Attached files
file | filename |
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8-K - 8-K - KEYCORP /NEW/ | l42257e8vk.htm |
EX-99.1 - EX-99.1 - KEYCORP /NEW/ | l42257exv99w1.htm |
EX-99.3 - EX-99.3 - KEYCORP /NEW/ | l42257exv99w3.htm |
Exhibit 99.2
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE KEYCORP DERIVATIVE LITIGATION This Document Relates to: ALL ACTIONS |
) ) ) ) ) ) |
Lead Case No. 1:10-cv-01786-DAP | ||||
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STIPULATION AND AGREEMENT OF SETTLEMENT
This Stipulation and Agreement of Settlement (the Stipulation), dated March 25, 2011, is
made and entered into by and among the following Parties (as defined herein), each by and through
their counsel of record in the above captioned consolidated shareholder derivative action (the
Action): (i) plaintiffs James T. King, Jr. (King) and Irving Lassoff (Lassoff) (together, the
Plaintiffs), on behalf of themselves and derivatively on behalf of KeyCorp (KeyCorp or the
Company); (ii) individual defendants Henry L. Meyer, III (Meyer); Thomas C. Stevens
(Stevens); Jeffrey B. Weeden (Weeden); Beth E. Mooney (Mooney); William G. Bares (Bares),
Carol A. Cartwright (Cartwright), Edward P. Campbell (Campbell), Bill R. Sanford (Sanford),
Alexander M. Cutler (Cutler), Eduardo R. Menascé (Menascé), Lauralee M. Martin (Martin), H.
James Dallas (Dallas), Joseph A. Carrabba (Carrabba), Ruth Ann M. Gillis (Gillis), Kristen L.
Manos (Manos), and Peter G. Ten Eyck, II (Ten Eyck) (together, the Individual Defendants);
(iii) KeyCorps former executive compensation consultant, defendant Mercer Inc. (Mercer); and
(iv) nominal defendant KeyCorp. This Stipulation is intended by the Parties to fully, finally, and
forever compromise, resolve, discharge, and settle the Released Claims (as defined herein), upon
the terms and subject to the conditions set forth herein.
I. INTRODUCTION
The Action concerns the decisions and recommendations by the Compensation and Organization
Committee (COC) of KeyCorps Board of Directors (the Board) relating to fiscal 2009
compensation for the Companys named executive officers and other senior officers.
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Plaintiffs in the Action alleged that, inter alia, the Board breached its fiduciary duties to
KeyCorp by increasing 2009 compensation to the Companys senior officers and by failing to take
appropriate action following the May 20, 2010 advisory shareholder vote in which a majority of
KeyCorps voting shares voted against the Boards recommendation in connection with a say on pay
resolution.
The Action was initiated on July 6, 2010 when plaintiff King filed a shareholder derivative
complaint on behalf of KeyCorp in the Common Pleas Court of Cuyahoga County, Ohio (the King
Action). The King Action was removed to the U.S. District Court for the Northern District of Ohio
(the Court) on August 12, 2010. Subsequently, on August 17, 2010, plaintiff Lassoff filed a
substantially similar shareholder derivative complaint on behalf of KeyCorp in the Court (the
Lassoff Action). The King Action and the Lassoff Action were consolidated by the Court on August
26, 2010, thus forming the Action.
Although Plaintiffs had alleged in the King Action and the Lassoff Action that pre-suit demand
on the Board was futile under Ohio law, pursuant to the terms of an Order entered by the Court on
August 31, 2010 (the August 31 Order), the Plaintiffs were required to issue a formal demand upon
the Board with respect to the executive compensation issues at KeyCorp that were the subject of the
Action (the Demand). Plaintiffs issued the Demand on the Board on September 10, 2010, in accord
with the August 31 Order.
Pursuant to the terms of the August 31 Order, the Board was required to respond to the Demand
by October 8, 2010. Defendants subsequently moved the Court on October 12, 2010 for an extension
of time to respond to the Demand to December 15, 2010. Plaintiffs did not oppose this motion,
because the Parties to the Action had begun a dialogue shortly following the issuance of the
Demand, during which it had been agreed that the Parties would attempt to engage in a process
whereby Plaintiffs would interact with and make recommendations to both a Special Committee of
Independent Directors that had been appointed by the Board to examine the Companys compensation
practices, including the time period of which Plaintiffs had complained
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(the Special Committee), as well as the full Board, regarding KeyCorps executive
compensation practices.
Despite the process described above, the Parties to the Action were unable to reach agreement
on a resolution of the Action by December 15, 2010, and accordingly the Board issued its response
to Plaintiffs Demand on that date (the Response). In its Response, the Board determined that
the Special Committee was independent and was disinterested with respect to the claims alleged by
Plaintiffs, that the Special Committee had fully investigated and reviewed Plaintiffs allegations
and Demand, that the Board and its Compensation and Organization Committee had acted in a manner
consistent with their fiduciary duties, and that it was not in the best interests of the
shareholders for the Board to accede to the Demand. Therefore the Board, based on the conclusions
and recommendations of the Special Committee, refused the Demand in its entirety, though it did
adopt a comprehensive set of recommendations made by the Special Committee to the full Board to
enhance the Companys future executive compensation practices.
Pursuant to the schedule that had been entered by the Court, the Plaintiffs consolidated
complaint was due to be filed by January 18, 2011. Following the Boards Response, however,
Plaintiffs, the Individual Defendants, and KeyCorp continued to engage in arms-length settlement
discussions. In connection with those discussions, and based on their productive nature, the
Parties first agreed to extend the time by which Plaintiffs would file their consolidated complaint
to February 1, 2011, and subsequently agreed to extend the deadline to February 15, 2011, March 17,
2011, and then March 25, 2011. The Parties arms-length settlement discussions ultimately
culminated in an agreement to resolve the Action, as reflected herein.
II. INVESTIGATION AND RESEARCH CONDUCTED BY PLAINTIFFS COUNSEL
Plaintiffs Counsel (as that term is defined in Section V hereof) conducted an extensive
investigation during the development and prosecution of the Action. This investigation has
included, inter alia, (i) inspecting, reviewing and analyzing the Companys public filings; (ii)
preparing initial complaints, a detailed Demand, and a detailed consolidated complaint; (iii)
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analyzing and reviewing certain non-public information provided by the Company; (iv)
researching the applicable law with respect to the claims asserted in the Action and the potential
defenses thereto; (v) researching corporate governance issues; (vi) employing an executive
compensation expert to conduct an analysis of KeyCorps executive compensation policies and
practices; and (vii) conducting numerous meetings with KeyCorps, the Individual Defendants and
the Special Committees counsel, including one in-person meeting at which Plaintiffs counsel and
their executive compensation consultant met with Special Committee counsel.
III. PLAINTIFFS CLAIMS AND THE BENEFITS OF SETTLEMENT
Plaintiffs believe the Action has merit. Nonetheless, Plaintiffs and Plaintiffs Counsel (as
defined herein) recognize and acknowledge the significant risk, expense, and length of continued
proceedings necessary to prosecute the Action against the Defendants through trial and through
possible appeals. Plaintiffs Counsel also have taken into account the uncertain outcome and the
risk of any litigation, especially in complex cases such as the Action, as well as the difficulties
and delays inherent in such litigation. In particular, Plaintiffs Counsel states that due to the
uncertain procedural posture of the Action and the existence of the Special Committee, Plaintiffs
may not have been able to allege demand futility or that the Demand was wrongfully refused which
could have negatively impacted the Action or resulted in its dismissal. Based on their evaluation,
Plaintiffs and Plaintiffs Counsel have determined that the settlement is in the best interests of
KeyCorp and Current KeyCorp Shareholders (as defined herein) and have agreed to settle the Action
upon the terms and subject to the conditions set forth herein.
IV. DEFENDANTS DENIALS OF WRONGDOING AND LIABILITY
Defendants have denied and continue to deny they have committed, threatened, or attempted to
commit any violations of law or breached any duty owed to Plaintiffs, KeyCorp, or its shareholders.
KeyCorp and the Individual Defendants also state the Special Committee was and is independent,
that it conducted a comprehensive, good-faith investigation, and that the Special Committee
concluded that none of the Defendants breached any fiduciary duty or violated any rule of law in
connection with the executive compensation awarded at the Company, including, but not
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limited to, 2009 compensation decisions. In fact, the Special Committee believes that the
Board and the Companys officers acted in good faith and in the best interests of the Company and
its stockholders at all relevant times. Without admitting the validity of any allegations made in
the Action, or any liability with respect thereto, Defendants and the Company have concluded that
it is desirable that the claims in the Action be settled on the terms reflected in the Stipulation.
Defendants and KeyCorp are entering into this settlement because it will eliminate the
uncertainty, distraction, disruption, burden, risk, and expense of further litigation. Further,
Defendants and KeyCorp believe that the settlement is fair, reasonable, adequate, and in the best
interests of KeyCorp and Current KeyCorp Shareholders.
Neither this Stipulation, nor any of its terms or provisions, nor entry of the Judgment, nor
any document or exhibit referred in or attached to this Stipulation, nor any action taken to carry
out this Stipulation, is, may be construed as, or may be used as evidence of the validity of any of
the Released Claims or an admission by or against the Defendants of any fault, wrongdoing, or
concession of liability whatsoever.
V. TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among Plaintiffs (on behalf of
themselves and derivatively on behalf of KeyCorp), the Defendants, and nominal defendant KeyCorp,
by and through their respective counsel or attorneys of record, that, subject to Court approval,
the Action and the Released Claims shall be finally and fully compromised, settled, and released,
and the Action shall be dismissed with prejudice, as to all Parties, upon the terms and subject to
the conditions set forth herein as follows:
1. Definitions
As used in this Stipulation, the following terms have the meanings specified below:
1.1 Action means the consolidated shareholder derivative action pending in the U.S. District
Court for the Northern District of Ohio, captioned In re KeyCorp Derivative Litigation, Lead Case
No. 1:10-cv-01786-DAP.
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1.2 Current KeyCorp Shareholders means any Persons (defined below) who owned KeyCorp common
stock as of the date of the execution of the Stipulation and who continue to hold their KeyCorp
common stock as of the date of the Settlement Hearing, excluding the Individual Defendants (defined
below), the officers and directors of KeyCorp, members of their immediate families, and their legal
representatives, heirs, successors, or assigns, and any entity in which Individual Defendants have
or had a controlling interest.
1.3 Defendants means collectively, the Individual Defendants, Mercer, and nominal defendant
KeyCorp.
1.4 Defendants Counsel means: (i) Jones Day, 901 Lakeside Avenue, Cleveland, OH 44114; (ii)
Calfee, Halter & Griswold LLP, 1400 KeyBank Center, 800 Superior Avenue, Cleveland, OH 44114; (iii)
Vorys, Sater, Seymour & Pease LLP, 2100 One Cleveland Center, 1375 East Ninth Street, Cleveland, OH
44114; and (iv) Baker & Hostetler LLP, 3200 PNC Center, 1900 East Ninth Street, Cleveland, OH
44114.
1.5 Defendants Released Claims means any and all claims, debts, rights, or causes of action
or liabilities, including Unknown Claims, that could be asserted in any forum by the Released
Parties or their successors and assigns against the Plaintiffs, Plaintiffs Counsel, or KeyCorp
which arise out of or relate in any way to the institution, prosecution, or settlement of the
Action (except for any claims to enforce the settlement).
1.6 Effective Date means the first date by which all of the events and conditions specified
in ¶ 6.1 herein have been met and have occurred.
1.7 Fee Award means the terms of the agreed upon sum be paid to Plaintiffs Counsel for
their attorneys fees and expenses, detailed in ¶ 5.1, subject to Court approval, in recognition of
the substantial benefits conferred upon KeyCorp and Current KeyCorp Shareholders by the filing,
prosecution, and settlement of the Action.
1.8 Final means the time when a judgment that has not been reversed, vacated, or modified in
any way is no longer subject to appellate review, either because of disposition on appeal and
conclusion of the appellate process or because of passage, without action, of time for
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seeking appellate review. More specifically, it is that situation when (1) either no appeal
has been filed and the time has passed for any notice of appeal to be timely filed in the Action;
or (2) an appeal has been filed and the court of appeals has either affirmed the Judgment or
dismissed that appeal and the time for any reconsideration or further appellate review has passed;
or (3) a higher court has granted further appellate review and that court has either affirmed the
underlying Judgment or affirmed the court of appeals decision affirming the Judgment or dismissing
the appeal.
1.9 KeyCorp or the Company means KeyCorp and includes all of its subsidiaries,
predecessors, successors, affiliates, officers, directors, employees, and agents.
1.10 Individual Defendants means collectively, Meyer, Stevens, Weeden, Mooney, Bares,
Cartwright, Campbell, Sanford, Cutler, Menascé, Martin, Dallas, Carrabba, Gillis, Manos, and Ten
Eyck.
1.11 Mercer means Mercer, Inc. and includes all of its past or present subsidiaries,
predecessors, successors, affiliates, parents, officers, directors, employees, and agents.
1.12 Judgment means the order and judgment to be rendered by the Court, substantially in the
form attached hereto as Exhibit C.
1.13 Notice means the Notice of Pendency and Proposed Settlement of Shareholder Action,
substantially in the form of Exhibit A attached hereto.
1.14 Parties means collectively, Plaintiffs, the Individual Defendants, Mercer, and KeyCorp.
1.15 Person means an individual, corporation, limited liability corporation, professional
corporation, partnership, limited partnership, limited liability partnership, association, joint
stock company, estate, legal representative, trust, unincorporated association, government or any
political subdivision or agency thereof, and any business or legal entity and their spouses, heirs,
predecessors, successors, representatives, or assignees.
1.16 Plaintiffs means, collectively, James T. King, Jr. and Irving Lassoff, individually and
derivatively on behalf of KeyCorp.
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1.17 Plaintiffs Counsel means: (i) The Weiser Law Firm, P.C., 121 N. Wayne Avenue, Suite
100, Wayne, Pennsylvania 19087; (ii) the Hutton Law Group, 12671 High Bluff Drive, Suite 130, San
Diego, California 92130; (iii) Ryan & Maniskas LLP, 995 Old Eagle School Rd., Suite 311, Wayne, PA
19087; and (iv) Landskroner Grieco Madden, LLC, 1360 West 9th Street, Suite 200, Cleveland, OH
44113.
1.18 Preliminary Order means the Order to be entered by the Court, substantially in the form
of Exhibit B attached hereto, including, inter alia, preliminarily approving the terms and
conditions of the settlement as set forth in this Stipulation, directing that Notice be provided to
Current KeyCorp Shareholders, and scheduling a Settlement Hearing to consider whether the
settlement and Fee Award should be approved.
1.19 Related Persons means each of the Defendants, Plaintiffs, and Plaintiffs Counsels,
past or present subsidiaries, parents, successors and predecessors, insurers, officers, directors,
agents, employees, attorneys, advisors, investment advisors, auditors, accountants, and any firm,
trust, corporation, officer, director, or other individual or entity in which any of the Defendants
or KeyCorp has a controlling interest, and the legal representatives, heirs, successors in
interest, or assigns of any of the Defendants.
1.20 Released Claims means any and all claims, debts, demands, rights, or causes of action
or liabilities, including Unknown Claims, existing derivatively on behalf of KeyCorp, against any
of the Released Parties which arise out of or relate to: (i) the allegations in the Action; or (ii)
the Stipulation, except for any claims to enforce the Stipulation. The parties acknowledge that the
plaintiffs in the action entitled Monday et al., v Meyer et al., Lead No: 1:10-cv-01838 (DCN),
pending in the U.S. District Court for the Northern District of Ohio, Eastern Division, are not
parties to this Stipulation and have not released any claims by virtue of this Stipulation and
Agreement of Settlement.
1.21 Released Parties means, collectively, each of the Defendants, Plaintiffs, and
Plaintiffs Counsel, and each of their Related Persons.
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1.22 Settlement Hearing means the hearing set by the Court to consider final approval of the
settlement and Fee Award.
1.23 Unknown Claims means any of the Released Claims and any of the Defendants Released
Claims that any Party does not know or suspect exists in his, her, or its favor at the time of the
settlement including, without limitation, those claims which, if known, might have affected the
decision to enter into, or not object to, this settlement. The Parties expressly waive,
relinquish, and release any and all provisions, rights, and benefits conferred by or under
California Civil Code Section 1542 (§1542) or any other law of the United States or any state or
territory of the United States, or principle of common law, which is similar, comparable, or
equivalent to §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 that they may discover facts in addition to or different from those now
known or believed to be true by them, with respect to the Released Claims and Defendants Released
Claims in the settlement, as the case may be, but it is the intention of the Parties to completely,
fully, finally, and forever compromise, settle, release, discharge, and extinguish any and all
Released Claims and Defendants Released Claims known or unknown, suspect or unsuspected,
contingent or absolute, accrued or unaccrued, apparent or unapparent, which do not exist, or
heretofore existed, or may hereafter exist, and without regard to the subsequent discovery of
additional or different facts.
2. Terms of the Settlement
As a result of the filing, prosecution and settlement of the Action, the Company received the
relief described below. KeyCorp and the Individual Defendants have agreed that the Company and/or
the Board will adopt the corporate governance provisions referred to in Section 2.1 below to the
extent not already adopted and will maintain the provisions in ¶¶ 2.1.A 2.1.E for at least three
years from the date of this Stipulation, provided, however, that (a) nothing in this Stipulation
shall
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be construed to limit the Board, the COC, or any officer or employee of the Company in the
exercise of their fiduciary duties, and (b) if any of the corporate governance provisions should
conflict with any applicable law(s), regulation(s), or the rule(s) of any regulatory agency,
national securities exchange or interdealer quotation system, the Company will comply with such
applicable law(s), regulation(s) or rule(s) notwithstanding the provisions of the Stipulation or
any orders implementing the Stipulation:
2.1 The Company has agreed to adopt, or to maintain as provided herein where already
implemented, the following corporate governance measures, within 90 days from the date of the entry
of this Stipulation:
A. The Board has adopted a resolution, described in the Companys upcoming Annual Proxy,
whereby KeyCorp reaffirms its pay-for-performance executive compensation philosophy following
repayment of the funds KeyCorp received under the Troubled Asset Relief Program (TARP). KeyCorp
and the Board have always believed that the Company followed a pay-for-performance philosophy,
but the Board believed that TARP placed significant limitations on the Company and Board
implementing this philosophy while under TARP. As a result of the settlement of the Action, and
KeyCorps other expected changes to executive compensation, the Board will again fully implement a
pay-for-performance philosophy as soon as practicable after repayment of the TARP funds.
B. The COC, which pursuant to the Special Committees recommendations has already been
directed by the Board to adopt measures by which executive compensation can be measured against
strict, easy-to-understand performance criteria, shall publish those measures for the preceding
year as well as its assessment of performance against those measures, including use by the COC of
discretionary factors that allow the COC to reduce executive compensation for poor performance
and/or for causing KeyCorp to undertake excessive risk, in a manner consistent with applicable SEC
rules or listing standards. In particular, and among other things, the Board shall present this
information in the Companys Annual Meeting Proxy in the CD & A section in a clear,
easy-to-understand format, subject to applicable regulatory requirements.
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C. The Board has recommended that the shareholders adopt a resolution calling for an annual
shareholder say on pay advisory vote on executive compensation. The Board or the COC, as
appropriate, shall issue a formal response in the event of a majority negative vote. The results
of the annual shareholder vote on executive compensation shall be one of the discretionary factors
used by the COC in connection with evaluating reduction of executive compensation for poor
performance or excessive risk.
D. The Board shall continue its practice of rotation of directors on its committees, including
the COC. Since the commencement of the Action, two new independent directors have been appointed
to the Board. Beginning in fiscal year 2012, the COC shall amend its charter to state that a
director generally shall not serve on the COC for more than five (5) consecutive years and new
independent directors shall be considered for membership on the COC as the current directors on the
COC rotate off.
E. The COC, in evaluating and awarding future compensation for executives who received equity
awards in 2009 and 2010, shall consider the sizing, pricing and value of those 2009 and 2010
awards. That is, if the 2009 and 2010 awards appear to provide compensation disconnected to
performance, this factor shall be considered for determining and/or adjusting downwards future
compensation to that executive so that long-term compensation reflects performance.
F. To the extent that the Company repays its obligations to the federal government under TARP,
and the Board proposes to adopt an incentive equity compensation (long or short term), retirement,
stock option, restricted stock, or other equity plan or arrangement in which Meyer would otherwise
be eligible for participation as an executive officer or employee of Key after Meyer retires as
CEO, effective May 1, 2011, in light of his impending retirement from the Company in 2012, Meyer
shall forgo any such equity or option award. A full description of Meyers compensation for 2010
may be found in the definitive proxy to be filed by the Company in connection with the 2011 Annual
Meeting.
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G. The 900,000 options granted to Meyer with an effective date of June 12, 2009 pursuant to
the KeyCorp 2004 Equity Compensation Plan (Plan) shall be modified to expire on April 30, 2015.
2.2 Since the commencement of the Action and as a result of the Special Committees
investigation and recommendations to the Board, the Board has adopted, or has agreed to adopt, the
following additional corporate governance measures, which the Board intends to maintain for at
least three years from the date of this Stipulation, provided, however, that (a) nothing in this
Stipulation shall be construed to limit the Board, the COC, or any officer or employee of the
Company in the exercise of their fiduciary duties, and (b) if any of the corporate governance
measures should conflict with any applicable law(s), regulation(s), or the rule(s) of any
regulatory agency, national securities exchange or interdealer quotation system, the Company will
comply with such applicable law(s), regulation(s) or rule(s) notwithstanding the provisions of the
Stipulation or any orders implementing the Stipulation:
A. KeyCorp, either through the COC or the Board, shall make an appropriate formal response to
the non-binding shareholder vote at the 2010 annual meeting declining to approve KeyCorps
executive compensation for 2009.
B. The COC shall reaffirm its pay for performance practice and provide for an annual Board
discussion of its philosophy on compensation, consistent with applicable regulations, before the
COC sets compensation for that year.
C. KeyCorp shall adopt a policy, consistent with the independence of the COC under applicable
law, to allow a full Board discussion of KeyCorps compensation philosophy, programs and
implementation on a periodic basis to improve full Board awareness and understanding of executive
compensation. At one Board meeting each year, the Board shall be briefed on the structure of
KeyCorps executive compensation plans and the compensation philosophy that drives them.
D. KeyCorp shall implement a mechanism for its Risk Committee and Audit Committee to make the
COC aware of issues that may impact KeyCorps future financial
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performance and therefore affect incentive compensation awards. The Risk Committee shall
routinely look at concentrations of business and the incentive compensation associated with those
businesses and then advise the COC of its findings. Similarly, the Audit Committee shall oversee
regular audits of the compensation process, whether by KeyCorps internal or external auditors as
appropriate, and shall make the COC aware of the audit results as well as any other issues that may
affect KeyCorps future financial performance and therefore affect incentive compensation awards.
E. When KeyCorp has repaid TARP funds and is able to return to its stated pay for performance
approach to executive compensation, appropriate measures shall be implemented by which the Board
can assess KeyCorps alignment in practice with its pay for performance philosophy. Performance
against these measures shall be communicated to the Board and shareholders on a regular basis.
F. When KeyCorp is fully able to re-implement a pay for performance approach to executive
compensation, incentive compensation shall be tied primarily to performance measures and
length-of-service measures shall be used sparingly. Incentive compensation also shall include risk
adjustments where appropriate.
G. KeyCorp shall develop a policy for determining the impact of extraordinary events on
compensation decisions and for dealing systematically with the impact that extraordinary events
have on incentive compensation awards.
H. Where KeyCorp identifies a significant risk that potentially affects executive compensation
in a material way, the COC shall assess whether and how that risk should be allocated for
compensation purposes.
I. As an ongoing objective, KeyCorp shall reduce the number and type of incentive compensation
plans currently in place to an optimal level for aligning pay and performance.
J. To assure separation of KeyCorps managements opinions from those of the independent
compensation consultant, the COC shall consider retaining a consultant
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independent of the compensation consultant who works with KeyCorp in developing recommended
compensation plans and performance targets, and also shall consider retaining independent counsel
for the COC.
K. To improve the communication of the linkage between its compensation philosophy and
practices, KeyCorp should review the Compensation Discussion and Analysis format to eliminate
repetition, excess verbiage, and unnecessary use of technical language, to develop a more reader
friendly document, and to provide as plain English an approach to this discussion as possible.
2.3 KeyCorp and the Individual Defendants acknowledge and agree that the Companys decision to
implement these corporate governance measures is due, in part, to the information provided by
Plaintiffs to the Special Committee following the institution of the Action.
2.4 KeyCorp and the Individual Defendants also acknowledge and agree that the settlement of
the Action, including the corporate governance measures, confers substantial benefits upon KeyCorp
and Current KeyCorp Shareholders by, among other things, materially enhancing the Companys
executive compensation practices.
3. Procedure for Implementing the Settlement
3.1 Within five (5) days after the execution of the Stipulation, the Parties shall submit the
Stipulation together with its exhibits to the Court and shall jointly apply for entry of the
Preliminary Approval Order, substantially in the form of Exhibit B attached hereto, requesting: (i)
preliminary approval of the settlement set forth in this Stipulation; (ii) approval of the form and
content of the Notice to Current KeyCorp Shareholders, substantially in the form attached hereto as
Exhibit A; and (iii) a date for the Settlement Hearing.
3.2 Within three (3) days of the entry of the Preliminary Order (substantially in the form of
Exhibit B), KeyCorp shall cause a copy of the Notice to be filed with the United States Securities
and Exchange Commission (the SEC) via a Current Report on Form 8-K. The Notice will also be
available for viewing on the website of KeyCorp at www.key.com. Plaintiffs, the
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Individual Defendants, and KeyCorp believe the content and manner of the notices requested
constitute adequate and reasonable notice to Current KeyCorp Shareholders pursuant to Rule 23.1 and
applicable law. All costs associated with Notice shall be paid by KeyCorp.
3.3 Plaintiffs Counsel shall request that the Court hold the Settlement Hearing after notice
is provided to Current KeyCorp Shareholders to approve the settlement and the agreed-upon Fee Award
(described herein at ¶¶ 5.1-5.4). At the Settlement Hearing, Plaintiffs Counsel shall request
that the Court approve the Parties settlement agreement as reflected in this Stipulation,
including their agreement on the Fee Award.
4. Releases
4.1 Upon the Effective Date, Plaintiffs, KeyCorp, and Current KeyCorp Shareholders, on behalf
of themselves, their heirs, executors, administrators, insurers, predecessors, successors, and
assigns, shall be deemed to have and by operation of a final judgment in the Action shall have
released, waived, discharged, and dismissed any and all Released Claims, and shall forever be
barred and enjoined from instituting, commencing, or prosecuting any and all Released Claims,
against any Released Parties.
4.2 Upon the Effective Date, the Individual Defendants, Mercer, and each of the other Released
Parties, on behalf of themselves, their heirs, executors, administrators, insurers, predecessors,
successors, and assigns, shall be deemed to have and by operation of a final judgment in the
Action shall have released, waived, discharged, and dismissed any and all Defendants Released
Claims, and shall forever be barred and enjoined from instituting, commencing, or prosecuting any
and all Defendants Released Claims against Plaintiffs, Plaintiffs Counsel, or KeyCorp.
4.3 The Parties will seek entry of the Judgment by the Court, dismissing the Action with
prejudice and barring any claims that have been or could have been brought in any court or forum by
KeyCorp, or any KeyCorp shareholder on KeyCorps behalf, relating to or arising out of the
allegations in the Action.
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5. Attorneys Fees and Reimbursement of Expenses
5.1 In recognition of the substantial benefits conferred upon KeyCorp and Current KeyCorp
Shareholders as a result of the initiation, prosecution, and settlement of the Action, KeyCorp, on
behalf of all Defendants, and the Board, exercising its independent business judgment, has agreed
to pay to Plaintiffs Counsel an award of attorneys fees and expenses in the Action in the total
amount of $1,750,000, subject to Court approval as provided herein. Plaintiffs, the Individual
Defendants, and KeyCorp mutually agree that this Fee Award is fair and reasonable in light of the
substantial benefits conferred upon KeyCorp and Current KeyCorp Shareholders by the Stipulation.
5.2 The Fee Award shall be transferred to The Weiser Law Firm, P.C., as receiving agent for
Plaintiffs Counsel, within five (5) days after entry of the Preliminary Order by the Court. The
Weiser Law Firm, P.C. (on behalf of all Plaintiffs Counsel) agrees to repay (within five 5 days)
the amount of the Fee Award, or part thereof, paid by KeyCorp and/or its successors as a result of
any failure to obtain final approval, final judgment, approval of said fee amount, or upon any
appeal and/or further proceedings on remand, or successful collateral attack, which results in the
Judgment or Fee Award being overturned or substantially modified. The Weiser Law Firm, P.C. has
the right to seek contribution from any or all Plaintiffs Counsel in the event that repayment
occurs, and each of Plaintiffs Counsel who receives some or all of the Fee Award is subject to the
Courts jurisdiction for the purposes of enforcing this paragraph.
5.3 The payment of the Fee Award shall constitute final and complete payment for Plaintiffs
attorneys fees and expenses that have been incurred or will be incurred in connection with the
filing and prosecution of the Action and the resolution of the derivative claims alleged therein.
The Weiser Law Firm, P.C. shall be solely responsible for the distribution of the Fee Award to
Plaintiffs Counsel. Defendants and Defendants Counsel shall have no responsibility for the
distribution of the Fee Award among Plaintiffs Counsel. If the Court modifies any aspect of the
Fee Award or the Special Award to which the parties have stipulated in Section 5, the remaining
terms and conditions of the settlement shall remain intact.
-16-
5.4 Based on the substantial benefits that Plaintiffs have achieved for the Company and
Current KeyCorp Shareholders through their prosecution of the Action, Plaintiffs Counsel intends
to seek Court approval for awards (the Special Awards) in the amount of $2,500 for each of the
Plaintiffs ($5,000 in total). Defendants will not object to a request for Court approval of the
Special Awards. The Special Awards shall be paid out of the Fee Award to the extent that
application is approved, in whole or part, by the Court.
6. Conditions of Settlement, Effect of Disapproval, Cancellation, or Termination
6.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the
following events:
(a) the entry by the Court of the Judgment substantially in the form of Exhibit C attached
hereto;
(b) the payment of the Fee Award in accordance with Section 5; and
(c) Judgment has become Final.
6.2 If any of the conditions listed in ¶ 6.1 are not met, the Stipulation and any settlement
documentation shall be null and void and of no force and effect, unless Plaintiffs Counsel and
Defendants Counsel mutually agree in writing to proceed with the Stipulation. In the event that
any of the conditions listed in ¶ 6.1 are not met, the Parties shall be restored to their positions
on the date immediately prior to the execution date of the Stipulation, and the Stipulation shall
not be deemed to constitute an admission of fact by any Party, and neither the existence of the
Stipulation nor its contents, shall be admissible in evidence or be referred to for any purposes in
the Action or in any litigation or judicial proceeding.
7. Bankruptcy
7.1 In the event any proceedings by or on behalf of KeyCorp, whether voluntary or involuntary,
are initiated under any chapter of the United States Bankruptcy Code, including any act of
receivership, asset seizure, or similar federal or state law action (Bankruptcy Proceedings), the
Parties agree to use their reasonable best efforts to obtain all necessary orders,
-17-
consents, releases, and approvals for effectuation of this Stipulation in a timely and
expeditious manner.
7.2 In the event of any Bankruptcy Proceedings on or on behalf of KeyCorp, the Parties agree
that all dates and deadlines set forth herein will be extended for such periods of time as are
necessary to obtain necessary orders, consents, releases and approvals from the Bankruptcy Court to
carry out the terms and conditions of the Stipulation.
8. Miscellaneous Provisions
8.1 The Parties: (i) acknowledge that it is their intent to consummate this Stipulation; and
(ii) agree to cooperate to the extent reasonably necessary to effectuate and implement all terms
and conditions of the Stipulation and to exercise their best efforts to accomplish the foregoing
terms and conditions of the Stipulation.
8.2 The Parties agree that the terms of the settlement were negotiated in good faith by the
Parties, and reflect a settlement that was reached voluntarily after consultation with competent
legal counsel. The Parties will request that the Judgment in the Action contain a finding that
during the course of the litigation of the Action, the Parties and their respective counsel at all
times complied with the requirements of Rule 11 of the Federal Rules of Civil Procedure and all
other similar rules of professional conduct. The Parties reserve their right to rebut, in a manner
that such party determines to be appropriate, any contention made in any public forum that the
Action was brought or defended in bad faith or without a reasonable basis.
8.3 Neither the Stipulation nor the settlement, nor any act performed or document executed
pursuant to or in furtherance of the Stipulation or the settlement: (i) is or may be deemed to be
or may be used as an admission of, or evidence of, the validity of any Released Claim, or of any
wrongdoing or liability of the Defendants, Plaintiffs, Plaintiffs Counsel and/or the Related
Persons; or (ii) is or may be deemed to be or may be used as an admission of, or evidence of, any
fault or omission of any of the Defendants, Plaintiffs, Plaintiffs Counsel and/or the Related
Persons in any civil, criminal, or administrative proceeding in any court, administrative agency,
or other tribunal. KeyCorp, the Individual Defendants, Mercer, Plaintiffs, Plaintiffs Counsel
and/or
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the Related Persons may file the Stipulation and/or the Judgment in any action that may be
brought against them in order to support a defense or counterclaim based on principles of res
judicata, collateral estoppel, release, good-faith settlement, judgment bar or reduction, or any
other theory of claim preclusion or issue preclusion or similar defense or counterclaim.
8.4 The exhibits to the Stipulation are material and integral parts hereof and are fully
incorporated herein by this reference.
8.5 The Stipulation may be amended or modified only by a written instrument signed by or on
behalf of all Parties or their respective successors-in-interest.
8.6 The Stipulation and the exhibits attached hereto represent the complete and final
resolution of all disputes between the Parties with respect to the Action, constitute the entire
agreement among the Parties, and supersede any and all prior negotiations, discussions, agreements,
or undertakings, whether oral or written, with respect to such matters.
8.7 The Stipulation shall be deemed drafted equally by all Parties hereto.
8.8 The Stipulation and the exhibits attached hereto shall be considered to have been
negotiated, executed, and delivered, and to be wholly performed, in the State of Ohio and the
rights and obligations of the Parties to the Stipulation shall be construed and enforced in
accordance with, and governed by, the internal, substantive laws of the State of Ohio without
giving effect to that States choice of law principles. No representations, warranties, or
inducements have been made to any party concerning the Stipulation or its exhibits other than the
representations, warranties, and covenants contained and memorialized in such documents.
8.9 Except as otherwise provided herein, each of the Parties shall bear his, her, or its own
costs.
8.10 Each counsel or other Person executing the Stipulation or its exhibits on behalf of any
of the settling Parties hereby warrants that such Person has the full authority to do so. The
Stipulation shall be binding upon, and inure to the benefit of, the successors and assigns of the
Parties and the Released Persons hereto.
-19-
8.11 The Parties agree that this Stipulation will run to their respective
successors-in-interest, and they further agree that any planned, proposed or actual sale, merger or
change-in-control of KeyCorp shall not void this Stipulation, and that in the event of a planned,
proposed or actual sale, merger or change-in-control of KeyCorp they will continue to seek final
approval of this Stipulation expeditiously, including but not limited to the settlement terms
reflected in this Stipulation and the Fee Award (as defined herein) and that KeyCorp and the Board
acknowledge and agree that the Company has already received adequate consideration supporting the
Courts approval of the Fee Award.
8.12 The Stipulation may be executed by facsimile and in one or more counterparts. All
executed counterparts and each of them shall be deemed to be one and the same instrument. A
complete set of original executed counterparts shall be filed with the Court.
IN WITNESS WHEREOF, the Parties hereto have caused the Stipulation to be executed, by their
duly authorized attorneys, dated as of March 25, 2011.
DATED: March 24, 2011 | THE WEISER LAW FIRM, P.C. ROBERT B. WEISER BRETT D. STECKER JEFFREY J. CIARLANTO |
|||
/s/ Robert B. Weiser | ||||
ROBERT B. WEISER 121 N. Wayne Avenue, Suite 100 Wayne, PA 19087 Telephone: (610) 225-2677 Facsimile: (610) 225-2678 Lead Counsel for Plaintiffs |
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DATED: March 24, 2011 | LANDSKRONER GRIECO MADDEN LLC JACK LANDSKRONER DREW LEGANDO |
|||
/s/ Jack Landskroner | ||||
JACK LANDSKRONER | ||||
1360 West 9th Street, Suite 200 Cleveland, OH 44113 Telephone: 216-522-9000 216-522-9007 (fax) Liaison Counsel for Plaintiffs |
||||
DATED: March 25, 2011 | JONES DAY GEOFFREY RITTS |
|||
/s/ Geoffrey Ritts | ||||
GEOFFREY RITTS | ||||
901 Lakeside Avenue Cleveland, OH 44114 Telephone: 216-586-3939 Fax: 216-579-0212 |
||||
Counsel for defendants Henry L. Meyer III, Thomas C. Stevens, Jeffrey B. Weeden, and Beth E. Mooney |
||||
DATED: March 24, 2011 |
CALFEE, HALTER & GRISWOLD LLP MITCHELL G. BLAIR KIMBERLY M. MOSES |
|||
/s/ Mitchell G. Blair | ||||
MITCHELL G. BLAIR 1400 KeyBank Center 800 Superior Avenue Cleveland, OH 44114 Telephone: 216-622-8361 Fax: 216-241-0816 Counsel for defendants William G. Bares, Peter G. Ten Eyck II, Carol A. Cartwright, Edward P. Campbell, Bill R. Sanford, Alexander M. Cutler, Eduardo R. Menascé, Lauralee E. Martin, H. James Dallas, Joseph A. Carraba, Ruth Ann M. Gillis, and Kristen L. Manos |
-21-
DATED: March 24, 2011 | VORYS, SATER, SEYMOUR & PEASE LLP DAVID J. TOCCO LAURA G. KUYKENDALL |
|||
/s/ David J. Tocco | ||||
DAVID J. TOCCO | ||||
2100 One Cleveland Center 1375 East Ninth Street Cleveland, OH 44114 Telephone: 216-479-6113 Fax: 216-479-6060 Counsel for defendant Mercer, Inc. |
||||
DATED: March 24, 2011 | BAKER & HOSTETLER LLP DANIEL R. WARREN |
|||
/s/ Daniel R. Warren | ||||
DANIEL R. WARREN | ||||
3200 PNC Center 1900 East Ninth Street Cleveland, OH 44114 Telephone: 216-861-7145 Fax: 216-696-0740 Counsel for nominal defendant KeyCorp |
||||
-22-
Exhibit A
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE KEYCORP DERIVATIVE
|
) | Lead Case No. 1:10-cv-01786-DAP | ||||
LITIGATION
|
) | |||||
) | ||||||
This Document Relates to:
|
) | |||||
) | ||||||
ALL ACTIONS
|
) | |||||
) |
NOTICE OF PENDENCY AND PROPOSED SETTLEMENT
OF SHAREHOLDER DERIVATIVE ACTION
OF SHAREHOLDER DERIVATIVE ACTION
TO: | ALL OWNERS OF KEYCORP (KEYCORP OR THE COMPANY) COMMON STOCK AS OF MARCH 25, 2011 (CURRENT KEYCORP SHAREHOLDERS). | |
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS MAY BE AFFECTED BY PROCEDINGS IN THE ABOVE-CAPTIONED ACTION (THE ACTION). THIS NOTICE RELATES TO A PROPOSED SETTLEMENT AND DISMISSAL OF SHAREHOLDER DERIVATIVE LITIGATION AND CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS. | ||
IF THE COURT APPROVES THE SETTLEMENT AND DISMISSAL OF THE ACTION, SHAREHOLDERS OF KEYCORP WILL BE FOREVER BARRED FROM CONTESTING THE APPROVAL OF THE PROPOSED SETTLEMENT AND FROM PURSUING THE SETTLED CLAIMS. THIS ACTION IS NOT A CLASS ACTION. THUS, THERE IS NO COMMON FUND UPON WHICH YOU CAN MAKE A CLAIM FOR A MONETARY PAYMENT. | ||
THE COURT HAS MADE NO FINDINGS OR DETERMINATIONS RESPECTING THE MERITS OF THE ACTION. THE RECITATION OF THE BACKGROUND AND CIRCUMSTANCES OF THE SETTLEMENT CONTAINED HEREIN DOES NOT CONSTITUTE THE FINDINGS OF THE COURT. IT IS BASED ON REPRESENTATIONS MADE TO THE COURT BY COUNSEL FOR THE PARTIES. | ||
IF YOU WERE NOT THE BENEFICIAL OWNER OF KEYCORP COMMON STOCK ON MARCH 25, 2011, PLEASE TRANSMIT THIS DOCUMENT TO SUCH BENEFICIAL OWNER. |
-1-
YOU ARE HEREBY NOTIFIED, pursuant to Federal Rule of Civil Procedure 23.1 and an Order of the
U.S. District Court for the Northern District of Ohio (the Court), that a proposed settlement
agreement (the Settlement) has been reached among Plaintiffs,1 on behalf of themselves
and derivatively on behalf of KeyCorp, the Individual Defendants, and the Companys former
executive compensation consultant, Mercer, in connection with the consolidated shareholder
derivative action entitled In re KeyCorp Derivative Litigation, Lead Case No. 1:10-cv-01786-DAP,
pending before the Court (i.e., the Action).
As explained below, a hearing (the Settlement Hearing) shall be held before this Court on
____________, 2011 at _____ ___. m. to determine whether, inter alia, the proposed Settlement is
fair, reasonable, and adequate, and should be finally approved by the Court. You have the right to
object to the Settlement in the manner provided herein. If you fail to object in the manner
provided herein at least seven (7) days prior to the Settlement Hearing, you will be deemed to have
waived your objections and will be bound by the Judgment to be entered and the releases to be
given, unless otherwise ordered by the Court.
This Notice is not intended to be and should not be construed as an expression of any opinion
by the Court with respect to the merits of the claims made in the Action, but is merely to advise
you of the Settlement and of your rights as a Current KeyCorp Shareholder.
I. BACKGROUND
The Action concerns the decisions and recommendations by KeyCorps Board of Directors (the
Board) regarding fiscal 2009 compensation for the Companys senior officers.
1 | For purposes of this Notice, the Court incorporates by reference the definitions in the Parties Stipulation and Agreement of Settlement (Stipulation) fully executed as of March 25, 2011, and all capitalized terms used herein, unless otherwise defined, shall have the same meanings as set forth in the Stipulation. A copy of the Stipulation may be inspected at the Clerk of the Courts Office for the U.S. District Court for the Northern District of Ohio, Carl B. Stokes U.S. Court House, 801 West Superior Avenue, Cleveland, OH 44113, and is also available for viewing on KeyCorps website. |
-2-
Plaintiffs alleged in the Action that, among other things, the Board breached its fiduciary
duties to KeyCorp by increasing 2009 compensation and by failing to take appropriate action
following the May 20, 2010 shareholder vote in which a majority of KeyCorps voting shares voted
against the Boards recommendation in connection with a say on pay resolution. Defendants have
denied and continue to deny they have committed, threatened, or attempted to commit any violations
of law or breached any duty owed to Plaintiffs, KeyCorp, or its shareholders. The Court has not
issued any rulings on the merits of any of the claims in the Action.
The Action was initiated on July 6, 2010 when plaintiff King filed a shareholder derivative
complaint on behalf of KeyCorp in the Common Pleas Court of Cuyahoga County, Ohio (the King
Action). The King Action was removed to the U.S. District Court for the Northern District of Ohio
(the Court) on August 12, 2010. Subsequently, on August 17, 2010, plaintiff Lassoff filed a
substantially similar shareholder derivative complaint on behalf of KeyCorp in the Court (the
Lassoff Action). The King Action and the Lassoff Action were consolidated by the Court on August
26, 2010, thus forming the Action.
Although Plaintiffs had alleged in the King Action and the Lassoff Action that pre-suit demand
on the Board was futile under Ohio law, pursuant to the terms of an Order entered by the Court on
August 31, 2010 (the August 31 Order), Plaintiffs were required to issue a formal demand upon the
Board with respect to the executive compensation issues that were the subject of the Action (the
Demand). Plaintiffs issued the Demand on the Board on September 10, 2010, in accord with the
August 31 Order.
Pursuant to the terms of the August 31 Order, the Board was required to respond to the Demand
by October 8, 2010. Defendants to the Action, however, made a motion to extend their response to
the Demand to December 15, 2010. Plaintiffs did not to oppose this motion, because Plaintiffs,
KeyCorp and the Individual Defendants had begun a dialogue shortly following the issuance of the
Demand, during which it had been agreed that the Parties would attempt to engage in a process
whereby Plaintiffs would interact with and make recommendations to both a Special Committee of
Independent Directors that had been appointed by the Board to examine
-3-
the Companys compensation practices (the Special Committee), as well as the full Board,
regarding KeyCorps executive compensation practices.
Despite the process described above, the Parties to the Action were unable to reach agreement
on a resolution of the Action by December 15, 2010, and accordingly the Board issued its response
to Plaintiffs Demand on that date (the Response). In its Response, the Board, based on the
conclusions and recommendations of the Special Committee, refused the Demand in its entirety,
though it did recommend that the full Board consider certain executive compensation principles in
the future.
Following the Boards Response, Plaintiffs, KeyCorp and the Individual Defendants continued to
engage in arms-length settlement discussions. These arms-length settlement discussions
ultimately culminated in the Settlement, as reflected in the Stipulation.
II. PLAINTIFFS COUNSELS INVESTIGATION AND RESEARCH, PLAINTIFFS CLAIMS AND THE BENEFITS OF
SETTLEMENT
Plaintiffs Counsel conducted an extensive investigation during the development and
prosecution of the Action. This investigation has included, inter alia, (i) inspecting, reviewing
and analyzing the Companys public filings; (ii) preparing initial complaints, a detailed Demand,
and a detailed consolidated complaint; (iii) analyzing and reviewing certain non-public information
provided by the Company; (iv) researching the applicable law with respect to the claims asserted in
the Action and the potential defenses thereto; (v) researching corporate governance issues; (vi)
employing an executive compensation expert to conduct an analysis of KeyCorps executive
compensation policies and practices; and (vii) conducting numerous meetings with the KeyCorps, the
Individual Defendants and the Special Committees counsel, including one in-person meeting with
Plaintiffs executive compensation consultant and Special Committee counsel.
Plaintiffs believe the Action has merit. Nonetheless, Plaintiffs and Plaintiffs Counsel
recognize and acknowledge the significant risk, expense, and length of continued proceedings
necessary to prosecute the Action against the Defendants through trial and through possible
-4-
appeals. Plaintiffs Counsel also have taken into account the uncertain outcome and the risk
of any litigation, especially in complex cases such as the Action, as well as the difficulties and
delays inherent in such litigation. In particular, Plaintiffs Counsel states that due to the
uncertain procedural posture of the Action and the existence of the Special Committee, Plaintiffs
may not have been able to allege demand futility or that the Demand was wrongfully refused which
could have negatively impacted the Action or resulted in its dismissal. Based on their evaluation,
Plaintiffs and Plaintiffs Counsel have determined that the Settlement is in the best interests of
KeyCorp and Current KeyCorp Shareholders and have agreed to settle the Action upon the terms and
subject to the conditions set forth in the Stipulation.
III. DEFENDANTS DENIALS OF WRONGDOING AND LIABILITY
Defendants have denied and continue to deny they have committed, threatened, or attempted to
commit any violations of law or breached any duty owed to Plaintiffs, KeyCorp, or its shareholders.
KeyCorp and the Individual Defendants also state the Special Committee was and is independent,
that it conducted a comprehensive, good-faith investigation, and that the Special Committee
concluded that none of the Defendants breached any fiduciary duty or violated any rule of law in
connection with the executive compensation awarded at the Company, including, but not limited to,
2009 compensation decisions. In fact, the Special Committee believes that the Board and the
Companys officers acted in good faith and in the best interests of the Company and its
stockholders at all relevant times. Without admitting the validity of any allegations made in the
Action, or any liability with respect thereto, Defendants and the Company have concluded that it is
desirable that the claims in the Action be settled on the terms reflected in the Stipulation.
Defendants and KeyCorp are entering into this Settlement because it will eliminate the uncertainty,
distraction, disruption, burden, risk, and expense of further litigation. Further, the Individual
Defendants and KeyCorp acknowledge that the Settlement is fair, reasonable, adequate, and in the
best interests of KeyCorp and Current KeyCorp Shareholders.
-5-
Neither the Stipulation, nor any of its terms or provisions, nor entry of the Judgment, nor
any document or exhibit referred in or attached to the Stipulation, nor any action taken to carry
out the Stipulation, is, may be construed as, or may be used as evidence of the validity of any of
the Released Claims or an admission by or against the Defendants of any fault, wrongdoing, or
concession of liability whatsoever.
IV. THE SETTLEMENT HEARING
The Settlement Hearing will be held before the Honorable Dan Aaron Polster on _________, 2011
at _______ ___.m. at the United States District Court for the Northern District of Ohio, Carl B.
Stokes U.S. Court House, 801 West Superior Avenue, Cleveland, OH 44113 to determine: (i) whether
the Settlement, upon the terms set forth in the Stipulation, should be finally approved in all
respects as fair, reasonable, and adequate; (ii) whether the Judgment approving the Settlement
should be entered; and (iii) whether Plaintiffs Counsels agreed-to Fee Award should be finally
approved. The Settlement Hearing may be continued by the Court at the Settlement Hearing, or at
any adjourned session thereof without further notice.
V. THE SETTLEMENT
To resolve the Action, the Board has agreed to adopt a series of corporate governance
principles and policies related to executive compensation that the Parties to the Action believe
will more closely align stockholder interests with management interests. In addition, the
Compensation and Organization Committee (COC) of the Board has modified the exercise period for
certain options granted to the Companys CEO on June 12, 2009 so that those options will expire on
April 30, 2015, rather than on June 12, 2019.2 Plaintiffs, the Individual
2 | This is a summary of relevant Settlement terms, for a complete recitation of all Settlement terms, please see a copy of the Stipulation in file at the Clerk of the Courts Office for the U.S. District Court for the Northern District of Ohio, Carl B. Stokes U.S. Court House, 801 West Superior Avenue, Cleveland, OH 44113, or on KeyCorps website. |
-6-
Defendants and KeyCorp believe that the Settlement terms, have, or will materially benefit
KeyCorp and Current KeyCorp Shareholders.
VI. DISMISSAL AND RELEASES
In connection with the Courts approval of the Settlement, the Parties will jointly request
entry of the Judgment by the Court, dismissing with prejudice all claims alleged by Plaintiffs
against the Individual Defendants and Mercer in the Action.
Upon the entry of the Judgment, Plaintiffs, KeyCorp, and Current KeyCorp Shareholders, on
behalf of themselves, their heirs, executors, administrators, insurers, predecessors, successors,
and assigns, shall be deemed to haveand by operation of the Judgment shall havereleased,
waived, discharged, and dismissed any and all Released Claims, and shall forever be barred and
enjoined from instituting, commencing, or prosecuting any and all Released Claims, against any
Released Parties.
Further, upon entry of the Judgment, the Individual Defendants, Mercer, and each of the other
Released Parties, on behalf of themselves, their heirs, executors, administrators, insurers,
predecessors, successors, and assigns, shall be deemed to haveand by operation of the Judgment
shall havereleased, waived, discharged, and dismissed any and all Defendants Released Claims,
and shall forever be barred and enjoined from instituting, commencing, or prosecuting any and all
Defendants Released Claims, against Plaintiffs and Plaintiffs Counsel or KeyCorp.
VII. ATTORNEYS FEES AND EXPENSES
In recognition of the substantial benefits conferred upon KeyCorp and Current KeyCorp
Shareholders as a result of the settlement of the Action, KeyCorp has agreed to pay to Plaintiffs
Counsel an award of attorneys fees and expenses in the Action in the total amount of $1,750,000,
subject to Court approval at the Settlement Hearing. Plaintiffs, the Individual Defendants and
KeyCorp mutually agree that this Fee Award is fair and reasonable in light of the benefits bestowed
upon KeyCorp and Current KeyCorp Shareholders by the Settlement. Plaintiffs Counsel shall request
final approval of the Fee Award at the Settlement Hearing. To
-7-
date, Plaintiffs Counsel have neither received any payment for their services in conducting
the Action nor have they been reimbursed for their out-of-pocket expenses incurred. Plaintiffs
Counsel believe that the agreed-to Fee Award is fair and is within the range of attorneys fees
approved by courts under similar circumstances in litigation of this type. Notwithstanding the
foregoing, if the Court modifies any aspect of the Fee Award, the remaining terms and conditions of
the Settlement shall remain intact.
VIII. THE SPECIAL AWARDS
Based on the substantial benefits that Plaintiffs have achieved for the Company and Current
KeyCorp Shareholders through their prosecution of the Action, Plaintiffs Counsel intends to seek
Court approval for awards (the Special Awards) in the amount of $2,500 for each of the Plaintiffs
($5,000 in total). Defendants will not object to a request for Court approval of the Special
Awards. The Special Awards shall be paid out of the Fee Award to the extent that the Fee Award is
approved, in whole or part, by the Court.
IX. THE RIGHT TO OBJECT AND/OR BE HEARD AT THE SETTLEMENT HEARING
Any Current KeyCorp Shareholder may object to the proposed Settlement, the Fee Award and/or
the Special Awards. Any such objection will be considered by the Court only if the shareholder
has, at least seven (7) days prior to the Settlement Hearing: (1) filed with the Clerk of the Court
a written objection setting forth: (a) the nature of the objection; (b) proof of continuous
ownership of KeyCorp common stock at the time of the events alleged in the Action through the date
of the Settlement Hearing, including the number of shares of KeyCorp common stock and the date of
purchase; and (c) any documentation in support of the objection; and (2) if a Current KeyCorp
Shareholder intends to appear and requests to be heard at the Settlement Hearing, such shareholder
must have, in addition to the requirements of (1) above, filed with the Clerk of the Court: (a) a
written notice of such shareholders intention to appear; (b) a statement that indicates the basis
for such appearance; and (c) the identities of any witnesses the shareholder intends to call at the
Settlement Hearing and a summary of the anticipated testimony
-8-
of each witness. If a Current KeyCorp Shareholder files a written objection and/or written
notice of intent to appear, such shareholder must also simultaneously serve copies of such notice,
proof, statement, and documentation, together with copies of any other papers or briefs such
shareholder files with the Court (either by hand delivery or by first class mail) upon each of the
following:
Robert B. Weiser
|
Geoffrey Ritts | |
THE WEISER LAW FIRM, P.C. | JONES DAY | |
121 N. Wayne Avenue, Suite 100 | 901 Lakeside Avenue | |
Wayne, PA 19087 | Cleveland, OH 44114 | |
Counsel for Plaintiffs | Counsel for Defendants Henry L. | |
Meyer III, Thomas C. Stevens, Jeffrey | ||
B. Weeden, and Beth E. Mooney | ||
Mitchell G. Blair | ||
CALFEE, HALTER & GRISWOLD LLP | ||
1400 KeyBank Center | ||
800 Superior Avenue | ||
Cleveland, OH 44114-2688 | ||
Counsel for Defendants William G. Bares, | ||
Carol A. Cartwright, Edward P. Campbell, Bill | ||
R. Sanford, Alexander M. Cutler, Eduardo R. | ||
Menascé, Lauralee M. Martin, H. James | ||
Dallas, Joseph A. Carrabba, Ruth Ann M. | ||
Gillis, Kristen L. Manos, and | ||
Peter G. Ten Eyck, II | ||
Daniel R. Warren | ||
BAKER & HOSTETLER LLP | ||
PNC Center | ||
1900 East 9th Street, Suite 3200 | ||
Cleveland, OH 44114-3482 | ||
Counsel for KeyCorp |
Any Current KeyCorp Shareholder 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
-9-
Settlement, the Fee Award or the Special Awards, unless otherwise ordered by the Court, but
shall otherwise be bound by the Judgment to be entered and the releases to be given.
X. CONDITIONS FOR SETTLEMENT
The Settlement is conditioned upon the occurrence of certain events described in the
Stipulation, which requires, among other things: (1) entry of the requested Judgment by the Court;
and (2) expiration of the time to appeal from or to alter or amend the Judgment. If, for any
reason, any one of the conditions described in the Stipulation is not met and the entry of the
Judgment does not occur, the Stipulation might be terminated and, if terminated, will become null
and void; and the Parties to the Stipulation will be restored to their respective positions as of
the time immediately before the Effective Date of the Stipulation.
XI. EXAMINATION OF PAPERS AND INQUIRIES
This Notice contains only a summary of the terms of the Settlement. For a more detailed
statement of the matters involved in the Action, reference is made to the Stipulation, which may be
inspected at the Clerk of the Courts Office, U.S. District Court for the Northern District of
Ohio, Carl B. Stokes U.S. Court House, 801 West Superior Avenue, Cleveland, OH 44113, during
business hours of each business day. The Notice as well as the Stipulation will also be available
for viewing on KeyCorps website.
Any other inquiries regarding the Settlement or the Action should be addressed in writing to
the following:
ROBERT B. WEISER
THE WEISER LAW FIRM, P.C.
121 N. Wayne Avenue, Suite 100
Wayne, PA 19087
Telephone: (866) 934-7372
Facsimile: (610) 225-2678
THE WEISER LAW FIRM, P.C.
121 N. Wayne Avenue, Suite 100
Wayne, PA 19087
Telephone: (866) 934-7372
Facsimile: (610) 225-2678
Counsel for Plaintiffs
PLEASE DO NOT CONTACT THE COURT, DEFENDANTS COUNSEL
OR KEYCORP REGARDING THIS NOTICE.
-10-
Exhibit B
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE KEYCORP DERIVATIVE
|
) | Lead Case No. 1:10-cv-01786-DAP | ||||
LITIGATION
|
) | |||||
) | ||||||
This Document Relates to:
|
) | |||||
) | ||||||
ALL ACTIONS
|
) | |||||
) |
[PROPOSED] ORDER PRELIMINARILY APPROVING
DERIVATIVE SETTLEMENT AND PROVIDING FOR NOTICE
DERIVATIVE SETTLEMENT AND PROVIDING FOR NOTICE
WHEREAS, the Parties to the above-captioned consolidated shareholder derivative action (the
Action) have made an application, pursuant to Federal Rule of Civil Procedure 23.1, for an order:
(i) preliminarily approving the settlement of the Action, in accordance with the Stipulation and
Agreement of Settlement dated March 25, 2011 (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 Action with prejudice, upon the terms and conditions set forth therein; and
(ii) approving the form and content of the Notice of Pendency and Proposed Settlement of
Shareholder Derivative Action (the Notice) for posting on the website of KeyCorp and for filing
by KeyCorp with the U.S. Securities and Exchange Commission (the SEC) via a Current Report on
Form 8-K;
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.
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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 Action.
2. A hearing (the Settlement Hearing) shall be held before this Court on _____________, 2011
at ______ _.m. to determine: (i) whether the terms and conditions of the Settlement set forth in
the Stipulation are fair, reasonable, and adequate to KeyCorp and Current KeyCorp Shareholders and
should be finally approved by the Court; (ii) whether a Judgment approving the Settlement, as
provided for in paragraph _____ of the Stipulation and attached thereto as Exhibit C, should be
entered; and (iii) whether Plaintiffs Counsels agreed-to Fee Award and/or the Special Awards
should be finally approved.
3. The Court approves, as to form and content, the Notice attached as Exhibit A to the
Stipulation and for convenience annexed as Exhibit A hereto, and finds that the provision of such
Notice substantially in the manner and form set forth in this Order meets the requirements of
Federal Rule of Civil Procedure 23.1 and due process, and is the best notice practicable under the
circumstances and shall constitute due and sufficient notice to all Persons entitled thereto.
4. Not later than three (3) days following entry of this Order, KeyCorp shall cause the
Notice, substantially in the form annexed hereto as Exhibit A, and the Stipulation to be posted on
KeyCorps website.
5. Not later than three (3) days following entry of this Order, KeyCorp shall cause a copy of
the Notice to be filed with the SEC as a Current Report on Form 8-K.
6. Any Current KeyCorp Shareholder 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, or why the Judgment should not be entered thereon, or why the Fee Award and/or Special
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Awards should not be finally approved, provided, however, unless otherwise ordered by the
Court, no Current KeyCorp Shareholder 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 and/or Special Awards, unless that shareholder has, at least
seven (7) days 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 ownership
of KeyCorp common stock at the time of the events alleged in the Action through the date of the
Settlement Hearing, including the number of shares of KeyCorp common stock presently owned and the
date of purchase; and (c) any documentation in support of such objection; and (2) if a Current
KeyCorp Shareholder intends to appear and requests to be heard at the Settlement Hearing, such
shareholder must have, in addition to the requirements of (1) above, filed with the Clerk of the
Court: (a) a written notice of such shareholders intention to appear; (b) a statement that
indicates the basis for such appearance; and (c) the identities of any witnesses the shareholder
intends to call at the Settlement Hearing and a statement as to the subjects of the testimony of
each witness. If a Current KeyCorp Shareholder files a written objection and/or written notice of
intent to appear, such shareholder must also simultaneously serve copies of such notice, proof,
statement, and documentation, together with copies of any other papers or briefs such shareholder
files with the Court (either by hand delivery or by first class mail) upon each of the following:
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Robert B. Weiser THE WEISER LAW FIRM, P.C. 121 N. Wayne Avenue, Suite 100 Wayne, PA 19087 |
Geoffrey Ritts JONES DAY 901 Lakeside Avenue Cleveland, OH 44114 |
|
Counsel for Plaintiffs |
Counsel for Defendants Henry L. Meyer III, Thomas C. Stevens, Jeffrey B. Weeden, and Beth E. Mooney |
|
Mitchell G. Blair CALFEE, HALTER & GRISWOLD LLP 1400 KeyBank Center 800 Superior Avenue Cleveland, OH 44114-2688 |
||
Counsel for Defendants William G. Bares, Carol A. Cartwright, Edward P. Campbell, Bill R. Sanford, Alexander M. Cutler, Eduardo R. Menascé, Lauralee M. Martin, H. James Dallas, Joseph A. Carrabba, Ruth Ann M. Gillis, Kristen L. Manos, and Peter G. Ten Eyck, II |
||
Daniel R. Warren BAKER & HOSTETLER LLP PNC Center 1900 East 9th Street, Suite 3200 Cleveland, OH 44114-3482 Counsel for KeyCorp |
Any Current KeyCorp Shareholder 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 and/or Special Awards as incorporated in the Stipulation, unless otherwise ordered by the
Court, but shall otherwise be bound by the Judgment to be entered and the releases to be given.
7. At least ten (10) days prior to the Settlement Hearing, Defendants Counsel shall serve on
counsel in the Action and file with the Court proof, by affidavit or declaration, of the filing
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of the Notice as a Current Report on Form 8-K with the SEC and the posting of the Notice and
Stipulation on KeyCorps website.
8. Plaintiffs opening papers in support of the Settlement shall be filed with the Court and
served twenty-one (21) days prior to the Settlement Hearing. To the extent that there are any
objections to the Settlement, the Fee Award, and/or the Special Awards, Plaintiffs shall file any
reply papers and serve them upon the Court and the parties three (3) days before the Settlement
Hearing.
9. All Current KeyCorp Shareholders shall be bound by all orders, determinations, and
judgments in the Action concerning the Settlement, whether favorable or unfavorable to Current
KeyCorp Shareholders.
10. Pending final determination of whether the Settlement should be approved, no Current
KeyCorp Shareholder, either directly, representatively, or in any other capacity, shall commence or
prosecute against any of the Individual Defendants, Mercer, or KeyCorp, or derivatively on behalf
of KeyCorp, any action or proceeding in any court or tribunal asserting any of Plaintiffs Released
Claims.
11. Neither the Stipulation (including any exhibits attached thereto) nor the Settlement, nor
any act performed or document executed pursuant to or in furtherance of the Stipulation or the
Settlement: (a) is or may be deemed to be or may be offered, attempted to be offered or used in any
way by the Parties as a presumption, a concession or an admission of, or evidence of, the validity
of any of Plaintiffs Released Claims, or of any fault, wrongdoing or liability of the Individual
Defendants, Mercer, or KeyCorp, or the validity of Plaintiffs Released Claims; or (b) is intended
to be offered or received as evidence or used by any other Person in any other Action or
proceedings, whether civil, criminal, or administrative agency, or other tribunal. The Parties,
Plaintiffs Counsel, Defendants Counsel, Defendants Released Persons and Plaintiffs Released
Persons may file the
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Stipulation and/or the Judgment in any action that may be brought against them in order to
support a defense or counterclaim based on principles of res judicata, collateral estoppel,
release, good-faith settlement, judgment bar or reduction, or any other theory of claim preclusion
or issue preclusion or similar defense or counterclaim.
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 KeyCorp Shareholders, 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 Parties, if appropriate, without further notice to Current KeyCorp Shareholders.
IT IS SO ORDERED.
DATED: |
||
HONORABLE DAN AARON POLSTER UNITED STATES DISTRICT JUDGE |
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Exhibit C
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE KEYCORP DERIVATIVE
|
) | Lead Case No. 1:10-cv-01786-DAP | ||||
LITIGATION
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) | |||||
) | ||||||
This Document Relates to:
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) | |||||
) | ||||||
ALL ACTIONS
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) | |||||
) |
[PROPOSED] JUDGMENT
This matter came before the Court for hearing pursuant to the Courts Order Preliminarily
Approving Derivative Settlement and Providing for Notice, dated _________________, 2011 (the
Preliminary Approval Order), on the application of the Parties for final approval of the proposed
settlement agreement (the Settlement) set forth in the Stipulation and Agreement of Settlement
dated March 25, 2011 (the Stipulation). Due and adequate notice having been given to Current
KeyCorp Shareholders as required in said Preliminary Approval Order, and the Court having
considered all papers filed and proceedings had herein and otherwise being fully informed in the
premises and good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:
1. This Judgment incorporates by reference the definitions in the Stipulation, and all
capitalized terms used herein shall have the same meanings as set forth in the Stipulation.
2. This Court has jurisdiction over the subject matter of the Action, including all matters
necessary to effectuate the Settlement, and over all Parties.
3. The Court finds that the Settlement set forth in the Stipulation is fair, reasonable, and
adequate as to each of the Parties, and hereby finally approves the Settlement in all respects,
finds that the Settlement set forth in the Stipulation provides substantial benefits to KeyCorp and
Current
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KeyCorp Shareholders, and orders the Parties to perform its terms to the extent the Parties
have not already done so.
4. The Action, all claims contained therein, and the Released Claims are hereby ordered as
compromised, settled, released, discharged and dismissed on the merits and with prejudice by virtue
of the proceedings herein and this Judgment. As among Plaintiffs, KeyCorp, the Individual
Defendants, and Mercer, the Parties are to bear their own costs, except as otherwise provided in
the Stipulation.
5. Plaintiffs, KeyCorp, and Current KeyCorp Shareholders are forever enjoined and permanently
barred from instituting, commencing or prosecuting any of Plaintiffs Released Claims as well as
any claims arising out of, relating to or in connection with the institution, prosecution,
assertion, defense, settlement, or resolution of the Action, against any Released Parties.
6. The Individual Defendants, Mercer, and each of the other Released Parties are forever
enjoined and permanently barred from instituting, commencing or prosecuting any of Defendants
Released Claims as well as any claims arising out of, relating to, or in connection with the
institution, prosecution, assertion, defense, settlement, or resolution of the Action, against any
Released Parties.
7. Upon the Effective Date, KeyCorp, Plaintiffs (individually and derivatively on behalf of
KeyCorp), and Current KeyCorp Shareholders (solely in their capacity as KeyCorp shareholders) shall
be deemed to have, and by operation of this Judgment shall have, fully, finally, and forever
released, relinquished, and discharged all Released Claims (including Unknown Claims) and any and
all claims arising out of, relating to, or in connection with the Settlement or resolution of the
Action against the Released Parties. Nothing herein shall in any way impair or restrict the rights
of any Party to enforce the terms of the Stipulation.
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8. Upon the Effective Date, the Individual Defendants, Mercer, and each of the other Released
Parties shall be deemed to have, and by operation of this Judgment shall have, fully, finally, and
forever released, relinquished, and discharged Plaintiffs and any other Released Parties from all
claims arising out of, relating to, or in connection with their institution, prosecution,
assertion, settlement, or resolution of the Action or the Released Claims. Nothing herein shall in
any way impair or restrict the rights of any Party to enforce the terms of the Stipulation.
9. The Court finds that the Notice of Pendency and Proposed Settlement of Shareholder
Derivative Action posted on the website of KeyCorp and filed by KeyCorp with the U.S. Securities
and Exchange Commission via a Current Report on Form 8-K, provided the best notice practicable
under the circumstances of these proceedings and of the matters set forth therein, including the
Settlement set forth in the Stipulation, to all Persons entitled to such notice, and said Notice
fully satisfied the requirements of Federal Rule of Civil Procedure 23.1 and the requirements of
due process.
10. The Court finds that during the course of the Action, the Parties and their counsel at all
times complied with Federal Rule of Civil Procedure 11.
11. The Court finds that the Fee Award in the amount of $1.75 million is fair and reasonable,
in accordance with the Stipulation, and finally approves the Fee Award.
12. The Court approves of the Special Awards in the amount of $2,500 for each named Plaintiff
based on the material benefits created through Plaintiffs participation in the Action. The
Special Awards shall be paid out of the Fee Award and allocated to Plaintiffs by Plaintiffs
Counsel in accordance with the terms of the Stipulation.
13. Neither the Stipulation (including any exhibit attached thereto) nor the Settlement, nor
any act performed or document executed pursuant to or in furtherance of the Stipulation or the
Settlement: (a) is or may be deemed to be or may be offered, attempted to be offered or used in any
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way by the Parties as a presumption, a concession or an admission of, or evidence of, the
validity of any of the Released Claims, or of any fault, wrongdoing or liability of Defendants, or
the validity of the Released Claims; or (b) is intended to be offered or received as evidence or
used by any other Person in any other Action or proceedings, whether civil, criminal, or
administrative agency, or other tribunal. The Parties, Plaintiffs Counsel, Defendants Counsel,
and the Released Persons may file the Stipulation and/or the Judgment in any action that may be
brought against them in order to support a defense or counterclaim based on principles of res
judicata, collateral estoppel, release, good-faith settlement, judgment bar or reduction, or any
other theory of claim preclusion or issue preclusion or similar defense or counterclaim.
14. Without affecting the finality of this Judgment in any way, this Court hereby retains
continuing jurisdiction over: (a) implementation of the Settlement; and (b) the Parties for the
purpose of construing, enforcing, and administering the Stipulation, including, if necessary,
setting aside and vacating this Judgment, on motion of a Party, to the extent consistent with and
in accordance with the Stipulation if the Effective Date fails to occur in accordance with the
Stipulation.
15. This Judgment is a final, appealable judgment and should be entered forthwith by the Clerk
in accordance with Federal Rule of Civil Procedure 58.
IT IS SO ORDERED.
DATED: |
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HONORABLE DAN AARON POLSTER UNITED STATES DISTRICT JUDGE |
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