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Michael Rosenberg, Et Al. V. Ronald Hovsepian, Et Al. 10-CV-12272-Class Action Complaint for Violation of the Federal Securities

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Michael Rosenberg, Et Al. V. Ronald Hovsepian, Et Al. 10-CV-12272-Class Action Complaint for Violation of the Federal Securities Case 1: 1 0-cv-1 2272-DPW Document 1 Filed 12/29/10 Page 1 of 36 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS MICHAEL ROSENBERG individually and on ) behalf of all others similarly situated, ) ) Plaintiff, ) Case No.: 10-12272 ) v. ) CLASS ACTION COMPLAINT ) FOR VIOLATION OF THE RONALD HOVSEPIAN, RICHARD ) FEDERAL SECURITIES LAWS, CRANDALL, RICHARD NOLAN, JOHN ) AND FOR VIOLATION OF PODUSKA, FRED CORRADO, ALBERT ) STATE LAW BREACHES OF AIELLO, PATRICK JONES, GARY ) FIDUCIARY DUTY GREENFIELD, JUDITH HAMILTON, ) NOVELL, INC., ATTACHMATE ) JURY TRIAL DEMANDED CORPORATION and LONGVIEW ) SOFTWARE ACQUISITION CORP., ) ) Defendants. ) ) ) ) Plaintiff, by their attorneys, alleges upon information and belief, except for their own acts, which are alleged on knowledge, as follows: 1. Plaintiff brings this action on behalf of the public stockholders of Novell, Inc. (“Novell” or the “Company”) against Novell and its Board of Directors (the “Board” or the “Individual Defendants”) seeking equitable relief for their violations of Section 14(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 14a-9 promulgated thereunder (“Rule 14a-9”), and breaches of fiduciary duty, arising out of their attempt to sell the Company to Attachmate Corporation and Longview Software Acquisition Corp. (collectively “Attachmate”) for $6.10 in cash for each share of Novell common stock (the “Proposed Case 1:10-cv-12272-DPW Document 1 Filed 12/29/10 Page 2 of 36 Transaction” or the “Merger”). The Proposed Transaction is valued at approximately $2.2 billion. The Individual Defendants have breached their fiduciary duties by approving the Proposed Transaction at an unfair price and via an unfair process, arising out of their attempts to provide certain Novell insiders and directors with preferential treatment. 2. As described below, the Proposed Transaction as currently constituted is unfair to Novell’s shareholders because it does not adequately value the Company’s future growth prospects, which will inure to Attachmate if the Proposed Transaction is consummated. Rather, the Individual Defendants were motivated to sell the Company in order to cash out their otherwise illiquid holdings in the Company through the accelerated vesting of stock options, restricted stock units, and restricted stock awards, as well as to take advantage of significant change-in-control and other personal financial benefits that are to accrue to them upon the sale of Novell to Attachmate. Specifically, each Individual Defendant is receiving at least $190,008 through the acceleration and vesting of stock options, restricted stock units, and restricted stock awards that will be cashed out following consummation of the Proposed Transaction. Reaping the most benefit is defendant Ronald Hovsepian (“Hovsepian”), the Company’s CEO and director, who is receiving over $5.5 million for his previously unvested stock options and restricted stock units. In addition, Hovsepian is entitled to receive another $6.9 million pursuant to change of control severance payments. 3. Accordingly, in their evaluation of strategic alternatives, the Board was predisposed to favoring a transaction that resulted in a change of control due to the significant change-in-control and acceleration and vesting benefits. As a result, and as described in more detail below, throughout the process conducted by the Board, the Board did in fact unreasonably favor a sale of Novell that would result in a change of control, while failing to adequately pursue 2 Case 1:10-cv-12272-DPW Document 1 Filed 12/29/10 Page 3 of 36 and consider other offers received by the Company where parties sought to acquire only individual units or assets of Novell. 4. Moreover, as part of the Proposed Transaction, Elliott Associates, L.P. (“Elliot”), one of Novell’s largest shareholders, owning approximately 7.1 % of the Company’s outstanding common stock and holding an economic interest in an additional 1.5% of the Company’s common stock, will become an equity shareholder in Attachmate. The Company permitted, and in fact, aided in the solicitation of Elliot’s participation in the Proposed Transaction with Attachmate. However, the Company failed to provide the same benefit for the Company’s other public stockholders who will be cashed out and will be unable to reap the benefits of the post- merger company’s growth. 5. Defendants have exacerbated their breaches of fiduciary duty by agreeing to lock up the Proposed Transaction with deal protection devices that preclude other bidders from making a successful competing offer for the Company. Specifically, pursuant to the merger agreement dated November 21, 2010 (the “Merger Agreement”), defendants agreed to: (i) a no- solicitation provision that prevents the Company from soliciting and continuing discussion and negotiations with other potential acquirors; (ii) a matching rights provision that allows Attachmate five business days to match any competing proposal in the event one is made; and (iii) a provision that requires the Company to pay Attachmate an unreasonable termination fee of $60,000,000 in the event the Merger Agreement is terminated in order to accept a superior proposal. These provisions substantially limit the Board’s ability to act with respect to investigating and pursuing superior proposals and alternatives including a sale of all or part of Novell. 3 Case 1:10-cv-12272-DPW Document 1 Filed 12/29/10 Page 4 of 36 6. In addition, concurrent with the announcement of the Proposed Transaction, Novell also announced it has entered into a definitive agreement for the concurrent sale of certain intellectual property assets to CPTN Holdings LLC (“CPTN”), a consortium of technology companies organized by Microsoft Corporation (“Microsoft”), for $450 million in cash (the “Asset Purchase Agreement”), which cash payment is reflected in the merger consideration to be paid by Attachmate. The intellectual property assets subject to the Patent Purchase Agreement are extremely valuable to the Company and critical to the Company’s operations. As described below, the Asset Purchase Agreement, at CPTN’s election, will remain in full force and effect even if the Merger is voted down by the Company’s shareholders. Accordingly, if the Merger Agreement is rejected, the Company will be left without a substantial portion of their assets. With the possibility of this scenario occurring, it was the duty of the Board to undertake a process that sought the best transaction available for the Company’s patents and patent applications and obtain the maximum value. The Board has failed to adequately undertake such a process and is in violation of their fiduciary duties. 7. On December 14, 2010, the Company filed a Schedule 14A Proxy Statement (the “Proxy”) with the United States Securities and Exchange Commission (“SEC”) in connection with the Proposed Transaction. The Proxy fails to provide the Company’s shareholders with material information and/or provides them with materially misleading information thereby rendering the shareholders unable to cast an informed vote regarding the Proposed Transaction. 8. In pursuing the improper plan to sell Novell to Attachmate and provide Novell insiders and directors with substantial personal pecuniary benefits in connection with Proposed Transaction, each of the Individual Defendants violated and is violating applicable law by directly breaching and/or aiding and abetting the other defendants’ breaches of their fiduciary 4 Case 1:10-cv-12272-DPW Document 1 Filed 12/29/10 Page 5 of 36 duties of loyalty, due care, candor, good faith and to maximize shareholder value, and by their violations of Rule 14a-9. JURISDICTION AND VENUE 9. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction), as this Complaint alleges violations of Rule 14a-9. This court has jurisdiction over the state law claims pursuant to 28 U.S.C. §1367. 10. Venue is proper in this District because many of the acts and practices complained of herein occurred in substantial part in this District. In addition, Novell maintains its principal executive offices in Massachusetts. PARTIES 11. Plaintiff is, and has been at all relevant times, the owner of shares of common stock of Novell. 12. Novell is a corporation organized and existing under the laws of the State of Delaware. It maintains its principal corporate offices at 404 Wyman Street, Suite 500, Waltham, Massachusetts 02451, and develops, sells and installs enterprise-quality software that is positioned in the operating systems and infrastructure software layers of the information technology industry. 13. Defendant Ronald Hovsepian (“Hovsepian”) has been the President, Chief Executive Officer, and a director of the Company since June 2006. Hovsepian served as President and Chief Operating Officer from October 2005 to June 2006. From May 2005 to November 2005, Hovsepian served as Executive Vice President and President, Worldwide Field Operations. Hovsepian joined the company in June 2003 as President, Novell North America.. 14. Defendant Richard Crandall (“Crandall”) has been Chairman of the Board of the Company since 2008. 5 Case 1:10-cv-12272-DPW Document 1 Filed 12/29/10 Page 6 of 36 15. Defendant Richard Nolan (“Nolan”) has been a director of the Company since 1998. 16. Defendant John Poduska (“Poduska”) has been a director of the Company since 2001. 17. Defendant Fred Corrado (“Corrado”) has been a director of the Company since 2002. 18. Defendant Albert Aiello (“Aiello”) has been a director of the Company since 2003. 19. Defendant Patrick Jones (“Jones”) has been a director of the Company since 2007. 20. Defendant Gary Greenfield (“Greenfield”) has been a director of the Company since 2009. 21. Defendant Judith Hamilton (“Hamilton”) has been a director of the Company since 2009. 22. Defendants referenced in ¶¶ 13 through 21 are collectively referred to as Individual Defendants and/or the Novell Board. The Individual Defendants as officers and/or directors of Novell, have a fiduciary relationship with Plaintiff and other public shareholders of Novell and owe them the highest obligations of good faith, fair dealing, loyalty and due care.
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