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Chris Whitemyer, Et Al. V. Jarden Corporation, Et

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Chris Whitemyer, Et Al. V. Jarden Corporation, Et UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YOR K CHRIS WHITEMYER, Individually and On Behalf Case No. Of All Others Similarly Situated, CLASS ACTION COMPLAINT FOR Plaintiff, VIOLATIONS OF THE FEDERAL SECURITIES LAW S vs. JURY TRIAL DEMANDED JARDEN CORP ., MARTIN E . FRANKLIN, and IAN G.H. ASHKEN, Defendants. Plaintiff, Chris Whitemyer ("Plaintiff '), upon the investigation of Plaintiffs counsel , which included, among other things, a review of the defendants' public documents, conferenc e calls and announcements made by defendants, United States Securities and Exchang e Commission ("SEC") filings, wire and press releases published by and regarding Jarden Corp . ("Jarden" or the "Company") Securities analysts' reports and advisories about the Company, an d information readily available on the Internet . NATURE OF THE ACTION 1 . This is a federal class action on behalf of purchasers of the common stock of Jarden between June 29, 2005 and January 11, 2006, inclusive (the "Class Period"), seeking t o pursue remedies under the Securities Exchange Act of 1934 (the "Exchange Act") JURISDICTION AND VENUE 2. The claims asserted herein arise under and pursuant to Sections 10(b) and 20(a) o f the Exchange Act, (15 U .S .C. §§ 78j(b) and 78t(a)), and Rule lOb-5 promulgated thereunder (1 7 C.F.R. §240.10b-5) . -1- 3. This Court has jurisdiction over the subject matter of this action pursuant to §27 of the Exchange Act (15 U.S.C. §78aa) and 28 U .S .C . § 1331 . 4. Venue is proper in this Judicial District pursuant to §27 of the Exchange Act, 1 5 U.S .C. § 78aa and 28 U.S.C. § 1391(b) . Many of the acts and transactions alleged herein, including the preparation and dissemination of materially false and misleading information, occurred in substantial part in this Judicial District. Additionally, the Company maintains a principal executive office in this Judicial District. 5. In connection with the acts, conduct and other wrongs alleged in this complaint , defendants, directly or indirectly, used the means and instrumentalities of interstate commerce , including but not limited to, the United States mails, interstate telephone communications an d the facilities of the national Securities exchange . PARTIES 6. Plaintiff, Chris Whitemyer, as set forth in the accompanying certification , incorporated by reference herein, purchased Jarden Securities at artificially inflated prices durin g the Class Period and has been damaged thereby . 7. Defendant Jarden is a Delaware corporation that maintains its principal executiv e offices at 555 Theodore Fremd Avenue, Suite B-302, Rye, NY 10580 . 8. Defendant Martin E. Franklin ("Franklin") is and was at all relevant times the Company's Chairman and Chief Executive Officer . 9. Defendant Ian G .H. Ashken ("Ashken") is and was at all relevant times the Company's Chief Financial Officer . 10. Defendants Franklin and Ashken are collectively referred to herein as th e "Individual Defendants ." The Individual Defendants, because of their positions with th e -2- Company, possessed the power and authority to control the contents of Jarden quarterly reports , press releases and presentations to Securities analysts, money and portfolio managers and institutional investors, i .e., the market. Each defendant was provided with copies of the Company's reports and press releases alleged herein to be misleading prior to or shortly afte r their issuance and had the ability and opportunity to prevent their issuance or cause them to b e corrected. Because of their positions and access to material non-public information available t o them but not to the public, each of these defendants knew that the adverse facts specified herei n had not been disclosed to and were being concealed from the public and that the positiv e representations which were being made were then materially false and misleading. The Individual Defendants are liable for the false statements pleaded herein, as those statements wer e each "group-published" information, the result of the collective actions of the Individua l Defendants . SUBSTANTIVE ALLEGATIONS Background 11 . Jarden is a leading provider of niche consumer products used in and around th e home. Jarden operates in three primary business segments through a number of well recognized brands, including; Branded Consumables: Ball®, Bee ®, Bicycle®, Crawford®, Diamond® , Forster®, Hoyle®, Kerr®, Lehigh®, Leslie-Locke® and Loew-Cornell® ; Consumer Solutions : Bionaire®, Crock-Pot®, First Alert®, FoodSaver®, Harmony®, Health o meter, Holmes® , Mr. Coffee®, Oster®, Patton®, Rival®, Seal-a-Meal®, Sunbeam®, VillaWare® and Whit e MountainTM; and Outdoor Solutions : Campingaz® and Coleman® . 12. Much of Jarden's revenue growth is attributable to two acquisitions completed in 2005: American Households, Inc . (the previously bankrupt Sunbeam Corp .) and Holmes Group -3- Inc., a consumer products company which makes and distributes popular home products , including the Crock Pot slow cooker and Rival brand kitchen wares. 13. The acquisition of American Households, Inc . ("AHI"), originally announced in September 2004, placed a considerable strain upon Jarden. At the end of 2004, Jarden had working capital of slightly more than $200 million but was required to come up with th e resources to pay AHI's former owners and creditors $ 845 .6 million to complete the acquisition, which would triple Jarden's revenue . To do so, defendants constructed a financing packag e which had as its bedrock the sale of $350 million worth of preferred stock (the "Convertible Preferred") to private equity firms Warburg Pincus LLC ("Warburg") and Catterton Partner s ("Catterton"). Without this stock sale, it was unlikely that Jarden could have raised the sum necessary for the AHI acquisition solely from traditional funding sources . 14. The Convertible Preferred stock was sold in burdensome terms for Jarden : Jarden was forced to pay the Convertible Preferred investors stock dividendsp ; Jarden ceded a degree of managerial control and oversight to the Convertible Preferred investors' Board of Directors designee; and Jarden was forced to repay the Convertible Preferred on a schedule which had th e potential to interfere with Franklin's ambitious long-term acquisition plans . Defendants knew that the quickest way to escape these constraints was to force the conversion of some or all of th e Convertible Preferred stock into common stock . Under the selling terms of the Convertible Preferred stock, a conversion could only be forced if Jarden's stock increased considerably . 15 . Days before the start of the Class Period, on June 23, 2005, defendant Frankli n entered into a new employment agreement . Under the terms of his new employment agreement, defendant Franklin was bestowed extraordinary benefits, which would vest if Jarden's stock rose above the contractual target price needed to force the conversion of the Convertible Preferre d -4- stock. Pursuant to the new employment agreement, defendant Franklin received a grant of up to 915,000 shares of Jarden stock, half of which vested on November 1, 2005 if, prior to that time , Jarden's stock rose to $56 per share of a certain number of trading days, and the other half veste d if the stock rose to $64 per share. At the time that the new employment agreement was signed , Jarden' s closing stock was at $51 .34 per share, making the first batch of 457,500 shares wort h $23 .5 million. If these shares vested when the stock price hit $56 per share (and remained ther e for a number of days), defendant Franklin stood to walk away with stock worth approximatel y $25 .6 million, which represented almost 14 percent of his base salary. Given this, defendant Franklin had great incentive to boost Jarden's stock price. Materially False and Misleading Statements Issued During the Class Period 16. The Class Period commences on June 29, 2005. At that time, Jarden issued a press release with the headline "Jarden Corporation Announces Definitive Agreement to Acquir e The Holmes Group, Inc." Therein, the Company stated : Jarden Corporation (NYSE: JAH), a leading global provider of niche branded consumer products, announced today a definitive agreement to acquire privately-held The Holmes Group, Inc . ("Holmes") in a transaction valued on a debt free basis at approximately $625 million, consisting of approximately $420 million in cash and 4.1 million shares of Jarden common stock . Holmes is a leading manufacturer and distributor of select home environment and small kitchen electrics under well-recognized consumer brands, including Bionaire(R), Crock-Pot(R), Harmony(R), Holmes(R), Patton(R), Rival(R), Seal-a-Meal(R) and White Mountain(TM). The transaction is expected to be immediately accretive to earnings and close during the third quarter, subject to customary closing conditions . The Company's waiting period for Hart-Scott-Rodino approval has already expired. Founded in 1982, Holmes supplies consumer products for the home environment and kitchen markets. Holmes' established relationships with major customers and its new product development expertise has enabled it to secure leading market -5- positions across major product categories on a global basis, including Crock-Pot(R) slow-cookers, Rival(R) roasters and deep fryers, and Bionaire(R) air purifiers and seasonal humidifiers . During the past three years, Jarden has steadily built a broad portfolio of category leading products and brands used in and around the home, both organically and through strategic acquisitions, including the
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