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-99.1 — Order and Final Judgment
| EX-99.1 | 1st Page of 8 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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Exhibit 99.1
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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ORDER AND FINAL JUDGMENT
A hearing (the "Settlement Hearing") having been held before this Court
(the "Court") on April 6, 2001, pursuant to the Court's Order of March 5, 2001
(the "Scheduling Order"), upon a Stipulation of Settlement dated March 2, 2001
(the "Stipulation") in the above-captioned consolidated action (the "Action"),
which is incorporated herein by reference; it appearing that due notice of said
hearing has been given in accordance with the aforesaid Scheduling Order, the
respective parties having appeared by their attorneys of record; the Court
having heard and considered evidence in support of the proposed settlement
embodied in the Stipulation (the "Settlement"); the attorneys for their
respective parties having been heard; an opportunity to be heard having been
given to all other persons requesting to be heard in accordance with the
Scheduling Order; the Court having determined that notice to the shareholders of
Digex, Incorporated ("Digex") and the Class (as defined below) preliminarily
certified, pursuant to the aforesaid Scheduling Order, was adequate and
sufficient; and the entire matter of the proposed Settlement having been heard
and considered by the Court;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, this _____ day of April, 2001,
that:
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I. Unless otherwise defined herein, all defined terms shall have the
meaning set forth in the Stipulation.
II. On or before March 7, 2001, the Notice of Pendency of Class and
Derivative Action, Proposed Settlement, and Settlement Hearing (the "Notice")
was mailed or otherwise delivered to the members of the Class, as provided for
in the Scheduling Order, and as stated in the proof of mailing filed with the
Court by Digex. In addition, on or before March 12, 2001, a Summary Notice was
posted and/or published as set forth in the Scheduling Order. The form and
manner of notice given to the Class (as defined below) is hereby determined to
have been the best notice practicable under the circumstances and to have been
given in full compliance with the requirements of due process and of Court of
Chancery Rules 23 and 23.1.
III. Due and adequate notice of the proceedings having been given and a
full opportunity having been offered to the members of the Class to participate
in the Settlement Hearing, or object to the Settlement, it is hereby determined
that all members of the Class are bound by the Order and Final Judgment entered
herein.
IV. Based on the record of the Action, each of the provisions of Court of
Chancery Rule 23(a) has been satisfied and the Action has been properly
maintained according to the provisions of Court of Chancery Rules 23(b)(1) and
(b)(2) (with no opt-out rights). Specifically, this Court finds that (a) the
Class contemplated in the Action 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 representative plaintiffs are typical of the claims of the
Class, and (d) the representative plaintiffs have fairly and adequately
protected the interests of the Class. The Action is certified as a class action,
pursuant to Court of Chancery Rules 23(a), (b)(1) and (b)(2), on behalf of a
class composed of all record and
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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, as that term
is defined in the Agreement and Plan of Merger among WorldCom, Wildcat
Acquisition Corp. and Intermedia Communications, Inc. dated September 1, 2000
(as amended, the "Merger Agreement") (annexed as Exhibit A to the Stipulation),
including their respective successors in interest, assignees or transferees,
immediate and remote (the "Class"), and the law firm of Grant & Eisenhofer, P.A.
is permanently certified as lead counsel for the Class ("Lead Counsel").
V. The Stipulation and the Settlement are approved as substantively and
procedurally fair, reasonable, adequate and in the best interests of Digex and
the Class, and the parties to the Stipulation are directed to consummate the
Settlement in accordance with the terms and conditions set forth in the
Stipulation. The Court is aware that the Settlement Payment may be made pursuant
to Section 3(a)(10) of the Securities Act of 1933.
VI. The Action and all complaints filed in the Action and in the
Consolidated Actions are dismissed in their entirety with prejudice on the
merits, with each party to bear its own costs (except, with respect to costs, as
otherwise provided in the Stipulation).
VII. 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,
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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 any or 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 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 and hereby are fully
and completely discharged, dismissed with prejudice, settled, released and
enjoined; provided, however, that nothing herein shall release the Parties, as
that term is defined in the Stipulation, from their obligations under the
Stipulation, or alter, amend, or in any way
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affect the obligations of Digex, Intermedia and WorldCom described in paragraph
8 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.
VIII. Digex, Intermedia and WorldCom are deemed to have released 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 herein 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 the 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, as that term is defined in
the Stipulation (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.
IX. All Defendants named in the Action or any of the Consolidated Actions
are deemed to have released each of the named Plaintiffs and their attorneys
from any claims of any
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nature relating to or arising out of the Action, the Consolidated Actions, or
any matters alleged in any complaint filed in the Action or in the Consolidated
Actions.
X. Digex, all members of the Class, and all present, past and future
shareholders of Digex, or any of them, are permanently 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 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 approvals previously
granted to WorldCom pursuant to Section 203 of the Delaware General Corporation
Law ("Section 203") in connection with the Merger and Merger Agreement.
XI. WorldCom, Inc. ("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 WorldCom's acquisition of Intermedia Communications, Inc. and
indirect acquisition of Digex stock as a result of the Merger Agreement or the
transactions contemplated thereby.
XII. The attorneys for the Plaintiffs and the Class are awarded attorneys'
fees and reimbursement of expenses equal to _____% of the number of shares of
WorldCom stock to be contributed by WorldCom to the Settlement Fund pursuant to
the Stipulation, which amount the Court finds to be fair and reasonable, to be
paid out of the Settlement Fund as provided in the Stipulation. Lead Counsel to
the Class is directed to distribute the award of attorneys' fees to any of the
counsel to
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plaintiffs whom Lead Counsel believes in good faith to have assisted in the
prosecution and settlement of this Action, in such amounts as Lead Counsel in
good faith believes reflect the contributions of such counsel to the prosecution
and settlement of the Action.
XIII. Nothing in this Order and Final Judgment shall be construed as a
presumption, concession or admission by any of the parties to the Stipulation or
the Action 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 person in any action or proceeding, whether
civil, criminal or administrative, for the purpose of establishing any fault,
liability or wrongdoing as to any facts or claims alleged or asserted in the
Action.
XIV. The Court hereby concludes that there is no just reason for delay and
directs that this judgment be entered as final in accordance with Court of
Chancery Rule 54(b). The filing of an appeal from that portion of the Order and
Final Judgment which relates solely to the issue of Plaintiffs' counsel's
application for an award of attorneys' fees and expenses shall not affect the
finality of any other provisions contained herein.
XV. If for any reason the Merger between WorldCom and Intermedia is not
consummated pursuant to the Merger Agreement,(1) this Order and Final Judgment
shall be vacated upon application of any party to the Action or the Stipulation
pursuant to Delaware Court of Chancery Rule 60(b)(6).
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1 Copies of the Merger Agreement and the First Amendment are on file with the
Court as Exhibits A and B to the Stipulation.
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XVI. Without affecting the finality of this Order and Final Judgment in any
way, the Court reserves jurisdiction over all matters relating to the
administration and consummation of the Settlement in accordance with the
Stipulation.
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Chancellor
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 4/6/01 | | 1 |
| | 3/12/01 | | 2 |
| | 3/7/01 | | 2 |
| Filed on / For Period End: | | 3/5/01 | | 1 |
| | 3/2/01 | | 1 |
| | 11/22/00 | | 5 |
| | 11/20/00 | | 5 | | | | | 8-K |
| | 10/31/00 | | 5 |
| | 10/13/00 | | 5 | | | | | 8-K |
| | 9/1/00 | | 3 | | | | | 8-K |
| | 8/31/00 | | 3 |
| List all Filings |
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