Exhibit 99.2
DISTRICT COURT, COUNTY OF BOULDER, COLORADO
Case No. 99CV1057 Div. 3
______________________________________________________________________________
SUMMONS
______________________________________________________________________________
FREDERICK MYERS, on Behalf of Himself and All Others Similarly Situated,
Plaintiff,
v.
CORPORATE EXPRESS, INC., JAMES P. ARGYROPOULOS, MARTIN E. FRANKLIN, JANET A.
HICKEY, ROBERT L. KING, JIRKA RYSAVY, MO SIEGEL AND JEFFREY J. STEINER,
Defendants.
______________________________________________________________________________
THE PEOPLE OF THE STATE OF COLORADO
TO THE ABOVE NAMED DEFENDANT CORPORATE EXPRESS, INC.:
You are hereby summoned and required to file with the clerk of this court
an answer or other response to the attached complaint. If service of the
summons and complaint was made upon you within the State of Colorado, you are
required to file your answer or other response within 20 days after such service
upon you. If service of the summons and complaint was made upon you outside of
the State of Colorado, you are required to file your answer or other response
within 30 days after such service upon you.
If you fail to file your answer or other response to the complaint in
writing within the applicable time period, judgment by default may be entered
against you by the court for the relief demanded in the complaint without
further notice.
The following documents are also served herewith: Class Action Complaint
and Jury Demand.
Dated: July 14, 1999. DYER DONNELLY
/s/ Robert J. Dyer III
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ROBERT J. DYER III (#5734)
JEFFREY A. BERENS (#28007)
801 East 17/th/ Avenue
Denver, CO 80218-1417
Telephone: 303/861-3003
THIS SUMMONS IS ISSUED PURSUANT TO C.R.C.P. 4.
DISTRICT COURT, COUNTY OF BOULDER, COLORADO
Case No. 99CV1057 Div. 3
______________________________________________________________________________
CLASS ACTION COMPLAINT AND JURY DEMAND
______________________________________________________________________________
FREDERICK MYERS, on Behalf of Himself and All Others Similarly Situated,
Plaintiff,
v.
CORPORATE EXPRESS, INC., JAMES P. ARGYROPOULOS, MARTIN E. FRANKLIN, JANET A.
HICKEY, ROBERT L. KING, JIRKA RYSAVY, MO SIEGEL AND JEFFREY J. STEINER,
Defendants.
______________________________________________________________________________
Plaintiff, for his complaint, alleges as follows:
THE PARTIES
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1. Plaintiff Frederick Myers ("plaintiff") is the owner of common
stock of Corporate Express, Inc. ("Corporate Express" or the "Company") and has
been the owner of such shares continuously since prior to the wrongs complained
of herein.
2. Defendant Corporate Express is a corporation duly existing and
organized under the laws of the State of Colorado, with its principal executive
offices located at 1 Environmental Way, Broomfield, Colorado. The Company
provides goods and services to corporations and organizations. The Company's
goods and services include office supplies, paper, computer and imaging
supplies, computer desktop software, office furniture, and janitorial and
cleaning supplies. Corporate Express is and at all times relevant hereto has
been listed on the NASDAQ Exchange.
3. Defendant Jirka Rysavy ("Rysavy") is and at all times relevant
hereto has been Chairman Emeritus of the Board of Directors of Corporate
Express. Mr. Rysavy founded the Company in 1986 and served as Chief Executive
Officer until September 1998 and Chairman until January 1999.
4. Defendant Robert L. King ("King") is and at all times relevant
hereto has been President, Chief Executive Office and a Director of Corporate
Express.
5. Defendants James P. Argyropoulos, Martin E. Franklin, Janet A.
Hickey, Mo Siegel and Jeffrey J. Steiner are and were, at all times relevant
hereto, directors of Corporate Express.
6. The defendants referred to in paragraphs 3-5 are collectively
referred to herein as the "Individual Defendants."
7. By reason of the above Individual Defendants' positions with the
Company as officers and/or directors, said individuals are in a fiduciary
relationship with plaintiff and the other public stockholders of Corporate
Express, and owe plaintiff and the other members of the class the highest
obligations of good faith, fair dealing, due care, loyalty and full, candid and
adequate disclosure.
CLASS ACTION ALLEGATIONS
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8. Plaintiff brings this action on his own behalf and as a class
action, pursuant to Rule 23 of the Colorado Rules of Civil Procedure, on behalf
of himself and holders of Corporate Express common stock (the "Class").
Excluded from the Class are defendants herein and any person, firm, trust,
corporation or other entity related to or affiliated with any of the defendants.
9. The action is properly maintainable as a class action for the
following reasons:
(a) The Class is so numerous that joinder of all members is
impracticable. There are thousands of Corporate Express shareholders who are
located throughout the United States. As of June 9, 1999, there were over 104
million shares of Corporate Express common stock outstanding.
(b) There are questions of law and fact which are common to the
Class and which predominate over questions affecting any individual Class
member. The common questions include, inter alia, the following:
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(i) whether the merger is grossly unfair to the Class;
(ii) whether plaintiff and the other members of the Class
would be irreparably damaged were the transaction complained of herein
consummated; and
(iii) whether defendants have breached their fiduciary and
other common law duties owed by them to plaintiff and the other members of the
Class.
(c) Plaintiff is committed to prosecuting this action and has
retained competent counsel experienced in litigation of this nature. Plaintiff's
claims are typical of the claims of the other members of the Class and plaintiff
has the same interests as the other members of the Class. Accordingly, plaintiff
is an adequate representative of the Class and will fairly and adequately
protect the interests of the Class.
(d) Plaintiff anticipates that there will be no difficulty in the
management of this litigation.
(e) Defendants have acted on grounds generally applicable to the
Class with respect to the matters complained of herein, thereby making
appropriate the relief sought herein with respect to the Class as a whole.
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10. For the reasons stated herein, a class action is superior to
other available methods for the fair and efficient adjudication of this
controversy and the class action requirements are satisfied.
SUBSTANTIVE ALLEGATIONS
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11. On June 2, 1999, Corporate Express issued a press release wherein
it announced first quarter 1999 results. President and CEO King stated:
"We are pleased with Corporate Express' first quarter results,
which showed a significant improvement versus the previous quarter and
reflected the initial benefits of the restructuring efforts that we
began in the fourth quarter of last year," said Robert King, President
and CEO. "The company generated solid EBITDA of $59 million and
significantly improved its operating margin versus the previous
quarter, despite some additional restructuring-related activity. We
remain very focused on increasing our top-line growth, and we have
implemented aggressive sales initiatives, which are expected to
increase revenue growth in the latter half of 1999."
* * *
"Our Internet business continued to grow significantly in the
first quarter. Corporate Express' April 1999 annualized sales through
E-Way, our proprietary Internet ordering system, were almost $100
million, compared with annualized sales of just $22 million in April
1998," added King. "We are focused on leveraging our e-commerce
growth and capabilities, and we expect E-Way sales to be in the range
of $150 million to $200 million in fiscal 1999."
12. On July 13, 1999, Buhrmann, NV ("Burhrmann") announced that it
had entered into a definitive merger agreement (the "Merger Agreement") with
Corporate Express in which Buhrmann will acquire all of the approximately 104
million outstanding shares of Corporate Express for $9.70 per share, a very
modest 13% premium. According to the Merger Agreement, Buhrmann will refinance
approximately $1.2 billion of Corporate Express debt. As part of the financing,
Buhrmann will also sell $350 - $400 million in convertible preferred shares to
Apollo Management L.P. and Bain Capital, Inc.
13. As a result of the transaction, Corporate Express will become a
wholly owned subsidiary of Buhrmann.
14. Pursuant to the terms of the proposed Merger Agreement, King will
be named President and CEO of the combined North American business group. The
new entity will also have an executive committee comprised primarily of officers
of Corporate Express.
15. In addition, the proposed Merger Agreement calls for currently
unknown adjustments to the cash offer price of $9.70 per share and under certain
conditions the offer price may be adjusted downward. The "adjustments" depend
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on actual proceeds received by Corporate Express from the sale of certain
businesses and assets.
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16. The merger consideration to be paid to the Class members is
unfair and grossly inadequate - and may be reduced even further. While the
transaction holds little value for the Class members, the combined entity (in
which Corporate Express management will play a significant part) expects to
realize substantial benefits as a result of the merger. In a July 13, 1999
release, Buhrmann summarized just a few of these benefits:
. Synergies all expected to exceed $100 million annually, much of
which will be realized in year 2000.
. The transaction will significantly enhance earnings beginning in
year 2000.
. The transaction will create "the world's premier office products
distributor in the business-to-business market, and we expect
that it will create significant value for our [Buhrmann]
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shareholders."
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17. The merger consideration to be paid to Class members did not
result from an appropriate consideration of the value of Corporate Express. The
Individual Defendants made no or little attempt to sufficiently ascertain the
true value of Corporate Express. Indeed, the purchase price contained in the
Merger Agreement does not represent the true value of Corporate Express's assets
and future prospects and, as a result, undervalues each share of Corporate
Express.
18. The Individual Defendants have failed to undertake an appropriate
evaluation of Corporate Express's true value and worth as a merger/acquisition
candidate, using the sale of Corporate Express to aggrandize their own financial
positions at the expense of Corporate Express's public shareholders. Thus, the
Individual Defendants have made no or little effort to maximize shareholder
value and have, instead, agreed to the merger which will only serve to inhibit
the maximization of shareholder value.
19. The Individual Defendants were and are under a duty:
(a) to fully inform themselves of the market value of Corporate
Express as a merger/acquisition candidate before taking, or agreeing to refrain
from taking, action;
(b) to take all appropriate steps to enhance Corporate Express's
value and attractiveness as a merger/acquisition candidate;
(c) to take all appropriate steps to effectively expose Corporate
Express to the marketplace, including but not limited to engaging in further
negotiations with Corporate Express and all other interested parties;
(d) to act independently so that the interests of the equity
owners are protected;
(e) to maximize shareholder value;
(f) to obtain the best financial and other terms when the
Company's independent existence will be materially altered by a transaction;
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(g) to act in accordance with their fundamental duties of due
care and loyalty; and
(h) to adequately ensure that no conflicts of interest exist
between the Individual Defendants' own interests and their fiduciary obligations
to maximize shareholder value or, if such conflicts exist, to ensure that all
conflicts be resolved in the best interests of the shareholders of Corporate
Express.
COUNT I - - BREACH OF FIDUCIARY DUTY
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20. By the acts, transactions and courses of conduct alleged herein,
defendants, individually and/or as part of a common plan and in breach of their
fiduciary duties to plaintiff and the other members of the Class, are attempting
to unfairly deprive plaintiff and other members of the Class of the true value
of their investment in Corporate Express.
21. Corporate Express shareholders will, if the transaction is
consummated, be deprived of the opportunity for substantial gains which the
Company may realize.
22. By reason of the foregoing acts, practices and course of conduct,
the defendants have failed to exercise ordinary care and diligence in the
exercise of their fiduciary obligations toward plaintiff and the other Corporate
Express public stockholders.
23. As a result of the actions of defendants, plaintiff and the other
members of the Class have been and will be damaged in that they have not and
will not receive their fair proportion of the value of the Company's assets and
businesses and will be prevented from obtaining appropriate consideration for
their shares of Corporate Express common stock.
24. Unless enjoined by this Court, defendants will continue to breach
their fiduciary duties owed to plaintiff and the other members of the Class, and
may consummate the proposed transaction which will exclude the Class from its
fair proportionate share of the Company's valuable assets and businesses, and/or
benefit defendants in the unfair manner complained of herein, all to the
irreparable harm of the Class, as aforesaid.
25. Plaintiff and the Class have no adequate remedy at law.
PRAYER FOR RELIEF
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WHEREFORE, plaintiff demands judgment and preliminary and permanent
relief, including injunctive relief, in his favor and in favor of the Class and
against defendants as follows:
A. Declaring that this action is properly maintainable as a class
action;
B. Declaring and decreeing that the merger agreement was entered
into in breach of the fiduciary duties of the Individual Defendants and is
therefore unlawful and unenforceable;
C. Enjoining defendants from proceeding with the merger agreement;
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D. Enjoining defendants from consummating the merger, or a business
combination with a third party, unless and until the Company adopts and
implements a procedure or process, such as an auction, to obtain the highest
possible price for the Company;
E. Directing the Individual Defendants to exercise their fiduciary
duties to obtain a transaction which is in the best interests of shareholders
until the process for the sale or auction of the Company is completed and the
highest possible price is obtained;
F. Rescinding, to the extent already implemented, the merger
agreement or any of the terms thereof;
G. Awarding plaintiff and the Class appropriate damages;
H. Awarding plaintiff the costs and disbursements of this action,
including reasonable attorneys' and experts' fees; and
I. Granting such other and further relief as this Court may deem
just and proper.
JURY DEMAND
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Plaintiff demands a trial by jury.
DATED this 13th day of July, 1999.
DYER DONNELLY
/s/ Robert J. Dyer, III
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ROBERT J. DYER III #5734
JEFFREY A. BERENS #28007
801 East 17/th/ Avenue
Denver, CO 80218
Telephone: 303/861-3003
SCHIFFRIN & BARROWAY, LLP
MARC A. TOPAZ
STUART L. BERMAN
Three Bala Plaza East, Suite 400
Bala Cynwyd, PA 19004
Telephone: 610/667-7706
MILBERG WEISS BERSHAD HYNES & LERACH LLP
WILLIAM S. LERACH
DARREN J. ROBBINS
WILLIAM J. DOYLE II
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/231-1058
Attorneys for Plaintiff
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Plaintiff's Address:
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402 Highway Avenue
Riverton, NJ 08077
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