Attached files
| file | filename |
|---|---|
| EX-99.2 - EXHIBIT 99.2 - Advanced Emissions Solutions, Inc. | ex992-adesxnoticexofxpropo.htm |
| 8-K - 8-K - Advanced Emissions Solutions, Inc. | a8-kitem801901111616.htm |
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COURT,DISTRICT COUNTY, COLORADODOUGLAS
Court Address:
4000 Justice Way, Castle Rock, CO, 80109-7546
Plaintiff(s) GARTH DULL et al.
v.
Defendant(s) MICHAEL D DURHAM et al.
COURT USE ONLY
Case Number: 2014CV30709
Division: 1 Courtroom:
Order: Order Preliminarily Approving Derivative Settlement and Providing for Notice
The motion/proposed order attached hereto: GRANTED.
Issue Date: 11/2/2016
PAUL A KING
District Court Judge
DISTRICT COURT, COUNTY OF DOUGLAS,
COLORADO
4000 Justice Way, Suite 2009
Castle Rock, CO 80109
IN RE ADVANCED EMISSIONS SOLUTIONS, INC.
SHAREHOLDER DERIVATIVE LITIGATION
This Document Relates to:
ALL ACTIONS
FOR COURT USE ONLY
Civil Action No.: 2014CV30709
Courtroom/Division:
[PROPOSED] ORDER PRELIMINARILY APPROVING DERIVATIVE
SETTLEMENT AND PROVIDING FOR NOTICE
WHEREAS, the parties to the above-captioned consolidated shareholder derivative action
(the “Consolidated Action”) have made an application, pursuant to Colorado Rule of Civil
Procedure 23.1, for an order: (i) preliminarily approving the Stipulation of Settlement dated
September 30, 2016 (the “Stipulation”), which, together with the exhibits annexed thereto, sets
forth the terms and conditions for the proposed settlement (the “Settlement”) and dismissal of the
Consolidated Action with prejudice; and (ii) approving the form and content of dissemination of
notice of the Settlement to Current ADES Stockholders;
WHEREAS, all capitalized terms contained herein shall have the same meanings as set
forth in the Stipulation (in addition to those capitalized terms defined herein); and
WHEREAS, the Court has read and considered the Stipulation and the exhibits annexed
thereto, and all Settling Parties have consented to the entry of this Preliminary Approval Order,
NOW THEREFORE, IT IS HEREBY ORDERED:
1. The Court does hereby preliminarily approve, subject to further consideration at
the Settlement Hearing described below, the Stipulation and the Settlement set
forth therein, including the terms and conditions for settlement and dismissal with
prejudice of the Consolidated Action.
2. A hearing (the “Settlement Hearing”) shall be held before the Court on January
13, 2017 at 9:00 a.m., at the District Court, County of Douglas, Colorado, 4000
Justice Way, Suite 2009, Castle Rock, CO 80109, to determine: (i) whether the
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terms and conditions of the Settlement set forth in the Stipulation are fair,
reasonable, and adequate to ADES and Current ADES Stockholders and should
be finally approved by the Court; (ii) whether a Judgment finally approving the
Settlement, substantially in the form of Exhibit I attached to the Stipulation,
should be entered, dismissing the Consolidated Action with prejudice and
releasing and enjoining the prosecution of any and all Released Claims; and (iii)
whether Plaintiffs’ Counsel’s Fee Award should be finally approved. At the
Settlement Hearing, the Court may hear or consider such other matters as the
Court may deem necessary and appropriate.
3. The Court approves, as to form and content, the Notice attached as Exhibit G to
the Stipulation and the Summary Notice attached as Exhibit H to the Stipulation,
and finds that the dissemination of the Stipulation, Notice and Summary Notice
substantially in the manner and form set forth in this Order meets the
requirements of Colorado Rule of Civil Procedure 23.1 and due process, is the
best notice practicable under the circumstances, and shall constitute due and
sufficient notice to Current ADES Stockholders and all other Persons entitled
thereto.
4. On October 6, 2016, ADES filed with the Securities and Exchange Commission
(“SEC”) a Form 8-K describing the Stipulation and attaching a copy of the
Stipulation thereto. Not later than ten (10) business days following entry of this
Order, ADES shall (i) issue a press release or Form 8-K announcing entry of the
Order and attaching a copy of the Order and the court-approved notice to
shareholders; (ii) cause the Summary Notice to be published one time in a 1/10th
page (or smaller) ad in the Investor’s Business Daily; and (iii) post copies of the
Stipulation and Notice to the Company’s website. Not later than ten (10) business
days following entry of this Order, Robbins Arroyo LLP (counsel for one of the
Co-Lead Plaintiffs) shall post copies of the Stipulation and Notice to its firm
website.
5. All papers in support of the Settlement and the Fee Award shall be filed with the
Court and served at least twenty-one (21) calendar days prior to the Settlement
Hearing, and any reply papers shall be filed with the Court at least seven (7)
calendar days prior to the Settlement Hearing.
6. Any Current ADES Stockholder may object and/or appear and show cause, if he,
she, or it has any concern, why the Settlement should not be finally approved as
fair, reasonable, and adequate, why the Judgment should not be entered thereon,
or why the Fee Award should not be finally approved; provided, however, unless
otherwise ordered by the Court, that no Current ADES Stockholder shall be heard
or entitled to contest the approval of the terms and conditions of the Settlement,
or, if approved, the Judgment to be entered thereon approving the same, or the
Fee Award, unless that Stockholder has, at least fourteen (14) calendar days
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prior to the Settlement Hearing: (1) filed with the Clerk of the Court a written
objection to the Settlement setting forth: (a) the nature of the objection; (b) proof
of current ownership of ADES common stock, including the number of shares of
ADES common stock and the date of purchase; (c) any and all documentation or
evidence in support of such objection; and (d) the identities of any cases, by
name, court, and docket number, in which the Current ADES Stockholder or his,
her, or its attorney has objected to a settlement in the last three years; (2) if a
Current ADES Stockholder intends to appear and requests to be heard at the
Settlement Hearing, such Current ADES Stockholder must have, in addition to the
requirements of (1) above, filed with the Clerk of the Court: (a) a written notice of
such Current ADES Stockholder’s intention to appear at the Settlement Hearing;
(b) a statement that indicates the basis for such appearance; (c) the identities of
any witnesses the Current ADES Stockholder intends to call at the Settlement
Hearing and a statement as to the subjects of their testimony; and (d) any and all
evidence that would be presented at the Settlement Hearing. If a Current ADES
Stockholder files a written objection and/or written notice of intent to appear,
such Stockholder must also simultaneously serve copies of such notice, proof,
statement, and documentation, together with copies of any other papers or briefs
such Current ADES Stockholder files with the Court (either by hand delivery or
by first class mail) upon each of the following:
George C. Aguilar
ROBBINS ARROYO LLP
600 B Street, Suite 1900
San Diego, California 92101
Telephone: (619) 525-3990
Facsimile: (619) 525-3991
Eric L. Zagar
KESSLER TOPAZ MELTZER & CHECK
LLP
280 King of Prussia Road
Radnor, Pennsylvania 19087
Phone: (610) 667-7706
Fax: (267) 948-2512
Co-Lead Counsel for Lead Plaintiffs
Gregory J. Kerwin
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Suite 4200
Denver, Colorado 80202-2642
Telephone: (303) 298-5700
Facsimile: (303) 313-2829
Counsel for Michael D. Durham, C. Jean Bustard,
Sharon M. Sjostrom, Christine B. Amrhein, W.
Phillip Marcum, Alan Bradley Gabbard, Kim B.
Clarke, Derek C. Johnson, Paul A. Lang, Jeffrey C.
Smith, Richard J. Swanson, Robert E. Shanklin,
Ronald B. Johnson and Robert N. Caruso
Steven M. Kaufmann
Nicole Serfoss
MORRISON & FOERSTER LLP
4200 Republic Plaza
370 Seventeenth Street
Denver, CO 80202
Telephone: (303) 592-2257
Fax: (303) 592-1520
Counsel for Mark H. McKinnies
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Any Current ADES Stockholder who does not make his, her, or its objection in
the manner provided herein shall be deemed to have waived such objection and
shall forever be foreclosed from making any objection to the fairness,
reasonableness, or adequacy of the Settlement or the Fee Award, as set forth in
the Stipulation, unless otherwise ordered by the Court, but shall be forever bound
by the Judgment to be entered, the dismissal of this Consolidated Action with
prejudice, and any and all of the releases set forth in the Stipulation.
7. At least ten (10) business days prior to the Settlement Hearing, Defendants’
Counsel shall serve on Plaintiffs’ Counsel in the Consolidated Action, and file
with the Court, proof, by affidavit or declaration, of the dissemination of the
Stipulation, Notice and Summary Notice.
8. All Current ADES Stockholders shall be bound by all orders, determinations, and
judgments in the Consolidated Action concerning the Settlement, whether
favorable or unfavorable to Current ADES Stockholders.
9. Pending final determination of whether the Settlement should be approved,
neither Plaintiffs or Plaintiffs’ Counsel, nor any Current ADES Stockholders or
other Persons, either directly, representatively, or derivatively on behalf of ADES,
or in any other capacity, shall commence or prosecute, or in any way instigate or
participate in the commencement or prosecution of, any action or proceeding
asserting any Released Claims against any of the Individual Defendants, ADES,
or any other Released Person, in any court or tribunal.
10. The fact and terms of the Stipulation, including any exhibits attached thereto, all
proceedings in connection with the Settlement, and any act performed or
document executed pursuant to or in furtherance of the Stipulation or the
Settlement shall not be offered, received, referred to, or used in any way against
the Settling Parties or any Released Person as evidence of, or be deemed to be
evidence of, a presumption, concession, or admission of any fault
misrepresentation or omission by any of the Settling Parties or Released Person
with respect to:
(a) the truth of any fact alleged by Plaintiffs or the validity, or lack thereof, of any
claim that has been or could have been asserted in the Actions or in any litigation,
or the deficiency or infirmity of any defense that has been or could have been
asserted in the Actions or in any litigation, or of any fault, wrongdoing,
negligence, or liability of any of the Released Persons;
(b) any statement or written document approved, issued, or made by any Released
Person, or against Plaintiffs as evidence of any infirmity in their claims; or
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(c) any other reason as against the Released Persons, in any arbitration proceeding
or other civil, criminal, or administrative action or proceeding in any court,
administrative agency, or other tribunal.
The fact that ADES has implemented, or has agreed to implement, changes,
modifications, or enhancements to its corporate governance policies and practices
shall not be construed as an admission that any such enhanced policies or
practices are legally required, or to the extent such policies or practices were not
in place in the past, constituted a failure of compliance, a breach of any duty, or
any other wrongdoing.
If finally approved, the Released Persons may refer to the Settlement, and file the
Stipulation and/or the Judgment, in any action that may be brought against them
to effectuate the liability protections granted them thereunder, including, without
limitation, to support a defense or claim based on principles of res judicata,
collateral estoppel, full faith and credit, release, standing, good faith settlement,
judgment bar or reduction or any other theory of claim preclusion or issue
preclusion or similar defense or claim under U.S. federal or state law or foreign
law.
11. If the Stipulation is terminated pursuant to its terms, or the Effective Date does
not otherwise occur, all proceedings in the Consolidated Action will revert to their
status as of the date immediately preceding the date of the Stipulation.
12. The Court reserves the right to adjourn the date of the Settlement Hearing or
modify any other dates set forth herein without further notice to Current ADES
Stockholders, and retains jurisdiction to consider all further applications arising
out of or connected with the Settlement. The Court may approve the Settlement
and any of its terms, with such modifications as may be agreed to by the Settling
Parties, if appropriate, without further notice to Current ADES Stockholders.
IT IS SO ORDERED.
DATED: _______________________
Paul A. King
District Judge