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WASHINGTON STEEL CORP. v. TW CORP.

February 16, 1979

WASHINGTON STEEL CORPORATION, a corporation, Plaintiff,
v.
TW CORPORATION, Talley Industries, Inc., B. Paul Barnes, William H. Mallender, Roger S. Carlson, Donald L. Corey, Joseph D. DiSesa, Gerard G. Ellis, Townsend Hoopes, John D. MacNaughton, Emiel T. Nielsen, Jr., Thomas F. Reddy, Jr., Ralph A. Rockow, Fred G. Schuller, Wesley A. Stanger, Jr., John W. Stodder, Marvin A. Pohlman, M. Kimelman & Company, Robert Euler, Michael Kimelman, Joseph E. Giattino, Sheila M. Baird, Oscar Kimelman, and Chemical Bank, Defendants



The opinion of the court was delivered by: SIMMONS

INTRODUCTION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

A. INTRODUCTION

 The matter of Washington Steel Corporation versus TW Corporation, et al, at Civil Action Number 79-166, is now ripe for a decision. Very briefly stated:

 On January 26th, 1979, Defendant Talley Industries filed a Schedule 14D-1 Statement with the Securities & Exchange Commission covering the subject corporation, Washington Steel, the Plaintiff in this case.

 On February 5th, 1979, Plaintiff Washington Steel filed a complaint with this Court against TW Corporation, Talley Industries, Incorporated, certain officers and directors of Talley Industries, Inc., and TW Corporation, M. Kimelman & Co., a broker-dealer partnership, and certain of its partners, and Chemical Bank, a banking association. The complaint contained four counts.

 First, Count I alleged a violation of Section 14(d) of the Exchange Act. Plaintiff Washington Steel alleged that pursuant to Section 14(d) of the Exchange Act, 15 U.S.C. 78n, the Schedule 14D-1 of the offering statement (Exhibit A to Plaintiff's Complaint) filed by Defendant Talley, does not adequately inform or disclose particular information to the shareholders of Washington Steel as is required by law.

 The second count alleged a violation of Section 14(e) of the Exchange Act. Here, Plaintiff Washington Steel alleged in the second count that all the Defendants have violated Section 14(e) of the Exchange Act by meeting with each other, and especially by meeting with the representatives of the broker-dealer partnership, M. Kimelman & Company. This meeting was held at a time prior to the aforementioned offer wherein M. Kimelman & Company is accused of seeking information for the purpose of advising customers on long-term investments when, in fact, they were seeking the information in order to help Defendant Talley Industries to take over the Plaintiff Washington Steel.

 In addition, Washington Steel alleges that the Defendant Chemical Bank used confidential information obtained in the course of its business relationship with Washington Steel in determining whether to arrange short-term financing for the Defendant Talley's proposed offer at a time when the Defendant Chemical Bank was an agent of Washington Steel.

 Count Three alleged that Chemical Bank violated its common law fiduciary duty owed to Washington Steel by using confidential information under all of the circumstances for the benefit of the Defendants.

 Count Four alleged that the deceptive practices of M. Kimelman & Company and its officers, during the meetings with representatives of Plaintiff Washington Steel, resulted in M. Kimelman & Company misappropriating confidential and proprietary information of the Plaintiff contrary to Pennsylvania Law.

 Plaintiff Washington Steel generally averred irreparable injury.

 At this juncture of the litigation, Washington Steel is seeking a preliminary injunction, requesting the Court to restrain TW Corporation and Talley Industries, Inc., from proceeding with its proposed offer to purchase any and all of the outstanding shares of common stock of Plaintiff Washington Steel for $ 37.50 net per share.

 The Court after hearing all of the evidence, makes the following findings of fact:

 B. FINDINGS OF FACT

 1. Plaintiff, WASHINGTON STEEL CORPORATION ("Washington Steel"), is a corporation organized under the laws of the Commonwealth of Pennsylvania and maintains its principal place of business at Woodland and Griffith Avenues, Washington, Pennsylvania 15301.

 2. Defendant, TW CORPORATION, is a corporation organized under the laws of the State of Delaware and maintains a principal place of business at 3500 North Greenfield Road, Mesa, Arizona 85205.

 3. Defendant, TALLEY INDUSTRIES, INC., ("Talley"), is a corporation organized under the laws of the State of Delaware and maintains a principal place of business at 3500 North Greenfield Road, Mesa, Arizona 85205.

 4. Defendant, B. PAUL BARNES, is a Director and President and Treasurer of Defendant TW Corporation and is a Director and President of Talley. He maintains a place of business at 3500 North Greenfield Road, Mesa, ...


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