EXHIBIT 99.3(d)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
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:
ALAN FRIEDMAN, :
:
Plaintiff, :
: Civil Action No.
- against - :
: CLASS ACTION COMPLAINT
ROBERT L. JOHNSON, JOHN C. MALONE, : 15924 NC
DENZEL WASHINGTON, DELANO E. :
LEWIS, SHELIA CRUMP JOHNSON, BET :
HOLDINGS, INC., and LIBERTY MEDIA :
CORPORATION, :
:
Defendants. :
:
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Plaintiff, by his attorneys, Rosenthal,
Monhait, Gross & Goddess, P.A., for his complaint
against defendants, alleges upon information and
belief, except for paragraph 2 hereof, which is alleged
upon knowledge, as follows:
1. Plaintiff brings this action pursuant to
Rule 23 of the Rules of the Court of Chancery on his
behalf and as a class action on behalf of all persons,
other than defendants and those in privity with them,
who own the common stock of BET Holdings, Inc., ("BET"
or the "Company").
2. Plaintiff has been the owner of the
common stock of the Company since prior to the
transaction herein complained of and continuously to
date.
3. BET is a corporation duly organized and
existing under the laws of the State of Delaware. The
Company is a holding company with subsidiaries that
operate a cable television network which offers Black
oriented programming, publish general lifestyle
magazines aimed at Black American teenagers and
participates in joint ventures that produce and
distribute, independent feature films, mini-series and
situation comedies.
4. Defendant Liberty Media Corporation
("Liberty") is the record owner of approximately 18.1
percent of the Company's outstanding common stock and
26.3 percent of the Company's outstanding voting
shares.
5. Defendant Robert L. Johnson ("Johnson")
is the Chairman and Chief Executive officer of BET and
currently owns or controls approximately 21.8 percent
of the Company's outstanding common shares and 65.7
percent of the Company's voting shares.
6. Defendants John C. Malone, Denzel
Washington, Delano E. Lewis, and Sheila Crump Johnson
are the Directors of BET and are selected by Liberty
and Johnson.
7. The individual defendants and Liberty by
reason of their corporate directorships, executive
positions and voting power, respectively, stand in a
fiduciary position relative to the Company's public
shareholders and owe the public shareholders of BET the
highest duties of good faith, fair dealing, due care,
loyalty, and candid disclosure.
CLASS ACTION ALLEGATIONS
8. Plaintiff brings this action on his own
behalf and as a class action, pursuant to Rule 23 of
the Rules of the Court of Chancery, on behalf of all
security holders of the Company (except the defendants
herein and any person, firm, trust, corporation, or
other entity related to or affiliated with any of the
defendants) and their successors in interest, who are
or will be threatened with injury arising from
defendants' actions as more fully described herein.
9. This action is properly maintainable as
a class action because:
(a) The class is so numerous that
joinder of all members is impracticable. As of June 9,
1997, there were approximately 10,013,755 shares of BET
common stock outstanding, of which approximately 71.4
percent are owned by holders other than defendants
Liberty and Johnson and/or directors and officers of
the Company.
10. There are questions of law and fact
which are common to the class including, inter alia,
the following: (a) whether defendants have breached
their fiduciary and other common law duties owed by
them to plaintiff and the members of the class; (b)
whether defendants are pursuing a scheme and course of
business designed to eliminate the public securities
holders of BET in violation of the laws of the State of
Delaware in order to enrich Liberty and Johnson at the
expense and to the detriment of the plaintiff and the
other public stockholders who are members of the class;
(c) whether the said proposed acquisition, hereinafter
described, constitutes a breach of the duty of fair
dealing with respect to the plaintiff and the other
members of the class; and (d) whether the class is
entitled to injunctive relief or damages as a result of
the wrongful conduct committed by defendants.
11. Plaintiff is committed to prosecuting
this action and has retained competent counsel
experienced in litigation of this nature. The claims
of the plaintiff are typical of the claims of other
members of the class and plaintiff has the same
interests as the other members of the class. Plaintiff
will fairly and adequately represent the class.
12. Defendants have acted in a manner which
affects plaintiff and all members of the class, thereby
making appropriate injunctive relief and/or
corresponding declaratory relief with respect to the
class as a whole.
13. 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, which would establish
incompatible standards of conduct for defendants, or
adjudications with respect to individual members of the
Class which would, as a practical matter, be
dispositive of the interests of other members or
substantially impair or impede their ability to protect
their interests.
SUBSTANTIVE ALLEGATIONS
14. On September 11, 1997, Liberty and
Johnson announced that they had offered to purchase all
of the outstanding common shares of BET which they did
not already own for $48.00 per share in cash.
15. The price of $48.00 per share to be paid
to the class members is unfair and inadequate because,
among other things: (a) the intrinsic value of the
stock of BET is materially in excess of $48.00 per
share, giving due consideration to the possibilities of
growth and profitability of BET in light of its
business, earnings and earnings power, present and
future; and (b) the $48.00 per share price is not the
result of arm's length negotiations but has been fixed
arbitrarily by Liberty and Johnson to "cap" the market
price of BET's stock, as part of a plan for Liberty and
Johnson to obtain complete ownership of BET's assets
and business at the lowest possible price.
16. The proposed bid serves no legitimate
business purpose of BET but rather is an attempt by
defendants to unfairly benefit Liberty and Johnson from
the transaction at the expense of BET's public
stockholders. The proposed plan will, for a grossly
inadequate consideration, deny plaintiff and the other
members of the class their right to share
proportionately in the future success of BET and its
valuable assets, while permitting Liberty and Johnson
to reap huge benefits from the transaction.
17. By reason of the foregoing acts,
practices and course of conduct, Liberty and Johnson
have breached and continue to breach their duties as
controlling stockholders of BET, and the individual
defendants have breached and will continue to breach
their duties as directors of BET and are engaging in
improper overreaching in attempting to carry out the
proposed transaction.
18. Plaintiff and the class have suffered
and will suffer irreparable damage unless defendants
are enjoined from breaching their fiduciary duties and
from carrying out the aforesaid plan and scheme. 16.
Plaintiff and the other members of the class have no
adequate remedy at law.
WHEREFORE, plaintiff demands judgment against
the defendants jointly and severally, as follows:
(1) declaring this action to be a class
action and certifying plaintiff as class
representative;
(2) enjoining, preliminarily and
permanently, Liberty and Johnson's offer for
acquisition of the BET stock owned by plaintiff and the
other members of the class under the terms presently
proposed;
(3) to the extent, if any, that the
transaction or transactions complained of are
consummated prior to the entry of this Court's final
judgment, rescinding such transaction or transactions,
or granting, inter alia, rescissory damages;
(4) directing that defendants pay to
plaintiff and the other members of the class all
damages caused to them and account for all profits and
any special benefits obtained as a result of their
unlawful conduct;
(5) awarding the plaintiff the costs and
disbursements of this action, including a reasonable
allowance for the fees and expenses of plaintiff's
attorneys and experts, and
(6) granting plaintiff and the other members
of the class such other and further relief as may be
just and proper.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By:________________________________
P.O. Box 1070
919 N. Market Street
Suite 1401
Mellon Bank Center
Wilmington, Delaware 19801
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
BERNSTEIN LIEBHARD & LIFSHITZ
274 Madison Avenue
New York, NY 10016
(212) 779-1414