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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN RE COMVERGE, INC. SHAREHOLDERS LITIGATION
) CONSOLIDATED ) C.A. No. 7368-VCMR
STIPULATION AND AGREEMENT OF COMPROMISE, SETTLEMENT AND RELEASE
This Stipulation and Agreement of Compromise, Settlement and Release
(together with the exhibits hereto, the “Stipulation”) is entered into as of May 26,
2017, between (a) plaintiffs Gary K. Schultz and Saravanan Somlinga
(collectively, “Plaintiffs”), on behalf of themselves and the Class1; and (b) Alec G.
Dreyer, Joseph M. O’Donnell, John McCarter, R. Blake Young, Nora Mead
Brownell, A. Laurence Jones, John Rego, Rudolf J. Hoefling, and James J. Moore
(collectively, the “Director Defendants,” and together with Plaintiffs, the “Parties,”
and each individually a “Party”), by and through their respective undersigned
counsel, and embodies the terms and conditions of the Settlement of the above-
captioned consolidated stockholder class action (the “Action”). Subject to the
approval of the Court and the terms and conditions expressly provided herein, this
Stipulation is intended to fully, finally and forever compromise, settle, release,
resolve and dismiss with prejudice: (a) the Action and all claims asserted therein
against the Director Defendants; and (b) each and every one of the Released
1 All terms with initial capitalization not otherwise defined herein shall have the meanings ascribed to them in Paragraph 1 below.
2
Claims against each and every one of the Released Parties, whether asserted in the
Action or otherwise.
WHEREAS:
A. On March 26, 2012, Comverge, Inc. (“Comverge”) announced that it
had entered into a definitive agreement (the “Merger Agreement”) to be acquired
by Peak Merger Corp., an affiliate of H.I.G. Capital, LLC (“HIG”), a private
investment firm, for $1.75 per share in cash (the “Merger”).
B. Following the announcement of the Merger, purported stockholders of
Comverge filed five actions in the Court of Chancery of the State of Delaware (the
“Court”) asserting claims in connection with the Merger, which were captioned: (i)
Schultz v. Young, et al., C.A. No. 7368-VCP; (ii) Somlinga v. Dreyer, et al., C.A.
No. 7371-VCP; (iii) Cohen v. Young, et al., C.A. No. 7386-VCP; (iv) Walker v.
Comverge, Inc., et al., C.A. No. 7398-VCP; and (v) Kanakamedala v. Young, et
al., C.A. No. 7399-VCP.
C. On April 6, 2012, the Court entered an order: (i) consolidating the
above-referenced class actions under the caption In re Comverge, Inc.
Shareholders Litigation, Consolidated C.A. No. 7368-VCMR; (ii) designating
Gary K. Schultz, Saravanan Somlinga, and Adrienne Cohen as Lead Plaintiffs in
the Action; (iii) designating the law firms of Faruqi & Faruqi, LLP, Levi &
Korsinsky LLP, and Gardy & Notis, LLP as Co-Lead Counsel in the Action; and
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(iv) designating the law firms Rigrodsky & Long, P.A. and Rosenthal, Monhait &
Goddess, P.A. as Co-Liaison Counsel in the Action.
D. On April 12, 2012, Comverge filed with the SEC a Schedule 14D-9
Solicitation/Recommendation Statement (the “Solicitation/Recommendation
Statement”) in response to the tender offer by Peak Merger Corp. (the “Tender
Offer”) commenced in connection with the Merger.
E. On April 18, 2012, Plaintiffs filed and served their Verified
Consolidated Amended Class Action Complaint alleging, among other things, that
the Solicitation/Recommendation Statement was deficient and did not provide
Comverge stockholders with material information in connection with the Tender
Offer, including the projections used by Houlihan Lokey Capital, Inc. (“Houlihan
Lokey”), financial advisor to the Strategy Committee of Comverge’s Board of
Directors, and fees paid to Houlihan Lokey by HIG.
F. On April 19, 2012, Plaintiffs filed a motion to expedite proceedings in
connection with their intention to seek injunctive relief in connection with the
Tender Offer.
G. On April 27, 2012, following full briefing and oral argument, the
Court granted expedited proceedings.
H. On May 2, 2012, Plaintiffs filed a motion for preliminary injunction.
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I. On May 1, 2012, Comverge filed with the SEC an amendment to the
Solicitation/Recommendation Statement disclosing certain information concerning
the projections used by Houlihan Lokey and the compensation received by
Houlihan Lokey in connection with providing services to HIG.
J. In connection with expedited proceedings in the Action, the Parties
and HIG and other third parties conducted expedited discovery, including the
production of documents and depositions of Laurence Jones (Chairman of the
Strategy Committee of Comverge’s Board of Directors), Deborah Ifrah (Managing
Director of J.P. Morgan Securities LLC, financial advisor to Comverge), Thomas
Puricelli (Senior Vice President of Houlihan Lokey Capital, financial advisor to the
Strategy Committee), and Joseph Zulli (Principal at HIG).
K. On May 6, 2012, Plaintiffs filed a motion to compel with respect to
documents and information withheld from production by Comverge based on an
assertion of the attorney-client privilege.
L. On May 8, 2012, following full briefing and oral argument, the Court
denied Plaintiffs’ motion for a preliminary injunction.
M. On May 14, 2012, the Tender Offer was successfully completed and
on May 15, 2012, the Merger closed (the “Closing Date”).
N. On April 10, 2013, following full briefing and oral argument (and
Comverge’s agreement to provide a privilege log and certain other documents), the
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Court issued an Order granting in part and denying in part Plaintiffs’ motion to
compel.
O. Following further document discovery consistent with the Parties’
agreement and the Court’s April 10, 2013 Order, on June 28, 2013, Plaintiffs filed
their Verified Consolidated Second Amended Class Action Complaint (the
“Operative Complaint”).
P. The Operative Complaint named the Director Defendants, as well as
HIG, Peak Holdings Corp. and Peak Merger Corp. (collectively, the “HIG
Defendants,” and with the Director Defendants, “Defendants”) as defendants. The
Operative Complaint alleged that the Director Defendants breached their fiduciary
duties by conducting a flawed sales process and agreeing to what Plaintiffs
contended were preclusive deal protections in connection with the Merger, and that
the HIG Defendants aided and abetted those breaches. It sought certification of a
class consisting of all former holders of Comverge stock (other than the
Defendants and any person, firm, trust, corporation, or other entity related to or
affiliated with any defendants).
Q. On July 29, 2013, the Director Defendants and the HIG Defendants
filed motions to dismiss the Operative Complaint under Court of Chancery Rule
12(b)(6) (the “Motions to Dismiss”).
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R. On November 25, 2014, following full briefing and oral argument, the
Court issued a Memorandum Opinion granting the HIG Defendants’ motion to
dismiss and dismissing with prejudice all claims against the HIG Defendants, and
granting in part and denying in part the Director Defendants’ motion to dismiss and
dismissing all claims against the Director Defendants other than claims for breach
of fiduciary duties based on the termination fees, expense reimbursement, and
Convertible Notes agreed to in connection with the Merger.
S. Following the Court’s decision on the Motions to Dismiss, the Parties
conducted merits-based discovery, including the production of documents and
depositions of former Comverge directors Nora Mead Brown, Alec Dreyer, Rudolf
Hoefling, Laurence Jones (second deposition), John McCarter, James Moore,
Joseph O’Donnell and John Rego; Comverge President and CEO Blake Young,
Comverge CFO David Mathieson; and Michael Macakanja (Managing Director of
JP Morgan), Thomas Puricelli (second deposition), and Brian Schwartz (Executive
Managing Director of HIG). The Parties also exchanged expert reports and
conducted expert-based discovery, including depositions of Plaintiffs’ experts
Guhan Subramanian and J.T. Akins, and Defendants’ expert Paul Gompers.
T. On April 29, 2016, the Director Defendants filed a motion for
summary judgment.
7
U. On June 13, 2016, the parties executed a stipulation and proposed
order, which was entered by the Court on June 27, 2016, (a) certifying the Action
as a class action on behalf of a non-opt out class defined as: all record and
beneficial holders of Comverge common stock at the time that the Merger between
Comverge and an affiliate of HIG closed on May 15, 2012, and their successors in
interest, successors, predecessors in interest, predecessors, representatives, trustees,
executors, administrators, estates, heirs, assigns or transferees, immediate and
remote, and any person or entity acting for or on behalf of, or claiming under, any
of them, and each of them, together with their predecessors in interest,
predecessors, successors in interest, successors, and assigns, but excluding
Comverge, HIG, and officers or directors of Comverge, HIG and any person, firm,
trust, corporation or other entity related to or affiliated with Comverge and/or HIG
as of May 15, 2012; and (b) certifying Plaintiffs as class representatives.
V. On October 31, 2016, following full briefing and oral argument, the
Court issued an Order denying the Director Defendants’ motion for summary
judgment.
W. On November 18, 2016, the Parties submitted a Joint Pre-Trial
Stipulation in connection with the trial of the Action, which was set to commence
on December 13, 2016.
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X. On November 29, 2016, the Parties separately filed opening Pre-Trial
Briefs in connection with the trial of the Action.
Y. On December 9, 2016, the Parties reached agreement to pursue
mediation to negotiate a settlement of the Action, and they asked the Court to defer
trial scheduled to begin on December 13, 2016 until the mediation effort
concluded.
Z. On April 13, 2017, the Parties, through their representatives,
participated in a voluntary mediation session before Robert A. Meyer, Esq. to
attempt to negotiate a settlement of the Action. At the mediation, the Parties
reached an agreement in principle to settle the action and agreed to cooperate to
prepare definitive documentation.
AA. This Stipulation is intended fully, finally and forever to resolve,
discharge and settle the Released Plaintiffs’ Claims (as defined herein) and the
Released Defendants’ Claims (as defined herein) with prejudice. It is the intention
of the Parties that the Settlement will release all Released Plaintiffs’ Claims and
Released Defendants’ Claims.
BB. The entry by the Parties into this Stipulation is not, and shall not be
construed as or deemed to be evidence of, an admission as to the merit or lack of
merit of any claims or defenses asserted in the Action.
9
CC. Based upon their investigation and prosecution of the case, Plaintiffs
and Class Counsel have concluded that the terms and conditions of the Settlement
are fair, reasonable and adequate to Plaintiffs and the other Class Members and in
their best interests. Class Counsel has received sufficient information to evaluate
the merits of the Settlement. Based on Plaintiffs’ direct oversight of the
prosecution of this Action and with the advice of their counsel, each of the
Plaintiffs has agreed to settle and release the claims raised in the Action pursuant
to the terms and provisions of this Stipulation, after considering (a) the financial
benefit that Plaintiffs and the other Class Members will receive under the
Settlement, (b) the significant risks of continued litigation and trial, and (c) the
desirability of permitting the Settlement to be consummated as provided by the
terms and conditions of this Stipulation.
DD. The Director Defendants deny any and all allegations of their
respective wrongdoing, fault, liability or damage whatsoever, and each of the
Director Defendants denies that he or she engaged in, committed or aided or
abetted the commission of any breach of duty, wrongdoing or violation of law.
EE. The Director Defendants enter into this Stipulation solely because
they consider it desirable that the Action be settled and dismissed with prejudice in
order to, among other things, eliminate the uncertainties, burden and expense of
further litigation. Nothing in this Stipulation shall be construed as any admission
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by any of the Director Defendants of any kind, including admissions as to
wrongdoing, fault, liability, or damages whatsoever, or as evidence as to any of the
foregoing. Nothing in this Stipulation shall be construed as an allocation of fault
or liability between or among any of the Director Defendants.
NOW, THEREFORE, IT IS HEREBY STIPULATED, CONSENTED
TO AND AGREED, by Plaintiffs, for themselves and on behalf of the Class, and
by the Director Defendants that, subject to the approval of the Court and pursuant
to Court of Chancery Rule 23 and the other conditions set forth herein, for the
good and valuable consideration set forth herein and conferred on Plaintiffs and the
Class, the Action shall be finally and fully compromised, settled and dismissed
with prejudice, and that the Released Claims shall be finally and fully
compromised, settled, released and dismissed with prejudice as to the Released
Parties, as defined herein, in the manner and upon the terms and conditions
hereafter set forth.
A. Definitions
1. In addition to the terms defined above, the following capitalized
terms, used in this Stipulation, shall have the meanings specified below:
a. “Account” means the bank account referred to below and
maintained by the Settlement Administrator into which the Settlement Amount,
less the amount of any Fee and Expense Award, shall be deposited. The funds in
11
the Account shall be invested in United States Treasury Bills (or a mutual fund
invested solely in such instruments) and all interest accrued thereon shall be
collected and reinvested until distributed as provided herein.
b. “Administrative Costs” means all costs and expenses
associated with providing notice of the Settlement to the Class or otherwise
administering or carrying out the terms of the Settlement, including, without
limitation, taxes and tax-related costs relating to the Account, the actual costs of
printing and mailing the Notice and Proof of Claim, reimbursements to nominee
owners for forwarding the Notice and Proof of Claim to their beneficial owners,
the administrative expenses incurred and fees charged by the Settlement
Administrator in connection with providing Notice via mail, website, telephone
and email as needed, the fees and expenses of Class Counsel in connection with
administration of the Settlement, and the fees and expenses, if any, of the
Settlement Administrator.
c. “Class” means a class consisting of all record holders and
beneficial owners of Comverge common stock at the time that the Merger between
Comverge and an affiliate of HIG closed on May 15, 2012, and their successors in
interest, successors, predecessors in interest, predecessors, representatives, trustees,
executors, administrators, estates, heirs, assigns or transferees, immediate and
remote, and any person or entity acting for or on behalf of, or claiming under, any
12
of them, and each of them, together with their predecessors in interest,
predecessors, successors in interest, successors, and assigns, but excluding
Comverge, officers or directors of Comverge, HIG and any person, firm, trust,
corporation or other entity related to or affiliated with Comverge and/or HIG as of
May 15, 2012.
d. “Class Counsel” means the law firms of Faruqi & Faruqi,
LLP, Levi & Korsinsky LLP, Gardy & Notis, LLP, Monteverde & Associates PC,
Rigrodsky & Long, P.A. and Rosenthal, Monhait & Goddess, P.A.
e. “Class Distribution Order” means an order entered by the
Court authorizing and directing that the Net Settlement Fund be distributed
proportionately, pursuant to the Plan of Allocation in Paragraph [7] of this
Stipulation.
f. “Class Member” means a member of the Class.
g. “Closing” means the consummation of the Merger on the
Closing Date.
h. “Effective Date” means the first business day following
the date the Judgment becomes Final. The finality of the Judgment shall not be
affected by any proceeding (including appeals) regarding solely an application for
attorneys’ fees and expenses or any special award to Plaintiffs from the Net
Settlement Fund or approval of any Plan of Allocation of the Net Settlement Fund.
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i. “Eligible Shares” means shares of Comverge common
stock owned by Class Members at the Closing.
j. “Fee and Expense Award” means an award to Plaintiffs’
Counsel of fees, expenses and incentive awards to Plaintiffs, to be paid from the
Settlement Amount, approved by the Court in accordance with this Settlement
Agreement and in full satisfaction of any and all claims for attorneys’ fees,
expenses or incentive awards that have been, could be or could have been asserted
by Class Counsel or any other counsel for any member of the Class in connection
with the Action.
k. “Final” means with respect to any judgment or order that
the judgment or order is finally affirmed on appeal or is no longer subject to appeal
and the time for any petition for reargument, appeal, or review, by certiorari or
otherwise, has expired.
l. “Immediate Family” means an individual’s spouse,
parents, siblings, children, grandparents, grandchildren; the spouses of his or her
parents, siblings and children; and the parents and siblings of his or her spouse, and
includes step and adoptive relationships.
m. “Judgment” means the Final Order and Judgment to be
entered in the Action substantially in the form attached hereto as Exhibit [D].
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n. “Legal Claims” means any and all manner of claims,
demands, rights, liabilities, losses, obligations, duties, damages, diminutions in
value, costs, debts, expenses, interest, penalties, fines, sanctions, fees, attorneys’
fees, expert or consulting fees, actions, potential actions, causes of action, suits,
agreements, judgments, decrees, matters, issues and controversies of any kind,
nature or description whatsoever, whether disclosed or undisclosed, accrued or
unaccrued, apparent or not apparent, foreseen or unforeseen, matured or not
matured, suspected or unsuspected, liquidated or not liquidated, fixed or
contingent, which now exist, or heretofore or previously existed, or may hereafter
exist, including known claims and Unknown Claims, whether direct, derivative,
individual, class, representative, legal, equitable or of any other type, or in any
other capacity, whether based on state, local, foreign, federal, statutory, regulatory,
common or other law or rule, including but not limited to any claims under state
securities law, or under state disclosure law or any claims that could be asserted
derivatively on behalf of Comverge.
o. “Net Settlement Fund” means the Settlement Fund less
any Taxes, Tax Expenses (as defined below), attorneys’ fees and expenses, awards,
notice and Administration Costs and any other expenses approved by the Court.
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p. “Notice” means Notice of Proposed Settlement of Class
Action, Settlement Hearing and Right to Appear, substantially in the form attached
hereto as Exhibit [B].
q. “Proof of Claim” means the Proof of Claim, substantially
in the forms attached hereto as Exhibit [C].
r. “Released Defendants’ Claims” means any Legal Claims
(including “Unknown Claims”) that have been or could have been asserted in the
Action or any forum by the Director Defendants or the HIG Defendants or any one
of them or their respective successors and assigns against Plaintiffs, the Class
Members, or any of their respective counsel, which arise out of or relate in any
way to the institution, prosecution, settlement or dismissal of the Action, including
but not limited to alleged litigation misconduct, breaches of confidentiality orders,
violations of court rules, and defamation; Legal Claims (including “Unknown
Claims”) against Plaintiffs and their affiliates arising from or relating to the alleged
conduct underlying the Director Defendants’ respective affirmative defenses; and
any Legal Claims (including “Unknown Claims”) of bad faith or abuse of process
against Plaintiffs or Class Counsel relating to their prosecution of the Action;
provided, however, that the Released Defendants’ Claims shall not include any
claims relating to the enforcement of the Settlement.
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s. “Released Defendant Parties” means (i) the Director
Defendants, (ii) the members of each Director Defendant’s Immediate Family, (iii)
the HIG Defendants and Grace Bay Holdings II, LLC, (iv) Comverge, and (v) any
of the foregoing’s respective parent entities, controlling persons, associates,
predecessors, successors, assigns, affiliates, or subsidiaries, and each and all of
their past or present officers, directors, executives, stockholders, principals,
representatives, employees, attorneys, financial or investment advisors,
consultants, accountants, auditors, investment bankers, commercial bankers,
entities providing fairness opinions, underwriters, brokers, dealers, insurers,
advisors or agents, heirs, executors, trustees, general or limited partners or
partnerships, limited liability companies, members, managers, joint ventures,
personal or legal representatives, estates, and administrators.
t. “Released Plaintiffs’ Claims” means any and all manner
of Legal Claims (including “Unknown Claims”) that were asserted by Plaintiffs on
their own behalf and/or on behalf of all other Class Members in the Action, or
could have been or in the future might be asserted by Plaintiffs, or the Class in the
Action or in any other court, tribunal, forum or proceeding that are based upon,
arise out of, relate in any way to, or involve, directly or indirectly, any of the
actions, events, conduct, decisions, negotiations, fairness opinions, transactions,
occurrences, statements, representations, misrepresentations, omissions,
17
disclosures, allegations, facts, practices, events, claims or any other matters, things
or causes whatsoever, or any series thereof, that relate in any way to the Merger or
the Merger Agreement, including, without limitation, those that were alleged,
asserted, or claimed in the Action or which are based upon, arise out of, relate in
any way to, or involve, directly or indirectly, the events or conduct at issue in the
Action, provided, however, that the Released Claims shall not include any claims
for the enforcement of the Settlement. As to Plaintiffs, Released Plaintiffs’ Claims
shall also include all Legal Claims related to the prosecution, defense, settlement
or dismissal of the Action, including but not limited to alleged litigation
misconduct, breaches of confidentiality orders, violations of court rules, and
defamation.
u. “Released Plaintiff Parties” means (i) Plaintiffs, (ii) all
Class Members, and (iii) any of the foregoing’s respective parent entities,
controlling persons, associates, predecessors, successors, assigns, affiliates, or
subsidiaries, and each and all of their past or present officers, directors, executives,
stockholders, principals, representatives, employees, attorneys, financial or
investment advisors, consultants, accountants, auditors, investment bankers,
commercial bankers, entities providing fairness opinions, underwriters, brokers,
dealers, insurers, advisors or agents, heirs, executors, trustees, general or limited
18
partners or partnerships, limited liability companies, members, managers, joint
ventures, personal or legal representatives, estates, and administrators.
v. “Released Claims” means the Released Defendants’
Claims and the Released Plaintiffs’ Claims.
w. “Released Parties” means the Released Defendant Parties
and the Released Plaintiff Parties.
x. “Scheduling Order” means the Scheduling Order,
substantially in the form attached hereto as Exhibit [A].
y. “Settlement” means the settlement contemplated by this
Stipulation.
z. “Settlement Amount” means a total amount of five
million nine hundred thousand dollars in cash ($5,900,000).
aa. “Settlement Administrator” means Epiq Systems, Inc.
bb. “Settlement Fund” means the fund consisting of the
Settlement Amount deposited in the Account.
cc. “Settlement Hearing” means the hearing to be held by the
Court to determine whether to confirm its prior certification of the Class pursuant
to Court of Chancery Rule 23 subject to the revisions set forth herein, whether
Plaintiffs and Class Counsel have adequately represented the Class, whether the
proposed Settlement should be approved as fair, reasonable and adequate, whether
19
all Released Claims should be dismissed with prejudice as against the Released
Parties, whether an Order and Judgment approving the Settlement should be
entered, and whether and in what amount any Fee and Expense Award should be
paid to Plaintiffs out of the Settlement Fund.
dd. “Settlement Payment Recipients” means all Class
Members who submit a valid Proof of Claim to the Settlement Administrator by
the deadline in the Notice.
ee. “Unknown Claims” means any and all claims that
otherwise fall within the definition of Released Plaintiffs’ Claims and that
Plaintiffs or any Class Member does not know or suspect exists in his, her or its
favor at the time of the release of the Released Claims as against the Released
Defendant Parties, including without limitation those which, if known, might have
affected the decision to enter into this Settlement, and any and all claims that
otherwise fall within the definition of Released Defendants’ Claims and that any
Director Defendant does not know or suspect to exist in his or her favor at the time
of the release of the Released Claims as against the Released Plaintiff Parties,
including without limitation those which, if known, might have affected the
decision to enter into this Settlement. With respect to any of the Released Claims,
the Parties stipulate and agree that upon the Effective Date, Plaintiffs and the
Director Defendants shall expressly, and each of the Class Members shall be
20
deemed to have, and by operation of the Judgment shall have, expressly waived,
relinquished and released any and all provisions, rights and benefits conferred by
or under Cal. Civ. Code § 1542 or any law of the United States or any state of the
United States or territory of the United States or other jurisdiction, or principle of
common law, which is similar, comparable or equivalent to Cal. Civ. Code § 1542,
which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
The Parties acknowledge, and the other Class Members by operation of law shall
be deemed to have acknowledged, that they may discover facts in addition to or
different from those now known or believed to be true with respect to the Released
Claims, but that it is the intention of Parties, and by operation of law the other
Class Members, to completely, fully, finally and forever extinguish any and all
Released Claims, known or unknown, suspected or unsuspected, which now exist,
or heretofore existed, or may hereafter exist, and without regard to the subsequent
discovery of additional or different facts. The Parties acknowledge, and the other
Class Members and other Released Parties by operation of law shall be deemed to
have acknowledged, that the inclusion of “Unknown Claims” in the definition of
21
“Released Claims” was separately bargained for and was a key element of the
Settlement and was relied upon by the Parties in entering into this Stipulation.
B. Settlement Consideration and Administration
2. In consideration for the full and final settlement and dismissal
with prejudice of, and the release of, any and all Released Claims, the Director
Defendants and/or Comverge’s insurers shall cause to be paid a total of $5,900,000
for the benefit of the Class. $250,000 of the Settlement Amount shall be deposited
into the Account, within ten (10) business days of the later of: (i) the Court
granting the Scheduling Order; or (ii) Class Counsel and/or the Settlement
Administrator providing a W-9 for the Settlement Fund and complete information
and instructions for payment by both check and wire, and shall be used in the first
instance to administer the Settlement. The remainder of the Settlement Amount
(i.e., $5,650,000) shall, subject to Class Counsel and/or the Settlement
Administrator providing the information set out in (ii) of the preceeding sentence,
be deposited into the Account within ten (10) business days after the Effective
Date (such date the “Settlement Funding Date”). No Director Defendant, nor
Comverge, nor any other person or entity who or which paid any portion of the
Settlement Fund, nor any Released Defendant Party shall have any obligation to
pay or bear any additional amounts, expenses, costs, damages, or fees to or for the
benefit of Plaintiffs or any Class Members in connection with this Settlement,
22
including but not limited to attorneys’ fees and expenses for any counsel to any
Class Member, or any costs of notice or settlement administration or otherwise.
3. The Settlement Administrator shall, subject to the jurisdiction,
direction and approval of the Court, oversee administration and distribution of the
Settlement Fund. The Settlement Administrator shall discharge its duties under
Class Counsel’s supervision. No Released Defendant Party shall have any
responsibility whatsoever for the administration of the Settlement, and no Released
Defendant Party shall have any liability whatsoever to any person, including, but
not limited to, Plaintiffs and the Class Members, for fees or expenses charged by
the Settlement Administrator or otherwise in connection with any such
administration.
4. Under the supervision of Class Counsel, the Settlement
Administrator shall provide Notice of the proposed Settlement and distribute the
Settlement Fund on a pro rata basis as set forth herein, as approved by the Court.
Within five (5) business days of execution of this Stipulation, Comverge shall
provide or cause to be provided to Class Counsel and/or the Settlement
Administrator stockholder information from its transfer agent as appropriate for
providing Notice to the Class. The Settlement Administrator shall mail the Notice
to each such person as set forth in such records, or who otherwise may be
identified through further reasonable effort. The Notice shall request that
23
brokerage firms, banks and other persons or entities who are members of the Class
in their capacities as record holders, but not as beneficial owners, send the Notice
promptly to beneficial owners.
5. Class Counsel may pay from the Settlement Fund, without
further approval from the Director Defendants, Comverge, or further order of the
Court, up to $250,000 for Administrative Costs actually and reasonably incurred.
In the event that the Settlement is terminated pursuant to the terms of this
Stipulation, any amounts reasonably paid or reasonably incurred pursuant to this
Paragraph (except for fees paid to Class Counsel, if any) shall not be returned or
repaid to the Director Defendants, or any other person who paid any portion of the
Settlement Amount into the Account.
6. Subject to Paragraph [9] below, the Settlement Fund shall be
applied as follows:
a. To pay all Administrative Costs reasonably incurred;
b. Subject to the approval and further order(s) of the Court,
to pay to Plaintiffs any Fee and Expense Award;
c. To pay any Taxes and/or Tax Expenses (as defined
below) owed by the Settlement Fund; and
d. Subject to the approval and further order(s) of the Court,
to distribute the balance of the Net Settlement Fund to the Class Members as
24
provided in the Plan of Allocation (as defined below), or as otherwise ordered by
the Court.
7. The Net Settlement Fund shall be allocated among all Class
Members pursuant to the terms of this Paragraph (the “Plan of Allocation”). Under
the supervision of Class Counsel, the Settlement Administrator shall make
distributions from the Account to the Settlement Payment Recipients in the
following manner and subject to the following conditions as soon as reasonably
practicable after the Effective Date.
a. The Net Settlement Fund shall be allocated on a pro-rata
per-share basis amongst the Settlement Payment Recipients who have submitted a
valid Proof of Claim (except that distributions that would result in payment less
than five dollars ($5) will not be paid) by the deadline provided in the Notice,
based on the number of Comverge common stock held by the applicable
Settlement Payment Recipient upon the date of Closing (the “Initial Distribution”).
The Director Defendants shall have no input, responsibility or liability for any
claims, payments or determinations by the Settlement Administrator with respect
to Class Member claims for payment under this Settlement.
b. Any Class Member who does not submit a valid Proof of
Claim by the deadline provided in the Notice will not be entitled to receive any
distribution from the Settlement Fund, but will otherwise be bound by all of the
25
terms of this Stipulation and the Settlement, and the releases provided for herein,
and will be permanently barred and enjoined from bringing any action, claim or
other proceeding of any kind against the Released Parties with respect to the
Released Claims.
c. If Class Counsel and/or the Settlement Administrator
have made reasonable efforts to provide for Settlement Payment Recipients to
claim their payments, any amount of the Net Settlement Fund that remains
unclaimed by the Settlement Payment Recipients after a period of six (6) months
after the Initial Distribution, if economically feasible, will be re-disbursed by the
Settlement Administrator for payment to all Settlement Payment Recipients who
claimed their payments in the Initial Distribution, on a pro rata per share basis
(except that supplemental distributions that would result in payment less than five
dollars ($5) will not be paid). If a re-disbursement is not economically feasible or
if funds still remain after a supplemental distribution, then any such unclaimed
amount of the Net Settlement Fund shall be transferred to the Delaware
Department of Finance, Office of Unclaimed Property for handling in accordance
with the State’s laws of interstate escheat.
d. The Account shall be deemed to be in the custody of the
Court, and it will remain subject to the jurisdiction of the Court until such time as it
is distributed or returned pursuant to the terms of this Stipulation and/or further
26
order of the Court. The Settlement Administrator shall, subject to the jurisdiction,
direction and approval of the Court, oversee administration and distribution of the
Account.
e. Class Counsel will apply to the Court, on notice to the
Director Defendants’ counsel, for a Class Distribution Order approving the
Settlement Administrator’s administrative determinations concerning the
acceptance and rejection of the claims submitted herein, approving any
Administration Costs not previously paid, and directing payment of the Net
Settlement Fund to Settlement Payment Recipients.
f. The Settlement Administrator shall process each Proof of
Claim received and, after entry of the Class Distribution Order, distribute the Net
Settlement Fund to the Settlement Payment Recipients.
g. For purposes of determining the extent, if any, to which a
Class Member shall be entitled to be treated as a Settlement Payment Recipient the
following conditions shall apply:
i. Each Class Member shall be required to submit a
Proof of Claim. If the Class Member’s stock ownership differs
from the stockholder list provided by Comverge, the Proof of
Claim must be supported by such documents as are designated
therein including proof of the stock ownership claimed or such
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other documents or proof as the Settlement Administrator, in its
discretion, may deem acceptable. Class Counsel shall have the
right, but not the obligation, to advise the Settlement
Administrator to waive what Class Counsel deem to be formal
or technical defects in any Proof of Claim submitted in the
interests of achieving substantial justice;
ii. Each Proof of Claim must be submitted by the date
specified in the Notice, unless such period is extended by Class
Counsel or Order of the Court. Any Class Member who fails to
submit a Proof of Claim by such date shall be forever barred
from receiving any payment pursuant to this Stipulation (unless,
by Order of the Court, a later submitted Proof of Claim by such
Class Member is approved), but shall in all other respects be
bound by all of the terms of this Stipulation and the Settlement,
including the terms of the Judgment. Provided that it is
received before the motion for the Class Distribution Order is
filed, a Proof of Claim shall be deemed to have been submitted
when posted, if received with a postmark indicated on the
envelope and if mailed by first-class mail and addressed in
accordance with the instructions thereon. In all other cases, the
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Proof of Claim shall be deemed to have been submitted when
actually received by the Settlement Administrator;
iii. Each Proof of Claim shall be submitted to and
reviewed by the Settlement Administrator, who shall determine
in accordance with this Stipulation and the approved Plan of
Allocation the extent, if any, to which each claim shall be
allowed, subject to review by the Court;
iv. Any Proof of Claim that does not meet the
submission requirements may be rejected. Prior to rejection of
a Proof of Claim, the Settlement Administrator shall
communicate with the claimant in order to attempt to remedy
any curable deficiencies in the Proof of Claim submitted. The
Settlement Administrator shall notify, in a timely fashion and in
writing, each claimant whose Proof of Claim it proposes to
reject in whole or in part, setting forth the reasons therefor, and
shall indicate in such notice that the claimant whose claim is to
be rejected has the right to a review by the Court if the claimant
so desires and complies with the requirements of
subparagraph (v) below;
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v. If any claimant whose claim has been rejected in
whole or in part desires to contest such rejection, the claimant
must, within twenty (20) calendar days after the date of mailing
of the notice required in subparagraph (iv) above, serve upon
the Settlement Administrator a notice and statement of reasons
indicating the claimant’s grounds for contesting the rejection
along with any supporting documentation, and requesting a
review thereof by Class Counsel. If a dispute concerning a
claim cannot be otherwise resolved, Class Counsel shall
thereafter present the request for review and decision to the
Court on notice to the claimant; and
h. This is not a claims-made settlement. Upon the Effective
Date, neither the Defendants, nor any other person or entity who or which paid any
portion of the Settlement Fund, shall have any right to the return of the Settlement
Fund or any portion thereof irrespective of the number of Claims filed, the
collective damages of Settlement Payment Recipients, the percentage of recovery
of damages, or the amounts paid to Settlement Payment Recipients from the Net
Settlement Fund.
8. Neither the Director Defendants nor any other Released
Defendant Party shall take any position on or have any involvement with the
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proposed Plan of Allocation so long as the proposed Plan of Allocation remains as
reflected herein. Any modification of the proposed Plan of Allocation by the Court
shall not affect the enforceability of the Stipulation, provide any of the Parties with
the right to terminate the Settlement, impose an obligation on any of the Director
Defendants or the other Released Defendant Parties to increase the consideration
paid in connection with the Settlement or affect or delay the binding effect,
effectiveness, or finality of the Judgment and the release of the Released Claims.
Finality of the Settlement shall not be conditioned on any ruling by the Court or
any appellate court solely concerning any plan of allocation.
9. Payment from the Settlement Fund made pursuant to and in the
manner set forth herein shall be deemed conclusive compliance with this
Stipulation. No Class Member shall have any claim against Plaintiffs, Class
Counsel, the Director Defendants, Comverge, the Released Parties, the Settlement
Administrator, or any of their counsel, based on the distributions made
substantially in accordance with this Stipulation and/or orders of the Court. The
Released Parties shall have no liability whatsoever for the investment of the
Settlement Fund, notice to the Class, the administration of the Settlement Fund, the
calculation of any distribution from the Settlement Fund, or the nonperformance of
the Settlement Administrator, nor shall they have any liability whatsoever for the
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payment or withholding of Taxes (including interest and penalties) owed by the
Class Members or any losses incurred in connection therewith.
C. Scope of the Settlement
10. Upon the Effective Date and the occurrence of all of the other
events referenced in Paragraph [14] below, the Action shall be dismissed with
prejudice, with each Party to bear its own costs and expenses, except as otherwise
expressly provided in this Stipulation. Notwithstanding the preceding sentence,
nothing in this Stipulation shall modify, amend, change or otherwise reduce the
scope, nature, right or entitlement to reimbursement or advancement of fees and
expenses to any Defendant provided as a result of Comverge’s Bylaws or other
governing documents, the Merger Agreement, applicable law, any policy of
insurance, or any other contract providing for similar reimbursement or
advancement.
11. Upon the Effective Date and the occurrence of all of the other
events referenced in Paragraph [14] below, Plaintiffs and all Class Members and
their respective successors-in-interest, successors, predecessors-in-interest,
predecessors, representatives, trustees, executors, administrators, estates, heirs,
assigns or transferees, in their capacities as such, and any person or entity acting
for or on behalf of, or claiming under, any of them, and each of them, shall be
deemed by operation of law to have fully, finally and forever released, settled and
32
discharged the Released Defendant Parties and all of their respective counsel from
and with respect to the Released Plaintiffs’ Claims, and shall forever be barred and
enjoined from commencing, instigating, instituting, maintaining, prosecuting,
asserting, or participating in any action or other proceeding in any court of law or
equity, arbitration tribunal, or administrative forum, or other forum of any kind,
whether individual, class, derivative, representative, legal, equitable, or in any
other capacity, asserting any of the Released Plaintiffs’ Claims against any of the
Released Defendant Parties.
12. Upon the Effective Date and the occurrence of all of the other
events referenced in Paragraph [14] below, the Director Defendants and their
respective successors-in-interest, successors, predecessors-in-interest,
predecessors, representatives, trustees, executors, administrators, estates, heirs,
assigns or transferees, in their capacities as such, and any person or entity acting
for or on behalf of, or claiming under, any of them, and each of them, and any and
all of the other Released Defendant Parties, shall be deemed by operation of law to
have fully, finally and forever released, settled and discharged each and every one
of the Released Defendants’ Claims, and shall forever be barred and enjoined from
commencing, instituting or prosecuting any of the Released Defendants’ Claims,
against any of the Released Plaintiff Parties.
33
D. Submission of the Settlement to the Court for Approval
13. As soon as practicable after this Stipulation has been executed,
Plaintiffs and the Director Defendants shall jointly apply to the Court for entry of
the Scheduling Order in the form attached hereto as Exhibit [A], among other
things: (i) approving and providing for the mailing of the Notice and Proof of
Claim substantially in the form attached hereto as Exhibits [B] and [C] and
scheduling the Settlement Hearing to consider: (a) the proposed Settlement, (b) the
joint request of the Parties that the Judgment be entered substantially in the form
attached hereto as Exhibit [D], (c) Plaintiffs’ application for a Fee and Expense
Award, and (d) any objections to the foregoing; and (ii) staying the prosecution of
the Action pending further order of the Court. The Parties agree to take all
reasonable and appropriate steps to seek and obtain entry of the Scheduling Order.
At the Settlement Hearing, the Parties shall jointly request that the Judgment be
entered substantially in the form attached hereto as Exhibit [D].
E. Conditions of Settlement
14. This Stipulation shall be subject to the following conditions
and, except as provided in Paragraphs [19] and [20], shall be canceled and
terminated unless:
a. the Court enters the Scheduling Order substantially
attached hereto as Exhibit [A];
34
b. the Court enters the Judgment substantially in the form
attached hereto as Exhibit [D] and dismisses the Action with prejudice;
c. the Effective Date occurs; and
d. the full Settlement Amount is deposited in the Account
by the Settlement Funding Date.
F. Attorneys’ Fees and Expenses
15. Plaintiffs intend to petition the Court for a Fee and Expense
Award (the “Fee and Expense Application”). The Fee and Expense Application
will seek (a) reimbursement of Class Counsel’s expenses; (b) an award of
attorneys’ fees not to exceed 25% of the Settlement Fund based on the financial
recovery to the Class; (c) an award of attorney’s fees not to exceed $300,000 based
on the disclosures filed by Comverge with the SEC on May 1, 2012 to address
Plaintiffs’ disclosure claims in connection with the Tender Offer; and (d) an award
payable to Plaintiffs in the aggregate amount of $10,000. Any Fee and Expense
Award shall be paid solely from the Settlement Fund and reduce the settlement
consideration paid to the Class Members accordingly. The Director Defendants
agree to not oppose the Fee and Expense Application. The Parties acknowledge
and agree that any Fee and Expense Award shall be paid solely from the Account
to Plaintiffs within the later of five (5) calendar days (i) of the Court’s order on the
Fee and Expenses Award becoming Final or (ii) the Settlement Funding Date,
35
provided, however, that in the event that the Fee and Expense Award is
disapproved, reduced, reversed or otherwise modified, whether on appeal, further
proceedings on remand, successful collateral attack or otherwise, the Plaintiffs
shall, within five (5) business days after Plaintiffs receive notice of any such
disapproval, reduction, reversal or other modification, return to the Settlement
Fund the difference between the amount of the Fee and Expense Award awarded
by the Court and any attorneys’ fees, litigation expenses and/or special award
ultimately and finally awarded on appeal, further proceedings on remand or
otherwise. The Parties acknowledge that the costs of administering the Settlement
may include attorneys’ fees and expenses and that such costs may be paid from the
Settlement Fund. Any such attorneys’ fees and expenses will be presented to the
Court in connection with Court approval of the accounting and Class Distribution
Order referred to in Paragraph [7]. With the exception of the attorneys’ fees and
expenses referenced in the preceding two sentences, the Fee and Expense
Application shall be the only petition for attorneys’ fees and expenses filed by or
on behalf of Plaintiffs or Class Counsel in connection with the Action. In no event
shall any of the Released Defendant Parties be obligated to pay any of such
attorneys’ fees and expenses to Plaintiffs or Class Counsel as it is expressly
understood that all such payments will be made out of the Settlement Fund. It is
not a condition of this Stipulation that the Fee and Expense Application be granted.
36
The Fee and Expense Application may be considered separately from the proposed
Settlement. Any disapproval or modification of the Fee and Expense Application
by the Court or on appeal shall not affect or delay the enforceability of this
Stipulation, provide any of the Parties with the right to terminate the Settlement, or
affect or delay the binding effect or finality of the Judgment and the release of the
Released Claims. Class Counsel warrants that no portion of any award of
attorneys’ fees or expenses shall be paid to Plaintiffs or any Class Member, except
as may be approved by the Court.
G. Stay Pending Court Approval
16. Pending Court approval of the Settlement, the Parties agree to
stay any and all proceedings in the Action other than those incident to the
Settlement. The Parties also agree to use their reasonable best efforts to prevent,
stay or seek dismissal of or oppose entry of any interim or final relief in favor of
any Class Member in any other litigation against any of the Released Parties which
challenges the Settlement or otherwise involves, directly or indirectly, a Released
Claim.
17. Except as necessary to pursue the Settlement, pending final
determination of whether the Settlement should be approved, all Parties agree not
to institute, commence, prosecute, continue, or in any way participate in, whether
37
directly or indirectly, representatively, individually, or in any other capacity, any
action or other proceeding asserting any Released Claims.
18. Notwithstanding Paragraphs [16] and [17], nothing herein shall
in any way impair or restrict the rights of any Party to defend this Settlement or to
otherwise respond in the event any Person objects to the Settlement, the proposed
Judgment to be entered, or, in the case of the Plaintiffs solely, the Fee and Expense
Application.
H. Effect of Disapproval, Cancellation or Termination
19. If either (a) the Court does not enter the Judgment in
substantially the form of Exhibit [D], (b) the Court enters the Judgment but on or
following appellate review the Judgment is modified or reversed in any material
respect, or (c) any of the other conditions of Paragraph [14] is not satisfied, this
Stipulation shall be cancelled and terminated unless counsel for each of the Parties
to this Stipulation, within ten (10) business days from receipt of such ruling or
event, agrees in writing with counsel for the other Parties to proceed with this
Stipulation and Settlement, including only with such modifications, if any, as to
which all other Parties in their sole judgment and discretion may agree. For
purposes of this Paragraph, an intent to proceed shall not be valid unless it is
expressed in a signed writing. For purposes of this Paragraph, neither a
modification nor a reversal on appeal of the amount awarded pursuant to the Fee
38
and Expense Application shall be deemed a material modification of the Judgment
or this Stipulation.
20. If either: (i) this Stipulation is canceled or terminated pursuant
to its terms, (ii) the conditions to the Settlement set forth in Paragraph [14] above
are not satisfied, or (iii) the Settlement does not become final for any reason:
a. The Settlement Fund paid or due with respect to such
amounts, less any Administrative Costs actually incurred and paid or payable, and
less any escrow fees or costs actually incurred and paid or payable, shall be
refunded to the source of payment within ten (10) business days after such
cancellation or termination;
b. All of the Parties to this Stipulation shall be deemed to
have reverted to their respective litigation status immediately prior to April 13,
2017, they shall negotiate a new scheduling order in good faith, and they shall
proceed in all respects as if the Stipulation had not been executed and the related
orders had not been entered, and in that event all of their respective claims and
defenses as to any issue in the Action shall be preserved without prejudice in any
way; and
c. Plaintiffs agree that this Stipulation, and any statements
made in connection with the negotiation of this Stipulation, shall not be used to
39
establish liability or the amount of any damages in the Action, other than as
otherwise expressly provided herein.
I. Investment of the Settlement Fund
21. The Settlement Fund shall be deemed to be in the custody of
the Court and will remain subject to the jurisdiction of the Court until such time as
it is distributed or returned pursuant to the terms of this Stipulation and/or further
order of the Court.
J. Tax Treatment
22. The Settlement Fund is intended to be a “qualified settlement
fund” within the meaning of Treasury Regulation § 1.468B-1, and the Parties shall
so treat it, and the Settlement Administrator, as administrators of the Account
within the meaning of Treasury Regulation § 1.468B-2(k)(3), shall be responsible
for filing any required tax returns for the Account and paying from the Account
any taxes, including any interest or penalties thereon (the “Taxes”), owed with
respect to the Account. In addition, the Settlement Administrator and Class
Counsel, and the Parties, as required, shall do all things that are necessary or
advisable to carry out the provisions of this Paragraph.
23. All Taxes arising with respect to the Settlement Fund and any
expenses and costs incurred in connection with the payment of Taxes pursuant to
this Paragraph (including, without limitation, expenses of tax attorneys and/or
40
accountants and mailing, administration and distribution costs and expenses
relating to the filing or the failure to file all necessary or advisable tax returns (the
“Tax Expenses”)) shall be paid out of the Settlement Fund. None of the Director
Defendants, the Released Parties or the Settlement Administrator shall have any
liability or responsibility for the Taxes or the Tax Expenses. The Settlement
Administrator shall timely and properly file all informational and other tax returns
necessary or advisable with respect to the Settlement Fund and the distributions
and payments therefrom, including, without limitation, the tax returns described in
Treasury Regulation § 1.468B-2(k), and to the extent applicable, Treasury
Regulation § 1.468B-2(l). All tax returns shall be consistent with the terms herein
and in all events shall reflect that all Taxes shall be paid out of the Settlement
Fund. The Settlement Administrator shall also timely pay any required Taxes and
Tax Expenses out of the Settlement Fund, and are authorized to withdraw, with the
consent of Class Counsel but without prior consent of the Director Defendants or
order of the Court, from the Account amounts necessary to pay Taxes and Tax
Expenses. The Director Defendants agree to timely provide to Class Counsel and
the Settlement Administrator the statement described in Treasury Regulation §
1.468B-3(e).
41
K. Miscellaneous Provisions
24. Neither the Director Defendants, Comverge, nor any Released
Defendant Party shall have any responsibility or liability for the acts or omissions
of Class Counsel or any of their agents, as described herein. Neither the Director
Defendants, Comverge, nor any Released Defendant Party shall be liable for any
attorneys’ fees or costs for which Plaintiffs or any Class Member petitions for
reimbursement in the Action, including but not limited to any request pursuant to
Paragraph [15] of this Stipulation. Any ensuing award of fees or costs in the
Action shall be satisfied solely from the Settlement Fund.
25. All of the Exhibits referred to herein shall be incorporated by
reference as though fully set forth herein.
26. This Stipulation may be amended or modified only by a written
instrument signed by counsel for all Parties or their successors.
27. The Parties represent and agree that the terms of the Settlement
were negotiated at arm’s length and in good faith by the Parties, and reflect a
settlement that was reached voluntarily based upon adequate information and
sufficient discovery and after consultation with experienced legal counsel.
Plaintiffs and the Director Defendants agree not to assert in any forum that the
Action was brought by Plaintiffs or defended by the Director Defendants in bad
faith or without a reasonable basis.
42
28. Each Released Party denies any and all allegations of its or his
wrongdoing, fault, liability or damage in the Action. Neither this Stipulation, nor
the fact or any terms of the Settlement, is evidence, or an admission or concession
by any Party in the Action, any signatory hereto or any Released Party, of any
matter (except as specifically set forth in this Stipulation), including any fault,
liability or wrongdoing whatsoever, as to any facts or claims alleged or asserted in
the Action, or any other actions or proceedings. This Stipulation is not a finding or
evidence of the validity or invalidity of any claims or defenses in the Action or any
wrongdoing by any of the Director Defendants or any damages or injury to any
Class Members. Nothing in this Stipulation constitutes an admission of any factual
allegations, litigation misconduct or wrongdoing by any party.
29. To the extent permitted by law, all agreements made and orders
entered during the course of the Action relating to the confidentiality of documents
or information shall survive this Stipulation.
30. The waiver by any Party of any breach of this Stipulation by
any other Party shall not be deemed a waiver of any other prior or subsequent
breach of any provision of this Stipulation by any other Party.
31. This Stipulation and the Exhibits constitute the entire settlement
agreement between the Plaintiffs, on the one hand, and the Director Defendants, on
the other hand, and supersede any prior term sheets and agreements among
43
Plaintiffs, on the one hand, and the Director Defendants, on the other hand, with
respect to the settlement of the Action. No representations, warranties or
inducements have been made to or relied upon by any Party concerning this
Stipulation or its Exhibits, other than the representations, warranties and covenants
expressly set forth in such documents.
32. This Stipulation may be executed in one or more counterparts,
including by facsimile and electronic mail.
33. The Parties and their respective counsel of record agree that
they will use their reasonable best efforts to obtain all necessary approvals of the
Court required by this Stipulation (including, but not limited to, using their
reasonable best efforts to resolve any objections raised to the Settlement).
34. Plaintiffs represent and warrant that Plaintiffs are members of
the Class and that none of Plaintiffs’ claims or causes of action referred to in this
Stipulation have been assigned, encumbered, or otherwise transferred in any
manner in whole or in part.
35. Where this Stipulation creates obligations for specified Parties,
only those specified Parties are responsible for the obligations.
36. Each counsel signing this Stipulation represents and warrants
that such counsel has been duly empowered and authorized to sign this Stipulation
on behalf of his or her clients.
44
37. This Stipulation shall be binding upon and shall inure to the
benefit of the Parties and the Class (and, in the case of the releases, all Released
Parties) and the respective legal representatives, heirs, executors, administrators,
transferees, successors and assigns of all such foregoing persons or entities and
upon any corporation, partnership, or other entity into or with which any Party may
merge, consolidate or reorganize.
38. This Stipulation, the Settlement, and any and all disputes
arising out of this Stipulation or Settlement, whether in contract, tort or otherwise,
shall be governed by and construed in accordance with the laws of the State of
Delaware, without regard to conflicts of law principles. Any action or proceeding
arising out of this Stipulation or the Settlement, or to enforce any of the terms of
the Stipulation or Settlement, shall (i) be brought, heard and determined
exclusively in the Court, which shall retain jurisdiction over the Parties and all
such disputes (provided that, in the event that subject matter jurisdiction is
unavailable in the Court, then any such action or proceeding shall be brought,
heard and determined exclusively in any other state or federal court sitting in
Wilmington, Delaware), and (ii) shall not be litigated or otherwise pursued in any
forum or venue other than the Court (or, if subject matter jurisdiction is
unavailable in the Court, then in any forum or venue other than any other state or
federal court sitting in Wilmington, Delaware). Each Party hereto (1) consents to
45
personal jurisdiction in any such action (but no other action) brought in the Court
or, if subject matter jurisdiction is unavailable in the Court, any such action
brought in any other state or federal court sitting in Wilmington, Delaware; (2)
consents to service of process by registered mail upon such Party and/or such
Party’s agent; (3) waives any objection to venue in the Court or Delaware and any
claim that Delaware or the Court is an inconvenient forum; and (4) expressly
waives any right to demand a jury trial as to any dispute described in this
Paragraph. Nothing in this Paragraph shall affect the applicable law or available
forum (i) with respect to any other agreements that survive this Stipulation and the
Settlement, or (ii) for claims that are neither released nor created hereby.
46
Of Counsel: James S. Notis Jennifer Sarnelli GARDY & NOTIS, LLP 126 East 56th Street, 8th Floor New York, New York 10022 (212) 905-0509 Co-Lead Counsel for Plaintiffs Shannon L. Hopkins LEVI & KORSINSKY LLP 30 Broad Street, 24th Floor New York, New York 10004 (212) 363-7500 Co-Lead Counsel for Plaintiffs Juan E. Monteverde MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, Suite 4405 New York, New York 10118 (212) 971-1341 Additional Counsel for Plaintiffs
/s/Michael Van Gorder Michael Van Gorder (#6214) FARUQI & FARUQI, LLP 20 Montchanin Road, Suite 145 Wilmington, Delaware 19807 (302) 482-3182 Co-Lead Counsel for Plaintiffs Carmella P. Keener (#2810) P. Bradford deLeeuw (#3569) ROSENTHAL, MONHAIT & GODDESS, P.A. 919 North Market Street, Suite 1401 Wilmington, Delaware 19801 (302) 656-4433 Co-Liaison Counsel for Plaintiffs Seth D. Rigrodsky (#3147) Brian D. Long (#4347) RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, Delaware 19803 (302) 295-5310 Co-Liaison Counsel for Plaintiffs
47
/s/ Edward M. McNally Edward M. McNally (#614) Patricia A. Winston (#5248) MORRIS JAMES LLP 500 Delaware Avenue, Suite 1500 Wilmington, Delaware 19801 (302) 888-6800 Counsel for Defendants Alec G. Dreyer, Joseph M. O’Donnell, John McCarter, R. Blake Young, Nora Mead Brownell, A. Laurence Jones, John Rego, Rudolf J. Hoefling, and James J. Moore
Dated: May 26, 2017