According to the complaint filed October 01, 2010, on September 23, 2010, in consultation with Jones Day and Citadel, the Special Committee unanimously voted on behalf of the Board and the Company to recommend that BlueLinx shareholders accept the Tender Offer. On September 27, 2010 the Amended Recommendation Statement was filed with the SEC, disclosing the Special Committee’s recommendation.
The $4.00 per share agreed to in the Proposed Transaction is a woefully inadequate price and appears designed to cap the market price of BlueLinx common stock at current, depressed levels. Defendants’ rationale for asserting that the premium supports a fair price is unsound as Bl ueL i nx is just emerging from the bottom of a cycle that is expected to improve as the economy continues to emerge from the recession. The “premium” touted by defendants is at a deep discount to the Company’s 52- week high of $6.32. A fair price cannot be based on a purported “premium” over a depressed market price and thus, the $4.00 price is unfair to shareholders. The financial unfairness of the Proposed Transaction price is compounded by the woefully deficient process undertaken by the Individual Defendants in agreeing to Proposed Transaction.
According to the Company's Form 10-K for the fiscal year ended January 1, 2011, BlueLinx, its directors, and Cerberus ABP Investor LLC (“CAI”) were named as defendants in the following putative shareholder class actions filed in the Superior Courts of Fulton and Cobb Counties, Georgia, the United States District Court for the Northern District of Georgia, the Chancery Court for the State of Delaware, and the Supreme Court of the State of New York in connection with the proposed tender offer announced by CAI on July 21, 2010 and commenced by CAI on August 2, 2010 .... The complaints sought to enjoin the proposed tender offer, alleging that the Company’s directors and CAI breached their fiduciary duties by, among other things, failing to make certain disclosures and maximize the value to be received by our stockholders. The complaints also asserted claims of aiding and abetting breach of fiduciary duty. In addition to an order enjoining the transaction, the complaints variously sought, among other things: additional disclosures regarding the proposed transaction; imposition of a constructive trust in favor of plaintiffs for any improper benefits received by defendants; rescission of the transaction, if consummated, or an award to plaintiffs of rescissory damages; and attorneys’ fees and expenses. In light of the expiration of the tender offer, we believe that these complaints are now moot.
On June 16, 2011, the plaintiff filed a Motion for Attorney Fees and Expenses For Benefit Conferred and, Motion for Order for Dismissal of Action as Moot with Brief In Support. The defendants have responded by filing an opposition to those motions.
On February 1, 2012, the court denied the Plaintiff’s motion for an award of attorney’s fees and the Clerk of the Court was directed to close this case.