MAKO Surgical Corporation
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MAKO Surgical 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 the lawsuit: ‘On September 25, 2013, MAKO and Stryker announced that their respective boards of directors had unanimously approved an agreement and plan of merger (the Merger Agreement) pursuant to which Stryker would acquire MAKO for $30.00 per share of MAKO stock outstanding, in cash, in a transaction valued at approximately $1.65 billion (the Merger). lawsuits challenging the Merger were filed in the Delaware Court of Chancery: Nickolas W. and Pamela J. Edwards Marital Trust UA 06/22/2007 v. MAKO Surgical Corp., et al., C.A. No. 8958-VCG (Del. Ch.) (the Edwards Action), and Marc A. Schermer v. MAKO Surgical Corp., et al., C.A. No. 8975-VCG (Del. Ch.) (the Schermer Action), each alleging that the Director Defendants breached their fiduciary duties to MAKO stockholders in connection with the Merger and that MAKO, Stryker, and Merger Sub aided and abetted those breaches, and each seeking, among other things, an order enjoining the Merger. Several similar putative class actions were also filed in Florida state court challenging the Merger: Martin Bertisch v. MAKO Surgical Corp., et al., Case No. CACE-13-021921 (Fla. Cir. Ct.); Hilary Kramer Coyne v. MAKO Surgical Corp., et al., Case No. CACE- 13-022075 (Fla. Cir. Ct.); Robert Berg v. Charles W. Federico, et al., Case No. CACE-13-022087 (Fla. Cir. Ct.); John Burns v. MAKO Surgical Corp., et al., Case No. CACE-13-022185 (Fla. Cir. Ct.); Markus Wilburn v. Charles W. Federico, et al., Case No. CACE-13- 022054 (Fla. Cir. Ct.); and Todd Deehl v. MAKO Surgical Corp., et al., Case No. CACE-13-022391 (Fla. Cir. Ct.). The Florida cases were consolidated under the caption In re MAKO Surgical Corp. Shareholder Litigation, Case No. CACE-13-021921(07) (Fla. Cir. Ct.) (the Florida Action). On October 9, 2013, the Court consolidated the Edwards and Schermer Actions and appointed the law firms of Pomerantz LLP (formerly named Pomerantz Grossman Hufford Dahlstrom & Gross LLP) and Rigrodsky & Long, P.A. co-lead counsel for plaintiffs. On October 15, 2013, MAKO filed a preliminary proxy statement (the Preliminary Proxy Statement) in connection with the Merger on Schedule 14A with the Securities and Exchange Commission (SEC). On October 16, 2013, a third putative class action was filed in the Court, Mitchell Frieberg v. MAKO Surgical Corp., et al., C.A. No. 9005-VCG (Del. Ch.) (the Frieberg Action), naming the same defendants, involving similar allegations, and seeking similar relief as the Edwards and Schermer Actions. On October 18, 2013, the Court consolidated the Frieberg Action with the already consolidated Edwards and Schermer Actions and appointed the law firms of Rigrodsky & Long, P.A., Pomerantz LLP, and Levi Korsinsky, LLP as colead counsel for plaintiffs in the Action and on behalf of the putative class (Co-Lead Counsel). On October 21, 2013, Plaintiffs filed a consolidated amended complaint generally alleging that (1) the MAKO board of directors breached its fiduciary duties in connection with its consideration and approval of the Merger and the Merger Agreement; (2) the MAKO board of directors breached its fiduciary duties in connection with certain alleged material misstatements or omissions in the Preliminary Proxy Statement; and (3) the entity defendants aided and abetted those alleged breaches. The alleged misstatements or omissions in the amended complaint included the alleged failure to accurately and properly disclose: (a) the timing and content of communications between MAKO management and Stryker management concerning potential retention of MAKO senior management following the consummation of a potential merger; (b) certain information concerning the inputs, assumptions and findings of the MAKO Board financial advisors financial analyses; and (c) certain projected financial information. On October 23, 2013, Plaintiffs filed a Motion For Preliminary Injunction against the MAKO shareholder vote on the Merger, and also filed a Motion For Expedited Proceedings, which the Defendants opposed. On October 31, 2013, the Florida court issued an order staying all proceedings in the Florida Action pending determination of the issues in the Delaware Action. On November 5, 2013, the Court granted in part, denied in part, and reserved judgment in part on Plaintiffs Motion For Expedited Proceedings. On November 6, 2013, MAKO filed with the SEC a second amended preliminary proxy statement on Schedule 14A (Amended Preliminary Proxy Statement). On November 13, 2013, MAKO filed a definitive proxy statement in connection with the Merger on Schedule 14A with the SEC (the Definitive Proxy Statement) and scheduled the shareholder vote on the Merger for December 13, 2013. From November 12, 2013 through November 20, 2013, MAKO and its directors produced documents to Plaintiffs and Plaintiffs took the depositions of MAKO CEO Maurice Ferré, MAKO Chairman Charles Federico, and J.P. Morgan Securities LLC Managing Director Christopher Martell. On November 22, 2013, Plaintiffs filed a brief in support of their Motion For a Preliminary Injunction. On November 27, 2013, after arms-length negotiations, the Parties reached an agreement-in-principal for a settlement of the Action, the terms of which were set forth in summary form in a memorandum of understanding (the MOU).’