According to the law firm press release, on February 25, 2015 Emulex, Avago and Merger Sub entered into a definitive Agreement and Plan of Merger (the “Merger Agreement”). Pursuant to the terms of the Merger Agreement, Avago commenced its Tender Offer on April 7, 2015. The Tender Offer is scheduled to expire at 12:00 midnight EST on May 5, 2015. Following the completion of the Tender Offer, and subject to the terms and conditions of the Merger Agreement, Merger Sub will be merged with and into Emulex, with Emulex surviving as a wholly owned subsidiary of Avago (the “Merger”).
Concurrent to the execution of the Merger Agreement, certain Emulex directors and executive officers entered into a Tender and Support Agreement (“Support Agreement”) with Avago and Merger Sub, pursuant to which they have agreed to tender their Emulex shares, representing 2.5% of Emulex outstanding public stock, in the Tender Offer.
The complaint alleges that the Schedule 14D-9 Solicitation/Recommendation Statement, which recommended that Emulex stockholders tender their shares, omitted and/or misrepresented material information in contravention of Sections 14(d), 14(e) and 20(a) of the Exchange Act. The omitted information is material to the impending decision of Emulex shareholders on whether or not to tender their shares and/or whether to seek appraisal for their shares. The complaint also alleges that the $8.00 per share offer price is inadequate, as Emulex has experienced significant growth in recent months and has consistently exceeded management’s revenue and earnings expectations. The offer price also fails to adequately value Emulex’s product portfolio and prospects for future growth.
On July 28, 2015, the Court issued an Order appointing Lead Plaintiff and Counsel. On September 17, Lead Plaintiff filed an amended Complaint. On October 13, Defendants filed a Motion to Dismiss the amended Complaint. On January 13, 2016, the Court granted Defendants' Motion to Dismiss and dismissed the case with prejudice. On January 15, Plaintiff filed a Notice appealing the Court's decision.
On April 20, 2018, the Court of Appeals issued a memorandum reversing in part the decision of the District Court and remanding for proceedings consistent with their opinion. On September 14, the case was stayed pending the filing of a petition for writ of certiorari in the Supreme Court. On April 23, 2019, the Supreme Court dismissed the writ of certiorari as improvidently granted.
On October 6, Lead Plaintiff voluntarily dismissed the Merger Partner Company. Defendants filed a Motion to Dismiss the amended Complaint on October 7. On February 25, 2020, the Court issued an Order granting Defendants' Motion to dismiss, dismissing the case with prejudice. On March 24, Lead Plaintiff filed a notice appealing the Court's dismissal Order. The Court of Appeals affirmed the District Court's Dismissal Order on April 15, 2021.