Attached files
file | filename |
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8-K - FORM 8-K - ATMEL CORP | f54099e8vk.htm |
EX-99.3 - EX-99.3 - ATMEL CORP | f54099exv99w3.htm |
EX-99.1 - EX-99.1 - ATMEL CORP | f54099exv99w1.htm |
Exhibit 99.2
IN THE COURT OF THE CHANCERY OF THE STATE OF DELAWARE
IN RE ATMEL CORPORATION SHAREHOLDERS LITIGATION |
CONSOLIDATED Civil Action No. 4161-CC |
NOTICE OF PENDENCY OF CLASS ACTION,
PROPOSED CLASS ACTION DETERMINATION,
PROPOSED SETTLEMENT OF CLASS ACTION,
SETTLEMENT HEARING, AND RIGHT TO APPEAR
TO: | ALL RECORD HOLDERS AND BENEFICIAL OWNERS OF ATMEL CORPORATION COMMON STOCK AT ANY TIME DURING THE PERIOD FROM AND INCLUDING OCTOBER 2, 2008 THROUGH AND INCLUDING NOVEMBER 6, 2009. | |
PLEASE READ ALL OF THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED BY THE LEGAL PROCEEDINGS IN THIS ACTION. IF THE COURT APPROVES THE PROPOSED SETTLEMENT, YOU WILL BE FOREVER BARRED FROM CONTESTING THE FAIRNESS OF THE PROPOSED SETTLEMENT OR PURSUING THE SETTLED PLAINTIFFS CLAIMS (AS DEFINED HEREIN). | ||
IF YOU HELD OR TENDERED THE COMMON STOCK OF ATMEL CORPORATION FOR THE BENEFIT OF ANOTHER, PLEASE PROMPTLY TRANSMIT THIS DOCUMENT TO SUCH BENEFICIAL OWNER. |
I. PURPOSE OF NOTICE
The purpose of this Notice is to inform you of the proposed settlement (the Settlement) of
the above-captioned lawsuit (the Delaware Action) by and between the parties to the action
pending in the Court of Chancery of the State of Delaware (the Court), and by and between the
parties in certain litigation described below pending in the Superior Court of the State of
California (the California Action) (together, the Delaware Action and the California Action are
referred to herein as the Shareholder Actions). This Notice also informs you of the Courts
certification of a Settlement Class (as defined below) for purposes of the Settlement, and notifies
you of your right to
participate in a hearing to be held on January 7, 2010 at 2:30 p.m. EDT, before the Court at 34 The
Circle, Georgetown, Delaware 19947 (the Settlement Hearing) to determine whether the Court should
approve the Settlement as fair, reasonable, adequate, and in the best interests of the Settlement
Class, to determine whether Class Plaintiff Louisiana Municipal Police Employees Retirement System
(LAMPERS or Class Plaintiff) and its counsel have adequately represented the interests of the
Settlement Class in the Delaware Action, and to consider other matters, including a request by
Co-Lead Counsel (defined below) for an award of attorneys fees and reimbursement of expenses.
The Court has determined that, for purposes of the Settlement only, the Delaware Action shall
be preliminarily maintained as a non-opt-out class action pursuant to Court of Chancery Rules
23(a), 23(b)(1), and 23(b)(2) by LAMPERS as Settlement Class representative, on behalf of all
Persons1 (excluding Defendants, their immediate families, heirs and assigns, and those
in privity with them) who owned common stock of Atmel Corporation, as record or beneficial holders,
at any time from October 2, 2008, through and including November 6, 2009 (the Settlement Class).
At the Settlement Hearing, among other things, the Court will consider whether the Settlement Class
should be finally certified pursuant to Court of Chancery Rule 23 and whether LAMPERS and its
counsel have adequately represented the Settlement Class.
This Notice describes the rights you may have under the Settlement and what steps you may, but
are not required to, take in relation to the Settlement.
1 | Capitalized terms defined herein as well as those not defined herein are intended to have the same meanings set forth in the Stipulation and Agreement of Compromise, Settlement and Release, which contains the complete terms of the Settlement. |
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If the Court approves the Settlement, the parties to the Delaware Action will ask the Court at
the Settlement Hearing to enter an Order and Final Judgment (the Final Judgment) dismissing the
Delaware Action with prejudice on the merits.
THE FOLLOWING RECITATION DOES NOT CONSTITUTE FINDINGS OF THE
COURT. IT IS BASED ON STATEMENTS OF THE PARTIES AND SHOULD NOT BE
UNDERSTOOD AS AN EXPRESSION OF ANY OPINION OF THE COURT AS TO THE
MERITS OF ANY OF THE CLAIMS OR DEFENSES RAISED BY ANY OF THE
PARTIES.
II. BACKGROUND OF THE SHAREHOLDER ACTIONS
The Shareholder Actions arise out of a joint proposal that Microchip Technology Incorporated
(Microchip) and ON Semiconductor Corporation (ON Semi) publicly announced on October 2, 2008,
to acquire Atmel Corporation (Atmel or the Company) for $5.00 per share in cash, subject to
certain conditions (the Acquisition Proposal).
On October 29, 2008, Atmel announced that its Board of Directors (the Board) had rejected
the Acquisition Proposal.
On November 7, 2008, Microchip received clearance under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 to acquire over 50% of Atmels shares.
On November 10, 2008, the Board adopted an amendment (the Amendment) to the Companys
Amended and Restated Preferred Shares Rights Agreement, dated as of October 18, 1999 (the Current
Rights Agreement). The Amendment expanded the definition of Beneficial Ownership to include
Derivatives Transactions in determining whether a person is an Acquiring Person under the
Current Rights
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Agreement and lowered the threshold to become an Acquiring Person from 20% to 10% for any person
or group that made a Takeover Proposal on or after October 1, 2008.
On November 13, 2008, Lawrence Zucker (Zucker) filed the California Action alleging
shareholder class and derivative claims against Steven Laub, Tsung-Ching Wu Ph.D., David Sugishita,
Charles Carinalli, Papken Der Torossian, Jack L. Saltich, and Dr. Edward Ross (the Individual
Defendants) and the Company (collectively, the Defendants) for breach of fiduciary duty, abuse
of control, gross mismanagement and corporate waste relating to the Companys response to the
Acquisition Proposal.
On November 14, 2008, LAMPERS filed a shareholder class action complaint captioned LAMPERS v.
Laub et al., C.A. No. 4161-CC (LAMPERS Action), alleging that the Individual Defendants had
breached their fiduciary duties to Atmels shareholders by refusing to respond in good faith to the
Acquisition Proposal and by adopting the Amendment.
On November 18, 2008, ON Semi and Microchip announced their withdrawal of the Acquisition
Proposal.
On February 2, 2009, LAMPERS filed a Motion For Injunctive Relief seeking a permanent
injunction or, in the alternative, a preliminary injunction, to invalidate the Amendment on the
grounds, inter alia, that the language of the Amendment regarding Derivatives Contracts is
unenforceably vague and the Individual Defendants adoption of the Amendment constituted a breach
of fiduciary duty.
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On February 18, 2009, the Court consolidated the LAMPERS Action with two actions that had
previously been filed in this Court, captioned Kuhn v. Atmel Corporation et al., C.A. No. 4092-CC
and Gebhardt v. Atmel Corporation et al., C.A. No. 4094-CC, appointed the law firms of Grant &
Eisenhofer, P.A. and Bernstein Litowitz Berger & Grossmann LLP as co-lead counsel (Co-Lead
Counsel) for the plaintiffs in the consolidated action, and designated LAMPERSs complaint as the
operative complaint in the Delaware Action.
The relief sought by Zucker and LAMPERS (together, Plaintiffs) in the Shareholder Actions
includes, inter alia, a declaratory judgment that the Individual Defendants breached their
fiduciary duties, injunctive relief invalidating the Amendment, and an award of damages, attorneys
fees and expenses.
On March 12, 2009, the Superior Court of the State of California entered a stay of the
California Action.
On May 19, 2009, the Court denied LAMPERSs Motion For Injunctive Relief and indicated that
the parties should confer on a schedule that would enable the trial of the Delaware Action to occur
before the end of October 2009.
On June 2, 2009, LAMPERS filed an Amended Verified Class Action Complaint (Amended
Complaint) in the Delaware Action which, inter alia, included a new Count II seeking a declaration
that the Amendment is invalid and unenforceable.
On June 9, 2009, the Court entered a Scheduling Order in the Delaware Action providing for
completion of fact discovery by August 26, 2009, completion of expert discovery by September 25,
2009, and a trial date of October 27, 2009.
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In June, 2009, the parties to the Delaware Action served extensive document requests,
interrogatories and requests for admissions, and LAMPERS served a document subpoena on Atmel.
On June 18, 2009, the Individual Defendants filed a Motion to Dismiss Count II of the Amended
Complaint and on June 19, 2009, filed their Answer to the Amended Complaint.
On July 10, 2009, the Court entered a Revised Scheduling Order in the Delaware Action setting
forth a briefing schedule on the Individual Defendants Motion to Dismiss Count II of the Amended
Complaint and providing for completion of fact discovery by October 9, 2009, completion of expert
discovery by November 9, 2009, and a trial date of December 14, 2009.
On July 27, 2009, LAMPERS filed its Memorandum of Law in Opposition to Defendants Motion to
Dismiss Count II of the Amended Complaint.
In early August 2009, the parties to the Delaware Action agreed to an informal stay of the
proceedings in the Delaware Action while they continued to pursue settlement discussions that had
commenced in early June 2009.
In September 2009, the Company produced documents in the Delaware Action relating to the
Boards consideration of the Acquisition Proposal and adoption of the Amendment;
On September 14, 2009, following extensive arms-length settlement negotiations, Atmel and the
parties to the Shareholder Actions entered into a memorandum of understanding (MOU) setting forth
an agreement-in-principle to
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resolve the Shareholder Actions on the terms and conditions set forth therein, which are
described below. The MOU provided, among other things, that the Board shall immediately pass a
resolution pursuant to its powers under Section 29 of the Current Rights Agreement, which was set
to expire on October 15, 2009, interpreting Section 1(d)(iv) of the Current Rights Agreement,
including any extension thereof, to clarify that (i) the term Derivatives Contract excludes
interests in broad-based index options, broad-based index futures, and broad-based publicly traded
market baskets of stocks approved for trading by the appropriate federal governmental authority;
and (ii) to qualify as or constitute a Derivatives Contract, a contractual arrangement must
include or reference a number of Notional Common Shares (the Resolution).
On September 14, 2009, the Board adopted the Resolution. On September 15, 2009, counsel in
the Delaware Action informed the Court during a teleconference that Atmel and the parties in the
Delaware Action had entered the MOU and that the Resolution had been adopted. On September 18,
2009, pursuant to the MOU, Atmel filed a Form 8-K with the Securities and Exchange Commission
disclosing, among other things, the adoption of the Resolution.
Zucker considered the terms and conditions of the Settlement and, believing the Settlement to
be fair, reasonable, adequate, and in the best interest of Atmel and of the class in the California
Action, agreed to dismiss the California Action in its entirety, with prejudice, in consideration
of the Settlement.
On November 6, 2009, the parties to the Shareholder Actions entered into a Stipulation and
Agreement of Compromise, Settlement and Release (Stipulation) that,
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among other things, memorialized the terms of the MOU. On November 9, 2009, the parties
submitted the Stipulation to the Court. On November 16, 2009, the Court entered a scheduling order
(the Scheduling Order) that preliminarily, for purposes of the Settlement only, certified the
Settlement Class.
III. THE SETTLEMENT AND PARTICIPATION IN THE SETTLEMENT
In consideration for the Settlement (including any claim for attorneys fees) and the release
of the Settled Plaintiffs Claims and Settled Defendants Claims (defined in Section IV below), the
following actions have occurred or, as appropriate, will occur:
(a) If, prior to September 14, 2012, the Company adopts a new stockholder rights plan (the
New Rights Plan) that includes a Derivative Contract within the definition of
Beneficial Ownership (the New Derivative Rights Plan), the Company shall clarify that:
(i) the term Derivatives Contract excludes interests in broad-based index options,
broad-based index futures, and broad-based publicly traded market baskets of stocks
approved for trading by the appropriate federal governmental authority; and (ii) to qualify
as or constitute a Derivatives Contract, a contractual arrangement must include or
reference a number of Notional Common Shares.
(b) Pursuant to its powers under Section 29 of the Current Rights Agreement, the Board has
passed a resolution interpreting Section 1(d)(iv) of the Current Rights Agreement,
including any extension thereof, consistent with the foregoing paragraph (a) (as defined
above, the Resolution). On September 18, 2009, the Company publicized the adoption of
the Resolution by issuing a Form 8-K, which
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was reviewed and commented on by Plaintiffs counsel in the Shareholder Actions. The
obligation of the Company to interpret Section 1(d)(iv) of the Current Rights Agreement as
set forth in the Resolution became effective pending Court approval of the Settlement, but
shall terminate in the event the Settlement shall not be so approved.
(c) If, prior to September 14, 2012, the Company shall (i) adopt a New Derivative Rights
Plan with an expiration date beyond the date of the Companys 2010 annual meeting of
stockholders, or (ii) extend the expiration date of the Current Rights Agreement beyond the
date of the Companys 2010 annual meeting of stockholders,2 then the Company
shall include a proposal for a stockholder advisory vote on the provision including
Derivative Contracts in the definition of Beneficial Ownership in its proxy statement for
the first annual meeting occurring more than 45 days after the date of such action. The
stockholder vote shall not be binding on the Company or its Board, shall not be deemed to
be a condition to the effectiveness of the New Derivative Rights Plan, and shall not be
construed as overruling a decision by such Board, nor to create or imply any additional
fiduciary duty by such Board.
Other than as expressly set forth in Section III (a)-(c) above, nothing in the Settlement shall be
deemed to constrain in any respect the ability of the Company and/or its Board to
2 | Because the Current Rights Agreement expired on October 15, 2009, the provisions relating thereto are no longer operative. |
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respond to any proposed acquisition or other transaction or to adopt or amend a stockholders rights
plan in accordance with applicable Delaware law.
Atmel has assumed administrative responsibility for and will pay all reasonable costs and
expenses related to preparing and disseminating this Notice in accordance with the Stipulation. If
you are a member of the Settlement Class (Settlement Class Member), you will be bound by any
judgment entered in the Delaware Action whether or not you actually receive this Notice. You may
not opt out of the Settlement Class.
IV. DISMISSAL AND RELEASE OF CLAIMS
The Stipulation provides that, subject to Court approval of the Settlement, and in
consideration of the benefits provided by the Settlement:
(a) The Shareholder Actions and the claims asserted therein on behalf of the Settlement Class
shall be dismissed on the merits with prejudice (and without costs to any party), except as
provided therein.
(b) There will be a release of Settled Plaintiffs Claims, which means any and all actual or
potential claims, demands, rights, actions or causes of action, liabilities, damages, losses,
obligations, judgments, decrees, duties, costs, debts, expenses, interest, penalties, sanctions,
fees, attorneys fees, suits, matters, issues and controversies of any kind, nature or description
whatsoever (including any claims for costs, attorneys fees or expenses), whether known or unknown
(including any Unknown Claims), contingent or absolute, suspected or unsuspected, apparent or not
apparent, foreseen or unforeseen, mature or not yet mature, accrued or unaccrued, liquidated or not
liquidated, disclosed or undisclosed, and whether individual, class, direct, derivative,
representative, legal,
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equitable or of any other type, and whether based on or arising under federal, state, local,
statutory, regulatory or common law or any other law, rule or regulation (including the law of any
jurisdiction outside of the United States and including any claims under the federal securities
laws within the exclusive jurisdiction of the federal courts), that Plaintiff Releasors (as defined
below), in their capacity as shareholders of the Company, ever had, now have or may have, that, now
or hereafter, are based upon, arise out of, relate to, or involve, directly or indirectly, any of
the allegations, facts, practices, events, transactions, acts, occurrences, statements,
representations, misrepresentations, omissions, claims or any other matter, thing or cause
whatsoever, or any series thereof, that were or could have been alleged, asserted, claimed,
embraced, involved, set forth, or referred to in the Shareholder Actions, including any and all
claims that are based upon, arise out of, relate in any way to, or involve, directly or indirectly,
the Acquisition Proposal, the response to the Acquisition Proposal and the Amendment. The Settled
Plaintiffs Claims do not include any claims arising from the performance or non-performance of the
Settlement terms.
(c) There will be a release of Settled Defendants Claims, which means any and all actual or
potential claims, demands, rights, actions or causes of action, liabilities, damages, losses,
obligations, judgments, decrees, duties, costs, debts, expenses, interest, penalties, sanctions,
fees, attorneys fees, suits, matters, issues and controversies of any kind, nature or description
whatsoever (including any claims for costs, attorneys fees or expenses), whether known or unknown
(including any Unknown Claims), contingent or absolute, suspected or unsuspected, apparent or not
apparent, foreseen or unforeseen,
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mature or not yet mature, accrued or unaccrued, liquidated or not liquidated, disclosed or
undisclosed, and whether based on or arising under federal, state, local, statutory or common law
or any other law, rule or regulation (including the law of any jurisdiction outside of the United
States and including any claims under the federal securities laws within the exclusive jurisdiction
of the federal courts), that have been or could have been asserted in the Shareholder Actions or
any other forum by the Defendant Releasors (as defined below) which relate to or arise out of the
filing, prosecution or settlement of the Shareholder Actions. The Settled Defendants Claims do
not include any claims arising from the performance or non-performance of the Settlement terms.
(d) Plaintiff Releasors and Defendant Releasors shall be deemed to waive, and shall waive and
relinquish to the fullest extent permitted by law any and all provisions, rights and benefits
conferred by any law of the United States or any state or territory of the United States, or
principle of common law, which governs or limits a Persons release of Unknown Claims. Further,
(i) Plaintiff Releasors and Defendant Releasors shall be deemed to waive, and shall waive and
relinquish, to the fullest extent permitted by law, the provisions, rights and benefits of Section
1542 of the California Civil Code, which provides as follows:
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;
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(ii) Plaintiff Releasors and Defendant Releasors also shall be deemed to waive any and all
provisions, rights and benefits conferred by any law of any state or territory of the United
States, or principle of common law, which is similar, comparable or equivalent to California Civil
Code § 1542; and (iii) Plaintiffs, on behalf of the Plaintiff Releasors, and Defendants, on behalf
of Defendant Releasors, acknowledge that they may discover facts in addition to or different from
those that they now know or believe to be true with respect to the subject matter of the Settled
Plaintiffs Claims or the Settled Defendants Claims, but that it is their intention to fully,
finally and forever settle and release any and all claims released hereby, known or unknown,
suspected or unsuspected, which now exist, or heretofore existed, or may hereafter exist, and
without regard to the subsequent discovery or existence of such additional or different facts.
(e) As used in the releases, the following terms have the following definitions:
(1) Defendant Releasors means the Individual Defendants, individually and collectively, on
behalf of themselves, their heirs, executors, administrators, agents, successors and assigns,
immediate and remote, and any person they represent.
(2) Plaintiff Releasors means Plaintiffs and any and all members of the Settlement Class on
behalf of themselves, their heirs, executors, administrators, agents, successors in interest,
predecessors, assigns or transferees, immediate and remote, and any person or entity they
represent, and any person or entity acting for or on behalf of, or claiming under, any of them.
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(3) Unknown Claims means any and all claims that any Plaintiff or any Settlement Class
Member does not know or suspect to exist in his, her or its favor at the time of the release of the
Settled Plaintiffs Claims against the Released Persons, and any and all claims that any Defendant
does not know or suspect to exist in his, her or its favor at the time of the release of the
Settled Defendants Claims against Plaintiffs, the Settlement Class Members and their counsel,
which, if known, might have affected the decision to enter into the release or to object or not to
object to the Settlement.
V. REASONS FOR THE SETTLEMENT
Co-Lead Counsel have reviewed and analyzed the facts and circumstances relating to the claims
asserted in the Delaware Action, as known by LAMPERS and Co-Lead Counsel to date, including
conducting confirmatory discovery, conducting discussions with counsel to Defendants, and analyzing
documents obtained through publicly available sources, applicable case law, and other authorities.
Based on this investigation, LAMPERS has decided to enter into the Stipulation and settle the
Delaware Action, after taking into account, among other things, (1) the substantial benefits to
members of the Settlement Class from the litigation of the Delaware Action and the Settlement; (2)
the risks of continued litigation in the Delaware Action and the uncertainty of its outcome; (3)
the probability of success on the merits and the allegations in the Delaware Action, including the
uncertainty relating to the proof of those allegations; (4) the desirability of permitting the
Settlement to be consummated as provided by the terms of the Stipulation; and (5) the conclusion of
Co-Lead Counsel that
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the terms and conditions of the Settlement are fair, reasonable, adequate and in the best
interests of LAMPERS and the Settlement Class.
Counsel for Zucker in the California Action has reviewed and analyzed the facts and
circumstances relating to the claims asserted in the California Action, as known by Zucker and his
counsel to date, including conducting confirmatory discovery, conducting discussions with counsel
to Defendants, and analyzing documents obtained through publicly available sources, applicable case
law, and other authorities. Based on this investigation, Zucker has decided to enter into the
Stipulation and settle the California Action, after taking into account, among other things, (1)
the substantial benefits to members of the Settlement Class from the litigation of the California
Action and the Settlement; (2) the risks of continued litigation in the California Action and the
uncertainty of the outcome of the California Action; (3) the probability of success on the merits
and the allegations in the California Action, including the uncertainty relating to the proof of
those allegations; (4) the desirability of permitting the Settlement to be consummated as provided
by the terms of the Stipulation; and (5) the conclusion of counsel for Zucker that the terms and
conditions of the Settlement are fair, reasonable, adequate and in the best interests of Zucker and
the Settlement Class.
Defendants have denied, and continue to deny, any wrongdoing or liability with respect to all
claims, events, and transactions complained of in the Shareholder Actions and deny that any of the
claims Plaintiffs have asserted in the Shareholder Actions has any legal merit. Defendants have
entered into the Settlement solely to eliminate the burden, risk and expense of further litigation.
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VI. APPLICATION FOR ATTORNEYS FEES AND EXPENSES
Concurrent with seeking approval of the Settlement, Co-Lead Counsel shall apply to the Court
for an award of attorneys fees and reimbursement of expenses to Plaintiffs counsel in an amount
not to exceed $950,000. Defendants shall not oppose an application by Co-Lead Counsel for an award
of attorneys fees and expenses to the extent that such application does not exceed $950,000 in the
aggregate. No other application for attorneys fees and expenses shall be filed, and Plaintiffs
counsel expressly waives any right to seek any award of fees and expenses except as provided in the
Stipulation.
Subject to entry of the Final Judgment as provided for below, and pursuant to its pre-existing
obligations to indemnify the Individual Defendants, Atmel has agreed to pay Plaintiffs counsel
such attorneys fees and expenses as the Court may award, up to $950,000 (the Fee Award). The
Fee Award is subject to Final Court Approval, which means that the Court has entered a Final
Judgment approving the Settlement and that such Final Judgment 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. The Fee Award is in consideration of the release of claims
against the Individual Defendants provided for in the Stipulation.
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VII. CLASS ACTION DETERMINATION
The Court has ordered that, for purposes of the Settlement only, the Action shall be
preliminarily maintained as a class action by LAMPERS as the Settlement Class representative,
pursuant to Chancery Court Rules 23(a), 23(b)(l), and 23(b)(2), with the Class defined as set forth
above.
Inquiries or comments about the Settlement may be directed to the attention of counsel for
Class Plaintiff as follows:
Diane Zilka
Grant & Eisenhofer P.A.
1201 North Market Street
Wilmington, DE 19801
Grant & Eisenhofer P.A.
1201 North Market Street
Wilmington, DE 19801
VIII. SETTLEMENT HEARING
The Court has scheduled a Settlement Hearing, which will be held on January 7, 2010 at 2:30
p.m. EDT, at the Court of Chancery, 34 The Circle, Georgetown, Delaware 19947 to: (a) determine
whether the preliminary certifications discussed herein should be made final; (b) determine whether
LAMPERS and its counsel have adequately represented the Settlement Class: (c) determine whether the
Settlement should be approved by the Court as fair, reasonable, adequate and in the best interests
of the Settlement Class; (d) determine whether an Order and Final Judgment should be entered
pursuant to the Stipulation; (e) consider the application of Co-Lead Counsel for an award of
attorneys fees and expenses; (f) hear and determine any objections to the Settlement or the
application of Co-Lead Counsel for an award of attorneys fees and expenses; and (g) rule on such
other matters as the Court may deem appropriate.
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The Court has reserved the right to adjourn the Settlement Hearing or any adjournment thereof,
including the consideration of the application for attorneys fees, without further notice of any
kind other than oral announcement at the Settlement Hearing or any adjournment thereof. The Court
has also reserved the right to approve the Settlement at or after the Settlement Hearing with such
modification(s) as may be consented to by the parties to the Stipulation and without further notice
to the Settlement Class.
IX. RIGHT TO APPEAR AND OBJECT
Any Settlement Class Member who objects to the Settlement, certification of the Settlement
Class, the Final Judgment to be entered in the Delaware Action, and/or Co-Lead Counsels
application for an award of attorneys fees and expenses, or who otherwise wishes to be heard, may
appear in person or by his or her or its attorney at the Settlement Hearing. If you want to do so,
however, you must, not later than ten (10) calendar days prior to the Settlement Hearing, file with
the Register in Chancery, New Castle County Courthouse, 500 North King Street, Wilmington, Delaware
19801: (a) a written notice of intention to appear; (b) proof of membership in the Settlement
Class; (c) a detailed statement of the Settlement Class Members objections to any matters before
the Court; and (d) the grounds therefor or the reasons why such Settlement Class Member desires to
appear and be heard, as well as all documents or writings such person desires the Court to
consider. Also, on or before the date you file such papers, you must serve them by hand, email or
overnight mail on the following counsel of record:
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Diane Zilka
Grant & Eisenhofer P.A.
1201 North Market Street
Wilmington, DE 19801
dzilka@gelaw.com
Grant & Eisenhofer P.A.
1201 North Market Street
Wilmington, DE 19801
dzilka@gelaw.com
Andre G. Bouchard
Bouchard, Margules & Friedlander, P.A.
222 Delaware Avenue, Suite 1400
Wilmington, DE 19801
abouchard@bmf-law.com
Bouchard, Margules & Friedlander, P.A.
222 Delaware Avenue, Suite 1400
Wilmington, DE 19801
abouchard@bmf-law.com
Any Settlement Class Member who does not object to the Settlement, the Settlement Class action
determination, or the request by Co-Lead Counsel for an award of attorneys fees or expenses need
not do anything at this time.
Unless the Court otherwise directs, no person will be entitled to object to the approval of
the Settlement, the certification of the Settlement Class or the Final Judgment to be entered in
the Delaware Action, or otherwise to be heard, except by serving and filing written objections as
described above.
Any person who fails to object in the manner described above shall be deemed to have waived
the right to object (including the right to appeal) and will be forever barred from raising such
objection in this or any other action or proceeding.
X. ORDER AND FINAL JUDGMENT OF THE COURT
If the Court determines that the Settlement, as provided for in the Stipulation, is fair,
reasonable, adequate and in the best interests of the Settlement Class, the parties will ask the
Court to enter an Order and Final Judgment, which will, among other things:
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1. approve the Settlement and adjudge the terms thereof to be fair, reasonable, adequate, and
in the best interests of the Settlement Class, pursuant to Chancery Court Rule 23(e);
2. authorize and direct the performance of the Settlement in accordance with its terms and
conditions; and
3. dismiss the Delaware Action with prejudice on the merits, release all the Released Persons
from the Settled Plaintiffs Claims, and release Plaintiffs, the Settlement Class Members and their
counsel from the Settled Defendants Claims.
XI. SCOPE OF THE NOTICE
This Notice is not all-inclusive. The references in this Notice to the pleadings in the
Delaware Action, the Stipulation, and other papers and proceedings are only summaries and do not
purport to be comprehensive. For the full details of the Delaware Action, claims which have been
asserted by the parties and the terms and conditions of the Settlement, including a complete copy
of the Stipulation, members of the Settlement Class are referred to the Court files in the Delaware
Action. You or your attorney may examine the Court files during regular business hours of each
business day at the office of the Register in Chancery, in the New Castle County Courthouse, 500
North King Street, Wilmington, Delaware 19801. Questions or comments may be directed to Co-Lead
Plaintiff:
Diane Zilka
Grant & Eisenhofer P.A.
1201 North Market Street
Wilmington, DE 19801
Grant & Eisenhofer P.A.
1201 North Market Street
Wilmington, DE 19801
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DO NOT WRITE OR TELEPHONE THE COURT.
Dated: November 16, 2009
BY ORDER OF THE COURT |
||||
/s/ Register in Chancery |
#416010.4
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