Attached files
file | filename |
---|---|
10-Q - 10-Q - PEABODY ENERGY CORP | btu_2015063010q.htm |
EX-32.1 - EXHIBIT 32.1 - PEABODY ENERGY CORP | btu_20150630xex321.htm |
EX-31.1 - EXHIBIT 31.1 - PEABODY ENERGY CORP | btu_20150630xex311.htm |
EX-95 - EXHIBIT 95 - PEABODY ENERGY CORP | btu_20150630xex95.htm |
EX-32.2 - EXHIBIT 32.2 - PEABODY ENERGY CORP | btu_20150630xex322.htm |
EX-31.2 - EXHIBIT 31.2 - PEABODY ENERGY CORP | btu_20150630xex312.htm |
Exhibit 99.1
Court's Order of Dismissal
GRANTED | ||||
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE |
JEFFREY L. DOPPELT, | ) | |
) | ||
Plaintiff, | ) | |
) | ||
v. | ) | C.A. No. 10597-CB |
) | ||
PEABODY ENERGY CORPORATION, | ) | |
GREGORY H. BOYCE, WILLIAM A. | ) | |
COLEY, WILLIAM E. JAMES, | ) | |
ROBERT B. KARN III, HENRY E. | ) | |
LENTZ, ROBERT A. MALONE, | ) | |
WILLIAM C. RUSNACK, JOHN F. | ) | |
TURNER, SANDRA A. VAN TREASE, | ) | |
ALAN H. WASHKOWITZ, HEATHER | ) | |
A. WILSON, and CITIGROUP, INC., | ) | |
) | ||
Defendants. | ) |
STIPULATION AND [PROPOSED] ORDER
WHEREAS, on January 29, 2015, Jeffrey Doppelt ("Plaintiff") filed a verified class action complaint (the "Complaint") against defendants George H. Boyce, William A. Coley, William E. James, Robert B. Karn III, Henry E. Lentz, Robert A. Malone, William C. Rusnack, John F. Turner, Sandra A. Van Trease, Alan H. Washkowitz and Heather A. Wilson, all members of the Board of Directors ("Board") of Peabody Energy Corporation ("Peabody" or the "Company"), the Company, and Citigroup, Inc. ("Citi", and together with Peabody and the Board, "Defendants"), the administrative agent under a credit agreement, dated as of September 24, 2013 ("Credit Agreement");
WHEREAS, the Complaint alleged that, in connection with the adoption of what the Complaint referred to as a "Dead Hand Proxy Put" in the Credit Agreement, (i) the members of the Company’s Board breached their fiduciary duties, and (ii) Citi aided and abetted the Board;
WHEREAS, the Complaint sought, among other things, a declaration from the Court that the Dead Hand Proxy Put was invalid, unenforceable, and severable from the Credit Agreement;
WHEREAS, on March 26, 2014, Peabody received a letter from Bernstein Litowitz Berger & Grossmann LLP ("BLBG"), on behalf of Louisiana Municipal Police and Fire System, dated March 25, 2014, which requested documents concerning the Company’s entry into the Credit Agreement;
WHEREAS, on February 5, 2015, Peabody and Citi amended the Credit Agreement, which eliminated the Dead Hand Proxy Put provision;
WHEREAS, after February 5, 2015, the Company agreed, in the exercise of business judgment, to pay $300,000 in total for attorneys’ fees and expenses ("Attorneys’ Fee") to Plaintiff’s counsel, Wolf Popper LLP ("Wolf Popper") and Rosenthal, Monhait & Goddess, P.A. ("RMG"), and BLBG and Friedlander & Gorris, P.A. ("F&G");
WHEREAS, as a result of the amendment to the Credit Agreement, Plaintiff and Defendants agree that the claims in the Complaint are moot;
WHEREAS, Defendants deny any and all allegations of Plaintiff that Defendants engaged in wrongdoing in any way, and the Company states that the Company has agreed to settle Plaintiff’s application for an award of attorneys’ fees and expenses because of the costs of defense of that application;
WHEREAS, Wolf Popper, RMG, BLBG and F&G, subject to the entry of this Stipulation and Order of Dismissal ("Order") and payment of the Attorneys’ Fee, agree not to seek any fees or expenses in addition to the Attorneys’ Fee on behalf of any person;
WHEREAS, the Court has not passed on the amount of the fee.
IT IS HEREBY STIPULATED AND AGREED, pursuant to Rules 23(e) and 41(a) of the Rules of the Court of Chancery, subject to the approval of the Court, that:
1. The Company shall file this Order as an attachment to the Company’s next Form 10-Q following the entry of this Order. The filing by Peabody of this Order as an attachment to a Form 10-Q constitutes adequate notice for purposes of Rule 23(e) (the "Notice");
2. The Company shall file with the Court an affidavit that the Notice has been made (the "Affidavit") in accordance with paragraph 1 above no later than three (3) calendar days after the Notice is publicly filed;
3. Upon the filing of the Affidavit:
A. The action will be dismissed with prejudice as to Plaintiff and without prejudice to all other Peabody stockholders;
B. The Register in Chancery is directed to close this case on the docket;
C. The Court will no longer retain any jurisdiction over this action.
4. The Company shall pay the Attorneys’ Fee within ten (10) calendar days of the date of the entry of the Order to an account designated by Plaintiff’s counsel.
ROSENTHAL, MONHAIT & | ||
GODDESS, P.A. | ||
/s/ JESSICA ZELDIN | ||
OF COUNSEL: | Jessica Zeldin (Bar No. 3558) | |
919 Market Street, Suite 1401 | ||
WOLF POPPER LLP | P.O. Box 1070 | |
Carl L. Stine | Wilmington, DE 19899-1070 | |
845 Third Avenue | (302) 656-4433 | |
New York, NY 10022 | ||
(212) 759-4600 | Attorneys for Plaintiff |
FRIEDLANDER & GORRIS, P.A. | ||
/s/ CHRISTOPHER M. FOULDS | ||
OF COUNSEL: | Joel Friedlander (Bar No. 3163) | |
Christopher M. Foulds (Bar No. 5169) | ||
Mark Lebovitch | Benjamin P. Chapple (Bar No. 5871) | |
David Wales | 222 Delaware Avenue, Suite 1400 | |
John Vielendi | Wilmington, Delaware 19801 | |
BERNSTEIN LITOWITZ BERGER | (302) 573-3500 | |
& GROSSMANN LLP | ||
1285 Avenue of the Americas | ||
New York, New York 10019 | ||
(212) 554-1400 |
ROSS ARONSTAM & MORITZ LLP | ||
/s/ GARRETT B. MORITZ | ||
OF COUNSEL: | Garrett B. Moritz (Bar No. 5646) | |
100 S. West Street, Suite 400 | ||
WACHTELL, LIPTON, ROSEN | Wilmington, Delaware 19801 | |
& KATZ | (302) 576-1600 | |
William Savitt | ||
Nicholas Walter | Attorneys for Defendants Gregory H. | |
51 West 52nd Street | Boyce, William A. Coley, William E. | |
New York, New York 10019 | James, Robert B. Karn III, Henry E. | |
(212) 403-1000 | Lentz, Robert A. Malone, William C. | |
Rusnack, John F. Turner, Sandra A. | ||
Van Trease, Alan H. Washkowitz, | ||
Heather A. Wilson and Peabody | ||
Energy Corporation | ||
SO ORDERED this _________ day of _____________________, 2015. | ||
___________________________________ | ||
Chancellor | ||