Cascade Corporation, Securities Settlement
The lawsuit was settled for additional disclosures in the proxy statement mailed to shareholders. the following is a summary of the proceedings in this lawsuit: ‘On October 22, 2012, Toyota Industries Corporation, Industrial Components and Attachments II, Inc., and Cascade announced that they had entered into a definitive merger agreement (the Merger of Cascade common stock payable to the holders thereof, by means of a tender offer, followed by a short-form merger of Merger Sub with and into Cascade, with Cascade surviving as an indirect wholly-owned subsidiary of TICO (the Merger). On November 1, 2012, Plaintiff IBEW Local 98 Pension Fund filed a putative class action lawsuit in the Court alleging that the members of the Cascade board of directors, Robert C. Warren, Jr., Henry Wessinger, Peter Nickerson, Nancy Wilgenbusch, Nicholas Lardy, James Osterman, and Duane McDougall breached their fiduciary duties in connection with the Merger and that Cascade, TICO, and Merger Sub aided and abetted the breaches of those fiduciary duties, styled as IBEW Local 98 Pension Fund v. Cascade Corporation, No. 1211-13867 (the IBEW Action). On November 2, 2012, Plaintiff Joseph Polyak filed a putative class action lawsuit in the Court alleging that the members of the Cascade board of directors breached their fiduciary duties in connection with the Merger and that Cascade, TICO, and Merger Sub aided and abetted the breaches of those fiduciary duties, styled as Polyak v. Warren, No. 1211-13933 (the Polyak Action). On November 2, 2012, Cascade filed a Solicitation/Recommendation Statement on Schedule 14D-9 with the United States Securities and Exchange Commission (the SEC) regarding the Merger Agreement (as supplemented, amended, and modified, the Recommendation Statement). On November 9, 2012, Polyak filed an amended complaint in the Polyak Action, alleging that the members of the Cascade board of directors breached their fiduciary duties in connection with the Merger, including by filing a Recommendation Statement that contained material misstatements and omissions, and that TICO and Merger Sub aided and abetted the breaches of those fiduciary duties. On November 9, 2012, Plaintiff IBEW Local 98 Pension Fund filed a motion in the IBEW Action seeking expedited discovery. On November 16, 2012, Cascade filed a motion to dismiss and opposition to IBEW motion for expedited discovery in the IBEW Action. On November 19, 2012, the parties reached an agreement pursuant to which Plaintiff IBEW Local 98 Pension Fund would withdraw its motion for expedited discovery and Cascade would withdraw its motion to dismiss, both without prejudice, and Cascade would produce certain core documents relating to the Merger. On November 20, 2012, Cascade produced 1,189 pages of documents concerning the evaluation of the Merger. In consideration for the full and final settlement and release of all Settled Claims (as defined below), Cascade provided supplemental disclosures (the Supplemental Disclosures), which were not included in the Recommendation Statement. The Supplemental Disclosures were publicly filed on December 14, 2012, sufficiently in advance of the closing of the Merger, which enabled Cascade shareholders to have sufficient time to review and digest them. On January 9, 2013, the Court entered an order, which, among other things, consolidated the IBEW Action and the Polyak Action into a single lawsuit under the caption In re Cascade Corporation Shareholder Litigation, Lead Case No. 1211-13867 (Consolidated with Case No. 1211-13933). At 12:00 midnight, New York City time, on March 27, 2013, the tender offer by Merger Sub for all Cascade common shares, for $65.00 per share, expired. On March 28, 2013, TICO announced the successful completion of the Merger, which closed on March 28, 2013. On July 16, 2013, the parties entered into a Memorandum of Understanding (the MOU), setting forth the terms of an agreement-in-principle to settle the Action.