Notice of Dismissal Without Prejudice of MWI Veterinary Supply, Inc. Litigation and Agreement Upon Attorneys’ Fees
NEW YORK, April 7, 2015 – Notice is hereby provided to all persons who held shares of MWI Veterinary Supply, Inc. (“MWI”) at any time during the period from and including January 11, 2015 through February 23, 2015.
The purpose of this Notice is to inform you about developments with respect to the putative class action lawsuit captioned Winners Circle Investment Club v. MWI Veterinary Supply, Inc. et al., C.A. No. 10608-VCG (the “Action”), including the effects on MWI and its stockholders, the dismissal of the Action, and an agreement to pay attorneys’ fees and expenses to counsel for Plaintiff Winners Circle Investment Club (“Plaintiff”) in the Action.
By way of background, Plaintiff commenced the Action on behalf of itself and a putative class of MWI stockholders to challenge a series of transactions set forth in a January 11, 2015 merger agreement between MWI and AmerisourceBergen Corporation (“AmerisourceBergen”), pursuant to which AmerisourceBergen conducted a Tender Offer for MWI’s shares, and ultimately acquired all outstanding shares of MWI for the right to receive $190.00 per share in cash consideration (the “Merger” or the “Transaction”).
On January 26, 2015, MWI filed a Solicitation /Recommendation Statement with the United States Securities and Exchange Commission (the “SEC”) on Schedule 14D9 (the “Recommendation Statement”) that, among other things, described the background of the Transaction, the fairness opinion issued in connection with the Transaction, and certain financial projections generated by MWI’s management.
Plaintiff reviewed the Recommendation Statement and, on February 3, 2015, filed a Verified Class Action Complaint in the Court of Chancery of the State of Delaware related to the Transaction alleging that the Individual Defendants had breached their fiduciary duties, and that the Company and AmerisourceBergen aided and abetted the Board’s breaches of fiduciary duties.
During the litigation, Plaintiff’s counsel extensively investigated Defendants’ actions in connection with the Merger. Plaintiff’s counsel analyzed, among other things, all of the Merger-related filings made with the SEC, announcements made by Defendants, analysts’ reports and advisories about the Company, and other readily obtainable public information. As a result, Plaintiff identified various items that Plaintiff contended should have been disclosed to MWI’s stockholders in the Recommendation Statement.
On February 4, 2014, Plaintiff filed a Motion for a Preliminary Injunction, a Motion for Expedited Proceedings, and a Brief in Support of Plaintiff’s Motion for Expedited Proceedings. Following briefing by Plaintiff and Defendants, the Court heard argument on the Motion for Expedited Proceedings on February 10, 2015. In its ruling issued the same day, the Court granted in part and denied in part the Motion, finding that Plaintiff had alleged colorable claims that stockholders may have been deprived of certain material information related to the Company’s financial projections. The Court’s finding that Plaintiff had stated colorable claims did not constitute a statement by the Court as to whether those claims would ultimately succeed in any trial. The Court found that Plaintiff’s other claims did not meet the colorable standard.
On February 13, 2015, MWI filed an Amended Recommendation Statement with the SEC on Schedule 14D9/A (the “Amended Recommendation Statement”) (accessible on the United States Securities and Exchange Commission’s website at http://www.sec.gov/Archives/edgar/data/1323974/000110465915010060/a15- 4561_1sc14d9a.htm). The Amended Recommendation Statement supplemented the original Recommendation Statement to include certain additional information (the “Supplemental Disclosures”), which mooted Plaintiff’s disclosure claims in the Action upon which the Court had granted expedited proceedings.
On February 23, 2015, the Tender Offer closed. More than 50% of MWI outstanding common stock was tendered, and the Merger has effectuated under Delaware law.
Through their review of the available information, and in light of the Court’s ruling upon the Motion for Expedited Proceedings and the Supplemental Disclosures, Plaintiff’s counsel concluded that the claims asserted in the Action, for which Plaintiff was primarily seeking equitable relief, were either moot due to the Supplemental Disclosures in the Amended Recommendation Statement or otherwise were highly unlikely to result in obtaining any further benefit for the MWI stockholders.
On March 9, 2015, the parties in the Action jointly submitted to the Court a Stipulated [Proposed] Order Dismissing Action as Moot and Retaining Jurisdiction to Determine Plaintiff’s Counsel’s Application for an Award of Attorneys’ Fees & Reimbursement of Expenses (the “Stipulation”). On March 10, 2015, the Court granted the Stipulation and thereby dismissed the Action without prejudice as to Plaintiff, and without prejudice as to any absent members of the putative class. Pursuant to the Order, the Court retained jurisdiction solely for the purpose of determining Plaintiff’s counsel’s application for an award of attorneys’ fees and reimbursement of expenses.
Only after the Action was dismissed did the parties commence and engage in discussions to resolve issues regarding Plaintiff’s counsel’s application for fees and expenses and the amount thereof. After negotiations, Defendants agreed to make an all-inclusive fee and expense payment to Plaintiff’s counsel in the Action in the amount of $400,000.00 to resolve any application for an award of attorneys’ fees and expenses to be made by counsel for Plaintiff in the Action. This amount will be paid by AmerisourceBergen in its capacity as the acquirer of MWI. The parties to the litigation have agreed that payment will be made within ten (10) days of final dismissal and closure of the Action.