At least four law firms have launched investigations into Cybex’s plans to take the company private, but Arthur Hicks, Cybex International’s president, chief operating officer and chief financial officer, says that any possible lawsuits are without merit.
“It’s clear that there’s a profession that does this, preys on these kinds of situations and tries to drum up business,” Hicks says. “We don’t think there is any merit in any lawsuit of any kind. They may end up filing it, but that is their prerogative.”
The law firms state they are looking at possible breaches of fiduciary duties and other violations of state law related to the company’s plans to be taken private by a group that includes its largest shareholder, UM Holdings, which is owned by Cybex Chairman and CEO John Aglialoro and his wife, Cybex Director Joan Carter.
“We’re very proud of the process,” Hicks says. “We’re very proud that John did not try to just make the minimum offer. He’s worked hard. He’s been conscious about trying to serve the shareholders all along since he’s been involved since 1997.”
On Wednesday, Cybex announced that its board of directors had authorized the company to enter into an agreement to go private. Under the terms of the transaction, Cybex shareholders will receive $2.55 for each share of Cybex stock they own. The transaction has a total approximate value of $22 million.
UM Holdings, Aglialoro and Carter own 49.5 percent of Cybex and would be the only stockholders in the company after the sale.
The four law firms that have announced investigations into the merger are Block & Leviton LLP, Boston; Levi & Korsinsky, New York; Rigrodsky & Long, P.A., Wilmington, DE; and the Rosen Law Firm, New York.
For much of 2010, Cybex was defending itself against a product liability lawsuit, and after being found 75 percent liable in the $66 million judgment in December 2010, the company spent much of 2011 appealing the verdict. Cybex settled that case in February 2012 for $19.5 million.
Partially as a result of that lawsuit, Cybex spent much of 2011 at risk of being delisted from NASDAQ because it was unable to comply with NASDAQ’s requirements to have a minimum stockholders’ equity of $10 million, a minimum bid price for its common stock of $1 per share and a minimum market value of publicly held shares of $5 million.
The company’s stock rose above $1 on Feb. 6, 2012, when it closed at $1.19. On Feb. 16, it rose above $2, closing at $2.35. It continued to trade in the $2 range through May 16, reaching a high of $2.97 on April 26. Since May 17, it has traded below $2 per share, even dropping as low as $1.20 on Aug. 8. The day before the announcement, shares closed at $1.35. The day after the announcement, they closed at $2.45.
However, Block & Leviton LLP is looking at whether the acquisition was purposely timed to take advantage of what it called a temporary drop in the share price of Cybex. The firm also stated it would look at whether Cybex’s directors breached their fiduciary duties by failing to maximize shareholder value in the deal, and it is looking at the process by which the directors considered and approved the transaction.
The firm stated that upon assessment of key valuation criteria, Cybex currently trades at a significant discount, and consummating the proposed transaction will deprive shareholders of realizing benefits inherent in its current under-valuation.
Levi & Korsinsky also is investigating whether the proposed price for shareholders is unfair and substantially below the fair or inherent value of Cybex, and whether the consortium is taking advantage of its position as controlling shareholders to purchase the company at an unfair price.
Rigrodsky & Long is looking at whether Cybex’s board of directors failed to adequately shop the company and obtain the best possible value for Cybex’s shareholders before entering into the agreement to be taken private.
Hicks says that being a public company is difficult, distracting and expensive, which was not good for the company, its employees, its customers or its shareholders.
“There was little benefit to being public,” he says. “[It’s] different than 30 or so years ago when Cybex became public. There are more ways to access capital now. There are much higher levels of regulation and costs of being public. From the cost-benefit standpoint, it doesn’t really make sense. And from the shareholder standpoint, there is less liquidity in the stock, so it’s difficult to attract mutual funds or institutional investors or research groups. It makes sense all around. It’s time-consuming being public.”
The plan will be presented to shareholders at a meeting in January. Two-thirds of all shareholders and 50 percent of the non-interested shareholders (those who are not UM Holdings or Aglialoro and Carter) must approve the plan, according to Hicks.
Hicks is a member of the board of UM and is its chief financial officer in addition to working for Cybex and serving on its board. Cybex said in its Form 8-K filing with the Securities and Exchange Commission that it anticipates that Aglialoro, Carter and Hicks will continue in their current positions with Cybex after consummation of the merger.
The company also said that James H. Carll, a member of the Cybex and UM boards and a stockholder of Archer & Greiner, the law firm that acts as general counsel to Cybex and UM, will continue with the company. The company also plans to continue with Archer & Greiner as its legal counsel.
Hicks did not completely rule out the possibility of a smaller board, saying that private companies do not have the same requirements of their boards.