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Court extends restraining order on Aegean's HEC takeover to April 9

US judge finds 'good cause' to extend restraining order by a further 14 days.

Husky Trading, as principal, and Travelers Casualty and Surety Company of America, as surety, are required to deposit the $350,000 bond pursuant to Rule E (5) of the Supplemental Rules for Admiralty or Maritime Claims. Image credit: Pixabay CC0

Updated on 19 Mar 2018 11:37 GMT

The case between plaintiff RBM Holdings and NYSE-listed Aegean Marine Petroleum Network Inc took another twist on Friday when the US District Court Southern District of New York decided to extend a temporary 14-day restraining order (TRO) on Aegean's takeover of Greek shipping waste specialist HEC Europe Ltd (HEC) to April 9.

The latest development follows the March 12 court order granting a temporary 14-day restraining order up until March 26 after a legal complaint was filed on March 8 by RBM - a limited liability company that was formed earlier this month by Aegean shareholders Tyler Baron, Justin Moore and August Roth - which argues that the previously announced agreement to acquire HEC is "structured for the benefit of insiders at the expense of the plaintiff and other minority shareholders".

In the court order issued on March 16 and seen by Bunker Index, District Judge Loretta Preska states: "Here, the Court finds good cause to extend the TRO for a like time, that is, an additional fourteen days. The irreparable injury presented by the proposed transaction with respect to (1) dramatically diluting shareholders and destroying shareholder value, and (2) threatening the corporate electoral process, particularly the election of [the] Plaintiffs' slate of directors... will continue through that time."

Preska adds: "Given the continuing irreparable harm, the practicalities of litigation, some of which could be avoided by cooperation by [the] Defendants, provide more than ample good cause for extending the TRO for an additional fourteen days."

The court document also argues that "no evidence has been presented that the proposed [acquisition] transaction is time[-]sensitive".

Three causes for delay

Backing up its decision with three main causes for delay, the US court explains, first of all, that many of the documents needed for the preliminary hearing are located in Greece and Aegean's defence counsel is understood to have stated that these documents will not be produced. As a result, judicial intervention - and translation of the documents - may be necessary, causing delay.

Secondly, two Greece-based members of Aegean's Special Committee have apparently declared that they will not appear in the US for deposition, so counsel will be required to travel to Greece, also causing delay.

Third, the court order argues that both parties will most likely be required to obtain experts to opine on the fairness of the transaction - another cause for delay.

Deadline dates

The court order also lists the following requirements, with deadline dates:

- Expedited discovery shall commence immediately, with service of initial document requests by March 14.

- Objections to initial document requests shall be served by March 17.

- Document production by March 20.

- Expert reports, if any, shall be exchanged by March 23.

- Depositions, including expert depositions, shall be taken from March 22 and completed by March 29.

- The plaintiff's opening brief in support of a preliminary injunction shall be filed by March 30.

- Any brief in opposition will need to be filed by April 2.

- The plaintiff's brief in reply to any opposition is required to be filed by April 4.

- The hearing on the plaintiff's request for a preliminary injunction shall take place on April 5 at 10 a.m.

Case background

Aegean announced the agreement to acquire HEC Europe on February 20. The company is owned and controlled by Aegean's founder and former Head of Corporate Development, Dimitris Melissanidis, in addition to certain members of his family and the Agiostratitis family.

RBM is a limited liability company that was formed in March by three shareholders of Aegean (Tyler Baron, Justin Moore and August Roth), who have each transferred control of their shares in Aegean to RBM.

On March 8, RBM filed a legal complaint against Aegean and board members George Konomos, Yannis Papanicolaou, Spyridon Fokas and Konstantinos Koutsomitopoulos.

RBM argues in the complaint: "The proposed [HEC] transaction would effectively block the slate of directors submitted by a group of concerned shareholders, including the Plaintiff's members, for consideration at an upcoming annual election. It would do so by massively diluting and disenfranchising current shareholders, including RBM, and lining the pockets of Aegean Marine's controlling founder, Dimitris Melissanidis."

"The acquisition would be just the latest in a history of interested corporate actions, sanctioned by a conflicted board, that benefit them and Aegean Marine's founder at the expense of shareholders," RBM also states.

On March 13, District Judge Preska issued a court order granting a temporary 14-day restraining order up until March 26 on the HEC acquisition "unless before that time the court, for good cause, extends it for a like time or the adverse party consents to a longer extension".

Aegean is being defended by Kramer Levin Naftalis & Frankel LLP, while RBM is represented by Akin Gump Strauss Hauer & Feld LLP.

Related Links:

Aegean buys Melissanidis-owned firms; founder's group to become biggest shareholder
HEC overview and reasons for Aegean acquisition
Aegean shareholder group 'gravely concerned' by board's 'silence'
Aegean shareholder group nominates director candidates for next AGM
Aegean shareholder group reaffirms intentions in SEC filing
Aegean Marine Petroleum S.A.
United States

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