Cymer Inc
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Cymer Inc 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: ‘wherein ASML, through its indirect and wholly-owned subsidiaries, Kona Technologies, LLC and Kona Acquisition Company, Inc., would acquire Cymer (the Merger). Pursuant to the Merger Agreement, each share of Cymer common stock would be converted into the right to receive $20.00 in cash and 1.1502 shares of ASML stock. On October 29, 2012, Plaintiff George Jerome (Plaintiff), on behalf of himself and all others similarly situated, filed a Shareholder Class Action Complaint for Breach of Fiduciary Duty in this Court, alleging that Cymer, Robert P. Akins, Eric M. Ruttenberg, Jon D. Tompkins, Michael R. Gaulke, Charles J. Abbe, Edward H. Braun, Young Kwon Sohn, William G. Oldham, Peter J. Simone, ASML, ASML US Inc., Kona Technologies, LLC, and Kona Acquisition Company, Inc. (collectively, the Defendants) breached their fiduciary duties or aided and abetted the alleged breaches of fiduciary duties in entering into the Merger Agreement. On November 21, 2012, Cymer and ASML filed a Preliminary Form F-4 containing a joint proxy statement/prospectus (the Preliminary Proxy) with the United States Securities and Exchange Commission (the SEC), which, among other things, summarizes the Merger Agreement and provides an account of the events leading up to the execution of the Merger Agreement and a summary of the valuation analyses conducted by Cymer board of directors financial advisor, Goldman, Sachs & Co. (Goldman Sachs). On November 28, 2012, Plaintiff filed a Verified Amended Shareholder Class Action Complaint for Breach of Fiduciary Duty, which contained the same allegations as the October 29, 2012 complaint along with new allegations that the Preliminary Proxy contained misleading and/or incomplete information. Plaintiff counsel has conducted discovery that included a review of certain confidential Cymer documents relevant to the claims asserted in the Action. After arm-length negotiations, counsel to the Plaintiff and Defendants (together, the Parties) reached an agreement-in-principle concerning the proposed settlement of the Action based on the Plaintiff demand for further disclosure to Cymer stockholders in connection with the transactions contemplated by the Merger Agreement. Those extensive negotiations and discussions led to the execution of a memorandum of understanding (the MOU) on December 28, 2012. The MOU provided for an agreement-inprinciple to settle the Action (the Settlement), subject to additional confirmatory discovery and approval of the Court, on the basis of the inclusion of additional disclosures in Cymer Schedule 14A (the Definitive Proxy) in the form attached hereto as Exhibit A, that was filed with the SEC on January 7, 2013, concerning subject areas raised by Plaintiff counsel. Plaintiff represents that, at all relevant times, he has owned shares of Cymer common stock, for which proof of ownership was provided to Defendants counsel prior to the execution of the MOU. On January 4, 2013, the parties notified the Court regarding the MOU and of Plaintiff intention to conduct confirmatory discovery relating to the proposed Settlement. Following the execution of the MOU, and as contemplated therein, Plaintiff counsel conducted a further investigation of the facts and circumstances underlying the claims asserted in the Action, which included, among other things, reviewing and analyzing documents produced by Cymer and conducting the depositions of: Mark Loeffel of Cymer, on August 9, 2013; and Lev Finkelstein of Goldman Sachs, on August 14, 2013. On February 5, 2013, Cymer shareholders approved the Merger. On May 30, 2013, the Merger closed. On the basis of information available to them, including publicly available information, the additional confirmatory discovery described herein, and consultations with independent financial advisors retained by Plaintiff counsel, Plaintiff counsel determined that it was in the interests of the Plaintiff and the Class to settle their claims against the Defendants. Therefore, on January 19, 2014, the Parties entered into the Stipulation and Agreement of Compromise, Settlement and Release (the Stipulation), whereby, subject to approval of the Court, any and all claims that have been or could have been asserted in this putative class action arising out of or relating to the Merger would be finally resolved in the form of the proposed Settlement. Plaintiff and Plaintiff counsel determined that the proposed Settlement described herein is fair, reasonable, adequate, and in the best interests of the Plaintiff and the Class.’