximately 8,610 shareholders of record, which shares
trade on the New York Stock Exchange.
4.(a) Defendant Thomas S. Murphy ("Murphy") is and
was at all relevant times Chairman and Chief Executive
Officer of CCA.
(b) Defendant Robert A. Iger ("Iger") is and was at
all relevant times President, Chief Operating Officer and a
director of CCA.
(c) Defendant John B. Fairchild ("Fairchild") is
and was at all relevant times Executive Vice President and a
director.
(d) Defendants Robert P. Bauman ("Bauman"), Warren
E. Buffet ("Buffet"), Frank T. Cary ("Cary"), Frank S. Jones
("Jones"), Ann D. Jordan ("Jordan"),
Leonard H. Goldenson ("Goldenson"), Wyndham Robertson
("Robertson"), Nicholas F. Brady ("Brady"), Daniel B. Burke
("Burke"), M. Cabell Woodward, Jr. ("Woodward"), and John H.
Muller, Jr. ("Muller") are and have been at all relevant
times directors of CCA.
5. Defendant Disney is a corporation organized and
existing under the laws of the State of Delaware with
executive offices located in Burbank, California. As of
September 31, 1993, Disney had over 535.5 million shares of
common stock outstanding held by over 408,000 shareholders of
record. Defendant Disney is named herein as an aider and
abettor to the breach of fiduciary duty described herein.
6. By virtue of the positions of defendants named
in paragraph 4 ("Individual Defendants") as officers and
directors of CCA, said defendants were and are in a fiduciary
relationship with plaintiff and the other public stockholders
of the Company, and owe to plaintiff and the other members of
the Class the highest obligations of good faith and fair
dealing.
II. CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action for declaratory,
injunctive and other relief on her own behalf and as a class
action, pursuant to Rule 901 et seq. of the New York Civil
Practice Law and Rules ("CPLR") and on behalf of all common
stockholders of CCA (except defendants herein and any person,
firm, trust, corporation or other entity related to or
affiliated with any of the defendants) or their successors in
interest, who are being deprived of the opportunity to
maximize the value of their CCA shares by the wrongful acts
of the defendants as described herein.
8. This action is properly maintainable as a class
action for the following reasons:
(a) The Class of stockholders for whose benefit
this action is brought is so numerous that joinder of all
class members is impracticable. There are approximately 154
million common shares of CCA outstanding, owned by
approximately 8,610 stockholders. Members of the Class are
scattered throughout the United States.
(b) There are questions of law and fact which are
common to members of the Class and which predominate over all
questions affecting only individual members, including
whether the defendants have breached the fiduciary duties
owed by them to plaintiff and members of the Class by reason
of the acts described herein.
(c) The claims of plaintiff are typical of the
Claims of the other members of the Class and plaintiff has no
interests that are adverse or antagonistic to the interests
of the Class.
(d) Plaintiff is committed to the vigorous
prosecution of this action and has retained competent counsel
experienced in litigation of this nature. Accordingly,
plaintiff is an adequate representative of the Class and will
fairly and adequately protect the interests of the Class.
(e) The prosecution of separate actions by
individual members of the Class would create a risk of
inconsistent or varying adjudications with respect to
individual members of the Class and establish incompatible
standards of conduct for the party opposing the Class.
(f) Defendants have acted and are about to act on
grounds generally applicable to the Class, thereby making
appropriate final injunctive or corresponding declaratory
relief with respect to the Class as a whole.
III. BACKGROUND AND SUBSTANTIVE ALLEGATIONS
9. On or about July 31, 1995, CCA and Disney
announced on Dow Jones Newswire that they had entered into a
merger agreement pursuant to which each share of CCA common
stock would be exchanged for one share of Disney common stock
and $65 in cash (the "Merger"). The Merger is valued at
approximately $19 billion.
10. In the July 31, 1995 press release, Disney and
CCA stated that under the terms of the merger agreement,
any CCA shareholder can elect to receive proportionally more
cash or common stock than provided for in the exchange ratio,
subject to proration if either the stock or cash portion is
oversubscribed, and subject to the option of Disney to
increase the cash portion if requested by CCA shareholders.
11. Defendant Murphy, following the Merger, will
relinquish his positions at CCA and join the Disney Board of
Directors.
12. According to reports on Dow Jones Newswire
Disney and CCA agreed to the Merger within 10 days of
discussing a business combination.
13. In agreeing to this change in control, the
Individual Defendants were obligated to maximize the value to
be received by CCA shareholders. However, in hastily agreeing
to the Merger, the actions taken by the Individual Defendants
are in gross disregard of the fiduciary duties each of them
owes to plaintiff and the other members of the Class, in that
they have failed to adequately investigate the market to
obtain the highest price and/or the best possible transaction
for CCA shareholders.
14. CCA also has in place a shareholders' rights
plan ("poison pill") which operates to make a takeover by an
unwanted party prohibitively expensive. Thus, no third
party, as a practical matter, could bid for the Company
without the tacit approval of the Individual Defendants.
15. The consideration offered to CCA shareholders
pursuant to the announced terms of the Merger is inherently
speculative; it is unclear whether Disney will decide to
exercise its right to change the mix of cash to stock and
therefore it is impossible to estimate the value of the
consideration before shareholders tender their shares. By
agreeing to this speculative arrangement, the Individual
Defendants have abdicated their obligation to protect the
interests of all CCA shareholders, and thus violated their
fiduciary duties.
16. Defendant Disney, without which the Merger
would not occur, and with knowledge of the Individual
Defendants' breach of fiduciary duty, has rendered
substantial assistance to the Individual Defendants and
stands to profit handsomely from the Merger.
17. Plaintiff and the other Class members are
immediately threatened by the acts and transactions
complained of herein which will cause irreparable injury to
them in that they will be denied the opportunity to share in
enhanced shareholder value.
18. Plaintiff and the Class have no adequate remedy
at law.
WHEREFORE, plaintiff demands judgment and
preliminary and permanent relief, including injunctive
relief, in her favor and in favor of the Class and against
defendants as follows:
A. Declaring that this action is properly
maintainable as a class action, and certifying plaintiff as a
class representative;
B. Declaring that the defendants and each of them
have committed a gross abuse of trust and have breached their
fiduciary duties to plaintiff and the other members of the
Class;
C. Granting injunctive relief with respect to the
Merger;
D. Requiring defendants to conduct an unencumbered
market check in a manner designed to maximize shareholder
value and enjoin defendants from erecting any unlawful
barriers to the acquisition of the Company by any third party
which would make CCA less attractive as an acquisition
candidate;
E. Enjoining CCA from enacting or implementing any
defensive measures which would otherwise prohibit a third
party from making a competing bid for the Company;
F. Awarding plaintiff and the Class compensatory
damages;
G. Awarding plaintiff and the Class the costs and
disbursements of this action, including reasonable attorneys'
fees and expenses; and
H. Granting such other and further relief as this
Court may deem just and proper.
DATED: August 1, 1995
Yours, etc.
ZWERLING, SCHACHTER, ZWERLING
& KOPPEL, LLP
767 Third Avenue
New York, NY 10017-2023
(212) 223-3900
SAVETT FRUTKIN PODELL
& RYAN, P.C.
320 Walnut Street, Suite 508
Philadelphia, PA 19106
(215) 923-5400
Attorneys for Plaintiff