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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] CONFIDENTIAL, FOR USE OF THE COMMISSION ONLY (AS PERMITTED BY
RULE 14a-6(e)(2))
[ ] Definitive Proxy Statement
[X] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-12
BUTLER MANUFACTURING COMPANY
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
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pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
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2) Form, Schedule or Registration Statement No.:
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PERSONS WHO POTENTIALLY ARE TO RESPOND TO THE COLLECTION OF INFORMATION
CONTAINED IN THIS FORM ARE NOT REQUIRED TO RESPOND UNLESS THE FORM DISPLAYS A
CURRENTLY VALID OMB CONTROL NUMBER.
SEC 1913 (02-02)
On April 21, 2004, Butler Manufacturing Company, a Delaware corporation
("Butler"), received from plaintiff's counsel a copy of a complaint in the
matter of Bazemore v. Butler Manufacturing Company, et. al., 2004 C.A. No. 390-N
(Del. Ch. 2004). Butler believes that this matter is without merit and will not
impede or interfere with its merger with BlueScope Steel Limited. Butler intends
to vigorously oppose the matter. A copy of the complaint is attached hereto as
Exhibit A.
EFILED: APR 16 2004 4:49 PM EDT (SEAL)
FILING ID 3437268
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
----------------------------------------x
LARRY BAZEMORE,
Plaintiff,
v. C.A. No.
BUTLER MANUFACTURING COMPANY,
BLUESCOPE STEEL LIMITED, BSL
ACQUISITION CORPORATION, MARK A.
MCCOLLUM, GARY L. TAPELLA, WILLIAM
D. ZOLLAR, K. DANE BROOKSHER, SUSAN
F. DAVIS, RONALD E. RUTLEDGE, GARY
M. CHRISTENSEN, C.L. WILLIAM HAW and
JOHN J. HOLLAND,
Defendants.
----------------------------------------x
COMPLAINT
Plaintiff alleges upon information and belief, except as to paragraph 1
which is alleged upon personal knowledge, as follows:
THE PARTIES
1. Plaintiff is the owner of shares of the common stock of Butler
Manufacturing Company ("Butler" or the "Company") and has been the owner of such
shares continuously since prior to the wrongs complained of herein.
2. Butler is a corporation duly organized under the laws of the State
of Delaware, with its principal executive offices located at 1540 Genessee,
Kansas City, MO 64102. Butler designs, produces and markets buildings systems
and components for non-residential structures. Butler is a publicly traded
company and its stock is listed and actively traded on the New York
Exchange.
3. Defendant BlueScope Steel Limited ("BlueScope") is a corporation
organized under the laws of Australia. BlueScope is the largest steel company in
Australia and New Zealand.
4. Defendant BSL Acquisition Corporation ("BSL"), is a Delaware
corporation and a wholly-owned subsidiary of BlueScope. BSL was created for the
purpose of effectuating the proposed acquisition of Butler by BlueScope
described herein. References to BlueScope include BSL.
5. Butler's Board of Directors consists of nine directors, with
staggered terms of 3 years each.
6. Defendant John J. Holland ("Holland") is Chairman of the Board of
Directors of Butler and its Chief Executive Officer.
7. Defendant Ronald E. Rutledge ("Rutledge") is the President, Chief
Operating Officer, and a director of Butler.
8. Defendants Mark A. McCollum, Gary L. Tapella, William D. Zollar, K.
Dane Brooksher, Gary M. Christensen, C.L. William Haw, and Susan Davis are
directors of Butler.
9. The Individual Defendants are in a fiduciary relationship with
plaintiff and the other public stockholders of Butler, and owe them the highest
obligations of good faith, fair dealing, due care, loyalty and full and candid
disclosure.
10. Robertson-Ceco Corporation ("RCC"), not a defendant herein, is a
Delaware Corporation based in Chicago, Illinois.
2
CLASS ACTION ALLEGATIONS
11. Plaintiff brings this action on his own behalf and as a class action,
pursuant to Court of Chancery Rule 23, on behalf of himself and the public
shareholders of Butler (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.
12. This action is properly maintainable as a class action.
13. The Class is so numerous that joinder of all members is
impracticable. There are approximately 6.33 million shares of Butler common
stock outstanding held by approximately 1,966 record holders and many more
beneficial owners.
14. There are questions of law and fact which are common to the Class
including, inter alia, the following:
(a) Whether the Individual Defendants have breached their fiduciary
and other common law duties owed by them to plaintiff and the other members
of the Class; and
(b) Whether plaintiff and the other members of the Class would be
irreparably damaged if the BlueScope Merger Agreement (described below) is
consummated.
15. 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.
16. The prosecution of separate actions by individual members of the
Class would create the risk of inconsistent or varying adjudications with
respect to individual members of the
3
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 the other members not
parties to the adjudications or substantially impair or impede their ability to
protect their interests.
17. Defendants have acted, or refused to act, on grounds generally
applicable to, and causing injury to, the Class and, therefore, preliminary
and final injunctive relief on behalf of the Class as a whole is entirely
appropriate.
SUBSTANTIVE ALLEGATIONS
18. On December 12, 2003, BlueScope proposed to acquire Butler in an all
cash merger for between $23.00-$26.00 per share.
19. On December 14, 2003, the "indicative" price was increased to $25.00
per share in exchange for extending the exclusivity agreement between BlueScope
and Butler through the end of January 2004.
20. On February 15, 2004, Butler entered into a Merger Agreement with
BlueScope, pursuant to which BlueScope would acquire all of the issued and
outstanding stock of Butler at a price of $22.50 per share in cash. The reason
for the decrease in the price per share from $25 to $22.50 has not been
disclosed.
21. On April 14, 2004, RCC publicly announced that it had offered to
purchase the outstanding shares of Butler for $23.00 per share in cash -- $0.50
more per share (and over $3 million in the aggregate) than the BlueScope deal --
or $26.00 per share in a stock transaction (the "RCC Offer"). The RCC Offer was
communicated to Butler by a letter dated April 13, 2004.
4
22. Butler's own financial advisors have calculated a valuation range of
$18.46 to $33.64 for Butler shares using a discounted cash flow analysis.
23. RCC stated in a Form 425B filed with the SEC on April 14, 2004 "RCC is
ready to immediately negotiate and sign a definitive merger agreement for the
transaction without contingencies."
24. On April 15, 2004, Butler announced that it had rejected the RCC Offer
because the RCC offer was "too vague and uncertain for the [Butler] Board to
conclude that it represents a Superior Proposal" (under the "fiduciary out"
provisions of the BlueScope Merger Agreement). RCC immediately responded in a
letter resolving any purported doubt about its ability to finance its Offer.
25. Butler shareholders will vote on the BlueScope merger agreement on
April 27, 2004.
26. The BlueScope Merger Agreement provides for onerous termination fee
and expense obligations which Butler will have to pay BlueScope if the Merger
Agreement terminates. Specifically, the Merger Agreement provides for a
termination fee of $5.5 million and expenses of up to $1.5 million payable to
BlueScope. The aggregate $7 million obligation represents 4.9% of the total
equity of the challenged transaction.
27. Clearly, the RCC Offer will provide the Butler stockholders with more
value than will the BlueScope Merger Agreement. Nonetheless, the Individual
Defendants have rejected the RCC Offer, nor have they sought to negotiate with
RCC to improve its offer. By failing to do so, they have failed to exercise
their continuing fiduciary duty to maximize value in a sale of the Company and
failed to inform themselves of Butler's highest transactional value.
5
28. In connection with the BlueScope Merger Agreement, defendants Holland
and Rutlege entered into non-compete agreements with BlueScope. Under the
agreements, Holland and Rutledge will receive "cancellation payments" and
restrictive covenant payments in the following amounts:
Restrictive
Cancellation Covenant
Payment Payment
------------ -----------
John J. Holland $431,878 $1,200,000
Ronald E. Rutledge 525,302 740,000
29. In addition, the stock options of defendants Holland and Rutledge will
become fully vested, entitling them to aggregate cash payments of $62,250 and
$49,800 respectively. Defendants Holland and Rutledge will also receive cash
payments under the Company's split dollar life insurance arrangements in the
amounts of $420,000 and $126,000 respectively.
30. By reason of the foregoing, the Individual Defendants have breached
and are breaching their fiduciary duties to the members of the Class. They have
not adequately informed themselves about Butler's highest available
transactional value, and did not conduct an effective bidding process which
would result in maximum value for the shareholders. In fact, whatever "process"
defendants employed was flawed insofar as it resulted in the BlueScope Merger
which is inferior to the RCC Offer.
31. Because Butler is being sold, the Individual Defendants were and are
under a duty:
(a) to fully inform themselves of Butler's highest transactional
value and all strategic alternatives for the Company; and
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(d) to maximize shareholder value;
32. By the acts, transactions and course of conduct alleged herein,
the Individual Defendants, individually and as part of a common plan and scheme
and in breach of their fiduciary duties to Plaintiff and the other members of
the Class, are attempting unfairly to deprive plaintiff and other members of the
Class of the highest available value for their investment in Butler.
33. Unless enjoined by this Court, the Individual Defendants will
continue to breach their fiduciary duties owed to Plaintiff and the other
members of the Class, and may consummate the BlueScope Merger Agreement and
cause irreparable harm of the Class.
34. Defendant BlueScope has knowingly aided and abetted the breaches
of fiduciary duty committed by the Individual Defendants to the detriment of
Butler's public shareholders. Indeed, the proposed merger could not take place
without the active participation of BlueScope. Furthermore, BlueScope and its
shareholders are the intended beneficiaries of the wrongs complained of and
would be unjustly enriched absent relief in this action.
35. Plaintiff and the Class have no adequate remedy at law.
WHEREFORE, Plaintiff prays for judgement and relief as follows:
A. Ordering that this action may be maintained as a class action and
certifying plaintiff as the Class representative;
B. Entering a temporary restraining order and preliminarily and
permanently enjoining defendants and all persons acting in concert with them,
from proceeding with, consummating or closing the BlueScope Merger Agreement;
C. In the event the BlueScope Merger Agreement is consummated,
rescinding it and
7
setting it aside or awarding rescissory damages to the Class;
D. Directing defendants to account to Class members for their damages
sustained as a result of the wrongs complained of herein;
E. Awarding plaintiff the costs of this action, including a reasonable
allowance for plaintiff's attorneys' and experts' fees; and
H. Granting such other and further relief as this Court may deem just and
proper.
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
By: /s/ JOSEPH A. ROSENTHAL
--------------------------------------
Joseph A. Rosenthal (DSBA No. 234)
919 North Market Street, Suite 1401
P.O. Box 1070
Wilmington, Delaware 19899-1070
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
CAULEY GELLER BOWMAN & RUDMAN, LLP
197 South Federal Highway, Suite 200
Boca Raton, FL 33432
(561) 750-3000
PETER H. RACHMAN, P.A.
197 South Federal Highway, Suite 300
Boca Raton, FL 33432
(561) 886-3078
8
EFILED: APR 19 2004 11:08 AM EDT
FILING ID 3440283
[SEAL]
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
LARRY BAZEMORE,
Plaintiff,
v. C.A. No. 390-N
BUTLER MANUFACTURING COMPANY,
BLUESCOPE STEEL LIMITED, BSL
ACQUISITON CORPORATION, MARK A.
McCOLLUM, GARY L. TAPELLA, WILLIAM
D. ZOLLAR, K. DANE BROOKSHER, SUSAN
F. DAVIS, RONALD E. RUTLEDGE, GARY
M. CHRISTENSEN, C.L. WILLIAM HAW and
JOHN J. HOLLAND,
Defendants.
MOTION FOR APPOINTMENT
OF SPECIAL PROCESS SERVERS
Plaintiffs move pursuant to Court of Chancery Rule 4(c) for entry of
the Order annexed hereto providing for the appointment of special process
servers to serve the Summons and Complaint upon defendants.
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ JOSEPH A. ROSENTHAL
-------------------------------
Joseph A. Rosenthal(Bar No. 234)
919 Market Street, Suite 1401
P.O. Box 1070
Wilmington, DE 19899-1070
Attorneys for Plaintiff
EFILED: APR 19 2004 11:08 AM EDT
FILING ID 3440283 [SEAL]
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
LARRY BAZEMORE,
Plaintiff,
v. C.A. No. 390-N
BUTLER MANUFACTURING COMPANY,
BLUESCOPE STEEL LIMITED, BSL
ACQUISITION CORPORATION, MARK A.
MCCOLLUM, GARY L. TAPELLA, WILLIAM
D. ZOLLAR, K. DANE BROOKSHER, SUSAN
F. DAVIS, RONALD E. RUTLEDGE, GARY
M. CHRISTENSEN, C.L. WILLIAM HAW AND
JOHN J. HOLLAND,
Defendants.
ORDER
This __ day of ________________, 2004, plaintiff having moved for an
Order appointing special process servers, IT IS ORDERED THAT:
(1) Donna Sianni and Tri-State Courier & Carriage, Inc. are hereby
appointed special process servers to serve Butler Manufacturing Company
("Butler") and the individual defendants at the registered agent of Butler which
is The Corporation Trust Company, 1209 Orange Street, Wilmington, DE 19801.
(2) Tri-State Courier & Carriage, Inc. is hereby appointed special
process server to serve BSL Acquisition Corporation at its registered agent
which is The Corporation Trust Company, 1209 Orange Street, Wilmington, DE
19801.
(3) The Register in Chancery is directed to issue the Summons
forthwith.
(4) The special process servers shall serve a copy of the Summons
and Complaint as directed above and, after such service, shall make prompt
return of service to this Court.
-----------------------------------
Master
EFILED APR 16 2004 4:49 PM EDT
FILING ID 3437268 (SEAL)
SUPPLEMENTAL INFORMATION PURSUANT TO RULE 3(A)
OF THE RULES OF THE COURT OF CHANCERY
The information contained herein is for the use by the Court for
statistical and administrative purposes only. Nothing stated herein shall be
deemed an admission by or binding upon any person.
1. Caption of Case: LARRY BAZEMORE V. BUTLER MANUFACTURING COMPANY, BLUESCOPE
STEEL LIMITED, BSL ACQUISITION CORPORATION, MARK A. MCCOLLUM, GARY L.
TAPELLA, WILLIAM D. ZOLLAR, K. DANE BROOKSHER, SUSAN F. DAVIS, RONALD E.
RUTLEDGE, GARY M. CHRISTENSEN, C.L. WILLIAM HAW AND JOHN J. HOLLAND
2. Date filed: APRIL 16, 2004
3. Name and address of counsel for plaintiff(s):
JOSEPH A. ROSENTHAL (DSBA NO. 234)
ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.
919 MARKET STREET, SUITE 1401
P.O. BOX 1070
WILMINGTON, DE 19899
4. Short statement of nature of claim asserted: BREACH OF FIDUCIARY DUTIES.
5. Substantive field of law involved (check one):
_ Administrative law _ Trade secrets/trade mark/
_ Commercial law or other intellectual
_ Constitutional law property
X Corporation law _ Trusts
_ Guardianships _ Wills and Estates
_ Labor law _ Zoning
_ Real property _ Other
6. Related cases: NONE
7. Basis of court's jurisdiction (including the citation of any statute
conferring jurisdiction):
10 DEL.C. SECTION 341
8. If the complaint seeks preliminary equitable relief, state the specific
preliminary relief sought: PRELIMINARY INJUNCTION
9. If the complaint seeks summary or expedited proceedings, check here __.
/s/ (ILLEGIBLE) (DSBA NO. 234)
-------------------------------
Signature of Attorney of Record