According to a complaint filed on November 25, 2011, the Plaintiff alleges violations of the federal securities laws in connection with a proposed merger.
On October 11, 2011, the Company and Bidder announced a proposed merger whereby the Bidder would acquire the Company for $22.00 per share without interest. The plaintiffs claim the Proposed Transaction is unfair because it does not adequately value the Company's future growth prospects.
The plaintiffs also claim that the Defendants breached their fiduciary duties by agreeing to lock up the Proposed Acquisition with deal protection devices that preclude other bidders from making a successful competing offer for the Company. Specifically, Defendants agreed to: (i) a no-solicitation provision that prevents other buyers from having access to the Company's confidential information which information is necessary to formulate a bid, except under extremely limited circumstances; (ii) a matching rights provision that allows the Bidder 4 business days to match any competing proposal in the event one is made; and (iii) a provision that requires the Company to pay Bidder and Canada Pension Plan a termination fee of $47.25 million upon termination of the Merger Agreement under specified circumstances.
Lastly, the complaint charges that Defendants have also breached their duty of candor in recommending the transaction to the Company's shareholders. On October 27, 2010, the Company filed a Schedule 14A Preliminary Proxy Statement with the SEC in connection with the Proposed Acquisition pursuant to which, inter alia, 99¢ Only Board Directors recommended that the Company stockholders vote "FOR" the approval and adoption of the Merger Agreement and in favor of the Proposed Acquisition.
On December 14, 2011, pursuant to Federal Rule of Civil Procedure 41(a), Plaintiff voluntarily dismissed the action without prejudice against the Defendants.