Attached files
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8-K - FORM 8-K - BROADCOM CORP | a59086e8vk.htm |
Exhibit 99.1
Richard M. Heimann (State Bar No. 063607)
Joy A. Kruse (State Bar No. 142799)
Nancy Chung (State Bar No. 225584)
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Joy A. Kruse (State Bar No. 142799)
Nancy Chung (State Bar No. 225584)
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
275 Battery Street, 30th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
Email: rheimann@lchb.com
Email: jakruse@lchb.com
Email: nchung@lchb.com
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
Email: rheimann@lchb.com
Email: jakruse@lchb.com
Email: nchung@lchb.com
Lead Counsel for the Federal Derivative Plaintiff
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
IN RE BROADCOM CORP.
|
Master File No. | |
DERIVATIVE LITIGATION
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C-06-3252 R (CWx) | |
NOTICE OF PROPOSED | ||
SETTLEMENT OF SHAREHOLDER | ||
DERIVATIVE ACTION AND | ||
HEARING | ||
EXHIBIT A-1 |
NOTICE OF PROPOSED SETTLEMENT OF
DERIVATIVE ACTION
MASTER FILE NO. C-06-3252 R (CWx)
DERIVATIVE ACTION
MASTER FILE NO. C-06-3252 R (CWx)
TO: | ANY PERSON WHO OWNED BROADCOM CORPORATION COMMON STOCK ON MARCH 18, 2011 (CURRENT BROADCOM SHAREHOLDER) |
PLEASE READ THIS NOTICE CAREFULLY
THIS NOTICE RELATES TO THE PENDENCY AND PROPOSED
SETTLEMENT OF THIS SHAREHOLDER DERIVATIVE LITIGATION
SETTLEMENT OF THIS SHAREHOLDER DERIVATIVE LITIGATION
YOU ARE HEREBY NOTIFIED, pursuant to Federal Rule of Civil Procedure 23.1 and an Order
of the United States District Court for the Central District of California, Western Division
(the Court), that a proposed settlement (the Settlement) has been reached among the
Federal Derivative Plaintiff, on behalf of nominal defendant Broadcom Corporation
(Broadcom or the Company), and Defendants Henry T. Nicholas, III, William J. Ruehle and
Henry Samueli in the above-captioned derivative litigation (the Federal Derivative
Action). The Federal Derivative Action has been brought derivatively on behalf of Broadcom
to remedy the harm allegedly caused to the Company by the defendants alleged violations of
Federal and State law and breaches of fiduciary duties.
The Settling Defendants are Henry T. Nicholas III, William J. Ruehle and Henry Samueli
(Settling Defendants). The benefits to the Company of the proposed Settlement, which is
subject to Court approval, include the receipt of cash and cancelled options from Dr.
Nicholas and Dr. Samueli totaling $53,160,170 in value, plus the release of Mr. Ruehles
claims against the Company, which seeks damages in excess of $26 million, leading to a total
settlement amount of more than $79 million.
A hearing (the Settlement Hearing) will be held on May 16, 2011 at 10:00 a.m. by the
Court at the United States Courthouse, 312 North Spring Street, Courtroom 8, Los Angeles,
California to determine: (i) whether the Settlement of the Federal Derivative Action on the
terms and conditions provided for in the Stipulation is fair, reasonable and adequate to the
Current Broadcom Shareholders and to Broadcom and should be approved by the Court; and (ii)
whether a Judgment
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as provided in ¶ V.A.(10) of the Stipulation should be entered herein.
The Settling
Defendants have denied, and continue to deny, and have contested and continue to contest each and
every allegation of liability and wrongdoing on their part, and assert that they have strong
factual and legal defenses to all claims alleged against them in the Consolidated Amended
Derivative Complaint and that such claims are without merit. Without admitting any wrongdoing or
liability on their part whatsoever, the Settling Defendants nevertheless are willing to enter into
the Settlement provided for herein in order fully and finally to settle and dispose of all claims
that have been or could have been asserted against them in the Federal Derivative Action and to
avoid the continuing burden, expense, inconvenience and distraction of protracted litigation.
I. THE DERIVATIVE ACTIONS
A. The Consolidated Federal Derivative Action
On and after May 25, 2006, L.A. Murphy, Yen Shei and Alfred Ronconi filed three
derivative actions in the Central District of California: Murphy v. McGregor, et al., Case
No. CV-06-3252-R (May 25, 2006); Shei v. McGregor et al., Case No. CV-06-0663-R (July 17,
2006); and Ronconi v. Dull, et al., Case No. CV-06-0771-R (August 18, 2006). On June 23,
2006, an action initially filed in Orange County Superior Court was removed to this Court
and was captioned Jin, et al. v. Broadcom, et al., Case No. CV-06-0573-R. By an order dated
August 16, 2006, this Court consolidated Murphy and Shei under the caption In re Broadcom
Corporation Derivative Litigation, Master File No. CV-06-3252-R (CWx). On August 18, 2006,
plaintiffs filed a Consolidated Amended Derivative Complaint. By an order dated October 16,
2006, the Court consolidated Jin and Ronconi with
In re Broadcom Corporation Derivative Litigation, Master File CV-06-3252-R (CWx), and appointed
Richard M. Heimann of Lieff, Cabraser, Heimann & Bernstein, LLP to serve as lead counsel (Lead
Federal Derivative Plaintiffs
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Counsel). On November 3, 2006, plaintiffs filed their Consolidated Amended Derivative
Complaint (the Amended Complaint).
The Amended Complaint names Broadcom as a nominal defendant, and asserts claims against
certain of the Individual Defendants for alleged violations of Sections 10(b), 14(a), and
20(a) of the Securities Exchange Act of 1934, breaches of fiduciary duty, abuse of control,
gross mismanagement, waste of corporate assets, unjust enrichment, rescission, constructive
fraud, insider trading, violations of California Corporations Code §§ 25402 and 25403, and
an accounting and constructive trust. The Amended Complaint alleges, among other things,
that the named Individual Defendants intentionally manipulated certain of Broadcoms stock
option grant dates between 1997 and May 2003 in order to enrich themselves at the expense of
Broadcom and Broadcom shareholders. The Amended Complaint further alleges that the claimed
manipulation of grant dates caused Broadcom to issue false and misleading statements with
the SEC, as more fully set forth therein.
The Amended Complaint further alleges that the named Individual Defendants conduct
caused Broadcom to expend significant sums of money, including but not limited to, legal
fees and expenses in connection with internal investigations and lawsuits, and seeks damages
to compensate Broadcom for those expenditures.
The Settling Defendants deny any and all allegations of wrongdoing.
B. The State Derivative Actions
On June 23, 2006, Pirelli Armstrong Tire Corporation Retiree Medical Benefits Trust
filed a putative derivative action, purportedly on behalf of Broadcom, against certain of
the Individual Defendants in Orange County Superior Court. On July 18, 2006, Andrew Servais
filed a substantially-similar putative derivative complaint, again purportedly on behalf of
Broadcom, against the same Individual Defendants named in Pirelli. The state court
consolidated the two cases on August 11, 2006, and the state court plaintiffs filed a
Consolidated Complaint on
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September 18, 2006, naming all of the Individual Defendants. That consolidated
case, known as In re Broadcom Corp. Derivative Litigation, Lead Case
No. 06CC00124, pending in the Superior Court of the State of California, County
of Orange, before the Honorable Ronald L. Bauer, together with any other
derivative lawsuit filed in state court arising out of, based upon or related to the
allegations, transactions, facts, matters or occurrences, representations or omissions
involved, set forth, or referred to in any of the claims in the Federal Derivative
Action, constitutes the State Derivative Action.
On January 8, 2007, the state Court entered an order staying prosecution of
the State Derivative Action.
C. The Settlement Efforts
The settlement discussions between the Settling Parties have spanned several
years, dating back to early 2008. On February 7, 2011, the Settling Parties
attended an all-day in-person mediation session with Special Master John Francis
Carroll and Professor Eric Green. Professor Green and/or Special Master Carroll
have engaged in countless other mediation-related discussions with the parties both
before and after the February 7, 2011 mediation session. The mediation session and
additional mediation-related discussions resulted in memorandums of
understanding, which were signed on February 9, 2011 and February 17, 2011. A
formal stipulation and agreement of settlement (Stipulation) was drafted and
executed thereafter.
D. Benefits to Broadcom from the Settlement
Lead Federal Derivative Plaintiffs Counsel engaged in arms-length
negotiations with counsel for the Settling Defendants with a view to achieving the
benefits of this settlement. Lead Federal Derivative Plaintiffs Counsel believes
that the Settlement provides an excellent outcome for Broadcom based upon the
claims asserted against the Settling Defendants, the evidence developed, and the
recoverable damages that might be proven at trial. Lead Federal Derivative
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Plaintiffs Counsel has concluded that the terms and conditions of the Settlement
are fair, reasonable and adequate to the Company and its shareholders, and in their
best interests, and have agreed to settle the claims asserted in the Federal Derivative
Action pursuant to the terms and provisions of the Stipulation, after considering:
(i) the substantial benefits that the Company and its shareholders will receive from
the settlement of the Federal Derivative Action; (ii) the attendant risks of continued
litigation against the Settling Defendants, especially in complex actions such as this
Federal Derivative Action, as well as the difficulties and delays inherent in such
litigation; and (iii) the desirability of permitting the Settlement to be consummated,
as provided by the terms of the Stipulation. Broadcom has acknowledged the
substantial benefits conferred on it by the Settlement.
E. The Settling Defendants Denials of Wrongdoing
The Settling Defendants deny any wrongdoing, and nothing in the Stipulation
shall be construed or deemed to be evidence of, or an admission or concession on
the part of Broadcom or any Settling Defendant, or as evidence, of the truth or
validity of any of the allegations in the Federal Derivative Action, or of any
liability, fault, or wrongdoing of any kind or any infirmity in the defenses that the
Settling Defendants could have asserted. The Settling Defendants assert that they
complied with all applicable laws and regulations and deny that they have
committed any act or omitted to perform any act that constitutes a violation of
federal or state securities law or a breach of fiduciary duty, or gives rise to liability
for any of the claims that were, or could have been, asserted in the Federal
Derivative Action or the State Derivative Action. The Settling Defendants further
state that they are entering into this Settlement to eliminate the burden and expense
of further litigation. The Settling Defendants do not dispute, however, that the
Federal Derivative Action is being voluntarily settled upon the advice of counsel,
and that the terms of the Settlement are fair, adequate and reasonable. The
Stipulation shall not be construed or deemed to be a concession by any party of any
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infirmity in, or validity of, the claims asserted in either the Federal Derivative
Action or the State Derivative Action.
II. TERMS OF THE PROPOSED SETTLEMENT
The full terms and conditions of the Settlement are embodied in the
Stipulation and Agreement of Settlement, which is on file with the Court. The
following is only a summary of the Stipulation.
A. Consideration to Broadcom
Nominal Defendant Broadcom will receive payment totaling $26,580,085
from Settling Defendant Nicholas. Payment shall be made into an escrow account
for the benefit of Broadcom within ten (10) calendar days of the district courts
granting final approval of the Settlement, which payment shall be released to
Broadcom within ten (10) calendar days of the Judgment becoming Final.
Settling Defendant Ruehle shall execute a Notice of Dismissal with Prejudice
(Notice of Dismissal) of the action filed against Broadcom captioned William J.
Ruehle v. Broadcom Corporation, Case No. 30-2010-00429904, Orange County
Superior Court (the Ruehle Claim), and shall place such notice in escrow for the
benefit of Broadcom within ten (10) calendar days of the Order granting
preliminary approval of the Settlement. The Complaint in the Ruehle Claim sought
damages in excess of $26 million. By obtaining the release and dismissal of the
Ruehle Claim, Broadcom will avoid both the incurrence of substantial legal fees
and other expenses, and the diversion of executive attention and other internal
resources, that would result from continuing to litigate that matter. Settling
Defendant Ruehle will cause the Notice of Dismissal to be filed and dismiss the
Ruehle Claim with prejudice within ten (10) calendar days of the Judgment
becoming Final.
Settling Defendant Samueli shall place into an escrow account cash and
unexercised Broadcom stock options granted to Samueli totaling in value the sum
of $26,580,085. The value to Broadcom of Defendant Samuelis unexercised
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Broadcom stock options has been determined by Broadcom to be $24,265,375.00.
The unexercised Broadcom stock options shall be deemed cancelled within ten (10)
days of when the district courts order granting approval of the Settlement becomes
final, including the exhaustion of any appeal of that order. Defendant Samueli shall
also place $2,314,710 in cash in an escrow account. The cash escrow deposit shall
be transferable to the Broadcom Foundation within ten (10) days of finality of the
district courts order granting final approval of the Settlement, which shall include
the exhaustion of any appeal of that order.
Settling Defendant Samueli acknowledges and agrees that a cash contribution
to the Broadcom Foundation in the amount of $2,314,710 is being made pursuant to
and as a result of the Settlement and exceeds any contribution he would otherwise
make to the Foundation.
Nominal Defendant Broadcom acknowledges and agrees that it would have
made a contribution to the Broadcom Foundation of at least $2,314,710 regardless
of the Settlement, and therefore Broadcom will benefit from the full amount of the
contribution made by Settling Defendant Samueli pursuant to Settlement.
B. Contribution Bar and Judgment Reduction
With respect to the federal Securities Exchange Act claims only, in
accordance with § 21D(f)(7) of the Private Securities Litigation Reform Act of
1995, 15 U.S.C. §§ 78u-4(f)(7), each of the Settling Defendants, by virtue of the
Judgment, shall be discharged from all claims for contribution brought by other
Persons. The Judgment and bar order included in Exhibit B shall constitute the
final discharge of all obligations to the Federal Derivative Plaintiff, Broadcom
shareholders and Broadcom of the Settling Defendants arising out of, based upon or
related to the federal Securities Exchange Act claims in the Federal Derivative
Action. The Judgment shall bar all future claims for contribution arising out of,
based upon or related to the Released Claims by any Person against the Settling
Defendants, and by the Settling Defendants against any Person (other than the
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Insurers to the extent permitted by Section V.F.15 of the Stipulation).
With respect to any non-federal claims arising out of the facts alleged in the
Federal Derivative Action, in accordance with California Code of Civil Procedure
§§ 877 and 877.6(c), each of the Settling Defendants by virtue of the Settlement,
shall be discharged from all claims for contribution or indemnity brought by other
Persons. The Judgment and bar order included in Exhibit B shall bar any claims
against the Settling Defendants for contribution or indemnity arising out of, based
upon or related to the non-federal claims in the Federal Derivative Action and shall
also govern any offsets relating to such claims by any joint tortfeasor.
C. Pending Appeals
The Settling Defendants have stipulated to an extension of the briefing
schedule in the appeals of the partial derivative settlement finally approved on
December 14, 2009, pending before the Ninth Circuit, Case Nos. 10-55028, 10-
55034, and 10-55055, and agree to dismiss those appeals within ten (10) days of the
final, non-appealable approval of the Settlement.
III. RELEASES
1. Upon the Courts entry of the Judgment, and subject to ¶ V.E.(2) of the
Stipulation, the Federal Derivative Plaintiff and Broadcom, on behalf of themselves
and each of their Related Parties, shall be deemed to have, and by operation of the
Judgment shall have, fully, finally, and forever released, relinquished and discharged
the Settling Defendants and their Related Parties from all Released Claims, and any
and all derivative claims (including all Unknown Claims) arising out of, based upon
or related to the Released Claims or the Settlement or resolution of the Federal
Derivative Action, against all of the Released Persons. Broadcom expressly
reserves, retains and does not release any and all claims against Nancy Tullos or
Ernst & Young LLP. Claims to enforce the terms of the Stipulation are not released.
Notwithstanding any provision in the Stipulation or the Exhibits thereto, Broadcom
is not releasing, relinquishing or discharging any claims arising out of, based upon
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or related to Broadcoms indemnification or advancement of fees or expenses
incurred after February 28, 2011 by any Settling Defendant.
2. Upon the Courts entry of the Judgment, and subject to ¶ V.E.(2) of the
Stipulation, the Federal Derivative Plaintiff and Broadcom, or anyone acting on
Broadcoms behalf, on behalf of themselves and each of their Related Parties will be
forever barred and enjoined from commencing, instituting or prosecuting any of the
Released Claims, or any action or other proceeding brought derivatively on behalf of
Broadcom against any of the Released Persons arising out of, based upon or related
to the Released Claims or the Settlement or resolution of the Federal Derivative
Action. This paragraph does not bar or enjoin Broadcoms commencement,
institution or prosecution of any claims against Nancy Tullos or Ernst & Young
LLP. Claims to enforce the terms of the Stipulation are not barred or enjoined.
3. Upon the Courts entry of the Judgment, and subject to ¶ V.E.(2) of the
Stipulation, and as more specifically provided for in the Judgment attached thereto
as Exhibit B, each of the Settling Defendants and their Related Parties shall be
deemed to have, and by operation of the Judgment shall have, fully, finally, and
forever released, relinquished and discharged the Federal Derivative Plaintiff, Lead
Federal Derivative Plaintiffs Counsel and all counsel for plaintiff in the Federal
Derivative Action from all claims (including all Unknown Claims) arising out of,
based upon or related to the institution, prosecution, assertion, settlement or
resolution of the Federal Derivative Action and/or the Released Claims, except for
obligations imposed by this Stipulation in connection with the Settlement of the
Federal Derivative Action. The Stipulation does not release or purport to release
any claims by the Settling Defendants or their Related Parties against Nancy Tullos,
Ernst & Young LLP, or the Insurers. The Stipulation also does not release any
claims that the Settling Defendants may have to enforce the terms of the Stipulation.
4. Upon the Courts entry of the Judgment, and subject to ¶ V.E.(2) of the
Stipulation, each of the Settling Defendants and their Related Parties shall be
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deemed to have, and by operation of the Judgment shall have, fully, finally, and
forever released, relinquished and discharged Broadcom and its Related Parties from
all Released Claims including all Unknown Claims and claims arising out of, based
upon or related to the institution, prosecution, assertion, settlement or resolution of
the Federal Derivative Action. Notwithstanding any provision in the Stipulation or
the Exhibits thereto, the Settling Defendants are not releasing, relinquishing or
discharging any claims arising out of, based upon or related to Broadcoms
indemnification or advancement of fees or expenses incurred after February 28,
2011 by any Settling Defendant.
IV. PLAINTIFFS COUNSELS ATTORNEYS FEES AND EXPENSES
As set forth more fully in the Stipulation, the Stipulation provides for the
payment by Broadcom of $25 million as attorneys fees, expenses and costs of
plaintiffs counsel in connection with the Settlement and their prosecution of the
Federal Derivative Action, subject to Court approval. This Court shall have and
retain exclusive and continuing jurisdiction with respect to any claim by or on
behalf of any shareholders for attorneys fees and costs in connection with the
prosecution of any cause of action related to the Released Claims.
V. THE HEARING AND YOUR RIGHTS AS SHAREHOLDERS
A hearing will be held on May 16, 2011, at 10:00 a.m. before the Honorable
Manuel L. Real, United States District Judge, at the United States Courthouse,
312 North Spring Street, Los Angeles, California, for the purpose of determining:
(i) whether the Settlement of the Federal Derivative Action on the terms and
conditions provided for in the Stipulation, is fair, reasonable and adequate to the
Current Broadcom Shareholders and to Broadcom and should be approved by the
Court; and (ii) whether a Judgment as provided for in ¶ V.A.(10) of the Stipulation
should be entered herein. The hearing may be adjourned from time to time by the
Court at the hearing or any adjourned session thereof without further notice other
than by announcement of such adjournment.
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Any current beneficial owner of the shares of Broadcom common stock may
appear at the hearing and be heard as to whether the proposed Settlement should be
approved, provided, however, that no such beneficial owner shall be heard unless,
on or before April 25, 2011 his, her or its objection or opposition is made in writing
and is filed with the Court at the address shown below, together with copies of any
supporting papers and briefs upon which he, she or it intends to rely and a sworn
statement attesting to the date of purchase by such beneficial owner of his, her or its
Broadcom common stock and his, her or its continued ownership thereof. In
addition, such beneficial owner shall show due proof of service, on or before the
aforesaid date, of copies of such objection or opposition, supporting papers and
briefs, and proof of purchase and continued ownership of Broadcom common stock
upon each of the following:
CLERK
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
312 North Spring Street
Los Angeles, CA 90012
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
312 North Spring Street
Los Angeles, CA 90012
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
Richard M. Heimann
Joy A. Kruse
Nancy Chung
Embarcadero Center West
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Richard M. Heimann
Joy A. Kruse
Nancy Chung
Embarcadero Center West
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Lead Federal Derivative Plaintiffs Counsel
IRELL & MANELLA LLP
Layn R. Phillips
David Siegel
Daniel P. Lefler
Glenn K. Vanzura
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067-4276
Layn R. Phillips
David Siegel
Daniel P. Lefler
Glenn K. Vanzura
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067-4276
Attorneys for Nominal Defendant Broadcom Corporation
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Any Broadcom shareholder who does not make his, her or its objection or
opposition in the manner provided herein shall be deemed to have waived any and
all objections and opposition, and shall be forever foreclosed from making any
objection to the fairness, reasonableness and adequacy of the proposed Settlement.
VI. DISMISSAL & RELEASE
Should the Settlement be approved by the Court following the Settlement
Hearing, the Court will enter a Final Order and Judgment that:
1. Approves the Settlement as fair, reasonable and adequate to Broadcom
and its shareholders;
2. Releases and discharges each of the Settling Defendants from any and
all liability with respect to the Released Claims;
3. Permanently bars and enjoins the institution or prosecution against the
Settling Defendants of any action asserting or relating in any way to the Released
Claims.
VII. EXAMINATION OF PAPERS AND INQUIRIES
For a more detailed statement of the matters involved in this Federal
Derivative Action, reference is made to the pleadings, to the Stipulation and to all
other papers publicly filed in the Federal Derivative Action, which may be
inspected at the Office of the Clerk for the United States District Court for the
Central District of California, Western Division, 312 North Spring Street, Los
Angeles, California, during regular business hours of each business day.
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Any inquiry concerning the Federal Derivative Action should be addressed to
a representative of Lead Federal Derivative Plaintiffs Counsel: Lieff, Cabraser,
Heimann & Bernstein, LLP, Embarcadero Center West, 275 Battery Street, 29th
Floor, San Francisco, CA 94111-3339.
PLEASE DO NOT ADDRESS INQUIRIES TO THE COURT
DATED:
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BY ORDER OF THE COURT | |
UNITED STATES DISTRICT COURT | ||
CENTRAL DISTRICT OF CALIFORNIA | ||
WESTERN DIVISION |
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