Theragenics Corp

Theragenics Corp

Theragenics Corp 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 August 5, 2013, Theragenics Corporation  and Juniper Investment Company, LLC announced that they had entered into an Agreement and Plan of Merger dated as of August 2, 2013 , under which a newly formed affiliate of Juniper (Juniper Acquistion Corporation, hereinafter  agreed to acquire all of Theragenics outstanding common stock at a purchase price of $2.20 per share in cash . On August 9, 2013, Leslie Baker, on behalf of himself and all others similarly situated, filed a Verified Class Action Complaint in the Court of Chancery of the State of Delaware  against M. Christine Jacobs, Kathleen A. Dahlberg, K. Wyatt Engwall, John V. Herndon, C. David Moody, Jr., Peter A.A. Saunders, the Company, MergerCo and Juniper alleging that the Board had breached its fiduciary duties in connection with its consideration and approval of the Merger, that the disclosures made to Theragenics stockholders in connection with the Merger were materially incomplete and/or misleading, and that the Company, MergerCo and Juniper had aided and abetted those breaches of fiduciary duty. 6. On August 9, 2013, Adrienne Halberstam, on behalf of herself and all others similarly situated, filed a Verified Class Action Complaint in the Superior Court of Gwinnett County, Georgia against Defendants alleging that the Board had breached its fiduciary duties in connection with its consideration and approval of the Merger, that the disclosures made to Theragenics stockholders in connection with the Merger were materially incomplete and/or misleading, and that the Company, MergerCo and Juniper had aided and abetted those breaches of fiduciary duty. 7. On August 22, 2013, Julia Davis, on behalf of herself and all others similarly situated, commenced a putative shareholder class action in the Court of Chancery against Defendants alleging that the Board had breached its fiduciary duties in connection with its consideration and approval of the Merger, that the disclosures made to Theragenics stockholders in connection with the Merger were materially incomplete and/or misleading, and that the Company, MergerCo and Juniper had aided and abetted those breaches of fiduciary duty. 8. On August 23, 2013, the Company filed its Preliminary Proxy Statement pursuant to Section 14(a) of the Securities Exchange Act of 1934. 9. On August 29, 2013, the Court of Chancery entered an Order of Consolidation and Appointment of Co-Lead Counsel, consolidating the Baker Action and the Davis Action into a consolidated action styled In re Theragenics Corporation Stockholders Litigation, C.A. No. 8790-VCL, and appointing lead counsel for Plaintiffs. 10. On August 29, 2013, Defendants filed a Motion to Dismiss or Stay in the Halberstam Action; 11. On September 9, 2013, Donald Lawrence, on behalf of himself and all others similarly situated, commenced a putative shareholder class action in the Superior Court of Hall County, Georgia against Defendants alleging that the Board had breached its fiduciary duties in connection with its consideration and approval of the Merger, that the disclosures made to Theragenics stockholders in connection with the Merger were materially incomplete and/or misleading, and that the Company, MergerCo and Juniper had aided and abetted those breaches of fiduciary duty. 12. On September 12, 2013, Plaintiffs filed their Consolidated Amended Class Action Complaint for Breach of Fiduciary Duty alleging that the Board had breached its fiduciary duties in connection with its consideration and approval of the Merger, that the disclosures made to Theragenics stockholders in connection with the Merger were materially incomplete and/or misleading, and that the Company, MergerCo and Juniper had aided and abetted those breaches of fiduciary duty. 13. On September 13, 2013, the plaintiffs in the two Georgia Actions consented to identical Stipulated Orders filed in both of the Georgia Actions providing, among other things, that each of the Georgia Actions would be stayed until the Delaware Action is resolved, or the close of the Merger, whichever is sooner. 14. On September 16, 2013, the Company mailed its definitive Proxy Statement to Theragenics stockholders. 15. On or about September 24, 2013, the parties to the Action agreed to a consensual production by the Company of certain non-public documents requested by Plaintiffs, which included, among other things, minutes of the meetings of the Board, investment bankers presentations and engagement agreements, certain nondisclosure agreements, financial projections reviewed by the Board, and correspondence and email communications relating to the Merger. 16. On or about September 24, 2013, the parties agreed to a Stipulated Scheduling Order Regarding Expedited Proceedings, which among other things, provided for deadlines for document discovery and depositions, briefing on a Motion for Preliminary Injunction, and a hearing on a Motion for Preliminary Injunction. 17. On September 26, 2013, Defendants filed motions to dismiss the Action with prejudice. 18. On September 26, 2013, the plaintiffs to the Georgia Actions consented to the entry of Stipulated Orders in both Georgia Actions in which they stipulated, among other things, that the Georgia Actions would be stayed pending final disposition of the Delaware Action, and that the plaintiffs to the Georgia Actions agreed to be bound by the ultimate outcome of the Delaware Action, whether by judgment, order, opinion, settlement, dismissal or otherwise. 19. On September 27, 2013, the Company completed its production of over 1,000 pages of confidential and non-public documents pursuant to the parties agreement regarding expedited discovery and the Stipulated Scheduling Order. 20. On September 27, 2013, Brown Gibbons Lang & Co. Securities, Inc, independent advisor to the Board with respect to the Merger, also substantially completed a production of over 43,000 pages of documents to Plaintiffs, pursuant to the agreement of the parties. 21. On September 30, 2013, the Court of Chancery entered the Stipulated Scheduling Order, setting a hearing date for a motion for preliminary injunction for October 16, 2013 at 2:00 p.m. 22. On October 3, 2013, Plaintiffs took the deposition of Defendant Dahlberg, and on October 4, 2013, Plaintiffs took the deposition of John Riddle, a representative of BGL. 23. Defendants counsel and Plaintiffs Counsel engaged in arm length discussions and negotiations regarding a potential resolution of the claims asserted in the Action. On October 7, 2013, after arm length negotiations concerning Plaintiffs demand for further disclosures to Theragenics stockholders, the parties entered into a Memorandum of Understanding reflecting their agreement in principle to settle the Action (and, because of the Georgia plaintiffs agreement to be bound by the result of the Action, the Georgia Actions as well). The MOU provided, among other things, that the Company would issue additional disclosures set forth in the Press Release and Form 8-K to be filed with the Securities and Exchange Commission no later than October 7, 2013, and would agree to certain Modifications associated with the potential exercise of stockholders appraisal rights in connection with the Merger, pursuant to 8 Del. C. § 262 . Without admitting any wrongdoing, Defendants acknowledged that the filing and prosecution of the Action and discussions with Plaintiffs Counsel were the sole cause for the Disclosures and the Appraisal Modifications. 24. On October 7, 2013, pursuant to the MOU, the Company filed a Form 8-K relating to the Merger and containing the Disclosures (attached hereto as Exhibit A). 25. Also on October 7, 2013, the MOU was submitted to the Court of Chancery. 26. At a special meeting of the Company stockholders on October 17, 2013, the holders of approximately 95.3% of the stock voting (and 63.0% of the total outstanding shares) voted to approve the adoption of the Merger. 27. On October, 29, 2013, the Merger was consummated. No Theragenics stockholders sought appraisal in connection with the Merger. 28. Following the execution of the MOU, Plaintiffs sought further confirmatory discovery. On November 13, 2013, the Company made a further production of documents to Plaintiffs. On January 9, 2013, Plaintiffs took the deposition of Frank Tarallo, the Company chief financial officer prior to the consummation of the Merger and chief executive officer of the surviving company after the Merger, and on January 10, 2013, Plaintiffs took the deposition of Doug McCartney, a representative of VRA Partners, the Company financial advisor.’

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