In its statement, Fillmore charges that although it had seven times offered to acquire Genesis for a higher price than any current proposal, Genesis amended its agreement with the JV, which raised the bid to the current $69.35 a share, without giving Fillmore "the opportunity to make a superior bid for Genesis for the eighth time. Most importantly," it continues, the amended agreement provides "Formation with a $40-million termination fee, having the effect of prematurely terminating this auction for the second time."
It calls this "wanton disregard for the interests of the Genesis shareholders," and says it had encouraged the Genesis board to give it an opportunity to respond if its seventh offer was matched or breached. Furthermore, Ronald Silva, Fillmore's president and CEO, charges, "one member of the Genesis board has a personal financial interest in direct conflict with his fiduciary duties to shareholders." The member is not named, and a call to Fillmore was not returned by deadline.
Without specifically saying it will not make another offer prior to the May 30 Genesis shareholder meeting, Silva says, "Because the Genesis board has repeatedly failed to create a level playing field, we end where we started. I can only hope the Genesis shareholders right these wrongs."
An on-the-record response, provided to Globe.St.com by a Genesis spokeswoman, says, "Fillmore's characterization of the Genesis board's process is demonstrably inaccurate." It cites the board's characterization of Fillmore's May 14 offer as superior, which "clearly shows that the process was fair and that Fillmore had a real opportunity to win."
It also says that in days leading up to the JV's May 18 offer, "Fillmore was asked numerous times for a best offer" and was "informed repeatedly that any revised offer from Formation/JER would likely include an increased termination fee of $40 million." Without a specific higher offer, the statement says, Fillmore was informed that "the board would assume that $69.25 was Fillmore's best offer."
In addition to responding to Fillmore's charges, Genesis issued a press release saying that Institutional Shareholder Services, a Rockville, MD-based independent proxy advisory firm, recommended that shareholders vote for the JV's $69.35-a-share bid.
An agreement between Formation/JER and Genesis was originally struck this January for $63 a share. A shareholder, Northbrook GH LLC, accused Genesis of "stacking the deck against any other bidder," and Fillmore jumped in with its first counter offer this April.
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