According to a press release dated April 29, 2011, a class action has been commenced in the United States District Court for the Central District of California on behalf of all persons who held shares of the common stock of Epicor Software Corporation (“Epicor”) (NASDAQ:EPIC) on April 4, 2011, against Epicor and certain of its officers and/or directors and their related parties, and Eagle Parent, Inc., its wholly-owned subsidiary Element Merger Sub, Inc. and Apax Partners, L.P. (collectively, “Apax”), for violations of §14(d)(7) of the Securities Exchange Act of 1934 (“1934 Act”) and Rule 14d-10 promulgated thereunder, in connection with the tender offer by Apax for Epicor (the “Tender Offer”).
Specifically, the complaint alleges that the Tender Offer is being made pursuant to an Agreement and Plan of Merger (the “Merger Agreement”) entered into between Apax and Epicor and approved by the Company’s Board of Directors. The signing of the Merger Agreement was announced on April 4, 2011. Apax launched the Tender Offer on April 11, 2011, offering to pay each public shareholder of Epicor $12.50 per share. The Tender Offer is set to expire on May 6, 2011.
The complaint alleges that as part of the Tender Offer, Apax has agreed to pay certain Epicor insiders (the “Rollover Shareholders”) additional and different consideration that Apax has not offered to pay to Epicor’s other shareholders. Specifically, Apax has entered into Support Agreements with the Rollover Shareholders that provide that the Rollover Shareholders will support the transactions contemplated by the Merger Agreement but not tender their shares to Apax. Instead, the Rollover Shareholders will have their shares purchased directly by Apax and then have the opportunity to receive alternate consideration from Apax in the form of an equity investment in the surviving Company. The additional and different consideration being paid by Apax to the Rollover Shareholders is an integral part of the Tender Offer and is being paid as consideration in return for the Rollover Shareholders’ endorsement and/or their agreement to cooperate with Apax in consummating the Tender Offer. According to the complaint, Apax’s improper agreement with the Rollover Shareholders violates §14(d)(7) of the 1934 Act and Rule 14d-10 promulgated thereunder.
On July 22, 2011, the plaintiffs filed a Notice of Voluntary Dismissal against all defendants without prejudice.