According to the most recent docket, on September 29, 2003, the case was administratively closed. A Suspense Order was previously entered on January 8, 2001, transferring the action to the Suspense Docket of the Court pending decisions on motions in related cases before the Second Circuit and the Supreme Court of New York State. The Second Circuit Court of Appeals entered a Mandate on February 22, 2002, affirming the judgment of the district court’s Opinion and Order
denying and terminating the Defendants motion for reargument and reconsideration. The Defendant’s appeal was dismissed.
The Plaintiffs allege that the Proxy disseminated by Besicorp and the Director Defendants is false and materially misleading because it fails to adequately disclose all available material information regarding the effect of the Merger Plan upon two pending derivative actions against defendants Zinn, Habib, Rosen and Daley, as well as against three former directors of the company, Harold Harris and defendants Steven Eisenberg and Martin Enowitz. While the Proxy disclosed that consummation of the Plan of Merger may result in the termination of the derivative actions, the Proxy fails to disclose, inter alia, that the transaction was intentionally structured to accomplish the improper and premature termination of these suits by depriving the derivative plaintiffs of standing to continue those actions.
Further, the Proxy fails to disclose that successful resolution of these
actions could result in the cancellation of 1.2 million shares of Besicorp
common stock which certain defendants improperly issued to themselves and are
the subject of one of the derivative suits. Thus, more than $44.5 million of
the merger consideration, which would otherwise have been improperly paid to
certain defendants in the derivative actions, would be available to be paid,
instead, to the public shareholders (who hold 44 percent of the company's
outstanding stock) if that action is successfully adjudicated. In addition,
more than $1 million in legal fees and expenses are at issue in the other suit,
which would be paid to a spin-off company, Besicorp Ltd., upon a successful