Settlement clears the way for Trulia acquisition of Market Leader

Shareholders agree to drop claims of breach of fiduciary duty

Real estate marketing software company Market Leader Inc. has agreed to settle three lawsuits brought on behalf of shareholders seeking to block the company’s acquisition by real estate portal giant Trulia.

The suits, consolidated in King County (Wash.) Superior Court in July, allege, in part, that Market Leader’s board of directors didn’t shop the firm around to get the best deal for shareholders before approving the proposed acquisition and failed to provide shareholders with important information regarding the merger in public filings.

Gavel image via Shutterstock.
Gavel image via Shutterstock.

Market Leader, all of the members of the company’s board of directors, Trulia, and Trulia subsidiary Mariner Acquisition Corp. were named as defendants.

In amendments to a proxy statement, Market Leader said it believes the complaints are “without merit,” denied the allegations, and maintained the defendants had committed no wrongdoing.

But, “to avoid the costs, disruption and distraction of further litigation, and to permit the timely consummation of the merger,” the firm said the defendants “have concluded that it is desirable that the claims against them be resolved.”

The parties agreed to a settlement on Aug. 5, subject to court approval. In exchange for the release of all claims against the defendants related to the merger, Market Leader agreed to provide additional disclosures regarding the merger’s origins.

The company reserved the right to oppose a planned request from the lead plaintiff and the plaintiff’s attorney in the case for reimbursement of costs and fees related to the consolidated lawsuit.

The additional supplemental disclosures referred to in the settlement proposal were included as part of Market Leader’s proxy statement. They include details about how Trulia and Market Leader arrived at a purchase price of $11 per share, 55 percent in cash and 45 percent in Trulia stock.

Trulia first proposed a price per share of $10.25 and asked for “deal protections” that would help ensure the transaction closed, according to the original version of the proxy statement, filed last month.

Deal protections are common in merger agreements. Among other protections, Trulia asked for a “non-solicitation” provision prohibiting Market Leader from asking for competing bids from other companies; a “force the vote” provision that would compel Market Leader to hold a shareholder vote on Trulia’s bid even if the Market Leader board has changed its recommendation favoring the Trulia deal if a better bid comes along; and a “breakup fee” of 5 percent of the transaction’s value plus reimbursement of Trulia’s expenses should Market Leader’s board change its recommendation.

The deal protections requested did not prevent any third party from making an acquisition proposal superior to Trulia’s and did not prevent the board from considering the proposal and changing its recommendation.

Market Leader countered, proposing $11 per share and other term changes. The company also tried to assess interest from other companies in combining with Market Leader, particularly two (unnamed) companies that had previously expressed interest but offered no definitive proposal. After an internal review, one of the companies said it was no longer interested in acquiring Market Leader. Market Leader said it was unable to make contact with the second company.

Ultimately, Market Leader agreed to the deal protections requested by Trulia in exchange for an $11 per share purchase price, a 4.5 percent breakup fee, and a $1 million cap on reimbursement of Trulia’s expenses.


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