According to the complaint filed on July 15, 2011, the plaintiffs allege breaches of fiduciary duties and violations of the federal securities laws in a proposed merger.
On May 20, 2011, the defendant’s board entered into an agreement and plan of merger under which each share of the company's common stock issued and outstanding immediately prior to the effective time of the merger will be cancelled in exchange for the right to receive $9.00 in cash, in a transaction valued at approximately $265.5 million. Pursuant to the proposed transaction, a holding company would merge into the target company, becoming a wholly owned subsidiary of the bidder.
The plaintiffs allege breaches of the individual defendants’ fiduciary duties. Under the merger agreement, the company assented to an exclusivity agreement along with agreements to provide the bidder company with the identity of any unsolicited third party bidders and a right to match any competing offers. Additionally, the agreement included an $8.5 million termination fee. These features, according to the plaintiffs, constitute breaches of the defendants’ fiduciary duties by imposing preclusive deal protections that prohibit maximizing shareholder value
Moreover, the complaint charges that the defendants violated federal securities laws in disseminating a materially misleading proxy statement. Specifically, the proxy did not discuss any possible future employment by the individual defendants in the post-merger company or any prior relationships between the target or bidder company with the chosen investment bank. Plaintiffs also claim that the proxy lacked any discussion of the free cash flow projections for the company in connection with the financial forecasts used by the investment bank for purposes of its Discounted Cash Flow Analysis. Accordingly, the plaintiffs allege these deficiencies rendered the proxy materially misleading, and therefore in violation of Sections 14(a) and 20(a) of the Exchange Act, and the rules promulgated therunder.
On August 2, 2011, the Court released an order consolidating docket numbers 11-CV-61400 and 11-CV-61580 into one action. The will now go forward under case number 11-CV-61400.
On September 13, 2011, the Plaintiff filed a Notice of Voluntary Dismissal and the Court granted the order, thereby closing the case.