According to a November 27, 2008, press release, the complaint alleges that instead of complying with their fiduciary duty to maximize shareholder value for NCC’s public shareholders, defendants instead franticly scrambled to sell the Company at below market prices while tens of millions of dollars are being diverted in the form of: (i) premium payments to a NCC significant shareholder for its block of preferred shares and warrants; (ii) the acceleration of unvested options held by defendants; and (iii) the potential elimination of millions of dollars of liability arising out of defendants’ prior misconduct through a merger designed to wrest NCC shareholders of standing to maintain derivative litigation against defendants and a ‘deeper pocket’ to indemnify them, all in exchange for agreeing to an alarming fire sale price for NCC.
The complaint further alleges a claim for violations of Section 14(a) of the Securities Exchange Act, because the defendants issued a false and misleading Definitive Proxy Statement (the ‘Proxy’) with the SEC on November 24, 2008. The complaint alleges that the Proxy is false and misleading because, among other things: (i) it does not properly disclose the defendants’ potential liability from the derivative lawsuits and conceals the fact that these strong claims will be extinguished for the benefit of defendants upon completion of the merger; (ii) a number of statements in the Proxy were rendered misleading because the Proxy failed to allow the shareholders to make an informed judgment about whether the price is fair; and (iii) it misleads shareholders as to the extent of due diligence NCC performed on PNC before agreeing to a percentage of PNC’s stock as consideration for NCC’s shareholders in the Merger Agreement.
On December 02, 2008, this case was transferred to MDL Docket 08-nc-70014. On July 19, 2010, this action was voluntarily dismissed.