Published June 26, 2018
The purpose of this Notice is to inform you about developments with respect to the putative class action lawsuit captioned Pazral v. Fogo de Chão, Inc., et al., C.A. No. 2018-0202-JTL (the “Action”), including the effects of these developments on Fogo and its stockholders, the dismissal of the Action, and an agreement that has been reached for the payment of attorneys’ fees and expenses to counsel for Plaintiff Jan Pazral (“Plaintiff”) in the Action.
This matter concerned a February 20, 2018 merger agreement between Fogo and Prime Cut Intermediate Holdings, Inc. (“Prime Cut”). Pursuant to this agreement, Prime Cut ultimately acquired all outstanding shares of Fogo for the right to receive $15.75 per share in cash consideration (the “Merger” or the “Transaction”). Because Fogo’s controlling stockholder, Thomas H. Lee Partners, held approximately 60.7% of the voting common stock in the Company and provided its written consent to the Transaction, the Transaction was approved without a stockholder vote.
On March 16, 2018, Fogo filed a Definitive Information Statement (the “Information Statement”) with the United States Securities and Exchange Commission (the “SEC”) on Form DEFM14C that, among other things, described the background of the Transaction, the fairness opinion issued in connection with the Transaction, and certain financial projections generated by Fogo’s management.
On March 22, 2018, Plaintiff filed a Verified Class Action Complaint in the Court of Chancery of the State of Delaware related to the Transaction alleging that the individual defendants had breached their fiduciary duties by failing to disclose material information necessary for Fogo stockholders to determine whether to seek appraisal of their shares (the “Action”). Immediately thereafter, counsel for the Defendants informed counsel for the Plaintiff that Defendants intended to moot Plaintiff’s claims, and the parties negotiated the content of certain supplemental disclosures.
On April 2, 2018, Fogo filed a Form 8-K (the “Supplemental Disclosures”) (accessible on the United States Securities and Exchange Commission’s website at https://www.sec.gov/Archives/edgar/data/1627487/000095010318004191/dp89021_8k.htm). This form supplemented the original Information Statement to include certain additional information which mooted Plaintiff’s claims.
On April 6, 2018, the parties in the Action jointly submitted to the Court a Stipulated [Proposed] Order Dismissing Action as Moot and Retaining Jurisdiction to Determine Plaintiff’s Counsel’s Application for an Award of Attorneys’ Fees & Reimbursement of Expenses (the “Stipulation”). The next day, the Court granted the Stipulation and thereby dismissed the Action with prejudice as to Plaintiff, and without prejudice as to any absent members of the putative class. Pursuant to the Order, the Court retained jurisdiction solely for the purpose of determining Plaintiff’s counsel’s application for an award of attorneys’ fees and reimbursement of expenses.
Only after the Action was dismissed did the parties commence and engage in discussions regarding a resolution of Plaintiff’s counsel’s application for fees and expenses and the amount thereof. After negotiations, Defendants agreed to make an all-inclusive fee and expense payment to Plaintiff’s counsel in the Action in the amount of $75,000.00 to resolve any application for an award of attorneys’ fees and expenses to be made by counsel for Plaintiff in the Action. This amount will be paid by Fogo. The parties to the litigation have agreed that payment will be made within ten (10) days of final dismissal and closure of the Action.
CONTACT: Levi & Korsinsky, LLP Donald J. Enright, Esq. 1101 30th Street, NW Suite 115 Washington, DC 20007 Tel: (202) 524-4290 Fax: (866) 367-6510 www.zlk.com