Pomerantz Announces Notice of Dismissal of Astex Pharmaceuticals, Inc. Class Action and Agreement to Pay Attorneys' Fees and Expenses

NEW YORK, Nov. 11, 2014 (GLOBE NEWSWIRE) -- By order of the Delaware Court of Chancery dated November 5, 2014, the following notice is being published. Former stockholders of Astex Pharmaceuticals, Inc. (ASTX) are urged to review the following notice.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE ASTEX PHARMACEUTICALS, INC. )   CONSOLIDATED

STOCKHOLDERS LITIGATION                  )      C.A. No. 8917-VCL

NOTICE OF DISMISSAL OF CLASS ACTION AND AGREEMENT
TO PAY ATTORNEYS FEES AND EXPENSES

TO:   All Persons who held shares of Astex Pharmaceuticals, Inc. at any time during the period from and including September 5, 2013 through October 11, 2013.

The purpose of this Notice is to inform you about developments with respect to the above-captioned action (the "Action"), including the benefits conferred on Astex Pharmaceuticals, Inc. ("Astex") stockholders in connection therewith, the dismissal of the above-captioned consolidated class action (the "Consolidated Action"), an agreement to pay attorneys' fees and expenses to counsel for Plaintiffs in the Consolidated Action, and your right to object to that fee agreement prior to the closure for all purposes of the Consolidated Action.

By way of background, plaintiffs commenced the Consolidated Action on behalf of themselves and a putative class of Astex stockholders to challenge a series of transactions set forth in a September 5, 2013 merger agreement between Astex and Otsuka Pharmaceutical Co., Ltd. ("Otsuka"), pursuant to which Otsuka ultimately acquired, through a tender offer (the "Tender Offer"), all outstanding shares of Astex for $8.50 per share in cash (the "Transaction").

Related actions were commenced by other Astex stockholders in state court in California (the "California Actions") to challenge the Transaction on behalf of a similar putative class of Astex stockholders (which were consolidated under Wagner v. Astex Pharmaceuticals, Inc., Case No. HG13695090 (Alameda Cnty. Sup. Ct. Sept. 17, 2013)).

On September 13, 2013, Astex issued an initial Schedule 14D-9 Solicitation/Recommendation Statement (the "14D-9") 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 Astex's management.

Plaintiffs in the Consolidated Action and the plaintiffs in the California Actions separately reviewed the 14D-9 and separately filed amended complaints that identified various items that plaintiffs contended should have been, but were not, disclosed to Astex's stockholders in the 14D-9, thus allegedly depriving Astex's stockholders of the ability to make an informed decision whether (i) to tender their shares in support of the Transaction, or (ii) exercise their appraisal rights.

Plaintiffs in the Consolidated Action and plaintiffs in the California Actions reached an agreement to coordinate their efforts in prosecuting the litigation arising out of the Transaction.

Prior to the expiration of the Tender Offer, plaintiffs in the Consolidated Action and plaintiffs in the California Actions engaged in joint expedited discovery pursuant to which Astex and defendants James S.J. Manuso, Charles J. Casamento, Thomas V. Girardi, Allan R. Goldberg, Walter J. Lack, Harren Jhoti, Peter Fellner, Timothy Haines, and Ismail Kola (collectively, the "Astex Defendants") produced more than 50,000 pages of documents concerning, among other things, the process leading up to the Transaction, the financial analyses performed by Astex's financial advisor, Astex's internal financial projections, and details of its potential pipeline of pharmaceutical products throughout its R&D and commercialization process.

The plaintiffs in the Consolidated Action and in the California Actions demanded, among other things, that Astex make certain supplemental disclosures concerning the Transaction, including with respect to the sales process leading up to the Transaction, the financial analyses supporting the fairness opinion provided in support of the Transaction, and, most notably, product-level information concerning Astex's financial projections.

On October 1, 2013, Astex issued a supplemental Schedule 14D-9/A Solicitation/Recommendation Statement (the "Supplemental 14D-9/A"), (accessible on Astex's website at http://www.astx.com, on the website of the U.S. Securities and Exchange Commission¹, or by contacting Plaintiffs' Delaware Counsel by writing to the address listed below or by phone at (302) 295-5310) which included the additional disclosures regarding the Transaction identified above, and which plaintiffs in the Consolidated Action and in the California Actions believe enabled Astex's stockholders to make a more fully informed decision with respect to the Transaction.

The Transaction closed on October 11, 2013. Also on October 11, 2013, Otsuka filed a motion and brief in support of judgment on the pleadings and a Motion for Class Certification in the Consolidated Action. On October 17, 2013, Astex and the individual defendants filed a motion and brief in support of judgment on the pleadings in the Consolidated Action, and followed up by filing a similar motion, as well as a renewed motion to stay, in the California Actions.

By an Order dated November 1, 2013, the Delaware Court of Chancery (the "Court") certified a class of Astex stockholders (the "Class" as defined in that Order) and appointed lead plaintiffs and lead counsel in the Consolidated Action.

Through their review of the documents and discussions with their financial experts, plaintiffs in the Consolidated Action and in the California Actions jointly concluded that the claims asserted in the Consolidated Action and the California Actions, for which plaintiffs were primarily seeking equitable relief, were either moot due to the supplemental disclosures in the Supplemental 14D-9/A or did not have merit. As such, Plaintiffs decided not to respond to the Defendants motions for judgment on the pleadings. On November 27, 2013, the parties in both the Consolidated Action and the California Actions submitted stipulations to dismiss their respective actions with prejudice as to the named plaintiffs only and without prejudice as to the remaining members of the Class.  The parties did not discuss fees at this time.

On November 29, 2013, the Court granted the Stipulation filed in the Consolidated Action and thereby dismissed the Consolidated Action with prejudice as to the named plaintiffs in the Consolidated Action but without prejudice as to any claims belonging to the remaining members of the Class, and retained jurisdiction solely for the purpose of determining plaintiffs' application for an award of attorneys' fees and reimbursement of expenses. On December 10, 2013, a similar order was entered in the California Actions pursuant to the Stipulation filed therewith, granting the parties' request to dismiss the California Actions with prejudice as to the named plaintiffs but without prejudice as to any claims belonging to the remaining members of the Class. 

Only after the Consolidated Action and the California Actions were dismissed did the parties commence and engage in discussions to resolve issues regarding plaintiffs' counsel's application for fees and expenses and the amount thereof, based on the benefits provided by the supplemental disclosures made on October 1, 2013.

After negotiations, defendants have agreed to make a global fee and expense payment to counsel in both the Consolidated Action and the California Actions in the amount of $640,000.00 in total in recognition of the benefit conferred on Company stockholders through the issuance of the Supplemental 14D-9/A, as detailed above, and to resolve any application for an award of attorneys' fees and expenses to be made by counsel for plaintiffs in the Consolidated Action or the California Actions. Plaintiffs intend to seek an order closing the Consolidated Action (the "Closure Order") after the expiration of the objection period (detailed below) (the "Objection Process").

RIGHT TO OBJECT

If you are a Class member, you may object to the payment of attorneys' fees and expenses described above. Every objection must be in writing and contain: (i) your name, address, email address, and telephone number; (ii) the number of shares of Astex stock you held prior to the consummation of the Transaction, together with third-party documentary evidence, such as the most recent account statement, showing such share ownership; and (iii) a detailed statement of your objections and all grounds therefore, including any supporting documents to be considered by the Court. Written objections must be received within 45 days of the date of this Notice or NO LATER THAN December 26, 2014. All such objections must identify the case number (C.A. No. 8917-VCL) and must be filed with the Court at:

Register in Chancery
500 N. King St. #1551
Wilmington, DE 19801

And copies of all such papers must also be sent to the following Counsel in the Consolidated Action:

If an objection is filed, and served, in conformity with the procedures outlined in this Notice, a hearing will be held before the Court, in the New Castle County Courthouse, 500 North King Street, Wilmington, Delaware 19801, on Thursday, January 8, 2015, at 2:00 p.m.

If you do not take the steps described above (or if you make objections and those objections are rejected by the Court), you will be bound by the Closure Order which the Court may enter without further action by the parties or other stockholders following the expiration of the objection period.

¹ http://www.sec.gov/Archives/edgar/data/919722/000110465913073495/a13-21595_1sc14d9a.htm