Attached files
file | filename |
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EX-99.1 - EXHIBIT 99.1 - EMULEX CORP /DE/ | c05219exv99w1.htm |
EX-99.3 - EXHIBIT 99.3 - EMULEX CORP /DE/ | c05219exv99w3.htm |
8-K - FORM 8-K - EMULEX CORP /DE/ | c05219e8vk.htm |
Exhibit 99.2
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
In re EMULEX SHAREHOLDER
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: | |||
LITIGATION
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: | Consolidated C.A. No.: 4536-VCS | ||
: |
STIPULATION AND AGREEMENT OF DISMISSAL OF CERTAIN
CLAIMS AS BEING MOOT AND OF ALL OTHER CLAIMS, AND
AS TO AWARD OF ATTORNEYS FEES
CLAIMS AS BEING MOOT AND OF ALL OTHER CLAIMS, AND
AS TO AWARD OF ATTORNEYS FEES
Plaintiffs Reid Middleton, Pipefitters Local No. 636 Defined Benefit Plan and Norfolk County
Retirement Systems (collectively Plaintiffs) and defendants Fred B. Cox, James M. McCluney, Paul
F. Folino, Michael P. Downey, Robert H. Goon, Don M. Lyle, Bruce C. Edwards, and Dean A. Yoost (the
Individual Defendants), and nominal defendant Emulex Corporation (Emulex or the Company)
(collectively, Defendants), by and through their attorneys, have entered into this Stipulation
And Agreement Of Dismissal Of Certain Claims As Being Moot And Of All Other Claims, And As To Award
Of Attorneys Fees (the Stipulation), subject to the approval of the Court. Because full
pre-trial briefs have already been filed with the Court, the Parties (as defined below) will not
repeat herein the background of this consolidated action (Action).
NOW THEREFORE, Plaintiffs and Defendants (collectively, the Parties) have entered into and
agreed to this Stipulation this
_____
day of August, 2010, pursuant to Court of Chancery Rules 23 and
23.1, as follows:
1. Plaintiffs claims related to Emulexs Shareholder Rights Agreement and the bylaw requiring
a two-thirds vote of shareholders to amend the bylaws shall be dismissed as moot, in that on
October 1, 2009, the Emulex board of directors (Board) caused the early termination of the
Shareholder Rights Agreement and reduced to a simple majority the vote needed to amend the bylaws.
2. All claims set forth in Plaintiffs amended complaint, including those referred to in
paragraph 1 above, shall be dismissed without prejudice pursuant to a Final Order and Judgment to
be entered by the Court substantially on the form attached hereto as Exhibit D. In light of the
performance of Emulex stock since Plaintiffs filed their initial complaint in this matter,
Plaintiffs and their counsel, Bernstein Litowitz Berger & Grossmann LLP and Grant & Eisenhofer P.A.
(Co-Lead Counsel), have determined that it is not in the best interests of the Company or its
shareholders to continue pursuit of their claims.
3. Emulex shall cause notice of this Stipulation to current Emulex shareholders who held
Emulex stock as of July 14, 2009 and/or as of October 1, 2009 to be given in the manner directed by
the Court. The Parties shall jointly request that the Court enter the Scheduling Order,
substantially in the form attached hereto as Exhibit A, which shall approve the dissemination of
notice of this Stipulation to such Emulex shareholders by means of (a) a press release
substantially in the form attached hereto as Exhibit B (Press Release), along with the Notice of
Stipulation And Agreement Of Dismissal Of Certain Claims As Being Moot And Of All Other Claims, And
As To Award Of Attorneys Fees, And Final Hearing And Right To Appear, substantially in the form
attached hereto as Exhibit C (the Notice), which documents, along with the Stipulation, shall be
made available on the Companys website within one week of the entry of the Scheduling Order
through the date of the Courts decision on Co-Lead Counsels application for attorneys fees and
expenses, and (b) a Form 8-K filing with the Securities and Exchange Commission (SEC) that
includes the Press Release, the Stipulation and the Notice. Emulex shall assume administrative
responsibility for and will pay all costs and expenses related to preparing, publishing and filing
any and all forms of notice of this Stipulation irrespective of
whether the Court approves the form and manner of notice described in this paragraph, and in
no event shall Plaintiffs or their counsel be responsible for any such notice costs or expenses.
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4. Following the dismissal of the claims of the amended complaint without prejudice, the Court
retains jurisdiction to address Co-Lead Counsels application for attorneys fees and expenses.
5. Co-Lead Counsel have indicated that they intended to renew their previously-filed
application for an award of attorneys fees and expenses, but shall reduce the amount requested
from $6,937,424.26 to $3,000,000. The Parties have agreed that Emulex and the Individual
Defendants will not oppose such a request, and that subject to Court approval, Emulex will cause
its insurance carrier to pay the sum of $3,000,000 to Co-Lead Counsel, said amount to be inclusive
of fees and expenses, and Co-Lead Counsel have agreed to limit their total recovery of any
attorneys fees and/or expenses related to this Action to $3,000,000.
6. Within five (5) calendar days of the Court issuing an Order approving Co-Lead Counsels
application for attorneys fees and expenses, Emulex shall cause the amount approved by the Court
to be paid to Bernstein Litowitz Berger & Grossmann LLP by wire transfer. This shall be the total
payment and no other firm representing a Plaintiff in this Action shall file a claim with respect
to attorneys fees and/or expenses or otherwise claim any entitlement to any award or recovery of
attorneys fees and/or expenses.
7. Plaintiffs and their counsel and Defendants and their counsel agree that this Action
brought, prosecuted and resolved by Plaintiffs and defended by Defendants in good faith and with a
reasonable basis.
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8. This Stipulation constitutes the entire agreement among the Parties with respect to the
subject matter hereof, and may be modified or amended only by a writing signed by the signatories
hereto.
9. This Stipulation may be executed in multiple counterparts by any of the signatories hereto,
including by facsimile, and as so executed shall constitute one agreement.
10. This Stipulation shall be governed by, and construed in accordance with, the laws of the
State of Delaware, without regard to Delawares conflict of law rules.
11. This Stipulation, and all rights and powers granted hereby, shall be binding upon and
inure to the benefit of the Parties and their respective agents, executors, heirs, successors, and
assigns.
12. The undersigned attorneys represent and warrant that they have the authority from their
client(s) to enter into this Stipulation and bind their client(s) thereto. The attorney for
Plaintiffs executing this Stipulation also warrants that he has the approval of all other law firms
representing a Plaintiff in this Action to enter into this Stipulation.
DATED: August __, 2010 |
GRANT & EISENHOFER, P.A. | ||||||
OF COUNSEL: |
BY: | /s/ Stuart M. Grant | |||||
Stuart M. Grant (DE Bar No. 2526) | |||||||
BERNSTEIN LITOWITZ BERGER |
John C. Kairis (DE Bar No. 2752) | ||||||
& GROSSMANN LLP |
Ralph N. Sianni (DE Bar No. 4151) | ||||||
Mark Lebovitch |
1201 North Market Street, Suite 2100 | ||||||
Brett M. Middleton |
Wilmington, DE 19801 | ||||||
Laura H. Gundersheim |
Telephone: (302) 622-7000 | ||||||
1285 Avenue of the Americas |
|||||||
New York, New York 10019 |
Co-Lead Counsel for Shareholder Plaintiffs | ||||||
Telephone: (212) 554-1400 |
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BARROWAY TOPAZ KESSLER |
|||||||
MELTZER & CHECK, LLP |
|||||||
Marc A. Topaz |
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Michael C. Wagner Ligaya Hernandez 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Co-Lead Counsel for Shareholder Plaintiffs |
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POTTER ANDERSON & CORROON LLP | |||||||
OF COUNSEL: |
BY: | /s/ Matthew E. Fischer | |||||
Donald J. Wolfe, Jr. (DE Bar. No. 285) | |||||||
Wayne W. Smith |
Matthew E. Fischer (DE Bar. No. 3092) | ||||||
Meryl Young |
Scott B. Czerwonka (DE Bar. No. 4844) | ||||||
GIBSON DUNN & CRUTCHER LLP |
Ryan W. Browning (DE Bar. No. 4989) | ||||||
3161 Michelson |
Hercules Plaza, 6th Floor | ||||||
Irvine, California 92612 |
1313 North Market Street | ||||||
(949) 451-3800 |
P.O. Box 951 | ||||||
Wilmington, Delaware 19899 | |||||||
(302) 984-6000 | |||||||
Attorneys for Defendants |
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SO ORDERED, this ___ day of August, 2010 |
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Vice Chancellor Leo E. Strine, Jr. |
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