-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MgrUFyoCEhqjEIuAF5kVhF9rl/dOMd/3oSb+UrVeOFYFBgpmJpyvTcoHHWhnJSb/ yBP8HUvPb1E9VQ/S5YhiKg== 0001036050-99-001483.txt : 19990716 0001036050-99-001483.hdr.sgml : 19990716 ACCESSION NUMBER: 0001036050-99-001483 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19990713 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990715 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CORPORATE EXPRESS INC CENTRAL INDEX KEY: 0000878130 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CATALOG & MAIL-ORDER HOUSES [5961] IRS NUMBER: 840978360 STATE OF INCORPORATION: CO FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-24642 FILM NUMBER: 99665353 BUSINESS ADDRESS: STREET 1: 1 ENVIRONMENTAL WAY CITY: BROOMFIELD STATE: CO ZIP: 80021 BUSINESS PHONE: 3033732800 MAIL ADDRESS: STREET 1: 1 ENVIRONMENTAL WAY CITY: BROOMFIELD STATE: CO ZIP: 80021 8-K 1 FORM 8-K Securities and Exchange Commission Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): July 13, 1999 CORPORATE EXPRESS, INC. (Exact name of registrant as specified in its charter)
Colorado 0-24642 84-0978360 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.)
1 Environmental Way Broomfield, Colorado 80021-3416 (Address of principal executive offices) (Zip Code) (303) 664-2000 (Registrant's telephone number, including area code) Not Applicable (Former name or former address, if changed since last report) Item 5. OTHER EVENTS On July 14, 1999, the Registrant was served with two summonses, each attaching a complaint naming the Registrant and its entire board of directors as defendants (one suit also named Buhrmann NV as a defendant). Copies of the summons and complaint for each suit are attached to this Form 8-K as Exhibits 99.1 and 99.2, respectively. Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS (c) Exhibits 99.1 Summons and Class Action Complaint and Demand for Jury Trial each dated July 13, 1999 and filed by Pinchus Shelesinger, as plaintiff, against Corporate Express, Inc. and the other defendants named therein. 99.2 Summons, dated July 14, 1999, and Class Action Complaint and Jury Demand, dated July 13, 1999, filed by Frederick Myers, as plaintiff, against Corporate Express, Inc. and the other defendants named therein. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. CORPORATE EXPRESS, INC. (Registrant) /s/ Gary M. Jacobs ------------------------------------------ Date: July 15, 1999 By: Gary M. Jacobs Title: Executive Vice President and Chief Financial Officer EX-99.1 2 SUMMONS AND COMPLAINT Exhibit 99.1 DISTRICT COURT, ARAPAHOE COUNTY, STATE OF COLORADO CASE NO. 99 CV 2248 ================================================================================ SUMMONS ================================================================================ PINCHUS SHLESINGER, Plaintiff, v. JIRKA RYSAVY, ROBERT L. KING, JAMES P. ARGYROPOULOS, MARTIN E. FRANKLIN, JANET A. HICKEY, MO SIEGEL, JEFFREY J. STEINER, CORPORATE EXPRESS, INC., and BUHRMANN NV, Defendants. ================================================================================ THE PEOPLE OF THE STATE OF COLORADO TO THE DEFENDANTS NAMED ABOVE: CORPORATE EXPRESS, INC. You are summoned and required to file with the Clerk of this Court an answer or other response to the attached Complaint within twenty (20) days after this Summons is served on you in the State of Colorado, or within thirty (30) days after this Summons is served on you outside the State of Colorado. 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 any further notice to you. The following documents are also served with this Summons: Complaint. DATED: July 13, 1999 BADER & ASSOCIATES, P.C. /s/ Gerald L. Bader, Jr. ----------------------------------------- Gerald L. Bader, Jr., No. 3625 1660 Wynkoop Street, Suite 1100 Denver, Colorado 80202-1160 Telephone: (303) 534-1700 Telecopier: (303) 534-0725 ATTORNEYS FOR PLAINTIFF This Summons is issued pursuant to Rule 4, C.R.C.P., as amended. A copy of the Complaint must be served with this Summons. DISTRICT COURT, ARAPAHOE COUNTY, STATE OF COLORADO CASE NO. 99 CV 2248 ================================================================================ CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL ================================================================================ PINCHUS SHLESINGER, Plaintiff, v. JIRKA RYSAVY, ROBERT L. KING, JAMES P. ARGYROPOULOS, MARTIN E. FRANKLIN, JANET A. HICKEY, MO SIEGEL, JEFFREY J. STEINER, CORPORATE EXPRESS, INC., and BUHRMANN NV, Defendants. ================================================================================ Plaintiff alleges upon information and belief, except for paragraph 1 hereof, which is alleged upon knowledge, as follows: 1. Plaintiff Pinchus Shlesinger has been the owner of the common stock of Corporate Express, Inc. ("Corporate Express" or the "Company") since prior to the transaction herein complained of and continuously to date. 2. Corporate Express is a corporation duly organized and existing under the laws of the State of Colorado. The Company provides office products and other non-production goods and related services to corporations and organizations. Corporate Express maintains its principal executive offices at One Environmental Way, Broomfield, Colorado. 3. Defendant Buhrmann NV ("Buhrmann"), a Dutch corporation, is the third largest supplier of office products in Europe and the fifth largest in the United States. 4. Defendant Jirka Rysavy is Chairman Emeritus of the Company. He is also the founder of Corporate Express and served as Chairman and Chief Executive Officer until September 1998. 5. Defendant Robert L. King is President and Chief Executive Officer and Director of the Company. 6. Defendants James P. Argyropoulos, Martin E. Franklin, Janet A. Hickey, Mo Siegel, and Jeffrey J. Steiner are Directors of Corporate Express. 7. The individuals named as defendants in paragraph 4 through 6 (the "Individual Defendants") are in a fiduciary relationship with Plaintiff and the other public stockholders of Corporate Express and owe them the highest obligations of good faith and fair dealing. CLASS ACTION ALLEGATIONS ------------------------ 8. Plaintiff brings this action on his own behalf and as a class action, pursuant to C.R.C.P. 23, on behalf of all common stockholders 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 May 14, 1999, there were approximately 104,551,371 shares of Corporate Express common stock outstanding owned by hundreds, if not thousands, of record and beneficial holders; 2 b. There are questions of law and fact which are common to the class including, inter alia, the following: (i) whether defendants have breached ----- ---- their fiduciary and other common law duties owed by them to plaintiff and the members of the class; and (ii) whether the class is entitled to injunctive relief or damages as a result of the wrongful conduct committed by defendants. c. 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. d. Defendants have acted in a manner which affects plaintiff and all members of the class alike, thereby making appropriate injunctive relief and/or corresponding declaratory relief with respect to the class as a whole. 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, 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 ----------------------- 10. Corporate Express's recent operating results have been exceptional. The Company's EBITDA surged in the first quarter of fiscal 1999 to $59 million from $38 million in the fourth quarter of 1999. Additionally, sales through E-Way, the Company's proprietary Internet ordering system, have grown significantly, rising from $22 million in April 1998 to almost 3 $100 million in April 1999. The Company expects e-commerce revenues to grow to between $150-$200 million in fiscal 1999. 11. Despite these strong results, Corporate Express's stock price has languished. Given Corporate Express's strong financial performance, its prospects for future growth and expansion are substantial, and the intrinsic value of Corporate Express is far greater than that reflected in the market price of Corporate Express's stock. 12. On July 13, 1999, Corporate Express and Buhrmann announced that they had entered into a merger agreement whereby Buhrmann, will acquire Corporate Express in a cash merger transaction valued at approximately $2.3 billion, including the assumption of debt. Under the terms of the transaction as presently proposed, each share of Corporate Express will be exchanged for $9.70 in cash, a mere 13% premium over the $8-9/16 closing price of the Company's stock, on July 12, 1999. Moreover, the consideration to be received by Corporate Express is not definite and is subject to adjustment upward or downward depending on the actual proceeds received by Corporate Express from the sale or disposition of certain businesses and assets. 13. The merger agreement contemplates that Buhrmann's North American operations, which operate as BT Office Products, will be combined with Corporate Express' North American operations and will be headquartered in Broomfield, Colorado. Similarly, the Company's European operations will be combined with Buhrmann's Europe Division and will be headquartered in Amsterdam. The merger agreement provides that defendant King will be named President and Chief Executive Officer of the North American business group of the combined company. Certain other senior executives of Corporate Express will also be offered lucrative positions with the combined company. 4 14. By entering into the agreement with Buhrmann, the Corporate Express Board has initiated a process to sell the Company which imposes heightened fiduciary responsibilities and requires enhanced scrutiny by the Court. However, the terms of the proposed transaction were not the result of an auction process or active market check; they were arrived at without a full and thorough investigation by the Individual Defendants; and they are intrinsically unfair and inadequate from the standpoint of the Corporate Express shareholders. 15. The Individual Defendants failed to make an informed decision, as no market check of the Company's value was obtained. In agreeing to the merger, the Individual Defendants failed to properly inform themselves of Corporate Express's highest transactional value. 16. The Individual Defendants have violated the fiduciary duties owed to the public shareholders of Corporate Express. The Individual Defendants' agreement to the terms of the transaction, its timeing, and the failure to auction the Company and invite other bidders, and defendants' failure to provide a market check demonstrate a clear absence of the exercise of due care and of loyalty to Corporate Express's public shareholders. 17. The Individual Defendants' fiduciary obligations under these circumstances require them to: a. Undertake an appropriate evaluation of Corporate Express's net worth as a merger/acquisition candidate; and b. Engage in a meaningful auction with third parties in an attempt to obtain the best value for Corporate Express's public shareholders. 5 18. The Individual Defendants have breached their fiduciary duties by reason of the acts and transactions complained of herein, including their decision to merge with Buhrmann without making the requisite effort to obtain the best offer possible. 19. Plaintiff and 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 Corporate Express's assets and business, and will be prevented from obtaining fair and adequate consideration for their shares of Corporate Express common stock. 20. The consideration to be paid to class members in the proposed merger is unfair and inadequate because, among other things: a. The intrinsic value of Corporate Express's common stock is materially in excess of the amount offered for those securities in the merger giving due consideration to the anticipated operating results, net asset value, cash flow, and profitability of the Company; b. The merger price is not the result of an appropriate consideration of the value of Corporate Express because the Corporate Express Board approved the proposed merger without undertaking steps to accurately ascertain Corporate Express's value through open bidding or at least a "market check mechanism"; and c. By entering into the agreement with Buhrmann, the Individual Defendants have allowed the price of Corporate Express stock to be capped, thereby depriving plaintiff and the Class of the opportunity to realize any increase in the value of Corporate Express stock. 21. By reason of the foregoing, each member of the Class will suffer irreparable injury and damages absent injunctive relief by this Court. 6 22. Defendant Buhrmann has knowingly aided and abetted the breaches of fiduciary duty committed by the Individual Defendants to the detriment of Corporate Express's public shareholders. Indeed, the proposed merger could not take place without the active participation of Buhrmann. Furthermore, Buhrmann and its shareholders together with the Individual Defendants are the intended beneficiaries of the wrongs complained of herein and would be unjustly enriched absent relief in this action. 23. Plaintiff and other members of the Class have no adequate remedy at law. WHEREFORE, plaintiff and members of the Class demand judgment against defendants as follows: a. Declaring that this action is properly maintainable as a class action and certifying plaintiff as the representative of the Class; b. Preliminarily and permanently enjoining defendants and their counsel, agents, employees and all persons acting under, in concert with, or for them, from proceeding with, consummating, or closing the proposed transaction; c. In the event that the proposed transaction is consummated, rescinding it and setting it aside, or awarding rescissory damages to the Class; d. Awarding compensatory damages against defendants, individually and severally, in an amount to be determined at trial, together with pre- judgment and post-judgment interest at the maximum rate allowable by law, arising from the proposed transaction; 7 e. Awarding plaintiff its costs and disbursements and reasonable allowances for fees of plaintiff's counsel and experts and reimbursement of expenses; and f. Granting plaintiff and the Class such other and further relief as the Court may deem just and proper. Dated at Denver, Colorado this 13/th/ day of July, 1999. Respectfully submitted, BADER & ASSOCIATES, P.C. /s/ Gerald L. Bader, Jr. ----------------------------------------- Gerald L. Bader, Jr., No. 3625 1660 Wynkoop Street, Suite 1100 Denver, Colorado 80202-1160 Telephone: (303) 534-1700 Telecopier: (303) 534-6725 Attorneys for Plaintiff OF COUNSEL: BERNSTEIN LIEBHARD & LIFSHITZ, LLP 10 East 40/th/ Street New York, NY 10016 (212) 779-1414 Plaintiff's Address: - ------------------- 119 Route 306 Muncie, New York 10952 8 EX-99.2 3 SUMMONS AND COMPLAINT 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 ----------------------------------------- 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 ----------- 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 ------------------------ 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: ----- ---- (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. 2 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 ----------------------- 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 ---------------------------------------- on actual proceeds received by Corporate Express from the sale of certain businesses and assets. 3 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] ------------------------------------ shareholders." ------------ 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; 4 (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 ------------------------------------ 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 ----------------- 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; 5 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 ----------- Plaintiff demands a trial by jury. DATED this 13th day of July, 1999. DYER DONNELLY /s/ Robert J. Dyer, III ----------------------------------------- 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 6 Plaintiff's Address: - ------------------- 402 Highway Avenue Riverton, NJ 08077 7 -----END PRIVACY-ENHANCED MESSAGE-----