According to a complaint filed on July 21, 2011, the plaintiffs filed a securities class action against the defendants claiming violations of Sections 14(e) and 20(a) of the Exchange Act based on a proposed merger.
On April 21, 2011, the company announced that it had entered into a definitive agreement whereby the bidder company would purchase all outstanding in exchange for $6.50. According to the April 21, 2011 press release, the bidder owns approximately 20.9% of the Company’s outstanding shares.
Plaintiff alleges that the defendants have breached their fiduciary duties by offering a price far below the intrinsic value of the company’s shares, and seek to enjoin the proposed merger.
Specifically, the complaint states that the company’s recent financial success, featuring healthy revenue and net income growth, increasing operating margins and bright sales prospects demonstrates that the company’s common stock is currently undervalued. The bidder defendant is allegedly attempting to take advantage of this short-term dip in the price of Company stock by offering $6.50 per share to take the Company private and using his influence with the Board to ensure that his unfair, undervalued offer is accepted.
Since the bidder defendant is CEO and Chairman of the company’s board and owns approximately 20.9% of outstanding shares, he dominates and controls the board. Accordingly, the plaintiffs believes that the board cannot act independently and is unable to act in the best interests of the company’s public shareholders. On January 31, 2011, the company announced that a Special Committee of the Board had been established to consider the proposal. The Special Committee is comprised of the Company’s three purportedly “independent directors”. Since its formation, the plaintiff claims, the Special Committee has not indicated whether it has investigated other possible deals that would offer a fair value to shareholders or, for that matter, the possibility of maintaining the company as a standalone entity. There is no evidence that an active market check or open auction for sale of the Company has been undertaken by the Special Committee, or that it has engaged in fair and open negotiations with all potential bidders.
In connection with the Proposed Transaction, the complaint alleges that the company filed a materially false and misleading preliminary proxy statement with the United States Securities & Exchange Commission on July 8, 2011, outlining the Proposed Transaction and its background.
On October 18, 2011, the Plaintiff filed a Notice of Voluntary Dismissal without prejudice and the Court closed the case.