Exhibit 2.3
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
JOHN D. CRAWFORD, CAROLYN )
BAGBEY, RICK R. DAVIS, DONNA )
RAOUST, OLIVIER RAOUST, and DAVID )
GLENN TATUM SMITH, )
)
Plaintiffs, )
)
v. ) Civil Action
) No. 17334
)
CINCINNATI BELL, INC., an Ohio )
corporation, IXC COMMUNICATIONS, )
INC., a Delaware corporation, IVORY ) FILED UNDER
MERGER, INC., a Delaware corporation, ) SEAL
WOLFE H. BRAGIN, JOE C. CULP, CARL W. )
MC KINZIE, RALPH J. SWETT, )
PHILLIP L. WILLIAMS, BENJAMIN L. )
SCOTT, RICHARD D. IRWIN, JOHN M. )
ZRNO, )
)
Defendants. )
SECOND AMENDED AND SUPPLEMENTAL COMPLAINT
Plaintiffs John D. Crawford, et al., by their attorneys, allege upon
knowledge as to themselves and their actions, and upon information and belief
as to all other matters, as follows:
THE PARTIES
1. Plaintiff John D. Crawford is, and at all relevant times has been, a
record stockholder of Defendant IXC Communications, Inc. ("IXC" or the
"Company"). Mr. Crawford currently controls approximately 880,000 shares of
IXC common stock, or about 2% of the Company's outstanding shares. Mr.
Crawford is the former president of IXC's retail division.
2. Plaintiffs Donna and Olivier Raoust own 32,835 shares of IXC common
stock.
3. Plaintiff Rick R. Davis owns 10,445 shares of IXC common stock.
4. Plaintiff David Glenn Tatum Smith owns 2,180 shares of IXC common
stock.
5. Plaintiff Carolyn Bagbey owns 200 shares of IXC common stock.
6. The individual named Plaintiffs above own in the aggregate 925,660
shares of IXC common stock, or approximately 2.5% of such shares outstanding.
7. IXC is a Delaware corporation headquartered in Austin, Texas. Through
its subsidiaries, IXC provides telecommunications services. IXC has a
nationwide fiber optic network and sells voice and data transmission services
to telecommunication companies. IXC's common stock is traded on NASDAQ. As of
March 19, 1999, there were approximately 36,602,934 shares of IXC common stock
issued and outstanding.
8. Defendant Cincinnati Bell, Inc. ("Cincinnati Bell") is an Ohio
corporation whose core business is local telecommunication services.
9. Defendant Ivory Merger, Inc. ("Ivory") is a Delaware corporation and a
wholly owned subsidiary of Cincinnati Bell.
10. Defendant Benjamin L. Scott ("Scott") was President, Chief Executive
Officer and Chairman of the Board of IXC from 1997 until May 1999. In May
1999, Scott was removed as
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President and Chief Executive Officer. On or about July 17, 1999 Scott was
terminated as Chairman of the Board.
11. Defendant Richard D. Irwin ("Irwin") was a director of the Company at
all times relevant hereto. On or about July 17, 1999, he replaced Scott as
Chairman of IXC's Board of Directors.
12. Defendant John M. Zrno ("Zrno") replaced Scott as IXC's President and
Chief Executive Officer in May 1999. He has also been a director of IXC since
May 1999.
13. Defendant Wolfe H. Bragin ("Bragin") was a director of the Company at
all times relevant hereto and has served since 1985 as Vice President of
General Electric Investment Corporation, a subsidiary of General Electric
Company that acts as an advisor to the Trustees of the General Electric
Pension.
14. Defendants Joe C. Culp, Carl W. McKinzie, Ralph J. Swett, and Phillip
L. Williams were each directors of the Company at all times relevant hereto.
CLASS ACTION ALLEGATIONS
15. Plaintiffs bring this action on their own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf
of all common stockholders of IXC, or their successors in interest, who are
being and will be harmed by Defendants' actions described herein (the
"Class"). Excluded from the Class are Defendants, the General Electric Pension
Trust ("GEPT"), and any person, firm, trust,
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corporation, or other entity related to or affiliated with any of Defendants.
16. This action is properly maintainable as a class action because:
a. The Class is so numerous that joinder of all members is
impracticable. There are thousands of IXC stockholders who are located
throughout the United States.
b. There are questions of law and fact which are common to the
Class, including: (i) whether the Defendants have engaged or are engaging in a
manner calculated to benefit themselves or others at the expense of IXC
stockholders, (ii) whether the individual Defendants have breached their
fiduciary duties to the Class members, and (iii) whether Plaintiffs and the
other members of the Class would be irreparably damaged if the Defendants are
not enjoined as requested.
c. Plaintiffs' claims are typical of the claims of the other members
of the Class and plaintiffs have no interest that is adverse or antagonistic
to the interests of the Class.
d. Plaintiffs are committed to prosecuting this action and have
retained counsel competent and experienced in litigation of this nature. In
fact, as discussed hereafter, Plaintiff Crawford has prosecuted a related
action, Crawford v. IXC Communications, Inc., Del. Ch., C.A. No. 17189 (filed
May 28, 1999), demanding access to the books and records of the Company to
investigate, among other things, the actions of
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the individual Defendants in response to offers to purchase the Company.
Accordingly, Plaintiffs are adequate representatives of the Class and will
fairly and adequately protect the interests of the Class.
e. The Defendants have acted -- and have refused to act -- on
grounds generally applicable to the Class. Thus, final injunctive relief on
behalf of the Class is appropriate.
f. Plaintiffs anticipate that there will be no difficulty in the
management of this litigation.
FACTUAL BACKGROUND
IXC Receives Acquisition Proposals
17. In early February 1999, IXC announced that it had retained Morgan
Stanley Dean Witter & Co. ("Morgan Stanley") to explore a possible sale of the
Company or a strategic partnership. The February 15, 1999 edition of Mergers &
Acquisitions Report cited analysts' reports that the Company was "shopping
itself for $80 per share, or roughly $3 billion ..." and that several weeks
prior to that date, an unidentified bidder had offered $60 per share. The
March 15 issue of Business Week reported that IXC would be sold "within weeks"
for $53 per share.
18. In the latter part of March 1999, when IXC was trading at
approximately $52 per share, Mr. Crawford called Benjamin L. Scott, IXC's
then-President and CEO, and was led to believe that the Company would be sold
within two weeks to sixty days. No such transaction materialized. Mr. Crawford
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was also informed at various times by representatives of Merrill Lynch Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") that Mr. Scott and other
officers of IXC were meeting with representatives of RSL Corporation or other
entities in an effort to negotiate a merger. These negotiations, however, were
unsuccessful. According to Merrill Lynch, the negotiations failed because the
IXC Board of Directors was seeking a price of at least $70 per share for IXC's
common stock, while the Company's suitors, having realized that IXC was
plagued with ineffective management, were offering less.
19. The May 22, 1999 edition of the International Herald Tribune noted
that J.P. Morgan Securities had downgraded IXC's stock the previous week
following the Company's rejection of a number of acquisition proposals. The
Company's per share price eventually slid to the $30-$35 range. On
approximately May 28, 1999, Mr. Scott was replaced as CEO and President of IXC
by Defendant John Zrno.
Mr. Crawford's Action Pursuant to 8 Del. C. Section 220
20. On May 18, 1999 Mr. Crawford sent to the Company a written demand
pursuant to Section 220 of the Delaware General Corporation Law to inspect and
copy the stock ledger, stockholder list and all books and records of the
Company relating to proposed purchase offers made for IXC stock within the six
month period immediately preceding the date of the demand. The demand stated
Mr. Crawford's purpose -- to evaluate the advisability of any proposed
transaction as
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described above and to evaluate the response thereto by management and the
Board of Directors.
21. Although it never formally responded to the demand, the Company
refused Plaintiff's request. As a result, on May 28, 1999 the Plaintiff filed
a complaint pursuant to 8 Del. C. ss. 220, Crawford v. IXC Communications,
Inc., Del. Ch. C.A. No. 17189 (the "Section 220 Action"). The Section 220
Action is in the process of being settled. Pursuant to that settlement,
Plaintiff Crawford has received documents indicating that the Company did
negotiate with several suitors before entering a Merger Agreement with
Cincinnati Bell (the "Merger Agreement") and that the earlier suitors proposed
transactions more attractive to IXC's stockholders than the Merger Agreement.
IXC Receives Multiple Proposals for Business Combination
Transactions
22. According to the documents received by Plaintiff Crawford pursuant to
the Section 220 Action, IXC received proposals for business combinations from
at least four telecommunication companies prior to the Cincinnati Bell offer.
One of these entities represented that it was "prepared to provide your
shareholders with a significant premium to your stock's closing price of
$45.06 on February 9, 1999." The prospective acquirer stated further that it
was "flexible with respect to the mix of consideration (cash and/or common
stock) to be received by your shareholders" and
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"welcome[d]" the Company's "input on what would be most attractive to its [the
IXC] shareholders."
23. Further documents obtained by Crawford in the Section 220 Action show
that another suitor proposed a stock-for-stock merger which it estimated to
have "a value of approximately $51 per IXC share or an approximate 42% premium
to the February 1 stock price when we initially proposed these economic
terms." This suitor also explained that, in addition to the $51 per share
merger consideration, IXC's stockholders would share in further value created
by the synergies between the companies:
Based on the work our teams have done together to identify revenue,
cost and capital synergies, IXC shareholders would share a potential
value of creation with the present value of approximately $3.4
billion or $40.00 per IXC share. As a result, we believe our
proposal would deliver value to the IXC shareholders far in excess
of any current implied value from the exchange ratio.
24. Further documentation received by Plaintiff Crawford in the Section
220 Action reveals that on February 8, 1999 another suitor proposed a
transaction in which IXC's stockholders would have been paid in the range of
$60 per share. Several months later, on May 12, 1999, the same suitor offered
to pay in the $50 per share range to IXC's common stockholders, a price that
itself substantially exceeds the current value of the merger consideration in
the Cincinnati Bell transaction.
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25. The proposals discussed above did not constitute final offers.
Rather, the individual Defendants had the opportunity to negotiate an even
higher value for IXC stockholders than the amounts originally put forward by
the bidders for the Company.
26. Unfortunately, the individual Defendants not only failed to act
appropriately in connection with the proposals described above, but approved a
Merger Agreement with Cincinnati Bell that is designed specifically to
preclude any of the other suitors from re-entering the bidding process.
The Defendants Approve An Inadequate (And Two Tiered) Offer
27. On or about July 21, 1999, IXC announced the Merger Agreement. Under
the Agreement, Cincinnati Bell's wholly owned subsidiary, Ivory Merger, Inc.
("Ivory") will merge with and into the Company (the "Merger"). Following the
Merger, the Company will be a wholly owned subsidiary of Cincinnati Bell. Two
of IXC's directors, John Zrno and Richard Irwin, will join the Cincinnati Bell
board. Cincinnati Bell's Chief Executive Officer, Richard Ellenberger, will
become president and CEO of the new, combined company. Each share of IXC stock
- -- other than those accorded illegal special treatment -- will be converted at
a fixed exchange ratio of 2.0976 shares of Cincinnati Bell common stock. Based
on the July 20 closing price for Cincinnati Bell of $23.56, the transaction
would have been valued by IXC at approximately $3.2 billion, or $49.43 per
share (including assumed debt). The purchase price
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for shares held by the public stockholders is not protected by a collar, i.e.
there is no agreed minimum per share price. Thus, if the price of Cincinnati
Bell stock decreases precipitously, the public stockholders of IXC will
receive a correspondingly lower value in exchange for their IXC shares.
28. The absence of minimum price protection is particularly harmful here,
where Cincinnati Bell itself expected the price of its common stock to plummet
upon announcement of the Merger. In order to cushion the anticipated blow to
its stock price, Cincinnati Bell agreed to issue $400 million of convertible
subordinated debentures to Oak Hill Capital Partners, LP, an investment
partnership founded by Robert M. Bass ("Oak Hill"). J. Taylor Crandall of Oak
Hill will become a member of Cincinnati Bell's Board of Directors. In
addition, Cincinnati Bell's directors have authorized using up to $200 million
of the proceeds from the Oak Hill investment to repurchase stock in an open
market share repurchase program. Not surprisingly, however, the anticipated
decline in the price of Cincinnati Bell stock and the resulting decline in
value of the Merger consideration to the public stockholders of IXC - did
materialize. Specifically, on the day that the Merger was announced, the
market price per share of Cincinnati Bell stock dropped $3.75 to $19.8125,
resulting in an over 15% decrease in the value of the Merger consideration to
IXC's public stockholders.
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29. IXC's largest stockholder, GEPT, however, did not agree to accept the
same terms to be received by IXC's other stockholders in the Merger. Rather,
GEPT, which owned approximately 26% of the Company's outstanding shares at the
time that the Merger Agreement was negotiated, and which had (and still has) a
representative on the Company's board -- Mr. Bragin -- negotiated a higher,
guaranteed price of $50 cash per share for half of its IXC holdings,
negotiations memorialized in a Stock Purchase Agreement dated as of July 20,
1999 (the "GEPT Stock Purchase Agreement").
30. Cincinnati Bell afforded GEPT preferential treatment in order to
procure GEPT's approval of the transaction. The Merger is subject to the
majority stockholder approval of both companies. The proposed purchase of
GEPT's vote along with its shares poisons the voting process for IXC's
stockholders. Approximately twenty-six percent of the shares voted will be
voted by Cincinnati Bell through its purchase of approximately one-half of
GEPT's IXC shares and through Cincinnati Bell's purchase of GEPT's vote of its
remaining IXC stock pursuant to a Stockholder Agreement dated as of July 20,
1999 (the "GEPT Stockholders Agreement"). That vote, however, will purport to
bind the remaining IXC shareholders to a transaction different from that
entered into with GEPT -- one for lower consideration.
31. Defendants Swett and Irwin entered into a similar stockholders
agreement, also dated the same day as the Merger
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Agreement, whereby Messrs. Swett and Irwin agreed to vote 5,995,706 shares of
IXC controlled by them in favor of the Merger.
32. Thus, including GEPT, shareholders representing approximately 40% of
the outstanding shares of IXC have committed to vote their shares in favor of
the Merger.
33. Moreover, the Merger Agreement is designed to deter potential suitors
from making competing bids. For example, Section 4.03 of the Merger Agreement
contains a "No Solicitation" provision that is striking in breadth. Section
4.03 not only prohibits IXC or its agents from soliciting alternative
transactions to the Merger, but prohibits IXC or its agents from even
discussing an unsolicited proposal with any suitor other than Cincinnati Bell.
34. If IXC violates the prohibition against discussions or solicitations
and instead enters into an alternative IXC Acquisition Agreement, Cincinnati
Bell will be entitled not only to terminate the Merger Agreement, but to
collect a $105 million termination fee, exercise a stock option to purchase
IXC shares that could yield a profit to Cincinnati Bell of up to $26.25
million and sue for further damages against IXC or others.
35. The net effect of these provisions is to render any proposal for an
alternative to the Cincinnati Bell transaction prohibitively expensive.
Accordingly, the Merger Agreement
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has effectively locked up IXC and is preventing the Company from receiving any
further solicitations of interest.
36. On or about September 14, 1999, IXC distributed to its stockholders
the proxy statement prospectus (the "proxy statement") in connection with the
special stockholders meeting to vote on the Merger. The proxy statement
contains numerous material misstatements and omissions that preclude an
informed shareholder vote.
37. The proxy statement misstates the number of shares owned by holders
who have committed to - or stated an intention to - vote in favor of the
Merger. By suggesting that approval of the Merger is a foregone conclusion,
the proxy statement discourages votes against the Merger.
38. The proxy statement also makes misleading statements about the advice
that IXC received from its financial advisors, Morgan Stanley and Merrill
Lynch. Contrary to what is represented in the proxy statement, the IXC Board
did not approve the retention of Morgan Stanley or of Merrill Lynch until
after both advisors had presented their respective oral opinions. The proxy
statement also fails to disclose that neither Morgan Stanley nor Merrill
Lynch's opinions took into account, as an indicia of fairness or unfairness,
Cincinnati Bell's purchase of one half of GEPT's stock in IXC at $50 per
share. Third, the proxy statement omits that Morgan Stanley advised the IXC
directors, prior to the Board's approval of the Merger, that Morgan Stanley
believed that there were
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companies who would make better strategic partners with IXC than would
Cincinnati Bell.
39. The proxy statement also contains serious misstatements about the IXC
Board's decision making process, as well as the interests of the directors who
approved the Merger:
a. The proxy statement section on "Interests of IXC's Directors and
Management in the Merger" does not disclose (i) that Mr. Bragin, an IXC
director, has served since 1985 as Vice President of General Electric
Investment Corporation, a subsidiary of General Electric Company, which also
is an advisor to the Trustees of GEPT and (ii) that the Merger Agreement was
conditioned upon the GE Stockholders Agreement which in turn was conditioned
on Cincinnati Bell's purchase of GEPT shares for $50 cash.
b. The proxy statement does not disclose that Mr. Scott was
terminated as a director of the Company just days before the Board considered
the Merger Agreement.
c. The proxy statement states that one factor upon which the IXC
directors based their approval of the Merger was the decision of Messrs. Scott
and Irwin to "take all stock in the merger, believing the potential upside in
the stock price of the combined company outweighed the benefits of taking half
the value of their shares in cash." What the proxy statement fails to disclose
is that Mr. Irwin has a tax basis in his IXC stock of less than $5 per share;
thus making cash an
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unattractive choice for tax purposes, not because of the expected
profitability of the combined company.
d. The proxy statement represents that the IXC directors' approval
of the Merger was based in part on the fact that General Electric, considered
by the IXC board of directors to be one of the most respected institutional
investors in the world, was in favor of the merger and would remain
stockholder of the combined company with approximately 10 million shares of
stock on a fully diluted basis in the combined company. That portion of the
proxy statement, however, does not mention that GEPT insisted on being paid
$50 in cash for half of its IXC shares, in large part to accomplish a
divestment of what GEPT felt was too large of a position in IXC.
e. The proxy statement suggests that the IXC Board based its
approval of the Merger in part on a belief that Cincinnati Bell had high
quality and depth in its management. What the proxy statement fails to
disclose is that IXC's directors were told by the Company's due diligence team
that one risk of the Merger was the lack of depth in Cincinnati Bell's
management.
f. The proxy statement cites the "lack of alternatives to the merger
available to IXC and its stockholders and the lack of other possible
acquirers" as a factor considered by IXC's Board in approving the transaction.
Again, what the proxy statement fails to disclose is that not
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only did Morgan Stanley advise IXC that at the time of the Merger Agreement at
least two potential strategic partners preferable to Cincinnati Bell were
still available, but that the IXC Board refused to allow Morgan Stanley to
contact those entities.
g. The proxy statement identifies the following as price factors
considered by the IXC Board in approving the Merger: (i) the Morgan Stanley
and Merrill Lynch fairness opinions the Company received from Morgan Stanley
and Merrill Lynch, (ii) the "premium" that the exchange rate in the Merger
offers IXC stockholders above the market price of their shares prior to IXC's
announcement that it had hired Morgan Stanley "to pursue strategic
alternatives" and (iii) the expected trading price of IXC stock if
disappointing second quarter 1999 results were announced without the
concurrent announcement of the Merger. What the proxy statement fails to
disclose, however, is that:
(i) in the negotiations preceding the execution of the Merger
Agreement, IXC had requested that CINCINNATI BELL pay all
of the Company's stockholders the same cash price to be
received by GEPT;
(ii) in the same negotiations, IXC had sought a price of $100
per share for all of the Company's stockholders; and
(iii) following the announcement of the Merger and the expected
precipitous decline in CINCINNATI BELL's stock price, IXC
repeated its request that all its stockholders be paid the
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same cash price and that the price be raised to $100 per
share.
SUMMARY OF CLAIMS ASSERTED
40. The individual Defendants breached their fiduciary duties by
committing the Company to a merger with Cincinnati Bell that provides IXC
stockholders, other than GEPT, inferior value than that identified in
proposals received from at least two earlier bidders.
41. The proposed acquisition is unfair to members of the Class. The
consideration to be paid to IXC's public stockholders does not reflect the
full value of the Company's assets. For example, the proposed acquisition does
not take into account the Company's increased earnings potential resulting
from its planned 18,000 mile next-generation fiber network providing services
to telecommunications providers and internet service providers. The inadequacy
of the Merger price to be paid to the IXC stockholders is also demonstrated by
the higher offers that had earlier been reported in the investment community.
In addition, the guaranteed $50 cash per share price guaranteed to GEPT is
evidence that the remaining stockholders of IXC are receiving an inadequate
price for their stock. In fact, Richard Ellenberger, Cincinnati Bell's Chief
Executive Officer, tacitly conceded that an arm's length negotiator would not
accept the price currently offered to the IXC stockholders other than GEPT
when he disclosed that the purpose of Cincinnati Bell's according
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special treatment to GEPT was to insure that the transaction would go through.
To put it another way, GEPT insisted upon receiving $50 in cash to support the
Merger, while the other stockholders received an uncertain value in Cincinnati
Bell stock.
42. The stockholder vote on the Merger will be unfair to IXC's public
stockholders other than GEPT: First, while GEPT will be receiving a guaranteed
$50 per share for one-half of its common stock, it will be casting its 26%
position as a vote that would bind the remaining public stockholders to a
different, lower price, that GEPT itself was unwilling to accept. Second,
IXC's stockholders will base their voting decision on a materially misleading
proxy statement.
43. The individual Defendants have breached and are breaching their
fiduciary duties to Plaintiff and to the other members of the Class by
permitting Cincinnati Bell to attempt to purchase approval of the proposed
Merger from GEPT in exchange for preferential treatment and by approving on
IXC's behalf a Merger that will pay the public shareholders of IXC an
inadequate price, while providing for different and better consideration to
GEPT.
44. Cincinnati Bell and Ivory have aided and abetted the individual
Defendants' breaches of fiduciary duties. Cincinnati Bell and Ivory were each
aware that the price offered to the Company's public stockholders in the
Merger was inadequate, as illustrated by Cincinnati Bell and Ivory's
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agreement to pay GEPT a higher price than the public stockholders in order to
garner GEPT's vote to approve the Merger. Moreover, Cincinnati Bell and Ivory
insisted that IXC's directors "agree" to the unlawful termination fee, stock
option and no-talk provisions of the Merger Agreement.
45. Plaintiff and the other members of the Class will be irreparably
harmed unless the proposed transaction is enjoined. Absent injunctive relief,
the individual defendants -- aided and abetted by Cincinnati Bell and Ivory --
will continue to breach their fiduciary duties owed to Plaintiffs and the
members of the Class by, among other things, causing IXC to consummate a
merger with Cincinnati Bell that is unfair to IXC's public stockholders. In
addition, IXC will lose the opportunity to sell itself in transactions at
higher -- and fairly apportioned -- prices while potential bidders are
discouraged by the pending merger with Cincinnati Bell and the "no
solicitation" and termination provisions in the Merger Agreement.
46. Plaintiffs and the other members of the Class have no adequate remedy
at law.
WHEREFORE, Plaintiffs pray for judgment and relief as follows:
A. Ordering that this action may be maintained as a class action and
certifying Plaintiffs as the Class representatives;
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B. Declaring that Defendants have breached their fiduciary and other
duties to Plaintiffs and the other members of the Class;
C. Preliminarily and permanently enjoining the Defendants and their
counsel, agents, employees and all persons acting under, in concert with or
for them, from proceeding with the violations complained of above, by:
(i) preliminarily and permanently enjoining the proposed Merger;
(ii) preliminarily and permanently enjoining the IXC stockholder
vote on the Merger;
(iii) declaring the no-talk, stock option and termination fee
provisions of the Merger Agreement void and enjoining their
enforcement; and
(iv) declaring that IXC and its directors and shareholders have an
absolute right to receive, consider and accept any alternative
offers to the Merger.
D. Awarding compensatory and/or rescissory damages against Defendants
individually and severally in an amount to be determined at trial, together
with prejudgment interest at the maximum rate allowable by law;
E. Awarding costs and disbursements, including Plaintiffs' counsel's fees
and experts' fees; and
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F. Granting such other and further relief as to the Court may seem just
and proper.
ASHBY & GEDDES
------------------------------------
Stephen E. Jenkins
Richard D. Heins
Philip Trainer, Jr.
One Rodney Square
P.O. Box 1150
Wilmington, DE 19899
(302) 654-1888
Attorneys for Plaintiffs
Dated: October 13, 1999
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