The complaint alleges violations of state law by the Board of Directors of EMSC relating to the proposed acquisition of the company by Clayton, Dubilier & Rice, LLC ("CD&R"). The complaint alleges that EMSC's Board of Directors breached their fiduciary duties by failing to maximize shareholder value, among other things.
On February 14, 2011, the complaint states, EMSC and CD&R announced that they entered into a definitive Agreement and Plan of Merger for EMSC to be acquired by CD&R in a transaction valued at approximately $3.2 billion. The complaint alleges that under the terms of the agreement, EMSC shareholders will receive $64.00 in cash for each share of EMSC Class A common stock and Class B common stock and each LP Exchangeable Unit. The complaint alleges that the Proposed Acquisition significantly undervalues EMSC, since it represents approximately a 9.4% decline over EMSC's closing share price on February 11, 2011 of $70.66, the last day before the transaction was announced.
The complaint alleges that analysts have asserted that they "had expected the range to be between $70 and $75" and that "[m]ost analysts and investors alike would agree that based on the pure operational potential of the company in 2011 you could easily value it above $70." The complaint also alleges that the defendants failed to disclose or explain the components of the "transactional costs" estimated at $300 million included in the purchase price for its $3.2 billion leveraged buyout, when transaction fees on a deal this size typically amount to $30 million. The complaint states that at least one analyst speculates that the "costs" must include some kind of payment to Onex Corporation, which owns 31% of EMS and has a management agreement that pays it a couple of million dollars a year.
The complaint further alleges that rather than acting in the best interests of the shareholders, defendants spent substantial effort in securing material benefits for themselves as a result of the Proposed Acquisition, including the accelerated vesting and monetization of illiquid equity holdings in the Company and change of control severance payments, which will provide tens of millions of dollars in gains to the Board and members of EMSC's management.
