Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report 5 16K
5: EX-99..4 Notice of Pendency of Class and Deriv. Action 26 79K
2: EX-99.1 Order and Final Judgment 8 23K
3: EX-99.2 Stipulation of Settlement 34 85K
4: EX-99.3 Scheduling Order 6 19K
6: EX-99.5 Master Channel Agreement 23 76K
7: EX-99.6 Master Facilities Agreement 20 67K
EX-99.3 — Scheduling Order
| EX-99.3 | 1st Page of 6 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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Exhibit 99.3
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
---------------------------------------x
:
IN RE: DIGEX, INC. : CONSOLIDATED
SHAREHOLDERS LITIGATION : CIVIL ACTION NO. 18336 NC
:
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SCHEDULING ORDER
The parties to the actions consolidated under the above caption (the
"Action") having applied pursuant to Chancery Court Rules 23(e) and 23.1 for an
Order to approve the proposed settlement of the Action in accordance with the
Stipulation of Settlement entered into by the parties, dated as of March 2, 2001
(the "Stipulation"), and for the dismissal of the Action and all actions
consolidated thereunder with prejudice upon the terms and conditions set forth
in the Stipulation (the "Settlement"), and the Stipulation contemplating
certification by this Court (the "Court") of a class in the Action, solely for
purposes of settlement, and the Court having read and considered the Stipulation
and accompanying documents, and all parties having consented to the entry of
this Order,
NOW, this 5th day of March, 2001, upon application of plaintiffs and
defendants, IT IS HEREBY ORDERED as follows:
1. The Court adopts and incorporates the definitions in the Stipulation for
purposes of this Order.
2. Solely for purposes of the Settlement, (a) the Action preliminarily
shall be maintained as a class action pursuant to Chancery Court Rules 23(a),
(b)(1) and (b)(2) (with no opt-out rights) on behalf of a class consisting of
all record and beneficial owners of Digex Class A common stock (other than the
defendants in the Action and their affiliates) at any time during the period
from and including
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August 31, 2000 through and including the Effective Date of the Merger pursuant
to the Merger Agreement, including their respective successors in interest,
assignees or transferees, immediate and remote (the "Class"), (b) TCW Technology
Limited Partnership, TCW Small Capitalization Growth Stocks Limited Partnership,
TCW Asset Management Company, and Kansas Public Employees Retirement System are
preliminarily certified as representatives of the Class (the "Lead Plaintiffs"),
(c) it is preliminarily found that the Lead Plaintiffs are adequately
represented by counsel and that the Lead Plaintiffs will fairly and adequately
protect the interests of the Class, and (d) the Lead Plaintiffs' counsel, the
law firm of Grant & Eisenhofer, P.A., is preliminarily certified as lead counsel
for the Class ("Lead Counsel").
3. The Court has found temporarily that (a) the Class is so numerous that
joinder of all members is impracticable, (b) there are questions of law or fact
common to the Class, (c) the claims of the Lead Plaintiffs are typical of the
claims or defenses of the Class, (d) the Lead Plaintiffs and Lead Counsel will
fairly and adequately protect the interests of the Class, and (e) the Class
meets the further requirements of Chancery Court Rules 23(b)(1) and (b)(2).
4. A hearing shall be held on April 6, 2001, at 2:00 p.m. in the Court of
Chancery, 1020 North King Street, Wilmington, Delaware (the "Settlement
Hearing") to determine the substantive and procedural fairness, reasonableness
and adequacy of the Stipulation and the Settlement to Digex and the Class,
whether the Stipulation and the Settlement should be finally approved by the
Court and judgment entered thereon, and to hear and determine any objections to
the Settlement. At or before the Settlement Hearing, Plaintiffs' counsel may
file an application for an award of attorneys' fees and expenses as set forth in
Paragraph 14 of the Stipulation, which application shall be heard by the Court
at the Settlement Hearing or at such time thereafter as the Court in its
discretion deems appropriate.
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5. The Court reserves the right to adjourn the Settlement Hearing,
including consideration of the application for attorneys' fees and costs,
without further notice other than by announcement at the Settlement Hearing or
any adjournment thereof.
6. The Court reserves the right to approve the Settlement at or after the
Settlement Hearing with such modifications as may be consented to by all the
parties to the Stipulation and without further notice to the Class.
7. The Court approves, in form and content, the Notice of Pendency of Class
and Derivative Action, Proposed Settlement, and Settlement Hearing (the
"Notice") filed by the parties with the Stipulation, and finds that the giving
of notice substantially in the manner set forth herein meets the requirements of
Chancery Court Rules 23 and 23.1 and due process, is the best notice practicable
under the circumstances, and shall constitute due and sufficient notice to all
persons entitled thereto.
8. Within two (2) business days of the date of this Order, Digex shall
cause copies of the Notice to be mailed in the name of the Register in Chancery
by first class mail, postage prepaid, to all persons and entities appearing on
its stock transfer records as record holders of shares of Digex Class A common
stock (other than the defendants in the Action and their affiliates) at any time
during the period from and including August 31, 2000 through and including the
last business day before the date of this Order. Digex shall make reasonable
efforts to provide the Notice to beneficial owners by making additional copies
of the Notice available to any present or former record holder who, prior to the
Settlement Hearing, requests them for distribution to beneficial owners. In
addition, within five (5) days of the date of this Order, Digex shall cause to
be posted and published a Summary Notice, in the form attached to the
Stipulation as Exhibit G, as follows: (i) posted until April 6, 2001 on the
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Digex corporate web site; (ii) posted once on the internet, via PR Newswire or a
comparable service; and (iii) published once in a nationally recognized business
publication. The costs of providing such Notice and Summary Notice shall be
borne by Digex, subject to the provision for reimbursement of such costs as set
forth in the Stipulation.
9. Digex shall, prior to the Settlement Hearing directed herein, file with
the Court proof of mailing of the Notice and proof of posting and publication of
the Summary Notice in accordance with the terms of this Order.
10. Any member of the Class who objects to the Stipulation, the Settlement,
the class action determination, the Order and Final Judgment to be entered
herein, and/or the application for attorneys' fees and expenses, or who
otherwise wishes to be heard, may appear in person or by his attorney at the
Settlement Hearing and present any evidence or argument that may be proper and
relevant; provided, however, that no person other than plaintiffs, Lead Counsel,
defendants and counsel for defendants in the Action shall be heard, and no
papers, briefs, pleadings or other documents submitted by any such person shall
be received and considered by the Court (unless the Court in its discretion
shall thereafter otherwise direct, upon application of such person and for good
cause shown), unless no later than March 27, 2001, a date ten (10) days prior to
the Settlement Hearing directed herein, (a) written notice of the intention to
appear, (b) a detailed statement of such person's objections to any matter
before the Court; and (c) the grounds therefor or the reasons why such person
desires to appear and to be heard, as well as all documents and writings which
such person desires the Court to consider, shall be filed by such person with
the Register in Chancery and, on or before such filing, shall be served by hand
or overnight mail on the following counsel of record:
Counsel for Plaintiffs: Stuart M. Grant, Esq.
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Grant & Eisenhofer, P.A.
1220 North Market Street
Suite 500
Wilmington, Delaware 19801
Delaware Counsel William O. LaMotte, III, Esq.
for Digex: Morris Nichols Arsht & Tunnell
1201 N. Market Street
Wilmington, Delaware 19801
Counsel for Intermedia Steven J. Rothschild, Esq.
and the Individual Skadden, Arps, Slate, Meagher
Defendants: & Flom LLP
One Rodney Square
Wilmington, Delaware 19899
Delaware Counsel Henry E. Gallagher, Jr., Esq.
for WorldCom: Connolly Bove Lodge & Hutz LLP
1220 North Market Street
Wilmington, Delaware 19801
Delaware Counsel Kevin G. Abrams, Esq.
for the Special Committee: Richards, Layton & Finger
One Rodney Square
10th & King Streets
Wilmington, Delaware 19899
11. Any person who fails to object in the manner prescribed above shall be
deemed to have waived such objection and shall be forever barred from raising
such objection in the Action or any other action or proceeding.
12. All discovery and all other pretrial proceedings in the Action, other
than those incident to the Settlement itself, are stayed and suspended until
further order of this Court.
13. Pending final determination of whether the Settlement provided for in
the Stipulation should be approved, Plaintiffs, Digex, and all members of the
Class, or any of them, are barred and enjoined from commencing, prosecuting,
instigating, continuing, or in any way participating in the commencement or
prosecution of, any action asserting any Settled Claims, either directly,
representa-
52
tively, derivatively or in any other capacity against any Released Persons or
challenging the Settlement (other than in this Action in accordance with the
procedures established by the Court).
14. If the Settlement provided for in the Stipulation is approved by the
Court following the Settlement Hearing, an Order and Final Judgment shall be
entered as described in the Stipulation.
15. If the Stipulation is not approved by the Court or is terminated or
shall not become effective for any reason whatever, the Action shall proceed,
completely without prejudice to any party as to any matter of law or fact, as if
the Stipulation had not been made and had not been submitted to the Court, and
neither the Stipulation nor any provision contained in the Stipulation nor any
action undertaken pursuant thereto nor the negotiation thereof by any party
shall be deemed an admission or offered or received in evidence at any
proceeding in the Action or any other action or proceeding.
/s/ William B. Chandler
----------------------------------------
Chancellor
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 4/6/01 | | 2 | | 3 | | | None on these Dates |
| | 3/27/01 | | 4 |
| Filed on / For Period End: | | 3/5/01 |
| | 3/2/01 | | 1 |
| | 8/31/00 | | 2 | | 3 |
| List all Filings |
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