TAMPA, Florida--Intelident Solutions has announced reaffirming its offer to acquire Zila for $0.42 per common share and $0.48 per preferred share.
In addition, Intelident announced that it has filed a complaint in the Delaware Court of Chancery accusing Zila's directors of breach of fiduciary duty.
Intelident has also named Tolmar Holding and related entities ("Tolmar") as defendants in the complaint, accusing Tolmar of aiding and abetting the breach of fiduciary duties by Zila's directors.
The five-count complaint alleges that:
1. Zila's directors have breached their fiduciary duties to Zila's shareholders by entering into an agreement with Tolmar that prevents the Zila board from accepting Intelident's superior proposal
2. Tolmar aided and abetted the breach of fiduciary duties by Zila's directors by insisting upon merger transaction documents that prevent Zila's directors from meaningfully considering Intelident's superior proposal
3. Zila fraudulently induced Intelident into executing a non-disclosure and standstill agreement by misrepresenting that Intelident could negotiate the purchase of Zila's senior secured notes directly from the noteholders
4. The non-disclosure and standstill agreement are unenforceable due to the unlawful manner in which Zila's directors are attempting to enforce it. For instance, Zila issued an inaccurate and incomplete press release on July 10, 2009, and is attempting to use the non-disclosure and standstill agreement to prevent Intelident from setting the record straight regarding its superior proposal
5. Zila breached the Covenant of Good Faith and Fair Dealing by refusing Intelident's request to present its bid directly to Zila's shareholders
Intelident's complaint requests that the court suspend any further efforts by Zila and Tolmar to consummate the merger agreement and the note purchase agreement and to permit Intelident to take the steps necessary to pursue its superior proposal.
"We regret that we have had to resort to legal action to obtain fair consideration from Zila's directors," said Thomas Marler, Intelident's CEO, "but Zila has blocked all our efforts to bring a better offer to Zila's shareholders."
Intelident's offer of $0.42 per share of common stock represents a premium of 10.5% over the amount offered to common stockholders by Tolmar. Intelident's offer of $0.48 per share of preferred stock represents a premium of 9.1% over the Tolmar offer.
Contrary to Zila's assertion in its July 10, 2009, press release that Intelident's offer had "strings attached," there are few differences in the terms and conditions between Intelident's proposed agreement and the Tolmar merger agreement other than Intelident's substantial improvements in the price per share.
"The most significant issue concerns Zila's senior secured debt," said Marler. "Zila has suggested publicly that any potential acquirer could purchase their senior secured notes," Marler continued, "but as we claim in our lawsuit, this is false. We now know that Tolmar's agreement with the senior secured noteholders prevents Zila from accepting a superior offer from Intelident or any other party. By failing to allow room to consider superior offers, Zila's directors have breached their fiduciary duties to Zila's stockholders."
As part of its lawsuit, Intelident seeks a level playing field so that it can negotiate the purchase of Zila's senior secured notes from Zila's noteholders.
"We remain committed to pursuing a merger with Zila because of the tremendous opportunities a merger would bring to both companies," said Marler. "Although Zila has never been profitable, we are very impressed by Zila's operational and sales team, its core products, and its technology. Intelident brings a significant track record of operational and financial success to the combined enterprise, which should allow Zila to finally reach its full potential."
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