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1
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LETTER TO CHANCELLOR CHANDLER
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EXTRACTED KEY WORDS
PFIZER COURT WARNER MOTION CONTRACT ACTION CHANCERY FIDUCIARY DUTY STERWIN DEFENDANTS RES JUDICATA EFFECTS SCHEDULE HONORABLE WILLIAM CHANDLER PLAINTIFF AVOID RES JUDICATA LITIGATION SEPARATE COVENANT DISCOVERY ENFORCEABILITY COMPETE OPPOSITION COMPLAINTS INJUNCTION RELIEF OFTHE DEL REASONS |
r .-. ," P c
RICHARDS , LAYTON & FINGER "I *`..
A PROFESSlONAL ASS0CIAT,ON
O N E R O D N E Y S Q U A R E
P.O. BOX 551
W I L M I N G T O N , DELAWJXRE 1 9 8 9 9
T ELEPHON E : (302) 658-6541
T E L E C O P I E R : (302) 6586.548
WEBSITE: www. RLF.COM
Wwrm's E-MAIL ADDRESS
BALOTTI@RLF.COM
WRrn& DlRE.3 DlAL NUMBER
(302) 65 I -77 IO
January 12,ZOOO
BY FEDERAL EXPRESS
The Honorable William B. Chandler, III
Chancellor
Court of Chancery
Family Court Building
22 The Circle, Third Floor
Georgetown, DE 19947
Re: Pfizer Inc. v. Warner-Lambert Co., et al., C.A. No. 17603"`/
Rosman v. Warner-Lambert Co., et al., C.A. No. 17705
Dear Chancellor Chandler:
Plaintiff Pfizer Inc. ("Pfizer"), through its undersigned counsel, submits this
response to the motion of the stockholder plaintiffs to consolidate the above-captioned actions and
in response to the opposition papers filed by Warner-Lambert Co. ("Warner") and the individual
Warner defendants in opposition to that motion. Pfizer certainly does not agree with all of the
assertions in Warner's opposition. However, now is neither the time nor the place to discuss those
disagreements, and Pfizer therefore will focus on suggesting what it believes to be the most
and efficient way to handle the various pending claims.
As the Court will recall, Pfizer's complaint in C.A. No. 17603 (the "Contract
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2
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OPPOSITION OF THE WARNER-LAMBERT DEFENDANTS TO PLAINTIFFS MOTION TO CONSOLIDATE
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EXTRACTED KEY WORDS
CONTRACT PFIZER BREACH STANDSTILL AGREEMENT FIDUCIARY DUTY PLAINTIFFS CONSOLIDATION COURT WARNER-LAMBERT DIRECTORS MOTION AHP ALLEGES SHAREHOLDERS DEFENDANTS ASSERTING DELAWARE PRELIMINARY INJUNCTION SCHEDULING WARNER-LAMBERT COMPANY MERGER LIPITOR OBLIGATIONS CONSENT SOLICITATION LAW DEL PARTIES COUNSEL COMPLAINT STOCKHOLDER |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
PFIZER, INC.,
Plaintiff,
;
V. C.A. No. 17603 J
1
WARNER-LAMBERT COMPANY and
AMERICAN HOME PRODUCTS CORP., 1
Defendants.
MAX ROSMAN, LOUISIANA SCHOOL
EMPLOYEES' RETIREMENT SYSTEM,
LOUISIANA MUNICIPAL POLICE
EMPLOYEES' RETIREMENT SYSTEM,
ARUN SHINGALA and ERNEST HACK.
Plaintiffs.
V.
WARNER-LAMBERT COMPANY, et al.,
Defendants
OPPOSITION OF THE
WARNER-LAMBERT DEFENDANTS TO
PLAINTIFFS' MOTION TO CONSOLIDATE
Defendants Warner-Lambert Company, Lodewijk J..R. de Vink, George A. Larch,
Robert N. Burt, Alex J. Mandl, Michael I. Sovern, William H. Gray, III, LaSalle D. Leffall, Jr.,
Donald C. Clark, John A. Georges and William R. Howell (the "Warner Lambert Defendants"),
through their undersigned counsel, hereby oppose the motion of plaintiffs to consolidate the
above-captioned actions. One week after a court decision ordering a February trial of a contract
action between the two corporate entities, Pfizer, Inc. ("Pfizer") and Warner-Lambert Company
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3
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MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION TO CONSOLIDATE AND IN REPLY TO OPPOSITION OF WARNER-LAMBERT DEFENDANTS
|
EXTRACTED KEY WORDS
WARNER-LAMBERT STANDSTILL AGREEMENT PLAINTIFFS DIRECTORS FIDUCIARY DUTIES WARNER-LAMBERT DEFENDANTS CONSOLIDATION PFIZER INTERPRETATION CONTRACT MERGER COURT AHP MERGER BREACH COMPLAINT MOTION OPPOSITION EXERCISE RELIEF PROPER LITIGATION OBLIGATIONS YORK ADJUDICATION LLP CIVIL ACTION REASON ENFORCEABILITY VICE CHANCELLOR STRINE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
-------------_------__I_________________------------------- xx
PFIZER, INC., Civil Action No. 17603 TJ
Plaintiff,
V.
WARNER-LAMBERT COMPANY and
AMERICAN HOME PRODUCTS CORP.,
Defendants.
_-__-____-_____1____l________________l__---------
X\
MAX ROSMAN, LOUISIANA SCHOOL Civil Action No. 17705
EMPLOYEES' RETIREMENT SYSTEM, y, `_
LOUISIANA MUNICIPAL POLICE
EMPLOYEES RETIREMENT SYSTEM, :
:
ARUN SHINGALA and ERNEST HACK,
Plaintiffs,
V.
WARNER-LAMBERT COMPANY, et al.,
Defendants.
___________-____-_______________________---------------------- `X
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION TO CONSOLIDATE
AND IN REPLY TO THE OPPOSITION OF THE WARNER-LAMBERT DEFENDANTS
Plaintiffs in Civil Action No. 17705 submit this Memorandum in support of
their motion to consolidate the above-captioned actions and in reply to the opposition
submitted by the Warner-Lambert defendants.
As the moving plaintiffs state in their motion to consolidate, Civil Action No.
17705 presents a narrow and focused claim: Whether or not Warner-Lambert's directors'
interpretation and application of the March 4, 1996 Standstill Agreement between Warner-
Lambert and Pfizer, Inc. ("Pfizer") improperly inhibits and thwarts the exercise of their
fiduciary duties to Warner-Lambert's shareholders in light of the merger agreement
between Warner-Lambert and American Home Products Corp. ("AHP"). Civil Action No.
17603, brought by Pfizer, also deals with the interpretation and application of the Standstill
Agreement. The moving plaintiffs and Pfizer seek essentially the same relief, a declaration
that Pfizer is free to present its offer to Warner-Lambert's shareholders, an offer that is
vastlysuperiorto the consideration proffered to Warner-Lambert's shareholders in the AHP
merger agreement.
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4
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PFIZERS REPLY TO THE COUNTERCLAIMS OF WARNER-LAMBERT
|
EXTRACTED KEY WORDS
WARNER AGREEMENTS PARAGRAPH ALLEGATIONS COUNTERCLAIMS PFIZER DENIES RESPONSE CONFIDENTIALITY CO-PROMOTION AGREEMENTS BREACH WARNER-AHP MERGER STANDSTILL AGREEMENT COURT ADMITS THEREOF REFERS CONNECTION AFFIRMATIVE DEFENSE COMPLAINT PROVISIONS DIRECTORS OFTHE COUNTERCLAIMS SECOND SENTENCE IMPROPER ASSERTING FIRST SENTENCE DISCLOSED PFIZER CONTRACTS DOCTRINE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
----------------------------------------------------------------x
PFIZER INC.,
Plaintiff,
V .
WARNER-LAMBERT COMPANY and
AMERICAN HOME PRODUCTS CORP., ' 1
I
: `,,
- - ;
Defendants. -I :
- -_
c
---------------------------------------------------------------x Civil Action No. 17603 -N?c
WARNER-LAMBERT COMPANY,
Counterclaim Plaintiff, :
V.
PFIZER INC.,
Counterclaim Defendant. :
PFIZER'S REPLY TO THE COUNTERCLAIMS
OF WARNER-LAMBERT COMPANY
Pfizer Inc. ("Pfizer"), by its undersigned attorneys, replies to the
defendant-counterclaim plaintiff Warner-Lambert Company ("Warner") as follows:
1. Pfizer denies each and every allegation in paragraph 1 of the
to the extent that the allegations purport to characterize Pfizer's legal position, except admits
Pfizer filed a complaint in this action (the "Complaint"), filed an Amended Complaint in Pfizer Inc.
v. Warner-Lambert Comnanv et al., Civ. A. No. 17524-NC, and made public statements, and refers
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5
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LETTER TO CHANCELLOR CHANDLER
|
EXTRACTED KEY WORDS
AGREEMENT PFIZER CONSENT SOLICITATION COURT PRELIMINARY INJUNCTION PARTY WILLIAM SHAREHOLDERS CHANDLER PROPOSALS MATERIALS MOTION STANDSTILL AGREEMENT RECEIVING PARTY DIRECTORS REQUEST THIRD PARTY VOTING SECURITIES OBLIGATIONS COMBINED ENTITY YESTERDAY AFTERNOON CONVENIENCE PROVISIONS GOVERNING CONFLICTS STOCKHOLDERS PARAGRAPH PLAIN MEANING WRITTEN CONSENT HEREUNDER DATA HEREOF |
& K A T Z
December 17, 1999
!,`I,:1 FA.CSJMJJ,E AND FEDERAL EXPRESS
-___
The Honorable William B. Chandler. III
Chancellor
Court of Chancery
The Circle
Georget.own, DE 19937
Re: Pfizer Inc. v. Warner-Lambert Company, et ano. `-
1.
Del. Ch.. CA. No. 17603-NC -,
r,.:-.
8
L.- ; ,
Dear Chancellor Chandler:
-.
Yesterday afternoon, Pfizer tiled with the SEC materials that would permit it to
commence a consent solicitation of Warner-Lambert shareholders to replace the present Warner-
Lambert Board of Directors with a Board nominated by Pfizer itself. This consent solicitation is
designed to facilitate Pfizer's proposal that it acquire Warner-Lambcrt on terms proposed by
Pfizer. This consent solicitation also threatens to moot the trial that this Court has scheduled
April 10,200O - upon Warner-Lambert's application and over Piker's objections - on the
J.ipi tar Agreements at issue herein.
We write to request the opportunity to meet with the Court, at the Court's earliest
convenience. to set a hearing date on Warner-Lambert's motion for a preliminary injunction,
filed contemporaneously herewith. Warner-Lambert seeks preliminarily to enjoin Pfizer's con-
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6
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DEFENDANT AMERICAN HOME PRODUCTS ANSWER AND AFFIRMATIVE DEFENSES
|
EXTRACTED KEY WORDS
COMPLAINT ALLEGATIONS DENIES KNOWLEDGE INFORMATION SUFFICIENT TRUTH ALLEGATIONS SET AGREEMENT INSOFAR PURPORTS LAW RESPONSE COURT RESPECTFULLY REFERS THEREOF AHP ADMITS LIPITOR AGREEMENTS AMERICAN HOME PRODUCTS DEFENDANT DEFENSES MERGER AGREEMENT REPEATS REALLEGES PRECEDING PARAGRAPHS YORK COLLABORATION AGREEMENT HOME PRODUCTS CORPORATION COUNSEL STANDSTILL AGREEMENT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
PFIZER INC., >
_ '
>
Plaintiff, >
>
V. > C.A. No. 17603
WARNER-LAMBERT COMPANY and
AMERICAN HOME PRODUCTS
CORPORATION,
Defendants.
DEFENDANT AMERICAN HOME PRODUCTS
CORPORATION'S ANSWER AND AFFIRMATIVE DEFENSES
Defendant American Home Products Corporation ("AH,"), by its undersigned
counsel, hereby responds as follows to each numbered paragraph of the Complaint filed in the
above-captioned case:
1. Denies the allegations contained in paragraph 1 of the Complaint and
states that insofar as paragraph 1 purports to state conclusions of law, no response is required.
2. Denies the allegations contained in paragraph 2 of the Complaint except
admits that AHP and Warner-Lambert Company ("WL") entered into the Agreement and Plan of
Merger, dated November 3, 1999 (the "Merger Agreement") and respectfully refers the Court to
the Merger Agreement for the true and accurate contents thereof and further states that insofar as
paragraph 2 purports to state conclusions of law, no response is req.uired.
3. Denies the allegations contained in paragraph 3 of the Complaint and
states that insofar as paragraph 3 purports to state conclusions of law, no response is required.
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7
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LETTER FROM CHANCELLOR CHANDLER
|
EXTRACTED KEY WORDS
WARNER-LAMBERT COUNSEL COURT HOME PRODUCTS PFIZER AGREEMENTS REASON ACCELERATING LIPITOR AGREEMENTS DISCOVERY PARTIES DISPOSITIVE MOTIONS WILMINGTON AMERICAN HOME PRODUCTS STOCKHOLDER CONTRACT FAITH RIGHTS CONTROL RESOLUTIOLN FAILURE JUDGEMENT AFFORD COUNSEL ADEQUATE AMOUNT ACCOMMODATE DISPOSITIVE MOTIONS COOPERATE COMPLETING DISCOVERY PRETRIAL BRIEFING TRIAL DEADLINE |
C OURT OF C HANCERY
OF ThE
STATE OF D ELAWARE
December 3, 1999 THE F A M I L Y
P.O. BOX
G E O R G E T O W N , D
VIA FAX & U.S. MAIL
R. Franklin Balotti A. Gilchrist Sparks, 111
Richards, Layton & Finger William Lafferty
P.O. Box 551 Morris, Nichols, Arsht & Tunnel1
Wilmington, DE 19899 P.O. Box 1347
Wilmington DE 19899
Michael D. Goldman
Potter Anderson & Corroon
P.O. Box 951
Wilmington, DE 19899
Re: Pfizer Inc. v. Warner-Lambert Co., et al. :_
I-
Civil Action No. 17603 _ ._
L-.
Dear Counsel:
Having considered the arguments you made #during our December 2
telephone conference, I conclude that a reasonably prompt trial should be
scheduled in this case. Thus, the Court has reserved on its calendar the week
commencing April 10, 2000, for a trial on the merits.
Warner-Lambert and American Home Products seek a mid-March trial date.
Pfizer insists that no good reason exists for accelerating a trial, especially
considering the undeveloped state of the record, the pendency of the expedited
fiduciary duty action (C.A. No. 17524), and defendants' ability to postpone the
May 15 stockholder vote until the contract action (Civil Action No. 176013) is
resolved.
This action involves the interpretation of certain agreements, the so-called
Lipitor Agreements, and whether Pfizer or Warner-Lambert has breached the terms
of these Agreements, or their duties of good faith and fair dealing implied
thereunder. The "mirror image" nature of the complaint and the counterclaims
suggests the claims can be readied for trial after modest discovery, involving a. few
depositions and limited document production. Resolution of the dispute,
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8
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LETTER TO CHANCELLOR CHANDLER CONTAINING CORRECTED PAGE OF ANSWER
|
EXTRACTED KEY WORDS
WARNER-LAMBERT ALLEGATION COMPLAINT PFIZER MERGER DENIES CHANCELLOR AHP MERGER AGREEMENT ADMITS RESPONSE COURT ESQUIRE POTENTIAL MERGER PROVISIONS AVERS OBLIGATION STEERE VINK RESPECTFULLY REFERS THEREOF STANDSTILL PROVISIONS LIPITOR AGREEMENTS INFORMATION SUFFICIENT TRUTH LACKED PRIOR NOTICE REPEATS REALLEGES FULLY SET |
POTTER A NDERSON & CORROOW LLP
H E R C U L E S P L A Z A
1 3 1 3 N O R T H M A R K E T S T R E E T
P.O. B O X 9 5 1
W I L M I N G T O N , D E L A W A R E Isass-0951
(302) 964-6000
F A C S I M I L E (2.02) 656.IlSi?
H O M E P A G E : ATTYS.PACDELAWARE.COM
E-MAIL: mgoldman@pacdelsware.com
DIRECT DIAL: (3021 964-6007
November 30,1999
BY FACSIMILE & FEDERAL EXPRESS
The Honorable William B. Chandler, III r '
Chancellor
Court of Chancery
The Circle
Georgetown, Delaware 19947
Re: Pfizer Inc. v. Warner-Lambert Company, et al.
Del. Ch.. C. A. No. 17603-NC
Dear Chancellor Chandler:
Enclosed is a courtesy copy of the Counterclaims and Answer of Warner-Lambert
Company which we filed yesterday. It now appears that there was an error in one paragraph of
the answer that has come to our attention. In paragraph 28 of the answer, the words "in writing"
in the second line should be replaced by "specifically." A corrected page is included herewith.
Respectfully,
Michael D. Goldman
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9
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COUNTERCLAIMS AND ANSWER OF WARNER-LAMBERT
|
EXTRACTED KEY WORDS
PARAGRAPH WARNER-LAMBERT COMPLAINT PFIZER STANDSTILL AGREEMENT ALLEGATION COURT OBLIGATIONS DENIES PROVISIONS BUSINESS ADMITS THIRD PARTY MERGER CO-PROMOTION AGREEMENTS LIPITOR AGREEMENTS TERMINATION AHP CONFIDENTIALITY PROPOSALS RESPECTFULLY REFERS ATTORNEYS FULLY SET TERMINATE POTENTIALITY CDA COUNTERCLAIMS WARNER-LAMBERT COMPANY THIRD-PARTY REACH |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
)
PFIZER INC., >>
Plaintiff, >>
v. >>
WARNER-LAMBERT COMPANY and >
AMERICAN HOME PRODUCTS CORP., >1
Defendants. > Civil Action No. 17603-NC
>>
WARNER-LAMBERT COMPANY, >>
Counterclaim Plaintiff, )
>
v. >>
PFIZER INC., >>
Counterclaim Defendant. )
>
COUNTERCLAIMS AND ANSWER OF
WARNER-LAMBERT COMPANY
Warner-Lambert Company ("Warner-Lambert"), by its undersigned attorneys, for
its counterclaims and answer against Pfizer Inc. ("Pfizer"), alleges, upon knowledge with respect
to itself and its own acts, and upon information and belief as to all lother matters, as follows:
COUNTERCLAIMS
1. Pfizer in its Complaint in this action, as well. as in public statements and
prior representations to this Court in C.A. No. 17524-NC, has repeatedly asserted that the stand-
still provisions (referred to as the "Standstill Agreement" in the Complaint) are at an end if
"Warner and a third-party reach an agreement with respect to a business combination."
2. This is simply not the case. The standstill prlovisions in no way so pro-
vide. To the contrary, these provisions (Paragraph 4, "Termination," of the Standstill
Agreement) are explicit that Pfizer's standstill obligations are ,at an end only if such business
combination involves Warner-Lambert's being acquired - only if "`such third party is the ac-
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10
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COMPLAINT
|
EXTRACTED KEY WORDS
PFIZER AHP AGREEMENT BREACH STANDSTILL AGREEMENT MARKETING AGREEMENT DISCLOSE PLAINTIFF CONTRACT TORTIOUS INTERFERENCE PRIOR BUSINESS COURT DELAWARE REMEDY PROVISIONS CONFIDENTIALITY AGREEMENT WARNER-LAMBERT COMPANY REPRESENTATIONS WARNER-AHP MERGER AGREEMENT UNIQUE OPPORTUNITY NEGOTIATIONS SUBSTANTIAL BENEFITS AHP-WARNER MERGER MISREPRESENTATIONS TERMINATE EQUITABLE RELIEFFOR BREACH RELATED FALSE EQUITABLE RELIEF |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
PFIZER INC.,
Plaintiff,
V .
WARNER-LAMBERT COMPANY and
AMERICAN HOME PRODUCTS CORP., I ,- -.
i .I
I
Defendants. I .-
COMPLAINT C.`
- . .
Plaintiff, by and throughits undersigned counsel, alleges as and for its complaint, upon
personal knowledge as to itself and its own acts, and as to all other matters upon information
and belief, as follows:
NATURE OF THE ACTION
1. This is an action by Pfizer Inc. ("Pfizer") against Warner-Lambert Company
("Warner") and AmericanHomeProducts Corporation ("AHP") for equitable relieffor breach
of contract, fraud and tortious interference with contract arising out of Warner's related false
representations and failure to disclose to Pfizer information which Warner was contractually
obligated to disclose concerning the merger proposal which AHP made to Warner (and/or
Warner solicited) prior to November 4, 1999. Without the equitable relief sought herein,
Pfizer will be unable to obtain an effective remedy for the wrongs that have been committed
against it by Warner and AHP because Pfizer will be prevented from competing equally for
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