UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 25, 2013
EnergySolutions, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
|
001-33830 |
|
51-0653027 |
423 West 300 South |
|
84101 |
(801) 649-2000
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2b)
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4c)
Item 8.01 Other Events.
Pursuant to the Preliminary Approval of the Stipulation of Compromise and Settlement by the Supreme Court of the State of New York, County of New York (the Court), dated March 20, 2013, EnergySolutions, Inc. (the Company, EnergySolutions, we, us or our) is hereby providing, as Exhibit 99.1 to this report, the Notice of Proposed Settlement of Derivative Action, Hearing Thereon and Right to Appear (the Notice). The Notice relates to the proposed settlement of a shareholder derivative action. A Settlement Hearing will be held before the Court on April 15, 2013 to determine whether to confirm the terms of the Stipulation of Compromise and Settlement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. |
|
Description |
99.1 |
|
Notice of Proposed Settlement of Derivative Action, Heading Thereon, and Right to Appear |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
Date: March 25, 2013
|
ENERGYSOLUTIONS, INC. | |
|
| |
|
| |
|
By: |
/s/ Russ Workman |
|
Name: |
Russ Workman |
|
Title: |
General Counsel |
Exhibit 99.1
SUPREME COURT OF STATE OF NEW YORK
COUNTY OF NEW YORK
|
|
|
JACK FISH, Derivatively on Behalf of Nominal Defendant ENERGYSOLUTIONS, INC., |
|
|
|
|
Index No. 651708/2010 |
Plaintiff, |
|
|
|
|
|
v. |
|
|
|
|
|
LINDSAY GOLDBERG & BESSEMER, L.P., ENV HOLDINGS, LLC, ALAN E. GOLDBERG, ROBERT D. LINDSAY, ROBERT J.S. RORISTON, LANCE L. HIRT, and ANDREW S. WEINBERG, |
|
|
|
|
|
Defendants, |
|
|
|
|
THIS DOCUMENT HAS BEEN E-FILED AS DOCUMENT NO. |
and |
| |
|
| |
ENERGYSOLUTIONS, INC., |
| |
|
| |
Nominal Defendant. |
|
NOTICE OF PROPOSED SETTLEMENT
NOTICE OF PROPOSED SETTLEMENT OF DERIVATIVE ACTION,
HEARING THEREON, AND RIGHT TO APPEAR
IMPORTANT NOTICE TO ALL CURRENT HOLDERS OF ENERGYSOLUTIONS, INC. (ENERGYSOLUTIONS OR THE COMPANY) COMMON STOCK AS OF , 2012 (CURRENT ENERGYSOLUTIONS SHAREHOLDERS) (EXCLUDING DEFENDANTS) AND THEIR SUCCESSORS-IN-INTEREST. PLEASE NOTE THAT THE ABOVE-CAPTIONED ACTION IS NOT A CLASS ACTION AND NO INDIVIDUAL SHAREHOLDER HAS THE RIGHT TO BE COMPENSATED AS A RESULT OF THE SETTLEMENT DESCRIBED BELOW.
PLEASE READ THIS NOTICE CAREFULLY AND COMPLETELY. IF YOU ARE A CURRENT ENERGYSOLUTIONS SHAREHOLDER, YOUR RIGHTS MAY BE AFFECTED BY PROCEEDINGS IN THE ACTION.
PLEASE TAKE NOTICE that the above-captioned shareholder derivative action (the Action) is being settled. The terms of the proposed settlement of the Action (the Settlement) are set forth in a Stipulation of Compromise and Settlement dated November 30, 2012 (the Stipulation). On April 15, 2013, at 2:15 p.m., a hearing (the Settlement Hearing) will be held before the Supreme Court of the State of New York, County of New York (the Court), 60 Centre Street, New York, New York 10007, before the Honorable Justice Kornreich, to determine: (i) whether the terms of the Settlement should be approved as fair, reasonable and adequate; (ii) whether to award Plaintiffs Counsel fees and expenses in the amount of $1,650,000 (the Fee and Expense Award); and (iii) whether the Action should be dismissed with prejudice against the Defendants as set forth in the Stipulation filed with the Court.
This summary should be read in conjunction with, and is qualified in its entirety by reference to, the text of the Stipulation, which has been filed with the Court. Unless stated otherwise, all capitalized terms here have the same meaning as set forth in the Stipulation.
The Action was brought derivatively on behalf of EnergySolutions against certain former officers and directors of the Company for allegedly violating their fiduciary duties by selling
shares of EnergySolutions common stock in the Companys June 2008 stock offering with the benefit of material non-public information and against the Companys former majority stockholder and an affiliate for allegedly aiding and abetting the alleged violation of fiduciary duties.
In 2005, the Individual Defendants, their affiliates, and other investors formed ENV Holdings, which acquired the predecessor to EnergySolutions and various other waste disposal companies for the purpose of creating a vertically integrated nuclear radioactive waste disposal company. At all relevant times the Individual Defendants and their affiliates, including Lindsay Goldberg, owned and controlled ENV Holdings and served as, among other things, principals of ENV Holdings, members of ENV Holdings Board of Managers, and directors of EnergySolutions.
On July 24, 2008, the Company conducted the July 2008 Offering. Through the July 2008 Offering, ENV Holdings sold approximately 73% of its then-current holdings of EnergySolutions common stock.
The July 2008 Offering was conducted pursuant to the July 2008 Registration Statement, which discussed the Companys purported business relationships, as well as its purported potential for business growth and purported investment opportunities.
On October 14, 2008, the Company issued a press release announcing that: (1) the trust fund for the Companys Zion Project had significantly decreased in value, and that the Company would not be further pursuing the project at that time; (2) the Nuclear Regulatory Commission had denied the Companys petition to amend the rule against releasing decommissioning trust funds for use in operating facilities; and (3) the revenues and earnings
estimates the Company had previously provided in the July 2008 Registration Statement would be significantly reduced.
In the Action Plaintiff alleges, among other things, that the Individual Defendants, through ENV Holdings and Lindsay Goldberg, sold EnergySolutions stock in the July 2008 Offering based on material non-public information regarding the true but undisclosed nature of the Companys existing business relationships and business opportunities.
On December 9, 2011, the Parties held a mediation session with the Honorable Layn R. Phillips (Ret.) (Judge Phillips) in an attempt to resolve the Action and the Class Action. The Parties did not reach a resolution at that time.
Beginning on July 19, 2012, Plaintiffs counsel received the first of a series of rolling document productions. Plaintiff received documents on July 19, 2012, August 9, 2012, September 4, 2012 and September 11, 2012. Plaintiff received and reviewed a total of 594,390 pages of documents produced by Defendants.
On September 7, 2012, the Parties held another mediation session with Judge Phillips in a further attempt to resolve the Action and the Class Action. The Parties did not reach a resolution at that time.
On or around October 11, 2012, as a result of subsequent negotiations conducted through Judge Phillips, the parties to the Action and Class Action reached an agreement to settle the actions.
The terms of the Settlement set forth in the Stipulation provide for payment by the Companys directors and officers liability insurers (collectively, Insurers) to the Company the sum of $6,500,000, as instructed in writing by the Company, which amount the Company may direct to be contributed to the settlement of the Class Action. In exchange therefor,
Plaintiff, derivatively on behalf of EnergySolutions, shall completely discharge, dismiss with prejudice on the merits, settle and release the Released Claims as to all Released Persons, and all such Released Claims shall be barred by injunction. Plaintiff will also release all claims against Defendants counsel related to the defense of the Action. The Defendants and their Related Persons shall also release any claims they may have against Plaintiff and Plaintiffs counsel related to their bringing and prosecuting the Action. Defendants have denied and continue to deny each and all of the claims and contentions alleged by Plaintiff in the Action and all charges of wrongdoing or liability against them.
Any Current EnergySolutions Shareholder that objects to the Settlement of the Action and/or the Fee and Expense Award shall have a right to appear and to be heard at the Settlement Hearing, and may enter an appearance of counsel of such shareholders own choosing at such shareholders own expense, or may appear on his or her own. However, no Person other than Plaintiffs counsel and Defendants counsel in the Action shall be heard at the Settlement Hearing unless, no later than fourteen (14) calendar days prior to the date of the Settlement Hearing, such shareholder has filed with the Court and delivered to counsel for the Parties a written notice of objection, signed as authorized by the objecting shareholder, setting forth the ground(s) for the objection and proof of the shareholders status as a Current EnergySolutions Shareholder. Any objecting shareholder must also file with the Court and deliver to all counsel in the Action (listed below) no later than fourteen (14) calendar days prior to the date of the Settlement Hearing copies of any documents, exhibits, affidavits, or other evidence the shareholder will rely upon in support of his or her objection. Only Current EnergySolutions Shareholders who have filed and delivered valid and timely written notices of objection will be entitled to be heard at the Settlement Hearing unless the Court orders otherwise.
If you wish to object to the Settlement and/or the Fee and Expense Award, you must file with the Court and serve on the counsel listed below a written objection setting forth the ground(s) for such objection and providing proof of your current ownership of EnergySolutions stock and any supporting documents no later than fourteen (14) calendar days prior to the Settlement Hearing:
THE SHAPIRO FIRM LLP
Robert J. Shapiro
500 Fifth Avenue, 14th Floor
New York, New York 10110
KESSLER TOPAZ MELTZER & CHECK, LLP
Eric L. Zagar
280 King of Prussia Road
Radnor, Pennsylvania 19087
Counsel for Plaintiff Jack Fish
SIMPSON THACHER & BARTLETT LLP
Bruce D. Angiolillo
Jonathan K. Youngwood
Evan I. Cohen
425 Lexington Avenue
New York, New York 10017-3954
Counsel for Nominal Defendant EnergySolutions Inc.
CRAVATH SWAINE & MOORE LLP
Daniel Slifkin
825 Eighth Avenue
New York, New York 10019
Counsel for Defendants Lindsay Goldberg
& Bessemer, L.P., ENV Holdings, LLC,
Alan E. Goldberg, Robert D. Lindsay,
Robert J.S. Roriston, Lance L. Hirt, and
Andrew S. Weinberg
Any person who fails to object in the manner described above shall be deemed to have waived the right to object (including any right of appeal) and shall be forever barred from raising such objection in this or any other action or proceeding, unless the Court orders otherwise.
Current EnergySolutions Shareholders who have no objection to the Settlement or the Fee and Expense Award do not need to appear at the Settlement Hearing or take any other action. If you are a Current EnergySolutions Shareholder, you will be bound by the Order and Final Judgment of the Court, and you will be deemed to have released any and all claims that have or could have been brought in the Action.
This Notice was published as a Company Current Report via a Form 8-K on , 2012, and filed with the United States Securities and Exchange Commission (the SEC) on that date. You may obtain a copy of this Notice by referring to the SECs website at http://www.sec.gov.
Inquiries may be made to counsel for Plaintiff Fish: Eric L. Zagar, Kessler Topaz Meltzer & Check, LLP, 280 King of Prussia Road, Radnor, PA 19087; telephone (610) 667-7706.