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
Exhibit 99.2
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
-----------------------------------------x
: CONSOLIDATED
IN RE: DIGEX, INC. : CIVIL ACTION NO. 18336 NC
SHAREHOLDERS LITIGATION :
: This document relates to:
: All Actions
-----------------------------------------x
STIPULATION OF SETTLEMENT
All parties to the consolidated action entitled In Re: Digex, Inc.
Shareholders Litigation, Consolidated Civil Action No. 18336 NC (the
"Action"),(2) pending in the Court of Chancery of the State of Delaware (the
"Court"), the Special Committee of the Board of Directors of Digex, Incorporated
(consisting of Richard A. Jalkut and Jack E. Reich) and Mark K. Shull
(collectively, the "Parties"), by their respective counsel, have entered into
the following Stipulation of Settlement (the "Stipulation"), subject to the
approval of the Court:
WHEREAS,
A. Defendant Digex, Incorporated ("Digex") is a Delaware corporation with
its principal executive offices located at One Digex Plaza, Beltsville, Maryland
20705. Digex provides
----------
2 The parties to the Action are as follows: TCW Technology Limited
Partnership, TCW Small Capitalization Growth Stocks Limited Partnership,
TCW Asset Management Company, Kansas Public Employees Retirement System,
Gerard F. Hug, Mohamed Yassin, Taam Associates, John F. Prince, David
Reynoldson, Marilyn Kalabsa, Thomas Turberg, David J. Steinberg, Crandon
Capital Partners, and Amrita Sinha (collectively, the "Plaintiffs"); and
Intermedia Communications, Inc., David C. Ruberg, Phillip A. Campbell, John
C. Baker, Robert M. Manning, WorldCom, Inc., and Digex, Incorporated
(collectively, the "Defendants").
14
Web and application hosting solutions designed exclusively for businesses that
have Internet requirements tied to critical business objectives. Digex provides
Web and application hosting solutions for hundreds of e-businesses.
A. Defendant Intermedia Communications, Inc. ("Intermedia") is a Delaware
corporation with its principal executive offices located at One Intermedia Way,
Tampa, Florida 33647. Intermedia provides an array of integrated communications
services, including voice and data services such as local and long distance,
Internet connectivity, and advanced network access services.
B. Defendant WorldCom, Inc. ("WorldCom") is a Georgia corporation with its
principal executive offices located at 500 Clinton Center Drive, Clinton,
Mississippi 39056. WorldCom provides a broad range of communications,
outsourcing, and managed network services worldwide.
C. Defendants David C. Ruberg ("Ruberg"), Robert M. Manning ("Manning"),
John C. Baker ("Baker") and Phillip A. Campbell ("Campbell") (collectively, the
"Individual Defendants") were members of Digex's board of directors (the "Digex
Board") at all times relevant to the Action, and remain members of the Digex
Board as of the date of this Stipulation. Ruberg, Baker and Campbell were also
members of the Intermedia board of directors (the "Intermedia Board"), and
Manning was the Chief Financial Officer of Intermedia, at all times relevant to
the Action, and each remains in those positions as of the date of this
Stipulation.
D. There are two classes of Digex common stock outstanding: Class A common
stock and Class B common stock. The Class B stock is similar to the Class A
stock in all respects except that the Class B stock is entitled to ten votes per
share, whereas the Class A stock is entitled to one vote per share. The Class A
stock is publicly traded on the Nasdaq National Market. All of the Class B stock
is held by Intermedia. Together, the Class A and Class B stock owned by
Intermedia give it
15
approximately 62 percent of the equity of Digex, and approximately 94 percent of
the total voting power of Digex stock.
E. In July 2000, Intermedia announced to the public that it had retained
Bear, Stearns & Co. ("Bear Stearns") to explore strategic options, including a
sale of its interest in Digex.
F. On July 26, 2000, the Digex Board appointed a special committee (the
"Special Committee") of two Digex directors, Richard A. Jalkut ("Jalkut") and
Jack E. Reich ("Reich"), who were not affiliated with Intermedia. As reflected
in the minutes from the Digex Board meeting on that date, the purpose of the
Special Committee was "to participate in the transaction process and make
recommendations to the full Board of Directors on all matters where there could
be a perceived conflict of interest between Intermedia and [Digex]."
G. During July and August 2000, Intermedia and Bear Stearns solicited bids
for Intermedia and Digex, and negotiated with certain potential acquirors for a
sale or exchange of all of the outstanding shares of Digex stock. Digex
employees assisted Intermedia and Bear Stearns with these efforts, including
participating in due diligence. Digex also incurred more than $2.7 million in
expenses in connection with such efforts.
H. On August 30, 2000, an agent of WorldCom contacted Bear Stearns and
indicated that WorldCom was interested in making an offer for Digex.
I. On August 31, 2000, an agent of WorldCom informed Bear Stearns and
Intermedia that WorldCom had decided to acquire Intermedia, thereby gaining
voting control over Digex, instead of acquiring all of the outstanding equity of
Digex.
J. As a condition precedent to its acquisition of Intermedia, WorldCom
required that the Digex Board approve the proposed WorldCom merger in such a way
as to ensure that the
16
restrictions of 8 Del. C. ss. 203 ("Section 203") would not apply to any future
"business combinations" (as defined by Section 203) between WorldCom (or its
subsidiaries) and Digex (or its subsidiaries). (Such approval is sometimes
referred to herein as a "waiver" of Section 203.) In the absence of such
approval, and if none of the other exemptions under Section 203 were applicable,
WorldCom and its subsidiaries would have been prohibited from engaging in
certain types of transactions with Digex or its subsidiaries for a period of
three (3) years following WorldCom's becoming an interested stockholder of
Digex.
K. The Digex Board did not request the Special Committee to make any
recommendations regarding WorldCom's request that the Digex Board approve the
proposed WorldCom-Intermedia merger in such a way as to ensure the
inapplicability of Section 203. Instead, the full Digex Board voted on the
waiver during a meeting held on September 1, 2000. The two Special Committee
members and Mark Shull (chief executive officer of Digex and the only other
director of Digex who was not affiliated with Intermedia), voted against the
waiver of Section 203 and proposed that the Special Committee's financial
advisor conduct an auction to attempt to solicit proposals or bids that were
more favorable to Digex. Those three directors were outvoted by the four
Individual Defendants, each of whom was also a director and/or senior executive
officer of Intermedia. Thus, the Digex Board approved the waiver by a vote of
four to three, and defeated the proposal to conduct an auction by the same
margin.
L. On September 1, 2000, following the Digex Board's vote to approve the
proposed WorldCom-Intermedia merger (the "Merger") so as to ensure the
inapplicability of Section 203, the Intermedia Board voted to approve the Merger
on the terms set forth in the Agreement and Plan of Merger Among WorldCom,
Wildcat Acquisition Corp. and Intermedia Communications, Inc., which
17
was executed by WorldCom and Intermedia following the Intermedia Board meeting
on September 1, 2000. The Merger was announced to the public on September 5,
2000.
M. Pursuant to the terms of the Merger as approved by the Intermedia Board
on September 1, 2000, each share of Intermedia stock was to be exchanged for $39
of WorldCom common stock, subject to a price collar which provided that the
actual number of WorldCom shares exchanged for each Intermedia share would be
not less than .8904 shares or more than 1.1872 shares. In addition, each share
of Intermedia preferred stock was to be exchanged for shares of WorldCom
preferred stock that would have terms essentially identical to the Intermedia
preferred shares, except that the issuer would be WorldCom. WorldCom also agreed
to assume Intermedia's debt.
N. A principal reason for WorldCom's decision to enter into the Merger with
Intermedia was to acquire control of Digex. The United States Department of
Justice has conditioned its approval of the Merger upon WorldCom's agreement to
sell all of Intermedia's non-Digex assets within six months after the close of
the Merger (unless extended by the United States Department of Justice). Under
the terms of a consent decree filed with the federal district court in
Washington, D.C., WorldCom has agreed to that condition.
O. Subsequent to the public announcement of the Merger, twelve putative
class actions and/or derivative actions (the "Consolidated Actions"), were filed
in the Court on behalf of Digex and/or its Class A shareholders, styled as Hug
v. Intermedia Communications, Inc., et al., C.A. No. 18289-NC; Yassin v.
Intermedia Communications, Inc., et al., C.A. No. 18290-NC; Taam Associates v.
Intermedia Communications, Inc., et al., C.A. No. 18291-NC; Prince v. Intermedia
Communications, Inc., et al., C.A. No. 18304-NC; Reynoldson v. Intermedia
Communications, Inc., et al., C.A. No. 18311-NC; Kalabsa v. Digex, Inc., et al.,
C.A. No. 18317-NC; Turberg v. Intermedia Communi-
18
cations, Inc., et al., C.A. No. 18322-NC; Steinberg, et al. v. Ruberg, et al.,
C.A. No. 18293-NC; Crandon Capital Partners v. Ruberg, et al., C.A. No. 18310;
Sinha v. Ruberg et al., C.A. No. 18391-NC; TCW Technology Limited Partnership,
et al. v. Intermedia Communications, Inc., et al., C.A. No. 18336-NC (the "TCW
Action"); and Kansas Public Employees Retirement System v. Intermedia
Communications, Inc., et al., C.A. No. 18390-NC. The complaints in the
Consolidated Actions challenged the Merger and/or the waiver of Section 203, and
alleged, among other things, that the Individual Defendants and Intermedia had
breached fiduciary duties in connection therewith. Some of the complaints also
alleged that WorldCom had aided and abetted the alleged breaches of fiduciary
duty. The complaints sought, among other things, to enjoin the consummation of
the Merger and the waiver of Section 203 or, in the alternative, to rescind the
Merger and the Section 203 waiver if the Merger were to occur, as well as
unspecified money damages and attorneys' fees and expenses.
P. On September 21, 2000, the plaintiffs in the TCW Action filed a Motion
for Preliminary Injunction, seeking to enjoin preliminarily the consummation of
the Merger and the waiver of Section 203 pending a final determination of their
claims. Simultaneous with their Motion for Preliminary Injunction, the
plaintiffs in the TCW Action filed a Motion for Expedited Proceedings requesting
that the Court set an expedited briefing schedule and a hearing on their Motion
for Preliminary Injunction and an expedited discovery schedule. The Court
granted the Motion for Expedited Proceedings on October 2, 2000.
Q. On October 19, 2000, the Court entered an Order which, inter alia, (a)
consolidated the Consolidated Actions into the Action for purposes of the
preliminary injunction hearing and all matters relating thereto, (b) appointed
TCW Technology Limited Partnership, TCW Small Capitalization Growth Stocks
Limited Partnership, TCW Asset Management Company, and Kansas Public
19
Employees Retirement System (collectively, the "Lead Plaintiffs") as lead
plaintiffs in the Action, and (c) appointed the law firm of Grant & Eisenhofer,
P.A. (counsel for the Lead Plaintiffs) as lead counsel ("Lead Counsel") for all
Plaintiffs in the Action.
R. On October 19, 2000, Lead Counsel filed a Consolidated Class Action and
Derivative Complaint on behalf of Plaintiffs and a putative class comprised of
the Class A shareholders of Digex, and derivatively on behalf of Digex. The
Consolidated Class Action and Derivative Complaint alleged, inter alia, that (i)
Intermedia and the Individual Defendants breached fiduciary duties owed to Digex
and its Class A shareholders, and that Intermedia, the Individual Defendants and
WorldCom aided and abetted or were otherwise legally responsible for their
co-defendants' alleged breaches of fiduciary duty, in connection with the Merger
and/or the Digex Board's waiver of Section 203, and (ii) Intermedia and the
Individual Defendants usurped a corporate opportunity belonging to Digex.
S. Between October 2, 2000 and November 7, 2000, the parties to the Action
engaged in expedited discovery, including written discovery and fourteen (14)
depositions.
T. On November 29, 2000, following the parties' submission of briefing on
an expedited schedule, the Court held a hearing on the Motion for Preliminary
Injunction.
U. On November 30, 2000, the Court requested additional submissions from
the parties to the Action regarding the applicability of Section 203 to
"business combinations" between WorldCom and Digex in the absence of a waiver.
Plaintiffs, WorldCom and Intermedia filed the requested submissions with the
Court on December 4, 2000. Both WorldCom and Intermedia argued that even in the
absence of the waiver, Section 203 would not apply by reason of an exemption
available to holders of 85% of the "voting stock" of Digex. Plaintiffs argued
that Section 203 would apply.
20
V. On December 13, 2000, the Court issued its decision on the Motion for
Preliminary Injunction (the "Opinion"). The Court denied the motion, but held
that the Plaintiffs had demonstrated a reasonable likelihood of success on their
claim that the waiver of Section 203 was the product of breaches of fiduciary
duty by the Individual Defendants, because it was not reasonably likely that the
Defendants would ultimately meet the burden of establishing that the waiver
granted on September 1, 2000 was entirely fair to Digex. (Opinion at 84)
However, the Court found that the Plaintiffs had not demonstrated a probability
of success with respect to any of their other claims. For example, the Court
stated that "the plaintiffs have not persuaded me that they have a likelihood of
success on the merits of their corporate opportunity claim." (Opinion at 2) In
addition, with respect to Plaintiffs' claims that Intermedia and the Individual
Defendants breached their fiduciary duties when they accepted WorldCom's offer
to acquire Intermedia, the Court concluded that "plaintiffs have not
demonstrated a reasonable likelihood of success on the merits of their breach of
the duty of loyalty claims." (Opinion at 36) As to Plaintiffs' estoppel claims,
the Court found that, "based on the limited available evidence at this juncture,
one could not reasonably conclude that Intermedia made a blanket promise that
any deal it considered would necessarily involve a deal for the Digex minority.
Given the state of the record, Plaintiffs' estoppel theory does not appear
reasonably likely to succeed on the merits." (Opinion at 38) (emphasis in
original) Further, as to the Plaintiffs' claims under Revlon, Inc. v. MacAndrews
& Forbes Holdings, Inc., Del. Supr., 506 A.2d 173 (1986), the Court stated that
"even if such a claim were properly alleged, it would have little likelihood of
success." (Opinion at 39)
W. On January 10, 2001, the Court set a trial date of May 14, 2001 for a
trial on the merits of the Plaintiffs' claims.
21
X. On January 22, 2001, Lead Counsel filed a Corrected Amended Consolidated
Class Action and Derivative Complaint on behalf of Plaintiffs and a class of
Digex Class A shareholders, and derivatively on behalf of Digex. The Corrected
Amended Consolidated Class Action and Derivative Complaint alleged, inter alia,
that (i) Intermedia and the Individual Defendants breached fiduciary duties owed
to Digex and its Class A shareholders, and that Intermedia, the Individual
Defendants and WorldCom aided and abetted or were otherwise legally responsible
for their co-defendants' alleged breaches of fiduciary duty, in connection with
the Merger and/or the waiver of Section 203, (ii) the Individual Defendants
usurped a corporate opportunity belonging to Digex, (iii) the Individual
Defendants breached fiduciary duties under Revlon and its progeny, including
McMullin v. Beran, Del. Supr., No. 611, 1999 (Nov. 20, 2000), in connection with
the Merger, and Intermedia and WorldCom aided and abetted or were otherwise
responsible for those alleged breaches of fiduciary duty, (iv) Intermedia was
estopped from consummating the Merger by the doctrine of promissory estoppel,
and (v) Intermedia and the Individual Defendants were estopped from consummating
the Merger by the doctrine of equitable estoppel.
Y. Between December 19, 2000 and February 14, 2001, the parties to the
Action engaged in expedited discovery in anticipation of a May 2001 trial.
During that same time period, the Parties and their counsel engaged in
discussions relating to a possible settlement of the Action.
Z. On February 15, 2001, the Parties, through their counsel, entered into a
Memorandum of Understanding ("MOU") setting forth the preliminary terms of a
settlement of the Action (the "Settlement"). The MOU provides, among other
things, that: (1) WorldCom will contribute $165 million in freely tradeable
WorldCom stock to a settlement fund; (2) the settlement fund, less any award of
fees and expenses to Plaintiffs' counsel, will be distributed to certain members
of the
22
plaintiff Class (as defined herein); (3) WorldCom will reimburse Digex for up to
$15 million in fees and expenses incurred by Digex in connection with the
Action, the evaluation of various potential transactions involving Digex, and
the costs of notice and administration in connection with the settlement; (4)
WorldCom will enter into certain commercial agreements with Digex; (5) the terms
of the Merger will be modified to decrease the consideration to be received by
Intermedia's stockholders; (6) the Certificate of Incorporation of Digex will be
amended (the "Charter Amendment") to prohibit Digex from entering into certain
Transactions (as defined in the Charter Amendment) without there being at least
two Independent Directors (as defined in the Charter Amendment) in office, and
without the transaction being approved by either a majority of the Independent
Directors or 66 2/3% of the entire Digex Board (other than the Independent
Directors); and (7) subject to a number of conditions, including Court approval,
the Action will be dismissed with prejudice. All of the terms and understandings
embodied in the MOU are set forth in this Stipulation.
AA. In light of the events, negotiations and agreements described above,
and analysis of applicable law, both Plaintiffs and their counsel and the
Special Committee (after consultation with its legal and financial advisors)
have concluded that the terms and conditions of the Settlement provided for in
this Stipulation are fair, reasonable, adequate, and in the best interests of
Plaintiffs, Digex, and the Digex Class A stockholders.
23
BB. Plaintiffs and the Special Committee enter into the Stipulation after
taking into account (i) the substantial benefits to Digex and the Digex Class A
stockholders from the consideration to be received in the Settlement, (ii) the
risks of continued litigation (including, inter alia, the risks that the Court
or an appellate court might conclude that Section 203 is inapplicable, that the
waiver approved by the Digex Board was fair to Digex and its Class A
stockholders, and/or that Digex and its stockholders were not damaged by said
waiver), (iii) the desirability of permitting the Settlement to be consummated
as provided by the terms of this Stipulation, and (iv) the conclusion of
Plaintiffs and the Special Committee that the terms and conditions of the
Settlement are fair, reasonable, adequate and in the best interests of Digex and
the Digex Class A stockholders. Plaintiffs and the Special Committee have agreed
to the terms of the Settlement because, in their view, the Settlement achieves
the principal objectives in the litigation of both the Plaintiffs and the
Special Committee: to maximize shareholder value for the Digex Class A
shareholders in connection with the Merger, and to obtain valuable consideration
for Digex and its Class A shareholders in exchange for the waiver of Section
203.
CC. Digex, Intermedia, WorldCom and the Individual Defendants have denied,
and continue to deny, that they have violated or have threatened to violate any
law, and are entering into this Stipulation because the Settlement would
eliminate the burden, risk and expense of further litigation.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, subject to the
approval of the Court pursuant to Court of Chancery Rules 23 and 23.1, that:
TERMS OF THE SETTLEMENT
I. WorldCom will make a payment (the "Settlement Payment") of freely
tradeable WorldCom common stock, which is either registered under the Securities
Act of 1933 (the "Securities
24
Act") or exempt from such registration pursuant to Section 3(a)(10) of the
Securities Act, having a total value of one hundred sixty-five million dollars
($165,000,000) into a settlement fund (the "Settlement Fund") administered by
the Bank of New York or some other financial institution jointly approved by
WorldCom and Digex (the "Depository"), for distribution to certain members of
the plaintiff Class as set forth in Paragraph 20 below. If WorldCom contributes
common stock to the Settlement Fund which is not registered under the Securities
Act, such stock shall not be legended, and WorldCom shall, simultaneous with the
contribution of such stock to the Settlement Fund, provide the Depository and
Lead Counsel with a written opinion from WorldCom's outside corporate counsel in
connection with the Merger, the law firm of Cravath Swaine & Moore, to the
effect that such stock is exempt from registration and is freely tradeable.
WorldCom will make the Settlement Payment into the Settlement Fund on the
Effective Date(3) of consummation of the Merger pursuant to the Agreement and
Plan of Merger Among WorldCom, Wildcat Acquisition Corp. and Intermedia
Communications, Inc. dated September 1, 2000 (as amended, the "Merger
Agreement"). For purposes of this Paragraph, the WorldCom common stock shall be
valued at a price per share equal to the Average Price. "Average Price" means
the average (rounded to the nearest 1/10,000) of the volume weighted averages
(rounded to the nearest 1/10,000) of the trading prices of WorldCom common stock
on the Nasdaq National Market, as reported by Bloomberg Financial Markets (or
such other source as the Parties shall agree in writing), for the ten (10)
trading days randomly selected by lot by WorldCom and a representative of the
Special Committee together from the twenty (20) consecutive
----------
3 Unless otherwise defined herein, all capitalized terms herein shall have
the same definition as used in the Agreement and Plan of Merger Among
WorldCom, Wildcat Acquisition Corp. and
Footnote continued on next page.
25
trading days ending on the third trading day immediately preceding the Effective
Time of consummation of the Merger pursuant to the Merger Agreement. All fees
and expenses of all Plaintiffs and all counsel representing all Plaintiffs in
the Action shall be paid out of the Settlement Fund provided for in this
Paragraph. The Parties agree to take all necessary steps and seek all necessary
approvals to fully effectuate the payment of WorldCom common stock contemplated
by this Paragraph.
II. WorldCom will reimburse Digex for all fees and expenses incurred by
Digex in connection with (a) the evaluation of various potential transactions
involving Digex; (b) the Action, including all legal fees and investment advisor
fees approved by the Special Committee; and (c) the reasonable costs and
expenses of providing notice to the members of the Class and of administering
the Settlement (collectively, the "Reimbursement"); provided, however, that the
Reimbursement shall not exceed fifteen million dollars ($15,000,000). The
Reimbursement will be paid in cash contemporaneously with the Settlement Payment
made pursuant to Paragraph 1 above.
III. The consideration payable by WorldCom to the shareholders of
Intermedia pursuant to the Merger Agreement will be reduced, in accordance with
the First Amendment to Agreement and Plan of Merger annexed hereto as Exhibit B
(the "First Amendment"), by reducing the exchange ratio to a fixed 1:1 exchange
ratio that is not subject to adjustment, such that each share of Intermedia
stock will be exchanged for one share of WorldCom stock. The Parties agree to
take all necessary steps and seek all necessary approvals to fully effectuate
the First Amendment to the Merger Agreement, provided, however, that the Merger
Agreement shall not be amended in any way that will adversely
----------
Footnote continued from previous page
Intermedia Communications, Inc. dated September 1, 2000, a copy of which
has been filed with the Securities and Exchange Commission and is annexed
hereto as Exhibit A.
26
affect the Parties' rights or obligations under this Stipulation, unless all
Parties hereto consent in writing.
IV. WorldCom and Digex agree to enter into certain sales channel, funding,
facilities, and network agreements (the "Commercial Agreements"), on the general
terms set forth in a confidential exhibit to the MOU, which terms have been
determined by the Special Committee to be fair and beneficial to Digex. The
Commercial Agreements will become effective at or before the Effective Time of
the consummation of the Merger pursuant to the Merger Agreement. The principal
terms of the Commercial Agreements are generally described as follows:
(a). Sales Channel Agreement. This agreement permits WorldCom to resell the
Digex portfolio of managed web hosting products. If Digex satisfies certain
service level commitments, WorldCom agrees to purchase a minimum of $50 million
of Digex's services during 2001, and up to a total of $500 million during the
period from 2001 through 2003. Digex and WorldCom will share costs and profits
generated from the WorldCom sales channel.
(b). Funding Agreement. After the Effective Time of the Merger, WorldCom's
Board of Directors will review the Digex business plans for 2001 and 2002
approved by the Digex Board of Directors. If these business plans are approved
by the WorldCom Board of Directors, WorldCom agrees to loan Digex funds for
these business plans; the loan rate will be LIBOR plus 300 basis points.
Repayment will be made over a four-year period commencing in 2003. However,
nothing in the funding agreement would prevent Digex from seeking funding from
other sources.
(c). Facilities Agreement. Managed web hosting facilities for Digex will be
built into existing WorldCom data centers in the United States and around the
globe. Digex will lease space from WorldCom at these data centers based on
customer demand.
27
(d). Network Agreement. This agreement permits Digex to purchase bandwidth
and connectivity from WorldCom in the United States and around the globe to
support its managed web hosing activities.
V. Intermedia and WorldCom agree to take all steps necessary to adopt (at
the first regularly scheduled Digex shareholders' meeting following the
Commercial Agreements becoming effective) the amendment to the Certificate of
Incorporation of Digex substantially in the form of Exhibit C (the "Charter
Amendment") annexed hereto. The Charter Amendment establishes a procedure for
the consideration by at least two Independent Directors (as defined in the
Charter Amendment) of Digex of certain types of proposed transactions between
Digex and WorldCom, including any transaction that would constitute a "business
combination" under Section 203(c)(3)(i)-(iv) of the Delaware General Corporation
Law. Intermedia and WorldCom will cause Digex to abide by the provisions of such
Charter Amendment prior to the formal adoption thereof.
Releases
VI. All claims, demands, rights, actions or causes of action, liabilities,
damages, losses, obligations, judgments, suits, matters and issues of any kind
or nature whatsoever, whether known or unknown, contingent or absolute,
suspected or unsuspected, disclosed or undisclosed, hidden or concealed, matured
or unmatured, that have been, could have been, or in the future can or might be
asserted in the Action or in any court, tribunal or proceeding (including, but
not limited to, any claims arising under federal or state law relating to
alleged fraud, breach of any duty, negligence, violations of the federal
securities laws or otherwise) by or on behalf of Digex or by or on behalf of any
member of the Class and all present, past and future shareholders of Digex,
whether individual, class, derivative, representative, legal, equitable or any
other type or in any other capacity against the
28
Parties, or any or all of their respective past, present or future officers,
directors, stockholders, representatives, families, parent entities, associates,
affiliates, subsidiaries, employees, financial or investment advisors,
consultants, accountants, attorneys, law firms, investment bankers, commercial
bankers, engineers, advisors or agents, heirs, executors, trustees, general or
limited partners or partnerships, personal representatives, estates,
administrators, predecessors, successors, and assigns (collectively, the
"Released Persons") which have arisen, could have arisen, or may arise out of,
or relate in any manner to, the allegations, facts, events, transactions, acts,
occurrences, statements, representations, misrepresentations, omissions or any
other matter, thing or cause whatsoever, or any series thereof, embraced or set
forth in any complaint filed in the Action or any of the Consolidated Actions,
or otherwise related, directly or indirectly, to the Merger between WorldCom and
Intermedia, to any provision of the Merger Agreement (including, but not limited
to, those relating to the approvals pursuant to Section 203 previously granted
to WorldCom by the Digex Board of Directors in connection with the Merger
Agreement and the Merger), or to any offering or proxy material, public filings
or statements (including, but not limited to, public statements) by any of the
defendants or their representatives in the Action or any of the Consolidated
Actions or any other Released Persons in connection with the Merger or Merger
Agreement (collectively, the "Settled Claims"), shall be fully and completely
discharged, dismissed with prejudice, settled, released and enjoined, pursuant
to the terms and conditions set forth herein; provided, however, that nothing
herein shall release the Parties from their obligations under this Stipulation,
or alter, amend, or in any way affect the obligations of Digex, Intermedia and
WorldCom described in paragraph 7 below following the words "provided, however,"
and that the Settled Claims shall not include an action or proceeding to enforce
compliance with the terms of the Settlement.
29
VII. Digex, Intermedia and WorldCom shall each release each other (as well
as each of their respective affiliates, parent entities, subsidiaries,
directors, officers, agents, attorneys, investment advisors, investment bankers
and consultants) from any claims of any nature relating to or arising out of the
matters alleged in any complaint filed in the Action or any of the Consolidated
Actions; provided, however, that nothing in the Settlement (or in this
Stipulation) shall alter, amend or in any way affect, the rights and obligations
of Digex, Intermedia and WorldCom in connection with ongoing contractual
arrangements between or among them, including by way of example but not limited
to the following: the Parties' obligations under this Stipulation; the Merger
Agreement (as amended by the First Amendment and by subsequent amendments
thereto); the Fourth Amendment to Credit Agreement entered into as of October
31, 2000 among WorldCom, Intermedia, Digex and others; the Guaranty entered into
as of October 31, 2000 among WorldCom, Intermedia, Digex and others; the Digex
Borrowing (or Side) Letter Agreement dated November 20, 2000 among WorldCom,
Intermedia, and Digex (and any and all other related agreements); the Commercial
Agreements described in Exhibit C to the MOU and in Paragraph 4 above (as well
as any other commercial agreements between WorldCom and Digex); the
Consent-to-Disclosure Letter Agreement dated October 13, 2000 between WorldCom
and Intermedia; the Note Purchase Agreement between Intermedia and WorldCom
dated October 31, 2000, as amended; and the related Registration Rights
Agreement of November 22, 2000.
VIII. All Defendants named in the Action or any of the Consolidated Actions
shall release each of the named Plaintiffs and their attorneys from any claims
of any nature relating to or arising out of the Action, any of the Consolidated
Actions, or any matters alleged in any complaint filed in the Action or in any
of the Consolidated Actions.
30
SUBMISSION AND APPLICATION TO THE COURT
IX. As soon as practicable after the execution of this Stipulation, the
Parties hereto shall jointly apply to the Court for an order substantially in
the form attached hereto as Exhibit D (the "Scheduling Order"), which shall
include provisions that:
a. Provide for the certification of the Action, for settlement purposes
only, as a class action pursuant to Court of Chancery 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 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. Preliminarily certify the Class pursuant to Court of Chancery Rules
23(a), (b)(1) and (b)(2) (with no opt-out rights), and preliminarily certify the
Lead Plaintiffs as representatives of the Class and Lead Counsel as lead counsel
for the Class;
c. Direct that a settlement hearing (the "Settlement Hearing") be held to
determine whether the Court should (i) certify the Class pursuant to Court of
Chancery Rules 23(a), (b)(1) and (b)(2) (with no opt-out rights), and certify
the Lead Plaintiffs as representatives of the Class; (ii) approve the Settlement
pursuant to Court of Chancery Rules 23 and 23.1 as substantively and
procedurally fair, reasonable, adequate and in the best interests of Digex and
the Class (with the Court being advised prior to the Settlement Hearing that if
the terms and conditions of the issuance of the Settlement Payment are approved,
the Parties may rely upon Section 3(a)(10) of the Securities Act of 1933 by
virtue of the Court's approval), (iii) enter an Order and Final Judgment
substantially in the
31
form attached hereto as Exhibit E, (iv) approve any application of counsel for
Plaintiffs for an allowance of fees and reimbursement of expenses, and (v) hear
such other matters as the Court may deem necessary and appropriate; and
d. Provide that the Notice of Pendency of Class Action, Proposed Settlement
of Class Action and Settlement Hearing (the "Notice") and the Summary Notice of
Pendency of Class Action, Proposed Settlement of Class Action and Settlement
Hearing (the "Summary Notice"), substantially in the form attached hereto as
Exhibits F and G, are approved and that the distribution and/or dissemination of
the Notice and the Summary Notice substantially in the manner set forth in the
Scheduling Order constitutes the best notice practicable under the
circumstances, meets the requirements of applicable law and due process, is due
and sufficient notice of all matters relating to the Settlement, and fully
satisfies the requirements of due process and of Rules 23 and 23.1 of the Court
of Chancery Rules.
NOTICE AND SUMMARY NOTICE
X. Digex shall assume the administrative responsibility of providing the
Notice and publishing a Summary Notice in accordance with the Scheduling Order.
Prior to the Settlement Hearing, Digex shall file with the Court an appropriate
affidavit evidencing its mailing of the Notice. Digex will pay all costs
incurred in identifying and notifying by mail the members of the Class of the
Settlement, including the printing and copying of the Notice.
FINAL ORDER AND JUDGMENT
XI. If the Settlement (including any modification thereto made with the
consent of the Parties as provided for herein) is approved by the Court, the
Parties shall promptly request the Court
32
to enter an Order and Final Judgment substantially in the form attached hereto
as Exhibit E, which, among other things:
a. Approves the Settlement, adjudges the terms thereof to be substantively
and procedurally fair, reasonable, adequate and in the best interests of Digex
and the Class, and directs consummation of the Settlement in accordance with the
terms and conditions of the Stipulation;
b. Determines that the requirements of Rules 23 and 23.1 of the Court of
Chancery Rules and due process have been satisfied in connection with Notice to
the Class, permanently certifies the Class pursuant to Court of Chancery Rules
23(a), (b)(1) and (b)(2) (with no opt-out rights), and permanently certifies
Grant & Eisenhofer, P.A. as lead counsel for the Class;
c. Dismisses the Action and all complaints filed in the Action and in the
Consolidated Actions in their entirety with prejudice and without costs (except,
with respect to costs, as otherwise provided in this Stipulation);
d. Permanently bars and enjoins Plaintiffs, all members of the Class,
Digex, and all present, past and future shareholders of Digex, or any of them,
from commencing, prosecuting, instigating, continuing, or in any way
participating in the commencement or prosecution of, any action asserting any
Settled Claims, either directly, representatively, derivatively or in any other
capacity against any Released Persons which have been or could have been
asserted, or which arise out of or relate in any way to any of the transactions
or events described in any complaint filed in the Action or any of the
Consolidated Actions, including, but not limited to, any and all claims which
seek to challenge, or otherwise call into question, the validity or
effectiveness of the Section 203 approvals previously granted to WorldCom in
connection with the Merger and Merger Agreement;
33
e. Declares that WorldCom and its subsidiaries shall not be subject to any
restrictions on "business combinations" (as defined in Section 203) with Digex,
or any of its subsidiaries, pursuant to Section 203 in connection with or by
virtue of its acquisition of Intermedia and indirect acquisition of Digex stock
as a result of the Merger Agreement or the transactions contemplated thereby;
f. Certifies the aforesaid judgment (embodied in subparagraphs (a) through
(e) above) as final pursuant to Court of Chancery Rule 54(b); and
g. Without affecting the finality of the Order and Final Judgment, reserves
the Court's jurisdiction over all of the Parties and the Class members for the
administration of the terms of the Settlement and Stipulation.
CONDITIONS PRECEDENT TO SETTLEMENT
XII. The Settlement set forth in this Stipulation is binding on all
Parties, but is subject to (a) preliminary judicial approval; (b) the
consummation of the Merger in accordance with the terms of the Merger Agreement,
as amended by the First Amendment (and any subsequent amendments, subject to the
provisions of Paragraph 3 above); and (c) final Court approval (substantially in
the form of the Order and Final Judgment attached as Exhibit E hereto) upon
notice to and final certification of the Class and hearing. This Stipulation and
the Settlement shall be avoidable by the Parties should any of these conditions
not be met and, in that event, this Stipulation shall be null and void and shall
not be admissible in any proceeding or deemed to prejudice any of the positions
of the Parties in or with respect to the Action or any other action. In order to
exercise the option to avoid this Stipulation and the Settlement, a party must
provide, within five (5) business days of the event giving rise to such option,
written notice of such avoidance and the grounds therefor to all Parties to this
Stipulation.
34
FINALITY OF SETTLEMENT
XIII. The approval of the Settlement shall be considered final for purposes
of this Stipulation, upon the later of: (i) entry of the Order and Final
Judgment approving the Settlement; (ii) the expiration of any applicable period
for the appeal of the Order and Final Judgment without an appeal having been
filed or, if an appeal is taken, entry of an order affirming the Order and Final
Judgment appealed from and the expiration of any applicable period for the
reconsideration, rehearing or appeal of such affirmance without any motion for
reconsideration or rehearing or further appeal having been filed; and (iii) the
Effective Time of the Merger.
35
ATTORNEYS' FEES
XIV. At or before the Settlement Hearing, Plaintiffs' counsel in the Action
will apply to the Court for an award of attorneys' fees and reasonable
out-of-pocket disbursements equal to fifteen percent (15%) of the Settlement
Fund, which shall be payable from the Settlement Fund pursuant to the terms of
the Stipulation (the "Fee Application"). The amount of the Fee Application has
been negotiated between Lead Counsel and the Lead Plaintiffs with no input from
the Defendants, and will be set forth in the Notice to the Class. Based on a
Settlement Fund value of $165,000,000, as set forth above, the amount of the Fee
Application is twenty-four million seven hundred fifty thousand dollars
($24,750,000). WorldCom, Intermedia and the Individual Defendants agree not to
oppose the application for attorneys' fees and expenses by Plaintiffs' counsel
in the Action, so long as any fee awarded by the Court to Plaintiffs' counsel
(the "Fee Award") is paid exclusively from the Settlement Fund. Digex and the
Special Committee reserve all rights regarding the application for fees by
Plaintiffs' counsel. The Parties agree that the Fee Application may be
considered and adjudicated separately and independently from the Settlement and
proposed entry of a final and appealable order (entered as final pursuant to
Court of Chancery Rule 54(b)) dismissing and releasing the Settled Claims.
XV. Subject to the terms and conditions of the Stipulation, shares of
WorldCom common stock comprising the Fee Award shall be transferred on the
Distribution Date (as defined in Paragraph 19 below) by the Depository from the
Settlement Fund into an escrow account (the "Escrow Account") with Grant &
Eisenhofer, P.A. serving as receiving agent and escrow agent for all Plaintiffs'
counsel (the "Escrow Agent"); provided, however, that if the Court approves the
Settlement but does not render a decision on the Fee Application prior to the
Distribution Date, then, on the Distribution
36
Date, but prior to the distribution of the Settlement Fund to any members of the
Class, the Depository shall transfer from the Settlement Fund to the Escrow
Account the minimum number of shares of WorldCom common stock whose aggregate
value equals or exceeds the amount of fees and expenses requested in the Fee
Application, and upon completion of this transfer to the Escrow Account, the
Depository shall promptly distribute the remaining balance of the Settlement
Fund to certain members of the Class in the manner set forth in Paragraph 20
below. For purposes of this Paragraph, the WorldCom common stock shall be valued
at a price per share equal to the Average Price (as defined above).
XVI. Lead Counsel shall have complete discretion and authority to sell any
or all of the shares of WorldCom stock that exist in the Escrow Account at any
time, provided that all proceeds from such sales are immediately deposited in
the Escrow Account.
XVII. Release of the shares and the proceeds from any and all sales of
shares from the Escrow Account shall occur, at the direction of the Escrow
Agent, as soon as practicable after the later of: (a) the date when the Order of
the Court granting the Fee Award has become final and no longer subject to
further appeal or review, whether by exhaustion of any possible appeal, lapse of
time or otherwise, or (b) the Effective Date of the Merger. Lead Counsel shall
thereafter allocate the Fee Award among Plaintiffs' counsel in the Action in a
manner in which Lead Counsel in good faith believes reflects the contributions
of such counsel to the prosecution and settlement of the Action. Lead Counsel
may allocate the Fee Award to Plaintiffs' counsel in cash, WorldCom stock, or
any combination thereof, in Lead Counsel's sole discretion.
XVIII. Except as expressly provided herein, Defendants shall bear no other
expenses, costs, damages or fees alleged or incurred by Plaintiffs, or any
member of the Class, or by any of
37
their attorneys, experts, advisors, agents or representatives. No counsel for
Plaintiffs shall apply to any court for any fees or expenses except as provided
for herein.
DISTRIBUTION OF THE SETTLEMENT FUND
XIX. The Settlement Fund, less any Fee Award (or, if the Fee Award has not
been determined, less the amount of the Fee Application), will be distributed by
the Depository in the manner set forth herein, or as otherwise directed by the
Court, within three (3) business days following the later of: (i) entry of the
Order and Final Judgment approving the Settlement; (ii) the expiration of any
applicable appeal period for the appeal of the Order and Final Judgment without
an appeal having been filed or, if an appeal is taken, entry of an order
affirming the Order and Final Judgment appealed from and the expiration of any
applicable period for the reconsideration, rehearing or appeal of such
affirmance without any motion for reconsideration or rehearing or further appeal
having been filed; and (iii) the Effective Date of the Merger (the "Distribution
Date").
XX. Except as otherwise provided herein, the Settlement Fund, less any Fee
Award (or, if the Fee Award has not been determined, less the amount of the Fee
Application), will be distributed to certain members of the Class as follows:
(i) fifty percent (50%) will be distributed to the record holders of Digex Class
A common stock (other than with respect to shares owned of record or
beneficially by Defendants or their affiliates) as of the close of business on
September 1, 2000, in proportion to the number of shares of Digex Class A
38
common stock held by each such person as of that date and time; and (ii) fifty
percent (50%) will be distributed to the record holders of Digex Class A common
stock (other than with respect to shares owned of record or beneficially by
Defendants or their affiliates) as of a publicly disclosed record date which
shall be on or before the Effective Date of the Merger pursuant to the Merger
Agreement, in proportion to the number of shares of Digex Class A common stock
held by each such person as of that date and time. Members of the Class who fall
within both of the descriptions set forth in (i) and (ii) immediately above will
receive both distributions. Defendants and their affiliates shall not receive
any distributions from the Settlement Fund with respect to any shares owned of
record or beneficially by them. To the extent that the WorldCom common stock in
the Settlement Fund cannot be distributed to the record holders of Digex Class A
common stock entitled to receive such shares without creating fractional
interests, the Depository will sell such shares of WorldCom stock to the extent
necessary to avoid fractional interests, and the net proceeds of any such sales
shall be distributed to such record holders that would otherwise have received
fractional interests in such shares of WorldCom common stock.
XXI. In the event that the value of the shares and the proceeds from any
sales thereof in the Escrow Account exceeds the Fee Award, the excess, whether
in cash, stock, or any combination thereof (the "Excess") shall be maintained in
the Escrow Account until the earlier of (a) the date when the Order of the Court
granting the Fee Award has become final and no longer subject to further appeal
or review, whether by exhaustion of any possible appeal, lapse of time or
otherwise, and (b) the date upon which Lead Counsel consents in writing to the
release of the Excess from the Escrow Account. Upon the occurrence of the
earlier of these events, the Excess shall be returned to the Settlement Fund
within three (3) business days. The Excess shall then be distributed by the
Depository in the manner set forth in Paragraph 20 above within five (5)
business days after the last of: (i) entry of the Order and Final Judgment
approving the Settlement; (ii) the expiration of any applicable appeal period
for the appeal of the Order and Final Judgment without an appeal having been
filed or, if an appeal is taken, entry of an order affirming the Order and Final
Judgment appealed from and the expiration of any applicable period for the
reconsideration, rehearing or appeal of such affirmance
39
without any motion for reconsideration or rehearing or further appeal having
been filed; (iii) the Effective Time of the Merger; and (iv) the return of the
Excess to the Settlement Fund in accordance with this Paragraph. For purposes of
this Paragraph, the WorldCom common stock shall be valued at a price per share
equal to the Average Price (as defined above).
XXII. The Parties agree that a condition precedent to the Settlement's
becoming effective is a final Order of the Court certifying the Class as defined
above and providing for a complete release of all Settled Claims of all members
of the Class as set forth in Paragraph 6 above and entry of the final judgment
described in Paragraph 11 above. If the Court is unwilling to approve the
Settlement because of the allocation among Class members of the Settlement
Payment and the other settlement consideration, then the Parties will reallocate
the Settlement Payment in whatever manner is necessary to obtain Court approval
of the Settlement and a release and final judgment, as set forth in Paragraphs 6
and 11 above, that is binding on all members of the Class. The Parties agree
that the definition of the Class is intended to and will ensure that all past,
present, and future record and beneficial holders of Digex stock who have a
claim related to or arising from the matters alleged in any complaint filed in
the Action are included within the Class and will be effectively barred from
seeking any relief for such claims in the Action or in any subsequent action.
40
COOPERATION; BEST EFFORTS
XXIII. Plaintiffs will cooperate with Defendants in all reasonable respects
in connection with the implementation of the Merger Agreement as modified herein
and the other understandings set forth herein. The Parties, through their
counsel, (i) agree to present this Stipulation to the Court for preliminary
approval and for final approval following appropriate notice to and final
certification of the Class pursuant to Court of Chancery Rules 23(a), (b)(1) and
(b)(2); (ii) agree to use their best efforts to pursue the Settlement in as
expeditious and comprehensive a manner as possible and acknowledge that time is
of the essence; (iii) agree to cooperate in preparing any and all necessary
papers to define, pursue and effectuate the Settlement; and (iv) agree to
cooperate fully with one another in seeking the Court's approval of this
Stipulation and the Settlement and to use their best efforts to obtain final
Court approval of the Settlement, the dismissal with prejudice of the entire
Action, as against the named Plaintiffs and the Class, and the entry of a final
order consistent with this Stipulation.
XXIV. The members of the Special Committee of the Board of Directors of
Digex have approved the Settlement embodied in this Stipulation and determined
that it is in the best interests of Digex and its shareholders and, subject to
the provisions of and reservation of rights in this Stipulation, agree to take
all steps which may be reasonably necessary to give effect to the terms of this
Settlement.
41
STAY OF PROCEEDINGS
XXV. Pending Court approval of the Settlement, the Parties to the Action
agree to stay any discovery in the Action, and to stay any and all other
proceedings other than those incident to the Settlement itself. The Parties also
agree to use their best efforts to prevent the entry of any interim or final
relief in favor of any member of the Class in any other litigation against any
of the Parties to this Stipulation which challenges the Settlement or otherwise
involves a Settled Claim.
XXVI. The Parties to the Action shall agree to extensions of time with
respect to pleadings and other court filings as are appropriate in the context
of this Stipulation.
XXVII. Subject to the Order of the Court, pending final determination of
whether the Settlement provided for in this 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, representatively, 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). The
Parties further agree that they shall use their best efforts to prevent the
filing of any such action and to seek a stay or dismissal of any such action in
contemplation of the dismissal of the Action upon final approval of the
Settlement.
STIPULATION NOT AN ADMISSION
XXVIII. The provisions contained in this Stipulation shall not be deemed a
presumption, concession or any admission by any of the Parties of any fault,
liability or wrongdoing as to any facts or claims alleged or asserted in the
Action, or any other actions or proceedings, and shall not be interpreted,
construed, deemed, invoked, offered, or received in evidence or otherwise used
by any
42
person in the Action, or in any other action or proceeding, whether civil,
criminal or administrative, except in a proceeding to enforce the terms or
conditions of this Stipulation.
ENTIRE AGREEMENT; AMENDMENTS
XXIX. This Stipulation constitutes the entire agreement among the Parties
with respect to the subject matter hereof, and may not be amended nor any of its
provisions waived except by a writing executed by all of the Parties hereto.
XXX. This Stipulation shall be binding upon and inure to the benefit of the
Parties and their respective agents, successors, executors, heirs and assigns.
XXXI. All of the exhibits hereto are incorporated herein by reference as if set
forth herein verbatim, and the terms of all exhibits are expressly made part of
this Stipulation.
WAIVER
XXXII. The waiver by any party of any breach of this Stipulation shall not
be deemed or construed as a waiver of any other breach, whether prior,
subsequent, or contemporaneous, of this Stipulation.
COUNTERPARTS
XXXIII. This Stipulation may be executed in any number of counterparts with
the same effect as if all Parties hereto had executed the same document. All
such counterparts shall be construed together and shall constitute one
instrument.
GOVERNING LAW
XXXIV. This Stipulation and the Settlement contemplated by it shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to conflict of laws principles.
43
WARRANTY
XXXV. Plaintiffs and Plaintiffs' counsel in the Action represent and
warrant that none of Plaintiffs' claims or causes of action referred to in the
Corrected Amended Consolidated Class Action and Derivative Complaint in the
Action or in this Stipulation, including any Settled Claims, have been assigned,
encumbered or in any manner transferred in whole or in part. The Parties agree
that a sale or transfer of, or loan against, a Plaintiff's Digex stock after the
commencement of the Action shall not be deemed an assignment, encumbrance or
transfer of such Plaintiff's claims or causes of action for the limited purpose
of the preceding sentence of this Paragraph.
AUTHORITY
XXXVI. The undersigned attorneys represent and warrant that they have been
duly authorized by all of their respective clients to execute and deliver this
Stipulation.
Dated: March 2, 2001
By: /s/ Stuart M. Grant
--------------------------------
Stuart M. Grant, Esq.
Megan D. McIntyre, Esq.
GRANT & EISENHOFER, P.A.
1220 N. Market Street - Suite 500
Wilmington, DE 19801
Lead Counsel for Plaintiffs and the Class
44
By: /s/ Henry E. Gallagher
-----------------------------------
Henry E. Gallagher, Esq.
Collins J. Seitz, Jr., Esq.
CONNOLLY BOVE LODGE & HUTZ LLP
1220 Market St.
P. O. Box 2207
Wilmington, Delaware 19899-2207
Brian J. McMahon, Esq.
Stephen R. Reynolds, Esq.
GIBBONS, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE, P.C.
One Riverfront Plaza
Newark, New Jersey 07102
Attorneys for Defendant WorldCom, Inc.
By: /s/ Karen L. Valihura
----------------------------------
Steven J. Rothschild, Esq.
Karen L. Valihura, Esq.
Skadden, Arps, Slate, Meagher & Flom, LLP
One Rodney Square
P.O. Box 636
Wilmington, DE 19899
Robert K. Payson, Esq.
Stephen C. Norman, Esq.
POTTER ANDERSON &
CORROON, LLP 1313
North Market street
Hercules Plaza, 6th
Floor Wilmington,
Delaware 19899-0951
Attorneys for Defendants Intermedia
Communications, Inc., David C. Ruberg,
Philip A. Campbell, John C. Baker, and
Robert M. Manning
45
By: /s/ William O. LaMotte
-----------------------------------
William O. LaMotte, III, Esq.
MORRIS NICHOLS ARSHT & TUNNELL
1201 North Market
P.O. Box 1347
Wilmington, Delaware 19899-1347
Kevin M. McGinty, Esq.
MINTZ LEVIN COHN
FERRIS GLOVSKY and
POPEO, PC One
Financial Center
Boston, Massachusetts
02111
Attorneys for Defendant Digex,
Incorporated
By: /s/ Srinivas M. Raju
---------------------------------
Kevin G. Abrams, Esq.
Srinivas M. Raju, Esq.
RICHARDS LAYTON & FINGER
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
P. Kevin Castel, Esq.
Kevin Burke, Esq.
CAHILL GORDON & REINDEL
80 Pine Street
New York, New York 10005
Attorneys for Richard A. Jalkut, Jack E.
Reich (Special Committee of the Board of
Directors of Digex, Incorporated)
46
By: /s/ William O. LaMotte
-----------------------------------
William O. LaMotte, III, Esq.
MORRIS NICHOLS ARSHT & TUNNELL
1201 North Market
P.O. Box 1347
Wilmington, Delaware 19899-1347
Robert Novack, Esq.
EDWARDS & ANGELL, LLP
51 John F. Kennedy Parkway
Short Hills, NJ 07078
Attorneys for Mark K. Shull
47
Dates Referenced Herein and Documents Incorporated by Reference
↑Top
Filing Submission 0000950162-01-000267 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Wed., Apr. 24, 9:57:58.1pm ET 
