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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH
SONNY P. MEDINA, et al.,
Plaintiffs, v.
CLOVIS ONCOLOGY, INC., et al.,
Defendants.
______
DECLARATION OF JOHN C. BROWNE IN SUPPORT OF (I) LEAD PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION; AND (II) LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES ______Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 2 of 83
TABLE OF CONTENTS
TABLE OF EXHIBITS TO DECLARATION...... iv
I. INTRODUCTION ...... 1
II. PROSECUTION OF THE ACTION ...... 10
A. Overview And Filing Of The Complaint ...... 10
1. Appointment Of Lead Plaintiff And Lead Counsel ...... 12
2. Lead Counsel’s Investigation Prior To Filing The Amended Complaint ...... 13
3. The Complaint ...... 17
B. Defendants’ Extensive Motions To Dismiss The Complaint ...... 19
C. Lead Plaintiff’s Successful Efforts To Stay A Competing Action That Threatened Its Ability To Effectively Prosecute This Action ...... 23
D. The Court’s Opinion Largely Denying Defendants’ Motions To Dismiss ...... 24
E. The Amended Complaint And Lead Plaintiff’s Opposition To Non-Lead Underwriters’ Motion To Dismiss ...... 26
F. Lead Plaintiff’s Discovery Efforts ...... 27
1. Retention Of Experts...... 27
2. Extensive Document Discovery And Review, And Interview Of Witnesses ...... 29
3. Pre-Trial Schedule And April 2017 Court Hearing ...... 36
III. THE SETTLEMENT NEGOTIATIONS AND TERMS OF THE SETTLEMENT ...... 37
IV. PRELIMINARY APPROVAL OF THE SETTLEMENT AND JULY 26, 2017 COURT HEARING ...... 39
V. RISKS OF CONTINUED LITIGATION ...... 39
A. General Risks Involved In Prosecuting Securities Actions On A Contingent Basis ...... 41
B. The Risk That Clovis Would Be Unable To Satisfy A Judgment In Excess Of The Proposed Settlement Is Substantial ...... 43
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C. Lead Plaintiff Faced A Number Of Substantial Risks In Proving Defendants’ Liability ...... 45
1. Risks To Proving Defendants’ Liability ...... 46
2. Risks To Establishing The Underwriter Defendants’ Liability Under The Securities Act ...... 48
D. Risks Related To Damages ...... 50
1. The Parties Would Have Disagreed On The Calculation Of Damages ...... 50
2. Risk Of A Second Phase Damages Trial ...... 51
E. Risk Of Appeal ...... 52
VI. RESPONSES TO MATTERS RAISED BY THE COURT AT THE JULY 26, 2017 PRELIMINARY APPROVAL HEARING ...... 53
A. The Stock Component Of Plaintiffs’ Counsel’s Fee ...... 53
B. Potential Sale Of The Settlement Shares ...... 56
C. Lead Counsel’s Liability To The Class ...... 57
D. Lead Plaintiff’s “Designee” ...... 58
E. Transfer Of Settlement Shares To Clovis’ Transfer Agent ...... 58
F. Release Of Claims Against The Underwriter Defendants ...... 59
G. The Settlement’s “Change-In-Control” Provision ...... 60
H. St. Petersburg Employees’ Retirement System’s Role In The Litigation ...... 61
I. Typographical Error In Paragraph 8(c) On Page 21 Of The Stipulation Of Settlement ...... 62
VII. LEAD PLAINTIFF’S COMPLIANCE WITH THE COURT’S PRELIMINARY APPROVAL ORDER REQUIRING ISSUANCE OF NOTICE...... 62
VIII. ALLOCATION OF THE PROCEEDS OF THE SETTLEMENT ...... 64
IX. THE FEE AND LITIGATION EXPENSE APPLICATION ...... 66
A. The Fee Application ...... 67
1. Lead Plaintiff Supports The Fee Application ...... 67
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2. The Time And Labor Of Plaintiffs’ Counsel ...... 68
3. The Skill And Experience Of Plaintiffs’ Counsel...... 71
4. Standing And Caliber Of Defendants’ Counsel ...... 71
5. The Risks Of Litigation And The Need To Ensure The Availability Of Competent Counsel In High-Risk Contingent Securities Cases ...... 72
6. The Settlement Class’s Reaction To The Fee Application ...... 73
B. The Litigation Expense Application ...... 74
CONCLUSION ...... 77
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TABLE OF EXHIBITS TO DECLARATION
EX. # TITLE
1 Amendment to Stipulation and Agreement of Settlement
2 Declaration of Moshe Arkin, in Support of: (I) Lead Plaintiff’s Motion for Final Approval of Class Action Settlement and Plan Of Allocation; (II) Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses; and (III) Lead Plaintiff’s Request for Reimbursement of Costs and Expenses
3 Declaration of Jane Wallace, Assistant City Attorney for The City of St. Petersburg and Attorney for The City of St. Petersburg Employees’ Retirement System, in Support of: (I) Lead Plaintiff’s Motion for Final Approval of Class Action Settlement and Plan of Allocation; (II) Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses; and (III) Plaintiff’s Request for Reimbursement of Costs and Expenses
4 Declaration of Layn R. Phillips in Support of Lead Plaintiff’s Motion for Final Approval of Class Action Settlement
5 Declaration of Stephanie A. Thurin Regarding: (A) Mailing of the Notice and Claim Form; (B) Publication of the Summary Notice; and (C) Report on Requests for Exclusion Received to Date
6 Summary of Plaintiffs’ Counsel’s Lodestar and Expenses
6A Declaration of John C. Browne in Support of Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses filed on behalf of Bernstein Litowitz Berger & Grossmann LLP
6B Declaration of Lester R. Hooker in Support of Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses filed on behalf of Saxena White P.A.
6C Declaration of Gene Kleinhendler in Support of Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses filed on behalf of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co.
6D Declaration of Kathryn A. Reilly in Support of Lead Counsel’s Motion for an Award of Attorneys’ Fees filed on behalf of Wheeler Trigg O’Donnell LLP
7 Breakdown of Plaintiff’s Counsel’s Litigation Expenses by Category
8 Rosenfeld v. Laser Tech. Inc., et al., No. 99-cv-266 (D. Colo. Oct. 19, 2000), Dkt. No. 87
9 Rasner v. Vari-L Co., Inc., et al., No. 00-cv-1181 (D. Colo. March 28, 2003), Dkt. No. 102
iv Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 6 of 83
10 Anderton v. ClearOne Commn’cs., Inc., et al., No. 2:03-CV-0062-PCG, slip op. (D. Utah March 16, 2004), Dkt. No. 92
11 In re Lumber Liquidators Holdings, Inc. Sec. Litig., No. 13-00157, slip op. (E.D. Va. Nov. 17, 2016), Dkt. No. 206
12 In re Heckmann Corp. Sec. Litig., No. 10-00378, slip op. (D. Del. June 26, 2014), Dkt. No. 308
13 Crystal v. Medbox, Inc., No. 15-00426, slip op. (C.D. Cal. Nov. 14, 2016), Dkt. No. 114
14 In re Molycorp, Inc. Sec. Litig. 1:12-cv-00292-RM-KMT (J. Moore), slip op. (D. Colo. June 16, 2017), Dkt. No. 263
15 Rasner v. FirstWorld Commc’ns, Inc., No. 00-cv-1376, slip op. (D. Colo. Jan. 19, 2005), Dkt. No. 350
16 Schwartz v. Celestial Seasonings, Inc., No. 95-cv-1045, slip op. (D. Colo. Apr. 25, 2000), Dkt. No. 183
17 Queen Uno Ltd. P’ship. v. Coeur D’Alene Mines Corp., No. 97-cv-1431-CB, slip op. (D. Colo. Aug. 11, 1999), Dkt. No. 159
18 Schuh v. HCA Holdings Inc., No. 3:11-cv-01033, slip op. (M.D. Tenn. Apr. 14, 2016), Dkt. No. 563
19 Alaska Elec. Pension Fund v. Pharmacia Corp., No. 03-1519 (AET), slip op. (D.N.J. Jan. 30, 2013), Dkt. No. 405
In re DaimlerChrysler AG Sec. Litig., No. 00-0993 (KAJ), slip op. (D. Del. Feb. 5, 2004), 20 Dkt. No. 973
In re Schering-Plough Corp./ENHANCE Sec. Litig., No. 08-397 (D.N.J. Jun. 4, 2013), Dkt. 21 No. 419-1
22 Hill v. State Street Corp., No. 09-12146 (D. Mass. Jul. 8, 2014), Dkt. No. 478-1
23 In re BioScrip Sec. Litig., No. 13-6922 (S.D.N.Y. Dec. 18, 2015), Dkt. No. 101-1
Electrical Workers Local 357 Pension and Health & Welfare Trusts v. Clovis Oncology, 24 Inc., No. 537068 (Cal. Super. Sept. 27, 2016), Order re Motion to Stay Proceedings
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JOHN C. BROWNE declares as follows:
I. INTRODUCTION
1. I, John C. Browne, am a partner in the law firm of Bernstein Litowitz Berger &
Grossmann LLP (“BLBG” or “Lead Counsel”). BLBG is counsel for Lead Plaintiff M.Arkin
(1999) LTD and Arkin Communications LTD (“Lead Plaintiff” or “Arkin Group”) in the above-
captioned action (the “Action”).1 I have personal knowledge of the matters set forth herein based
on my active participation in the prosecution and settlement of the Action.
2. I respectfully submit this Declaration in support of: (a) Lead Plaintiff’s Motion for
Final Approval of Class Action Settlement and Plan of Allocation (the “Final Approval Motion”);
and (b) Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation
Expenses (the “Fee and Expense Motion”).
3. The proposed Settlement now before the Court provides for the resolution of all
claims in the Action in exchange for a $142 million payment to be made for the benefit of the
Settlement Class, consisting of $25 million in cash and $117 million in Clovis common stock
valued pursuant to the terms of the Stipulation of Settlement.2 The proposed Settlement represents
1 Unless otherwise defined herein, all capitalized terms have the meanings set forth in the Stipulation and Agreement of Settlement dated June 18, 2017 (the “Stipulation” or “Stipulation of Settlement”) previously filed with the Court. See Dkt. No. 156-1. In addition to BLBG, the following firms performed work for the benefit of Plaintiffs and the Settlement Class: (i) Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co. (Israeli counsel for the Arkin Group); (ii) Saxena White P.A. (counsel for additional named plaintiff City of St. Petersburg Employees’ Retirement System) (“Saxena White”); and (iii) Wheeler Trigg O’Donnell LLP (local counsel) (“Wheeler Trigg”). 2 The “Settlement Class” or “Class” consists of all persons and entities who or which (i) purchased or otherwise acquired Clovis common stock and/or (ii) purchased or otherwise acquired exchange traded call options on Clovis common stock and/or sold/wrote exchange traded put options on Clovis common stock during means the period between May 31, 2014 and April 7, 2016, inclusive (the “Settlement Class Period”), and who were damaged thereby. Excluded from the Settlement Class are the Defendants; the affiliates and subsidiaries of: Clovis, the Underwriter Defendants, and the Venture Capital Entity Defendants; the Officers, directors, and partners of: Clovis, the Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 8 of 83
an extraordinary result for the Class, providing a substantial payment to Class Members while
avoiding the risk and expense of continued litigation, including the risks and hard limits to recovery
posed by Clovis’ financial condition. The Settlement is also noteworthy because it provides a
substantial recovery to Settlement Class Members while allowing Clovis – a Colorado company –
to retain sufficient resources to continue to develop and market its remaining cancer drug,
rucaparib, which treats ovarian cancer.
4. This exceedingly beneficial Settlement was achieved as a direct result of Lead
Plaintiff’s and Lead Counsel’s efforts to diligently investigate, vigorously prosecute, and
aggressively negotiate a settlement of this Action against highly competent opposing counsel.
5. As discussed further below, the $142 million Settlement is the second largest
securities class action recovery ever obtained in Colorado and is among the four largest in Tenth
Circuit history. Indeed, in Colorado this Settlement ranks behind only the $445 million settlement
obtained In re Qwest Commc’s Int. Inc., Sec. Litig, No. 01-cv-1451 – a case in which the corporate
defendant admitted it had overstated $2.3 billion in revenue over a two-year period; the company’s
CEO, CFO, and five other senior executives were convicted of, or pled guilty to, criminal fraud
and insider trading (with the CEO receiving a lengthy prison sentence); and estimated damages
were upwards of $90 billion. Here, by contrast there have been no criminal charges and no
admissions of wrongdoing by Clovis.
Underwriter Defendants, and the Venture Capital Entity Defendants during the Settlement Class Period; members of the Immediate Family of any excluded person; the legal representatives, heirs, successors, and assigns of any excluded person or entity; and any entity in which any excluded person or entity has or had, during the Settlement Class Period, a controlling interest; provided, however, that any Investment Vehicle (as defined in the Stipulation) shall not be deemed an excluded person or entity by definition. Also excluded from the Settlement Class are any persons or entities that exclude themselves by submitting a request for exclusion that is accepted by the Court as valid. Members of the Settlement Class are referred to herein as “Settlement Class Members” or “Class Members”.
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6. When viewed in this context and relative to other securities class action recoveries
nationwide, the recovery achieved in this case is extremely favorable. Indeed, the median securities
class action settlement in the Tenth Circuit between 2007 and 2016 was $8.4 million. Similarly,
the median securities class action settlement nationwide between 1996 (the passage of the PSLRA)
and 2015 was $8.3 million. Thus, the proposed Settlement provides an exceptional benefit for the
Settlement Class far outside the normal range of recoveries in these types of cases.
7. The benefit the proposed Settlement will provide to the Settlement Class is
particularly meaningful when considered against the substantial risk that the Settlement Class
might recover less (or nothing) if the action were litigated through dispositive motions, trial, and
any appeals that would likely follow – a process that could last years. In particular, there is
substantial risk that Clovis – an early stage biopharmaceutical company that has incurred
significant net losses in every quarter since its founding and has virtually no free cash on hand –
would be unable at the conclusion of protracted and expensive litigation to fund a judgment or
settlement in excess of the proposed Settlement without significantly impairing its operations, or
even forcing the Company into bankruptcy.
8. Moreover, as confirmed by the extensive discovery Lead Counsel conducted
(which is discussed in more detail below), if this case continued to be litigated there is no guarantee
that Lead Plaintiff or the Class could establish Defendants’ liability. Defendants would put forth
powerful arguments challenging Lead Plaintiff’s allegations that Defendants’ statements were
false and in refuting any inference of scienter – i.e., that Defendants acted with a fraudulent state
of mind and not merely negligence. It should be noted that even a jury finding of gross negligence
here would be insufficient to support Lead Plaintiff’s fraud-based claims under the Securities
Exchange Act (“Exchange Act”).
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9. The proposed Settlement is additionally noteworthy given the complicated and
technical nature of this case. Establishing the Class’ claims would have involved mustering
evidence on multiple complex – and hotly contested – oncological, statistical, scientific, and
regulatory issues concerning the appropriate interpretation of clinical oncology guidelines and
multifaceted cancer drug trial results. For instance, the Complaint alleges, among other things, that
Defendants reported misleadingly inflated trial results, called “Objective Response Rate”
(“ORR”), purporting to show that rociletinib – Clovis’ key drug during the Class Period – was at
least as effective in shrinking tumors as its chief competitor. Defendants argued that these
statements were not false because Defendants believed that they were correctly calculating ORR
under the relevant oncology protocols. Defendants further argued that the Federal Food and Drug
Administration (“FDA”) was aware that Clovis was reporting “unconfirmed” or “blended” ORR
(i.e., a mix of confirmed and unconfirmed responses), had previously accepted unconfirmed ORR
results, and that Defendants had no reason to believe that the FDA would not accept unconfirmed
ORR results in the future.
10. The Parties’ respective positions on this issue turned on fundamental disagreements
about highly technical issues, including how to calculate ORR under controlling medical
guidelines and how to determine the magnitude of the difference between disparate ORR results.
It also would have turned on interpretations of FDA guidelines and statements and
communications between Clovis and the FDA throughout the life of the rociletinib trials. It goes
without saying that resolution of these and other complex issues would have turned, in
considerable part, on dueling expert testimony offered by radiologists and statisticians, adding
another layer of risk to Lead Plaintiff’s ability to establish liability.
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11. As discussed in more detail below, the highly favorable Settlement was achieved
as a direct result of Lead Counsel’s substantial litigation efforts, including:
(i) conducting a comprehensive investigation of the claims and potential
claims against Clovis, including consulting with multiple highly-regarded
experts, interviewing potential witnesses (including twenty one former
Clovis employees), and poring through the voluminous public record;
(ii) drafting a 152-page Consolidated Class Action Complaint, which included
expert statistical analyses performed by the former Chair of the Department
of Statistics at Columbia University, and incorporated material from SEC
filings, news articles, research reports by securities analysts, transcripts of
Clovis’ investor calls, clinical trial protocols, publications and presentations
of clinical trial data, medical journal articles, presentations at medical
conferences, and reports and presentations published by the FDA;
(iii) successfully briefing and arguing a motion to stay a duplicative putative
class action filed in California state court, the pendency of which threatened
to interfere with the Class’ ability to prosecute its claims;
(iv) successfully opposing Defendants’ summary judgment-like motions to
dismiss, which consisted of more than 1,000 pages of briefing and exhibits,
including a 55-document appendix that included clinical trial standards,
FDA guidance, analyst reports, and numerous other documents, and
researching and drafting a 100-page opposition brief responding to both
Defendants’ legal arguments and their factual arguments concerning the
application of clinical and regulatory standards;
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(v) serving extensive discovery requests on Defendants and the FDA, and
meeting and conferring with these parties on several occasions to resolve
their objections to Lead Plaintiff’s requests and to facilitate the expeditious
production of documents;
(vi) working assiduously to identify and retain preeminent experts in
biostatistics, radiology and oncologic imaging (including an author of the
“RECIST” criteria that governed Clovis’ reporting obligation during the
Class Period), medical oncology, FDA New Drug Application review,
investment banking, and financial economics;
(vii) amending the Consolidated Class Action Complaint to address the Court’s
concerns about standing in connection with the Securities Act claims;
(viii) opposing the Non-Lead Underwriters’ motion to dismiss the Complaint’s
Section 11 claims against them for lack of standing; and
(ix) reviewing documents produced by the FDA and Clovis, as well as scouring
scientific and regulatory literature, in anticipation of depositions and
summary judgement briefing.
12. Moreover, in the midst of active litigation efforts, Lead Counsel engaged in months
of contentious settlement negotiations with Defendants. These negotiations included participation
in a formal mediation process overseen by former Judge Layn Phillips, an experienced and highly
respected mediator. As part of the mediation process, Lead Counsel submitted two sets of
comprehensive mediation statements, reviewed numerous internal documents Clovis produced in
connection with its mediation submissions, and participated in an all-day formal mediation session
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in New York City and multiple follow-up calls with the mediator, Defendants and clients. During
the mediation process and afterward, Lead Counsel and Lead Plaintiff were given extensive
information regarding the finances of Clovis and its likely inability to pay a substantial judgment
if one were achieved in this case.
13. While discovery was ongoing, Lead Counsel continued settlement negotiations
with the Settling Defendants. The Lead Plaintiff was directly and personally involved in these
settlement negotiations, including by hosting a meeting in Tel Aviv, Israel between Lead Plaintiff
and the Chief Executive Officer of Clovis and respective counsel. In my experience, the
sophisticated Lead Plaintiff in this case demonstrated a unique level of commitment to the case
and personal involvement in the settlement of this matter.
14. Lead Counsel also bargained for the right to conduct substantial discovery to
confirm that the settlement was reasonable. As part of this discovery effort, Lead Counsel (i)
reviewed more than 350,000 documents produced by Clovis, the Underwriter Defendants, and the
FDA; (ii) conducted an expert-guided review of over 40 gigabytes of Clovis’ internal clinical trial
data; (iii) consulted with retained experts; and (iv) conducted interviews of senior Clovis
executives, including:
(a) CEO Patrick J. Mahaffy;
(b) Chief Medical Officer Lindsey Rolfe;
(c) Senior Vice President of Finance and Principal Financial and Accounting Officer
Dan Muehl; and
(d) Senior Director of Statistics and Data Management Jeff Isaacson, a senior
statistician working on the relevant clinical trials.
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15. The close attention and oversight that the sophisticated Lead Plaintiff paid
throughout this case is another factor in favor of the reasonableness of the Settlement. In enacting
the Private Securities Litigation Reform Act of 1995 (the “PSLRA”), Congress expressly intended
to give control over securities class actions to sophisticated investors, and noted that increasing
the role of institutional investors in class actions will ultimately benefit shareholders and assist
courts by improving the quality of representation in securities class actions”). H.R. Conf. Rep.
No. 104-369, at *34 (1995), reprinted in 1995 U.S.C.C.A.N. 730, 733.
16. As a result of these extensive efforts, Lead Plaintiff and Lead Counsel are well
informed of the strengths and weaknesses of the claims and defenses in the Action and they have
concluded that the Settlement is in the best interests of the Settlement Class.
17. In addition to seeking final approval of the Settlement, Lead Plaintiff seeks
approval of the proposed Plan of Allocation as fair and reasonable. Lead Plaintiff prepared the
Plan of Allocation in consultation with an experienced expert in the fields of damages and
economics. Pursuant to the Plan of Allocation, the Settlement Amount plus interest accrued, less
Court-approved attorneys’ fees and expenses, Notice and Administration Costs, and Taxes (the
“Net Settlement Fund”) will be distributed on a pro rata basis to Settlement Class Members who
submit Claim Forms that are approved for payment by the Court. As discussed in more detail
below, the Plan of Allocation follows standard practice regarding the distribution of equity or debt
securities comprising some or all of the settlement proceeds.
18. In short, Lead Counsel worked hard, and with skill and diligence, to achieve the
proposed Settlement in the face of significant risk. Apart from the risks discussed above and
further below, Lead Counsel prosecuted this case on a contingent basis and has advanced all
litigation expenses; thus, Lead Counsel bore all the risk of an unfavorable result in this Action. For
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their considerable efforts in prosecuting the case and negotiating the Settlement, Lead Counsel is
applying for an award of attorneys’ fees and reimbursement of Litigation Expenses pursuant to the
retainer agreement between Lead Counsel and Lead Plaintiff, which was entered into before the
start of this litigation. Specifically, Lead Counsel is applying for: (i) attorneys’ fees in the amount
of 22.5% of the Settlement Amount (net of Litigation Expenses), which is approximately $31.844
million plus interest accrued at the same rate as earned by the Settlement Fund; (ii) reimbursement
of expenses reasonably incurred by Plaintiffs’ Counsel in the amount of $427,133.68; and (iii) an
award pursuant to the PSLRA in the total amount of $33,300.00 for costs and expenses reasonably
incurred by Plaintiffs in connection with their representation of the Settlement Class. The
requested fee is well within the range of percentage awards granted by courts in this Circuit and
across the country in securities class actions.
19. Finally, Lead Counsel and Lead Plaintiff have attempted to address the matters
raised by the Court at the July 26, 2017 hearing. Lead Counsel greatly appreciates the Court’s
approach to the hearing, and has conferred with Lead Plaintiff and Defendants in order to effect
three amendments to the Stipulation of Settlement in response to matters discussed at that hearing.
Those amendments, are set forth in the Amendment to Stipulation and Agreement of Settlement,
attached hereto as Exhibit 1. These amendments (1) expressly prohibit Lead Counsel from selling
any Settlement shares that may be awarded to Lead Counsel as attorneys’ fees without also selling
any Settlement shares that are the property of the Class, thus further assuring perfect alignment of
Lead Counsel’s interests with the Class’ interests; (2) clarifying the Stipulation of Settlement to
state that notwithstanding any other provision, Lead Counsel is required to act as a fiduciary to the
Settlement Class in connection with the administration of the Settlement and the funds held in
Escrow; and (3) correcting a typographical error that the Court identified in the Stipulation of
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Settlement. These Amendments are discussed in more detail below at Section VI. That same
Section also addresses in more detail other matters raised by the Court at the July 26, 2017 hearing.
20. For all of the reasons set forth herein, including the excellent result obtained
through expenditure of significant effort in the face of numerous substantial litigation risks, I
respectfully submit that the Settlement and Plan of Allocation are “fair, reasonable and adequate”
in all respects, and that the Court should approve them pursuant to Federal Rule of Civil Procedure
Rule 23(e). For similar reasons, and for the additional reasons set forth below, I respectfully
submit that Lead Counsel’s request for attorneys’ fees and reimbursement of Litigation Expenses,
which includes the requested PSLRA awards to Plaintiffs, are also fair and reasonable, and should
be approved.
II. PROSECUTION OF THE ACTION
A. Overview And Filing Of The Complaint
21. As the Court is aware, this securities class action asserts claims arising under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Sections 11, 12(a)(2) and 15
of the Securities Act of 1933 on behalf of investors who purchased Clovis securities during the
Settlement Class Period, including those who purchased Clovis common stock pursuant to Clovis’
July 14, 2015 secondary offering (“July 2015 Offering”).
22. Clovis is a publicly traded pharmaceutical Company headquartered in Boulder,
Colorado and listed on the NASDAQ exchange. During the Class Period, Clovis reported trial
results for its key lung cancer drug, rociletinib. Specifically, these reported results purported to
show that rociletinib’s ORR – a measure of the drug’s ability to shrink tumors – was approximately
60%, and thus similar to the ORR achieved by rociletinib’s chief competitor, a drug manufactured
by Astra Zeneca called Tagrisso.
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23. On November 16, 2015, Clovis disclosed for the first time that the efficacy results
Defendants presented throughout the Class Period were “based primarily on unconfirmed
responses,” and that rociletinib’s true ORR, which included only those “responses” (i.e.,
observations of tumor shrinkage) that had been confirmed in a follow-up measurement, was just
30% – half of the rate Clovis had previously reported for rociletinib and, critically, half the rate
Astra-Zeneca reported for Tagrisso.
24. Following this disclosure, on November 19, 2015, a complaint captioned Medina
v. Clovis Oncology, Inc., No. 15-cv-02546, was filed in this Court. (Dkt. No. 1). Subsequently,
two additional complaints, captioned Kimbro v. Clovis Oncology, Inc., No. 15-cv-02547 and
Rocco v. Clovis Oncology, Inc., No. 15-cv-02697, advancing substantially similar allegations,
were filed. In addition, securities actions advancing substantially similar allegations were also
filed in the Northern District of California (on November 20, 2015) and in California state court
(on January 22, 2016).
25. Lead Plaintiff contacted Lead Counsel in late November 2015 and Lead Counsel,
working closely with Lead Plaintiff, promptly began an investigation into the merits of a potential
securities class action against Clovis. This investigation included a review of publicly-available
materials, including scientific guidelines and transcripts and information from multiple medical
conferences, consultation with experts, attempts to contact former Clovis employees, an
examination of Lead Plaintiff’s trading, and multiple discussions with knowledgeable individuals
employed by Lead Plaintiff.
26. In the following weeks, Lead Counsel and Lead Plaintiff determined that there was
a meritorious securities class action against Clovis and the other Defendants. Lead Plaintiff then
retained Lead Counsel to act on behalf of Lead Plaintiff and a purported class.
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1. Appointment Of Lead Plaintiff And Lead Counsel
27. On January 19, 2016, M.Arkin (1999) LTD and Arkin Communications LTD,
through Lead Counsel, moved the Court for consolidation of the Medina, Kimbro, and Rocco
actions, appointment as Lead Plaintiff in the consolidated action, and approval of its selection of
Bernstein Litowitz Berger & Grossmann LLP as Lead Counsel. Dkt. No. 18. That motion was
fully briefed on February 9, 2016. While briefing was ongoing, Lead Plaintiff moved on February
2, 2016, to transfer the case pending in the Northern District of California, captioned Moran v.
Clovis Oncology, No. 16-cv-459, to this Court. Moran, Dkt. No. 27.
28. By order dated February 18, 2016, the Court consolidated the Medina, Kimbro, and
Rocco actions, appointed the Arkin Group as Lead Plaintiff in the consolidated action, and
approved of its selection of Bernstein Litowitz Berger & Grossmann LLP as Lead Counsel. (Dkt.
No. 43). Also on February 18, 2016, the Northern District of California granted Lead Plaintiff’s
motion to transfer the Moran action (Moran, Dkt. No. 35), which was subsequently consolidated
with this Action. Dkt. No. 77.
29. On March 14, 2016, the parties appeared at a status conference before Magistrate
Judge Hegarty. At that conference, Lead Counsel provided the Court with an outline of the case,
previewed some of the additional claims and allegations that Lead Counsel anticipated including
in the forthcoming consolidated complaint, and discussed scheduling and other case management
issues with Judge Hegarty.
30. After the March 14, 2016 hearing, the parties met and conferred to negotiate a
schedule governing Lead Plaintiff’s filing of a consolidated complaint and briefing related to
Defendants’ motions to dismiss that complaint. The parties submitted the proposed scheduling
order on April 1, 2016 (Dkt. No. 56), and the Court entered the order on April 4, 2016. Dkt. No.
58.
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2. Lead Counsel’s Investigation Prior To Filing The Amended Complaint
31. Following the Court’s February 18, 2016 order, Lead Plaintiff and Lead Counsel
continued their extensive investigation into the Class’ claims and potential claims against Clovis,
which, as noted, had begun immediately after the Company’s November 16, 2015 announcement.
Lead Counsel worked assiduously to discover key facts and develop the most salient and
persuasive elements of this highly technical case. Lead Counsel immersed themselves in medical,
statistical, and regulatory literature; researched industry practices, and reviewed multiple
regulatory filings and technical presentations issued by dozens of different drug makers; consulted
renowned experts; interviewed a host of witnesses; and performed necessary legal research.3
32. As a core part of its investigation, Lead Counsel engaged in a comprehensive
review of the scientific and regulatory literature relating to oncology drug studies. For instance,
in order to be able to identify the sources of the market’s alleged expectation that Clovis was
reporting ORR results comprised of confirmed responses, Lead Plaintiffs obtained and reviewed
the clinical trial protocols governing the studies from which Clovis reported data during the Class
Period, and the controlling clinical trial guidelines incorporated into those protocols called
RECIST. (As noted below, Clovis vigorously contested Lead Plaintiffs’ view that the market
expected that Clovis was reporting confirmed responses in its ORR results.)
3 It should be noted that the complaints filed in the consolidated Medina, Kimbro, Rocco, and Moran actions presented a different (and in Lead Counsel’s view, flawed) theory of the case – alleging in entirely conclusory fashion that Clovis’ statements reporting ORR results were false during the Class Period because they failed to disclose that the data the Company reported were “immature.” Lead Counsel recognized that these allegations failed to articulate the core merits of the Action, and did not present the Class’ claims in the strongest possible light. Therefore, when drafting the Amended Complaint, Lead Counsel transformed the central allegations of the case into what became a compelling narrative supporting claims for violations of the securities laws.
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33. Lead Counsel also reviewed the academic literature for scholarly commentary on
the RECIST criteria, texts on the conduct of clinical trials, manuals on clinical oncology outcome
assessments, and presentations and publications from dozens of drug manufacturers presenting
ORR data in connection with oncology drugs.
34. In addition, Lead Counsel reviewed reams of FDA and international regulatory
guidance, including NDA submissions, data plans, and labels for dozens of different cancer drugs.
Lead Counsel incorporated these materials into the Complaint’s allegations that the market’s
expectations that Clovis was reporting confirmed responses were grounded in Clovis’ own clinical
trial protocols, the RECIST standards with which Defendants assured investors Clovis complied,
the industry-wide practice of Clovis’ peers and competitors, and regulatory guidance and practice.
See, e.g., Dkt. No. 65 at ¶¶71-92.
35. Lead Counsel also engaged in a review of a plethora of materials authored, issued,
or presented by Clovis. These included Clovis’ periodic financial reports, hundreds of filings with
the SEC, conference call transcripts, registration statements, prospectuses, press releases, investor
presentations, and other publicly issued communications issued during the Class Period and
beyond. Moreover, Lead Counsel obtained and reviewed dozens of Clovis’ presentations at
medical conferences and in medical journals going back years prior to the Class Period. In order
to identify any ways in which Clovis’ reporting of rociletinib data deviated from its reporting of
data for its other investigational therapies, Lead Counsel’s review included presentations and
articles concerning not only rociletinib, but Clovis’ other drugs as well.
36. Lead Counsel further reviewed every news article, securities analyst report, and
item of market commentary concerning Clovis issued before, during, and beyond the Class Period
that it was able to obtain in order to gauge the impact of Clovis’ statements on the marketplace
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and assess the dynamics of the market for EGFR inhibitors, like rociletinib and Tagrisso, more
generally. Given that Clovis was followed by multiple analysts and that EGFR inhibitors garnered
significant analyst and media attention during the Class Period, the volume of these materials was
substantial. Based on its review of these materials, Lead Counsel determined that Defendants had
made more than 80 false statements during the nearly two-year Class Period. Dkt. No. 65 at ¶¶249-
381, 441-455.
37. In order to assist its investigation, Lead Counsel retained an expert statistician and
financial economists to perform analyses that helped bolster the Complaint’s allegations and guide
Lead Counsel’s presentation of the case.
38. Lead Counsel engaged Professor David Madigan, Dean of Columbia University’s
Faculty of Arts and Sciences, former Chair of Columbia’s Department of Statistics, and one of the
most widely-cited mathematicians in the world (whose work in biostatistics is particularly
acclaimed) to help bolster the Complaint’s allegations’ that Defendants’ statements touting
rociletinib’s ORR were misleading because, at the time their statements were made, rociletinib’s
confirmed ORR in the TIGER-X trial was significantly lower than the unconfirmed rate they
reported. As described in the Complaint, Professor Madigan analyzed each of Clovis’ disclosures
of new and updated data during the Class Period and used both paired tests (specifically a chi-
square test) and Bayesian analysis to determine the largest confirmed ORR Defendants could have
observed with any plausibility at a given time point. Broadly speaking, Professor Madigan’s
analysis asked, “given the 30% confirmed ORR reported in a sample of size x reported in
November 2016, what is the largest confirmed ORR one could plausibly expect to observe in the
samples of various sizes reported during the Class Period?”
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39. Lead Counsel also performed additional analyses using the schedule for performing
confirmatory scans set forth in the TIGER-X protocol to determine whether and to what extent
Defendants reported “responses” that Clovis scientists already knew failed to hold up on a second
scan. Thus, although Clovis’ internal clinical trial data were at that time unavailable to Lead
Counsel, Lead Counsel was able to use creative means to approximate what the data showed in
order to bolster falsity and scienter allegations.
40. Likewise, Lead Counsel retained NERA, a preeminent economic consulting firm
that is often retained by defendants in securities class actions, to provide analyses relating to loss
causation that aided Lead Counsel in drafting the Complaint.
41. Lead Counsel also conducted interviews with twenty-one confidential witnesses,
who were primarily former Clovis employees. Although Lead Counsel ultimately chose not to
directly quote confidential witness reports in the Complaint, these interviews provided valuable
insight and background, which aided Lead Plaintiff in its investigation and formulating the theory
of the case.
42. In addition to this factual research, Lead Counsel thoroughly researched Tenth
Circuit law applicable to the claims asserted and Defendants’ potential defenses thereto.
43. Just weeks before Lead Counsel was set to file the Complaint, the FDA and Clovis
disclosed new information about rociletinib’s safety profile that expanded the Class’ claims and
added additional facts that had to be incorporated into the forthcoming amended complaint.
Specifically, on April 8, 2016, the FDA released documents showing that rociletinib significantly
increased the risk of “serious or life threatening” adverse cardiovascular events – specifically, QT
prolongation (a dangerous type of heart arrhythmia) – among other things, and recommended “the
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inclusion of a Boxed Warning for the risk of QTc prolongation leading to Torsades de pointes” in
the rociletinib label.
44. Lead Counsel reviewed lengthy, data-laden submissions from both the FDA and
Clovis concerning this new development and transcribed a regulatory meeting held shortly after
these releases at which these new data were discussed. Lead Counsel worked quickly to synthesize
the April 8, 2016 disclosures concerning rociletinib’s safety, work with experts to analyze the
merits of expanding the Class Period, and incorporate new allegations into the Complaint.
3. The Complaint
45. On May 6, 2016, Lead Plaintiff filed and served a 152-page Consolidated Class
Action Complaint. Dkt. No. 65. The Complaint asserts claims against Defendant Clovis and the
Officer Defendants under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange
Act”) and Rule 10b-5 promulgated thereunder, and against the Officer Defendants under Section
20(a) of the Exchange Act. Dkt. No. 65 at ¶¶403-457. The Complaint also asserts claims under
the Securities Act of 1933 arising from the July 2015 Offering. Specifically, the Complaint asserts
claims under Section 11 of the Securities Act against Defendants Clovis, Mahaffy, and Mast, and
the Underwriter Defendants; claims under Section 12(a)(2) of the Securities Act against Defendant
Clovis and the Underwriter Defendants; and claims under Section 15 of the Securities Act against
Defendants Mahaffy and Mast, and the Venture Capital Defendants. Id. at ¶¶458-483.
46. The Consolidated Complaint added named plaintiff City of St. Petersburg
Employees’ Retirement System (“St. Petersburg”), a public retirement system which purchased
shares of Clovis stock in the July 2015 Offering and had standing to assert the Securities Act
claims. Id. at ¶¶34, 459. 468, 478. This named plaintiff was added because Lead Counsel
anticipated – as it turned out, correctly – that Defendants would raise standing arguments in an
attempt to obtain dismissal of the Securities Act claims.
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47. By way of summary, and as the Court is aware, the Complaint alleges, among other
things, that Defendants reported misleadingly inflated trial results purporting to show that
rociletinib was at least as effective in shrinking tumors as a key competing drug. The Complaint
also alleges that Defendants falsely characterized rociletinib as “safe” and “well-tolerated,” while
concealing from investors clinical trial data showing the drug increased heart risk. The Complaint
further alleges that the price of Clovis common stock was artificially inflated as a result of
Defendants’ allegedly false and misleading statements and omissions, and declined when the truth
was revealed in two separate disclosures on November 16, 2015 and April 8, 2016.
48. Statements About Rociletinib’s Efficacy. The Complaint alleges that throughout
the Class Period, Defendants reported clinical trial results purporting to show that rociletinib’s
ORR was approximately 60% – similar to the ORR Astra Zeneca reported for Tagrisso,
rociletinib’s chief competitor – leading investors to believe that rociletinib would enjoy a market
share roughly equal to Tagrisso’s. Id. at ¶¶7, 353. The Complaint alleges that, unbeknownst to
investors, Defendants reported ORRs for rociletinib that were based primarily on “unconfirmed”
responses, in contravention of the Company’s own published clinical trial protocols, the
controlling “RECIST” clinical trial standards with which Defendants assured investors Clovis was
complying, the industry-wide practice of Clovis’ peers and competitors, and FDA guidance. Id.
at ¶¶71-92. The Complaint also alleges that Defendants failed to disclose that at the time their
statements were made, rociletinib’s “confirmed” ORR in the TIGER-X trial was significantly
lower than the unconfirmed rate Defendants touted and, thus, lower than the confirmed rate Astra-
Zeneca reported for Tagrisso. Id. at ¶13.
49. Accordingly, the Complaint alleges, Defendants’ misstatements and omissions thus
misled investors about rociletinib’s demonstrated efficacy and its commercial and competitive
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viability relative to Tagrisso. Id. The Complaint further alleges that the price of Clovis common
stock was artificially inflated as a result of these allegedly false and misleading statements and
omissions, and declined by approximately 70% when Clovis disclosed the truth about rociletinib’s
efficacy on November 16, 2015. Id. at ¶15.
50. Statements About Rociletinib’s Safety Profile. The Complaint also alleges that
Defendants touted rociletinib’s safety profile during the Class Period, claiming Clovis’ data
showed rociletinib was “well tolerated,” that relatively few patients discontinued rociletinib due
to adverse side effects, and that the “primary side effect that comes with rociletinib” was “easily
managed” hyperglycemia. Id. at ¶¶122-23, 337. The Complaint alleges that Clovis failed to
disclose that rociletinib safety data (in Clovis’ possession since at least mid-January 2015) showed
the drug significantly increased the risk of “serious or life threatening” QT prolongation more than
any other competing therapy and far more than Tagrisso, and that the drug’s adverse side effects
had forced more than half of all patients taking it to interrupt, modify, or discontinue therapy. Id.
at ¶¶16-17. The Complaint alleges that Defendants’ allegedly false and misleading statements and
omissions about rociletinib’s safety artificially inflated the price of Clovis common stock, and that
the price of Clovis stock declined by 17% on April 8, 2016, when the truth about rociletinib’s
safety profile was revealed. Id. at ¶18.
B. Defendants’ Extensive Motions To Dismiss The Complaint
51. On July 27, 2016, Defendants filed three detailed and voluminous motions to
dismiss the Complaint, including more than 1000 pages of briefing and exhibits in support of those
motions. Dkt. Nos. 98, 103, 105. Along with their motion to dismiss, the “Clovis Defendants”
(Defendants Clovis, Mahaffy, Allen, Ivers-Read, and Mast) also submitted a 55-document
appendix, consisting of nearly 1,000 pages of clinical trial standards, FDA guidance, analyst
reports, and numerous other documents, as well as briefing in support of their motion requesting
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that the Court take judicial notice of these documents for purposes of adjudicating their motion to
dismiss. Dkt. No. 104. Defendants challenged the sufficiency of the Complaint with respect to
nearly every element of Lead Plaintiff’s claims. Defendants argued, among other things, that the
Complaint failed to allege: that their statements were false or misleading, that they acted with
scienter, that their conduct caused Lead Plaintiff’s losses, standing, and “control,” under either the
Securities or the Exchange Acts.
52. Defendants’ motions to dismiss were more akin to motions for summary judgment
and required an enormous undertaking in order to respond to them effectively. They did not simply
challenge the legal sufficiency of the Complaint, they deployed numerous complex arguments
based on nuanced understanding of highly-technical scientific guidance and substantial clinical
trial results. These arguments concerned, among other things, the proper interpretation and
application of the RECIST criteria, the process for performing confirmatory scans pursuant to
Clovis’ clinical trial protocols, and the import of certain FDA guidance (some of which was
introduced for the first time in their appendix).
53. Indeed, Defendants even proffered facts about Clovis’ marketing efforts and
Defendant Mahaffy’s relationship with Defendant Allen after the latter’s departure from Clovis.
See, e.g., Dkt. No. 105 at 22, 66-67. Among other things:
(a) Defendants argued that the Complaint failed to adequately allege their statements were misleading when made, but rather alleged only fraud by hindsight. Among other things, Defendants argued that the Complaint failed to allege that rociletinib’s confirmed ORR was lower than its unconfirmed ORR during the Class Period. Dkt. No. 105 at 2.
(b) Defendants asserted that “unforeseen intervening events,” including changes in regulatory guidance not relating to response confirmation given to the Company, drove the dismal confirmed ORR results reported on November 16, 2015. Id.
(c) Defendants argued that the RECIST criteria that governed Clovis’ reporting obligations during the Class Period did not require confirmation of reported responses while the relevant clinical trials were ongoing. Among other things,
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Defendants argued that confirmation was not required under RECIST because the “best responses” comprising an ORR cannot be identified until the trial is concluded. Notably, Defendants spent dozens of pages articulating a detailed, highly-factual argument in support of this claim, and relied on scores of exhibits (few of which were referenced in the Complaint). Id. at 10, 38, 59.
(d) Defendants also mounted a “truth on the market” argument, asserting that their statements characterizing data from the relevant clinical trial as “preliminary,” “interim,” “a snapshot,” or “immature” communicated to investors that Clovis was reporting unconfirmed ORRs. Id. at 2, 11, 38-40.
(e) Defendants argued that all of their statements, apart from those reporting numerical ORR results, were both inactionable opinions and vague expressions of optimism. Defendants also argued that some of their statements were inactionable forward- looking statements. Id. at 35-37, 48-52.
(f) Defendants launched a broad, sweeping attack on the Complaint’s scienter allegations, emphasizing, in particular, that the Complaint failed to allege a plausible motive. Id. at 55-68.
(g) The Underwriter Defendants argued that the Complaint failed to allege that any named Plaintiff had standing to assert claims under Section 12(a)(2). Dkt. No. 103 at 9-13.
(h) The Venture Capital Defendants argued that the Complaint failed to allege they were “control persons” as defined in Section 15 of the Securities Act. Dkt. No. 98 at 7-11.
54. On September 23, 2016, Lead Plaintiff filed a 100-page omnibus brief responding
to Defendants’ three motions to dismiss. Dkt. No. 121. Lead Plaintiff also filed a brief opposing
the Clovis Defendants’ motion for judicial notice with respect to a number of documents, and
moved the Court for judicial notice of seven documents responsive to the fact issues raised in
Defendants’ motions to dismiss. Dkt. No. 119.
55. Because Defendants’ arguments were highly fact-intensive, researching and
drafting Lead Plaintiff’s opposition was a substantial undertaking. Not only did Lead Counsel
have to research the law on every disputed element of their claims (including conducting a wide-
ranging survey of securities fraud cases involving clinical drug trials), but also scoured the
medical, statistical, financial, and regulatory literature referenced in both the Complaint and
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Defendants’ appendix in order to marshal evidence to counter Defendants’ factual assertions.
Among other things, Lead Plaintiff argued that:
(a) The Complaint did not plead fraud by hindsight. The Complaint alleged Defendants failed to disclose then-existing facts about Clovis’ TIGER-X data and the manner in which they reported it during the Class Period. Dkt. No. 121 at 32- 37.
(b) The Complaint adequately alleges that rociletinib’s confirmed ORR was lower than its unconfirmed ORR during the Class Period, and, indeed, that Mahaffy admitted this was so when he acknowledged that at all times during the Class Period, Clovis presented ORRs “based primarily on unconfirmed responses.” Moreover, the Complaint sets out a statistical analysis, performed by the former Chair of Statistics at Columbia University, confirming that rociletinib’s confirmed ORR almost certainly fell meaningfully below its unconfirmed ORR at each relevant time point during the Class Period. Id. at 48.
(c) Defendants’ argument that “unforeseen intervening events” were responsible for the ORR results reported at the end of the Class Period should be rejected. Among other things, a close examination of the data reported on November 16, 2015 showed that the “changed” regulatory guidance Defendants’ cited did not meaningfully affect those results. Id. at 38-40.
(d) Defendants’ arguments that RECIST does not require confirmation of responses included in ORR while a trial is ongoing were specious. Among other things, Defendants’ argument that “best responses” are not ascertainable until the conclusion of a clinical trial was contradicted by Defendants’ own statements during the Class Period, by the language of RECIST, and by the fact that Clovis’ competitors (and even Clovis itself) reported confirmed ORRs with respect to interim trial data. Id. at 44-45.
(e) Defendants’ “truth on the market” argument should be rejected because (1) the terms “interim,” “preliminary,” and “immature” do not mean unconfirmed; (2) the market’s shocked reaction to Clovis’ disclosure that it was reporting unconfirmed ORR results, as well as the reaction of sophisticated oncologists, belies the claim that investors were aware of Clovis’ reporting methodology. Id. at 45-46.
(f) Defendants’ statements, for instance that the “response rates [for rociletinib and Tagrisso] are clustered together” and that the Company had observed “durable RECIST responses,” were not opinions and did not constitute puffery. Moreover, not only did the statements Defendants challenged as forward-looking actually concern then-existing facts, the “risk disclosures” Defendants cited were all generic. Id. at 58-66.
(g) The Complaint adequately alleged scienter, including allegations that Clovis’ reporting of trial data deviated diametrically from its own protocols and from
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governing standards, Defendants made statements explicitly comparing rociletinib’s unconfirmed results with confirmed results reported by its competitors, Defendants continued to report positive results to investors even after privately reporting negative results to regulators, Clovis’ Chief Medical Officer departed under suspicious circumstances, and Clovis executives engaged in suspicious stock transactions. Moreover, the Complaint alleged a plausible motive – namely, that Clovis was motivated to report positive rociletinib results in order to keep Clovis afloat and continue to raise financing on favorable terms while accelerating the development of other drugs. Id. at 68-90.
(h) The Complaint adequately alleged control person claims and standing under the Securities Act. Id. at 93-97.
56. Defendants served their reply papers on October 11, 2016 (the Venture Capital
Defendants served their reply papers on October 14, 2016), which included 60 pages of additional
briefing. Dkt. Nos. 123-25. The Clovis Defendants also filed a reply brief in support of their
motion requesting judicial notice. Dkt. No. 122.
C. Lead Plaintiff’s Successful Efforts To Stay A Competing Action That Threatened Its Ability To Effectively Prosecute This Action
57. While Defendants’ motions to dismiss were pending, and in the midst of Lead
Plaintiff’s efforts to file opposition briefing to those motions, Lead Plaintiff also successfully
briefed and argued a motion to stay Electrical Workers Local 357 Pension and Health & Welfare
Trusts v. Clovis Oncology, Inc., No. 537068 (Cal. Super.), a later-filed putative class action filed
in California state court that asserted the same Securities Act claims asserted in the Complaint.
Lead Plaintiff recognized that the pendency of the Electrical Workers action would likely interfere
with the Class’ ability to effectively prosecute its claims and limit its ability to recover from
Defendants. Lead Plaintiff therefore acted swiftly to protect the Class’ interests.
58. On August 15, 2016, Lead Plaintiff moved to stay the later-filed Electrical Workers
action, arguing that a stay was warranted under California state law because Electrical Workers
was duplicative of this Action, a stay would conserve judicial and party resources, failing to impose
a stay would create an intolerable risk of inconsistent decisions that could significantly impact the
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progress of this litigation, and because this Court had a far more significant interest in adjudicating
issues of federal law concerning a Colorado company than a California state court.
59. The Electrical Workers opposed Lead Plaintiff’s motion on September 12, 2016.
Three days later, on September 15, 2016, Lead Counsel filed a thoroughly researched reply brief.
Lead Counsel then devoted significant energies to preparing for oral argument on its motion, held
on September 23, 2016 – the same day that Lead Plaintiff’s opposition to Defendants voluminous
motions to dismiss this case were due. A partner from Lead Counsel’s California office attended
the oral argument and argued on behalf of the Class. The California court issued a ruling from the
bench staying the Electrical Workers action. See Ex. 24.
60. Similarly, in connection with an individual action filed in New York State court
almost a year after this Action, Lead Plaintiff took steps, including submitting correspondence to
the state court, to prevent the individual claimant from derailing the litigation of this case.
D. The Court’s Opinion Largely Denying Defendants’ Motions To Dismiss
61. On February 9, 2017, the Court issued a detailed 77-page Opinion and Order
denying in part and granting in part Defendants’ motions to dismiss the Complaint. The Court
dismissed Lead Plaintiff’s claims against Defendant Ivers-Read and the Venture Capital
Defendants. (Dkt. No. 126 at 69-70). The Court also dismissed claims arising from Defendants’
statements characterizing rociletinib or rociletinib efficacy data as “promising,” “very active,”
“very compelling” or “compelling,” “impressive,” “striking,” “surprising,” “encouraging,” and
“not noise.” Id. The Court also dismissed, without prejudice, Lead Plaintiff’s claims against the
Underwriter Defendants under Section 12(a)(2). Id. The Court otherwise sustained the
Complaint’s allegations in full. Id.
62. Among other things, the Court held that the Complaint adequately alleged the
clinical trial standards Clovis adopted for its rociletinib trial required Defendants to report the data
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they withheld from investors. Id. at 24-33, 55. Specifically, based on the Court’s understanding
of RECIST from the pleadings, the Court held that “under RECIST and the TIGER-X protocols,
even an interim ORR should have been based upon confirmed responses.” Id. at 24-33, 37-38, 54-
55. The Court also rejected Defendants’ “truth on the market” arguments, holding that
Defendants’ characterizations of the rociletinib data as “preliminary” and “interim” “did not
magically change the misleading nature of the alleged statements.” Id. at 37-38. The Court also
rejected Defendants’ argument that the Complaint failed to plead a plausible scienter theory,
holding that “it is more than logical for plaintiffs to assert that the Clovis Defendants acted in the
hope that positive results would overtake negative ones because, based upon the Clovis
Defendants’ own contentions, this is precisely what they did.” Id. at 52-55.
63. At the same time, the Court also made clear that Defendants could prevail at
summary judgment or at trial if, among other things, discovery established that rociletinib’s
confirmed response rate tracked the publicly reported ORR (comprised of unconfirmed results)
throughout the Class Period, if they showed they reasonably believed that RECIST did not require
confirmation of interim responses, or if they showed they believed the FDA would make its
approval and labeling decisions on the basis of rociletinib’s unconfirmed ORR. Id. at 33, 36-37.
Thus, while the Court was persuaded that the Complaint should largely be sustained, it emphasized
that discovery could provide Defendants with numerous potential paths to success at summary
judgment or at trial.
64. The Court’s thoughtful, comprehensive analysis focused on the key issues in the
Action, and provided the parties with valuable insight into the issues that allowed them to continue
to honestly assess the merits of their respective cases.
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E. The Amended Complaint And Lead Plaintiff’s Opposition To Non-Lead Underwriters’ Motion To Dismiss
65. On February 22, 2017, Lead Plaintiff filed an Amended Consolidated Class action
Complaint (“Complaint”), repleading its Section 12(a)(2) claims against the Underwriter
Defendants, as permitted by the Court’s February 9, 2017 Opinion and Order. Lead Plaintiff,
following the Court’s guidance, amended the Complaint to allege that the July 2015 Offering was
a “firm commitment” offering and that named plaintiff St. Petersburg purchased shares on the date
of the offering directly from lead underwriter Defendant JPMorgan Securities.
66. On March 17, 2017, the remaining Underwriter Defendants (“Non-Lead
Underwriters”) moved to dismiss the Amended Complaint’s repleaded Section 12(a)(2) claims
against them. The Non-Lead Underwriters argued that the Section 12(a)(2) claims against them
must be dismissed because St. Petersburg did not purchase Clovis securities directly from them.
Def.Br. at 5-11.
67. On April 7, 2017, Lead Plaintiff opposed the Non-Lead Underwriters’ motion to
dismiss. Lead Plaintiff argued that in the class action context, where the class plaintiff represents
all purchasers of securities in an offering, a plaintiff need not allege it purchased from each and
every underwriting in the offering syndicate in order to have standing under Section 12(a)(2). Lead
Plaintiff argued that this was particularly true in the context of a “firm commitment” underwriting,
in which all participating underwriters take title to the underwritten securities and sell those
securities directly to the investing public. Finally, Lead Plaintiff argued that the Non-Lead
Underwriter’s position was at odds with the purposes of both the PSLRA and Fed. R. Civ. P. 23.
68. The Non-Lead Underwriters filed their reply papers on April 21, 2017. The Non-
Lead Underwriters’ motion to dismiss the Amended Complaint remained pending at the time the
Court stayed proceedings in the Action in light of the proposed Settlement.
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F. Lead Plaintiff’s Discovery Efforts
69. After the Court issued its February 9, 2016 opinion and order and a February 10,
2016 order lifting the discovery stay imposed by the PSLRA, Lead Plaintiff and Lead Counsel
immediately began conducting discovery. Given the scope of Lead Plaintiff’s claims and the
highly technical nature of the subject matter at issue in this Action, factual development was an
enormous undertaking. To prove its allegations, Lead Plaintiff needed to obtain and develop
evidence – including expert evidence – on a multitude of complex medical, statistical, regulatory,
financial, and other issues.
70. Moreover, the Action asserted claims against eight different Defendants, including
four different underwriters who participated in the July 2015 Offering, and alleged a nearly two-
year Class Period. The Action implicated, and Lead Plaintiff was seeking discovery from, dozens
of the Clovis and Underwriter Defendants’ employees, as well as numerous third parties, including
the FDA and the principal investigators of the relevant rociletinib clinical trials.
1. Retention Of Experts
71. As part of investigating its claims, drafting pleadings, and preparing for Discovery
Lead Plaintiff and Lead Counsel identified and retained a remarkable team of experts in
biostatistics, radiology and oncologic imaging (including the interpretation and application of
RECIST), medical oncology, FDA New Drug Application review, investment banking, and
financial economics. Lead Counsel devoted considerable effort to sifting through academic and
scientific journals, and speaking with prominent members of the scientific community (including
scientists at the National Cancer Institute in Maryland and the Canadian Cancer Trials Group) in
order to identify those individuals whose expertise perfectly fit the evidentiary demands of this
Action.
72. Lead Plaintiff eventually retained a team of experts that included:
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(a) Professor David Madigan (biostatistics): Executive Vice President and Dean of Faculty of Arts and Sciences and Professor of Statistics at Columbia University. Professor Madigan is the Former Chair of Statistics at Columbia and one of the most widely cited mathematicians in the world. Professor Madigan specializes in biostatistics and has testified in numerous cases involving pharmaceutical products.
(b) Dr. Lawrence H. Schwartz (interpretation and application of RECIST; radiology and oncologic imaging): Chair of the Department of Radiology of Columbia University College of Physicians & Surgeons and radiologist-in-chief at New York-Presbyterian Hospital/Columbia University Medical Center. Dr. Schwartz is a co-author of the RECIST v. 1.1 standards that are at issue in this Action.
(c) Dr. Mark J. Ratain (medical oncology): Professor of Medicine at University of Chicago Medical School; Associate Director for Clinical Sciences, Comprehensive Cancer Center. Dr. Ratain is an expert in the use of investigational agents to treat advanced solid tumors.
(d) Dr. David Tabak (financial economics): managing director at NERA Economic Consulting, a firm that is typically retained by corporate defendants in securities litigation. Dr. Tabak has extensive experience in the areas of securities class action damages and market efficiency, and has published prolifically on both subjects.
(e) Dr. Akhilesh Nagaich (regulatory): senior regulatory scientist with over ten years’ experience as a principal investigator, group leader, and reviewer of New Drug Applications, with expertise in oncological products. Dr. Nagaich reviewed NDAs for oncology products at FDA for more than eight years; prior to his tenure at FDA, Dr. Nagaich did postdoctoral work at the Center for Cancer Research at the National Cancer Institute.
(f) James F. Miller (investment banking): served as Head or Co-Head of Equity Capital Markets at Deutsche Bank Securities, Lehman Brothers, and Dresdner Kleinwort Wasserstein, during his nearly 20-year career as an investment banker. At each of these firms, Mr. Miller was a member of the commitment committee for equity offerings, which is the committee within an investment bank that approves the bank’s participation in an equity offering. Mr. Miller has significant experience providing expert testimony about the adequacy of underwriters’ due diligence.
(g) Loop Capital (ability to pay/financial condition): Lead Counsel retained investment banking professionals at Loop Capital to assist in evaluating Clovis’ ability to fund a judgment or a settlement materially greater than the proposed Settlement. The professionals at Loop Capital are experienced in valuation, dilution, share issuance, and public company acquisitions.
73. Throughout discovery, Lead Counsel continued to work closely with experts and
seek their guidance and input. In particular, Lead Counsel conferred extensively with these experts
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on the application of RECIST to the clinical trials at issue in this Action, calculation of ORR,
standard practice with respect to data reporting in the medical community, FDA guidance and
practice concerning clinical endpoint selection, questions of materiality, and many of the particular
arguments Defendants raised in their lengthy mediation submissions.
2. Extensive Document Discovery And Review, And Interview Of Witnesses
74. On February 27, 2016, Lead Plaintiff served its first set of document requests on
the Clovis Defendants. These requests sought, among other things, documents concerning: (a)
Clovis’ rociletinib clinical trials ongoing during the Class Period, including raw clinical trial data;
(b) the use, analysis, or reporting of confirmed responses by Clovis or any person; (c) RECIST;
(d) the assessment or analysis of QT prolongation; (e) Tagrisso, including any comparison between
the drugs’ safety or efficacy; (f) communications with regulators and principal investigators
concerning rociletinib; (g) Clovis’ public presentations of rociletinib data during the Class Period;
(h) certain Clovis officers’ transactions in Clovis securities; and (i) the July 2015 Offering.
75. Subsequently, on April 19, 2017, Lead Plaintiff served its first set of document
requests on the Underwriter Defendants. These requests sought, among other things, documents
concerning: (a) underwriting agreements; (b) underwriter compensation; (c) due diligence,
including checklists, memoranda, and due diligence policies and guidelines; (d) “board books”;
(e) “road shows” or other efforts to sell, market, or distribute Clovis securities; and (f) valuations
of the underwritten securities.
76. Lead Plaintiff also successfully sought extensive third party discovery from the
FDA. On March 22, 2017, Lead Counsel served a subpoena on the FDA, seeking, among other
things, documents concerning regulatory filings relating to rociletinib, communications with
Clovis about rociletinib, and FDA guidance on relevant efficacy and safety endpoints. Knowing
29 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 36 of 83
that the FDA may choose to treat a subpoena as a FOIA request, Lead Counsel also prepared a
“Touhy letter” to the agency, providing background regarding the Action, identified the nature of
the documents sought with as much particularity as possible, and explained the requested
documents’ relevance to the Action. Lead Counsel subsequently worked with the FDA to facilitate
the production of responsive documents. To date, the FDA has produced nearly 7,000 pages in
response to Lead Plaintiff’s subpoena.
77. Lead Counsel engaged in extensive meet-and-confers and exchanged
correspondence with both sets of Defendants and with the FDA concerning these document
requests, as a result of which the parties’ negotiated the scope of document production responsive
to Lead Plaintiff’s requests, including discussing any objections to Lead Plaintiff’s requests,
proposing custodians whose files would be searched, and search terms that would be used to
identify documents.
78. Lead Counsel developed a detailed process for reviewing documents produced in
the litigation and sharing information among counsel and experts. Lead Counsel developed
manuals and guidelines for the review and “coding” of documents, prepared chronologies of
events, lists of key players, and a glossary of relevant scientific and technical terms and acronyms.
These materials, which were updated and refined as document discovery continued, were provided
to the team of attorneys responsible for reviewing the documents. In addition, Lead Counsel held
regular training sessions to review substantive issues in the case and ensure that new developments
were shared widely across the team.
79. In reviewing the documents, attorneys were tasked with making several analytical
determinations as to the documents’ importance and relevance. Specifically, they determined
whether the documents were “hot,” “relevant,” or “irrelevant.” They also identified particular
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issues implicated by a document – such as rociletinib’s efficacy or safety, comparisons of
rociletinib to Tagrisso, evidence of scienter, and RECIST – and created tags in the database to
identify potential deponents with respect to whom the document would be relevant so that the
documents could be easily retrieved when preparing for the depositions of those employees.
80. For documents identified as “hot,” the attorneys typically explained their
substantive analysis of the document’s importance. Specifically, the attorneys made electronic
notations on the document review system explaining what portions of the documents were hot,
how they related to the issues in the case, and why the attorney believed that information to be
significant. Lead Counsel held regular meetings to discuss documents of particular significance
as a group.
81. Lead Counsel reviewed documents produced by the FDA and by Clovis in
connection with its mediation submissions, as discussed below. In addition, Lead Counsel also
collected and reviewed:
(a) over 600 scientific and medical journal articles totaling more than 5,000 pages;
(b) over 550 analyst reports, totaling more than 7,000 pages;
(c) multiple filings with the FDA by both Clovis and its industry peers; and
(d) dozens of Clovis’ and Astra Zeneca’s presentations at medical conferences –
collectively totaling over 15,000 pages.
82. All of this was done in an effort to develop evidence concerning the assessment of
responses, the calculation of ORR, the standards and practices for reporting ORR in the medical
community, FDA guidance and practice with respect to labeling and approval of oncology drugs,
and other subjects important to the litigation.
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83. Lead Plaintiff and Lead Counsel also worked to produce discoverable material to
Defendants. Pursuant to Fed. R. Civ. P. 26(a), Lead Plaintiff and Lead Counsel prepared detailed
initial disclosures, which they served on Defendants on February 28, 2017. Lead Counsel also met
with Lead Plaintiff to develop a logistical plan for gathering and producing documents in Lead
Plaintiff’s custody or control.
84. As previously noted, as a condition of the settlement Lead Counsel and Lead
Plaintiff required that Clovis submit to extensive discovery on both financial issues and merits
issues, in order to assure the reasonableness of the settlement. This discovery was extremely
important, and Lead Counsel conducted a thorough and comprehensive review. As discussed
below, Lead Counsel’s work reviewing that discovery further confirms the reasonableness of the
Settlement.
85. Lead Counsel held more than one dozen meet and confers with the Clovis and
Underwriter Defendants in order to reach agreement concerning the scope of this discovery, and
ultimately insisted that Defendants’ productions largely satisfy Lead Plaintiff’s initial document
requests. As a result of Lead Counsel’s efforts, the Clovis and Underwriter Defendants (as well
as the FDA) produced more than 350,000 documents (in excess of 2.6 million pages) and
approximately 40 gigabytes of raw clinical trial data to Lead Plaintiff.4
86. Lead Counsel also ensured that the documents were highly relevant and focused on
the core elements of the claim. Defendants’ production included documents concerning (a) Clovis’
rociletinib clinical trials ongoing during the Class Period, including raw clinical trial data; (b) the
use, analysis, or reporting of confirmed responses by Clovis or any person; (c) RECIST; (d) the
4 To put some context around the enormous volume of information contained in 40 gigabytes of data, the 40 gigabytes of raw clinical data, if printed out in hardcopy, would equal approximately 40 pickup trucks full of paper.
32 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 39 of 83
assessment or analysis of QT prolongation; (e) Tagrisso, including any comparison between the
drugs’ safety or efficacy; (f) communications with regulators and principal investigators
concerning rociletinib; (g) Clovis’ public presentations of rociletinib data during the Class Period;
(h) certain Clovis officers’ transactions in Clovis securities; (i) the July 2015 Offering; (j) Clovis’
financial condition; (k) securities analyst coverage of Clovis; (l) meetings of Clovis’ board of
directors.
87. Lead Counsel also continued to press the FDA for documents and received several
thousand additional pages in discovery.
88. Once Lead Counsel obtained these many documents, they had to be reviewed and
analyzed. Given the enormous magnitude of the production and the complexity of the issues they
covered, Lead Counsel sought ways to ensure that the documents were adequately reviewed to
ensure the reasonableness of the Settlement. To efficiently identify the most relevant documents,
Lead Counsel developed several search algorithms in order to identify the most relevant documents
and prioritize their review.
89. Attorneys from Lead Counsel then reviewed, analyzed and categorized the
documents in the electronic database. In reviewing these documents, the attorneys were tasked
with making analytical determinations as to their importance and relevance to the complex issues
involved in the litigation. They determined whether the documents were “hot” or on a scale of
lower-order relevance. They also identified particular issues implicated by a document – such as
rociletinib’s efficacy or safety, comparisons of rociletinib to Tagrisso, evidence of scienter, and
RECIST – and created tags in the database so that the documents could be used to identify
witnesses for interview and to meaningfully conduct the interviews.
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90. For documents identified as “hot,” Lead Counsel presented these documents on a
weekly basis at team meetings. Prior to the meetings, attorneys made notations on the document
review system, explaining what portions of the documents were hot, how they related to the issues
in the case, and why the attorney believed the information in the document to be significant. For
certain documents, more substantive analysis was prepared in advance of the weekly meetings. At
these meetings, the documents were analyzed and discussed with senior members of Lead
Counsel’s litigation team. Attorneys at these meetings asked questions and discussed additional,
similar document’s that had been discussed. Through these meetings, Lead Counsel ensured that
attorneys involved in this review understood the developing nature of the evidence and focused
document review on the key tasks of assessing whether the Settlement was reasonable, as well as
preparing for witness interviews.
91. While certain of these documents would have been helpful to Lead Plaintiff in
attempting to prove its claims, other documents (it is fair to say) supported Defendants’ version of
events – i.e., that Defendants at worst acted negligently but always in good faith and without an
intent to commit securities fraud.
92. With Professor Madigan’s assistance, Lead Counsel also conducted a time-
consuming review of Clovis’ 40 gigabytes of raw internal clinical trial data. The process for
organizing, decoding, and interpreting these data was complex and arduous. Lead Counsel
conferred with Clovis’ counsel on several occasions in order to obtain necessary details about the
variables populating Clovis’ database, eventually obtaining the computer code Clovis used to
generate its analyses during the Class Period.
93. At Lead Counsel’s direction, Professor Madigan used this information to develop
“SAS programs” to mine Clovis’ database and derive relevant efficacy and safety metrics,
34 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 41 of 83
including ORR, at each of the relevant “data cutoff” points identified in the Complaint. The degree
of difference between confirmed and unconfirmed ORR results at each time point were then
assessed using a variety of statistical tests and techniques. Lead Counsel regularly reviewed and
discussed the results of these analyses with Professor Madigan over months of ongoing analysis..
94. In addition, Lead Counsel conducted interviews with key Clovis personnel with
knowledge of the events in litigation. These interviews included:
(a) Dan Muehl, Clovis’ Senior Vice President of Finance and Principal Financial and Accounting Officer, who was interviewed on July 19, 2017 and whose interview addressed Clovis’ ability to fund a settlement or pay a judgment in excess of $142 million, and the effect such an expenditure would have on Clovis’ ongoing operations, both currently and as of June 18, 2017;
(b) Jeff Isaacson, Clovis’ Senior Director of Statistics and Data Management and the most senior statistician working on the relevant clinical trials. Lead Counsel discussed, among other things, Clovis’ understanding concerning the application of RECIST’s confirmation requirement to the data reported during the Class Period, Clovis’ compliance with applicable clinical and industry clinical trial standards, Clovis’ internal trial data (including comparisons between confirmed and unconfirmed ORR), Clovis’ understanding of data reported for competing drugs, the market for rociletinib and the materiality of Defendants’ statements, Clovis’ communications about rociletinib during the Settlement Class Period, Clovis’ understanding of the criteria by which the FDA would evaluate rociletinib for approval and labeling, and rociletinib’s safety profile;
(c) Lindsey Rolfe, Clovis’ Chief Medical Officer, concerning, among other things, Clovis’ understanding concerning the application of RECIST’s confirmation requirement to the data reported during the Class Period, Clovis’ compliance with applicable clinical and industry clinical trial standards, Clovis’ internal trial data, Clovis’ understanding of data reported for competing drugs, the market for rociletinib and the materiality of Defendants’ statements, Clovis’ communications about rociletinib during the Settlement Class Period, Clovis’ understanding of the criteria by which the FDA would evaluate rociletinib for approval and labeling, the July 2015 Offering, and rociletinib’s safety profile;
(d) Patrick Mahaffy, Clovis’ CEO, concerning, among other things, Clovis’ understanding concerning the application of RECIST’s confirmation requirement to the data reported during the Class Period, Clovis’ compliance with applicable clinical and industry clinical trial standards, Clovis’ internal trial data, Clovis’ understanding of data reported for competing drugs, the market for rociletinib and the materiality of Defendants’ statements, Clovis’ communications about rociletinib during the Settlement Class Period, Clovis’ understanding of the criteria
35 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 42 of 83
by which the FDA would evaluate rociletinib for approval and labeling, the July 2015 Offering, and rociletinib’s safety profile.
95. In the course of its efforts, Lead Plaintiff continued to consult with its team of
experts and sought their aid in interpreting internal Clovis documents. Lead Counsel received and
reviewed statistical analyses, damages models and estimates, and held conference calls with the
expert team on a regular basis.
96. In Lead Plaintiff’s and Lead Counsel’s view, the extensive discovery effort was
worthwhile. It has confirmed, in our view, that the Class would face significant obstacles to a
recovery in excess of the Settlement. As discussed below, Lead Plaintiff and Lead Counsel believe
that Clovis’ ability to fund a settlement or pay a judgment in excess of $142 million without
significantly impairing its operations, and even threatening its ability to continue as an ongoing
concern, are speculative at best. Moreover, discovery also confirms that the Class would face
substantial risks in proving Clovis’ liability, as discussed in further detail below.
3. Pre-Trial Schedule And April 2017 Court Hearing
97. At the same time that Lead Plaintiff and Lead Counsel were working diligently to
obtain and review documents from relevant parties, they also began drafting a detailed proposed
pretrial scheduling order and Fed. R. Civ. P. 26(f) report. Counsel for the parties held two formal
Rule 26(f) conferences on March 3, 2017 and on March 22, 2017 in order to negotiate the details
of the schedule and the parameters for discovery in the Action. Thereafter the parties continued
to correspond extensively in an effort to reach agreement on disputed issues.
98. On April 11, 2017, Lead Counsel traveled to Colorado to appear at a Fed. R. Civ.
P. 16(b) conference held by the Court. At the conference, Lead Counsel discussed the details of
the parties’ Rule 26(f) report with Magistrate Judge Hegarty, including the scope of depositions
36 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 43 of 83
and calculation of damages. That same day, the Court entered the proposed pretrial scheduling
order. See Dkt. No. 145.
99. As part of its efforts to prepare a comprehensive proposed pretrial scheduling order,
Lead Counsel also drafted a proposed order setting forth the protocol for the production of
electronic information and proposed protective order. Again, Lead Counsel and Defendants met
and conferred extensively to reach agreement on the contents of these proposed orders. The Court
entered these orders on April 20, 2017. See Dkt. Nos. 148 & 149.
III. THE SETTLEMENT NEGOTIATIONS AND TERMS OF THE SETTLEMENT
100. The Settlement here was achieved through fair, honest, and vigorous negotiations
between the parties’ principals, under the supervision of a highly experienced mediator and with
the guidance and input of experienced and informed counsel. Indeed, in my opinion the deep level
of personal involvement exhibited by the Lead Plaintiff in this case is unique, even among highly-
involved sophisticated Lead Plaintiffs, and further confirms the benefits of the Settlement to the
Class
101. Prior to the Court’s issuance of its February 9, 2017 Opinion and Order, the parties
retained retired United States District Court Judge Layn Phillips to act as mediator. Judge Phillips
is an extremely well-regarded mediator who has an extensive staff, dozens of years of experience
as a federal prosecutor, federal District Court judge (who has sat by designation on the Tenth
Circuit Court of Appeals in Denver, Colorado), and as a partner at an extremely high profile law
firm. He has successfully mediated hundreds of sophisticated litigations. See
http://www.phillipsadr.com; see also Declaration of Layn Phillips in Support of Lead Plaintiff’s
Motion for Final Approval of Class Action Settlement (the “Phillips Declaration” or “Phillips
Decl.” attached hereto as Ex. 4).
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102. On February 24, 2017, and again on March 6, 2017, the parties submitted extensive
mediation statements to Judge Phillips and his team. Defendants’ mediation statements included
documents from Clovis’ internal files, including emails and materials exchanged between Clovis
and the FDA that had not previously been available to Lead Plaintiffs. Using these documents,
Defendants previewed some of the arguments and evidence they intended to develop in discovery
and the arguments they intended to advance at summary judgment and at trial. Lead Plaintiff filed
a lengthy submission responding to these arguments.
103. On March 14, 2017, the parties, along with Defendants’ insurers, participated in an
all-day mediation, at which Defendants gave presentations to Lead Counsel and vice versa. That
session was extensive and explored issues ranging from Clovis’ financial condition to the merits
of liability and damages in the Action. That all day session did not result in a settlement.
104. In the ensuing months, while Lead Plaintiff continued to aggressively litigate this
Action, Judge Phillips was, on a separate track, continuing to explore the possibility of settlement.
Judge Phillips had multiple follow-up discussions with both Lead Plaintiff and Defendants. The
parties also exchanged additional information relating to both liability and ability to pay issues.
105. These discussions and information exchanges ultimately resulted in Clovis CEO
Defendant Patrick Mahaffy travelling to Israel from Colorado to meet directly with Lead Plaintiff
and Lead Counsel on May 23, 2017 to discuss the case. In the ensuing weeks, the parties continued
to negotiate the details of the Settlement. Finally, after several rounds of intensive back and forth
negotiations between counsel, on June 18, 2017, the parties signed the Stipulation of Settlement.
106. Pursuant to the Settlement, the Settling Defendants have agreed to pay $142 million
for the benefit of the Settlement Class. The Settlement Amount consists of (i) a $25 million cash
payment, which represents all of Clovis’ available director and officer insurance, and (ii) the
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issuance of shares of Clovis common stock valued at $117 million. The Clovis common stock
paid to the Settlement Class will be issued and sold on behalf of the Settlement Class, pursuant to
the exemption from registration provided by Section 3(a)(10) of the Securities Act of 1933, after
the Court issues a final order approving the Settlement.
107. As discussed above, the parties also agreed that the Settlement would not be final
until the completion of due diligence discovery – including a review of internal Clovis documents
and interviews of certain Clovis witnesses – to the satisfaction of Lead Plaintiff and Lead Counsel.
On September 20, 2017, that discovery was completed to the satisfaction of Lead Plaintiff and
Lead Counsel.
IV. PRELIMINARY APPROVAL OF THE SETTLEMENT AND JULY 26, 2017 COURT HEARING
108. On June 22, 2017, Lead Plaintiff filed a motion for preliminary approval of the
Settlement, and supporting papers, including the Stipulation of Settlement. See Dkt. Nos. 156-57.
On July 14, 2017, the Court preliminarily approved the Settlement. Dkt. No. 160.
109. On July 26, 2017, the Court held a hearing to discuss various aspects of the
Settlement with the parties. Lead Counsel traveled to Colorado to attend the hearing in person.
At the hearing, the Court inquired about certain aspects of the proposed Stipulation of Settlement,
including, among other things, the mechanism and means by which the Settlement Fund would be
equitably distributed to the Class.
110. As set forth below, Lead Counsel and Defendants have attempted to address each
of the matters raised by the Court at the July 26, 2017 hearing.
V. RISKS OF CONTINUED LITIGATION
111. As detailed above, the proposed Settlement provides a substantial benefit to the
Settlement Class in the form of a $142 million payment, consisting of $25 million in cash and $117
39 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 46 of 83
million in Clovis common stock valued pursuant to the terms of the Stipulation. The merits of the
$142 million Settlement must be considered in the context of the risks presented by continued
litigation of the Action, including, as discussed in detail below, the risks and hard limits to recovery
posed by Clovis’ financial condition and the risks of establishing Defendants’ liability and
damages. Having considered the risks of continued litigation, and based on all proceedings and
discovery performed in the Action, it is the informed judgment of Lead Plaintiff and Lead Counsel
that the proposed Settlement is fair, reasonable, and adequate, and in the best interest of the
Settlement Class.
112. Indeed, the $142 million Settlement now before the Court is an excellent result for
the Settlement Class when compared with the Class’ estimated recoverable damages at trial. Lead
Plaintiff’s financial economics experts developed a model to estimate the range of Class-wide
damages in this Action based on the causes of Clovis’ stock declines on November 16, 2015 and
April 8, 2016. The model estimates that the Settlement Amount represents approximately 13% of
Class-wide damages in the Action if it makes all plaintiff-friendly assumptions regarding the
inflation that was in the stock and ignores any counterarguments Defendants would advance.
113. But more realistically, the model developed by Lead Plaintiff’s experts also uses
market data, including analyst reports, to identify a portion of the stock decline on November 15,
2016 that Defendants would argue was not caused by the misstatements alleged in the Complaint.
Under this model, even if only the most modest assumptions are made about the magnitude of the
portion of the November 15, 2016 decline in Clovis stock not attributable to Defendants’ alleged
false statements (assumptions that are generous to Lead Plaintiff’s position), class-wide damages
are reduced by almost two thirds. Under this scenario, the model estimates that the Settlement
represents 37% of Class-wide damages.
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114. Under either scenario, this is a substantial recovery – even before giving
consideration to the substantial ability to pay issues discussed herein. Indeed, a recent report
published by Cornerstone Research finds that the median securities class action settlement in the
Tenth Circuit between 2007 and 2016 was $8.4 million and recovered 1.6% of estimated damages.
Nationally, the median securities class action settlement over the same period recovered 2.1% of
estimated damages. Moreover, as discussed in the accompanying Memorandum of Law in support
of Lead Plaintiffs’ Motion for Final Approval of Class Action Settlement and Plan of Allocation,
multiple courts have found settlements representing substantially smaller percentages of maximum
class-wide damages to be reasonable.
115. As summarized below, Lead Counsel respectfully submits that it assumed
significant risk in prosecuting this Action on an entirely contingent basis. From the time that Lead
Counsel agreed to take on the case, settlement was by no means inevitable and certainly not at the
high level ultimately achieved. Lead Counsel faced the significant risks faced in any securities
class action – particularly so here given the complex and scientific nature of the dispute – as well
as unique risks to ability to pay, liability and damages.
A. General Risks Involved In Prosecuting Securities Actions On A Contingent Basis
116. In recent years, securities class actions have become riskier than they perhaps were
in prior years. For example, data from Cornerstone Research shows that, in each year between
2008 and 2011, a majority of the securities class actions filed were dismissed – and the percentage
of dismissals was as high as 59% in 2010 and 58% in 2011. See Cornerstone Research, Securities
Class Action Filings 2014 Year In Review (2015) at 12. In fact, well-known economic consulting
firm NERA found that, out of securities class actions in which a motion to dismiss was decided
from January 2000 through December 2014, 54% were dismissed. See Dr. Renzo Comolli and
41 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 48 of 83
Svetlana Starykh, “Recent Trends in Securities Class Action Litigation: Full-Year Review”
(NERA 2015 at p. 18, Figure 15).
117. Even when they have survived motions to dismiss, securities class actions are
increasingly dismissed at the class certification stage, in connection with Daubert motions or at
summary judgment. For example, class certification has been denied in several recent securities
class actions. See, e.g., Gordon v. Sonar cap. Mgmt. LLC, 2015 WL 1283636 (S.D.N.Y. Mar. 19,
2015), Sicav v. James Jun Wang, 2015 WL 268855 (S.D.N.Y. Jan. 21, 2015); IBEW Local 90
Pension Fund v. Deutsche Bank AG, 2013 WL 5815472 (S.D.N.Y. Oct. 29, 2013); George v. China
Automotive Systems, Inc., 2013 WL 3357170 (S.D.N.Y. July 3, 2013).
118. Multiple securities class actions also recently have been dismissed at the summary
judgment stage. See, e.g., In re Barclays Bank PLC Sec. Litig., No. 09-01989, (S.D.N.Y.)
(Summary judgment granted on September 13, 2017 after eight years of litigation); Omnicom Grp.,
Inc. Sec. Litig., 541 F. Supp. 2d 546, 554-55 (S.D.N.Y. 2008), aff’d 597 F.3d 501 (2d Cir. 2010)
(summary judgment granted after 6 years of litigation and millions of dollars spent by plaintiffs’
counsel); see also In re Xerox Corp. Sec. Litig., 935 F. Supp. 2d 448, 496 (D. Conn. 2013), aff’d
766 F.3d 172 (2d Cir. 2014) (same). And even cases that have survived summary judgment are
dismissed prior to trial in connection with Daubert motions. See Bricklayers and Trowel Trades
Int’l Pension Fund v. Credit Suisse First Boston, 853 F. sup. 2d 181 (D. Mass. 2012), aff’d 752
F.752 F.d 82 (1st Cir. 2014) (granting summary judgment sua sponte in favor of defendants after
finding that plaintiffs’ expert was unreliable).
119. Even when securities class action plaintiffs are successful in getting a class
certified, have prevailed at summary judgment, overcome Daubert motions, and have gone to trial,
there are still very real risks that there will be no recovery or substantially less recovery for class
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members. For example, in In re BankAtlantic Bancorp, Inc. (S.D. Fla. 2010), a jury rendered a
verdict in plaintiffs’ favor on liability in 2010. In 2011, the district court granted defendants’
motion for judgment as a matter of law and entered judgment in favor of the defendants on all
claims. 2011 WL 1585605 (S.D. Fl. Apr. 25, 2011). In 2012, the eleventh Circuit affirmed the
district court’s ruling, finding that there was insufficient evidence to support a finding of loss
causation. In re BankAtlantic Bancorp, Inc., 688 F.3d 713 (11th Cir. 2012).
120. There is also the increasing risk that an intervening change in the law can result in
the dismissal of a case after significant effort has been expended. The Supreme Court has heard
several securities cases in recent years, often announcing holdings that dramatically changed the
law in the midst of long-running cases. See Omnicare, Inc. v. Laborers Dist. Council Constr.
Indus. Pension Fund, 135 S. Ct. 1318 (2015); Halliburton Co. v. Erica P. John Fund, Inc., 134 S.
Ct. 2398 (2014); Comcast Corp. v Behrand, 133 S. Ct. 1426 (2013); Morrison v. Nat’l Austl. Bank
Ltd., 561 U.S. 247 (2010). As a result, many cases have been lost after thousands of hours have
been invested in briefing and discovery. For example, in In re Vivendi Universal, S.A. Sec. Litig.,
765 F. Supp. 2d 512, 524, 533 (S.D.N.Y. 2011), after a verdict for class plaintiffs finding Vivendi
acted reckless with respect to 57 statements, the district court granted judgment for defendants
following a change in the law announced in Morrison.
121. In sum, securities class actions face serious risks of dismissal and non-recovery at
all stages of the litigation.
B. The Risk That Clovis Would Be Unable To Satisfy A Judgment In Excess Of The Proposed Settlement Is Substantial
122. The recovery here is even more substantial when Clovis’ ability to pay a judgment
or fund a settlement in excess of the Settlement is considered. Clovis is a fledgling
biopharmaceutical company that has reported significant net losses in every quarter since its
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founding. The Company’s operating costs are, and historically have been, significant. While the
Company recently launched its first and only revenue-generating product, rucaparib that product’s
current revenues do not even cover Clovis’ operating costs, and the Company has continued to
post net operating losses. For instance, shortly before the Settlement was reached, Clovis
announced a $59 million loss in the first quarter 2017. Most recently, on August 2, 2017, Clovis
announced another $58.4 million loss (excluding a $117 million one-time charge attributable to
the Settlement).
123. If Clovis was forced to spend millions of dollars in litigation, it would distract from
its ability to market and develop rucaparib (which itself is currently the subject of nine major
clinical trials). Even without those distractions, rucaparib faces significant competition from rival
drugs manufactured by Tesaro and Astra Zeneca, among others. For instance, last fall, the FDA
approved Tesaro’s drug, Zejula, for the “maintenance treatment” of patients with recurrent ovarian
cancer who are in a complete or partial response to platinum-based chemotherapy – i.e., the drug
was approved for use after initial treatment to prevent relapse or to slow the growth of advanced
cancer that has relapsed. Rucaparib, by contrast, is currently approved for treatment in ovarian
cancer in only a subset of patients with the disease (those with the so-called “BRCA mutation”)
and only after treatment with two or more chemotherapies.
124. The documents and information that Lead Counsel received during the discovery
process, including additional financial information and interviews with Clovis’ Principal Financial
and Accounting Officer have confirmed the Company’s inability to fund a settlement or pay a
judgment materially in excess of the Settlement.
125. Lead Counsel also retained the services of Loop Capital, an investment banking
firm located in Chicago, Illinois, to advise on Clovis’ ability to pay a judgment or settlement in a
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materially greater amount than the proposed Settlement. Investment banking professionals at Loop
Capital reviewed financial information regarding Clovis, including analyst reports and other
information, and prepared an analysis regarding Clovis’ ability to pay a judgment materially
greater than the proposed Settlement. These professionals also assisted Lead Counsel in preparing
for and conducting the mediation. Loop Capital concluded that at the time of the Settlement
Clovis lacked the ability to settle the class action for an amount materially in excess of the proposed
Settlement amount.
126. As a result of these considerations, Lead Plaintiff and Lead Counsel believed at the
time of Settlement that the Company had little or no ability to pay a full judgment in this case and
there was a very substantial risk that, even if Lead Plaintiffs prevailed on all issues through the
remainder of the litigation and secured a verdict at trial, such a victory might be meaningless to
the Class because they would not be able to recover on that judgment. Lead Plaintiffs also faced
the risk that the Company might become insolvent and declare bankruptcy, which would stay the
Action against Clovis, making any recovery against the Company difficult and delaying any such
recovery for years.
127. In short, this case presented very real “ability to pay” issues. There is a substantial
risk that even if Lead Plaintiff was successful in establishing liability at trial (and after appeals
from any verdict), Clovis would have been forced into bankruptcy rather than be able to pay a
judgment. By contrast, the very substantial amount achieved here will compensate Class members
while greatly reducing the risk that Clovis will be forced into bankruptcy.
C. Lead Plaintiff Faced A Number Of Substantial Risks In Proving Defendants’ Liability
128. Even though Lead Plaintiff had prevailed at the motion to dismiss stage on the
majority of its claims asserted against Defendants, Lead Plaintiff and the Class faced a substantial
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risk that the Court would find that they had failed to establish liability or damages as a matter of
law at summary judgment, or, if the Court were to permit the claims to proceed to trial, that a jury
would find against Plaintiffs or that, even if Lead Plaintiff prevailed at trial, the verdict would be
overturned by an appellate court.
1. Risks To Proving Defendants’ Liability
129. Lead Plaintiff recognized that there were substantial risks to proving Defendants’
Exchange Act liability. While Lead Plaintiff and Lead Counsel believe they advanced strong
claims on the merits, Defendants vigorously contested their liability with respect to every element
of Lead Plaintiff’s claims.
130. As discussed above, the Complaint alleges, among other things, that Defendants
misled investors by failing to disclose that the observations of tumor shrinkage – called “objective
responses” – they publicly reported as evidence of rociletinib’s efficacy were actually
unconfirmed, in contravention of controlling clinical trial standards, Clovis’ prespecified clinical
trial protocols, and standard industry practice. Dkt. No. 65 at 71-92. In their motions to dismiss,
Defendants argued that RECIST, the clinical trial standards that governed Clovis’ reporting
obligations during the Settlement Class Period, did not require confirmation of the “objective
responses” the Company publicly reported. Dkt. No. 105 at 46. While the Court rejected
Defendants’ argument at the motion to dismiss stage, it noted that “conceivably, the Clovis
Defendants could present evidence at summary judgment indicating that their interpretation of
RECIST was reasonable and that the FDA would accept their unconfirmed responses.” Dkt. No.
126 at 33.
131. Defendants argued that that their statements reporting unconfirmed ORR were not
misleading because they reasonably believed that the FDA would rely on unconfirmed responses
in determining whether to approve, and how to label, rociletinib. While Lead Plaintiff believes it
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has meritorious responses to this argument, it recognizes that this dispute involves complex issues
of regulatory practice and procedure, that expert evidence supporting Lead Plaintiff’s position is
expensive to obtain and defend, and that proof on these issues is largely circumstantial. Moreover,
in Lead Counsel’s view, the extensive discovery obtained pursuant to the settlement agreement
confirms that Lead Plaintiff would face significant challenges in litigating this issue. Were
Defendants to persuade the Court or a jury that it believed the FDA would base its approval and
labeling decisions on rociletinib’s unconfirmed response rate, they might succeed in significantly
reducing the Class’ damages or defeat the claims against them altogether. For example, consistent
with certain arguments Defendants have advanced in this case, Lead Counsel found no
documentary evidence indicating that the FDA explicitly told Clovis prior to November 6, 2015
that it would be required to report a confirmed ORR.
132. The Court’s Opinion and Order also stated that Defendants could prevail at
summary judgment or at trial if clinical trial data showed that the “confirmed” objective response
rate Defendants failed to report to investors was no lower than the “unconfirmed” rate they publicly
reported. Dkt. No. 126 at 36-37. Defendants argued that, in fact, rociletinib’s confirmed and
unconfirmed rate never materially diverged until the very end of the Settlement Class Period.
Again, while Lead Plaintiff believes it possesses meritorious responses to this argument, it
recognizes that the parties dispute even the definition of “confirmed response rate,” that, again,
Lead Plaintiff would be required to obtain evidence from numerous experts to meet its burden of
proof, and that it was far from certain that a lay jury would appreciate and accept Lead Plaintiff’s
view of the complex medical and statistical facts at issue here.
133. Defendants also contend that Lead Plaintiff would be unable to establish scienter
in this case, arguing that at best Lead Plaintiff could make out a case of negligence or
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“mismanagement” against the Company. It is important to note that even a finding of gross
negligence would be insufficient to support liability against Clovis and the individual defendants
on the fraud claims alleged under the Exchange Act. According to Defendants, Clovis acted at
all times in good faith and held a genuine belief that the FDA would accept unconfirmed ORR
results and truly expected that rociletinib was performing well in its clinical trials and that they
were accurately reporting those results to the public.
134. Defendants further contend that the FDA repeatedly accepted unconfirmed results
and not until the very end of the Class Period did the FDA indicate that it would rely only on
“confirmed” ORR results. Defendants also contend that the regulations were complex and difficult
to understand, rife with inconsistencies and ambiguities as to the calculation of “confirmed” ORR,
and they genuinely understood the regulations to permit them to use the trial results that they
submitted to the FDA and disclosed to the public.
135. In sum, the parties were deeply divided on several key fact issues central to the
litigation, and there was no guarantee Lead Plaintiff’s position on these issues would prevail at
either summary judgment or at trial. If Defendants had succeeded on any of these substantial
defenses, Lead Plaintiff and the Class would have recovered nothing at all or, at best, would likely
have recovered far less than the Settlement Amount.
2. Risks To Establishing The Underwriter Defendants’ Liability Under The Securities Act
136. Like the Clovis Defendants, the Underwriter Defendants vigorously disputed
liability with respect to every element of the Securities Act claims. Again, while Lead Plaintiff
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believes it advanced meritorious claims, it recognizes that there were significant risks to
establishing the Underwriter Defendants’ liability.5
137. In addition to contesting the falsity of the statements included in the July 2015
Offering’s prospectus and registration statement, several of the Underwriter Defendants argued
that the Complaint failed to identify a plaintiff with standing to pursue Section 12(a)(2) claims
against them. Dkt. No. 103 at 9-13. Indeed, the Court dismissed these claims for lack of standing
in its February 9, 2017 Opinion and Order. Dkt. No. 126 at 69. As discussed above, while Lead
Plaintiff amended the Complaint in an attempt to rectify any deficiencies in its standing allegations
(Dkt. No. 128), the Non-Lead Underwriter Defendants again moved to dismiss the Section 12
claims asserted in the Amended Complaint on the grounds that the Complaint still failed to identify
any plaintiff who purchased shares from any of them in the July 2015 Offering (Dkt. No. 133).
While Lead Plaintiff believes its opposition to the Non-Lead Underwriter Defendants’ motion to
dismiss is meritorious, it recognizes that there was no guarantee the Court would rule in its favor
were the litigation to continue.
138. The Underwriter Defendants also argued that the Securities Act’s “due diligence”
defense shielded them from liability under Sections 11 and 12. Underwriters may be insulated
from liability under Sections 11 and 12 of the Securities Act for false statements appearing in
offering documents if, after reasonable investigation, they had no reason to believe the statements
were false. See, e.g., 15 U.S.C. § 77k(b)(3); 15 U.S.C. § 77l(a)(2). Lead Plaintiff recognized that
the Underwriter Defendants would argue that the subject matter of the alleged omissions in this
Action – relating to Clovis’ internal and unpublished clinical trial data – was peculiarly difficult
5 In addition, because they are named as Defendants only under the Securities Act, the Underwriter Defendants are potentially liable for only a portion of the damages for which Clovis is potentially liable under the Exchange Act.
49 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 56 of 83
to ascertain and interpret, and that Underwriter Defendants’ affirmative defense would have
particular force if they were successful in persuading the Court or a jury to accept these
characterizations.
D. Risks Related To Damages
1. The Parties Would Have Disagreed On The Calculation Of Damages
139. Even assuming that Lead Plaintiffs overcame each of the above risks and
successfully established liability, they faced serious risks in proving damages and loss causation.
While Lead Plaintiffs argued that recoverable damages were approximately $1 billion, Defendants
had serious arguments that even if liability were established, damages would have been far less.
140. Specifically, Defendants would have argued that much of the decline in Clovis’
stock price was not attributable to the alleged misstatements – i.e., that Clovis had been reporting
an unconfirmed ORR. Rather, the declines were attributable to the disclosure that the FDA was
unlikely to approve rociletinib. Defendants would have argued that they never made any
affirmative statements regarding the likelihood that the FDA would approve rociletinib; to the
contrary, they expressly and repeatedly warned investors – in SEC filings, at analyst meetings, and
in conference calls – that there could be no certainty as to what actions the FDA might take with
respect to rociletinib. Defendants would have further argued that they immediately disclosed all
communications with the FDA as soon as the FDA informed Clovis that it might not approve
rociletinib – in other words, investors learned this information at essentially the same time that
Clovis did and therefore there was no intent to defraud the market.
141. As noted above, if Defendants damages arguments had prevailed at summary
judgment, in Daubert motions, or were persuasive to the Jury, the Class’ maximum recoverable
damages would have been reduced to well below $500 million.
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2. Risk Of A Second Phase Damages Trial
142. Complex securities class action trials are almost always bifurcated into two phases:
a first phase, adjudicating class-wide issues of liability, class-wide reliance, and damages per
share; followed by a second phase, in which Defendants may attempt to rebut the presumption of
reliance on their statements with respect to individual Class Members. See, e.g., In re Vivendi
Universal SA Securities Litigation, 765 F. Supp. 2d at 584-85 & n.63 (S.D.N.Y. 2011) (collecting
cases); Jaffe v. Household Int’l, Inc., 756 F. Supp. 2d 928, 930 (N.D. Ill. 2010); In re JDS Uniphase
Sec. Litig., No. C–02–1486 (Dkt. No. 1504) (N.D. Cal. Sept. 25, 2007); In re WorldCom Inc. Sec.
Litig., 2005 WL 408137, at *2 (S.D.N.Y. Feb. 22, 2005). Even if Lead Plaintiff prevailed in the
first phase of trial in this Action, the Class would still face significant risks and certain delay with
respect to second phase proceedings. As part of these proceedings, Defendants are typically
entitled to take discovery with respect to individual Class Members’ decisions to transact in Clovis
securities – a process which, in itself, is time-consuming and burdensome. See, e.g., Jaffe, 756 F.
Supp. 2d 928, 930 (N.D. Ill. 2010) (Phase II reserved for “defendant’s rebuttal of the presumption
of reliance as to particular individuals as well as the calculation of damages as to each plaintiff”).
Defendants may then attempt to reduce the judgment by arguing that certain individual Class
Members failed to rely on their false statements.
143. The plaintiff class’ experience in Vivendi highlights the risks inherent in post-
liability phase proceedings. In January 2010, a jury returned a verdict for the plaintiff class, finding
that Vivendi had acted recklessly in making 57 false or misleading statements that omitted the
company’s liquidity risk. See 765 F. Supp. 2d 520 (S.D.N.Y. 2011). Through these proceedings,
Defendants successfully challenged reliance on the part of large institutional investors, and
reduced the class’ judgment by $53 million.
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E. Risk Of Appeal
144. Even if Lead Plaintiff prevailed at summary judgment and at trial, Clovis would
likely have appealed the judgment – leading to many additional months, if not years, of further
litigation. On appeal, Defendants would have renewed their host of arguments as to why Lead
Plaintiffs had failed to establish liability and damages, thereby exposing Lead Plaintiff to the risk
of having any favorable judgment reversed or reduced below the Settlement Amount.
145. The risk that even a successful trial could be overturned by a later appeal is very
real in securities fraud class actions. There are numerous instances across the country where jury
verdicts for plaintiffs in securities class actions were overturned after appeal. See, e.g.,
Glickenhaus & Co. v. Household Int’l, Inc., 787 F.3d 408 (7th Cir. 2015) (reversing and remanding
jury verdict of $2.46 billion after 13 years of litigation); Robbins v. Koger Props., Inc., 116 F.3d
1441 (11th Cir. 1997) (reversing $81 million jury verdict after 19-day trial and dismissing case
with prejudice); Anixter v. Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996) (overturning
plaintiffs’ verdict obtained after two decades of litigation); In re Apple Comp. Sec. Litig., No. C-
84-20148, 1991 U.S. Dist. LEXIS 15608 (N.D. Cal. Sept. 6, 1991) ($100 million jury verdict
vacated on post-trial motions); Oracle, 2009 U.S. Dist. LEXIS 50995 (granting summary judgment
to defendants after eight years of litigation).
146. Based on all the factors summarized above, Lead Plaintiff and Lead Counsel
respectfully submit that it was in the best interest of the Class to accept the immediate and
extremely substantial benefit conferred by the Settlement, instead of incurring the significant risk
that the Class could recover a lesser amount, or nothing at all, after several additional years of
arduous litigation.
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VI. RESPONSES TO MATTERS RAISED BY THE COURT AT THE JULY 26, 2017 PRELIMINARY APPROVAL HEARING
147. On July 26, 2017, the parties appeared for a hearing before the Court. At the
hearing the Court raised certain issues for discussion among the parties and raised several points
regarding the proposed Settlement. See Dkt. No. 164; see also Transcript of July 26, 2017 hearing
(defined herein as “Tr.”).
148. Following the hearing, Lead Counsel and Lead Plaintiff conferred, and Lead
Counsel conferred with Defendants. Lead Counsel greatly appreciates the Court’s consideration
in connection with the July 26, 2017 hearing and the opportunity to address the Court’s questions.
As set forth below, we respectfully submit that the parties have addressed each of the points raised
by the Court.
A. The Stock Component Of Plaintiffs’ Counsel’s Fee
149. The Court asked whether Plaintiffs’ Counsel could receive a fee comprised of stock
in a company it was suing. See Tr. at 5:14-22. Lead Counsel respectfully submits that this is a
well-recognized practice and has been expressly endorsed by multiple Courts. Indeed, it is
considered the best practice in a case where the Settlement consideration partially consists of stock.
As the Seventh Circuit has held:
Stock, like cash, is simply a form of compensation secured on the class’s behalf. There is no reason it should be treated differently than cash. In fact, treating it differently creates perverse incentives for attorneys by encouraging them to seek all cash recoveries even when a cash and stock recovery would be in their clients’ best interest or would otherwise be more appropriate.
Montgomery v. Aetna Plywood, Inc., et al., 231 F.3d 399, 409 (7th Cir. 2000) (reversing district
court’s refusal to grant stock as attorneys’ fees).
150. Consistent with this principle, there have been multiple securities class action
settlements in Colorado and around the nation in which some portion of the settlement fund was
53 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 60 of 83
comprised of the settling corporate defendant’s securities. In each of these cases, class counsel’s
fee was paid at least in part in the securities issued to the settlement class. For example, in
Rosenfeld v. Laser Tech. Inc., et al., No. 99-CV-266 (D. Colo. Oct. 19, 2000), Dkt. No. 87 (Ex. 8),
the Court approved a settlement of $850,000 in cash and 475,000 shares of stock and awarded
attorneys’ fees of 30% of each. See also Rasner v. Vari-L Co., Inc., et al., No. 00-S-1181, (D.
Colo. March 28, 2003), Dkt. No. 102 (docket indicates that court approved settlement of $644,000
in cash and 2 million shares of stock and awarding attorneys’ fees of 25% of settlement fund not
attributable to disgorgement) (Ex. 9); Anderton v. ClearOne Commn’cs., Inc., et al., No. 2:03-CV-
0062-PCG, slip op. at 2 (D. Utah March 16, 2004), Dkt. Nos. 79, 92 (approved settlement of $5
million in cash and 1.2 million shares of stock and awarding attorneys’ fees of 19%) (Ex. 10).
151. Similarly, in In re Lumber Liquidators Holdings, Inc. Sec. Litig., No. 13-00157,
slip op. at 2 (E.D. Va. Nov. 17, 2016), Dkt. No. 206 (Ex. 11), the court recently awarded
“attorneys’ fees in the amount of 23.75% of the Settlement Cash . . . and 23.75% of the Settlement
Stock.” See also In re Ocean Power Techs. Inc. Sec. Litig., No. 14-03799, 2016 U.S. Dist. LEXIS
158222, at *93-94 (D.N.J. Nov. 15, 2016) (Lead Counsel “awarded $900,000 and 114,000 shares
of OPT common stock”); In re Heckmann Corp. Sec. Litig., No. 10-00378, slip op. at 2 (D. Del.
June 26, 2014), Dkt. No. 308 (Ex. 12) (awarding “attorneys’ fees in the amount of 33 1/3% of the
Cash Settlement Amount (totaling $4,500,000) and 33 1/3% of the Settlement Shares (totaling
282,663 shares)”); Crystal v. Medbox, Inc., No. 15-00426, slip op. at 33 (C.D. Cal. Nov. 14, 2016),
Dkt. No. 114 (Ex. 13); (“the Court awards to Lead Counsel attorneys’ fees in the amount of twenty-
five per cent of the $1,850,000.00 cash portion of the Settlement Fund and twenty-five per cent of
the shares of Medbox stock contributed by Defendants to the Settlement Fund.”); Adams v.
Amplidyne, Inc., No. 99-4468 (MLC), 2001 U.S. Dist. LEXIS 14464, at *12 (D.N.J. Aug. 14,
54 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 61 of 83
2001) (“Plaintiffs’ Counsel … awarded 33 % of the Cash Settlement Amount (including interest),
and one-third of the Settlement Shares, as and for their attorneys' fees, which amounts the Court
finds to be fair and reasonable”); In re Cell Pathways, Inc. Sec. Litig. II, No. 01-CV-1189, 2002
WL 31528573, at *15 (“Plaintiffs’ Counsel … awarded 30% of the Settlement Fund as and for
their attorneys’ fees, which sum the Court finds to be fair and reasonable, and which percentage
shall be payable from both the Settlement Stock and the Settlement Cash in the Settlement Fund.”);
In re Genta Sec. Litig., No. 04-2123 (JAG), 2008 WL 2229843, at *11, 13 (D.N.J. May 28, 2008)
(awarding attorneys’ fees of 25% of each of the settlement cash and settlement stock in the
settlement fund and noting that attorneys in another securities class action “received both cash and
stock awards as part of their attorneys’ fee award.”); In re Tripath Tech., Inc. Sec. Litig., No. C
04 4681 SBA, 2006 U.S. Dist. LEXIS, at *12 (N.D. Cal. Apr. 18, 2006) (awarding 25% of the
settlement shares as attorneys’ fees).6
152. Lead Counsel further submits that when a settlement – like the proposed Settlement
here – calls for class counsel’s fee to be paid with the same consideration as distributed to the
class, it helps ensure the fairness of the settlement, since it incentivizes class counsel to maximize
the value of the consideration to be paid to the class. For instance, in this Settlement Lead Counsel
has exactly the same incentives as the Class vis-à-vis maximizing the value of the Settlement
shares.
6 To the extent that the Court was concerned about Lead Counsel holding the common stock of Clovis while opt out or other litigations are proceeding (Tr. at 5:18-22), there are no issues there because none of the plaintiff attorneys involved in this case have any role in other ongoing litigation against Clovis.
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B. Potential Sale Of The Settlement Shares
153. The Court also noted that the Stipulation of Settlement, as drafted, allowed Lead
Counsel to liquidate any Settlement Shares it was awarded as part of its attorney’s fees without
simultaneously selling the Settlement Shares issued for the benefit of the Class. Tr. at 5-6. As the
Court phrased it, “you could decide, ‘hey, let’s liquidate this, get our cash out and move on.” Tr.
at 6:8-9. As the Court noted, Lead Counsel potentially could sell its shares while the share price
was high, while at the same time Lead Counsel could potentially “delay … when [the Class’] stock
hits the market; if it hits the market at all.” Id. at 15-16. Lead Counsel understands that the Court
was concerned that this raised a potential conflict between the interests of the Class and Lead
Counsel.
154. At the July 26, 2017 hearing, Lead Counsel stated that it had not previously
considered this issue because regardless of the wording of the Stipulation, it was Lead Counsel’s
intention to sell all of the stock at the same time (both those shares attributable to the Class and
those shares awarded to Lead Counsel as part of its attorneys’ fees). Tr. at 12:9-11 (“so that wasn’t
something that was going through my mind really, because I just thought as a practical matter …
we will go in and sell the Class’ stock and sell our stock at the same time.”).
155. Nonetheless, as Lead Counsel noted at the hearing, the Court raised a good point
and, accordingly, we have worked with Defendants in an effort to address the Court’s concern by
effecting an Amendment to the Stipulation of Settlement. Specifically, Lead Counsel and
Defendants have conferred and agreed to amend the Stipulation of Settlement to state:
Subject to and in accordance with the other terms of the Stipulation, in the event that Lead Counsel chooses to sell the Settlement Shares, it shall be required to liquidate all shares of Clovis common stock – both the Settlement Shares attributable to the Settlement Class and any attributable to Plaintiffs’ Counsel’s Court-awarded attorneys’ fees – together. Once all of the Settlement Shares are liquidated, Lead Counsel may collect its share of any Court- awarded fees from the net cash proceeds received from the sale of the entire lot of shares,
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and the remaining balance of the cash proceeds will be deposited in the Escrow Account for distribution to the Class in accordance with the terms of the Stipulation.
Exhibit 1 (Amendment to Stipulation and Agreement of Settlement) at ¶1.
156. Accordingly, the interests of Lead Counsel and the Settlement Class qua liquidation
of the Settlement Shares are now entirely coterminous. For instance, to the extent that the sale of
the Settlement Shares nets less than $117 million, Plaintiffs’ Counsel’s fee will be reduced in
exactly the same proportion, and to the same extent, as the distribution to the Class.
C. Lead Counsel’s Liability To The Class
157. The Court asked at the July 26, 2017 hearing whether, and to what extent, Lead
Counsel assumed liability to the Settlement Class in connection with the Escrow Account and
administration and distribution of the Net Settlement Fund. Tr. at 7, 17-18. While Lead Counsel
believes that the terms of the Stipulation of Settlement as drafted comport with its fiduciary duties
to the Settlement Class and are commonplace in Settlements such as this, Lead Plaintiff and
Defendants have agreed to amend the Stipulation to include the following language:
Notwithstanding any other provision of the Stipulation, Lead Counsel shall act as fiduciaries for the Settlement Class in connection with administration of the Settlement, including, without limitation, the funds held in the Escrow Account and the distribution of the Net Settlement Fund to Authorized Claimants.
See Exhibit 1 at ¶2.
158. Lead Counsel respectfully submits that this language makes clear that Lead Counsel
has a fiduciary duty with respect to the Escrow Account and the administration of the Settlement.
Lead Counsel takes that fiduciary duty seriously. Lead Counsel further submits that in its more
than three decades of existence, BLB&G has managed many hundreds of settlement Escrow
accounts, has always taken its fiduciary duties to the Class seriously, and has never once violated
that fiduciary duty.
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D. Lead Plaintiff’s “Designee”
159. The Court asked what or whom the phrase “Lead Plaintiff’s designee” in the
Stipulation of Settlement denotes. Tr. at 22:14-22. This phrase refers to the securities brokerage
firm that Lead Counsel will designate as the recipient of the Settlement Shares. Pursuant to the
terms of the Stipulation, Clovis will be required to issue and deliver the Settlement Shares to Lead
Counsel’s designated brokerage firm within five business days after entry of the Judgement finally
approving the Settlement. As discussed above, upon receipt of the Settlement Shares, Lead
Counsel intends to liquidate all of the shares through its broker if market conditions are amenable
to such a sale. In order to do that, Lead Counsel will need to use the services of a securities
brokerage firm.
160. Lead Counsel has used this process in other settlements involving stock
consideration, and it has proved to be effective and efficient. Of course, throughout this process
Lead Counsel retains its fiduciary duty with respect to the Settlement funds, as clarified in the
Amendment to the Stipulation of Settlement.
E. Transfer Of Settlement Shares To Clovis’ Transfer Agent
161. The Court also inquired about the administrative aspects of issuing and distributing
the shares. Tr. at 22. As the Court noted, in the unlikely event that the Settlement Shares cannot
be liquidated and Clovis common stock is required to be distributed to the Settlement Class in
kind, the Stipulation of Settlement provides that the shares will be transferred to Clovis’ transfer
agent, who will conduct the distribution of the shares to Authorized Claimants. The Court asked
why the Settlement Shares would be returned to Clovis’ transfer agent for distribution, rather than
distributed by Lead Counsel or the Claims Administrator. Id.
162. There are many reasons why the Stipulation is written this way, but the most
important one is that Clovis, as with all publicly-traded companies, has a transfer agent to record
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transactions in the company stock. This transfer agent, among other things, maintains a list of the
individuals and entities that own its stock and the manner in which the stock is held – whether by
the company in electronic book-entry form, by the investor’s brokerage firm in street name, or by
the owner itself in certificate form. The transfer agent is also responsible for processing investor
mailings, such as the dissemination of proxy information, annual reports, and year-end federal tax
information to shareholders, and for issuing cash dividend payments to investors.
163. Pursuant to the terms of the Stipulation of Settlement, Lead Plaintiff has obtained
the agreement of Clovis that any distribution of Settlement Shares to Authorized Claimants will
be conducted electronically via the Direct Registration System (“DRS”) maintained by Clovis’
transfer agent, Continental Stock Transfer & Trust Company, which will provide for a certificate-
less (electronic book-entry) registry of the Settlement Shares and allow for the electronic posting
of shares to the accounts of Authorized Claimants. Thus, in order to distribute the Settlement
Shares electronically, the shares must be recorded through Clovis’ transfer agent, who will
maintain the electronic record of the Authorized Claimants who will receive the stock component
of the Settlement. This procedure will eliminate the time and expense to issue physical certificates
for the Settlement Shares and avoid the burdens associated with undeliverable or lost settlement
distributions.
164. Moreover, Clovis will assume the cost of distributing the shares electronically
through its transfer agent, thus benefiting the Class. Lead Counsel will instruct Clovis’ general
counsel to effectuate the distribution of the Settlement Shares, if and when appropriate.
F. Release Of Claims Against The Underwriter Defendants
165. The Court asked whether the Settlement releases claims against the Underwriter
Defendants. Tr. at 21. As discussed during the hearing, the Settlement releases the Underwriter
Defendants, who have indemnity agreements with Clovis in connection with their underwriting of
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the offering at issue in this case, without requiring any payment from the Underwriter Defendants.
The Underwriter Defendants also have additional defenses to the Class’ claims, including Defenses
based on standing and on the “due diligence” defense available to Underwriters pursuant to the
Securities Act of 1993. This release is consistent with common practice in such circumstances.
See, e.g., In re Schering-Plough Corp./ENHANCE Sec. Litig., No. 08-397 (D.N.J. June 4, 2013)
(Ex. 21 at 1-2, 6); Hill v. State Street Corp., No. 09-12146 (D. Mass. July 8, 2014) (Ex. 22 at 4);
In re BioScrip Sec. Litig., No. 13-6922 (S.D.N.Y. Dec. 12, 2015) (Ex. 23 at 1-2, 8).
G. The Settlement’s “Change-In-Control” Provision
166. The Court asked about the “change-in-control” provision in the Stipulation of
Settlement. Tr. at 24-25. Specifically, the Stipulation of Settlement provides that in the event
Clovis undergoes a “change-in-control” prior to the issuance and delivery by Clovis of the
Settlement Shares to the settlement administrator, then the $117 million value represented by the
Settlement Shares will be distributed to the Class in the form of cash or common stock of Clovis’
successor entity, depending on the character of the consideration received by Clovis shareholders
in the change-in-control transaction.
167. The Court asked why this provision’s application was restricted to a change-in-
control transaction occurring prior to the issuance and delivery of the Settlement Shares to the
settlement administrator, rather than one occurring any time. This provision is meant to specify
the nature of the consideration the Settlement Class will receive in lieu of Clovis common stock,
in the event Clovis common stock is canceled as a result of a change-in-control transaction, and
thus cannot be distributed to the Class at the time the Settlement is approved. Change-in-control
transactions subsequent to the distribution of the Settlement Shares (or the proceeds of a sale of
the Settlement Shares) do not create this problem because at the time of distribution, Clovis
common stock will exist and can be sold or, if necessary, distributed to Authorized Claimants.
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H. St. Petersburg Employees’ Retirement System’s Role In The Litigation
168. The Court also asked about the role City of St. Petersburg Employees’ Retirement
System (“St. Petersburg”) played in the litigation. Tr. at 19. As discussed above, the Complaint
alleges claims under the Securities Act relating to Clovis’ July 2015 Offering. Lead Plaintiff (the
Arkin entities) did not purchase any shares directly in the July 2015 Offering. St. Petersburg,
however, purchased shares of Clovis stock in the July 2015 Offering directly from the offering’s
lead underwriter.
169. Accordingly, Lead Plaintiff and Lead Counsel added St. Petersburg to the
complaint as a “named plaintiff,” which is essentially a class member who had unquestioned
standing to assert the claims under the Securities Act. This is a very common practice in securities
class actions.7
170. Indeed, it proved wise here, as Defendants mounted several assaults on the standing
of plaintiffs to assert Securities Act claims, and the Court even partially granted the Underwriter
Defendants’ motion to dismiss on these grounds (Dkt. No. 126), which prompted Lead Counsel to
amend the Complaint and the Underwriter Defendants’ to file another round of motion to dismiss
7 The cases where one or more “named plaintiffs” are added to a securities class action complaint are legion. See, e.g., Fishbury, Ltd. v. Connetics Corp., 2006 WL 3711566, at *4 (S.D.N.Y. Dec. 14, 2006) (“If certain class claims cannot be advanced because of standing or class-certification issues, this deficiency can be corrected by the designation of other members of the purported class as named plaintiffs or class representatives,” and collecting cases); In re Global Crossing Sec. Litig., 313 F. Supp. 2d 189, 205 (S.D.N.Y. 2003) (“Lead Plaintiffs have a responsibility to identify and include named plaintiffs who have standing to represent the various potential subclasses who may be determined ... to have distinct interests or claims”); In re WorldCom, Inc. Sec. Litig., 294 F. Supp. 2d 392, 422 (S.D.N.Y. 2003) (“In filing the Complaint, lead plaintiff fulfilled its obligation . . . to identify as named plaintiffs any additional class representatives that were necessary to assert the claims,” and noting that it is “well established that named plaintiffs may jointly represent the class and it is their claims that determine whether there is standing to bring the claims alleged on behalf of the class”); In re Initial Pub. Offering Sec. Litig., 214 F.R.D. 117, 123 (S.D.N.Y. 2002) (noting that under the PSLRA, “plaintiffs are entitled to join new named plaintiffs” to perfect class standing)
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briefing (which Lead Counsel opposed). See Dkt. Nos. 128, 133, 140, 151. Furthermore, at the
time the settlement was reached, the question of whether St. Petersburg had standing to assert
claims under Section 12(a)(2) on behalf of the Class with respect to the Non-Lead Underwriter
Defendants was the subject of a pending motion to dismiss and was vigorously litigated by the
parties. Defendants’ arguments would have applied with much greater force if St. Petersburg had
not been included in the Complaint.
I. Typographical Error In Paragraph 8(c) On Page 21 Of The Stipulation Of Settlement
171. Finally, the Court noted a typographical error in paragraph 8(c) on page 21 of the
Stipulation of Settlement. Tr. 22:7-11. Pursuant to Amendment No. 3 to the Stipulation of
Settlement, the Settling Parties have amended the Stipulation so that the reference to “no later than
twenty (120) days after the Valuation Date” is corrected to read “no later than One Hundred
Twenty (120) days after the Valuation Date.” See Ex. 1 at ¶3.
VII. LEAD PLAINTIFF’S COMPLIANCE WITH THE COURT’S PRELIMINARY APPROVAL ORDER REQUIRING ISSUANCE OF NOTICE
172. The Court’s Preliminary Approval Order directed that the Notice of (I) Pendency
of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement
Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation
Expenses (the “Notice”) and Proof of Claim and Release Form (“Claim Form”) be disseminated
to the Settlement Class. The Preliminary Approval Order also set an October 5, 2017 deadline for
Class Members to submit objections to the Settlement, the Plan of Allocation, or the Fee and
Expense Application, or to request exclusion from the Settlement Class, and set a final approval
hearing date of October 26, 2017.
173. In accordance with the Preliminary Approval Order, Lead Counsel instructed Epiq
Class Action & Claims Solutions, Inc. (“Epiq”), the Court-approved Claims Administrator, to
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disseminate copies of the Notice and the Claim Form by mail and to publish the Summary Notice.
The Notice contains, among other things, (i) a description of the Action and the Settlement; (ii)
the terms of the proposed Plan of Allocation; (iii) an explanation of Class Members’ right to
participate in the Settlement; and (iv) an explanation of Class Members’ rights to object to the
Settlement, the Plan of Allocation, or the Fee and Expense Application, or exclude themselves
from the Settlement Class. The Notice also informs Class Members of Lead Counsel’s intent to
apply for an award of attorneys’ fees in an amount not to exceed 22.5% of the Settlement Fund,
and for reimbursement of Litigation Expenses in an amount not to exceed $900,000. To
disseminate the Notice, Epiq obtained information from the Company and from banks, brokers,
and other nominees regarding the names and addresses of potential Class Members. See
Declaration of Stephanie A. Thurin Regarding (A) Mailing of the Notice and Claim Form;
(B) Publication of the Summary Notice; and (C) Report on Requests for Exclusion Received to
Date (the “Thurin Decl.”), attached to this Declaration as Exhibit 5, at ¶¶2-8.
174. On August 4, 2017, Epiq disseminated 1,489 copies of the Notice and Claim Form
(together, the “Notice Packet”) to potential Class Members and nominees by first-class mail. See
Thurin Decl. ¶5. As of September 20, 2017, Epiq has disseminated 53,629 copies of the Notice
Packet. Id. ¶8.
175. On August 18, 2017, in accordance with the Preliminary Approval Order, Epiq
caused the Summary Notice to be published in the Wall Street Journal and to be transmitted over
the PR Newswire. See Thurin Decl. ¶9.
176. Lead Counsel also caused Epiq to establish a dedicated Settlement website,
www.ClovisSecuritiesLitigation.com, to provide potential Class Members with information
concerning the Action and the Settlement and access to downloadable copies of the Notice, Claim
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Form, Stipulation of Settlement, Preliminary Approval Order, and Complaint. See Thurin Decl.
¶14.
177. As noted above, the deadline for Class Members to file objections to the Settlement,
the Plan of Allocation, and the Fee and Expense Application, or to request exclusion from the
Settlement Class, is October 5, 2017. To date, no objections to the Settlement or Lead Counsel’s
application for attorneys’ fees and expenses have been received, and only three requests for
exclusion have been received (see Thurin Decl. ¶15). Lead Counsel will file reply papers on or
before October 19, 2017, after the deadline for submitting objections and requests for exclusion
has passed, which will address any objections and all requests for exclusion received.
VIII. ALLOCATION OF THE PROCEEDS OF THE SETTLEMENT
178. In accordance with the Preliminary Approval Order, and as described in the Notice,
all Class Members who want to participate in the distribution of the Net Settlement Fund (i.e., the
Settlement Fund less (i) any Taxes, (ii) any Notice and Administration Costs, (iii) any Litigation
Expenses awarded by the Court, and (iv) any attorneys’ fees awarded by the Court) must submit a
valid Claim Form with all required information postmarked no later than December 11, 2017. As
described in the Notice, the Net Settlement Fund will be distributed among eligible Class Members
according to the plan of allocation approved by the Court.
179. Lead Counsel worked extensively with Lead Plaintiff’s damages expert in
developing the proposed plan of allocation for the Net Settlement Fund (the “Plan of Allocation”).
Lead Counsel believes that the Plan of Allocation provides a fair and reasonable method to
equitably allocate the Net Settlement Fund among Settlement Class Members who suffered losses
as result of the conduct alleged in the Complaint.
180. The Plan of Allocation is set forth at pages 10 to 15 of the Notice. See Thurin Decl.,
Ex. A at pp. 9-15. As described in the Notice, calculations under the Plan of Allocation are not
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intended to be estimates of, nor indicative of, the amounts that Settlement Class Members might
have been able to recover at trial or estimates of the amounts that will be paid to Authorized
Claimants pursuant to the Settlement. Notice ¶51. Instead, the calculations under the plan are
only a method to weigh the claims of Settlement Class Members against one another for the
purposes of making an equitable, pro rata allocation of the Net Settlement Fund.
181. In developing the Plan of Allocation, Lead Plaintiff’s damages expert calculated
the estimated amount of artificial inflation in Clovis common stock and Clovis Call Options (and
the estimated amount of artificial deflation in Clovis Put Options) during the Class Period allegedly
caused by Defendants’ alleged false and misleading statements and material omissions. In
calculating the estimated artificial inflation and deflation allegedly caused by Defendants’ alleged
misrepresentations and omissions, Lead Plaintiff’s damages expert considered price changes in
Clovis common stock and options in reaction to certain public announcements allegedly revealing
the truth concerning Defendants’ alleged misrepresentations and material omissions, adjusting for
price changes that were attributable to market or industry forces and disclosures of information
unrelated to the alleged fraud. Notice ¶52.
182. In general, the Recognized Loss Amounts calculated under the Plan of Allocation
will be the lesser of: (a) the difference between the amount of alleged artificial inflation (or
deflation in the case of Put Options) in the Clovis Securities at the time of purchase or acquisition
and the time of sale, or (b) the difference between the purchase price and the sale price (if sold
during the Class Period). Under the Plan of Allocation, claimants who purchased shares during
the Class Period but did not hold those shares through at least one of the two partial corrective
disclosures (which occurred before the market opened on November 16, 2015 and before the
market opened on April 8, 2016) will have no Recognized Loss Amount as to those transactions
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because any loss suffered on those transactions would not be the result of the alleged misstatements
in the Action.
183. In sum, the Plan of Allocation was designed to fairly and rationally allocate the
proceeds of the Net Settlement Fund among Settlement Class Members based on damages they
suffered on purchases of Clovis common stock or Clovis Call Options (and sales of Clovis Put
Options) that were attributable to the misconduct alleged in the Complaint. Accordingly, Lead
Counsel respectfully submits that the Plan of Allocation is fair and reasonable and should be
approved by the Court.
184. As noted above, as of September 20, 2017, 53,629 copies of the Notice, which
contains the Plan of Allocation and advises Class Members of their right to object to the proposed
Plan of Allocation, have been sent to potential Class Members and nominees. See Thurin Decl.
¶8. To date, no objection to the proposed Plan of Allocation has been received.
IX. THE FEE AND LITIGATION EXPENSE APPLICATION
185. In addition to seeking final approval of the Settlement and Plan of Allocation, Lead
Counsel are applying to the Court for an award of attorneys’ fees and reimbursement of Litigation
Expenses on behalf of all Plaintiffs’ Counsel.
186. Specifically, Lead Counsel are applying for a fee award of 22.5% of the net
Settlement Fund, or $31.844 million plus interest accrued at the same rate as earned by the
Settlement Fund, and for reimbursement of $427,133.68 in Plaintiffs’ Counsel’s Litigation
Expenses. The amount of Plaintiffs’ Counsel’s incurred expenses for which Lead Counsel seek
reimbursement, together with the amount of the award requested by Plaintiffs pursuant to the
PSLRA, is well below the maximum expense amount of $900,000 stated in the Notice.
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187. Based on the factors discussed below, and on the legal authorities discussed in the
accompanying Fee Memorandum, we respectfully submit that Lead Counsel’s motion for fees and
expenses should be granted.
A. The Fee Application
188. Lead Counsel is applying for a fee award to be paid from the Settlement Fund on a
percentage basis. As discussed in the accompanying Fee Memorandum, the percentage method is
the preferred method of fee recovery for common-fund cases in the Tenth Circuit.
189. Based on the quality of the result achieved, the extent and quality of the work
performed, the significant risks of the litigation, and the fully contingent nature of the
representation, Lead Counsel respectfully submits that the requested fee award is reasonable and
should be approved. As discussed in the Fee Memorandum, a fee award of 22.5% of the net
Settlement Fund is fair and reasonable for attorneys’ fees in common-fund cases like this and is
well within the range of percentages awarded in class actions in this District and Circuit for
comparable settlements.
1. Lead Plaintiff Supports The Fee Application
190. The Arkin Group is a sophisticated investor that closely supervised and monitored
the prosecution and settlement of this Action. See Declaration of Moshe Arkin, in Support of: (I)
Lead Plaintiff’s Motion for Final Approval of Class Action Settlement and Plan of Allocation;
(II) Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation
Expenses; and (III) Lead Plaintiff’s Request for Reimbursement of Costs and Expenses (the “Arkin
Decl.”), attached to this Declaration as Exhibit 2, at ¶¶3-5. The Arkin Group has evaluated the
Fee Application and believes it to be fair and reasonable. The fee requested is consistent with a
retainer agreement entered into between Lead Plaintiff and Lead Counsel at the outset of the
litigation. Id. at ¶7. Lead Plaintiff has approved the proposed fee as consistent with the written
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retainer agreement and believes it is fair and reasonable in light of the quality of the result obtained,
the work counsel performed, and the risks of the litigation. Id. ¶7.8 The Arkin Group’s
endorsement of the requested fee demonstrates its reasonableness and should be given weight in
the Court’s consideration of the fee award.9
2. The Time And Labor Of Plaintiffs’ Counsel
191. The investigation, prosecution, and settlement of the claims asserted in this Action
required extensive efforts on the part of Lead Counsel and other Plaintiffs’ Counsel, given the
complexity of the legal and factual issues raised by Lead Plaintiff’s claims and the vigorous
defense mounted by Defendants. The many tasks undertaken by Lead Counsel in this case are
detailed above (¶¶21-110). These tasks, which are described in more detail above, included, among
other things:
(i) conducting a comprehensive factual investigation of the claims at issue in
the Action, which included, among other things, a review of all relevant public information,
research of the applicable law, consulting with multiple experts, and identifying, locating,
and interviewing numerous confidential witnesses;
(ii) preparing and filing the detailed and particularized 152-page Consolidated
Class Action Complaint based on Lead Counsel’s extensive factual investigation;
8 There is one aspect where the fee request is slightly different than the retainer. Lead Plaintiff and Lead Counsel agreed that Lead Counsel would seek fees off of the “net” Settlement Fund (after first subtracting any Court-awarded expenses), rather than the entire Settlement Fund as contemplated by the retainer. Id. 9 Named plaintiff St. Petersburg also believes the fee request is fair and reasonable. See Declaration of Jane Wallace, Assistant City Attorney for The City of St. Petersburg and Attorney for The City of St. Petersburg Employees’ Retirement System, in Support of: (I) Lead Plaintiff’s Motion for Final Approval of Class Action Settlement and Plan of Allocation; (II) Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses; and (III) Plaintiff’s Request for Reimbursement of Costs and Expenses (the “Wallace Decl.”), attached to this Declaration as Exhibit 3, at ¶7.
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(iii) successfully briefing and arguing a motion to stay a duplicative putative
class action filed in California state court;
(iv) vigorously and successfully defending the motions to dismiss filed by
Defendants, which included the drafting of a 100-page brief in opposition to the more than
1,000 pages of briefing and exhibits filed by the Defendants;
(v) preparing and serving extensive discovery requests on Defendants and the
FDA;
(vi) participating in extensive correspondence and numerous meet and confers
between the parties concerning discovery disputes;
(vii) identifying and retaining preeminent experts in biostatistics, radiology and
oncologic imaging, medical oncology, FDA New Drug Application review, investment
banking, and financial economics;
(viii) amending the Consolidated Class Action Complaint to address the Court’s
concerns about standing in connection with the Securities Act claims, and opposing the
Non-Lead Underwriters’ motion to dismiss the Complaint’s Section 11 claims against them
for lack of standing;
(ix) reviewing documents produced by the FDA and Clovis, as well as scientific
and regulatory literature, in anticipation of depositions and summary judgement briefing;
(x) participating in extensive settlement negotiations with the assistance of the
mediator, former Judge Phillips, which included the submission of two sets of
comprehensive mediation statements, the review of numerous internal documents Clovis
produced in connection with its mediation submissions, and an all-day formal mediation
session and numerous follow-up calls with the mediator, Lead Plaintiff, and Defendants;
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(xi) drafting the Stipulation of Settlement and related documents, which
included several rounds of intensive back and forth negotiations between counsel; and
(xii) conducting extensive due diligence discovery that has confirmed the
fairness and reasonableness of the proposed Settlement, which has included the review and
analysis of more than 350,000 documents produced by Clovis, the Underwriter Defendants,
and the FDA, continued consultations with experts, and interviews with numerous
Defendants and/or senior Clovis executives.
192. The first page of Exhibit 6 to this Declaration contains a summary chart of the hours
expended and lodestar amounts for each Plaintiffs’ Counsel firm, as well as a summary of each
firm’s Litigation Expenses.10 Included within each supporting declaration is a schedule
summarizing the hours and lodestar of each firm from the inception of the case through and
including September 21, 2017, a summary of Litigation Expenses by category, and a firm résumé.
No time expended in preparing the application for fees and reimbursement of expenses has been
included.
193. As shown in Exhibit 6, Plaintiffs’ Counsel collectively expended a total of
23,521.90 hours in investigating, prosecuting, and settling the Action from its inception through
and including September 20, 2017, for a total lodestar of $10,654,683.25. The requested fee of
22.5% of the net Settlement Fund represents approximately $31.844 million (plus interest), and
therefore represents a lodestar multiplier of approximately 2.99.
194. As detailed above, throughout this case, Lead Counsel devoted substantial time to
the prosecution of the Action. I maintained control of and monitored the work performed by other
lawyers at BLB&G and other Plaintiffs’ Counsel on this case. While I personally devoted
10 Wheeler Trigg is not requesting reimbursement of Litigation Expenses.
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substantial time to this case, and personally appeared in Court, liasoned with the Lead Plaintiff,
attended the mediation, reviewed and edited all pleadings, motions, and correspondence prepared
on behalf of Lead Plaintiff, other experienced attorneys at my firm were involved in the litigation
and settlement negotiations. More junior attorneys and paralegals also worked on matters
appropriate to their skill and experience level. Throughout the litigation, Plaintiffs’ Counsel
maintained an appropriate level of staffing that avoided unnecessary duplication of effort and
ensured the efficient prosecution of this litigation.
3. The Skill And Experience Of Plaintiffs’ Counsel
195. As demonstrated by the firm résumé attached as Exhibit 3 to Exhibit 6A, BLB&G
is among the most experienced and skilled law firms in the securities-litigation field, with a long
and successful track record representing investors in cases of this kind. BLB&G is consistently
ranked among the top plaintiffs’ firms in the country. Further, BLB&G has taken complex cases
like this to trial, and it is among the few firms with experience doing so on behalf of plaintiffs in
securities class actions. I believe that this willingness and ability to take complex cases to trial
added valuable leverage in the settlement negotiations.11
4. Standing And Caliber Of Defendants’ Counsel
196. The quality of the work performed by Lead Counsel in attaining the Settlement
should also be evaluated in light of the quality of the opposition. Here, the Clovis Defendants
were represented by Willkie Farr & Gallagher LLP, one of the country’s most prestigious and
experienced defense firms, which vigorously represented its clients. The Underwriter Defendants
were represented by Sullivan & Cromwell LLP, yet another of the country’s top corporate defense
11 As demonstrated by its firm résumé submitted with this Declaration, Saxena White (counsel for additional plaintiff St. Petersburg) is also a class-action law firm with significant experience in the securities-litigation field. See Exhibit 3 to Exhibit 6B (Saxena White firm résumé).
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firms, who vigorously defended the Action as to the Underwriter Defendants. In the face of this
experienced, formidable, and well-financed opposition, Lead Counsel was nonetheless able to
defeat Defendants’ motions to dismiss and persuade them to settle the case on terms favorable to
the Settlement Class.
5. The Risks Of Litigation And The Need To Ensure The Availability Of Competent Counsel In High-Risk Contingent Securities Cases
197. This prosecution was undertaken by Lead Counsel entirely on a contingent-fee
basis. The risks assumed by Lead Counsel in bringing these claims to a successful conclusion are
described above. Those risks are also relevant to an award of attorneys’ fees.
198. From the outset, Lead Counsel understood that it was embarking on a complex,
expensive, and lengthy litigation with no guarantee of ever being compensated for the substantial
investment of time and money the case would require. In undertaking that responsibility, Lead
Counsel were obligated to ensure that sufficient resources were dedicated to the prosecution of the
Action, and that funds were available to compensate staff and to cover the considerable litigation
costs that a case like this requires. With an average lag time of several years for these cases to
conclude, the financial burden on contingent-fee counsel is far greater than on a firm that is paid
on an ongoing basis. Indeed, Plaintiffs’ Counsel received no compensation during the course of
the Action and have collectively incurred over $427,133.68 in Litigation Expenses in prosecuting
the Action for the benefit of the Settlement Class.
199. Lead Counsel also bore the risk that no recovery would be achieved. As discussed
above, from the outset, this case presented multiple risks and uncertainties that could have
prevented any recovery whatsoever. Despite the most vigorous and competent of efforts, success
in contingent-fee litigation like this Action is never assured.
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200. Lead Counsel know from experience that the commencement of a class action does
not guarantee a settlement. To the contrary, it takes hard work and diligence by skilled counsel to
develop the facts and theories that are needed to sustain a complaint or win at trial, or to induce
sophisticated defendants to engage in serious settlement negotiations at meaningful levels.
201. Moreover, courts have repeatedly recognized that it is in the public interest to have
experienced and able counsel enforce the securities laws and regulations pertaining to the duties
of officers and directors of public companies. As recognized by Congress through the passage of
the PSLRA, vigorous private enforcement of the federal securities laws can only occur if private
investors, particularly institutional investors, take an active role in protecting the interests of
shareholders. To carry out important public policy, the courts should award fees that adequately
compensate plaintiffs’ counsel, taking into account the risks undertaken in prosecuting a securities
class action.
202. Lead Counsel’s extensive and persistent efforts in the face of substantial risks and
uncertainties have resulted in a significant recovery for the benefit of the Settlement Class. In
these circumstances, and in consideration of the hard work performed and the excellent result
achieved, I believe the requested fee is reasonable and should be approved.
6. The Settlement Class’s Reaction To The Fee Application
203. As noted above, as of September 20, 2017, a total of 53,629 Notice Packets have
been mailed to potential Class Members and nominees advising them that Lead Counsel would
apply for an award of attorneys’ fees in an amount not to exceed 22.5% of the Settlement Fund.
See Thurin Decl. ¶8. In addition, the Court-approved Summary Notice has been published in the
Wall Street Journal and transmitted over the PR Newswire. Id. at ¶9. To date, no objection to the
attorneys’ fees stated in the Notice has been received. Should any objections be received, they
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will be addressed in Lead Counsel’s reply papers to be filed on or before September 19, 2017, after
the deadline for submitting objections has passed.
204. In sum, Lead Counsel accepted this case on a contingency basis, committed
significant resources to it, and prosecuted it without any compensation or guarantee of success.
Based on the favorable result obtained, the quality of the work performed, the risks of the Action,
and the contingent nature of the representation, Lead Counsel respectfully submit that a fee award
of 22.5% is fair and reasonable and is supported by the fee awards courts have granted in
comparable cases.
B. The Litigation Expense Application
205. Lead Counsel, on behalf of Plaintiffs’ Counsel also seek reimbursement from the
Settlement Fund of $427,133.68 in Litigation Expenses that were reasonably incurred by
Plaintiffs’ Counsel in connection with commencing, litigating, and settling the claims asserted in
the Action (the “Expense Application”).
206. From the outset of the Action, Lead Counsel and other Plaintiffs’ Counsel have
been cognizant of the fact that they might not recover any of their expenses, and, further, if there
were to be reimbursement of expenses, it would not occur until the Action was successfully
resolved, often a period lasting several years. Lead Counsel also understood that, even assuming
that the case was ultimately successful, reimbursement of expenses would not necessarily
compensate them for the lost use of funds advanced by them to prosecute the Action. Counsel’s
fee award was also based on the class recovery net of these expenses. Consequently, Lead Counsel
was motivated to, and did, take significant steps to minimize expenses whenever practicable
without jeopardizing the vigorous and efficient prosecution of the case.
207. As shown in Exhibit 6 to this Declaration, Plaintiffs’ Counsel have incurred a total
of $427,133.68 in unreimbursed Litigation Expenses in prosecuting the Action. The expenses are
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summarized in Exhibit 7, which was prepared based on the declarations submitted by each firm
and identifies each category of expense, e.g., expert fees, online research, out-of-town travel,
mediation fees, photocopying, and postage expenses, and the amount incurred for each category.
These expense items are billed separately by Plaintiffs’ Counsel and are not duplicated in
Plaintiffs’ Counsel’s billing rates.
208. Of the total amount of expenses, $245,343.23, or approximately 57%, was incurred
for the retention of experts. As noted above, Lead Counsel consulted extensively with experts in
biostatistics, radiology and oncologic imaging, medical oncology, FDA New Drug Application
review, investment banking, and financial economics.
209. As also noted above, these experts included some extremely experienced and well-
regarded experts in the fields of oncology, clinical drug trials, statistics, regulatory oversight,
finance, banking, and damages.
210. Another large component of the Litigation Expenses was for online legal and
factual research, which was necessary to prepare the complaints, research the law pertaining to the
claims asserted in the Action, brief the motion to stay the California action, and oppose
Defendants’ motions to dismiss. The total charges for online legal and factual research amount to
$50,733.16, or approximately 12% of the total amount of expenses.
211. Plaintiffs’ Counsel have also incurred expenses totaling $28,316.68 (approximately
7% of total expenses) for mediation fees charged by former Judge Phillips.
212. In addition, Plaintiffs’ Counsel have reported charges of $66,486.17, or
approximately 16% of the total amount of expenses, for electronic discovery/document
management, which includes charges for an electronic-discovery vendor that provided data-
storage services for the discovery documents produced in electronic form. The e-discovery
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vendor’s platform also provided tools for electronically searching, reviewing, and analyzing the
documents.
213. The other expenses for which Lead Counsel seek reimbursement are the types of
expenses that are necessarily incurred in litigation and routinely charged to clients billed by the
hour. These expenses include, among others, court fees, copying costs, long-distance telephone
charges, and out-of-town travel costs.
214. All of the Litigation Expenses incurred by Plaintiffs’ Counsel were reasonable and
necessary to the successful litigation of the Action, and have been approved by Lead Plaintiff. See
Arkin Decl. ¶8.
215. Additionally, in accordance with the PSLRA, the Arkin Group and St. Petersburg
seek reimbursement of their reasonable costs and expenses incurred directly in connection with
their representation of the Settlement Class, in the amount of $33,300.00 and $9,900.00,
respectively, for a total of $43,200.00. See Arkin Decl. ¶¶9-12; Wallace Decl. ¶¶9-11.
216. The Notice informed potential Class Members that Lead Counsel would seek
reimbursement of Litigation Expenses in an amount not to exceed $900,000. The total amount
requested, $470,333.68, which includes $427,133.68 in reimbursement of expenses incurred by
Plaintiffs’ Counsel and $43,200.00 in reimbursement of costs and expenses incurred by Plaintiffs,
is significantly below the $900,000 that Class Members were notified could be sought. To date,
no Class Member has objected to the maximum amount of expenses disclosed in the Notice. Lead
Counsel will address any objections in its reply papers.
217. The expenses incurred by Plaintiffs’ Counsel and Plaintiffs were reasonable and
necessary to represent the Settlement Class and achieve the Settlement. Accordingly, Lead
76 Case 1:15-cv-02546-RM-MEH Document 170 Filed 09/21/17 USDC Colorado Page 83 of 83
Counsel respectfully submit that the Litigation Expenses should be reimbursed in full from the
Settlement Fund.
CONCLUSION
218. For all the reasons discussed above, Lead Plaintiff and Lead Counsel respectfully
submit that the Settlement and the Plan of Allocation should be approved as fair, reasonable, and
adequate. Lead Counsel further submit that the requested fee in the amount of 22.5% of the net
Settlement Fund should be approved as fair and reasonable, and the request for reimbursement of
total Litigation Expenses in the total amount of $470,333.68 should also be approved.
I declare, under penalty of perjury under the laws of the United States, that the foregoing
is true and correct.
Dated: September 21, 2017
______John C. Browne
77 Case 1:15-cv-02546-RM-MEH Document 170-1 Filed 09/21/17 USDC Colorado Page 1 of 4
EXHIBIT 1 Case 1:15-cv-02546-RM-MEH Document 170-1 Filed 09/21/17 USDC Colorado Page 2 of 4 Case 1:15-cv-02546-RM-MEH Document 170-1 Filed 09/21/17 USDC Colorado Page 3 of 4 Case 1:15-cv-02546-RM-MEH Document 170-1 Filed 09/21/17 USDC Colorado Page 4 of 4 Case 1:15-cv-02546-RM-MEH Document 170-2 Filed 09/21/17 USDC Colorado Page 1 of 8
EXHIBIT 2 Case 1:15-cv-02546-RM-MEH Document 170-2 Filed 09/21/17 USDC Colorado Page 2 of 8
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH
SONNY P. MEDINA, et al.,
Plaintiffs, v.
CLOVIS ONCOLOGY, INC., et al.,
Defendants.
______
DECLARATION OF MOSHE ARKIN, IN SUPPORT OF: (I) LEAD PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION; (II) LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES; AND (III) LEAD PLAINTIFF’S REQUEST FOR REIMBURSEMENT OF COSTS AND EXPENSES ______Case 1:15-cv-02546-RM-MEH Document 170-2 Filed 09/21/17 USDC Colorado Page 3 of 8
I, Moshe Arkin, hereby declare under penalty of perjury as follows:
1. I serve as the Sole Director of Lead Plaintiff M.Arkin (1999) LTD and Arkin
Communications LTD (“Lead Plaintiff” or the “Arkin Group”).1 I submit this declaration on behalf
of the Arkin Group and in support of: (a) Lead Plaintiff’s motion for final approval of the proposed
Settlement and approval of the proposed Plan of Allocation; (b) Lead Counsel’s motion for an
award of attorneys’ fees and reimbursement of Litigation Expenses; and (c) the Arkin Group’s
request to recover the reasonable costs and expenses incurred in connection with the prosecution
and settlement of this litigation.
2. I am aware of and understand the requirements and responsibilities of a lead
plaintiff in a securities class action as set forth in the Private Securities Litigation Reform Act of
1995 (the “PSLRA”). I have personal knowledge of the matters set forth in this Declaration, as I
have been directly involved in monitoring and overseeing the prosecution of the Action and
personally negotiated and oversaw negotiations leading to the Settlement, and I could and would
testify competently thereto.
3. M.Arkin (1999) LTD and Arkin Communications LTD are limited companies
incorporated in Israel. These companies are investment funds that principally invest in the
healthcare, biotechnology, and pharmaceutical sectors. I formerly headed Agis, a leading U.S.
dermatological company that was acquired by Perrigo, and have considerable expertise and
experience in the life sciences and biotechnology fields as both an entrepreneur and investor,
particularly in the area of drug development and commercialization. In addition, the Arkin Group
is staffed with sophisticated investment professionals with expertise in medicine, biology,
1 Unless otherwise defined herein, all capitalized terms have the meanings set forth in the Stipulation and Agreement of Settlement dated June 18, 2017 (the “Stipulation” or “Stipulation of Settlement”) previously filed with the Court. See Dkt. No. 156-1.
1 Case 1:15-cv-02546-RM-MEH Document 170-2 Filed 09/21/17 USDC Colorado Page 4 of 8
statistics, and other disciplines related to life sciences and biotechnology. Accordingly, the Arkin
Group is a sophisticated investor that possesses considerable knowledge and expertise with respect
to the subject matter at issue in this Action.
I. Arkin Group’s Oversight of the Action and Settlement Negotiations
4. On behalf of the Arkin Group, I had regular communications with Bernstein
Litowitz Berger & Grossmann LLP (“BLB&G”), the Court-appointed Lead Counsel for the
Settlement Class, throughout the litigation. The Arkin Group, through my active and continuous
involvement, as well as others as detailed below, closely supervised, carefully monitored, and was
actively involved in all material aspects of the prosecution of the Action and the negotiations
leading to the Settlement. The Arkin Group received court filings, was given periodic status
reports from Lead Counsel on case developments, and participated in regular discussions with
attorneys from Lead Counsel concerning the prosecution of the Action, the strengths of and risks
to the claims, and potential settlement. In particular, throughout the course of this Action, I:
(a) participated in discussions with Lead Counsel concerning significant developments in the litigation, including case strategy;
(b) reviewed and commented on all significant pleadings and briefs filed in the Action;
(c) consulted with Lead Counsel regarding the retention of experts and consultants;
(d) personally conducted settlement negotiations with Clovis CEO Patrick Mahaffy in Tel Aviv on May 23, 2017, and otherwise consulted with Lead Counsel concerning the settlement negotiations as they progressed; and
(e) evaluated, approved and recommended approval of the proposed Settlement for $142 million in cash and Clovis common stock.
II. Arkin Group Fully Endorses Approval of the Settlement
5. The Arkin Group oversaw and managed all aspects of the lengthy settlement
negotiations in this Action. In particular, as discussed above, on May 23, 2017, I personally met
with Clovis CEO Patrick Mahaffy in order to discuss the merits of this case and to negotiate a
2 Case 1:15-cv-02546-RM-MEH Document 170-2 Filed 09/21/17 USDC Colorado Page 5 of 8
potential resolution. I also conferred with Lead Counsel at length regarding the parties’ March 14,
2017 mediation and subsequent settlement negotiations.
6. Based on its involvement throughout the prosecution and resolution of the claims,
the Arkin Group fully endorses the Settlement and believes it provides an excellent recovery for
the Settlement Class, particularly in light of the substantial risks of continuing to prosecute the
claims in the Action.
III. Arkin Group Supports Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses
7. The Arkin Group believes that Lead Counsel’s request for an award of attorneys’
fees in the amount of 22.5% of the net Settlement Fund is fair and reasonable in light of the work
Plaintiffs’ Counsel performed on behalf of the Settlement Class. The fee percentage requested is
consistent with the retainer agreement that the Arkin Group entered into with Lead Counsel prior
to the start of the litigation except in one respect – i.e., the retainer agreement permitted Lead
Counsel to seek a fee as a percentage of the Settlement fund prior to reimbursement of expenses.
The Arkin Group and Lead Counsel have agreed that notwithstanding the wording of the retainer
agreement Lead Counsel will seek a fee based on the “net” Settlement Fund, such that any Court-
awarded expenses will be reimbursed first and then Lead Counsel will seek 22.5% of the remaining
(net) Settlement Fund. The Arkin Group takes seriously its role as a Lead Plaintiff to ensure that
the attorneys’ fees are fair in light of the result achieved for the Settlement Class and reasonably
compensate Plaintiffs’ Counsel for the work involved and the substantial risks they undertook in
litigating the Action. As noted, prior to retaining Lead Counsel to act on behalf of the Arkin Group
and the Class in this matter, the Arkin Group negotiated a retainer agreement with Lead Counsel
and particularly negotiated the fee percentage. The Arkin Group has evaluated Lead Counsel’s fee
3 Case 1:15-cv-02546-RM-MEH Document 170-2 Filed 09/21/17 USDC Colorado Page 6 of 8
request by considering the work performed and by considering the substantial recovery obtained
for the Settlement Class.
8. The Arkin Group further believes that the Litigation Expenses being requested for
reimbursement to Lead Counsel are reasonable, and represent costs and expenses necessary for the
prosecution and resolution of the claims in the Action. Based on the foregoing, and consistent
with its obligation to the Settlement Class to obtain the best result at the most efficient cost, the
Arkin Group fully supports Lead Counsel’s motion for an award of attorneys’ fees and
reimbursement of Litigation Expenses.
IV. Arkin Group’s Request for a PSLRA Award
9. The Arkin Group understands that reimbursement of a Lead Plaintiff’s reasonable
costs and expenses is authorized under the PSLRA. For this reason, in connection with Lead
Counsel’s request for reimbursement of Litigation Expenses, the Arkin Group seeks
reimbursement for the costs and expenses that it incurred directly relating to its representation of
the Settlement Class in the Action.
10. As the Sole Director of the Arkin Group, I am responsible for directing the day-to-
day operations of our investment funds and overseeing the operation and strategy of the Arkin
Group. As discussed above, the Arkin Group, through my active and continuous involvement in
this Action, closely supervised, carefully monitored, and was actively involved in all material
aspects of the prosecution and settlement of the litigation, which included regular communications
with Lead Counsel; preparation for the lead plaintiff hearing; review, analysis, and editing
pleadings; review and gathering of documents in response to discovery; and preparation for, and
participating in, the mediation and settlement negotiations.
4 Case 1:15-cv-02546-RM-MEH Document 170-2 Filed 09/21/17 USDC Colorado Page 7 of 8
11. In addition, the following Arkin Group employees also participated in the
prosecution of this Action: Nir Arkin (Chief Executive Officer), Itai Arkin (Investment Manager),
Alon Lazaras (Biotech Investment Manager), Pini Orbach (Head of Pharma), Hani Lerman (Chief
Financial Officer), and Gilad Lahav (former Investment Manager).
12. The time that Arkin Group personnel devoted to the representation of the Settlement
Class in this Action was time that we otherwise would have spent on other work for the Arkin
Group and, thus, represented a cost to the Arkin Group. The Arkin Group seeks reimbursement in
the amount of $33,300.00 for the time of the following personnel:
Personnel Hours Rate2 Total Moshe Arkin 40.50 $300.00 $12,150.00 Nir Arkin 8.50 $300.00 $2,550.00 Itai Arkin 5.50 $300.00 $1,650.00 Alon Lazaras 40.50 $300.00 $12,150.00 Pini Orbach 4.00 $300.00 $1,200.00 Hani Lerman 10.50 $300.00 $3,150.00 Gilad Lahav 1.50 $300.00 $450.00 TOTAL 111.00 $33,300.00 V. Conclusion
13. In conclusion, the Arkin Group was closely involved throughout the prosecution
and settlement of the claims in this Action, strongly endorses the Settlement as fair, reasonable and
adequate, and believes that it represents a significant recovery for the Settlement Class.
Accordingly, the Arkin Group respectfully requests that the Court approve: (a) Lead Plaintiff’s
motion for final approval of the proposed Settlement; (b) Lead Counsel’s motion for an award of
attorneys’ fees and reimbursement of Litigation Expenses, and (c) the Arkin Group’s request for
reimbursement for its reasonable costs and expenses incurred in prosecuting the Action on behalf
of the Settlement Class, as set forth above.
2 The hourly rate used for purposes of this request is based on the approximate average billing rates of Lead Counsel’s paralegals who billed time to this Action.
5 Case 1:15-cv-02546-RM-MEH Document 170-2 Filed 09/21/17 USDC Colorado Page 8 of 8
6 Case 1:15-cv-02546-RM-MEH Document 170-3 Filed 09/21/17 USDC Colorado Page 1 of 7
EXHIBIT 3 Case 1:15-cv-02546-RM-MEH Document 170-3 Filed 09/21/17 USDC Colorado Page 2 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH
SONNY P. MEDINA, et al.,
Plaintiffs, v.
CLOVIS ONCOLOGY, INC., et al.,
Defendants.
______
DECLARATION OF JANE WALLACE, ASSISTANT CITY ATTORNEY FOR THE CITY OF ST. PETERSBURG AND ATTORNEY FOR THE CITY OF ST. PETERSBURG EMPLOYEES’ RETIREMENT SYSTEM, IN SUPPORT OF: (I) LEAD PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION; (II) LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES; AND (III) PLAINTIFF’S REQUEST FOR REIMBURSEMENT OF COSTS AND EXPENSES ______
Case 1:15-cv-02546-RM-MEH Document 170-3 Filed 09/21/17 USDC Colorado Page 3 of 7
I, Jane Wallace, hereby declare under penalty of perjury as follows:
1. I am an Assistant City Attorney for the City of St. Petersburg and I am the
attorney for the City of St. Petersburg Employees’ Retirement System (“St. Petersburg”), a
named Plaintiff in the above-captioned securities class action (the “Action”).1 I submit this
declaration on behalf of St. Petersburg and in support of: (a) Lead Plaintiff’s motion for final
approval of the proposed Settlement and approval of the proposed Plan of Allocation; (b) Lead
Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses; and
(c) St. Petersburg’s request to recover the reasonable costs and expenses incurred in connection
with the prosecution and settlement of this litigation.
2. I am aware of and understand the requirements and responsibilities of a
representative plaintiff in a securities class action, including those set forth in the Private
Securities Litigation Reform Act of 1995 (the “PSLRA”). I have personal knowledge of the
matters set forth in this Declaration, as I have been directly involved in monitoring and
overseeing the prosecution of the Action on behalf of St. Petersburg, and I could and would
testify competently to these matters.
I. Work Performed by St. Petersburg on behalf of the Settlement Class
3. St. Petersburg is a public retirement system that provides defined benefit pension
payments to the retired public employees of St. Petersburg, Florida. As of October 1, 2016, St.
Petersburg had approximately $387 million in assets under management on behalf of over 3,000
members.
1 Unless otherwise defined herein, all capitalized terms have the meanings set forth in the Stipulation and Agreement of Settlement dated June 18, 2017 (the “Stipulation”) previously filed with the Court. See Dkt. No. 156-1.
1 Case 1:15-cv-02546-RM-MEH Document 170-3 Filed 09/21/17 USDC Colorado Page 4 of 7
4. On January 19, 2016, St. Petersburg moved for appointment as Lead Plaintiff.
(See Dkt. No. 14). On February 2, 2016, St. Petersburg filed a notice of non-opposition to Lead
Plaintiff’s motion for appointment as Lead Plaintiff. (See Dkt. No. 34). In May 2016, St.
Petersburg was added as a named Plaintiff in the Consolidated Class Action Complaint. (See
Dkt. No. 65). St. Petersburg purchased shares of Clovis common stock in the July 2015 Offering
directly from the offering’s lead underwriter, J.P. Morgan Securities LLC.
5. Since its involvement in this case, St. Petersburg has received regular periodic
status reports from its counsel, Saxena White P.A. (“Saxena White”), on case developments, and
participated in discussions with attorneys from Saxena White concerning the prosecution of the
Action, the strengths of and risks to the claims, and potential settlement. In particular, over the
course of the litigation, I and other St. Petersburg employees:
(a) regularly communicated with Saxena White by email and telephone regarding the
posture and progress of the case;
(b) reviewed significant pleadings and briefs filed in the Action; and
(c) reviewed the proposed Settlement.
II. The Settlement
6. Based on its involvement in this Action, the proposed Settlement is fair,
reasonable, and adequate to the Settlement Class, particularly in light of the substantial risks of
continued litigation.
III. Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses
7. Lead Counsel’s request for an award of attorneys’ fees in the amount of 22.5% of
the net Settlement Fund is fair and reasonable in light of the terms of the retainer agreement
between St. Petersburg and Plaintiffs’ Counsel and the work Plaintiffs’ Counsel performed on
2 Case 1:15-cv-02546-RM-MEH Document 170-3 Filed 09/21/17 USDC Colorado Page 5 of 7
behalf of the Settlement Class. St. Petersburg takes seriously its role as a Lead Plaintiff to ensure
that the attorneys’ fees are fair in light of the result achieved for the Settlement Class and
reasonably compensate Plaintiffs’ Counsel for the work involved and the substantial risks they
undertook in litigating the Action.
8. The Litigation Expenses being requested for reimbursement to Lead Counsel are
reasonable and necessary in light of the terms of the retainer agreement between St. Petersburg
and Plaintiffs’ Counsel.
IV. St. Petersburg’s Request for a PSLRA Award
9. St. Petersburg understands that reimbursement of a representative plaintiff’s
reasonable costs and expenses is authorized under the PSLRA. For this reason, in connection
with Lead Counsel’s request for reimbursement of Litigation Expenses, St. Petersburg seeks
reimbursement for the costs and expenses that it incurred directly relating to its representation of
the Settlement Class in the Action.
10. My primary responsibilities at St. Petersburg include general legal work as well as
overseeing litigation matters involving the fund, such as St. Petersburg’s activities in securities
class actions where (as here) it serves as a representative plaintiff.
11. The time that St. Petersburg personnel devoted to the representation of the
Settlement Class in this Action was time that we otherwise would have spent on other work for
the City of St. Petersburg and, thus, represented a cost to the City of St. Petersburg. St.
Petersburg seeks reimbursement in the amount of $9,900 for the time of the following personnel:
3 Case 1:15-cv-02546-RM-MEH Document 170-3 Filed 09/21/17 USDC Colorado Page 6 of 7
Personnel Hours Rate2 Total Jane Wallace 25 $300.00 $7,500 Tammy Jerome 5 $300.00 $1,500 Vicki A. Grant 3 $300.00 $900 TOTAL 33 $9,900
IV. Conclusion
12. St. Petersburg respectfully requests that the Court approve: (a) Lead Plaintiff’s
motion for final approval of the proposed Settlement; (b) Lead Counsel’s motion for an award of
attorneys’ fees and reimbursement of Litigation Expenses, and (c) St. Petersburg’s request for
reimbursement for its reasonable costs and expenses incurred in prosecuting the Action on behalf
of the Settlement Class, as set forth above.
2 The hourly rate used for purposes of this request is based on the approximate blended average billing rates of Lead Counsel’s paralegals who billed time to this Action.
4 Case 1:15-cv-02546-RM-MEH Document 170-3 Filed 09/21/17 USDC Colorado Page 7 of 7 Case 1:15-cv-02546-RM-MEH Document 170-4 Filed 09/21/17 USDC Colorado Page 1 of 7
EXHIBIT 4 Case 1:15-cv-02546-RM-MEH Document 170-4 Filed 09/21/17 USDC Colorado Page 2 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH
SONNY P. MEDINA, et al.,
Plaintiffs, v.
CLOVIS ONCOLOGY, INC., et al.,
Defendants.
______
DECLARATION OF LAYN R. PHILLIPS IN SUPPORT OF LEAD PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT ______
Case 1:15-cv-02546-RM-MEH Document 170-4 Filed 09/21/17 USDC Colorado Page 3 of 7
I, LAYN R. PHILLIPS, declare under penalty of perjury as follows:
1. I am filing this Declaration in my capacity as the mediator in connection with the
proposed settlement of the above-captioned securities class action.
I. BACKGROUND AND QUALIFICATIONS
2. I am a former U.S. District Judge, a former United States Attorney, and a former
litigation partner with the firm of Irell & Manella LLP. I currently serve as a mediator and
arbitrator with my own alternative dispute resolution company, Phillips ADR Enterprises, P.C.
(“PADRE”), which is based in Corona Del Mar, California. I am a member of the bars of
Oklahoma, Texas, California and the District of Columbia, as well as the U.S. Courts of Appeals
for the Ninth and Tenth Circuits and the Federal Circuit.
3. I earned my Bachelor of Science in Economics as well as my J.D. from the
University of Tulsa. I also completed two years of L.L.M. work at Georgetown University Law
Center in the area of economic regulation of industry. After serving as an antitrust prosecutor and
an Assistant United States Attorney in Los Angeles, California, I was nominated by President
Reagan to serve as a United States Attorney in Oklahoma, and did so for approximately four years.
4. I personally tried many cases and oversaw the trials of numerous other cases as a
United States Attorney. While serving as a United States Attorney, I was nominated by President
Reagan to serve as a United States District Judge for the Western District of Oklahoma. While on
the bench, I presided over a total of more than 140 federal trials and sat by designation in the
United States Court of Appeals for the Tenth Circuit. I also presided over cases in Texas, New
Mexico and Colorado.
5. I left the federal bench in 1991 and joined Irell & Manella, where for 23 years I
specialized in alternative dispute resolution, complex civil litigation and internal investigations.
1
Case 1:15-cv-02546-RM-MEH Document 170-4 Filed 09/21/17 USDC Colorado Page 4 of 7
In 2014, I left Irell & Manella to found my own company, PADRE, which provides mediation and
other alternative dispute resolution services.
6. Over the past 25 years, I have devoted a considerable amount of my professional
life to serving as a mediator and arbitrator in connection with large, complex cases such as this
one. I have successfully mediated numerous complex commercial cases, including dozens of
securities class action cases.
7. The parties’ negotiations were conducted in confidence and under my supervision.
All participants in the mediation and negotiations executed a confidentiality agreement indicating
that the mediation process was to be considered settlement negotiations for the purpose of Rule
408 of the Federal Rules of Evidence, protecting disclosures made during such process from later
discovery, dissemination, publication and/or use in evidence.
8. By making this declaration, neither I nor the parties waive in any way the provisions
of the confidentiality agreement or the protections of Rule 408. While I cannot discuss the contents
of the mediation session, the parties have authorized me to inform the Court of the procedural and
substantive matters set forth below to be used in support of final approval of the settlement.
II. THE ARM’S-LENGTH SETTLEMENT NEGOTIATIONS
9. On March 14, 2017, the parties and their counsel participated in a full-day
mediation session before me. The participants included Lead Counsel, Bernstein Litowitz Berger
& Grossmann LLP; Clovis Oncology, Inc.’s (“Clovis”) General Counsel, Clovis and its executives’
outside counsel, Willkie Farr & Gallagher LLP, counsel for the Underwriter Defendants, Sullivan
& Cromwell LLP; and representatives from Clovis’ directors’ and officers’ liability insurance
carriers. Also present at the mediation session, but negotiating separately with the Defense Group,
was representatives from and counsel for Antipodean Domestic Partners, LP.
2
Case 1:15-cv-02546-RM-MEH Document 170-4 Filed 09/21/17 USDC Colorado Page 5 of 7
10. Prior to the mediation, the parties also exchanged and submitted to me two sets of
detailed mediation statements and responses thereto. These mediation statements included
numerous exhibits addressing liability and damages. I reviewed the briefing submitted by the
parties and provided a confidential list of specific questions to each side to help them thoroughly
evaluate the strengths and weaknesses of their case as well as clarify where substantial disputes on
liability and damages still existed.
11. I found the discussions in the mediation statements to be extremely valuable in
helping me understand the relative merits of each party’s positions, and to identify the issues that
were likely to serve as the primary drivers and obstacles to achieving a settlement. Counsel for
both parties presented significant arguments regarding their clients’ positions, and it was apparent
to me that both sides possessed strong, non-frivolous arguments, and that neither side was assured
of victory.
12. Because the parties submitted their mediation statements and arguments in the
context of a confidential mediation process pursuant to Federal Rule of Civil Procedure 408, I
cannot reveal their content. I can say, however, that the arguments and positions asserted by all
involved were the product of much hard work, and they were complex and highly adversarial.
After reviewing all of the written mediation statements and exhibits, I believed that the negotiation
would be a difficult and adversarial process through which all involved would hold strong to their
convictions that they had the better legal and substantive arguments, and that a resolution without
further litigation or trial was by no means certain.
13. With these issues, and many others, in mind I held the mediation session on March
14, 2017. Over the course of the day I engaged in extensive discussions with counsel and the
3
Case 1:15-cv-02546-RM-MEH Document 170-4 Filed 09/21/17 USDC Colorado Page 6 of 7
carriers in an effort to find common ground between the parties’ respective positions. In addition,
the parties exchanged several rounds of settlement demands and offers.
14. At the end of the day, it was apparent to me and the parties that an amicable
resolution would not be reached at that time. We ended the March 14, 2017 mediation session
without a settlement.
15. After the mediation session, I engaged in additional communications with the
parties’ counsel in an ongoing effort to resolve the dispute. On April 20, 2017, I convened a
conference call between attorneys for Lead Counsel, myself and the principal of the Lead Plaintiff,
Mori Arkin. During the following weeks I engaged in numerous communications between myself
and the parties’ counsel, including the exchange of several term sheets, which were not successful
in resolving the dispute. I am informed that on May 23, 2017, Clovis CEO Defendant Patrick
Mahaffy travelled to Israel from Colorado to meet directly with Lead Plaintiff and Lead Counsel
in order to restart negotiations as a continued part of the mediation process. As a result of these
negotiations, the parties ultimately agreed to settle and release all claims asserted against
Defendants in the action in return for a payment of $142 million, with $25 million paid in cash and
the remaining $117 million paid in Clovis common stock, subject to the negotiation and execution
of a customary “long form” stipulation and agreement of settlement and related papers.
16. As discussed above, this was an extremely hard-fought negotiation. I cannot delve
into the specifics regarding each party’s and the carriers’ positions and thinking because many
discussions occurred during confidential mediation communications. But I can say that there were
many complex issues that required significant thought and practical solutions. I can also attest that
the negotiations were extremely vigorous, completely at arm’s-length, and fully conducted in good
faith.
4
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III. CONCLUSION
17. Based on my experience as a litigator, a former U.S. District Judge and a mediator,
I believe that this Settlement represents a recovery and outcome that is reasonable and fair for the
Settlement Class and all parties involved. I further believe it was in the best interests of all of the
parties that they avoid the burdens and risks associated with taking a case of this size and
complexity to trial, and that they agree on the settlement now before the Court. In sum, I strongly
support the approval of the settlement in all respects.
18. Lastly, the advocacy on both sides of the case was outstanding. I have experience
with attorneys from the law firms on both sides of this case, which are nationally recognized for
their work prosecuting and defending large, complex securities class actions such as this. I am
familiar with the effort, creativity, and zeal they put into their work. I expected that they would
represent their clients in the same manner here, as they did. All counsel displayed the highest level
of professionalism in carrying out their duties on behalf of their respective clients. The settlement
is the direct result of all counsel’s experience, reputation, and ability in these types of complex
class actions.
I declare under penalty of perjury that the foregoing facts are true and correct and that this
declaration was executed this 20th day of September, 2017.
LAYN R. PHILLIPS Former U.S. District Judge
5
Case 1:15-cv-02546-RM-MEH Document 170-5 Filed 09/21/17 USDC Colorado Page 1 of 57
EXHIBIT 5 Case 1:15-cv-02546-RM-MEH Document 170-5 Filed 09/21/17 USDC Colorado Page 2 of 57
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH
SONNY P. MEDINA, et al.,
Plaintiffs, v.
CLOVIS ONCOLOGY, INC., et al.,
Defendants.
______
DECLARATION OF STEPHANIE A. THURIN REGARDING: (A) MAILING OF THE NOTICE AND CLAIM FORM; (B) PUBLICATION OF THE SUMMARY NOTICE; AND (C) REPORT ON REQUESTS FOR EXCLUSION RECEIVED TO DATE ______
Case 1:15-cv-02546-RM-MEH Document 170-5 Filed 09/21/17 USDC Colorado Page 3 of 57
I, Stephanie A. Thurin, hereby declare under penalty of perjury as follows:
1. I am a Project Manager employed by Epiq Class Action & Claims Solutions, Inc.
(“Epiq”). Pursuant to the Court’s July 14, 2017 Order Granting Preliminarily Approving
Settlement and Providing for Notice (“Preliminary Approval Order”) (Dkt. No. 160), Epiq was
authorized to act as the Claims Administrator in connection with the Settlement of the above-
captioned action.1 The following statements are based on my personal knowledge and
information provided by other Epiq employees working under my supervision, and if called on to
do so, I could and would testify competently thereto.
DISSEMINATION OF THE NOTICE PACKET
2. Pursuant to the Preliminary Approval Order, Epiq mailed the Notice of
(I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement;
(II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and
Reimbursement of Litigation Expenses (the “Notice”) and the Proof of Claim and Release Form
(the “Claim Form”) (collectively, the Notice and Claim Form are referred to as the “Notice
Packet”), to potential Settlement Class Members. A copy of the Notice Packet is attached hereto
as Exhibit A.
3. On July 17, 2017, Epiq received an Excel file from Clovis’ counsel, Willkie Farr
& Gallagher LLP, containing the names and addresses of 60 potential Class Members. Willkie
Farr & Gallagher LLP informed Epiq that they received the file from Clovis’ transfer agent.
Epiq extracted these records from all files and, after clean-up and de-duplication, there remained
59 unique names and addresses. Epiq formatted the Notice Packet, and caused it to be printed,
1 Unless otherwise defined herein, all capitalized terms have the meanings set forth in the Stipulation and Agreement of Settlement dated June 18, 2017 (the “Stipulation” or “Stipulation of Settlement”) previously filed with the Court. See Dkt. No. 156-1. 2
Case 1:15-cv-02546-RM-MEH Document 170-5 Filed 09/21/17 USDC Colorado Page 4 of 57
personalized with the name and address of each potential Settlement Class Member, posted for
first-class mail, postage prepaid, and mailed to these 59 potential Settlement Class Members on
August 4, 2017.
4. As in most class actions of this nature, the large majority of potential Settlement
Class Members are beneficial purchasers whose securities are held in “street name” – i.e., the
securities are purchased by brokerage firms, banks, institutions, and other third-party nominees
in the name of the nominee, on behalf of the beneficial purchasers. Epiq maintains and updates
an internal list of the largest and most common banks, brokers and other nominees. At the time
of the initial mailing, Epiq’s internal broker list contained 1,430 mailing records. On August 4,
2017, Epiq caused additional Notice Packets to be mailed to the 1,430 mailing records contained
in its internal broker list.
5. In total, 1,489 copies of the Notice Packet were mailed to potential Settlement
Class Members and nominees by first-class mail on August 4, 2017.
6. The Notice directed that those who purchased or otherwise acquired Clovis
common stock or Clovis Call Options, or sold Clovis Put Options, during the Settlement Class
Period for the beneficial interest of a person or organization other than themselves to either:
(i) provide to Epiq the names and addresses of such beneficial owners no later than seven (7)
calendar days after such nominees’ receipt of the Notice; or (ii) request additional copies of the
Notice Packet for such beneficial owners from Epiq, and send a copy of the Notice Packet to
such beneficial owners, no later than seven (7) calendar days after such nominees’ receipt of the
additional copies of the Notice Packet.
7. Through September 20, 2017, Epiq mailed an additional 38,757 Notice Packets to
potential members of the Settlement Class whose names and addresses were received from
3
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individuals, entities, or nominees requesting that Notice Packets be mailed to such persons, and
mailed another 13,383 Notice Packets to nominees who requested Notice Packets to forward to
their customers. Each of the requests was responded to in a timely manner, and Epiq will
continue to timely respond to any additional requests received.
8. As of September 20, 2017, an aggregate of 53,629 Notice Packets have been
disseminated to potential Settlement Class Members and nominees by first-class mail. In
addition, Epiq has re-mailed 189 Notice Packets to persons whose original mailing was returned
by the U.S. Postal Service and for whom updated addresses were provided to Epiq by the Postal
Service.
PUBLICATION OF THE SUMMARY NOTICE
9. Pursuant to the Preliminary Approval Order, Epiq caused the Summary Notice of
(I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement;
(II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and
Reimbursement of Litigation Expenses (the “Summary Notice”) to be published once in the
national edition of the Wall Street Journal and to be transmitted over the PR Newswire on
August 18, 2017. Attached as Exhibit B is a Confirmation of Publication attesting to the
publication of the Summary Notice in the Wall Street Journal and a screen shot attesting to the
transmittal of the Summary Notice over the PR Newswire.
CALL CENTER SERVICES
10. Epiq reserved a toll-free phone number for the Settlement, (888) 697-8556, which
was set forth in the Notice, the Claim Form, the Summary Notice, and on the Settlement website.
11. The toll-free number connects callers with an Interactive Voice Recording
(“IVR”). The IVR provides callers with pre-recorded information, including a brief summary
4
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about the Action and the option to request a copy of the Notice Packet. The toll-free telephone
line with pre-recorded information is available 24 hours a day, 7 days a week.
12. Epiq made the IVR available on August 4, 2017, the same date Epiq began
mailing the Notice Packets.
13. In addition, Monday through Friday from 6:00 a.m. to 6:00 p.m. Pacific Time
(excluding official holidays), callers are able to speak to a live operator regarding the status of
the Action and/or obtain answers to questions they may have about communications they receive
from Epiq. During other hours, callers may leave a message for an agent to call them back.
SETTLEMENT WEBSITE
14. Epiq established and is maintaining a website dedicated to this Settlement
(www.ClovisSecuritiesLitigation.com) to provide additional information to Settlement Class
Members. Users of the website can download copies of the Notice, the Claim Form, the
Stipulation of Settlement, the Preliminary Approval Order, and the Complaint, among other
relevant documents. The web address was set forth in the Notice, the Summary Notice, and on
the Claim Form. The website was operational beginning on August 4, 2017, and is accessible 24
hours a day, 7 days a week. Epiq will continue operating, maintaining and, as appropriate,
updating the website until the conclusion of this administration.
REQUESTS FOR EXCLUSION
15. The Notice informed potential members of the Settlement Class that requests for
exclusion from the Settlement Class are to be mailed or otherwise delivered, addressed to Clovis
Securities Litigation, EXCLUSIONS, c/o Epiq Systems, PO Box 3127, Portland, OR 97208-
3127, such that they are received by Epiq no later than October 5, 2017. The Notice also set forth
the information that must be included in each request for exclusion. Epiq has been monitoring all
5
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Exhibit A Case 1:15-cv-02546-RM-MEH Document 170-5 Filed 09/21/17 USDC Colorado Page 9 of 57
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH
SONNY P. MEDINA, et al., Plaintiffs, v.
CLOVIS ONCOLOGY, INC., et al., Defendants.
NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES
AND
PROOF OF CLAIM AND RELEASE FORM
A Federal Court authorized this Notice. This is not a solicitation from a lawyer.
Please read this Notice carefully. Your rights may be affected by the proposed settlement. Case 1:15-cv-02546-RM-MEH Document 170-5 Filed 09/21/17 USDC Colorado Page 10 of 57
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH SONNY P. MEDINA, et al., Plaintiffs, v. CLOVIS ONCOLOGY, INC., et al., Defendants.
NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES
A Federal Court authorized this Notice. This is not a solicitation from a lawyer.
Notice of PeNdeNcy of class actioN: Please be advised that your rights may be affected by the above-captioned consolidated securities class action (the “Action”) pending in the United States District Court for the District of Colorado (the “Court”) if, during the period between May 31, 2014 and April 7, 2016, inclusive (the “Class Period”), you (i) purchased or otherwise acquired common stock of Clovis Oncology, Inc. (“Clovis” or the “Company”) and/or (ii) purchased or otherwise acquired exchange traded call options on Clovis common stock and/or sold/wrote exchange traded put options on Clovis common stock, and were damaged thereby.1
Notice of settlemeNt: Please also be advised that the Court-appointed Lead Plaintiff, M.Arkin (1999) LTD and Arkin Communications LTD (collectively, “Lead Plaintiff”), on behalf of itself and the Settlement Class (as defined in ¶ 24 below), has reached a proposed settlement of the Action with defendant Clovis and defendants Patrick J. Mahaffy, Erle T. Mast, Andrew Allen, and Gillian Ivers-Read (collectively, the “Officer Defendants” and, together with Clovis, the “Settling Defendants”) for $142 million, with $25 million paid in cash and $117 million paid in shares of Clovis common stock (the “Settlement”). If approved by the Court, the Settlement will settle and release all claims asserted against Defendants in the Action. PLEASE READ THIS NOTICE CAREFULLY. This Notice explains important rights you may have, including the possible receipt of a payment from the Settlement. If you are a member of the Settlement Class, your legal rights will be affected whether or not you act. If you have any questions about this Notice, the proposed Settlement, or your eligibility to participate in the Settlement, please DO NOT contact the Court, the Clerk of the Court, Clovis, any of the other Defendants, or their counsel. All questions should be directed to Lead Counsel or the Claims Administrator (see ¶ 94 below).
1 All capitalized terms used in this Notice that are not otherwise defined herein shall have the meanings ascribed to them in the Stipulation and Agreement of Settlement, dated June 18, 2017 (the “Stipulation”), which is available at www.ClovisSecuritiesLitigation.com. Exchange traded call option contracts on Clovis common stock (“Clovis Call Options”) and exchange traded put option contracts on Clovis common stock (“Clovis Put Options”) are collectively referred to herein as “Clovis Options.” Clovis Options and Clovis common stock are collectively referred to herein as the “Clovis Securities.”
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1. Description of the Action and the Settlement Class: This Notice relates to a proposed Settlement of claims in a pending securities class action brought by investors alleging, among other things, that Defendants violated the federal securities laws by making false and misleading statements regarding the efficacy and safety of rociletinib — a developmental drug presented to investors as a breakthrough therapy in the treatment of lung cancer and one of Clovis’ most attractive assets. A more detailed description of the Action is set forth in ¶¶ 11-23 below. The proposed Settlement, if approved by the Court, will settle and release claims of the Settlement Class, as defined in ¶ 24 below. 2. Statement of the Settlement Class’s Recovery: Subject to Court approval, Lead Plaintiff, on behalf of itself and the Settlement Class, has agreed to settle the Action in exchange for $142,000,000, with $25,000,000 paid in cash (the “Cash Settlement Amount”) and $117,000,000 paid in shares of Clovis common stock (the “Settlement Shares” and, together with the Cash Settlement Amount, the “Settlement Amount”). The Net Settlement Fund (i.e., the Settlement Amount plus any and all interest earned thereon (the “Settlement Fund”) less (i) any Taxes, (ii) any Notice and Administration Costs, (iii) any Litigation Expenses awarded by the Court, and (iv) any attorneys’ fees awarded by the Court) will be distributed in accordance with a plan of allocation that is approved by the Court, which will determine how the Net Settlement Fund shall be allocated among members of the Settlement Class. The proposed plan of allocation (the “Plan of Allocation”) is set forth on pages 10–15 below. 3. Estimate of Average Amount of Recovery Per Share or Option: Lead Plaintiff’s damages expert estimates that the conduct at issue in the Action affected approximately 40,180,997 shares of Clovis common stock and 7,131,000 Clovis Call Options purchased, and 3,043,400 Clovis Put Options sold/written, during the Class Period.2 Based on the total Settlement Amount, if all eligible Settlement Class Members elect to participate in the Settlement, the estimated average recovery would be approximately $3.46 per affected share of Clovis common stock, $0.14 per affected Clovis Call Option, and $0.61 per affected Clovis Put Option, before the deduction of any Court-approved fees, expenses, and costs as described in this Notice. Settlement Class Members should note, however, that the foregoing average recovery per share or option is only an estimate. Some Settlement Class Members may recover more or less than this estimated amount depending on, among other factors, which Clovis Securities they purchased, when and at what prices they purchased/acquired or sold/wrote their Clovis Securities, and the total number of valid Claim Forms submitted. Distributions to eligible Settlement Class Members will be made based on the Plan of Allocation set forth herein (see pages 10–15 below) or such other plan of allocation as may be approved by the Court. 4. Average Amount of Damages Per Share or Option: The Parties do not agree on the average amount of damages per share or option that would be recoverable if Lead Plaintiff were to prevail in the Action. Among other things, the Defendants do not agree with the assertion that they violated the federal securities laws or that any damages were suffered by any members of the Settlement Class as a result of their conduct. 5. Attorneys’ Fees and Expenses Sought: Plaintiffs’ Counsel, which have been prosecuting the Action on a wholly contingent basis since its inception in November 2015, have not received any payment of attorneys’ fees for their representation of the Settlement Class and have advanced the funds to pay expenses necessarily incurred to prosecute this Action. Court-appointed Lead Counsel, Bernstein Litowitz Berger & Grossmann LLP, will apply to the Court for an award of attorneys’ fees for all Plaintiffs’ Counsel in an amount not to exceed 22.5% of the Settlement Fund (in combination of cash and stock in the same proportion that the Cash Settlement Amount and the Settlement Shares comprise the Settlement Amount). In addition, Lead Counsel will apply for reimbursement of Litigation Expenses paid or incurred in connection with the institution, prosecution, and resolution of the claims asserted in the Action, in an amount not to exceed $900,000, which may include an application for reimbursement of the reasonable costs and expenses incurred by Lead Plaintiff and Named Plaintiff, the City of St. Petersburg Employees’ Retirement System (“St. Petersburg” and, together with Lead Plaintiff, “Plaintiffs”), directly related to their representation of the Settlement Class. Any fees and expenses awarded by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses. If the Court approves Lead Counsel’s fee and expense application, assuming claims are filed for all affected shares and options, the estimated average amount of fees and expenses would be approximately $0.80 per affected share of Clovis common stock, $0.03 per affected Clovis Call Option, and $0.14 per affected Clovis Put Option. 6. Identification of Attorneys’ Representatives: Lead Plaintiff and the Settlement Class are represented by John C. Browne, Esq. of Bernstein Litowitz Berger & Grossmann LLP, 1251 Avenue of the Americas, 44th Floor, New York, NY 10020, 1-800-380-8496, [email protected]. 7. Reasons for the Settlement: Lead Plaintiff’s principal reason for entering into the Settlement is the substantial and immediate recovery for the Settlement Class without the risk or the delays inherent in further litigation. Moreover, the substantial recovery provided under the Settlement must be considered against the significant risk that a smaller recovery — or indeed no recovery at all — might be achieved after contested motions, a trial of the Action, and the likely appeals that would follow a trial. This process could be expected to last several years. Settling Defendants, who deny all allegations of wrongdoing or liability whatsoever, are entering into the Settlement solely to eliminate the uncertainty, burden, and expense of further protracted litigation.
2 All options-related amounts in this paragraph are per share of the underlying security (i.e., 1/100 of a contract).
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YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT:
This is the only way to be eligible to receive a payment from the Net Settlement Fund. If you are a Settlement Class Member and you remain in the Settlement SUBMIT A CLAIM FORM Class, you will be bound by the Settlement as approved by the Court and you POSTMARKED NO LATER THAN DECEMBER 11, 2017. will give up any Released Plaintiff’s Claims (defined in ¶ 33 below) that you have against the Defendants and the other Defendants’ Releasees (defined in ¶ 34 below), so it is in your interest to submit a Claim Form.
EXCLUDE YOURSELF FROM THE SETTLEMENT If you exclude yourself from the Settlement Class, you will not be eligible to CLASS BY SUBMITTING A receive any payment from the Net Settlement Fund. This is the only option that WRITTEN REQUEST FOR EXCLUSION, SO THAT IT IS allows you ever to be part of any other lawsuit against any of the Defendants RECEIVED NO LATER THAN or the other Defendants’ Releasees concerning the Released Plaintiff’s Claims. OCTOBER 5, 2017.
If you do not like the proposed Settlement, the proposed Plan of Allocation, OBJECT TO THE SETTLEMENT or the request for attorneys’ fees and reimbursement of Litigation Expenses, BY SUBMITTING A WRITTEN you may write to the Court and explain why you do not like them. You cannot OBJECTION, SO THAT IT IS RECEIVED NO LATER THAN object to the Settlement, the Plan of Allocation, or the fee and expense request, OCTOBER 5, 2017. unless you are a Settlement Class Member and do not exclude yourself from the Settlement Class.
GO TO THE HEARING ON Filing a written objection and notice of intention to appear by October 5, OCTOBER 26, 2017 AT 2017 allows you to speak in Court, at the discretion of the Court, about the 10:00 A.M., AND FILE A fairness of the proposed Settlement, the Plan of Allocation, and/or the request NOTICE OF INTENTION TO APPEAR, SO THAT IT IS for attorneys’ fees and reimbursement of Litigation Expenses. If you submit a RECEIVED NO LATER THAN written objection, you may (but you do not have to) attend the hearing and, at OCTOBER 5, 2017. the discretion of the Court, speak to the Court about your objection.
If you are a member of the Settlement Class and you do not submit a valid Claim Form, you will not receive any payment from the Net Settlement Fund. You will, however, remain a member of the Settlement Class, which means that you DO NOTHING. give up your right to sue about the claims that are resolved by the Settlement and you will be bound by any judgments or orders entered by the Court in the Action.
WHAT THIS NOTICE CONTAINS
Why Did I Get This Notice? Page 4 What Is This Case About? Page 4 How Do I Know If I Am Affected By The Settlement? Who Is Included In The Settlement Class? Page 6 What Are Lead Plaintiff’s Reasons For The Settlement? Page 6 What Might Happen If There Were No Settlement? Page 7 How Are Settlement Class Members Affected By The Action And The Settlement? Page 7 How Do I Participate In The Settlement? What Do I Need To Do? Page 8 How Much Will My Payment Be? Page 9 What Payment Are The Attorneys For The Settlement Class Seeking? How Will The Lawyers Be Paid? Page 15 What If I Do Not Want To Be A Member Of The Settlement Class? How Do I Exclude Myself? Page 15 When And Where Will The Court Decide Whether To Approve The Settlement? Do I Have To Come To The Hearing? May I Speak At The Hearing If I Don’t Like The Settlement? Page 15 What If I Bought Shares Or Options On Someone Else’s Behalf? Page 17 Can I See The Court File? Whom Should I Contact If I Have Questions? Page 17
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WHY DID I GET THIS NOTICE?
8. The Court directed that this Notice be mailed to you, because you or someone in your family or an investment account for which you serve as a custodian may have purchased or otherwise acquired Clovis common stock and/or Clovis Call Options, and/or sold/wrote Clovis Put Options, during the Class Period. The Court has directed us to send you this Notice, because, as a potential Settlement Class Member, you have a right to know about your options before the Court rules on the proposed Settlement. Additionally, you have the right to understand how this class action lawsuit may generally affect your legal rights. 9. The purpose of this Notice is to inform you of the existence of this case, that it is a class action, how you might be affected, and how to exclude yourself from the Settlement Class, if you wish to do so. It is also being sent to inform you of the terms of the proposed Settlement, and of a hearing to be held by the Court to consider the fairness, reasonableness, and adequacy of the Settlement, the proposed Plan of Allocation, and the motion by Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses (the “Settlement Hearing”). See ¶¶ 85–86 below for details about the Settlement Hearing, including the date and location of the hearing. 10. The issuance of this Notice is not an expression of any opinion by the Court concerning the merits of any claim in the Action, and the Court still has to decide whether to approve the Settlement. If the Court approves the Settlement and the Plan of Allocation (or some other plan of allocation), payments pursuant to the Settlement and the Court-approved plan of allocation will be made to Authorized Claimants after any objections and appeals are resolved and after the completion of all claims processing. Please be patient, as this process can take some time to complete.
WHAT IS THIS CASE ABOUT?
11. This case is a consolidated securities class action entitled Medina, et al. v. Clovis Oncology, Inc., et al., Civil Action No. 1:15-cv-2546-RM-MEH. The Court in charge of the case is the United States District Court for the District of Colorado, and the presiding judge is the Honorable Raymond P. Moore. 12. This case began on November 19, 2015, when the first of four securities class action complaints was filed in the Court. In accordance with the Private Securities Litigation Reform Act of 1995 (“PSLRA”), notice to the public was issued stating the deadline by which class members could move the Court for appointment as lead plaintiff. 13. By Order dated February 18, 2016, the Court appointed M.Arkin (1999) LTD and Arkin Communications LTD as Lead Plaintiff for the Action, approved Lead Plaintiff’s selection of Bernstein Litowitz Berger & Grossmann LLP as Lead Counsel, and consolidated all related actions into the Action. 14. Thereafter, Lead Counsel conducted an extensive investigation into the claims asserted in the Action, including, among other things, the review and analysis of publicly available documents (including SEC filings, news articles, research reports by securities and financial analysts, transcripts of Clovis’ investor calls, clinical trial protocols, publications and presentations of clinical trial data, medical journal articles, presentations at medical conferences, and reports and presentations published by the U.S. Food and Drug Administration). Lead Counsel has also retained, and routinely consulted with, statistical and financial economics experts, and interviewed several former Clovis employees. 15. On May 6, 2016, Lead Plaintiff filed and served its Consolidated Class Action Complaint (the “Consolidated Complaint”) asserting claims against Clovis and the Officer Defendants under Section 10(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 10b-5 promulgated thereunder, and against the Officer Defendants under Section 20(a) of the Exchange Act. The Consolidated Complaint also asserted claims under the Securities Act of 1933, as amended (the “Securities Act”), arising from Clovis’ July 14, 2015 secondary offering of common stock (the “Secondary Offering”). Specifically, the Consolidated Complaint asserted (i) claims under Section 11 of the Securities Act against Clovis, Patrick J. Mahaffy (“Mahaffy”), and Erle T. Mast (“Mast”), and the Underwriter Defendants;3 (ii) claims under Section 12(a)(2) of the Securities Act against Clovis and the Underwriter Defendants; and (iii) claims under Section 15 of the Securities Act against Mahaffy, Mast, and the Venture Capital Defendants.4
3 The “Underwriter Defendants” consist of the underwriters of the Secondary Offering: J.P. Morgan Securities LLC; Credit Suisse Securities (USA) LLC; Stifel, Nicolaus & Company, Incorporated; and Mizuho Securities USA Inc. 4 The “Venture Capital Defendants” consist of: NEA Partners, 13 L.P.; NEA 13 GP, LTD; Aberdare Ventures IV, L.P.; Scott D. Sandell; and Forest Baskett.
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16. The Consolidated Complaint alleges, among other things, that Defendants made materially false and misleading statements about the efficacy and safety of rociletinib — a developmental drug presented to investors as a breakthrough therapy in the treatment of lung cancer and one of Clovis’ most attractive assets. In particular, the Consolidated Complaint alleges, among other things, that Defendants reported misleadingly inflated trial results purporting to show that rociletinib was at least as effective in shrinking tumors as a key competing drug. The Consolidated Complaint also alleged that Defendants falsely characterized rociletinib as “safe” and “well-tolerated,” while concealing from investors clinical trial data showing the drug dangerously increased heart risk. The Consolidated Complaint further alleges that the price of Clovis common stock was artificially inflated as a result of Defendants’ allegedly false and misleading statements and omissions, and declined when the truth was revealed in two separate disclosures that occurred before the opening of the market on November 16, 2015 and before the opening of the market on April 8, 2016. 17. On July 27, 2016, Defendants filed motions to dismiss the Consolidated Complaint. On September 23, 2016, Lead Plaintiff served its papers in opposition and, on October 11, 2016, Defendants served their reply papers (the Venture Capital Defendants served their reply papers on October 14, 2016). 18. On February 9, 2017, the Court issued an Opinion and Order (the “Opinion and Order”) denying in part and granting in part Defendants’ motions to dismiss the Consolidated Complaint. In particular, the Court dismissed Lead Plaintiff’s claims against Defendant Gillian Ivers-Read and the Venture Capital Defendants, as well as Lead Plaintiff’s claims relating to certain of Defendants’ allegedly false statements. The Court also dismissed, without prejudice, Lead Plaintiff’s claims against the Underwriter Defendants under Section 12(a)(2). The Court otherwise sustained the Consolidated Complaint’s allegations in full. 19. On February 22, 2017, Lead Plaintiff filed and served an Amended Consolidated Class Action Complaint (the “Amended Complaint” or “Complaint”), repleading its Section 12(a)(2) claims against the Underwriter Defendants. On March 17, 2017, the Underwriter Defendants, with the exception of Defendant J.P. Morgan Securities LLC (the “Non-Lead Underwriter Defendants”), moved to dismiss the Amended Complaint’s repleaded Section 12(a) (2) claims against them. On April 7, 2017, Lead Plaintiff opposed the Non-Lead Underwriter Defendants’ motion to dismiss. The Non-Lead Underwriters filed their reply papers on April 21, 2017. 20. Prior to the Court’s issuance of the Opinion and Order, and while Defendants’ motions to dismiss were pending, the parties retained retired United States District Court Judge Layn Phillips to act as mediator (the “Mediator”). On February 24, 2017, and again on March 6, 2017, the Parties submitted extensive mediation statements to the Mediator. On March 14, 2017, the Parties participated in an all-day mediation, which did not result in a settlement, and Lead Plaintiff indicated a desire to proceed with discovery rather than settle at the amounts discussed. 21. On May 23, 2017, Clovis CEO Defendant Patrick J. Mahaffy, with counsel, traveled to Israel to meet directly with Lead Plaintiff and Lead Counsel to discuss the merits of the case. Following that meeting, with the assistance of the Mediator, the Parties continued discussions concerning the terms of a potential resolution of the Action. The Parties ultimately agreed, subject to the due diligence discovery described below and the other terms and conditions of the Stipulation, to settle and release all claims asserted against the Defendants in the Action in return for a payment of $142 million, with $25 million paid in cash and $117 million paid in shares of Clovis common stock. 22. On June 18, 2017, the Parties entered into a Stipulation and Agreement of Settlement (the “Stipulation”), which sets forth the final terms and conditions of the Settlement, including the condition that the Settlement is not final until the completion of due diligence discovery to the satisfaction of Lead Plaintiff and Lead Counsel. In connection with the due diligence discovery, the Settling Defendants are producing documents and information regarding the allegations and claims asserted in the Complaint, and up to five individuals from a group consisting of the Individual Defendants, other Clovis employees, or other persons within the Settling Defendants’ control, will sit for interviews under oath by Lead Counsel, if requested. Pursuant to the Stipulation, Lead Plaintiff has the right to withdraw from and terminate the Settlement at any time prior to filing its motion in support of final approval of the Settlement, if, in its discretion, information is produced during the due diligence that renders the proposed Settlement unreasonable or inadequate. 23. On July 14, 2017, the Court entered the Order Preliminarily Approving Proposed Settlement and Providing for Notice (the “Preliminary Approval Order”), which, among other things, preliminarily approved the proposed Settlement, authorized this Notice to be disseminated to potential Settlement Class Members, and scheduled the Settlement Hearing to consider whether to grant final approval to the Settlement.
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HOW DO I KNOW IF I AM AFFECTED BY THE SETTLEMENT? WHO IS INCLUDED IN THE SETTLEMENT CLASS? 24. If you are a member of the Settlement Class, you are subject to the Settlement, unless you timely request to be excluded. The Settlement Class consists of: all persons and entities who or which (i) purchased or otherwise acquired Clovis common stock and/or (ii) purchased or otherwise acquired exchange traded call options on Clovis common stock and/or sold/wrote exchange traded put options on Clovis common stock, between May 31, 2014 and April 7, 2016, inclusive (the “Class Period”), and who were damaged thereby. Excluded from the Settlement Class are the Defendants; the affiliates and subsidiaries of: Clovis, the Underwriter D efe nd a nt s , a nd t he Ve nt u r e C a pit a l Ent it y D efe nd a nt s; t he O f fic e r s , 5 directors, and partners of: Clovis, the Underwriter Defendants, and the Venture Capital Entity Defendants during the Class Period; members of the Immediate Family6 of any excluded person; the legal representatives, heirs, successors, and assigns of any excluded person or entity; and any entity in which any excluded person or entity has or had, during the Class Period, a controlling interest; provided, however, that any Investment Vehicle7 shall not be deemed an excluded person or entity by definition. Also excluded from the Settlement Class are any persons or entities who or which exclude themselves by submitting a request for exclusion in accordance with the requirements set forth in this Notice. See “What If I Do Not Want To Be A Member Of The Settlement Class? How Do I Exclude Myself?,” on page 15 below. PLEASE NOTE: RECEIPT OF THIS NOTICE DOES NOT MEAN THAT YOU ARE A SETTLEMENT CLASS MEMBER OR THAT YOU WILL BE ENTITLED TO PAYMENT FROM THE NET SETTLEMENT FUND. IF YOU ARE A SETTLEMENT CLASS MEMBER AND YOU WISH TO BE ELIGIBLE TO RECEIVE A PAYMENT FROM THE NET SETTLEMENT FUND, YOU ARE REQUIRED TO SUBMIT THE CLAIM FORM THAT IS BEING DISTRIBUTED WITH THIS NOTICE AND THE REQUIRED SUPPORTING DOCUMENTATION AS SET FORTH THEREIN, POSTMARKED NO LATER THAN DECEMBER 11, 2017.
WHAT ARE LEAD PLAINTIFF’S REASONS FOR THE SETTLEMENT?
25. Lead Plaintiff’s principal reason for entering into the Settlement is the significant payment that the Settlement Class will receive in a timely fashion without the risk or the delays inherent in further litigation. The substantial payment provided by the Settlement must be considered against the significant risk that a smaller recovery — or indeed no recovery at all — might be achieved after contested motions for class certification, summary judgment and other issues, as well as a trial of the Action, and likely appeals that would follow a trial, a process that could be expected to last several years. Moreover, this case presented a number of substantial risks in establishing Defendants’ liability. The Complaint alleges, among other things, that Defendants reported misleading clinical trial results for rociletinib. Defendants responded by arguing that the manner in which they reported the clinical trial data in question was consistent with the methodology they believed the FDA would use in determining whether to approve, and how to label, rociletinib. Defendants also argued that the clinical trial data they publicly reported during the Class Period was not materially different than the data they are alleged to have withheld from investors. While Lead Plaintiff believes it has meritorious responses to each of Defendants’ contentions, these arguments involve complicated medical, statistical, and regulatory issues that are hotly contested by the parties. Thus, there were very significant risks attendant to the continued prosecution of the Action. 26. In light of these risks, the amount of the Settlement, and the immediacy of recovery to the Settlement Class, and subject to the satisfactory completion of due diligence discovery, Lead Plaintiff and Lead Counsel believe that the proposed Settlement is fair, reasonable, and adequate, and in the best interests of the Settlement Class. Lead
5 “Officer” means any officer as that term is defined in Securities and Exchange Act Rule 16a-1(f). 6 “Immediate Family” means children, stepchildren, parents, stepparents, spouses, siblings, mothers-in-law, fathers-in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law. As used in this definition, “spouse” shall mean a husband, a wife, or a partner in a state-recognized domestic relationship or civil union. 7 “Investment Vehicle” means any investment company or pooled investment fund, including, but not limited to, mutual fund families, exchange-traded funds, fund of funds and hedge funds, in which any of the Underwriter Defendants, have, has or may have a direct or indirect interest, or as to which any of their respective affiliates may act as an investment advisor but of which any Underwriter Defendant or any of their respective affiliates is not a majority owner or does not hold a majority beneficial interest. This definition of Investment Vehicle does not bring into the Settlement Class any of the Underwriter Defendants or any other person or entity who is excluded from the Settlement Class by definition.
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Plaintiff and Lead Counsel believe that the Settlement provides a substantial benefit to the Settlement Class, namely $142,000,000 (in cash and shares of Clovis common stock, less the various deductions described in this Notice), as compared to the risk that the claims in the Action would produce a smaller recovery, or no recovery, after summary judgment, trial, and appeals, possibly years in the future. 27. The Defendants have denied the claims asserted against them in the Action and deny having engaged in any wrongdoing or violation of law of any kind whatsoever. The Settling Defendants have agreed to the Settlement solely to eliminate the uncertainty, burden, and expense of continued litigation. Accordingly, the Settlement may not be construed as an admission of any wrongdoing by the Defendants.
WHAT MIGHT HAPPEN IF THERE WERE NO SETTLEMENT?
28. If there were no Settlement and Lead Plaintiff failed to establish any essential legal or factual element of its claims against the Defendants, neither Lead Plaintiff nor the other members of the Settlement Class would recover anything in this Action. Also, if the Defendants were successful in proving any of their defenses, either at summary judgment, at trial or on appeal, the Settlement Class could recover substantially less than the amount provided in the Settlement, or nothing at all.
HOW ARE SETTLEMENT CLASS MEMBERS AFFECTED BY THE ACTION AND THE SETTLEMENT? 29. As a Settlement Class Member, you are represented by Lead Plaintiff and Lead Counsel, unless you enter an appearance through counsel of your own choice at your own expense. You are not required to retain your own counsel, but, if you choose to do so, such counsel must file a notice of appearance on your behalf and must serve copies of his or her appearance on the attorneys listed in the section entitled, “When And Where Will The Court Decide Whether To Approve The Settlement?,” on page 15 below. 30. If you are a Settlement Class Member and do not wish to remain a Settlement Class Member, you may exclude yourself from the Settlement Class by following the instructions in the section entitled, “What If I Do Not Want To Be A Member Of The Settlement Class? How Do I Exclude Myself?,” on page 15 below. 31. If you are a Settlement Class Member and you wish to object to the proposed Settlement, the Plan of Allocation, and/or Lead Counsel’s application for attorneys’ fees and reimbursement of Litigation Expenses, and if you do not exclude yourself from the Settlement Class, you may present your objections by following the instructions in the section entitled, “When And Where Will The Court Decide Whether To Approve The Settlement?,” on pages 15–16 below. 32. If you are a Settlement Class Member and you do not exclude yourself from the Settlement Class, you will be bound by any orders issued by the Court. If the Settlement is approved, the Court will enter a judgment (the “Judgment”). The Judgment will dismiss with prejudice the claims asserted against Defendants in the Action and will provide that, upon the Effective Date (as defined in the Stipulation), Lead Plaintiff and each of the other Settlement Class Members, on behalf of themselves, and, to the extent any of the following persons or entities can assert a claim in the name of or on behalf of the Settlement Class Member, on behalf of (as applicable) their agents, representatives, attorneys, advisors, administrators, accountants, consultants, assigns, assignees, partners, successors-in-interest, insurance carriers and reinsurers, current and former officers, directors, officials, auditors, parents, affiliates, subsidiaries, successors, predecessors, employees, fiduciaries, service providers and investment bankers, estates, heirs, executors, beneficiaries, trusts and trustees, each in their respective capacities as such, will have, fully, finally and forever compromised, settled, released, resolved, relinquished, waived and discharged each and every Released Plaintiff’s Claim (as defined in ¶ 33 below) against all Defendants and the other Defendants’ Releasees (as defined in ¶ 34 below), and will forever be barred and enjoined from prosecuting any or all of the Released Plaintiff’s Claims against any of the Defendants and the other Defendants’ Releasees. 33. “Released Plaintiff’s Claims” means all claims and causes of action of every nature and description or liabilities whatsoever, whether known claims or Unknown Claims (as defined in ¶ 35 below), whether arising under federal, state, common or foreign law, that Lead Plaintiff or any other member of the Settlement Class: (i) asserted in the Complaint; or (ii) could have been asserted in any forum that arise out of or are based upon the allegations, transactions, facts, matters or occurrences, representations or omissions involved, set forth, or referred to in the Complaint and that relate to the purchase of Clovis common stock or exchange traded Clovis call options, or the sale of exchange traded Clovis put options, during the Class Period. Released Plaintiff’s Claims do not include (i) any claims asserted in any pending derivative action, including but not limited to In re Clovis Oncology, Inc. Derivative
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Litigation, No. 2017-0222 (Del. Ch. Mar. 23, 2017) and Guo v. Mahaffy et al., No. 17-cv-00706 (D. Colo. Mar 20, 2017); (ii) any claim by any governmental entity arising out of any governmental investigation of Clovis relating to the alleged wrongful conduct; (iii) any claims relating to the enforcement of the Settlement; and (iv) any claims of any person or entity who or which submits a request for exclusion that is accepted by the Court. 34. “Defendants’ Releasees” means Defendants and each of their respective parents, subsidiaries, affiliates, heirs, executors, administrators, trustees, beneficiaries, assigns, assignees, predecessors, and successors, and all of their respective former, current, and future officers, directors, shareholders, partners, managers, members, agents, representatives, employees, insurers, reinsurers, auditors, and attorneys, in their capacities as such. 35. “Unknown Claims” means any Released Plaintiff’s Claims which Lead Plaintiff or any other Settlement Class Member does not know or suspect to exist in his, her or its favor at the time of the release of such claims, and any Released Defendants’ Claims which any Settling Defendant or any other Defendants’ Releasee does not know or suspect to exist in his, her, or its favor at the time of the release of such claims, which, if known by him, her or it, might have affected his, her or its decision(s) with respect to the Settlement. With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date, Lead Plaintiff and the Settling Defendants shall expressly waive, and each of the other Settlement Class Members and each of the other Defendants’ Releasees shall be deemed to have waived, and by operation of the Judgment or the Alternate Judgment, if applicable, shall have expressly waived, any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle of common law or foreign law, which is similar, comparable, or equivalent to California Civil Code §1542, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Lead Plaintiff and the Settling Defendants acknowledge, and each of the other Settlement Class Members and each of the other Defendants’ Releasees shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for and a key element of the Settlement. 36. The Judgment will also provide that, upon the Effective Date, Defendants, on behalf of themselves, and, to the extent any of the following persons or entities can assert a claim in the name of or on behalf of the Defendant, on behalf of (as applicable) their agents, representatives, attorneys, advisors, administrators, accountants, consultants, assigns, assignees, partners, successors-in-interest, insurance carriers and reinsurers, current and former officers, directors, officials, auditors, parents, affiliates, subsidiaries, successors, predecessors, employees, fiduciaries, service providers and investment bankers, estates, heirs, executors, beneficiaries, trusts and trustees, each in their respective capacities as such, will have, fully, finally and forever compromised, settled, released, resolved, relinquished, waived and discharged each and every Released Defendants’ Claim (as defined in ¶ 37 below) against Lead Plaintiff and the other Plaintiffs’ Releasees (as defined in ¶ 38 below), and will forever be barred and enjoined from prosecuting any or all of the Released Defendants’ Claims against any of the Plaintiffs’ Releasees. 37. “Released Defendants’ Claims” means all claims and causes of action of every nature and description or liabilities whatsoever, whether known claims or Unknown Claims, whether arising under federal, state, common or foreign law, that arise out of or relate in any way to the institution, prosecution, or settlement of the claims asserted in the Action. Released Defendants’ Claims do not include (i) any claims relating to the enforcement of the Settlement; and (ii) any claims against any person or entity who or which submits a request for exclusion from the Settlement Class that is accepted by the Court. 38. “Plaintiffs’ Releasees” means Plaintiffs, their respective attorneys, and all other Settlement Class Members, and each of their respective parents, subsidiaries, affiliates, heirs, executors, administrators, trustees, beneficiaries, assigns, assignees, predecessors, and successors, and all of their respective former, current, and future officers, directors, shareholders, partners, managers, members, agents, representatives, employees, insurers, reinsurers, auditors, and attorneys, in their capacities as such.
HOW DO I PARTICIPATE IN THE SETTLEMENT? WHAT DO I NEED TO DO?
39. To be potentially eligible for a payment from the proceeds of the Settlement, you must be a member of the Settlement Class and you must timely complete and return the Claim Form with adequate supporting documentation, postmarked no later than December 11, 2017. A Claim Form is included with this Notice. You may also obtain a Claim Form from the website maintained by the Claims Administrator for the Settlement, www.ClovisSecuritiesLitigation.com, or you may request that a Claim Form be mailed to you by calling
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the Claims Administrator toll free at 1-888-697-8556 or by emailing the Claims Administrator at [email protected]. Please retain all records of your ownership of and transactions in Clovis Securities, as they may be needed to document your Claim. If you request exclusion from the Settlement Class or do not submit a timely and valid Claim Form, you will not share in the Net Settlement Fund.
HOW MUCH WILL MY PAYMENT BE?
40. At this time, it is not possible to make any determination as to how much any individual Settlement Class Member may receive from the Settlement. 41. Pursuant to the Settlement, Clovis has agreed to pay or caused to be paid a total of $142,000,0000 for the benefit of the Settlement Class, with (i) $25,000,000 paid in cash (the “Cash Settlement Amount”) deposited into an escrow account controlled by Lead Counsel and (ii) $117,000,000 paid in shares of Clovis common stock (the “Settlement Shares”).8 42. The Settlement Amount (i.e., the Cash Settlement Amount plus the Settlement Shares) plus any interest earned thereon is referred to as the “Settlement Fund.” If the Settlement is approved by the Court and the Effective Date occurs, the “Net Settlement Fund” (that is, the Settlement Fund less (i) all federal, state and/or local taxes on any income earned by the Settlement Fund (including any appreciation in value of the Settlement Shares); the reasonable expenses and costs incurred in connection with determining the amount of, and paying, any taxes owed by the Settlement Fund (including reasonable expenses of tax attorneys and accountants); and all taxes imposed on payments by the Settlement Fund, including withholding taxes; (ii) the costs and expenses incurred in connection with providing notice to Settlement Class Members and administering the Settlement on behalf of Settlement Class Members; and (iii) any attorneys’ fees and Litigation Expenses awarded by the Court) will be distributed to Settlement Class Members who submit valid Claim Forms, in accordance with the proposed Plan of Allocation or such other plan of allocation as the Court may approve. 43. The Net Settlement Fund will not be distributed, unless and until the Court has approved the Settlement and a plan of allocation, and the time for any petition for rehearing, appeal or review, whether by certiorari or otherwise, has expired. 44. Neither the Settling Defendants, the Defendants’ Releasees, nor any other person or entity that paid any portion of the Settlement Amount on their behalf are entitled to get back any portion of the Settlement Fund once the Court’s order or judgment approving the Settlement becomes Final. Except as otherwise provided in the Stipulation, the Settling Defendants and the other Defendants’ Releasees shall not have any involvement in, or any responsibility, authority or liability whatsoever for, the administration of the Settlement or the distribution of the Net Settlement Fund, and shall have no liability whatsoever to any person or entity in connection with the foregoing. 45. Approval of the Settlement is independent from approval of a plan of allocation. Any determination with respect to a plan of allocation will not affect the Settlement, if approved. 46. Unless the Court otherwise orders, any Settlement Class Member who fails to submit a valid Claim Form postmarked on or before December 11, 2017 shall be fully and forever barred from receiving payments pursuant to the Settlement but will in all other respects remain a Settlement Class Member and be subject to the provisions of the Stipulation, including the terms of any Judgment entered and the releases given. This means that each Settlement Class Member releases the Released Plaintiff’s Claims (as defined in ¶ 33 above) against the Defendants’ Releasees (as defined in ¶ 34 above) and will be permanently barred and enjoined from bringing any action, claim, or other proceeding of any kind against the Defendants’ Releasees with respect to the Released Plaintiff’s Claims, whether or not such Settlement Class Member submits a Claim Form. 47. Participants in and beneficiaries of a plan covered by ERISA (“ERISA Plan”) should NOT include any information relating to their transactions in Clovis Securities held through the ERISA Plan in any Claim Form that they may submit in this Action. They should include ONLY those shares or options that they purchased or acquired outside of the ERISA Plan. Claims based on any ERISA Plan’s purchases or acquisitions of Clovis Securities during
8 The Settlement Shares to be issued will be valued as of the date of the Settlement Hearing in accordance with the terms of the Stipulation. The Settlement Shares, less any Settlement Shares awarded to Plaintiffs’ Counsel, are referred to as the “Class Settlement Shares”. Subject to Court approval, Lead Counsel will have the right to decide, in its sole discretion, whether to (i) distribute the Class Settlement Shares to Settlement Class Members who submit claims that are approved for payment by the Court (“Authorized Claimants”) or (ii) sell all or any portion of the Class Settlement Shares and distribute the net cash proceeds from the sale of the shares to Authorized Claimants. Please Note: After the date on which such shares are valued, the value of the Class Settlement Shares may fluctuate. No representation can be made as to what the value of the Class Settlement Shares will be at the time the shares are distributed or, if applicable, sold for the benefit of Settlement Class Members.
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the Class Period may be made by the plan’s trustees. To the extent any of the Defendants or any of the other persons or entities excluded from the Settlement Class are participants in the ERISA Plan, such persons or entities shall not receive, either directly or indirectly, any portion of the recovery that may be obtained from the Settlement by the ERISA Plan. 48. The Court has reserved jurisdiction to allow, disallow, or adjust on equitable grounds the Claim of any Settlement Class Member. 49. Each Claimant shall be deemed to have submitted to the jurisdiction of the Court with respect to his, her or its Claim Form. 50. Only Settlement Class Members, i.e., persons and entities who, during the Class Period, purchased or otherwise acquired Clovis common stock or Clovis Call Options, or sold/wrote Clovis Put Options, and were damaged as a result of such purchases/acquisitions or sales, will be potentially eligible to share in the distribution of the Net Settlement Fund. Persons and entities that are excluded from the Settlement Class by definition or that exclude themselves from the Settlement Class pursuant to request will not be eligible to receive a distribution from the Net Settlement Fund and should not submit Claim Forms. The only securities that are included in the Settlement are the Clovis Securities. PROPOSED PLAN OF ALLOCATION 51. The objective of the Plan of Allocation is to equitably distribute the Net Settlement Fund to those Settlement Class Members who suffered economic losses as a proximate result of the alleged wrongdoing. The calculations made pursuant to the Plan of Allocation are not intended to be estimates of, nor indicative of, the amounts that Settlement Class Members might have been able to recover after a trial. Nor are the calculations pursuant to the Plan of Allocation intended to be estimates of the amounts that will be paid to Authorized Claimants pursuant to the Settlement. The computations under the Plan of Allocation are only a method to weigh the claims of Authorized Claimants against one another for the purpose of making pro rata allocations of the Net Settlement Fund. 52. In developing the Plan of Allocation, Lead Plaintiff’s damages expert calculated the estimated amount of artificial inflation in the per share closing prices of Clovis common stock and Clovis Call Options, and the amount of artificial deflation in the per share closing prices of Clovis Put Options, which allegedly was proximately caused by Defendants’ alleged false and misleading statements and material omissions. In calculating the estimated artificial inflation and deflation allegedly caused by Defendants’ alleged misrepresentations and omissions, Lead Plaintiff’s damages expert considered price changes in Clovis common stock and options in reaction to certain public announcements allegedly revealing the truth concerning Defendants’ alleged misrepresentations and material omissions, adjusting for price changes that were attributable to market or industry forces and disclosures of information unrelated to the alleged fraud. The estimated artificial inflation in Clovis common stock is set forth in Table 1 at the end of this Notice; the estimated artificial inflation in Clovis Call Options is set forth in Table 2; and the estimated artificial deflation in Clovis Put Options is set forth in Table 3. 53. For losses to be compensable damages under the federal securities laws, the disclosure of the allegedly misrepresented information must be, among other things, the cause of the decline in the price or value of the security. In this case, Lead Plaintiff alleges that Defendants made false statements and omitted material facts during the period between May 31, 2014 and April 7, 2016, inclusive, which had the effect of artificially inflating the prices of Clovis common stock and Clovis Call Options and artificially deflating the price of Clovis Put Options. Lead Plaintiff further alleges that corrective information was released to the public before the market opened on November 16, 2015 and before the market opened on April 8, 2016, which partially removed the artificial inflation from the prices of Clovis common stock and Clovis Call Options and partially removed artificial deflation from the price of Clovis Put Options. 54. Recognized Loss Amounts for transactions in Clovis Securities are calculated under the Plan of Allocation based primarily on the difference in the amount of alleged artificial inflation (or deflation in the case of put options) in the respective prices of the Clovis Securities at the time of purchase or acquisition and at the time of sale or the difference between the actual purchase/acquisition price and sale price. Accordingly, in order to have a Recognized Loss Amount under the Plan of Allocation: (i) a Settlement Class Member who purchased or otherwise acquired Clovis common stock or Clovis Call Options, or sold/wrote Clovis Put Options, from May 31, 2014 through November 15, 2015, inclusive, must have held those Clovis Securities (or with respect to Clovis Options, not closed out his, her or its position in the security) through at least November 15, 2015; and
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(ii) a Settlement Class Member who purchased or otherwise acquired Clovis common stock or Clovis Call Options, or sold/wrote Clovis Put Options, from November 16, 2015 through April 7, 2016, inclusive, must have held those Clovis Securities (or with respect to Clovis Options, not closed out his, her or its position in the security) through at least April 7, 2016. CALCULATION OF RECOGNIZED LOSS AMOUNTS 55. Based on the formulas stated below, a “Recognized Loss Amount” will be calculated for each purchase or acquisition of Clovis common stock and a Clovis Call Option and each sale or writing of a Clovis Put Option during the Class Period that is listed on the Claim Form and for which adequate documentation is provided. If a Recognized Loss Amount calculates to a negative number or zero under the formula below, that Recognized Loss Amount will be zero. CLOVIS COMMON STOCK CALCULATIONS 56. For each share of Clovis common stock purchased or otherwise acquired during the period from May 31, 2014 through and including November 15, 2015 and: (i) Sold on or before November 15, 2015, the Recognized Loss Amount will be $0.00. (ii) Sold during the period from November 16, 2015 through and including the close of trading on April 7, 2016, the Recognized Loss Amount will be the least of: (a) $69.03; (b) the amount of artificial inflation per share on the date of purchase/acquisition as set forth in Table 1minus the amount of artificial inflation per share on the date of sale as set forth in Table 1; or (c) the purchase/acquisition price minus the sale price. (iii) Held as of the close of trading on April 7, 2016, the Recognized Loss Amount will be the least of: (a) $72.08; (b) the amount of artificial inflation per share on the date of purchase/acquisition as set forth in Table 1; or (c) the purchase/acquisition price minus $15.77, the closing price for Clovis common stock on April 8, 2016. 57. For each share of Clovis common stock purchased or otherwise acquired during the period from November 16, 2015 through and including the close of trading on April 7, 2016, and: (i) Sold on or before the close of trading on April 7, 2016, the Recognized Loss Amount will be $0.00. (ii) Held as of the close of trading on April 7, 2016, the Recognized Loss Amount will be the least of: (a) $3.05; (b) the amount of artificial inflation per share on the date of purchase/acquisition as set forth in Table 1; or (c) the purchase/acquisition price minus $15.77, the closing price for Clovis common stock on April 8, 2016. CLOVIS CALL AND PUT OPTIONS CALCULATIONS 58. Exchange traded options are traded in units called “contracts” which entitle the holder to buy (in the case of a call option) or sell (in the case of a put option) 100 shares of the underlying security, which in this case is Clovis common stock. Throughout this Plan of Allocation, all price quotations are per share of the underlying security (i.e., 1/100 of a contract). 59. Each option contract specifies a strike price and an expiration date. Contracts with the same strike price and expiration date are referred to as a “series” and each series represents a different security that trades in the market and has its own market price (and thus artificial inflation or deflation). Under the Plan of Allocation, the dollar artificial inflation per share i.e.( , 1/100 of a contract) for each series of Clovis Call Options and the dollar artificial deflation per share (i.e., 1/100 of a contract) for each series of Clovis Put Options has been calculated by Lead Plaintiff’s damages expert. Table 2 below sets forth the dollar artificial inflation per share in Clovis Call Options during the Class Period. Table 3 below sets forth the dollar artificial deflation per share in Clovis Put Options during the Class Period. Tables 2 and 3 list only series of exchange traded Clovis Options that expired on or after November 16, 2015 — the date of the first alleged corrective disclosure. Transactions in Clovis Options that expired before November 16, 2015 have a Recognized Loss Amount of zero under the Plan of Allocation. Any Clovis Options that are not found on Tables 2 and 3 have a Recognized Loss Amount of zero under the Plan of Allocation. 60. For each Clovis Call Option purchased or otherwise acquired during the period from May 31, 2014 through and including the close of trading on April 7, 2016, and:
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(i) closed (through sale, exercise, or expiration) on or before November 15, 2015, the Recognized Loss Amount will be $0.00. (ii) closed (through sale, exercise, or expiration) during the period from November 16, 2015 through and including the close of trading on April 7, 2016, the Recognized Loss Amount will be the lesser of: (a) the amount of artificial inflation per share on the date of purchase/acquisition as set forth in Table 2 minus the amount of artificial inflation per share on the date of close as set forth in Table 2; or (b) if closed through sale, the purchase/acquisition price minus the sale price, or if closed through exercise or expiration, the purchase/acquisition price minus the value per option on the date of exercise or expiration.9 (iii) open as of the close of trading on April 7, 2016, the Recognized Loss Amount will be the lesser of: (a) the amount of artificial inflation per share on the date of purchase/acquisition as set forth in Table 2; or (b) the purchase/acquisition price minus the closing price of that option on April 8, 2016 (i.e., the “Holding Price”) as set forth in Table 2 below. 61. For each Clovis Put Option sold (written) during the period from May 31, 2014 through and including the close of trading on April 7, 2016, and: (i) closed (through purchase, exercise, or expiration) on or before November 15, 2015, the Recognized Loss Amount will be $0.00. (ii) closed (through purchase, exercise, or expiration) during the period from November 16, 2015 through and including the close of trading on April 7, 2016, the Recognized Loss Amount will be the lesser of: (a) the amount of artificial deflation per share on the date of sale (writing) as set forth in Table 3 minus the amount of artificial deflation per share on the date of close as set forth in Table 3; or (b) if closed through purchase, the purchase price minus the sale price, or if closed through exercise or expiration, the value per option on the date of exercise or expiration10 minus the sale price. (iii) open as of the close of trading on April 7, 2016, the Recognized Loss Amount will be the lesser of: (a) the amount of artificial deflation per share on the date of sale (writing) as set forth in Table 3; or (b) the closing price on April 8, 2016 (i.e., the “Holding Price”) as set forth in Table 3 below minus the sale price. 62. Maximum Recovery for Options: The Settlement proceeds available for Clovis Call Options purchased during the Class Period and Clovis Put Options sold (written) during the Class Period shall be limited to a total amount equal to 2% of the Net Settlement Fund. Thus, if the cumulative Recognized Loss Amounts for Clovis Call Options and Clovis Put Options exceeds 2% of all Recognized Claims, then the Recognized Loss Amounts calculated for option transactions will be reduced proportionately until they collectively equal 2% of all Recognized Claims. In the unlikely event that the Net Settlement Fund, allocated as such, is sufficient to pay 100% of the Clovis common stock-based claims, any excess amount will be used to pay the balance on the remaining option-based claims. ADJUSTMENT TO RECOGNIZED LOSS AMOUNT FOR SECTION 11 CLAIMS 63. For each share of Clovis common stock purchased or acquired between May 31, 2014 and April 7, 2016, inclusive, pursuant to or traceable to the secondary offering of Clovis common stock conducted on or about July 14, 2015, if it calculates to a Recognized Loss Amount that is a positive number pursuant to ¶¶ 56-57 above, that number shall be increased by 15%. ADDITIONAL PROVISIONS 64. Calculation of Claimant’s “Recognized Claim”: A Claimant’s “Recognized Claim” under the Plan of Allocation will be the sum of his, her or its Recognized Loss Amounts as calculated above with respect to all Clovis Securities. 65. FIFO Matching: If a Settlement Class Member made more than one purchase/acquisition or sale of any Clovis Security during the Class Period, all purchases/acquisitions and sales of the like security shall be matched on a First In, First Out (“FIFO”) basis. With respect to Clovis common stock and Clovis Call Options, Class Period sales will be matched first against any holdings at the beginning of the Class Period, and then against
9 The “value” of the call option on the date of exercise or expiration shall be the closing price of Clovis common stock on the date of exercise or expiration minus the strike price of the option. If this number is less than zero, the value of the call option is zero. 10 The “value” of the put option on the date of exercise or expiration shall be the strike price of the option minus the closing price of Clovis common stock on the date of exercise or expiration. If this number is less than zero, the value of the put option is zero.
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purchases/acquisitions in chronological order, beginning with the earliest purchase/acquisition made during the Class Period. For Clovis Put Options, Class Period purchases will be matched first to close out positions open at the beginning of the Class Period, and then against Clovis Put Options sold (written) during the Class Period in chronological order. 66. “Purchase/Sale” Dates: Purchases or acquisitions and sales of Clovis Securities shall be deemed to have occurred on the “contract” or “trade” date as opposed to the “settlement” or “payment” date. The receipt or grant by gift, inheritance, or operation of law of Clovis Securities during the Class Period shall not be deemed a purchase, acquisition or sale of these Clovis Securities for the calculation of a Claimant’s Recognized Loss Amount, nor shall the receipt or grant be deemed an assignment of any claim relating to the purchase/acquisition/sale of such Clovis Securities unless (i) the donor or decedent purchased or otherwise acquired or sold such Clovis Securities during the Class Period; (ii) the instrument of gift or assignment specifically provides that it is intended to transfer such rights; and (iii) no Claim Form was submitted by or on behalf of the donor, on behalf of the decedent, or by anyone else with respect to such Clovis Securities. 67. Short Sales: With respect to Clovis common stock, the date of covering a “short sale” is deemed to be the date of purchase or acquisition of the common stock. The date of a “short sale” is deemed to be the date of sale of the Clovis common stock. In accordance with the Plan of Allocation, however, the Recognized Loss Amount on “short sales” and the purchases covering “short sales” is zero. 68. In the event that a Claimant has an opening short position in Clovis common stock, the earliest purchases or acquisitions of Clovis common stock during the Class Period shall be matched against such opening short position, and not be entitled to a recovery, until that short position is fully covered. 69. If a Settlement Class Member has “written” Clovis Call Options, thereby having a short position in the call options, the date of covering such a written position is deemed to be the date of purchase or acquisition of the call option. The date on which the call option was written is deemed to be the date of sale of the call option. In accordance with the Plan of Allocation, however, the Recognized Loss Amount on “written” Clovis Call Options is zero. In the event that a Claimant has an opening written position in Clovis Call Options, the earliest purchases or acquisitions of like call options during the Class Period shall be matched against such opening written position, and not be entitled to a recovery, until that written position is fully covered. 70. If a Settlement Class Member has purchased or acquired Clovis Put Options, thereby having a long position in the put options, the date of purchase/acquisition is deemed to be the date of purchase/acquisition of the put option. The date on which the put option was sold, exercised, or expired is deemed to be the date of sale of the put option. In accordance with the Plan of Allocation, however, the Recognized Loss Amount on purchased/acquired Clovis Put Options is zero. In the event that a Claimant has an opening long position in Clovis Put Options, the earliest sales or dispositions of like put options during the Class Period shall be matched against such opening position, and not be entitled to a recovery, until that long position is fully covered. 71. Common Stock Purchased/Sold Through the Exercise of Options: With respect to Clovis common stock purchased or sold through the exercise of an option, the purchase/sale date of the common stock is the exercise date of the option and the purchase/sale price is the exercise price of the option. 72. Market Gains and Losses: With respect to all Clovis common stock and Clovis Call Options purchased or acquired or Clovis Put Options sold (written) during the Class Period, the Claims Administrator will determine if the Claimant had a Market Gain or a Market Loss with respect to his, her, or its overall transactions during the Class Period in those shares and options. For purposes of making this calculation, with respect to Clovis common stock and Clovis Call Options, the Claims Administrator shall determine the difference between (i) the Claimant’s Total Purchase Amount11 and (ii) the sum of the Claimant’s Total Sales Proceeds12 and the Claimant’s Holding Value.13 For Clovis common stock and Clovis Call Options, if the Claimant’s Total Purchase Amount minus the sum of the Claimant’s Total Sales Proceeds and the Holding Value is a positive number, that number will be the Claimant’s Market Loss; if the number is a negative number or zero, that number will be the Claimant’s Market Gain. With 11 For Clovis common stock and Clovis Call Options, the “Total Purchase Amount” is the total amount the Claimant paid (excluding all fees, taxes and commissions) for all such Clovis securities purchased and/or acquired during the Class Period. 12 For Clovis common stock and Clovis Call Options, the Claims Administrator shall match any sales of such Clovis securities during the Class Period first against the Claimant’s opening position in the like Clovis securities (the proceeds of those sales will not be considered for purposes of calculating market gains or losses). The total amount received for sales of the remaining like Clovis securities sold during the Class Period is the “Total Sales Proceeds.” 13 The Claims Administrator shall ascribe a “Holding Value” of $15.77 to each share of Clovis common stock purchased or acquired during the Class Period that was still held as of the close of trading on April 7, 2016. For each Clovis Call Option purchased or acquired during the Class Period that was still open as of the close of trading on April 7, 2016, the Claims Administrator shall ascribe a “Holding Value” for that option which shall be the Holding Price set forth on Table 2.
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respect to Clovis Put Options, the Claims Administrator shall determine the difference between (i) the sum of the Claimant’s Total Purchase Amount14 and the Claimant’s Holding Value15 and (ii) the Claimant’s Total Sales Proceeds.16 For Clovis Put Options, if the sum of the Claimant’s Total Purchase Amount and the Claimant’s Holding Value minus the Claimant’s Total Sales Proceeds is a positive number, that number will be the Claimant’s Market Loss; if the number is a negative number or zero, that number will be the Claimant’s Market Gain. 73. If a Claimant had a Market Gain with respect to his, her, or its overall transactions in Clovis Securities during the Class Period, the value of the Claimant’s Recognized Claim will be zero, and the Claimant will in any event be bound by the Settlement. If a Claimant suffered an overall Market Loss with respect to his, her, or its overall transactions in Clovis Securities during the Class Period but that Market Loss was less than the Claimant’s Recognized Claim calculated above, then the Claimant’s Recognized Claim will be limited to the amount of the Market Loss. 74. Determination of Distribution Amount: If the sum total of Recognized Claims of all Authorized Claimants who are entitled to receive payment out of the Net Settlement Fund is greater than the Net Settlement Fund, each Authorized Claimant shall receive his, her, or its pro rata share of the Net Settlement Fund. The pro rata share shall be the Authorized Claimant’s Recognized Claim divided by the total of Recognized Claims of all Authorized Claimants, multiplied by the total amount in the Net Settlement Fund. 75. If the Net Settlement Fund exceeds the sum total amount of the Recognized Claims of all Authorized Claimants entitled to receive payment out of the Net Settlement Fund, the excess amount in the Net Settlement Fund shall be distributed pro rata to all Authorized Claimants entitled to receive payment. 76. No cash payments for less than $10.00 will be made. In the event of a distribution of Settlement Shares, no fractional Settlement Shares will be issued. 77. After the initial distribution of the Net Settlement Fund, the Claims Administrator will make reasonable and diligent efforts to have Authorized Claimants cash their distribution checks and claim their Settlement Shares. To the extent any monies and/or Settlement Shares remain in the Net Settlement Fund nine (9) months after the initial distribution, if Lead Counsel, in consultation with the Claims Administrator, determines that it is cost-effective to do so, the Claims Administrator will conduct a re-distribution of the funds and/or Settlement Shares remaining after payment of any unpaid fees and expenses incurred in administering the Settlement, including for such re-distribution, to Authorized Claimants who have cashed their initial distributions and claimed their initial Settlement Shares and who would receive at least $10.00 from such re-distribution. Additional re-distributions to Authorized Claimants who have cashed their prior checks and claimed their prior Settlement Shares and who would receive at least $10.00 on such additional re-distributions may occur thereafter if Lead Counsel, in consultation with the Claims Administrator, determines that additional re-distributions, after the deduction of any additional fees and expenses incurred in administering the Settlement, including for such re-distributions, would be cost-effective. At such time as it is determined that the re-distribution of funds and/or Settlement Shares remaining in the Net Settlement Fund is not cost-effective, the remaining balance shall be contributed to non-sectarian, not-for-profit organization(s), to be recommended by Lead Counsel and approved by the Court. 78. Payment pursuant to the Plan of Allocation, or such other plan of allocation as may be approved by the Court, shall be conclusive against all Authorized Claimants. No person shall have any claim against Lead Plaintiff, Plaintiffs’ Counsel, Lead Plaintiff’s damages expert, the Settling Defendants, Settling Defendants’ Counsel, or any of the other Plaintiffs’ Releasees or Defendants’ Releasees, or the Claims Administrator or other agent designated by Lead Counsel arising from distributions made substantially in accordance with the Stipulation, the plan of allocation approved by the Court, or further Orders of the Court. Lead Plaintiff, the Settling Defendants, and their respective counsel, and all other Defendants’ Releasees, shall have no responsibility or liability whatsoever for the investment or distribution of the Settlement Fund or the Net Settlement Fund; the plan of allocation; the determination, administration, calculation, or payment of any Claim Form or nonperformance of the Claims Administrator; the payment or withholding of Taxes; or any losses incurred in connection therewith. Settlement Class Members shall also release all claims that arise out of, relate to, or are based upon the issuance, transfer, or disposition of the Settlement Shares made in accordance with the terms of the Stipulation.
14 For Clovis Put Options, the Claims Administrator shall match any purchases/acquisitions during the Class Period to close out positions in put options first against the Claimant’s opening position in put options (the total amount paid with respect to those purchases/acquisitions will not be considered for purposes of calculating market gains or losses). The total amount paid for the remaining purchases/acquisitions during the Class Period to close out positions in put options is the “Total Purchase Amount.” 15 For each Clovis Put Option sold (written) during the Class Period that was still open as of the close of trading on April 7, 2016, the Claims Administrator shall ascribe a “Holding Value” for that option which shall be the Holding Price set forth on Table 3. 16 For Clovis Put Options, the total amount received for put options sold (written) during the Class Period is the “Total Sales Proceeds.”
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79. The Plan of Allocation set forth herein is the plan that is being proposed to the Court for its approval by Lead Plaintiff after consultation with its damages expert. The Court may approve this plan as proposed or it may modify the Plan of Allocation without further notice to the Settlement Class. Any Orders regarding any modification of the Plan of Allocation will be posted on the settlement website, www.ClovisSecuritiesLitigation.com.
WHAT PAYMENT ARE THE ATTORNEYS FOR THE SETTLEMENT CLASS SEEKING? HOW WILL THE LAWYERS BE PAID? 80. Plaintiffs’ Counsel have not received any payment for their services in pursuing claims against the Defendants on behalf of the Settlement Class, nor have Plaintiffs’ Counsel been reimbursed for their out-of-pocket expenses. Before final approval of the Settlement, Lead Counsel will apply to the Court for an award of attorneys’ fees for all Plaintiffs’ Counsel in an amount not to exceed 22.5% of the Settlement Fund (in combination of cash and stock in the same proportion that the Cash Settlement Amount and the Settlement Shares comprise the Settlement Amount). At the same time, Lead Counsel also intends to apply for reimbursement of Litigation Expenses in an amount not to exceed $900,000, which may include an application for reimbursement of the reasonable costs and expenses incurred by Plaintiffs directly related to their representation of the Settlement Class. The Court will determine the amount of any award of attorneys’ fees and reimbursement of Litigation Expenses. Such sums as may be approved by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses.
WHAT IF I DO NOT WANT TO BE A MEMBER OF THE SETTLEMENT CLASS? HOW DO I EXCLUDE MYSELF? 81. Each Settlement Class Member will be bound by all determinations and judgments in this lawsuit, whether favorable or unfavorable, unless such person or entity mails or delivers a written Request for Exclusion from the Settlement Class, addressed to Clovis Securities Litigation, EXCLUSIONS, c/o Epiq Systems, PO Box 3127, Portland, OR 97208-3127. The exclusion request must be received no later than October 5, 2017. You will not be able to exclude yourself from the Settlement Class after that date. Each Request for Exclusion must (i) state the name, address, and telephone number of the person or entity requesting exclusion, and, in the case of entities, the name and telephone number of the appropriate contact person; (ii) state that such person or entity “requests exclusion from the Settlement Class in Medina v. Clovis Oncology, Inc., et al., Civil Action No. 1:15-cv-2546”; (iii) state the number of shares of Clovis common stock, Clovis Call Options, and/or Clovis Put Options that the person or entity requesting exclusion purchased/acquired and/or sold during the Class Period (i.e., between May 31, 2014 and April 7, 2016, inclusive), as well as the dates, number of shares/options, and prices of each such purchase/acquisition and/or sale; and (iv) be signed by the person or entity requesting exclusion or an authorized representative thereof. A Request for Exclusion shall not be valid and effective, unless it provides all the information called for in this paragraph and is received within the time stated above, or is otherwise accepted by the Court. 82. If you do not want to be part of the Settlement Class, you must follow these instructions for exclusion, even if you have pending, or later file, another lawsuit, arbitration, or other proceeding relating to any Released Plaintiff’s Claim against any of the Defendants’ Releasees. 83. If you ask to be excluded from the Settlement Class, you will not be eligible to receive any payment out of the Net Settlement Fund. 84. Clovis has the right to terminate the Settlement if valid requests for exclusion are received from persons and entities entitled to be members of the Settlement Class in an amount that exceeds an amount agreed to by Lead Plaintiff and Clovis.
WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? DO I HAVE TO COME TO THE HEARING? MAY I SPEAK AT THE HEARING IF I DON’T LIKE THE SETTLEMENT?
85. Settlement Class Members do not need to attend the Settlement Hearing. The Court will consider any submission made in accordance with the provisions below, even if a Settlement Class Member does not attend the hearing. You can participate in the Settlement without attending the Settlement Hearing. Please Note: The date and time of the Settlement Hearing may change without further written notice to the Settlement Class. You should monitor the Court’s docket and the website maintained by the Claims Administrator, www.ClovisSecuritiesLitigation.com, before making plans to attend the Settlement Hearing. You may also confirm the date and time of the Settlement Hearing by contacting Lead Counsel.
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86. The Settlement Hearing will be held on October 26, 2017 at 10:00 a.m., before the Honorable Raymond P. Moore at the United States District Court for the District of Colorado, Alfred A. Arraj United States Courthouse, Courtroom A601, 6th Floor, 901 19th Street, Denver, Colorado 80294, to determine, among other things, (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against the Defendants and the Releases specified and described in the Stipulation (and in this Notice) should be granted; (iii) whether the terms and conditions of the issuance of the Settlement Shares pursuant to an exemption from registration requirements under Section 3(a)(10) of the Securities Act are fair to all persons and entities to whom the shares will be issued; (iv) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (v) whether Lead Counsel’s application for an award of attorneys’ fees and reimbursement of Litigation Expenses should be approved. The Court reserves the right to approve the Settlement, the Plan of Allocation, Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses, and/or any other matter related to the Settlement at or after the Settlement Hearing without further notice to the members of the Settlement Class. 87. Any Settlement Class Member who or which does not request exclusion may object to the Settlement, the proposed Plan of Allocation, and/or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses. Objections must be in writing. You must file any written objection, together with copies of all other papers and briefs supporting the objection, with the Clerk’s Office at the United States District Court for the District of Colorado at the address set forth below on or before October 5, 2017. You must also serve the papers on Lead Counsel and on Settling Defendants’ Counsel at the addresses set forth below so that the papers are received on or before October 5, 2017. Settling Clerk’s Office Lead Counsel Defendants’ Counsel United States District Court Bernstein Litowitz Berger Willkie Farr & Gallagher LLP District of Colorado & Grossmann LLP Tariq Mundiya, Esq. Clerk of the Court John C. Browne, Esq. 787 Seventh Avenue Alfred A. Arraj United 1251 Avenue of the Americas, New York, NY 10019 States Courthouse 44th Floor 901 19th Street New York, NY 10020 Denver, CO 80294 88. Any objection (i) must state the name, address, and telephone number of the person or entity objecting and must be signed by the objector; (ii) must contain a statement of the Settlement Class Member’s objection or objections, and the specific reasons for each objection, including any legal and evidentiary support the Settlement Class Member wishes to bring to the Court’s attention; and (iii) must include documents sufficient to prove membership in the Settlement Class, including the number of shares of Clovis common stock, Clovis Call Options, and/or Clovis Put Options that the objecting Settlement Class Member purchased/acquired and/or sold during the Class Period (i.e., between May 31, 2014 and April 7, 2016, inclusive), as well as the dates, number of shares/options, and prices of each such purchase/acquisition and/or sale. You may not object to the Settlement, the Plan of Allocation, or Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses if you exclude yourself from the Settlement Class or if you are not a member of the Settlement Class. 89. You may file a written objection without having to appear at the Settlement Hearing. You may not, however, appear at the Settlement Hearing to present your objection, unless you first file and serve a written objection in accordance with the procedures described above, unless the Court orders otherwise. 90. If you wish to be heard orally at the hearing in opposition to the approval of the Settlement, the Plan of Allocation, or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses, and if you timely file and serve a written objection as described above, you must also file a notice of appearance with the Clerk’s Office and serve it on Lead Counsel and Settling Defendants’ Counsel at the addresses set forth in ¶ 87 above, so that it is received on or before October 5, 2017. Persons who intend to object and desire to present evidence at the Settlement Hearing must include in their written objection or notice of appearance the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the hearing. Such persons may be heard orally at the discretion of the Court. 91. You are not required to hire an attorney to represent you in making written objections or in appearing at the Settlement Hearing. However, if you decide to hire an attorney, it will be at your own expense, and that attorney must file a notice of appearance with the Court and serve it on Lead Counsel and Settling Defendants’ Counsel at the addresses set forth in ¶ 87 above so that the notice is received on or before October 5, 2017.
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92. Unless the Court orders otherwise, any Settlement Class Member who does not object in the manner described above will be deemed to have waived any objection and shall be forever foreclosed from making any objection to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses. Settlement Class Members do not need to appear at the Settlement Hearing or take any other action to indicate their approval.
WHAT IF I BOUGHT SHARES OR OPTIONS ON SOMEONE ELSE’S BEHALF?
93. If you purchased or otherwise acquired Clovis common stock and/or Clovis Call Options, and/or sold (wrote) Clovis Call Options, during the Class Period (i.e., between May 31, 2014 and April 7, 2016, inclusive), for the beneficial interest of persons or organizations other than yourself, you must either (i) within seven (7) calendar days of receipt of this Notice, request from the Claims Administrator sufficient copies of the Notice and Claim Form (the “Notice Packet”) to forward to all such beneficial owners and within seven (7) calendar days of receipt of those Notice Packets forward them to all such beneficial owners; or (ii) within seven (7) calendar days of receipt of this Notice, provide a list of the names and addresses of all such beneficial owners to Clovis Securities Litigation, c/o Epiq Systems, PO Box 3127, Portland, OR 97208-3127. If you choose the second option, the Claims Administrator will send a copy of the Notice and the Claim Form to the beneficial owners. Upon full compliance with these directions, such nominees may seek reimbursement of their reasonable expenses actually incurred, by providing the Claims Administrator with proper documentation supporting the expenses for which reimbursement is sought. Copies of this Notice and the Claim Form may also be obtained from the website maintained by the Claims Administrator, www.ClovisSecuritiesLitigation.com, by calling the Claims Administrator toll-free at 1-888-697-8556, or by emailing the Claims Administrator at [email protected].
CAN I SEE THE COURT FILE? WHOM SHOULD I CONTACT IF I HAVE QUESTIONS?
94. This Notice contains only a summary of the terms of the proposed Settlement. For more detailed information about the matters involved in this Action, you are referred to the papers on file in the Action, including the Stipulation, which may be inspected during regular office hours at the Office of the Clerk, United States District Court for the District of Colorado, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, CO 80294. Additionally, copies of the Stipulation and any related orders entered by the Court will be posted on the website maintained by the Claims Administrator, www.ClovisSecuritiesLitigation.com. All inquiries concerning this Notice and the Claim Form should be directed to:
Clovis Securities Litigation and/or John C. Browne, Esq. c/o Epiq Systems BERNSTEIN LITOWITZ BERGER & PO Box 3127 GROSSMANN LLP Portland, OR 97208-3127 1251 Avenue of the Americas, 44th Floor 1-888-697-8556 New York, NY 10020 [email protected] 1-800-380-8496 www.ClovisSecuritiesLitigation.com [email protected] DO NOT CALL OR WRITE THE COURT, THE OFFICE OF THE CLERK OF THE COURT, CLOVIS, ANY OF THE OTHER DEFENDANTS, OR THEIR COUNSEL REGARDING THIS NOTICE.
Dated: August 4, 2017 By Order of the Court United States District Court District of Colorado
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TABLE 1 Estimated Artificial Inflation in Clovis Common Stock from May 31, 2014 through and including April 7, 2016
Artificial Artificial Artificial Artificial Artificial Date Inflation Date Inflation Date Inflation Date Inflation Date Inflation 6/2/2014 $35.56 8/7/2014 $27.47 10/14/2014 $31.91 12/19/2014 $42.18 3/2/2015 $58.87 6/3/2014 $28.47 8/8/2014 $30.45 10/15/2014 $32.93 12/22/2014 $42.40 3/3/2015 $56.27 6/4/2014 $28.60 8/11/2014 $30.99 10/16/2014 $34.83 12/23/2014 $40.33 3/4/2015 $57.65 6/5/2014 $30.36 8/12/2014 $31.20 10/17/2014 $36.13 12/24/2014 $40.65 3/5/2015 $59.33 6/6/2014 $29.73 8/13/2014 $31.83 10/20/2014 $36.75 12/26/2014 $41.89 3/6/2015 $58.98 6/9/2014 $31.03 8/14/2014 $32.27 10/21/2014 $38.05 12/29/2014 $41.69 3/9/2015 $58.61 6/10/2014 $33.32 8/15/2014 $32.93 10/22/2014 $38.31 12/30/2014 $41.07 3/10/2015 $58.74 6/11/2014 $32.62 8/18/2014 $32.78 10/23/2014 $40.26 12/31/2014 $41.71 3/11/2015 $58.62 6/12/2014 $33.16 8/19/2014 $32.43 10/24/2014 $41.39 1/2/2015 $42.44 3/12/2015 $59.05 6/13/2014 $33.73 8/20/2014 $32.47 10/27/2014 $41.48 1/5/2015 $41.70 3/13/2015 $58.08 6/16/2014 $32.67 8/21/2014 $31.24 10/28/2014 $43.98 1/6/2015 $41.54 3/16/2015 $60.91 6/17/2014 $32.61 8/22/2014 $32.64 10/29/2014 $42.63 1/7/2015 $43.35 3/17/2015 $62.04 6/18/2014 $31.98 8/25/2014 $34.77 10/30/2014 $44.06 1/8/2015 $43.91 3/18/2015 $60.27 6/19/2014 $31.59 8/26/2014 $37.16 10/31/2014 $44.43 1/9/2015 $43.98 3/19/2015 $60.65 6/20/2014 $30.96 8/27/2014 $36.20 11/3/2014 $44.86 1/12/2015 $43.16 3/20/2015 $58.29 6/23/2014 $30.61 8/28/2014 $35.56 11/4/2014 $43.90 1/13/2015 $45.68 3/23/2015 $56.53 6/24/2014 $30.69 8/29/2014 $35.42 11/5/2014 $42.56 1/14/2015 $47.50 3/24/2015 $55.93 6/25/2014 $31.28 9/2/2014 $35.97 11/6/2014 $43.62 1/15/2015 $47.36 3/25/2015 $53.63 6/26/2014 $30.95 9/3/2014 $33.51 11/7/2014 $43.43 1/16/2015 $50.32 3/26/2015 $53.78 6/27/2014 $31.68 9/4/2014 $32.78 11/10/2014 $44.79 1/20/2015 $51.01 3/27/2015 $54.70 6/30/2014 $30.84 9/5/2014 $32.28 11/11/2014 $45.66 1/21/2015 $49.56 3/30/2015 $55.82 7/1/2014 $30.90 9/8/2014 $32.64 11/12/2014 $43.52 1/22/2015 $48.87 3/31/2015 $55.28 7/2/2014 $30.91 9/9/2014 $32.70 11/13/2014 $42.30 1/23/2015 $48.22 4/1/2015 $52.97 7/3/2014 $31.85 9/10/2014 $33.92 11/14/2014 $40.88 1/26/2015 $51.21 4/2/2015 $51.78 7/7/2014 $30.28 9/11/2014 $34.32 11/17/2014 $39.72 1/27/2015 $50.98 4/6/2015 $51.12 7/8/2014 $28.24 9/12/2014 $34.32 11/18/2014 $40.05 1/28/2015 $48.70 4/7/2015 $55.19 7/9/2014 $28.52 9/15/2014 $32.96 11/19/2014 $35.96 1/29/2015 $49.21 4/8/2015 $56.75 7/10/2014 $28.62 9/16/2014 $32.80 11/20/2014 $37.83 1/30/2015 $48.55 4/9/2015 $55.71 7/11/2014 $28.81 9/17/2014 $34.27 11/21/2014 $36.20 2/2/2015 $48.34 4/10/2015 $57.65 7/14/2014 $29.55 9/18/2014 $33.78 11/24/2014 $35.96 2/3/2015 $48.51 4/13/2015 $65.16 7/15/2014 $28.79 9/19/2014 $33.17 11/25/2014 $35.34 2/4/2015 $47.17 4/14/2015 $64.31 7/16/2014 $27.78 9/22/2014 $31.48 11/26/2014 $35.90 2/5/2015 $49.83 4/15/2015 $69.15 7/17/2014 $27.14 9/23/2014 $30.97 11/28/2014 $35.44 2/6/2015 $49.47 4/16/2015 $67.77 7/18/2014 $28.03 9/24/2014 $31.15 12/1/2014 $34.83 2/9/2015 $49.45 4/17/2015 $64.16 7/21/2014 $27.85 9/25/2014 $29.81 12/2/2014 $36.30 2/10/2015 $51.81 4/20/2015 $63.99 7/22/2014 $27.08 9/26/2014 $31.65 12/3/2014 $36.33 2/11/2015 $50.64 4/21/2015 $64.35 7/23/2014 $27.45 9/29/2014 $35.81 12/4/2014 $36.22 2/12/2015 $50.70 4/22/2015 $63.34 7/24/2014 $27.56 9/30/2014 $33.78 12/5/2014 $38.02 2/13/2015 $51.23 4/23/2015 $67.22 7/25/2014 $28.06 10/1/2014 $34.54 12/8/2014 $38.46 2/17/2015 $54.38 4/24/2015 $68.54 7/28/2014 $27.27 10/2/2014 $35.76 12/9/2014 $39.82 2/18/2015 $55.01 4/27/2015 $62.35 7/29/2014 $29.05 10/3/2014 $36.35 12/10/2014 $39.63 2/19/2015 $55.98 4/28/2015 $61.90 7/30/2014 $28.66 10/6/2014 $35.28 12/11/2014 $40.84 2/20/2015 $54.96 4/29/2015 $61.43 7/31/2014 $27.15 10/7/2014 $34.84 12/12/2014 $41.07 2/23/2015 $54.90 4/30/2015 $59.85 8/1/2014 $27.41 10/8/2014 $35.58 12/15/2014 $39.61 2/24/2015 $54.54 5/1/2015 $61.14 8/4/2014 $26.99 10/9/2014 $35.38 12/16/2014 $39.68 2/25/2015 $57.01 5/4/2015 $61.04 8/5/2014 $27.67 10/10/2014 $33.27 12/17/2014 $41.54 2/26/2015 $58.01 5/5/2015 $59.37 8/6/2014 $27.77 10/13/2014 $31.84 12/18/2014 $42.96 2/27/2015 $56.95 5/6/2015 $59.52
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Artificial Artificial Artificial Artificial Artificial Date Inflation Date Inflation Date Inflation Date Inflation Date Inflation 5/7/2015 $58.46 7/15/2015 $65.96 9/21/2015 $78.54 11/25/2015 $4.73 2/4/2016 $3.33 5/8/2015 $61.72 7/16/2015 $65.07 9/22/2015 $74.66 11/27/2015 $5.23 2/5/2016 $3.22 5/11/2015 $64.48 7/17/2015 $64.84 9/23/2015 $74.27 11/30/2015 $5.10 2/8/2016 $3.05 5/12/2015 $63.93 7/20/2015 $64.10 9/24/2015 $74.37 12/1/2015 $5.20 2/9/2016 $3.01 5/13/2015 $64.05 7/21/2015 $64.17 9/25/2015 $69.52 12/2/2015 $5.48 2/10/2016 $3.08 5/14/2015 $74.78 7/22/2015 $64.07 9/28/2015 $67.43 12/3/2015 $5.40 2/11/2016 $3.02 5/15/2015 $69.07 7/23/2015 $64.02 9/29/2015 $66.31 12/4/2015 $5.51 2/12/2016 $3.08 5/18/2015 $69.53 7/24/2015 $61.53 9/30/2015 $68.49 12/7/2015 $5.17 2/16/2016 $3.16 5/19/2015 $67.91 7/27/2015 $61.76 10/1/2015 $68.53 12/8/2015 $5.35 2/17/2016 $3.22 5/20/2015 $68.27 7/28/2015 $64.60 10/2/2015 $70.64 12/9/2015 $5.31 2/18/2016 $2.89 5/21/2015 $67.42 7/29/2015 $63.71 10/5/2015 $69.71 12/10/2015 $5.31 2/19/2016 $2.91 5/22/2015 $67.60 7/30/2015 $62.53 10/6/2015 $67.32 12/11/2015 $5.18 2/22/2016 $2.96 5/26/2015 $68.68 7/31/2015 $62.88 10/7/2015 $68.33 12/14/2015 $5.05 2/23/2016 $2.86 5/27/2015 $69.86 8/3/2015 $63.79 10/8/2015 $67.02 12/15/2015 $5.42 2/24/2016 $2.93 5/28/2015 $67.48 8/4/2015 $64.68 10/9/2015 $69.71 12/16/2015 $5.28 2/25/2016 $2.80 5/29/2015 $68.85 8/5/2015 $64.45 10/12/2015 $67.54 12/17/2015 $5.41 2/26/2016 $3.20 6/1/2015 $64.80 8/6/2015 $61.94 10/13/2015 $67.47 12/18/2015 $5.32 2/29/2016 $3.02 6/2/2015 $61.68 8/7/2015 $59.98 10/14/2015 $69.10 12/21/2015 $5.43 3/1/2016 $3.14 6/3/2015 $62.87 8/10/2015 $59.44 10/15/2015 $75.58 12/22/2015 $5.46 3/2/2016 $3.40 6/4/2015 $62.24 8/11/2015 $58.44 10/16/2015 $72.27 12/23/2015 $5.49 3/3/2016 $3.48 6/5/2015 $64.04 8/12/2015 $58.70 10/19/2015 $73.14 12/24/2015 $5.54 3/4/2016 $3.50 6/8/2015 $63.15 8/13/2015 $57.53 10/20/2015 $70.77 12/28/2015 $5.40 3/7/2016 $3.65 6/9/2015 $63.75 8/14/2015 $57.40 10/21/2015 $69.12 12/29/2015 $5.68 3/8/2016 $3.34 6/10/2015 $64.30 8/17/2015 $59.82 10/22/2015 $69.44 12/30/2015 $5.58 3/9/2016 $3.21 6/11/2015 $64.91 8/18/2015 $59.25 10/23/2015 $71.89 12/31/2015 $5.68 3/10/2016 $3.08 6/12/2015 $62.05 8/19/2015 $57.06 10/26/2015 $71.33 1/4/2016 $5.41 3/11/2016 $3.19 6/15/2015 $63.24 8/20/2015 $54.54 10/27/2015 $72.90 1/5/2016 $5.14 3/14/2016 $3.29 6/16/2015 $63.42 8/21/2015 $54.13 10/28/2015 $75.45 1/6/2016 $5.00 3/15/2016 $3.07 6/17/2015 $65.82 8/24/2015 $49.91 10/29/2015 $74.67 1/7/2016 $4.84 3/16/2016 $3.07 6/18/2015 $67.91 8/25/2015 $51.76 10/30/2015 $74.41 1/8/2016 $4.73 3/17/2016 $3.00 6/19/2015 $69.41 8/26/2015 $53.26 11/2/2015 $79.10 1/11/2016 $4.24 3/18/2016 $3.15 6/22/2015 $69.41 8/27/2015 $56.66 11/3/2015 $78.11 1/12/2016 $4.45 3/21/2016 $3.21 6/23/2015 $65.78 8/28/2015 $59.98 11/4/2015 $78.02 1/13/2016 $3.92 3/22/2016 $3.34 6/24/2015 $63.97 8/31/2015 $57.99 11/5/2015 $77.12 1/14/2016 $3.86 3/23/2016 $3.02 6/25/2015 $64.14 9/1/2015 $58.84 11/6/2015 $73.90 1/15/2016 $3.65 3/24/2016 $3.09 6/26/2015 $64.07 9/2/2015 $62.08 11/9/2015 $73.86 1/19/2016 $3.54 3/28/2016 $3.01 6/29/2015 $62.42 9/3/2015 $60.62 11/10/2015 $78.86 1/20/2016 $3.61 3/29/2016 $3.22 6/30/2015 $65.45 9/4/2015 $62.43 11/11/2015 $74.69 1/21/2016 $3.52 3/30/2016 $3.12 7/1/2015 $63.96 9/8/2015 $62.84 11/12/2015 $74.04 1/22/2016 $3.66 3/31/2016 $3.11 7/2/2015 $61.77 9/9/2015 $71.54 11/13/2015 $74.05 1/25/2016 $3.73 4/1/2016 $3.14 7/6/2015 $63.18 9/10/2015 $77.65 11/16/2015 $4.91 1/26/2016 $3.63 4/4/2016 $2.80 7/7/2015 $63.87 9/11/2015 $77.53 11/17/2015 $4.35 1/27/2016 $3.45 4/5/2016 $2.84 7/8/2015 $58.86 9/14/2015 $77.91 11/18/2015 $4.38 1/28/2016 $3.35 4/6/2016 $3.01 7/9/2015 $58.24 9/15/2015 $80.85 11/19/2015 $4.35 1/29/2016 $3.39 4/7/2016 $3.11 7/10/2015 $59.60 9/16/2015 $80.96 11/20/2015 $4.28 2/1/2016 $3.39 7/13/2015 $63.02 9/17/2015 $85.38 11/23/2015 $4.17 2/2/2016 $3.21 7/14/2015 $65.16 9/18/2015 $85.20 11/24/2015 $4.51 2/3/2016 $3.26
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TABLE 2 Estimated Artificial Inflation in Clovis Call Options from May 31, 2014 through and including April 7, 2016 Call Option Artificial Inflation per Share During Trading Periods Expiration Date Strike Price Holding Price May 31, 2014 – November 16, 2015 – November 15, 2015 April 7, 2016 11/20/2015 $60.00 $39.73 $0.00 $0.00 11/20/2015 $65.00 $34.88 $0.00 $0.00 11/20/2015 $70.00 $29.88 $0.00 $0.00 11/20/2015 $75.00 $24.98 $0.00 $0.00 11/20/2015 $80.00 $19.88 $0.00 $0.00 11/20/2015 $85.00 $15.18 $0.00 $0.00 11/20/2015 $90.00 $10.78 $0.00 $0.00 11/20/2015 $95.00 $6.88 $0.00 $0.00 11/20/2015 $100.00 $4.28 $0.00 $0.00 11/20/2015 $105.00 $1.95 $0.00 $0.00 11/20/2015 $110.00 $1.23 $0.00 $0.00 11/20/2015 $115.00 $1.35 $0.00 $0.00 11/20/2015 $120.00 $1.10 $0.00 $0.00 11/20/2015 $125.00 $1.05 $0.00 $0.00 11/20/2015 $130.00 $1.00 $0.00 $0.00 11/20/2015 $135.00 $0.98 $0.00 $0.00 11/20/2015 $140.00 $0.93 $0.00 $0.00 11/20/2015 $145.00 $0.90 $0.00 $0.00 11/20/2015 $150.00 $0.80 $0.00 $0.00 11/20/2015 $155.00 $0.68 $0.00 $0.00 11/20/2015 $160.00 $0.53 $0.00 $0.00 12/18/2015 $50.00 $49.18 $0.00 $0.00 12/18/2015 $55.00 $44.58 $0.00 $0.00 12/18/2015 $60.00 $39.78 $0.00 $0.00 12/18/2015 $65.00 $35.00 $0.00 $0.00 12/18/2015 $70.00 $30.53 $0.00 $0.00 12/18/2015 $75.00 $25.85 $0.00 $0.00 12/18/2015 $80.00 $21.65 $0.00 $0.00 12/18/2015 $85.00 $17.73 $0.00 $0.00 12/18/2015 $90.00 $13.93 $0.00 $0.00 12/18/2015 $95.00 $10.88 $0.00 $0.00 12/18/2015 $100.00 $8.20 $0.00 $0.00 12/18/2015 $105.00 $5.38 $0.00 $0.00 12/18/2015 $110.00 $4.18 $0.00 $0.00 12/18/2015 $115.00 $3.18 $0.00 $0.00 12/18/2015 $120.00 $2.33 $0.00 $0.00 12/18/2015 $125.00 $1.93 $0.00 $0.00 12/18/2015 $130.00 $1.65 $0.00 $0.00 12/18/2015 $135.00 $1.75 $0.00 $0.00 12/18/2015 $140.00 $1.38 $0.00 $0.00 12/18/2015 $145.00 $1.30 $0.00 $0.00 1/15/2016 $22.50 $67.35 $0.00 $0.00 1/15/2016 $25.00 $66.15 $0.00 $0.00 1/15/2016 $30.00 $64.50 $0.00 $0.00 1/15/2016 $35.00 $61.60 $0.00 $0.00
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Call Option Artificial Inflation per Share During Trading Periods Expiration Date Strike Price Holding Price May 31, 2014 – November 16, 2015 – November 15, 2015 April 7, 2016 1/15/2016 $40.00 $57.80 $0.00 $0.00 1/15/2016 $45.00 $53.28 $0.00 $0.00 1/15/2016 $50.00 $48.90 $0.00 $0.00 1/15/2016 $55.00 $44.45 $0.00 $0.00 1/15/2016 $60.00 $39.95 $0.00 $0.00 1/15/2016 $65.00 $35.48 $0.00 $0.00 1/15/2016 $70.00 $31.08 $0.00 $0.00 1/15/2016 $75.00 $26.78 $0.00 $0.00 1/15/2016 $80.00 $22.85 $0.00 $0.00 1/15/2016 $85.00 $19.28 $0.00 $0.00 1/15/2016 $90.00 $15.98 $0.00 $0.00 1/15/2016 $95.00 $12.80 $0.00 $0.00 1/15/2016 $100.00 $9.80 $0.00 $0.00 1/15/2016 $105.00 $7.78 $0.00 $0.00 1/15/2016 $110.00 $5.98 $0.00 $0.00 1/15/2016 $115.00 $4.90 $0.00 $0.00 1/15/2016 $120.00 $3.55 $0.00 $0.00 1/15/2016 $125.00 $2.85 $0.00 $0.00 1/15/2016 $130.00 $2.38 $0.00 $0.00 1/15/2016 $135.00 $1.55 $0.00 $0.00 1/15/2016 $140.00 $1.45 $0.00 $0.00 1/15/2016 $145.00 $1.28 $0.00 $0.00 1/15/2016 $150.00 $1.08 $0.00 $0.00 1/15/2016 $155.00 $1.33 $0.00 $0.00 1/15/2016 $160.00 $1.10 $0.00 $0.00 1/15/2016 $165.00 $1.08 $0.00 $0.00 1/15/2016 $170.00 $1.08 $0.00 $0.00 4/15/2016 $10.00 $0.00 $3.28 $6.30 4/15/2016 $12.50 $0.00 $2.78 $4.65 4/15/2016 $15.00 $0.00 $2.49 $2.98 4/15/2016 $17.50 $0.00 $2.20 $1.95 4/15/2016 $20.00 $0.00 $1.57 $1.33 4/15/2016 $22.50 $0.00 $1.12 $0.95 4/15/2016 $25.00 $0.00 $0.90 $0.55 4/15/2016 $30.00 $0.00 $0.36 $0.25 4/15/2016 $35.00 $0.00 $0.09 $0.13 4/15/2016 $40.00 $55.42 $0.07 $0.03 4/15/2016 $45.00 $51.61 $0.11 $0.13 4/15/2016 $50.00 $47.72 $0.07 $0.08 4/15/2016 $55.00 $44.08 $0.00 $0.08 4/15/2016 $60.00 $40.12 $0.02 $0.08 4/15/2016 $65.00 $36.85 $0.00 $0.08 4/15/2016 $70.00 $33.00 $0.00 $0.08 4/15/2016 $75.00 $29.55 $0.00 $0.08 4/15/2016 $80.00 $26.40 $0.02 $0.05 4/15/2016 $85.00 $23.30 $0.00 $0.08 4/15/2016 $90.00 $20.60 $0.02 $0.05 4/15/2016 $95.00 $17.65 $0.00 $0.08
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Call Option Artificial Inflation per Share During Trading Periods Expiration Date Strike Price Holding Price May 31, 2014 – November 16, 2015 – November 15, 2015 April 7, 2016 4/15/2016 $100.00 $15.37 $0.02 $0.05 4/15/2016 $105.00 $13.18 $0.00 $0.08 4/15/2016 $110.00 $11.58 $0.00 $0.08 4/15/2016 $115.00 $9.45 $0.00 $0.08 4/15/2016 $120.00 $8.23 $0.00 $0.08 4/15/2016 $125.00 $7.10 $0.00 $0.08 4/15/2016 $130.00 $5.98 $0.00 $0.08 4/15/2016 $135.00 $5.03 $0.00 $0.08 4/15/2016 $140.00 $4.25 $0.00 $0.08 4/15/2016 $145.00 $3.48 $0.00 $0.08 4/15/2016 $150.00 $2.50 $0.00 $0.08 4/15/2016 $155.00 $2.13 $0.00 $0.08 4/15/2016 $160.00 $1.65 $0.00 $0.08 4/15/2016 $165.00 $0.88 $0.00 $0.08 4/15/2016 $170.00 $1.90 $0.00 $0.08 5/20/2016 $2.50 $0.00 $3.01 $13.70 5/20/2016 $5.00 $0.00 $3.10 $11.20 5/20/2016 $7.50 $0.00 $3.10 $8.85 5/20/2016 $10.00 $0.00 $3.01 $7.00 5/20/2016 $12.50 $0.00 $2.74 $5.40 5/20/2016 $15.00 $0.00 $2.83 $3.65 5/20/2016 $17.50 $0.00 $2.29 $2.50 5/20/2016 $20.00 $0.00 $1.89 $1.80 5/20/2016 $22.50 $0.00 $1.75 $1.13 5/20/2016 $25.00 $0.00 $1.21 $0.88 5/20/2016 $30.00 $0.00 $0.54 $0.43 5/20/2016 $35.00 $0.00 $0.22 $0.28 7/15/2016 $2.50 $0.00 $2.69 $14.10 7/15/2016 $5.00 $0.00 $2.56 $11.90 7/15/2016 $7.50 $0.00 $2.47 $9.90 7/15/2016 $10.00 $0.00 $2.56 $7.80 7/15/2016 $12.50 $0.00 $2.60 $6.25 7/15/2016 $15.00 $0.00 $2.42 $5.00 7/15/2016 $17.50 $0.00 $2.29 $3.75 7/15/2016 $20.00 $0.00 $2.27 $2.78 7/15/2016 $22.50 $0.00 $1.84 $2.25 7/15/2016 $25.00 $0.00 $1.62 $1.68 7/15/2016 $30.00 $0.00 $0.65 $1.45 7/15/2016 $35.00 $0.00 $0.22 $1.03 10/21/2016 $2.50 $0.00 $2.69 $14.10 10/21/2016 $5.00 $0.00 $2.51 $12.15 10/21/2016 $7.50 $0.00 $2.42 $10.35 10/21/2016 $10.00 $0.00 $2.56 $8.35 10/21/2016 $12.50 $0.00 $2.60 $7.05 10/21/2016 $15.00 $0.00 $2.33 $6.00 10/21/2016 $17.50 $0.00 $2.42 $4.70 10/21/2016 $20.00 $0.00 $1.98 $4.10 10/21/2016 $22.50 $0.00 $1.50 $3.78
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Call Option Artificial Inflation per Share During Trading Periods Expiration Date Strike Price Holding Price May 31, 2014 – November 16, 2015 – November 15, 2015 April 7, 2016 10/21/2016 $25.00 $0.00 $1.21 $3.25 10/21/2016 $30.00 $0.00 $1.39 $1.85 10/21/2016 $35.00 $0.00 $0.20 $1.98 1/20/2017 $2.50 $0.00 $2.65 $14.20 1/20/2017 $5.00 $0.00 $2.15 $12.50 1/20/2017 $7.50 $0.00 $1.98 $10.95 1/20/2017 $10.00 $0.00 $2.38 $8.80 1/20/2017 $12.50 $0.00 $2.51 $7.55 1/20/2017 $15.00 $0.00 $2.07 $6.55 1/20/2017 $17.50 $0.00 $2.60 $5.30 1/20/2017 $20.00 $0.00 $2.11 $4.65 1/20/2017 $22.50 $0.00 $1.66 $4.45 1/20/2017 $25.00 $63.78 $1.68 $3.58 1/20/2017 $30.00 $61.62 $1.57 $2.45 1/20/2017 $35.00 $58.49 $1.59 $2.13 1/20/2017 $40.00 $55.31 $1.21 $1.65 1/20/2017 $45.00 $51.41 $0.31 $1.83 1/20/2017 $50.00 $48.46 $0.61 $0.95 1/20/2017 $55.00 $45.40 $0.00 $1.28 1/20/2017 $60.00 $43.02 $0.52 $0.63 1/20/2017 $65.00 $39.61 $0.11 $0.85 1/20/2017 $70.00 $37.05 $0.00 $0.70 1/20/2017 $75.00 $33.85 $0.00 $0.65 1/20/2017 $80.00 $31.49 $0.31 $0.68 1/20/2017 $85.00 $29.35 $0.00 $0.63 1/20/2017 $90.00 $25.85 $0.00 $0.58 1/20/2017 $95.00 $24.85 $0.00 $0.50 1/20/2017 $100.00 $22.59 $0.27 $0.13 1/20/2017 $105.00 $20.41 $0.11 $0.43 1/20/2017 $110.00 $18.42 $0.04 $0.35 1/20/2017 $115.00 $16.83 $0.13 $0.35 1/20/2017 $120.00 $14.96 $0.16 $0.35 1/20/2017 $125.00 $13.88 $0.20 $0.28 1/20/2017 $130.00 $12.40 $0.18 $0.25 1/20/2017 $135.00 $10.71 $0.16 $0.25 1/20/2017 $140.00 $9.86 $0.11 $0.23 1/20/2017 $145.00 $8.11 $0.16 $0.20 1/20/2017 $150.00 $7.21 $0.13 $0.20 1/20/2017 $155.00 $6.71 $0.13 $0.18 1/20/2017 $160.00 $4.99 $0.11 $0.18 1/20/2017 $165.00 $4.44 $0.11 $0.15 1/20/2017 $170.00 $3.46 $0.09 $0.15
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TABLE 3 Estimated Artificial Deflation in Clovis Put Options from May 31, 2014 through and including April 7, 2016 Put Option Artificial Deflation per Share During Trading Periods Expiration Date Strike Price Holding Price May 31, 2014 – November 16, 2015 – November 15, 2015 April 7, 2016 11/20/2015 $60.00 $28.95 $0.00 $0.00 11/20/2015 $65.00 $33.23 $0.00 $0.00 11/20/2015 $70.00 $38.03 $0.00 $0.00 11/20/2015 $75.00 $43.03 $0.00 $0.00 11/20/2015 $80.00 $48.73 $0.00 $0.00 11/20/2015 $85.00 $53.20 $0.00 $0.00 11/20/2015 $90.00 $57.83 $0.00 $0.00 11/20/2015 $95.00 $61.45 $0.00 $0.00 11/20/2015 $100.00 $64.45 $0.00 $0.00 11/20/2015 $105.00 $66.70 $0.00 $0.00 11/20/2015 $110.00 $67.70 $0.00 $0.00 11/20/2015 $115.00 $68.60 $0.00 $0.00 11/20/2015 $120.00 $68.75 $0.00 $0.00 11/20/2015 $125.00 $68.75 $0.00 $0.00 11/20/2015 $130.00 $69.20 $0.00 $0.00 11/20/2015 $135.00 $69.00 $0.00 $0.00 11/20/2015 $140.00 $69.10 $0.00 $0.00 11/20/2015 $145.00 $69.10 $0.00 $0.00 11/20/2015 $150.00 $68.90 $0.00 $0.00 11/20/2015 $155.00 $69.10 $0.00 $0.00 11/20/2015 $160.00 $68.90 $0.00 $0.00 12/18/2015 $50.00 $18.55 $0.00 $0.00 12/18/2015 $55.00 $23.38 $0.00 $0.00 12/18/2015 $60.00 $28.25 $0.00 $0.00 12/18/2015 $65.00 $32.70 $0.00 $0.00 12/18/2015 $70.00 $37.53 $0.00 $0.00 12/18/2015 $75.00 $42.48 $0.00 $0.00 12/18/2015 $80.00 $46.95 $0.00 $0.00 12/18/2015 $85.00 $50.70 $0.00 $0.00 12/18/2015 $90.00 $55.00 $0.00 $0.00 12/18/2015 $95.00 $57.45 $0.00 $0.00 12/18/2015 $100.00 $60.40 $0.00 $0.00 12/18/2015 $105.00 $63.10 $0.00 $0.00 12/18/2015 $110.00 $64.10 $0.00 $0.00 12/18/2015 $115.00 $66.10 $0.00 $0.00 12/18/2015 $120.00 $66.40 $0.00 $0.00 12/18/2015 $125.00 $67.30 $0.00 $0.00 12/18/2015 $130.00 $67.80 $0.00 $0.00 12/18/2015 $135.00 $67.95 $0.00 $0.00 12/18/2015 $140.00 $68.20 $0.00 $0.00 12/18/2015 $145.00 $68.50 $0.00 $0.00 1/15/2016 $22.50 $1.45 $0.00 $0.00 1/15/2016 $25.00 $2.20 $0.00 $0.00 1/15/2016 $30.00 $4.45 $0.00 $0.00 1/15/2016 $35.00 $7.80 $0.00 $0.00
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Put Option Artificial Deflation per Share During Trading Periods Expiration Date Strike Price Holding Price May 31, 2014 – November 16, 2015 – November 15, 2015 April 7, 2016 1/15/2016 $40.00 $10.90 $0.00 $0.00 1/15/2016 $45.00 $14.55 $0.00 $0.00 1/15/2016 $50.00 $19.95 $0.00 $0.00 1/15/2016 $55.00 $23.25 $0.00 $0.00 1/15/2016 $60.00 $27.73 $0.00 $0.00 1/15/2016 $65.00 $32.60 $0.00 $0.00 1/15/2016 $70.00 $37.85 $0.00 $0.00 1/15/2016 $75.00 $41.30 $0.00 $0.00 1/15/2016 $80.00 $45.20 $0.00 $0.00 1/15/2016 $85.00 $49.10 $0.00 $0.00 1/15/2016 $90.00 $52.50 $0.00 $0.00 1/15/2016 $95.00 $55.80 $0.00 $0.00 1/15/2016 $100.00 $58.70 $0.00 $0.00 1/15/2016 $105.00 $60.45 $0.00 $0.00 1/15/2016 $110.00 $62.55 $0.00 $0.00 1/15/2016 $115.00 $64.10 $0.00 $0.00 1/15/2016 $120.00 $65.40 $0.00 $0.00 1/15/2016 $125.00 $66.45 $0.00 $0.00 1/15/2016 $130.00 $67.00 $0.00 $0.00 1/15/2016 $135.00 $67.45 $0.00 $0.00 1/15/2016 $140.00 $68.05 $0.00 $0.00 1/15/2016 $145.00 $68.30 $0.00 $0.00 1/15/2016 $150.00 $68.50 $0.00 $0.00 1/15/2016 $155.00 $68.55 $0.00 $0.00 1/15/2016 $160.00 $68.80 $0.00 $0.00 1/15/2016 $165.00 $68.90 $0.00 $0.00 1/15/2016 $170.00 $68.90 $0.00 $0.00 4/15/2016 $12.50 $0.00 $0.07 $0.90 4/15/2016 $15.00 $0.00 $0.31 $2.00 4/15/2016 $17.50 $0.00 $0.83 $3.55 4/15/2016 $20.00 $0.00 $1.26 $5.35 4/15/2016 $22.50 $0.00 $1.44 $6.85 4/15/2016 $25.00 $0.00 $2.02 $9.25 4/15/2016 $30.00 $0.00 $2.42 $13.70 4/15/2016 $35.00 $0.00 $2.51 $18.55 4/15/2016 $40.00 $14.80 $2.60 $23.50 4/15/2016 $45.00 $18.79 $2.69 $28.45 4/15/2016 $50.00 $22.41 $2.74 $33.40 4/15/2016 $55.00 $26.93 $2.78 $38.50 4/15/2016 $60.00 $31.20 $3.05 $43.70 4/15/2016 $65.00 $35.04 $3.14 $48.80 4/15/2016 $70.00 $37.83 $2.78 $53.40 4/15/2016 $75.00 $41.37 $2.87 $58.50 4/15/2016 $80.00 $44.68 $2.78 $63.40 4/15/2016 $85.00 $47.92 $2.87 $68.50 4/15/2016 $90.00 $51.05 $3.10 $73.75 4/15/2016 $95.00 $54.23 $2.78 $78.40 4/15/2016 $100.00 $56.90 $3.10 $83.75
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Put Option Artificial Deflation per Share During Trading Periods Expiration Date Strike Price Holding Price May 31, 2014 – November 16, 2015 – November 15, 2015 April 7, 2016 4/15/2016 $105.00 $58.38 $2.78 $88.40 4/15/2016 $110.00 $61.27 $3.32 $94.00 4/15/2016 $115.00 $62.61 $3.01 $98.65 4/15/2016 $120.00 $64.31 $2.96 $103.60 4/15/2016 $125.00 $65.31 $2.96 $108.60 4/15/2016 $130.00 $66.98 $3.28 $113.95 4/15/2016 $135.00 $67.66 $2.96 $118.60 4/15/2016 $140.00 $68.39 $3.14 $123.80 4/15/2016 $145.00 $69.16 $2.96 $128.60 4/15/2016 $150.00 $69.85 $3.05 $133.70 4/15/2016 $155.00 $70.05 $3.05 $138.70 4/15/2016 $160.00 $70.70 $3.10 $143.75 4/15/2016 $165.00 $71.52 $3.37 $149.15 4/15/2016 $170.00 $71.46 $2.96 $153.70 5/20/2016 $5.00 $0.00 $0.02 $0.28 5/20/2016 $10.00 $0.00 $0.11 $0.83 5/20/2016 $12.50 $0.00 $0.27 $1.63 5/20/2016 $15.00 $0.00 $0.54 $2.65 5/20/2016 $17.50 $0.00 $0.58 $3.95 5/20/2016 $20.00 $0.00 $1.03 $5.85 5/20/2016 $22.50 $0.00 $1.08 $7.40 5/20/2016 $25.00 $0.00 $1.89 $9.75 5/20/2016 $30.00 $0.00 $1.98 $13.95 5/20/2016 $35.00 $0.00 $2.24 $18.65 7/15/2016 $2.50 $0.00 $0.02 $0.18 7/15/2016 $7.50 $0.00 $0.09 $0.85 7/15/2016 $10.00 $0.00 $0.09 $1.20 7/15/2016 $12.50 $0.00 $0.29 $2.23 7/15/2016 $15.00 $0.00 $0.43 $3.60 7/15/2016 $17.50 $0.00 $0.63 $5.10 7/15/2016 $20.00 $0.00 $0.94 $6.80 7/15/2016 $22.50 $0.00 $1.08 $8.45 7/15/2016 $25.00 $0.00 $1.21 $10.35 7/15/2016 $30.00 $0.00 $1.53 $14.60 7/15/2016 $35.00 $0.00 $1.84 $19.10 7/15/2016 $40.00 $0.00 $2.07 $23.65 7/15/2016 $45.00 $0.00 $2.15 $28.45 10/21/2016 $7.50 $0.00 $0.20 $1.15 10/21/2016 $10.00 $0.00 $0.18 $2.15 10/21/2016 $12.50 $0.00 $0.43 $3.30 10/21/2016 $15.00 $0.00 $0.49 $4.50 10/21/2016 $17.50 $0.00 $0.58 $5.95 10/21/2016 $20.00 $0.00 $0.45 $7.55 10/21/2016 $22.50 $0.00 $0.85 $9.45 10/21/2016 $25.00 $0.00 $0.72 $11.20 10/21/2016 $30.00 $0.00 $1.12 $15.35 10/21/2016 $35.00 $0.00 $1.48 $19.80 1/20/2017 $7.50 $0.00 $0.13 $1.50
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Put Option Artificial Deflation per Share During Trading Periods Expiration Date Strike Price Holding Price May 31, 2014 – November 16, 2015 – November 15, 2015 April 7, 2016 1/20/2017 $10.00 $0.00 $0.36 $2.58 1/20/2017 $12.50 $0.00 $0.22 $3.85 1/20/2017 $15.00 $0.00 $0.49 $5.10 1/20/2017 $17.50 $0.00 $0.31 $6.60 1/20/2017 $20.00 $0.00 $1.08 $8.65 1/20/2017 $22.50 $0.00 $0.63 $10.15 1/20/2017 $25.00 $6.86 $0.99 $12.00 1/20/2017 $30.00 $8.68 $0.85 $16.00 1/20/2017 $35.00 $12.56 $1.44 $20.55 1/20/2017 $40.00 $15.67 $1.17 $24.75 1/20/2017 $45.00 $18.79 $1.44 $29.40 1/20/2017 $50.00 $22.00 $1.75 $34.35 1/20/2017 $55.00 $25.05 $1.80 $38.90 1/20/2017 $60.00 $28.21 $2.11 $44.05 1/20/2017 $65.00 $30.87 $2.07 $48.75 1/20/2017 $70.00 $34.21 $2.51 $53.60 1/20/2017 $75.00 $36.95 $2.60 $58.55 1/20/2017 $80.00 $39.59 $2.69 $63.55 1/20/2017 $85.00 $41.67 $2.42 $68.60 1/20/2017 $90.00 $44.63 $2.78 $73.55 1/20/2017 $95.00 $46.63 $2.83 $78.50 1/20/2017 $100.00 $48.90 $2.60 $83.40 1/20/2017 $105.00 $51.38 $2.83 $88.50 1/20/2017 $110.00 $53.18 $2.83 $93.75 1/20/2017 $115.00 $55.40 $3.10 $98.75 1/20/2017 $120.00 $56.64 $2.69 $103.45 1/20/2017 $125.00 $58.47 $2.87 $108.50 1/20/2017 $130.00 $60.32 $2.92 $113.55 1/20/2017 $135.00 $61.15 $2.65 $118.55 1/20/2017 $140.00 $62.62 $2.92 $123.55 1/20/2017 $145.00 $64.12 $2.87 $128.50 1/20/2017 $150.00 $64.78 $2.78 $133.40 1/20/2017 $155.00 $66.22 $2.92 $138.55 1/20/2017 $160.00 $68.01 $3.46 $144.15 1/20/2017 $165.00 $68.36 $2.96 $149.15 1/20/2017 $170.00 $69.06 $2.96 $154.15
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Clovis Securities Litigation c/o Epiq Systems PO Box 3127 Portland, OR 97208-3127 Toll-Free Number: 1-888-697-8556 Email: [email protected] Settlement Website: www.ClovisSecuritiesLitigation.com
PROOF OF CLAIM AND RELEASE FORM
To be eligible to receive a share of the Net Settlement Fund in connection with the Settlement of this Action, you must complete and sign this Proof of Claim and Release Form (“Claim Form”) and mail it by first-class mail to the above address, postmarked no later than December 11, 2017.
Failure to submit your Claim Form by the date specified will subject your claim to rejection and may preclude you from being eligible to receive a payment from the proceeds of the Settlement. Do not mail or deliver your Claim Form to the Court, the parties to the Action, or their counsel. Submit your Claim Form only to the Claims Administrator at the address set forth above.
TABLE OF CONTENTS PAGE # PART I – GENERAL INSTRUCTIONS 2 PART II – CLAIMANT INFORMATION 5 PART III – SCHEDULE OF TRANSACTIONS IN CLOVIS COMMON STOCK 6 PART IV – SCHEDULE OF TRANSACTIONS IN CLOVIS CALL OPTIONS 7 PART V – SCHEDULE OF TRANSACTIONS IN CLOVIS PUT OPTIONS 9 PART VI – RELEASE OF CLAIMS AND SIGNATURE 11
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PART I – GENERAL INSTRUCTIONS 1. It is important that you completely read and understand the Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses (the “Notice”) that accompanies this Claim Form, including the Plan of Allocation of the Net Settlement Fund set forth in the Notice. The Notice describes the proposed Settlement, how Settlement Class Members are affected by the Settlement, and the manner in which the Net Settlement Fund will be distributed if the Settlement and Plan of Allocation are approved by the Court. The Notice also contains the definitions of many of the defined terms (which are indicated by initial capital letters) used in this Claim Form. By signing and submitting this Claim Form, you will be certifying that you have read and that you understand the Notice, including the terms of the releases described therein and provided for herein. 2. This Claim Form is directed to all persons and entities who or which (i) purchased or otherwise acquired Clovis common stock and/or (ii) purchased or otherwise acquired exchange traded call options on Clovis common stock (“Clovis Call Options”) and/or sold/wrote exchange traded put options on Clovis common stock (“Clovis Put Options”), during the period between May 31, 2014 and April 7, 2016, inclusive (the “Class Period”), and were damaged thereby (the “Settlement Class”). Certain persons and entities are excluded from the Settlement Class by definition as set forth in paragraph 24 of the Notice. Clovis common stock, Clovis Call Options, and Clovis Put Options are referred to collectively as the “Clovis Securities.” 3. By submitting this Claim Form, you will be making a request to share in the proceeds of the Settlement described in the Notice. IF YOU ARE NOT A SETTLEMENT CLASS MEMBER (see the definition of the Settlement Class in paragraph 24 of the Notice, which sets forth who is included in and who is excluded from the Settlement Class), OR IF YOU, OR SOMEONE ACTING ON YOUR BEHALF, SUBMITTED A REQUEST FOR EXCLUSION FROM THE SETTLEMENT CLASS, DO NOT SUBMIT A CLAIM FORM. YOU MAY NOT, DIRECTLY OR INDIRECTLY, PARTICIPATE IN THE SETTLEMENT IF YOU ARE NOT A SETTLEMENT CLASS MEMBER. THUS, IF YOU ARE EXCLUDED FROM THE SETTLEMENT CLASS, ANY CLAIM FORM THAT YOU SUBMIT, OR THAT MAY BE SUBMITTED ON YOUR BEHALF, WILL NOT BE ACCEPTED. 4. Submission of this Claim Form does not guarantee that you will share in the proceeds of the Settlement. The distribution of the Net Settlement Fund will be governed by the Plan of Allocation set forth in the Notice, if it is approved by the Court, or by such other plan of allocation as the Court approves. 5. SECURITIES TRANSFER INFORMATION. The proceeds of the proposed Settlement, if approved, will include shares of Clovis common stock (the “Settlement Shares”). The Settlement Shares, less any Settlement Shares awarded to Plaintiffs’ Counsel, are referred to as the “Class Settlement Shares.” Subject to Court approval, Lead Counsel will have the right to decide, in its sole discretion, whether to (i) sell all or any portion of the Class Settlement Shares and distribute the net cash proceeds from the sale of the shares to Settlement Class Members who submit claims that are approved for payment by the Court (“Authorized Claimants”) or (ii) distribute the Class Settlement Shares to Authorized Claimants. If distributed, the Class Settlement Shares will be posted electronically to the accounts of Authorized Claimants on the Direct Registration System (“DRS”) maintained by Clovis’ transfer agent. A supplemental request for information required to electronically post the Class Settlement Shares to an account on the DRS will be sent to Claimants if shares are to be distributed. Failure to provide the information requested may lead to forfeiture of the Class Settlement Shares to which you might otherwise be eligible. 6. CLAIMANT INFORMATION. Use Part II of this Claim Form entitled “CLAIMANT INFORMATION” to identify the beneficial owner(s) of the Clovis Securities. If you purchased or otherwise acquired Clovis common stock or Clovis Call Options, or sold (wrote) Clovis Put Options, during the Class Period and held the securities in your name, you are the beneficial owner as well as the record owner and you must sign this Claim Form to participate in the Settlement. If, however, you purchased or otherwise acquired Clovis common stock or Clovis Call Options, or sold (wrote) Clovis Put Options, during the Class Period and the securities were registered in the name of a third party, such as a nominee or brokerage firm, you are the beneficial owner of these securities, but the third party is the record owner. The beneficial owner, not the record owner, must sign this Claim Form. Also, all joint beneficial owners must each sign this Claim Form and their names must appear as “Claimants” in Part II of this Claim Form. 7. Separate Claim Forms should be submitted for each separate legal entity (e.g., a claim from joint owners should not include separate transactions of just one of the joint owners, and an individual should not combine his or her IRA transactions with transactions made solely in the individual’s name). Conversely, a single Claim Form should be submitted on behalf of one legal entity including all transactions made by that entity on one Claim Form, no matter how many separate accounts that entity has (e.g., a corporation with multiple brokerage accounts should include all transactions made in all accounts on one Claim Form).
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8. Agents, executors, administrators, guardians, and trustees must complete and sign the Claim Form on behalf of persons represented by them, and they must: (a) expressly state the capacity in which they are acting; (b) identify the name, account number, Social Security Number (or taxpayer identification number), address and telephone number of the beneficial owner of (or other person or entity on whose behalf they are acting with respect to) the Clovis Securities; and (c) furnish herewith evidence of their authority to bind to the Claim Form the person or entity on whose behalf they are acting. (Authority to complete and sign a Claim Form cannot be established by stockbrokers demonstrating only that they have discretionary authority to trade securities in another person’s accounts.) 9. IDENTIFICATION OF TRANSACTION(S). Use the “SCHEDULES OF TRANSACTIONS” in Parts III to V of this Claim Form to supply all required details of your transaction(s) (including free transfers and deliveries) in and holdings of the applicable Clovis Securities. On these schedules, please provide all of the requested information with respect to your holdings, purchases, acquisitions, and sales of the applicable Clovis Securities, whether such transactions resulted in a profit or a loss. Failure to report all transaction and holding information during the requested time period may result in the rejection of your claim. 10. You are required to submit genuine and sufficient documentation for all of your transactions in and holdings of the applicable Clovis Securities set forth in the SCHEDULES OF TRANSACTIONS in Parts III to V of this Claim Form. Documentation may consist of copies of brokerage confirmation slips or monthly brokerage account statements, or an authorized statement from your broker containing the transactional and holding information found in a broker confirmation slip or account statement. Please note that monthly statements may not be sufficient to provide the required support to demonstrate that your shares of Clovis common stock were purchased pursuant to or traceable to Clovis’ secondary offering of common stock that occurred on or about July 14, 2015 (the “Secondary Offering”). In order to establish that shares of Clovis common stock were purchased pursuant to or are traceable to the Secondary Offering, you may have to provide the confirmation slips for such purchases. The Parties, including Clovis, and the Claims Administrator do not independently have information about your investments in Clovis Securities. IF SUCH DOCUMENTS ARE NOT IN YOUR POSSESSION, PLEASE OBTAIN COPIES OF THE DOCUMENTS OR EQUIVALENT DOCUMENTS FROM YOUR BROKER. FAILURE TO SUPPLY THIS DOCUMENTATION MAY RESULT IN THE REJECTION OF YOUR CLAIM. DO NOT SEND ORIGINAL DOCUMENTS. Please keep a copy of all documents that you send to the Claims Administrator. Also, please do not highlight any portion of the Claim Form or any supporting documents. 11. By submitting a signed Claim Form, you will be swearing that you: (a) owned the Clovis Securities you have listed in the Claim Form; or (b) are expressly authorized to act on behalf of the owner thereof. 12. By submitting a signed Claim Form, you will be swearing to the truth of the statements contained therein and the genuineness of the documents attached thereto, subject to penalties of perjury under the laws of the United States of America. The making of false statements, or the submission of forged or fraudulent documentation, will result in the rejection of your claim and may subject you to civil liability or criminal prosecution. 13. If the Court approves the Settlement, payments to eligible Authorized Claimants pursuant to the Plan of Allocation (or such other plan of allocation as the Court approves) will be made after any appeals are resolved, and after the completion of all claims processing. The claims process will take substantial time to complete fully and fairly. Please be patient. 14. PLEASE NOTE: As set forth in the Plan of Allocation, each Authorized Claimant shall receive his, her or its pro rata share of the Net Settlement Fund. No cash payments for less than $10.00 will be made. In the event of a distribution of Settlement Shares, no fractional Settlement Shares will be issued.
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15. If you have questions concerning the Claim Form, or need additional copies of the Claim Form or the Notice, you may contact the Claims Administrator, Epiq Systems, at the above address, by email at [email protected], or by toll-free phone at 1-888-697-8556, or you can visit the Settlement website, www.ClovisSecuritiesLitigation.com, where copies of the Claim Form and Notice are available for downloading. 16. NOTICE REGARDING ELECTRONIC FILES: Certain claimants with large numbers of transactions may request, or may be requested, to submit information regarding their transactions in electronic files. To obtain the mandatory electronic filing requirements and file layout, you may visit the settlement website at www.ClovisSecuritiesLitigation.com or you may email the Claims Administrator’s electronic filing department at [email protected]. Any file not in accordance with the required electronic filing format will be subject to rejection. No electronic files will be considered to have been properly submitted unless the Claims Administrator issues an email to that effect after processing your file with your claim numbers and respective account information. Do not assume that your file has been received or processed until you receive this email. If you do not receive such an email within 10 days of your submission, you should contact the electronic filing department at [email protected] to inquire about your file and confirm it was received and acceptable. IMPORTANT: PLEASE NOTE YOUR CLAIM IS NOT DEEMED FILED UNTIL YOU RECEIVE AN ACKNOWLEDGEMENT POSTCARD. THE CLAIMS ADMINISTRATOR WILL ACKNOWLEDGE RECEIPT OF YOUR CLAIM FORM BY MAIL, WITHIN 60 DAYS. IF YOU DO NOT RECEIVE AN ACKNOWLEDGEMENT POSTCARD WITHIN 60 DAYS, PLEASE CALL THE CLAIMS ADMINISTRATOR TOLL FREE AT 1-888-697-8556.
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PART II – CLAIMANT INFORMATION Please complete this PART II in its entirety. The Claims Administrator will use this information for all communications regarding this Claim Form. If this information changes, you MUST notify the Claims Administrator in writing at the address above.
Beneficial Owner’s First Name MI Beneficial Owner’s Last Name
Co-Beneficial Owner’s First Name MI Co-Beneficial Owner’s Last Name
Entity Name (if Beneficial Owner is not an individual)
Representative or Custodian Name (if different from Beneficial Owner(s) listed above)
Address 1 (street name and number)
Address 2 (apartment, unit or box number)
City State ZIP Code
Country
Last four digits of Social Security Number or Taxpayer Identification Number
Telephone Number (home/mobile) Telephone Number (work) – – – –
Email address (Email address is not required, but if you provide it you authorize the Claims Administrator to use it in providing you with information relevant to this claim.)
Account Number (where securities were traded)1
Claimant Account Type (check appropriate box): Individual (includes joint owner accounts) Pension Plan Trust Corporation Estate IRA/401K Other (please specify) 1
1 If the account number is unknown, you may leave blank. If filing for more than one account for the same legal entity you may write “multiple.” Please see paragraph 7 of the General Instructions above for more information on when to file separate Claim Forms for multiple accounts.
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PART III – SCHEDULE OF TRANSACTIONS IN CLOVIS COMMON STOCK Complete this Part III if and only if you purchased or otherwise acquired Clovis common stock during the period from May 31, 2014 through and including April 7, 2016. Please be sure to include proper documentation with your Claim Form as described in detail in Part I – General Instructions, Paragraph 10, above. Do not include information regarding securities other than Clovis common stock in this section.
1. HOLDINGS AS OF MAY 30, 2014 – State the total number of shares of Clovis common stock held as Confirm Proof of of the close of trading on May 30, 2014. (Must be documented.) If none, write “zero” or “0.” Position Enclosed • 2. PURCHASES/ACQUISITIONS FROM MAY 31, 2014 THROUGH APRIL 7, 2016 – Separately list each and every purchase/acquisition (including free receipts) of Clovis common stock from May 31, 2014 through and including the close of trading on April 7, 2016. (Must be documented.) Date of Purchase/ Confirm Acquisition Purchase/ Total Purchase/Acquisition Price Proof of (List Chronologically) Number of Shares Acquisition (excluding taxes, Purchase (MMDDYY) Purchased/Acquired Price Per Share commissions, and fees) Enclosed
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● ● ● 3. SALES FROM MAY 31, 2014 THROUGH APRIL 7, 2016 – Separately list each and every IF NONE, sale/disposition (including free deliveries) of Clovis common stock from May 31, 2014 through and including CHECK HERE the close of trading on April 7, 2016. (Must be documented.)
Confirm Date of Sale Total Sale Price Proof (List Chronologically) Number of Sale Price (excluding taxes, of Sale (MMDDYY) Shares Sold Per Share commissions, and fees) Enclosed
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● ● ● 4. HOLDINGS AS OF APRIL 7, 2016 – State the total number of shares of Clovis common stock held as Confirm Proof of of the close of trading on April 7, 2016. (Must be documented.) If none, write “zero” or “0.” Position Enclosed • IF YOU NEED ADDITIONAL SPACE TO LIST YOUR TRANSACTIONS/HOLDINGS IN CLOVIS COMMON STOCK YOU MUST PHOTOCOPY THIS PAGE, PRINT THE BENEFICIAL OWNER’S FULL NAME AND LAST FOUR DIGITS OF SOCIAL SECURITY/TAXPAYER IDENTIFICATION NUMBER ON EACH ADDITIONAL PAGE, AND CHECK THIS BOX.
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PART IV – SCHEDULE OF TRANSACTIONS IN CLOVIS CALL OPTIONS Complete this Part IV if and only if you purchased or otherwise acquired exchange traded call options on Clovis common stock (“Clovis Call Options”) during the period from May 31, 2014 through and including April 7, 2016. Please include proper documentation with your Claim Form as described in detail in Part I – General Instructions, Paragraph 10, above. Do not include information regarding securities other than Clovis Call Options in this section.
1. HOLDINGS AS OF MAY 30, 2014 – Separately list all positions in Clovis Call Option contracts in which you had an open interest as of IF NONE, CHECK the close of trading on May 30, 2014. (Must be documented.) HERE
Expiration Date of Call Number of Call Option Strike Price of Call Option Contract Contracts in Which You Option Contract (MMDDYY) Had an Open Interest $ ● $ ● $ ●
$ 57 ●
2. PURCHASES/ACQUISITIONS FROM MAY 31, 2014 THROUGH APRIL 7, 2016 – Separately list each and every purchase and acquisition (including free receipts) of Clovis Call Options contracts from May 31, 2014 through and including the close of trading on April 7, 2016. (Must be documented.) Insert an “E” if Date of Purchase/ Expiration Date Purchase/ Exercised Acquisition Strike Price of Call Option Number of Call Acquisition Price Total Purchase/Acquisition Insert an (List Chronologically) of Call Option Contract Option Contracts Per Call Option Price (excluding taxes, “X” if Exercise Date (MMDDYY) Contract (MMDDYY) Purchased/Acquired Contract commissions, and fees) Expired (MMDDYY)
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3. SALES FROM MAY 31, 2014 THROUGH APRIL 7, 2016 – Separately list each and every sale or disposition (including free deliveries) IF NONE, of Clovis Call Options contracts from May 31, 2014 through and including the close of trading on April 7, 2016. (Must be documented. CHECK HERE
Expiration Date Date of Sale Strike Price of Call Option Number of Total Sale Price (List Chronologically) of Call Option Contract Call Option Sale Price Per Call (excluding taxes, (MMDDYY) Contract (MMDDYY) Contracts Sold Option Contract commissions, and fees)
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4. HOLDINGS AS OF APRIL 7, 2016 – Separately list all positions in Clovis Call Option contracts in which you had an open interest as of IF NONE, 57 the close of trading on April 7, 2016. (Must be documented.) CHECK HERE
Expiration Date of Call Number of Call Option Strike Price of Call Option Contract Contracts in Which You Option Contract (MMDDYY) Had an Open Interest $ ● $ ● $ ● $ ● IF YOU NEED ADDITIONAL SPACE TO LIST YOUR TRANSACTIONS/HOLDINGS IN CLOVIS CALL OPTIONS YOU MUST PHOTOCOPY THE RELEVANT PAGES, PRINT THE BENEFICIAL OWNER’S FULL NAME AND LAST FOUR DIGITS OF SOCIAL SECURITY/TAXPAYER IDENTIFICATION NUMBER ON EACH ADDITIONAL PAGE, AND CHECK THIS BOX.
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PART V – SCHEDULE OF TRANSACTIONS IN CLOVIS PUT OPTIONS
Complete this Part V if and only if you sold (wrote) exchange traded put options on Clovis common stock (“Clovis Put Options”) during the period from May 31, 2014 through and including April 7, 2016. Please include proper documentation with your Claim Form as described in detail in Part I – General Instructions, Paragraph 10, above. Do not include information regarding securities other than Clovis Put Options in this section.
1. HOLDINGS AS OF MAY 30, 2014 – Separately list all positions in Clovis Put Option contracts in which you had an open interest as of IF NONE, the close of trading on May 30, 2014. (Must be documented.) CHECK HERE
Expiration Date of Put Number of Put Option Strike Price of Put Option Contract Contracts in Which You Option Contract (MMDDYY) Had an Open Interest $ ● $ ● $ ● 57 $ ●
2. SALES (WRITING) FROM MAY 31, 2014 THROUGH APRIL 7, 2016 – Separately list each and every sale (writing) (including free deliveries) of Clovis Put Options contracts from May 31, 2014 through and including the close of trading on April 7, 2016. (Must be documented.) Insert an “E” if Exercised Date of Sale (Writing) Expiration Date of Number of Put Total Sale Price Insert an (List Chronologically) Strike Price of Put Put Option Contract Option Contracts Sale Price Per Put (excluding taxes, “X” if Exercise Date (MMDDYY) Option Contract (MMDDYY) Sold (Written) Option Contract commissions, and fees) Expired (MMDDYY)
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3. PURCHASES/ACQUISITIONS FROM MAY 31, 2014 THROUGH APRIL 7, 2016 – Separately list each and every purchase and IF NONE, acquisition (including free receipts) of Clovis Put Options contacts from May 31, 2014 through and including the close of trading on April 7, CHECK HERE 2016. (Must be documented.)
Date of Purchase/ Number of Put Purchase/ Acquisition (List Expiration Date of Option Contracts Acquisition Price Total Purchase/Acquisition Price Chronologically) Strike Price of Put Put Option Contract Purchased/ Per Put Option (excluding taxes, (MMDDYY) Option Contract (MMDDYY) Acquired Contract commissions, and fees)
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IF NONE, 4. HOLDINGS AS OF APRIL 7, 2016 – Separately list all positions in Clovis Put Option contracts in which you had an open interest as of 57 the close of trading on April 7, 2016. (Must be documented.) CHECK HERE
Expiration Date of Put Number of Put Option Strike Price of Put Option Contract Contracts in Which You Option Contract (MMDDYY) Had an Open Interest $ ● $ ● $ ● $ ●
IF YOU NEED ADDITIONAL SPACE TO LIST YOUR TRANSACTIONS/HOLDINGS IN CLOVIS PUT OPTIONS YOU MUST PHOTOCOPY THE RELEVANT PAGES, PRINT THE BENEFICIAL OWNER’S FULL NAME AND LAST FOUR DIGITS OF SOCIAL SECURITY/TAXPAYER IDENTIFICATION NUMBER ON EACH ADDITIONAL PAGE, AND CHECK THIS BOX.
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PART VI – RELEASE OF CLAIMS AND SIGNATURE YOU MUST ALSO READ THE RELEASE AND CERTIFICATION BELOW AND SIGN ON PAGE 12 OF THIS CLAIM FORM. I (we) hereby acknowledge that, pursuant to the terms set forth in the Stipulation, without further action by anyone, upon the Effective Date of the Settlement, I (we), on behalf of myself (ourselves), and, to the extent any of the following persons or entities can assert a claim in my (our) name or on my (our) behalf, on behalf of (as applicable) my (our) agents, representatives, attorneys, advisors, administrators, accountants, consultants, assigns, assignees, partners, successors-in-interest, insurance carriers and reinsurers, current and former officers, directors, officials, auditors, parents, affiliates, subsidiaries, successors, predecessors, employees, fiduciaries, service providers and investment bankers, estates, heirs, executors, beneficiaries, trusts and trustees, each in their respective capacities as such, shall be deemed to have, and by operation of law and of the judgment shall have, fully, finally and forever compromised, settled, released, resolved, relinquished, waived and discharged each and every Released Plaintiff’s Claim against all Defendants and the other Defendants’ Releasees, and shall forever be barred and enjoined from prosecuting any or all of the Released Plaintiff’s Claims against any of the Defendants and the other Defendants’ Releasees. CERTIFICATION By signing and submitting this Claim Form, the claimant(s) or the person(s) who represent(s) the claimant(s) agree(s) to the release above and certifies (certify) as follows: 1. that I (we) have read and understand the contents of the Notice and this Claim Form, including the releases provided for in the Settlement and the terms of the Plan of Allocation; 2. that the claimant(s) is a (are) Settlement Class Member(s), as defined in the Notice, and is (are) not excluded by definition from the Settlement Class as set forth in the Notice; 3. that the claimant has not submitted a request for exclusion from the Settlement Class; 4. that I (we) owned the Clovis Securities identified in the Claim Form and have not assigned the claim against any of the Defendants or any of the other Defendants’ Releasees to another, or that, in signing and submitting this Claim Form, I (we) have the authority to act on behalf of the owner(s) thereof; 5. that the claimant(s) has (have) not submitted any other claim covering the same purchases or sales of Clovis Securities and knows (know) of no other person having done so on the claimant’s (claimants’) behalf; 6. that the claimant(s) submit(s) to the jurisdiction of the Court with respect to claimant’s (claimants’) claim and for purposes of enforcing the releases set forth herein; 7. that I (we) agree to furnish such additional information with respect to this Claim Form as Lead Counsel, the Claims Administrator or the Court may require; 8. that the claimant(s) waive(s) the right to trial by jury, to the extent it exists, and agree(s) to the Court’s summary disposition of the determination of the validity or amount of the claim made by this Claim Form; 9. that I (we) acknowledge that the claimant(s) will be bound by and subject to the terms of any judgment(s) that may be entered in the Action; and 10. that the claimant(s) is (are) NOT subject to backup withholding under the provisions of Section 3406(a)(1)(C) of the Internal Revenue Code because (a) the claimant(s) is (are) exempt from backup withholding or (b) the claimant(s) has (have) not been notified by the IRS that he/she/it is subject to backup withholding as a result of a failure to report all interest or dividends or (c) the IRS has notified the claimant(s) that he/she/it is no longer subject to backup withholding. If the IRS has notified the claimant(s) that he/she/it is subject to backup withholding, please strike out the language in the preceding sentence indicating that the claim is not subject to backup withholding in the certification above.
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UNDER THE PENALTIES OF PERJURY, I (WE) CERTIFY THAT ALL OF THE INFORMATION PROVIDED BY ME (US) ON THIS CLAIM FORM IS TRUE, CORRECT, AND COMPLETE, AND THAT THE DOCUMENTS SUBMITTED HEREWITH ARE TRUE AND CORRECT COPIES OF WHAT THEY PURPORT TO BE.
Date – – Signature of claimant MM DD YY
Print your name here
Date – – Signature of joint claimant, if any MM DD YY
Print your name here
If the claimant is other than an individual, or is not the person completing this form, the following also must be provided:
Signature of person Date – – signing on behalf of claimant MM DD YY
Print your name here
Capacity of person signing on behalf of claimant, if other than an individual, e.g., executor, president, trustee, custodian, etc. (Must provide evidence of authority to act on behalf of claimant – see paragraph 8 on page 3 of this Claim Form.)
REMINDER CHECKLIST: 1. Please sign the above release and certification. If this Claim Form is being made on behalf of joint claimants, then both must sign. 2. Remember to attach only copies of acceptable supporting documentation as these documents will not be returned to you. 3. Please do not highlight any portion of the Claim Form or any supporting documents. 4. Keep copies of the completed Claim Form and documentation for your own records. 5. The Claims Administrator will acknowledge receipt of your Claim Form by mail, within 60 days. Your claim is not deemed filed until you receive an acknowledgement postcard. If you do not receive an acknowledgement postcard within 60 days, please call the Claims Administrator toll free at 1-888-697-8556. 6. If your address changes in the future, or if this Claim Form was sent to an old or incorrect address, please send the Claims Administrator written notification of your new address. If you change your name, please inform the Claims Administrator. 7. If you have any questions or concerns regarding your claim, please contact the Claims Administrator at the address below, by email at [email protected], or by toll-free phone at (888) 697-8556, or you may visit www.ClovisSecuritiesLitigation.com. Please DO NOT call Clovis or any of the other Defendants or their counsel with questions regarding your claim. THIS CLAIM FORM MUST BE MAILED TO THE CLAIMS ADMINISTRATOR BY FIRST-CLASS MAIL, POSTMARKED NO LATER THAN DECEMBER 11, 2017, ADDRESSED AS FOLLOWS: Clovis Securities Litigation c/o Epiq Systems PO Box 3127 Portland, OR 97208-3127 A Claim Form received by the Claims Administrator shall be deemed to have been submitted when posted, if a postmark date on or before December 11, 2017 is indicated on the envelope and it is mailed First Class, and addressed in accordance with the above instructions. In all other cases, a Claim Form shall be deemed to have been submitted when actually received by the Claims Administrator. You should be aware that it will take a significant amount of time to fully process all of the Claim Forms. Please be patient and notify the Claims Administrator of any change of address.
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Clovis Securities Litigation Presorted FirsPresortedt - Class Mail c/o Epiq Systems First-ClassUS Postag Maile US PostagePAID PO Box 3127 PAID The Goode Portland, OR 97208-3127 CompaTGC ny
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Case 1:15-cv-02546-RM-MEH Document 170-5 Filed 09/21/17 USDC Colorado Page 52 of 57
Exhibit B Case 1:15-cv-02546-RM-MEH Document 170-5 Filed 09/21/17 USDC Colorado Page 53 of 57 P2JW230000-0-B00600-1------XA Case 1:15-cv-02546-RM-MEH Document 170-5 Filed 09/21/17 USDC Colorado Page 54 of 57
B6 | Friday, August 18, 2017 THE WALL STREET JOURNAL. BUSINESS NEWS Chinese Box Office Stages Revival Jack Ma’s Firms Buy Movie revenue rises That’sthe Ticket at faster pace after ‘Wolf Warrior 2’ has passed ‘The An Insurer slowdown last year; Mermaid’ to become the highest-grossing film in China. BY JULIE STEINBERG sequel powers gains AND CHUIN-WEI YAP Top-grossing films in China BY WAYNE MA Wolf Warrior 2 (China) Massachusetts Mutual Life Insurance Co.agreed to sell 4.8 billion yuan* BEIJING—A Chinese action itsHong Kong-based opera- film that taps into nationalist The Mermaid (China-Hong Kong†) tions forabout $1.7billion to a fervor has become the high- 3.4 group of Asian investors that est-grossing movie ever in includes two companies affili- China, showing that the box The Fate of the Furious (U.S.) ated with Chinesebillionaire officeherecan still pack a 2.7 Jack Ma. punch following last year’s MonsterHunt (China-Hong Kong†) Thecash-and-stock deal abrupt slowdown. will seeMassMutual collect 2.4 “Wolf Warrior 2”—about a $1 billion cash and take a former Chinese special-forces Furious 7 (U.S.) roughly 25% stakeinYun- soldier who fightsoff rebels CTION 2.4 feng Financial Group Ltd., a LLE
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Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH SUMMARY OF PLAINTIFFS’ COUNSEL’S LODESTAR AND EXPENSES TAB FIRM HOURS LODESTAR EXPENSES A Bernstein Litowitz Berger & 22,030.50 $9,895,223.75 $402,643.59 Grossmann LLP B Saxena White P.A. 1,131.00 $580,037.50 $10,845.09 C Gross, Kleinhendler, Hodak, 320.00 $160,000.00 $13,645.00 Halevy, Greenberg & Co. D Wheeler Trigg O’Donnell LLP 40.40 $19,422.00 ------ TOTAL: 23,521.90 $10,654,683.25 $427,133.68 #1117664 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 1 of 43 EXHIBIT 6A Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 2 of 43 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH SONNY P. MEDINA, et al., Plaintiffs, v. CLOVIS ONCOLOGY, INC., et al., Defendants. ______ DECLARATION OF JOHN C. BROWNE IN SUPPORT OF LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES FILED ON BEHALF OF BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP ______Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 3 of 43 I, John C. Browne, hereby declare under penalty of perjury as follows: 1. I am a partner of the law firm of Bernstein Litowitz Berger & Grossmann LLP, Court-appointed Lead Counsel in the above-captioned action (the “Action”).1 I submit this declaration in support of Lead Counsel’s application for an award of attorneys’ fees in connection with services rendered in the Action, as well as for reimbursement of Litigation Expenses incurred in connection with the Action. I have personal knowledge of the facts set forth herein and, if called upon, could and would testify thereto. 2. My firm, as Lead Counsel of record in the Action, was involved in all aspects of the litigation and its settlement as set forth in the Declaration of John C. Browne in Support of (I) Lead Plaintiff’s Motion for Final Approval of Class Action Settlement and Plan Of Allocation; and (II) Lead Counsel’s Motion for an Award of Attorneys’ Fees and Reimbursement Of Litigation Expenses. 3. The schedule attached hereto as Exhibit 1 is a detailed summary indicating the amount of time spent by attorneys and professional support staff employees of my firm who, from inception of the Action through and including September 21, 2017, billed five or more hours to the Action, and the lodestar calculation for those individuals based on my firm’s current billing rates. For personnel who are no longer employed by my firm, the lodestar calculation is based upon the billing rates for such personnel in his or her final year of employment by my firm. The schedule was prepared from contemporaneous daily time records regularly prepared and maintained by my firm. Time expended on this application for fees and reimbursement of expenses has not been included in this request. 1 Unless otherwise defined herein, all capitalized terms have the meanings set forth in the Stipulation and Agreement of Settlement dated June 18, 2017 (the “Stipulation”) previously filed with the Court. See Dkt. No. 156-1. 1 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 4 of 43 4. The hourly rates for the attorneys and professional support staff in my firm included in Exhibit 1 are the same as the regular rates charged for their services in non- contingent matters and/or which have been accepted in other securities or shareholder litigation. 5. The total number of hours reflected in Exhibit 1 from inception through and including September 21, 2017, is 22,030.50. The total lodestar reflected in Exhibit 1 for that period is $9,895,223.75, consisting of $9,476,418.75 for attorneys’ time and $418,805.00 for professional support staff time. 6. My firm’s lodestar figures are based upon the firm’s billing rates, which rates do not include charges for expense items. Expense items are billed separately and such charges are not duplicated in my firm’s billing rates. 7. As detailed in Exhibit 2, my firm is seeking reimbursement for a total of $402,643.59 in Litigation Expenses incurred in connection with the prosecution of this Action from inception through and including September 21, 2017. 8. The Litigation Expenses reflected in Exhibit 2 are the actual incurred expenses or reflect “caps” based on the application of the following criteria: (a) Out-of-town travel – airfare is at coach rates, hotel charges per night are capped at $350 for large cities and $250 for small cities (the relevant cities and how they are categorized are reflected on Exhibit 2); meals are capped at $20 per person for breakfast, $25 per person for lunch, and $50 per person for dinner. (b) Internal Copying – Charged at $0.10 per page. (c) On-Line Research – Charges reflected are for out-of-pocket payments to the vendors for research done in connection with this litigation. On-line research is billed to each case based on actual time usage at a set charge by the vendor. There are no administrative charges included in these figures. 9. The Litigation Expenses incurred in this Action are reflected on the books and records of my firm. These books and records are prepared from expense vouchers, check records, and other source materials, and are an accurate record of the expenses incurred. 2 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 5 of 43 10. With respect to the standing of my firm, attached hereto as Exhibit 3 is a brief biography of my firm and attorneys in my firm who were involved in this Action. I declare, under penalty of perjury, that the foregoing facts are true and correct. Executed on the 21st day of September, 2017. John C. Browne 3 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 6 of 43 EXHIBIT 1 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP TIME REPORT Inception through and including September 21, 2017 HOURLY NAME HOURS RATE LODESTAR Partners Max Berger 154.00 $1,250 $ 192,500.00 Michael Blatchley 19.00 $750 14,250.00 John Browne 1,604.25 $895 1,435,803.75 Ben Galdston 13.50 $750 10,125.00 Avi Josefson 17.25 $850 14,662.50 Gerald Silk 227.50 $995 226,362.50 Senior Counsel Rochelle Hansen 23.50 $750 17,625.00 Associates Abe Alexander 2,316.75 $625 1,447,968.75 John Mills 356.50 $650 231,725.00 Ross Shikowitz 19.00 $550 10,450.00 Staff Attorneys Erwin Abalos 1,017.00 $375 381,375.00 Sheela Aiyappasamy 1,015.50 $375 380,812.50 Erik Aldeborgh 476.00 $395 188,020.00 Pedro Ariston 285.00 $340 96,900.00 Jim Briggs 1,853.50 $340 630,190.00 Girolamo Brunetto 66.50 $340 22,610.00 Alexa Butler 553.75 $395 218,731.25 Jeffrey Castro 990.75 $375 371,531.25 Reiko Cyr 753.25 $395 297,533.75 Danielle Disporto 666.50 $375 249,937.50 Igor Faynshteyn 1,106.00 $340 376,040.00 Daniel Gruttadaro 775.00 $340 263,500.00 Ibrahim Hamed 1,183.25 $375 443,718.75 Monique Hardial 733.75 $340 249,475.00 France Kaczanowski 700.00 $395 276,500.00 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 7 of 43 HOURLY NAME HOURS RATE LODESTAR Madeleine Severin 1,125.50 $375 422,062.50 Joanna Tarnawski 274.00 $340 93,160.00 Allan Turisse 671.75 $395 265,341.25 Ghavrie Walker 1,367.50 $375 512,812.50 Saundra Yaklin 341.00 $395 134,695.00 Investigators Amy Bitkower 25.25 $520 13,130.00 Victoria Kapastin 55.00 $290 15,950.00 Financial Analysts Matthew McGlade 7.25 $335 2,428.75 Sharon Safran 13.00 $335 4,355.00 Tanjila Sultana 21.00 $335 7,035.00 Adam Weinschel 49.75 $465 23,133.75 Paralegals Jessica Cuccurullo 15.50 $295 4,572.50 Matthew Mahady 27.75 $335 9,296.25 Lisa Napoleon 20.75 $295 6,121.25 Virgilio Soler Jr 242.75 $335 81,321.25 Nyema Taylor 766.75 $295 226,191.25 Gary Weston 19.50 $350 6,825.00 Managing Clerk Errol Hall 59.50 $310 18,445.00 TOTALS 22,030.50 $9,895,223.75 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 8 of 43 EXHIBIT 2 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP EXPENSE REPORT Inception through and including September 21, 2017 CATEGORY AMOUNT Court Fees $211.00 Service of Process $4,314.28 On-Line Legal Research $42,115.40 On-Line Factual Research $7,257.13 Telephone $134.34 Postage & Express Mail $965.00 Internal Copying $500.20 Outside Copying $1,020.58 Out of Town Travel* $9,708.73 Court Reporting & Transcripts $346.35 Experts $153,397.00 Mediation Fees $28,316.68 SUBTOTAL PAID EXPENSES: $248,286.69 Outstanding Invoices: Experts $91,946.23 Electronic Discovery $62,410.67 SUBTOTAL OUTSTANDING EXPENSES: $154,356.90 TOTAL EXPENSES: $402,643.59 * Out of town travel includes hotels in the following “large” cities capped at $350 per night: Denver, CO; San Francisco, CA and Tel Aviv, Israel. Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 9 of 43 EXHIBIT 3 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP FIRM RESUME Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 10 of 43 Trusted Advocacy. Proven Results. Bernstein Litowitz Berger & Grossmann LLP Attorneys at Law Firm Resume New York California Louisiana Illinois 1251 Avenue of the 12481 High Bluff 2727 Prytania Street, 875 North Michigan Americas, 44th Floor Drive, Suite 300 Suite 14 Avenue, Suite 3100 New York, NY 10020 San Diego, CA 92130 New Orleans, LA 70130 Chicago, IL 60611 Tel: 212-554-1400 Tel: 858-793-0070 Tel: 504-899-2339 Tel: 312-373-3880 Fax: 212-554-1444 Fax: 858-793-0323 Fax: 504-899-2342 Fax: 312-794-7801 www.blbglaw.com Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 11 of 43 TABLE OF CONTENTS FIRM OVERVIEW ...... 1 More Top Securities Recoveries ...... 1 Giving Shareholders a Voice and Changing Business Practices for the Better ...... 2 Advocacy for Victims of Corporate Wrongdoing...... 2 PRACTICE AREAS ...... 4 Securities Fraud Litigation ...... 4 Corporate Governance and Shareholders’ Rights ...... 4 Employment Discrimination and Civil Rights ...... 4 General Commercial Litigation and Alternative Dispute Resolution ...... 5 Distressed Debt and Bankruptcy Creditor Negotiation ...... 5 Consumer Advocacy ...... 5 THE COURTS SPEAK ...... 6 RECENT ACTIONS & SIGNIFICANT RECOVERIES ...... 7 Securities Class Actions ...... 7 Corporate Governance and Shareholders’ Rights ...... 12 Employment Discrimination and Civil Rights ...... 15 CLIENTS AND FEES ...... 16 IN THE PUBLIC INTEREST ...... 17 Bernstein Litowitz Berger & Grossmann Public Interest Law Fellows ...... 17 Firm sponsorship of Her Justice ...... 17 The Paul M. Bernstein Memorial Scholarship ...... 17 Firm sponsorship of City Year New York ...... 17 Max W. Berger Pre-Law Program ...... 17 New York Says Thank You Foundation ...... 17 OUR ATTORNEYS ...... 18 Members ...... 18 Max W. Berger ...... 18 Gerald H. Silk ...... 19 John C. Browne ...... 21 Avi Josefson ...... 22 Benjamin Galdston ...... 22 Michael D. Blatchley ...... 23 Senior Counsel ...... 24 Rochelle Feder Hansen ...... 24 Associates ...... 25 Abe Alexander ...... 25 John J. Mills ...... 25 Ross Shikowitz ...... 26 Staff Attorneys ...... 27 Erwin Abalos ...... 27 Sheela Aiyappasamy ...... 27 Erik Aldeborgh ...... 27 Pedro Ariston ...... 27 Jim Briggs ...... 28 Girolamo Brunetto ...... 28 Alexa Butler ...... 28 Jeffrey Castro ...... 28 Reiko Cyr ...... 29 Danielle Disporto ...... 29 Igor Faynshteyn ...... 29 Daniel Gruttadaro ...... 29 Ibrahim Hamed ...... 30 Monique Hardial ...... 30 France Kaczanowski ...... 30 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 12 of 43 Madeleine Severin ...... 30 Joanna Tarnawski ...... 31 Allan Turisse ...... 31 Ghavrie Walker ...... 31 Saundra Yaklin ...... 31 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 13 of 43 Since our founding in 1983, Bernstein Litowitz Berger & Grossmann LLP has obtained many of the largest monetary recoveries in history – over $30 billion on behalf of investors. Unique among our peers, the firm has obtained the largest settlements ever agreed to by public companies related to securities fraud, including four of the ten largest in history. Working with our clients, we have also used the litigation process to achieve precedent- setting reforms which have increased market transparency, held wrongdoers accountable and improved corporate business practices in groundbreaking ways. FIRM OVERVIEW Bernstein Litowitz Berger & Grossmann LLP (“BLB&G”), a national law firm with offices located in New York, California, Louisiana and Illinois, prosecutes class and private actions on behalf of individual and institutional clients. The firm’s litigation practice areas include securities class and direct actions in federal and state courts; corporate governance and shareholder rights litigation, including claims for breach of fiduciary duty and proxy violations; mergers and acquisitions and transactional litigation; alternative dispute resolution; distressed debt and bankruptcy; civil rights and employment discrimination; consumer class actions and antitrust. We also handle, on behalf of major institutional clients and lenders, more general complex commercial litigation involving allegations of breach of contract, accountants’ liability, breach of fiduciary duty, fraud, and negligence. We are the nation’s leading firm in representing institutional investors in securities fraud class action litigation. The firm’s institutional client base includes the New York State Common Retirement Fund; the California Public Employees’ Retirement System (CalPERS); the Ontario Teachers’ Pension Plan Board (the largest public pension funds in North America); the Los Angeles County Employees Retirement Association (LACERA); the Chicago Municipal, Police and Labor Retirement Systems; the Teacher Retirement System of Texas; the Arkansas Teacher Retirement System; Forsta AP-fonden (“AP1”); Fjarde AP-fonden (“AP4”); the Florida State Board of Administration; the Public Employees’ Retirement System of Mississippi; the New York State Teachers’ Retirement System; the Ohio Public Employees Retirement System; the State Teachers Retirement System of Ohio; the Oregon Public Employees Retirement System; the Virginia Retirement System; the Louisiana School, State, Teachers and Municipal Police Retirement Systems; the Public School Teachers’ Pension and Retirement Fund of Chicago; the New Jersey Division of Investment of the Department of the Treasury; TIAA-CREF and other private institutions; as well as numerous other public and Taft-Hartley pension entities. MORE TOP SECURITIES RECOVERIES Since its founding in 1983, Bernstein Litowitz Berger & Grossmann LLP has litigated some of the most complex cases in history and has obtained over $30 billion on behalf of investors. Unique among its peers, the firm has negotiated the largest settlements ever agreed to by public companies related to securities fraud, and obtained many of the largest securities recoveries in history (including 5 of the top 10): 1 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 14 of 43 • In re WorldCom, Inc. Securities Litigation – $6.19 billion recovery • In re Cendant Corporation Securities Litigation – $3.3 billion recovery • In re Bank of America Corp. Securities, Derivative, and Employee Retirement Income Security Act (ERISA) Litigation – $2.43 billion recovery • In re Nortel Networks Corporation Securities Litigation (“Nortel II”) – $1.07 billion recovery • In re Merck & Co., Inc. Securities Litigation – $1.06 billion recovery • In re McKesson HBOC, Inc. Securities Litigation – $1.05 billion recovery For over a decade, Securities Class Action Services (SCAS – a division of ISS Governance) has compiled and published data on securities litigation recoveries and the law firms prosecuting the cases. BLB&G has been at or near the top of their rankings every year – often with the highest total recoveries, the highest settlement average, or both. BLB&G also eclipses all competitors on SCAS’s “Top 100 Settlements” report, having recovered 37% of all the settlement dollars represented in the report (nearly $23 billion), and having prosecuted nearly a third of all the cases on the list (29 of 100). GIVING SHAREHOLDERS A VOICE AND CHANGING BUSINESS PRACTICES FOR THE BETTER BLB&G was among the first law firms ever to obtain meaningful corporate governance reforms through litigation. In courts throughout the country, we prosecute shareholder class and derivative actions, asserting claims for breach of fiduciary duty and proxy violations wherever the conduct of corporate officers and/or directors, as well as M&A transactions, seek to deprive shareholders of fair value, undermine shareholder voting rights, or allow management to profit at the expense of shareholders. We have prosecuted seminal cases establishing precedents which have increased market transparency, held wrongdoers accountable, addressed issues in the boardroom and executive suite, challenged unfair deals, and improved corporate business practices in groundbreaking ways. From setting new standards of director independence, to restructuring board practices in the wake of persistent illegal conduct; from challenging the improper use of defensive measures and deal protections for management’s benefit, to confronting stock options backdating abuses and other self-dealing by executives; we have confronted a variety of questionable, unethical and proliferating corporate practices. Seeking to reform faulty management structures and address breaches of fiduciary duty by corporate officers and directors, we have obtained unprecedented victories on behalf of shareholders seeking to improve governance and protect the shareholder franchise. ADVOCACY FOR VICTIMS OF CORPORATE WRONGDOING While BLB&G is widely recognized as one of the leading law firms worldwide advising institutional investors on issues related to corporate governance, shareholder rights, and securities litigation, we have also prosecuted some of the most significant employment discrimination, civil rights and consumer protection cases on record. Equally important, the firm has advanced novel and socially beneficial principles by developing important new law in the areas in which we litigate. 2 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 15 of 43 The firm served as co-lead counsel on behalf of Texaco’s African-American employees in Roberts v. Texaco Inc., which resulted in a recovery of $176 million, the largest settlement ever in a race discrimination case. The creation of a Task Force to oversee Texaco’s human resources activities for five years was unprecedented and served as a model for public companies going forward. In the consumer field, the firm has gained a nationwide reputation for vigorously protecting the rights of individuals and for achieving exceptional settlements. In several instances, the firm has obtained recoveries for consumer classes that represented the entirety of the class’s losses – an extraordinary result in consumer class cases. 3 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 16 of 43 PRACTICE AREAS SECURITIES FRAUD LITIGATION Securities fraud litigation is the cornerstone of the firm’s litigation practice. Since its founding, the firm has had the distinction of having tried and prosecuted many of the most high-profile securities fraud class actions in history, recovering billions of dollars and obtaining unprecedented corporate governance reforms on behalf of our clients. BLB&G continues to play a leading role in major securities litigation pending in federal and state courts, and the firm remains one of the nation’s leaders in representing institutional investors in securities fraud class and derivative litigation. The firm also pursues direct actions in securities fraud cases when appropriate. By selectively opting out of certain securities class actions, we seek to resolve our clients’ claims efficiently and for substantial multiples of what they might otherwise recover from related class action settlements. The attorneys in the securities fraud litigation practice group have extensive experience in the laws that regulate the securities markets and in the disclosure requirements of corporations that issue publicly traded securities. Many of the attorneys in this practice group also have accounting backgrounds. The group has access to state-of-the-art, online financial wire services and databases, which enable it to instantaneously investigate any potential securities fraud action involving a public company’s debt and equity securities. CORPORATE GOVERNANCE AND SHAREHOLDERS’ RIGHTS The Corporate Governance and Shareholders’ Rights Practice Group prosecutes derivative actions, claims for breach of fiduciary duty, and proxy violations on behalf of individual and institutional investors in state and federal courts throughout the country. The group has obtained unprecedented victories on behalf of shareholders seeking to improve corporate governance and protect the shareholder franchise, prosecuting actions challenging numerous highly publicized corporate transactions which violated fair process and fair price, and the applicability of the business judgment rule. We have also addressed issues of corporate waste, shareholder voting rights claims, and executive compensation. As a result of the firm’s high-profile and widely recognized capabilities, the corporate governance practice group is increasingly in demand by institutional investors who are exercising a more assertive voice with corporate boards regarding corporate governance issues and the board’s accountability to shareholders. The firm is actively involved in litigating numerous cases in this area of law, an area that has become increasingly important in light of efforts by various market participants to buy companies from their public shareholders “on the cheap.” EMPLOYMENT DISCRIMINATION AND CIVIL RIGHTS The Employment Discrimination and Civil Rights Practice Group prosecutes class and multi- plaintiff actions, and other high-impact litigation against employers and other societal institutions that violate federal or state employment, anti-discrimination, and civil rights laws. The practice group represents diverse clients on a wide range of issues including Title VII actions: race, gender, sexual orientation and age discrimination suits; sexual harassment, and “glass ceiling” cases in which otherwise qualified employees are passed over for promotions to managerial or executive positions. 4 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 17 of 43 Bernstein Litowitz Berger & Grossmann LLP is committed to effecting positive social change in the workplace and in society. The practice group has the necessary financial and human resources to ensure that the class action approach to discrimination and civil rights issues is successful. This litigation method serves to empower employees and other civil rights victims, who are usually discouraged from pursuing litigation because of personal financial limitations, and offers the potential for effecting the greatest positive change for the greatest number of people affected by discriminatory practice in the workplace. GENERAL COMMERCIAL LITIGATION AND ALTERNATIVE DISPUTE RESOLUTION The General Commercial Litigation practice group provides contingency fee representation in complex business litigation and has obtained substantial recoveries on behalf of investors, corporations, bankruptcy trustees, creditor committees and other business entities. We have faced down powerful and well-funded law firms and defendants – and consistently prevailed. However, not every dispute is best resolved through the courts. In such cases, BLB&G Alternative Dispute practitioners offer clients an accomplished team and a creative venue in which to resolve conflicts outside of the litigation process. BLB&G has extensive experience – and a marked record of successes – in ADR practice. For example, in the wake of the credit crisis, we successfully represented numerous former executives of a major financial institution in arbitrations relating to claims for compensation. Our attorneys have led complex business-to- business arbitrations and mediations domestically and abroad representing clients before all the major arbitration tribunals, including the American Arbitration Association (AAA), FINRA, JAMS, International Chamber of Commerce (ICC) and the London Court of International Arbitration. DISTRESSED DEBT AND BANKRUPTCY CREDITOR NEGOTIATION The BLB&G Distressed Debt and Bankruptcy Creditor Negotiation Group has obtained billions of dollars through litigation on behalf of bondholders and creditors of distressed and bankrupt companies, as well as through third-party litigation brought by bankruptcy trustees and creditors’ committees against auditors, appraisers, lawyers, officers and directors, and other defendants who may have contributed to client losses. As counsel, we advise institutions and individuals nationwide in developing strategies and tactics to recover assets presumed lost as a result of bankruptcy. Our record in this practice area is characterized by extensive trial experience in addition to completion of successful settlements. CONSUMER ADVOCACY The Consumer Advocacy Practice Group at Bernstein Litowitz Berger & Grossmann LLP prosecutes cases across the entire spectrum of consumer rights, consumer fraud, and consumer protection issues. The firm represents victimized consumers in state and federal courts nationwide in individual and class action lawsuits that seek to provide consumers and purchasers of defective products with a means to recover their damages. The attorneys in this group are well versed in the vast array of laws and regulations that govern consumer interests and are aggressive, effective, court-tested litigators. The Consumer Practice Advocacy Group has recovered hundreds of millions of dollars for millions of consumers throughout the country. Most notably, in a number of cases, the firm has obtained recoveries for the class that were the entirety of the potential damages suffered by the consumer. For example, in actions against MCI and Empire Blue Cross, the firm recovered all of the damages suffered by the class. The group achieved its successes by advancing innovative claims and theories of liabilities, such as obtaining decisions in Pennsylvania and Illinois appellate courts that adopted a new theory of consumer damages in mass marketing cases. Bernstein Litowitz Berger & Grossmann LLP is, thus, able to lead the way in protecting the rights of consumers. 5 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 18 of 43 THE COURTS SPEAK Throughout the firm’s history, many courts have recognized the professional excellence and diligence of the firm and its members. A few examples are set forth below. IN RE WORLDCOM, INC. SECURITIES LITIGATION THE HO NORABLE DENI S E COTE OF THE UNITE D STATES DISTRICT COU RT FOR THE SOUTHERN D ISTRICT OF NEW YORK “I have the utmost confidence in plaintiffs’ counsel…they have been doing a superb job…. The Class is extraordinarily well represented in this litigation.” “The magnitude of this settlement is attributable in significant part to Lead Counsel’s advocacy and energy…. The quality of the representation given by Lead Counsel...has been superb...and is unsurpassed in this Court’s experience with plaintiffs’ counsel in securities litigation.” “Lead Counsel has been energetic and creative. . . . Its negotiations with the Citigroup Defendants have resulted in a settlement of historic proportions.” IN RE CLARENT CORPORATION SECURITIES LITIGATION THE HO NORABLE CH ARLES R. BREYER OF THE UNITED STATES DI STRI CT COURT FOR THE NORTH ERN D ISTRICT OF CALIF ORNI A “It was the best tried case I’ve witnessed in my years on the bench . . .” “[A]n extraordinarily civilized way of presenting the issues to you [the jury]. . . . We’ve all been treated to great civility and the highest professional ethics in the presentation of the case….” “These trial lawyers are some of the best I’ve ever seen.” LANDRY’S RESTAURANTS, INC. SHAREHOLDER LITIGATION VICE CHANCELLOR J. TRAVIS L ASTER OF THE D ELAWARE C OURT OF CHANCERY “I do want to make a comment again about the excellent efforts . . . put into this case. . . . This case, I think, shows precisely the type of benefits that you can achieve for stockholders and how representative litigation can be a very important part of our corporate governance system . . . you hold up this case as an example of what to do.” MCCALL V. SCOTT (COLUMBIA/HCA DERIVATIVE LITIGATION) THE HO NORABLE TH OM AS A. HIGGINS OF THE UNITED STATES DI STRI CT COURT FOR THE M IDDL E DISTRICT OF TENNESS EE “Counsel’s excellent qualifications and reputations are well documented in the record, and they have litigated this complex case adeptly and tenaciously throughout the six years it has been pending. They assumed an enormous risk and have shown great patience by taking this case on a contingent basis, and despite an early setback they have persevered and brought about not only a large cash settlement but sweeping corporate reforms that may be invaluable to the beneficiaries.” 6 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 19 of 43 RECENT ACTIONS & SIGNIFICANT RECOVERIES Bernstein Litowitz Berger & Grossmann LLP is counsel in many diverse nationwide class and individual actions and has obtained many of the largest and most significant recoveries in history. Some examples from our practice groups include: SECURITIES CLASS ACTIONS CASE: IN RE W ORLDCOM, INC . SECURITIES LI TI GAT ION C OURT : United States District Court for the Southern District of New York H IGHLIGHTS : $6.19 billion securities fraud class action recovery – the second largest in history; unprecedented recoveries from Director Defendants. C A S E S UMMARY : Investors suffered massive losses in the wake of the financial fraud and subsequent bankruptcy of former telecom giant WorldCom, Inc. This litigation alleged that WorldCom and others disseminated false and misleading statements to the investing public regarding its earnings and financial condition in violation of the federal securities and other laws. It further alleged a nefarious relationship between Citigroup subsidiary Salomon Smith Barney and WorldCom, carried out primarily by Salomon employees involved in providing investment banking services to WorldCom, and by WorldCom’s former CEO and CFO. As Court-appointed Co-Lead Counsel representing Lead Plaintiff the New York State Common Retirement Fund, we obtained unprecedented settlements totaling more than $6 billion from the Investment Bank Defendants who underwrote WorldCom bonds, including a $2.575 billion cash settlement to settle all claims against the Citigroup Defendants. On the eve of trial, the 13 remaining “Underwriter Defendants,” including J.P. Morgan Chase, Deutsche Bank and Bank of America, agreed to pay settlements totaling nearly $3.5 billion to resolve all claims against them. Additionally, the day before trial was scheduled to begin, all of the former WorldCom Director Defendants had agreed to pay over $60 million to settle the claims against them. An unprecedented first for outside directors, $24.75 million of that amount came out of the pockets of the individuals – 20% of their collective net worth. The Wall Street Journal, in its coverage, profiled the settlement as literally having “shaken Wall Street, the audit profession and corporate boardrooms.” After four weeks of trial, Arthur Andersen, WorldCom’s former auditor, settled for $65 million. Subsequent settlements were reached with the former executives of WorldCom, and then with Andersen, bringing the total obtained for the Class to over $6.19 billion. CASE: IN RE CEN DANT C ORPORATION SECURI TIES LI TIGATI O N C OURT : United States District Court for the District of New Jersey H IGHLIGHTS : $3.3 billion securities fraud class action recovery – the third largest in history; significant corporate governance reforms obtained. C A S E S UMMARY : The firm was Co-Lead Counsel in this class action against Cendant Corporation, its officers and directors and Ernst & Young (E&Y), its auditors, for their role in disseminating materially false and misleading financial statements concerning the company’s revenues, earnings and expenses for its 1997 fiscal year. As a result of company-wide accounting irregularities, Cendant restated its financial results for its 1995, 1996 and 1997 fiscal years and all fiscal quarters therein. Cendant agreed to settle the action for $2.8 billion to adopt some of the most extensive corporate governance changes in history. E&Y settled for $335 million. These settlements remain the largest sums ever recovered from a public company and a public accounting firm through securities class action litigation. BLB&G represented Lead Plaintiffs CalPERS – the California Public Employees’ Retirement System, the New York State Common Retirement Fund and the New York City Pension Funds, the three largest public pension funds in America, in this action. 7 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 20 of 43 CASE: IN RE BA NK OF AMERICA C ORP. SECURITIES, DERIVATIVE, AN D EMPLOYEE RE TI REMENT INC OME SECURITY ACT (ERISA) LITIGATION C OURT : United States District Court for the Southern District of New York H IGHLIGHTS : $2.425 billion in cash; significant corporate governance reforms to resolve all claims. This recovery is by far the largest shareholder recovery related to the subprime meltdown and credit crisis; the single largest securities class action settlement ever resolving a Section 14(a) claim – the federal securities provision designed to protect investors against misstatements in connection with a proxy solicitation; the largest ever funded by a single corporate defendant for violations of the federal securities laws; the single largest settlement of a securities class action in which there was neither a financial restatement involved nor a criminal conviction related to the alleged misconduct; and one of the 10 largest securities class action recoveries in history. D ESCRIPTION : The firm represented Co-Lead Plaintiffs the State Teachers Retirement System of Ohio, the Ohio Public Employees Retirement System, and the Teacher Retirement System of Texas in this securities class action filed on behalf of shareholders of Bank of America Corporation (“BAC”) arising from BAC’s 2009 acquisition of Merrill Lynch & Co., Inc. The action alleges that BAC, Merrill Lynch, and certain of the companies’ current and former officers and directors violated the federal securities laws by making a series of materially false statements and omissions in connection with the acquisition. These violations included the alleged failure to disclose information regarding billions of dollars of losses which Merrill had suffered before the BAC shareholder vote on the proposed acquisition, as well as an undisclosed agreement allowing Merrill to pay billions in bonuses before the acquisition closed despite these losses. Not privy to these material facts, BAC shareholders voted to approve the acquisition. CASE: IN RE NO RTEL NE TWO RKS CORPORATION SECURI TIES LITI GA TIO N (“NO RTEL II”) C OURT : United States District Court for the Southern District of New York H IGHLIGHTS : Over $1.07 billion in cash and common stock recovered for the class. D ESCRIPTION : This securities fraud class action charged Nortel Networks Corporation and certain of its officers and directors with violations of the Securities Exchange Act of 1934, alleging that the Defendants knowingly or recklessly made false and misleading statements with respect to Nortel’s financial results during the relevant period. BLB&G clients the Ontario Teachers’ Pension Plan Board and the Treasury of the State of New Jersey and its Division of Investment were appointed as Co-Lead Plaintiffs for the Class in one of two related actions (Nortel II), and BLB&G was appointed Lead Counsel for the Class. In a historic settlement, Nortel agreed to pay $2.4 billion in cash and Nortel common stock (all figures in US dollars) to resolve both matters. Nortel later announced that its insurers had agreed to pay $228.5 million toward the settlement, bringing the total amount of the global settlement to approximately $2.7 billion, and the total amount of the Nortel II settlement to over $1.07 billion. CASE: IN RE MERCK & C O., INC. SECURITIES LITIGATION C OURT : United States District Court, District of New Jersey H IGHLIGHTS : $1.06 billion recovery for the class. D ESCRIPTION : This case arises out of misrepresentations and omissions concerning life-threatening risks posed by the “blockbuster” Cox-2 painkiller Vioxx, which Merck withdrew from the market in 2004. In January 2016, BLB&G achieved a $1.062 billion settlement on the eve of trial after more than 12 years of hard-fought litigation that included a successful decision at the United States Supreme Court. This settlement is the second largest recovery ever obtained in the Third Circuit, one of the top 10 securities recoveries of all time, and the largest securities recovery ever achieved against a pharmaceutical company. BLB&G represented Lead Plaintiff the Public Employees’ Retirement System of Mississippi. 8 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 21 of 43 CASE: IN RE MC KESSON HBOC, INC. SECURI TIES LITIGATION C OURT : United States District Court for the Northern District of California H IGHLIGHTS : $1.05 billion recovery for the class. D ESCRIPTION : This securities fraud litigation was filed on behalf of purchasers of HBOC, McKesson and McKesson HBOC securities, alleging that Defendants misled the investing public concerning HBOC’s and McKesson HBOC’s financial results. On behalf of Lead Plaintiff the New York State Common Retirement Fund, BLB&G obtained a $960 million settlement from the company; $72.5 million in cash from Arthur Andersen; and, on the eve of trial, a $10 million settlement from Bear Stearns & Co. Inc., with total recoveries reaching more than $1 billion. CASE: IN RE LEHMA N B RO THERS EQUITY/DEBT SECU RITIES LITIGATION C OURT : United States District Court for the Southern District of New York H IGHLIGHTS : $735 million in total recoveries. D ESCRIPTION : Representing the Government of Guam Retirement Fund, BLB&G successfully prosecuted this securities class action arising from Lehman Brothers Holdings Inc.’s issuance of billions of dollars in offerings of debt and equity securities that were sold using offering materials that contained untrue statements and missing material information. After four years of intense litigation, Lead Plaintiffs achieved a total of $735 million in recoveries consisting of: a $426 million settlement with underwriters of Lehman securities offerings; a $90 million settlement with former Lehman directors and officers; a $99 million settlement that resolves claims against Ernst & Young, Lehman’s former auditor (considered one of the top 10 auditor settlements ever achieved); and a $120 million settlement that resolves claims against UBS Financial Services, Inc. This recovery is truly remarkable not only because of the difficulty in recovering assets when the issuer defendant is bankrupt, but also because no financial results were restated, and that the auditors never disavowed the statements. CASE: HEALTHSOU TH C ORPORATION B ON DHOL DER LITI GA T ION C OURT : United States District Court for the Northern District of Alabama H IGHLIGHTS : $804.5 million in total recoveries. D ESCRIPTION : In this litigation, BLB&G was the appointed Co-Lead Counsel for the bond holder class, representing Lead Plaintiff the Retirement Systems of Alabama. This action arose from allegations that Birmingham, Alabama based HealthSouth Corporation overstated its earnings at the direction of its founder and former CEO Richard Scrushy. Subsequent revelations disclosed that the overstatement actually exceeded over $2.4 billion, virtually wiping out all of HealthSouth’s reported profits for the prior five years. A total recovery of $804.5 million was obtained in this litigation through a series of settlements, including an approximately $445 million settlement for shareholders and bondholders, a $100 million in cash settlement from UBS AG, UBS Warburg LLC, and individual UBS Defendants (collectively, “UBS”), and $33.5 million in cash from the company’s auditor. The total settlement for injured HealthSouth bond purchasers exceeded $230 million, recouping over a third of bond purchaser damages. CASE: IN RE CITIGROUP, INC. BO ND ACTI ON LITI GA TIO N C OURT : United States District Court for the Southern District of New York H IGHLIGHTS : $730 million cash recovery; second largest recovery in a litigation arising from the financial crisis. D ESCRIPTION : In the years prior to the collapse of the subprime mortgage market, Citigroup issued 48 offerings of preferred stock and bonds. This securities fraud class action was filed on behalf of purchasers of 9 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 22 of 43 Citigroup bonds and preferred stock alleging that these offerings contained material misrepresentations and omissions regarding Citigroup’s exposure to billions of dollars in mortgage- related assets, the loss reserves for its portfolio of high-risk residential mortgage loans, and the credit quality of the risky assets it held in off-balance sheet entities known as “structured investment vehicles.” After protracted litigation lasting four years, we obtained a $730 million cash recovery – the second largest securities class action recovery in a litigation arising from the financial crisis, and the second largest recovery ever in a securities class action brought on behalf of purchasers of debt securities. As Lead Bond Counsel for the Class, BLB&G represented Lead Bond Plaintiffs Minneapolis Firefighters’ Relief Association, Louisiana Municipal Police Employees’ Retirement System, and Louisiana Sheriffs’ Pension and Relief Fund. CASE: IN RE WASHINGTON PUBLIC POWER SUPPLY SYSTEM LITIGATION C OURT : United States District Court for the District of Arizona H IGHLIGHTS : Over $750 million – the largest securities fraud settlement ever achieved at the time. D ESCRIPTION : BLB&G was appointed Chair of the Executive Committee responsible for litigating the action on behalf of the class in this action. The case was litigated for over seven years, and involved an estimated 200 million pages of documents produced in discovery; the depositions of 285 fact witnesses and 34 expert witnesses; more than 25,000 introduced exhibits; six published district court opinions; seven appeals or attempted appeals to the Ninth Circuit; and a three-month jury trial, which resulted in a settlement of over $750 million – then the largest securities fraud settlement ever achieved. CASE: IN RE SCHERING-PLOU GH CORPORATION/ENHANCE SECURITIES LITIGATION ; IN RE MERCK & CO., INC. VYTORIN/ZETIA SECU RITIES LI TI GATI ON C OURT : United States District Court for the District of New Jersey H IGHLIGHTS : $688 million in combined settlements (Schering-Plough settled for $473 million; Merck settled for $215 million) in this coordinated securities fraud litigations filed on behalf of investors in Merck and Schering-Plough. D ESCRIPTION : After nearly five years of intense litigation, just days before trial, BLB&G resolved the two actions against Merck and Schering-Plough, which stemmed from claims that Merck and Schering artificially inflated their market value by concealing material information and making false and misleading statements regarding their blockbuster anti-cholesterol drugs Zetia and Vytorin. Specifically, we alleged that the companies knew that their “ENHANCE” clinical trial of Vytorin (a combination of Zetia and a generic) demonstrated that Vytorin was no more effective than the cheaper generic at reducing artery thickness. The companies nonetheless championed the “benefits” of their drugs, attracting billions of dollars of capital. When public pressure to release the results of the ENHANCE trial became too great, the companies reluctantly announced these negative results, which we alleged led to sharp declines in the value of the companies’ securities, resulting in significant losses to investors. The combined $688 million in settlements (Schering- Plough settled for $473 million; Merck settled for $215 million) is the second largest securities recovery ever in the Third Circuit, among the top 25 settlements of all time, and among the ten largest recoveries ever in a case where there was no financial restatement. BLB&G represented Lead Plaintiffs Arkansas Teacher Retirement System, the Public Employees’ Retirement System of Mississippi, and the Louisiana Municipal Police Employees’ Retirement System. CASE: IN RE LUCEN T TECHNOLOGIES, INC. SECU RITIES LI TI GATI ON C OURT : United States District Court for the District of New Jersey 10 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 23 of 43 H IGHLIGHTS : $667 million in total recoveries; the appointment of BLB&G as Co-Lead Counsel is especially noteworthy as it marked the first time since the 1995 passage of the Private Securities Litigation Reform Act that a court reopened the lead plaintiff or lead counsel selection process to account for changed circumstances, new issues and possible conflicts between new and old allegations. D ESCRIPTION : BLB&G served as Co-Lead Counsel in this securities class action, representing Lead Plaintiffs the Parnassus Fund, Teamsters Locals 175 & 505 D&P Pension Trust, Anchorage Police and Fire Retirement System and the Louisiana School Employees’ Retirement System. The complaint accused Lucent of making false and misleading statements to the investing public concerning its publicly reported financial results and failing to disclose the serious problems in its optical networking business. When the truth was disclosed, Lucent admitted that it had improperly recognized revenue of nearly $679 million in fiscal 2000. The settlement obtained in this case is valued at approximately $667 million, and is composed of cash, stock and warrants. CASE: IN RE W ACHO VIA PREFE RR ED SECURITIES AND BOND/NO TES LITI GA TIO N C OURT : United States District Court for the Southern District of New York H IGHLIGHTS : $627 million recovery – among the 20 largest securities class action recoveries in history; third largest recovery obtained in an action arising from the subprime mortgage crisis. D ESCRIPTION : This securities class action was filed on behalf of investors in certain Wachovia bonds and preferred securities against Wachovia Corp., certain former officers and directors, various underwriters, and its auditor, KPMG LLP. The case alleges that Wachovia provided offering materials that misrepresented and omitted material facts concerning the nature and quality of Wachovia’s multi-billion dollar option-ARM (adjustable rate mortgage) “Pick-A-Pay” mortgage loan portfolio, and that Wachovia’s loan loss reserves were materially inadequate. According to the Complaint, these undisclosed problems threatened the viability of the financial institution, requiring it to be “bailed out” during the financial crisis before it was acquired by Wells Fargo. The combined $627 million recovery obtained in the action is among the 20 largest securities class action recoveries in history, the largest settlement ever in a class action case asserting only claims under the Securities Act of 1933, and one of a handful of securities class action recoveries obtained where there were no parallel civil or criminal actions brought by government authorities. The firm represented Co-Lead Plaintiffs Orange County Employees Retirement System and Louisiana Sheriffs’ Pension and Relief Fund in this action. CASE: OHIO PUBLIC EMPLOYEES RETI REMENT SYSTEM V. FREDDIE MAC C OURT : United States District Court for the Southern District of Ohio H IGHLIGHTS : $410 million settlement. D ESCRIPTION : This securities fraud class action was filed on behalf of the Ohio Public Employees Retirement System and the State Teachers Retirement System of Ohio alleging that Federal Home Loan Mortgage Corporation (“Freddie Mac”) and certain of its current and former officers issued false and misleading statements in connection with the company’s previously reported financial results. Specifically, the Complaint alleged that the Defendants misrepresented the company’s operations and financial results by having engaged in numerous improper transactions and accounting machinations that violated fundamental GAAP precepts in order to artificially smooth the company’s earnings and to hide earnings volatility. In connection with these improprieties, Freddie Mac restated more than $5 billion in earnings. A settlement of $410 million was reached in the case just as deposition discovery had begun and document review was complete. CASE: IN RE REFCO, INC. SECU RI TIES LITI GA TIO N C OURT : United States District Court for the Southern District of New York 11 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 24 of 43 H IGHLIGHTS : Over $407 million in total recoveries. D ESCRIPTION : The lawsuit arises from the revelation that Refco, a once prominent brokerage, had for years secreted hundreds of millions of dollars of uncollectible receivables with a related entity controlled by Phillip Bennett, the company’s Chairman and Chief Executive Officer. This revelation caused the stunning collapse of the company a mere two months after its initial public offering of common stock. As a result, Refco filed one of the largest bankruptcies in U.S. history. Settlements have been obtained from multiple company and individual defendants, resulting in a total recovery for the class of over $407 million. BLB&G represented Co-Lead Plaintiff RH Capital Associates LLC. CORPORATE GOVERNANCE AND SHAREHOLDERS’ RIGHTS CASE: UNITEDHEALTH GROUP, I NC. SHAREHOLDER DERIV A TIVE LI TIGATI ON C OURT : United States District Court for the District of Minnesota H IGHLIGHTS : Litigation recovered over $920 million in ill-gotten compensation directly from former officers for their roles in illegally backdating stock options, while the company agreed to far-reaching reforms aimed at curbing future executive compensation abuses. D ESCRIPTION : This shareholder derivative action filed against certain current and former executive officers and members of the Board of Directors of UnitedHealth Group, Inc. alleged that the Defendants obtained, approved and/or acquiesced in the issuance of stock options to senior executives that were unlawfully backdated to provide the recipients with windfall compensation at the direct expense of UnitedHealth and its shareholders. The firm recovered over $920 million in ill-gotten compensation directly from the former officer Defendants – the largest derivative recovery in history. As feature coverage in The New York Times indicated, “investors everywhere should applaud [the UnitedHealth settlement]…. [T]he recovery sets a standard of behavior for other companies and boards when performance pay is later shown to have been based on ephemeral earnings.” The Plaintiffs in this action were the St. Paul Teachers’ Retirement Fund Association, the Public Employees’ Retirement System of Mississippi, the Jacksonville Police & Fire Pension Fund, the Louisiana Sheriffs’ Pension & Relief Fund, the Louisiana Municipal Police Employees’ Retirement System and Fire & Police Pension Association of Colorado. CASE: CAREMARK MER GER LITI GATIO N C OURT : Delaware Court of Chancery – New Castle County H IGHLIGHTS : Landmark Court ruling orders Caremark’s board to disclose previously withheld information, enjoins shareholder vote on CVS merger offer, and grants statutory appraisal rights to Caremark shareholders. The litigation ultimately forced CVS to raise offer by $7.50 per share, equal to more than $3.3 billion in additional consideration to Caremark shareholders. D ESCRIPTION : Commenced on behalf of the Louisiana Municipal Police Employees’ Retirement System and other shareholders of Caremark RX, Inc. (“Caremark”), this shareholder class action accused the company’s directors of violating their fiduciary duties by approving and endorsing a proposed merger with CVS Corporation (“CVS”), all the while refusing to fairly consider an alternative transaction proposed by another bidder. In a landmark decision, the Court ordered the Defendants to disclose material information that had previously been withheld, enjoined the shareholder vote on the CVS transaction until the additional disclosures occurred, and granted statutory appraisal rights to Caremark’s shareholders—forcing CVS to increase the consideration offered to shareholders by $7.50 per share in cash (over $3 billion in total). 12 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 25 of 43 CASE: IN RE PFIZE R I NC. SHAREHOLDER DERIV ATIVE LITI GA TION C OURT : United States District Court for the Southern District of New York H IGHLIGHTS : Landmark settlement in which Defendants agreed to create a new Regulatory and Compliance Committee of the Pfizer Board that will be supported by a dedicated $75 million fund. D ESCRIPTION : In the wake of Pfizer’s agreement to pay $2.3 billion as part of a settlement with the U.S. Department of Justice to resolve civil and criminal charges relating to the illegal marketing of at least 13 of the company’s most important drugs (the largest such fine ever imposed), this shareholder derivative action was filed against Pfizer’s senior management and Board alleging they breached their fiduciary duties to Pfizer by, among other things, allowing unlawful promotion of drugs to continue after receiving numerous “red flags” that Pfizer’s improper drug marketing was systemic and widespread. The suit was brought by Court-appointed Lead Plaintiffs Louisiana Sheriffs’ Pension and Relief Fund and Skandia Life Insurance Company, Ltd. In an unprecedented settlement reached by the parties, the Defendants agreed to create a new Regulatory and Compliance Committee of the Pfizer Board of Directors (the “Regulatory Committee”) to oversee and monitor Pfizer’s compliance and drug marketing practices and to review the compensation policies for Pfizer’s drug sales related employees. CASE: IN RE EL PASO CORP. S HAREHOLDER LITIGATION C OURT : Delaware Court of Chancery – New Castle County H IGHLIGHTS : Landmark Delaware ruling chastises Goldman Sachs for M&A conflicts of interest. D ESCRIPTION : This case aimed a spotlight on ways that financial insiders – in this instance, Wall Street titan Goldman Sachs – game the system. The Delaware Chancery Court harshly rebuked Goldman for ignoring blatant conflicts of interest while advising their corporate clients on Kinder Morgan’s high-profile acquisition of El Paso Corporation. As a result of the lawsuit, Goldman was forced to relinquish a $20 million advisory fee, and BLB&G obtained a $110 million cash settlement for El Paso shareholders – one of the highest merger litigation damage recoveries in Delaware history. CASE: IN RE DELPHI FINA NCIAL GR OUP SHAREHOLDER LIT IGAT ION C OURT : Delaware Court of Chancery – New Castle County H IGHLIGHTS : Dominant shareholder is blocked from collecting a payoff at the expense of minority investors. D ESCRIPTION : As the Delphi Financial Group prepared to be acquired by Tokio Marine Holdings Inc., the conduct of Delphi’s founder and controlling shareholder drew the scrutiny of BLB&G and its institutional investor clients for improperly using the transaction to expropriate at least $55 million at the expense of the public shareholders. BLB&G aggressively litigated this action and obtained a settlement of $49 million for Delphi’s public shareholders. The settlement fund is equal to about 90% of recoverable Class damages – a virtually unprecedented recovery. CASE: QUALCOMM B OOKS & REC ORDS LITI GA TIO N C OURT : Delaware Court of Chancery – New Castle County H IGHLIGHTS : Novel use of “books and records” litigation enhances disclosure of political spending and transparency. D ESCRIPTION : The U.S. Supreme Court’s controversial 2010 opinion in Citizens United v. FEC made it easier for corporate directors and executives to secretly use company funds – shareholder assets – to support personally favored political candidates or causes. BLB&G prosecuted the first-ever “books and records” litigation to obtain disclosure of corporate political spending at our client’s portfolio 13 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 26 of 43 company – technology giant Qualcomm Inc. – in response to Qualcomm’s refusal to share the information. As a result of the lawsuit, Qualcomm adopted a policy that provides its shareholders with comprehensive disclosures regarding the company’s political activities and places Qualcomm as a standard-bearer for other companies. CASE: IN RE NEWS CORP. S HAREHOLDER DERIVAT IVE LITIGATION C OURT : Delaware Court of Chancery – Kent County H IGHLIGHTS : An unprecedented settlement in which News Corp. recoups $139 million and enacts significant corporate governance reforms that combat self-dealing in the boardroom. D ESCRIPTION : Following News Corp.’s 2011 acquisition of a company owned by News Corp. Chairman and CEO Rupert Murdoch’s daughter, and the phone-hacking scandal within its British newspaper division, we filed a derivative litigation on behalf of the company because of institutional shareholder concern with the conduct of News Corp.’s management. We ultimately obtained an unprecedented settlement in which News Corp. recouped $139 million for the company coffers, and agreed to enact corporate governance enhancements to strengthen its compliance structure, the independence and functioning of its board, and the compensation and clawback policies for management. CASE: IN RE ACS SHAREHOLDER LITI GA TIO N (XEROX ) C OURT : Delaware Court of Chancery – New Castle County H IGHLIGHTS : BLB&G challenged an attempt by ACS CEO to extract a premium on his stock not shared with the company’s public shareholders in a sale of ACS to Xerox. On the eve of trial, BLB&G obtained a $69 million recovery, with a substantial portion of the settlement personally funded by the CEO. D ESCRIPTION : Filed on behalf of the New Orleans Employees’ Retirement System and similarly situated shareholders of Affiliated Computer Service, Inc., this action alleged that members of the Board of Directors of ACS breached their fiduciary duties by approving a merger with Xerox Corporation which would allow Darwin Deason, ACS’s founder and Chairman and largest stockholder, to extract hundreds of millions of dollars of value that rightfully belongs to ACS’s public shareholders for himself. Per the agreement, Deason’s consideration amounted to over a 50% premium when compared to the consideration paid to ACS’s public stockholders. The ACS Board further breached its fiduciary duties by agreeing to certain deal protections in the merger agreement that essentially locked up the transaction between ACS and Xerox. After seeking a preliminary injunction to enjoin the deal and engaging in intense discovery and litigation in preparation for a looming trial date, Plaintiffs reached a global settlement with Defendants for $69 million. In the settlement, Deason agreed to pay $12.8 million, while ACS agreed to pay the remaining $56.1 million. CASE: IN RE DOLLAR GENER AL C ORPORATION SHAREHOLDER LI TIGATI ON C OURT : Sixth Circuit Court for Davidson County, Tennessee; Twentieth Judicial District, Nashville H IGHLIGHTS : Holding Board accountable for accepting below-value “going private” offer. D ESCRIPTION : A Nashville, Tennessee corporation that operates retail stores selling discounted household goods, in early March 2007, Dollar General announced that its Board of Directors had approved the acquisition of the company by the private equity firm Kohlberg Kravis Roberts & Co. (“KKR”). BLB&G, as Co-Lead Counsel for the City of Miami General Employees’ & Sanitation Employees’ Retirement Trust, filed a class action complaint alleging that the “going private” offer was approved as a result of breaches of fiduciary duty by the board and that the price offered by KKR did not reflect the fair value of Dollar General’s publicly-held shares. On the eve of the summary judgment hearing, KKR agreed to pay a $40 million settlement in favor of the shareholders, with a potential for $17 million more for the Class. 14 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 27 of 43 CASE: LANDRY ’S RESTAURANTS, INC. SHAREHOLDER LI TI GA TION C OURT : Delaware Court of Chancery – New Castle County H IGHLIGHTS : Protecting shareholders from predatory CEO’s multiple attempts to take control of Landry’s Restaurants through improper means. Our litigation forced the CEO to increase his buyout offer by four times the price offered and obtained an additional $14.5 million cash payment for the class. D ESCRIPTION : In this derivative and shareholder class action, shareholders alleged that Tilman J. Fertitta – chairman, CEO and largest shareholder of Landry’s Restaurants, Inc. – and its Board of Directors stripped public shareholders of their controlling interest in the company for no premium and severely devalued remaining public shares in breach of their fiduciary duties. BLB&G’s prosecution of the action on behalf of Plaintiff Louisiana Municipal Police Employees’ Retirement System resulted in recoveries that included the creation of a settlement fund composed of $14.5 million in cash, as well as significant corporate governance reforms and an increase in consideration to shareholders of the purchase price valued at $65 million. EMPLOYMENT DISCRIMINATION AND CIVIL RIGHTS CASE: ROBE RTS V. TEXACO, I NC. C OURT : United States District Court for the Southern District of New York H IGHLIGHTS : BLB&G recovered $170 million on behalf of Texaco’s African-American employees and engineered the creation of an independent “Equality and Tolerance Task Force” at the company. D ESCRIPTION : Six highly qualified African-American employees filed a class action complaint against Texaco Inc. alleging that the company failed to promote African-American employees to upper level jobs and failed to compensate them fairly in relation to Caucasian employees in similar positions. BLB&G’s prosecution of the action revealed that African-Americans were significantly under- represented in high level management jobs and that Caucasian employees were promoted more frequently and at far higher rates for comparable positions within the company. The case settled for over $170 million, and Texaco agreed to a Task Force to monitor its diversity programs for five years – a settlement described as the most significant race discrimination settlement in history. CASE: ECOA - GMAC/NMAC/FORD/TOYOTA /CH RYSLER - CONSUMER FIN ANCE DISCRIMINATION LI TIGATI ON C OURT : Multiple jurisdictions H IGHLIGHTS : Landmark litigation in which financing arms of major auto manufacturers are compelled to cease discriminatory “kick-back” arrangements with dealers, leading to historic changes to auto financing practices nationwide. D ESCRIPTION : The cases involve allegations that the lending practices of General Motors Acceptance Corporation, Nissan Motor Acceptance Corporation, Ford Motor Credit, Toyota Motor Credit and DaimlerChrysler Financial cause African-American and Hispanic car buyers to pay millions of dollars more for car loans than similarly situated white buyers. At issue is a discriminatory kickback system under which minorities typically pay about 50% more in dealer mark-up which is shared by auto dealers with the Defendants. NMAC: The United States District Court for the Middle District of Tennessee granted final approval of the settlement of the class action against Nissan Motor Acceptance Corporation (“NMAC”) in which NMAC agreed to offer pre-approved loans to hundreds of thousands of current and potential African-American and Hispanic NMAC customers, and limit how much it raises the interest charged to car buyers above the company’s minimum acceptable rate. 15 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 28 of 43 GMAC: The United States District Court for the Middle District of Tennessee granted final approval of a settlement of the litigation against General Motors Acceptance Corporation (“GMAC”) in which GMAC agreed to take the historic step of imposing a 2.5% markup cap on loans with terms up to 60 months, and a cap of 2% on extended term loans. GMAC also agreed to institute a substantial credit pre-approval program designed to provide special financing rates to minority car buyers with special rate financing. DAIMLERC HRYSLER: The United States District Court for the District of New Jersey granted final approval of the settlement in which DaimlerChrysler agreed to implement substantial changes to the company’s practices, including limiting the maximum amount of mark-up dealers may charge customers to between 1.25% and 2.5% depending upon the length of the customer’s loan. In addition, the company agreed to send out pre-approved credit offers of no-markup loans to African-American and Hispanic consumers, and contribute $1.8 million to provide consumer education and assistance programs on credit financing. FO RD MO TO R CREDIT: The United States District Court for the Southern District of New York granted final approval of a settlement in which Ford Credit agreed to make contract disclosures informing consumers that the customer’s Annual Percentage Rate (“APR”) may be negotiated and that sellers may assign their contracts and retain rights to receive a portion of the finance charge. CLIENTS AND FEES We are firm believers in the contingency fee as a socially useful, productive and satisfying basis of compensation for legal services, particularly in litigation. Wherever appropriate, even with our corporate clients, we will encourage retention where our fee is contingent on the outcome of the litigation. This way, it is not the number of hours worked that will determine our fee, but rather the result achieved for our client. Our clients include many large and well known financial and lending institutions and pension funds, as well as privately-held companies that are attracted to our firm because of our reputation, expertise and fee structure. Most of the firm’s clients are referred by other clients, law firms and lawyers, bankers, investors and accountants. A considerable number of clients have been referred to the firm by former adversaries. We have always maintained a high level of independence and discretion in the cases we decide to prosecute. As a result, the level of personal satisfaction and commitment to our work is high. 16 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 29 of 43 IN THE PUBLIC INTEREST Bernstein Litowitz Berger & Grossmann LLP is guided by two principles: excellence in legal work and a belief that the law should serve a socially useful and dynamic purpose. Attorneys at the firm are active in academic, community and pro bono activities, as well as participating as speakers and contributors to professional organizations. In addition, the firm endows a public interest law fellowship and sponsors an academic scholarship at Columbia Law School. BERNSTEIN LITOWITZ BERGER & GROSSMANN PUBLIC INTEREST LAW FELLOWS COLUMBIA LAW SCHOOL − BLB&G is committed to fighting discrimination and effecting positive social change. In support of this commitment, the firm donated funds to Columbia Law School to create the Bernstein Litowitz Berger & Grossmann Public Interest Law Fellowship. This newly endowed fund at Columbia Law School will provide Fellows with 100% of the funding needed to make payments on their law school tuition loans so long as such graduates remain in the public interest law field. The BLB&G Fellows are able to begin their careers free of any school debt if they make a long-term commitment to public interest law. FIRM SPONSORSHIP OF HER JUSTICE NEW YORK, NY − BLB&G is a sponsor of Her Justice, a non-profit organization in New York City dedicated to providing pro bono legal representation to indigent women, principally battered women, in connection with the myriad legal problems they face. The organization trains and supports the efforts of New York lawyers who provide pro bono counsel to these women. Several members and associates of the firm volunteer their time to help women who need divorces from abusive spouses, or representation on issues such as child support, custody and visitation. To read more about Her Justice, visit the organization’s website at www.herjustice.org. THE PAUL M. BERNSTEIN MEMORIAL SCHOLARSHIP COLUMBIA LAW SCHOOL − Paul M. Bernstein was the founding senior partner of the firm. Mr. Bernstein led a distinguished career as a lawyer and teacher and was deeply committed to the professional and personal development of young lawyers. The Paul M. Bernstein Memorial Scholarship Fund is a gift of the firm and the family and friends of Paul M. Bernstein, and is awarded annually to one or more second-year students selected for their academic excellence in their first year, professional responsibility, financial need and contributions to the community. FIRM SPONSORSHIP OF CITY YEAR NEW YORK NEW YORK, NY − BLB&G is also an active supporter of City Year New York, a division of AmeriCorps. The program was founded in 1988 as a means of encouraging young people to devote time to public service and unites a diverse group of volunteers for a demanding year of full-time community service, leadership development and civic engagement. Through their service, corps members experience a rite of passage that can inspire a lifetime of citizenship and build a stronger democracy. MAX W. BERGER PRE-LAW PROGRAM BARUCH COLLEGE − In order to encourage outstanding minority undergraduates to pursue a meaningful career in the legal profession, the Max W. Berger Pre-Law Program was established at Baruch College. Providing workshops, seminars, counseling and mentoring to Baruch students, the program facilitates and guides them through the law school research and application process, as well as placing them in appropriate internships and other pre-law working environments. NEW YORK SAYS THANK YOU FOUNDATION NEW YORK, NY − Founded in response to the outpouring of love shown to New York City by volunteers from all over the country in the wake of the 9/11 attacks, The New York Says Thank You Foundation sends volunteers from New York City to help rebuild communities around the country affected by disasters. BLB&G is a corporate sponsor of NYSTY and its goals are a heartfelt reflection of the firm’s focus on community and activism. 17 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 30 of 43 OUR ATTORNEYS MEMBERS MAX W. BERGER, the firm’s senior founding partner, supervises BLB&G’s litigation practice and prosecutes class and individual actions on behalf of the firm’s clients. He has litigated many of the firm’s most high-profile and significant cases, and has negotiated seven of the largest securities fraud settlements in history, each in excess of a billion dollars: Cendant ($3.3 billion); Citigroup–WorldCom ($2.575 billion); Bank of America/Merrill Lynch ($2.4 billion); JPMorgan Chase–WorldCom ($2 billion); Nortel ($1.07 billion); Merck ($1.06 billion); and McKesson ($1.05 billion). Mr. Berger’s work has garnered him extensive media attention, and he has been the subject of feature articles in a variety of major media publications. Unique among his peers, The New York Times highlighted his remarkable track record in an October 2012 profile entitled “Investors’ Billion-Dollar Fraud Fighter,” which also discussed his role in the Bank of America/Merrill Lynch Merger litigation. In 2011, Mr. Berger was twice profiled by The American Lawyer for his role in negotiating a $627 million recovery on behalf of investors in the In re Wachovia Corp. Securities Litigation, and a $516 million recovery in In re Lehman Brothers Equity/Debt Securities Litigation. Previously, Mr. Berger’s role in the WorldCom case generated extensive media coverage including feature articles in BusinessWeek and The American Lawyer. For his outstanding efforts on behalf of WorldCom investors, The National Law Journal profiled Mr. Berger (one of only eleven attorneys selected nationwide) in its annual 2005 “Winning Attorneys” section. He was subsequently featured in a 2006 New York Times article, “A Class-Action Shuffle,” which assessed the evolving landscape of the securities litigation arena. One of the “100 Most Influential Lawyers in America” Widely recognized for his professional excellence and achievements, Mr. Berger was named one of the “100 Most Influential Lawyers in America” by The National Law Journal for being “front and center” in holding Wall Street banks accountable and obtaining over $5 billion in cases arising from the subprime meltdown, and for his work as a “master negotiator” in obtaining numerous multi-billion dollar recoveries for investors. Described as a “standard-bearer” for the profession in a career spanning over 40 years, he is the 2014 recipient of Chambers USA’s award for Outstanding Contribution to the Legal Profession. In presenting this prestigious honor, Chambers recognized Mr. Berger’s “numerous headline- grabbing successes,” as well as his unique stature among colleagues – “warmly lauded by his peers, who are nevertheless loath to find him on the other side of the table.” Law360 published a special feature discussing his life and career as a “Titan of the Plaintiffs Bar,” and also named him one of only six litigators selected nationally as a “Legal MVP” for his work in securities litigation. For the past ten years in a row, Mr. Berger has received the top attorney ranking in plaintiff securities litigation by Chambers and is consistently recognized as one of New York’s “local litigation stars” by Benchmark Litigation (published by Institutional Investor and Euromoney). Law360 also named him one of only six litigators selected nationally as a “Legal MVP” for his work in securities litigation. 18 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 31 of 43 Since their various inceptions, he has also been named a “leading lawyer” by the Legal 500 US guide, one of “10 Legal Superstars” by Securities Law360, and one of the “500 Leading Lawyers in America” and “100 Securities Litigators You Need to Know” by Lawdragon magazine. Further, The Best Lawyers in America guide has named Mr. Berger a leading lawyer in his field. Mr. Berger also serves the academic community in numerous capacities as a member of the Dean’s Council to Columbia Law School, and as a member of the Board of Trustees of Baruch College. He has taught Profession of Law, an ethics course at Columbia Law School, and currently serves on the Advisory Board of Columbia Law School’s Center on Corporate Governance. In May 2006, he was presented with the Distinguished Alumnus Award for his contributions to Baruch College, and in February 2011, Mr. Berger received Columbia Law School’s most prestigious and highest honor, “The Medal for Excellence.” This award is presented annually to Columbia Law School alumni who exemplify the qualities of character, intellect, and social and professional responsibility that the Law School seeks to instill in its students. As a recipient of this award, Mr. Berger was profiled in the Fall 2011 issue of Columbia Law School Magazine. Mr. Berger is currently a member of the New York State, New York City and American Bar Associations, and is a member of the Federal Bar Council. He is also a member of the American Law Institute and an Advisor to its Restatement Third: Economic Torts project. In addition, Mr. Berger is a member of the Board of Trustees of The Supreme Court Historical Society. Mr. Berger lectures extensively for many professional organizations. In 1997, Mr. Berger was honored for his outstanding contribution to the public interest by Trial Lawyers for Public Justice, where he was a “Trial Lawyer of the Year” Finalist for his work in Roberts, et al. v. Texaco, the celebrated race discrimination case, on behalf of Texaco’s African-American employees. Among numerous charitable and volunteer works, Mr. Berger is an active supporter of City Year New York, a division of AmeriCorps, dedicated to encouraging young people to devote time to public service. In July 2005, he was named City Year New York’s “Idealist of the Year,” for his long-time service and work in the community. He and his wife, Dale, have also established the Dale and Max Berger Public Interest Law Fellowship at Columbia Law School and the Max Berger Pre-Law Program at Baruch College. EDUCATION: Baruch College-City University of New York, B.B.A., Accounting, 1968; President of the student body and recipient of numerous awards. Columbia Law School, J.D., 1971, Editor of the Columbia Survey of Human Rights Law. BAR ADMISSIONS: New York; U.S. District Courts for the Eastern and Southern Districts of New York; U.S. Court of Appeals for the Second Circuit; U.S. Supreme Court. GERALD H. SILK’S practice focuses on representing institutional investors on matters involving federal and state securities laws, accountants’ liability, and the fiduciary duties of corporate officials, as well as general commercial and corporate litigation. He also advises creditors on their rights with respect to pursuing affirmative claims against officers and directors, as well as professionals both inside and outside the bankruptcy context. Mr. Silk is a managing partner of the firm and oversees its New Matter department in which he, along with a group of attorneys, financial analysts and investigators, counsels institutional clients on potential legal claims. He was the subject of “Picking Winning Securities Cases,” a feature article in the June 2005 issue of Bloomberg Markets magazine, which detailed his work for the firm in this capacity. A decade later, in December 2014, Mr. Silk was recognized by The National Law Journal in its inaugural list of “Litigation Trailblazers & Pioneers” — one of 50 lawyers in the country who have changed the practice of litigation through the use of innovative legal 19 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 32 of 43 strategies — in no small part for the critical role he has played in helping the firm’s investor clients recover billions of dollars in litigation arising from the financial crisis, among other matters. In addition, Lawdragon magazine, which has named Mr. Silk one of the “100 Securities Litigators You Need to Know,” one of the “500 Leading Lawyers in America” and one of America’s top 500 “rising stars” in the legal profession, also recently profiled him as part of its “Lawyer Limelight” special series, discussing subprime litigation, his passion for plaintiffs’ work and the trends he expects to see in the market. Recognized as one of an elite group of notable practitioners by Chambers USA, he is also named as a “Litigation Star” by Benchmark, is recommended by the Legal 500 USA guide in the field of plaintiffs’ securities litigation, and has been selected by New York Super Lawyers every year since 2006. In the wake of the financial crisis, he advised the firm’s institutional investor clients on their rights with respect to claims involving transactions in residential mortgage-backed securities (RMBS) and collateralized debt obligations (CDOs). His work representing Cambridge Place Investment Management Inc. on claims under Massachusetts state law against numerous investment banks arising from the purchase of billions of dollars of RMBS was featured in a 2010 New York Times article by Gretchen Morgenson titled, “Mortgage Investors Turn to State Courts for Relief.” Mr. Silk also represented the New York State Teachers’ Retirement System in a securities litigation against the General Motors Company arising from a series of misrepresentations concerning the quality, safety, and reliability of the Company’s cars which resulted in a $300 million settlement. In addition, he is actively involved in the firm's prosecution of highly successful M&A litigation, representing shareholders in widely publicized lawsuits, including the litigation arising from the proposed acquisition of Caremark Rx, Inc. by CVS Corporation — which led to an increase of approximately $3.5 billion in the consideration offered to shareholders. Mr. Silk was one of the principal attorneys responsible for prosecuting the In re Independent Energy Holdings Securities Litigation. A case against the officers and directors of Independent Energy as well as several investment banking firms which underwrote a $200 million secondary offering of ADRs by the U.K.-based Independent Energy, the litigation was resolved for $48 million. Mr. Silk has also prosecuted and successfully resolved several other securities class actions, which resulted in substantial cash recoveries for investors, including In re Sykes Enterprises, Inc. Securities Litigation in the Middle District of Florida, and In re OM Group, Inc. Securities Litigation in the Northern District of Ohio. He was also a member of the litigation team responsible for the successful prosecution of In re Cendant Corporation Securities Litigation in the District of New Jersey, which was resolved for $3.2 billion. A graduate of the Wharton School of Business, University of Pennsylvania and Brooklyn Law School, in 1995-96, Mr. Silk served as a law clerk to the Hon. Steven M. Gold, U.S.M.J., in the United States District Court for the Eastern District of New York. Mr. Silk lectures to institutional investors at conferences throughout the country, and has written or substantially contributed to several articles on developments in securities and corporate law, including “Improving Multi-Jurisdictional, Merger-Related Litigation,” American Bar Association (February 2011); “The Compensation Game,” Lawdragon, Fall 2006; “Institutional Investors as Lead Plaintiffs: Is There A New And Changing Landscape?,” 75 St. John’s Law Review 31 (Winter 2001); “The Duty To Supervise, Poser, Broker-Dealer Law and Regulation,” 3rd Ed. 2000, Chapter 15; “Derivative Litigation In New York after Marx v. Akers,” New York Business Law Journal, Vol. 1, No. 1 (Fall 1997). He is a frequent commentator for the business media on television and in print. Among other outlets, he has appeared on NBC’s Today, and CNBC’s Power Lunch, Morning Call, and Squawkbox programs, as well as being featured in The New York Times, Financial Times, Bloomberg, The National Law Journal, and the New York Law Journal. 20 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 33 of 43 EDUCATION: Wharton School of the University of Pennsylvania, B.S., Economics, 1991. Brooklyn Law School, J.D., cum laude, 1995. BAR ADMISSIONS: New York; U.S. District Courts for the Southern and Eastern Districts of New York. JOHN C. BROWNE’s practice focuses on the prosecution of securities fraud class actions. He represents the firm’s institutional investor clients in jurisdictions throughout the country and has been a member of the trial teams of some of the most high-profile securities fraud class actions in history. Mr. Browne was Lead Counsel in the In re Citigroup, Inc. Bond Action Litigation, which resulted in a $730 million cash recovery – the second largest recovery ever achieved for a class of purchasers of debt securities. It is also the second largest civil settlement arising out of the subprime meltdown and financial crisis. Mr. Browne was also a member of the team representing the New York State Common Retirement Fund in In re WorldCom, Inc. Securities Litigation, which culminated in a five-week trial against Arthur Andersen LLP and a recovery for investors of over $6.19 billion – one of the largest securities fraud recoveries in history. Other notable litigations in which Mr. Browne served as Lead Counsel on behalf of shareholders include In re Refco Securities Litigation, which resulted in a $407 million settlement, In re the Reserve Fund Securities and Derivative Litigation, which settled for more than $54 million, In re King Pharmaceuticals Litigation, which settled for $38.25 million, In re RAIT Financial Trust Securities Litigation, which settled for $32 million, and In re SFBC Securities Litigation, which settled for $28.5 million. Most recently, Mr. Browne served as lead counsel in the In re BNY Mellon Foreign Exchange Securities Litigation, which settled for $180 million, In re State Street Corporation Securities Litigation, which settled for $60 million, and the Anadarko Petroleum Corporation Securities Litigation, which settled for $12.5 million. Mr. Browne also represents the firm’s institutional investor clients in the appellate courts, and has argued appeals in the Second Circuit, Third Circuit and, most recently, the Fifth Circuit, where he successfully argued the appeal in the In re Amedisys Securities Litigation. In recognition for his achievements, Law360 named Mr. Browne a “Class Action MVP,” one of only four litigators selected nationally. He is also named a New York Super Lawyer, and is recommended by Legal 500 for his work in securities litigation. Prior to joining BLB&G, Mr. Browne was an attorney at Latham & Watkins, where he had a wide range of experience in commercial litigation, including defending corporate officers and directors in securities class actions and derivative suits, and representing major corporate clients in state and federal court litigations and arbitrations. Mr. Browne has been a panelist at various continuing legal education programs offered by the American Law Institute (“ALI”) and has authored and co-authored numerous articles relating to securities litigation. EDUCATION: James Madison University, B.A., Economics, magna cum laude, 1994. Cornell Law School, J.D., cum laude, 1998; Editor of the Cornell Law Review. BAR ADMISSIONS: New York; U.S. District Court for the Southern District of New York; U.S. Courts of Appeals for the Second, Third and Fifth Circuits. 21 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 34 of 43 AVI JOSEFSON prosecutes securities fraud litigation for the firm’s institutional investor clients, and has participated in many of the firm’s significant representations, including In re SCOR Holding (Switzerland) AG Securities Litigation, which resulted in a recovery worth in excess of $143 million for investors. He was also a member of the team that litigated the In re OM Group, Inc. Securities Litigation, which resulted in a settlement of $92.4 million. As a member of the firm’s New Matter department, Mr. Josefson counsels institutional clients on potential legal claims. He has presented argument in several federal and state courts, including an appeal he argued before the Delaware Supreme Court. Mr. Josefson is also actively involved in the M&A litigation practice, and represented shareholders in the litigation arising from the proposed acquisitions of Ceridian Corporation and Anheuser-Busch. A member of the firm’s subprime litigation team, he has participated in securities fraud actions arising from the collapse of subprime mortgage lender American Home Mortgage and the actions against Lehman Brothers, Citigroup and Merrill Lynch, arising from those banks’ multi-billion dollar loss from mortgage-backed investments. Mr. Josefson has prosecuted actions against Deutsche Bank and Morgan Stanley arising from their sale of mortgage-backed securities, and is advising U.S. and foreign institutions concerning similar claims arising from investments in mortgage-backed securities. Mr. Josefson practices in the firm’s Chicago and New York Offices. EDUCATION: Brandeis University, B.A., cum laude, 1997. Northwestern University, J.D., 2000; Dean’s List; Justice Stevens Public Interest Fellowship (1999); Public Interest Law Initiative Fellowship (2000). BAR ADMISSIONS: Illinois, New York; U.S. District Courts for the Southern District of New York and the Northern District of Illinois. BENJAMIN GALDSTON practices in the firm’s California office and focuses on complex litigation, securities fraud class actions, and derivative and corporate governance matters. Mr. Galdston has participated in the prosecution and resolution of many of the firm’s most significant matters, including In re Lehman Brothers Holdings, Inc., which recovered more than $735 million for Lehman Brothers shareholders, and In re McKesson HBOC Securities Litigation, which settled for more than $1 billion the largest settlement recovery for a securities class action within the Ninth Circuit. He is currently litigating shareholder and derivative claims in Government of Guam v. Invacare, et al.; Deerfield Beach Police Pension Fund v. Quality Systems, Inc.; and Anderson v. Spirit AeroSystems Holdings, Inc.; as well as representing class plaintiffs in antitrust litigation arising from the manipulation of LIBOR. Mr. Galdston also has participated in prosecuting some of the firm’s most significant matters, including In re Citigroup Bond Litigation; In re Toyota Securities Litigation; In re Wachovia Corp. Securities Litigation; In re SunPower Corp.; West Virginia Laborers’ Trust Fund v. STEC, Inc.; In re Washington Mutual, Inc. Securities Litigation; In re Maxim Integrated Products, Inc. Securities Litigation; In re New Century; In re International Rectifier Corp. Securities Litigation; and In re Stone Energy Corp. Securities Litigation. Mr. Galdston has represented institutional investors in individual direct actions, as well, including In re AXA Rosenberg Investor Litigation, which asserted claims under the Investment Advisers Act of 1940, and In re EMAC Securities Litigation, a direct action arising from a private offering of asset-backed securities. Mr. Galdston earned his law degree from the University of San Diego School of Law. While in law school, Mr. Galdston served on the Moot Court Board, competed in national Moot Court tournaments and directed the University of San Diego School of Law National Criminal Procedure Moot Court Tournament. Following law school, Mr. Galdston represented investors in securities fraud actions at another national law firm. 22 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 35 of 43 Previously, Mr. Galdston was the sole proprietor of Litigation Support Systems, where he designed, constructed and maintained relational document databases for small law firms litigating document-intensive cases. He has authored several articles concerning e-discovery practice in the federal courts. Mr. Galdston is a member of the California Bar Association and the Federal Bar Association, and is a former president of the Greater San Diego Barristers Club. EDUCATION: Oberlin College, B.A., Sociology and Soviet Area Studies, 1989. University of San Diego School of Law, J.D., 2000; American Trial Lawyers’ Association Book Award for Outstanding Scholarship in Appellate Advocacy, American Jurisprudence Award for Property, and the Computer Assisted Learning Institute Award for Excellence. BAR ADMISSIONS: California; U.S. District Courts for the Central, Northern and Southern Districts of California. MICHAEL D. BLATCHLEY’s practice focuses on securities fraud litigation. He is currently a member of the firm’s New Matter department in which he, along with a team of attorneys, financial analysts, forensic accountants, and investigators, counsels the firm’s clients on their legal claims. Mr. Blatchley has also served as a member of the litigation teams responsible for prosecuting a number of the firm’s significant cases. For example, Mr. Blatchley was a key member of the team that recovered $150 million for investors in In re JPMorgan Chase & Co. Securities Litigation, a securities fraud class action arising out of misrepresentations and omissions concerning JPMorgan’s Chief Investment Office, the company’s risk management systems, and the trading activities of the so-called “London Whale.” He was also a member of the litigation team in In re Medtronic, Inc. Securities Litigation, an action arising out of allegations that Medtronic promoted the Infuse bone graft for dangerous “off-label” uses, which resulted in an $85 million recovery for investors. In addition, Mr. Blatchley prosecuted a number of cases related to the financial crisis, including several actions arising out of wrongdoing related to the issuance of residential mortgage-backed securities and other complex financial products. Currently, Mr. Blatchley is a member of the team prosecuting In re Allergan, Inc. Proxy Violation Securities Litigation. Mr. Blatchley was recently named to Benchmark Litigation’s “Under 40 Hot List,” which recognizes him as one the nation’s most accomplished legal partners under the age of 40. While attending Brooklyn Law School, Mr. Blatchley held a judicial internship position for the Honorable David G. Trager, United States District Judge for the Eastern District of New York. In addition, he worked as an intern at The Legal Aid Society’s Harlem Community Law Office, as well as at Brooklyn Law School’s Second Look and Workers’ Rights Clinics, and provided legal assistance to victims of Hurricane Katrina in New Orleans, Louisiana. EDUCATION: University of Wisconsin, B.A., 2000. Brooklyn Law School, J.D., cum laude, 2007; Edward V. Sparer Public Interest Law Fellowship, William Payson Richardson Memorial Prize, Richard Elliott Blyn Memorial Prize, Editor for the Brooklyn Law Review, Moot Court Honor Society. BAR ADMISSIONS: New York, New Jersey; U.S. District Courts for the Southern District of New York and the District of New Jersey. 23 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 36 of 43 SENIOR COUNSEL ROCHELLE FEDER HANSEN has handled a number of high profile securities fraud cases at the firm, including In re StorageTek Securities Litigation, In re First Republic Securities Litigation, and In re RJR Nabisco Securities Litigation. Ms. Hansen has also acted as Antitrust Program Coordinator for Columbia Law School’s Continuing Legal Education Trial Practice Program for Lawyers. EDUCATION: Brooklyn College of the City University of New York, B.A., 1966; M.S., 1976. Benjamin N. Cardozo School of Law, J.D., magna cum laude, 1979; Member, Cardozo Law Review. BAR ADMISSIONS: New York; U.S. District Courts for the Eastern and Southern Districts of New York; U.S. Court of Appeals for the Second Circuit. 24 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 37 of 43 ASSOCIATES ABE ALEXANDER practices out of the New York office, where he focuses on securities fraud, corporate governance and shareholder rights litigation. As a principal member of the trial team prosecuting In re Merck Vioxx Securities Litigation, Mr. Alexander helped recover over $1.06 billion on behalf of injured investors. The case, which asserted claims arising out of the Defendants’ alleged misrepresentations concerning the safety profile of Merck’s pain-killer, VIOXX, was settled shortly before trial and after more than 10 years of litigation, during which time plaintiffs achieved a unanimous and groundbreaking victory for investors at the U.S. Supreme Court. The settlement is the largest securities recovery ever achieved against a pharmaceutical company and among the 15 largest recoveries of all time. Mr. Alexander was also a principal member of the trial team that prosecuted In re Schering- Plough Corp./ENHANCE Securities Litigation and In re Merck & Co., Inc. Vytorin/Zetia Securities Litigation, which settled on the eve of trial for a combined $688 million. This $688 million settlement represents the second largest securities class action recovery against a pharmaceutical company in history and is among the largest securities class action settlements of any kind. As lead associate on the firm’s trial team, Mr. Alexander helped achieve a $150 million settlement of investors’ claims against JPMorgan Chase arising from alleged misrepresentations concerning the trading activities of the so-called “London Whale.” Mr. Alexander also played a key role in obtaining a substantial recovery on behalf of investors in In re Penn West Petroleum Ltd. Securities Litigation. He is currently prosecuting Medina v. Clovis Oncology, Inc.; In re HeartWare International, Inc. Securities Litigation; Schaffer v. Horizon Pharma PLC; and Park v. Cognizant Technology Solutions Corp., among others. Prior to joining the firm, Mr. Alexander represented institutional clients in a number of high- profile securities, corporate governance, and antitrust matters. Mr. Alexander was an award-winning member of his law school’s national moot court team. Following law school, he served as a judicial clerk to Chief Justice Michael L. Bender of the Colorado Supreme Court. Super Lawyers has regularly selected Mr. Alexander as a New York “Rising Star” in recognition of his accomplishments. EDUCATION: New York University - The College of Arts and Science, B.A., Analytic Philosophy, cum laude, 2003. University of Colorado Law School, J.D., 2008; Order of the Coif. BAR ADMISSIONS: Delaware; New York; U.S. District Court for the District of Delaware; U.S. District Courts for the Eastern and Southern Districts of New York; U.S. Court of Appeals for the First Circuit. JOHN J. MILLS’ practice concentrates on Class Action Settlements and Settlement Administration. Mr. Mills also has experience representing large financial institutions in corporate finance transactions. EDUCATION: Duke University, B.A., 1997. Brooklyn Law School, J.D., cum laude, 2000; Member of The Brooklyn Journal of International Law; Carswell Merit Scholar recipient. BAR ADMISSIONS: New York; U.S. District Courts for the Eastern and Southern Districts of New York. 25 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 38 of 43 ROSS SHIKOWITZ focuses his practice on securities litigation and is a member of the firm’s New Matter group, in which he, as part of a team attorneys, financial analysts, and investigators, counsels institutional clients on potential legal claims. Mr. Shikowitz has also served as a member of the litigation teams responsible for successfully prosecuting a number of the firm’s cases involving wrongdoing related to the securitization and sale of residential mortgage-backed securities (“RMBS”), including Allstate Insurance Co. v. Morgan Stanley, Bayerische Landesbank, New York Branch v. Morgan Stanley; and Metropolitan Life Insurance Company v. Morgan Stanley. Currently, he serves as a member of the litigation teams prosecuting Dexia SA/NV v. Morgan Stanley; and Sealink Funding Limited v. Morgan Stanley, which also involve the fraudulent issuance of RMBS. While in law school, Mr. Shikowitz was a research assistant to Brooklyn Law School Professor of Law Emeritus Norman Poser, a widely respected expert in international and domestic securities regulation. He also served as a judicial intern to the Honorable Brian M. Cogan of the Eastern District of New York, and as a legal intern for the Major Narcotics Investigations Bureau of the Kings County District Attorney’s Office. EDUCATION: Skidmore College, B.A., Music, cum laude, 2003. Indiana University- Bloomington, M.M., Music, 2005. Brooklyn Law School, J.D., magna cum laude, 2010; Notes/Comments Editor, Brooklyn Law Review; Moot Court Honor Society; Order of Barristers Certificate; CALI Excellence for the Future Award in Products Liability, Professional Responsibility. BAR ADMISSIONS: New York; U.S. District Courts for the Eastern and Southern Districts of New York. 26 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 39 of 43 STAFF ATTORNEYS ERWIN ABALOS has worked on numerous matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al, In re Salix Pharmaceuticals, Ltd., Securities Litigation, In re Facebook, Inc., IPO Securities and Derivative Litigation, In re Merck & Co., Inc., Securities Litigation (VIOXX- related) and Minneapolis Firefighters’ Relief Association v. Medtronic, Inc., et al. Prior to joining the Firm in 2012, Mr. Abalos was an associate at Jacoby & Meyers and Associates LLP. Prior to attending law school, Mr. Abalos was a Senior Scientist at F. Hoffmann-LaRoche Ltd. EDUCATION: Georgetown University, B.S., 2000. Rutgers University School of Law, J.D., 2006. BAR ADMISSIONS: New York, New Jersey. SHEELA AIYAPPASAMY has worked on various matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al and In re Salix Pharmaceuticals, Ltd., Securities Litigation. Prior to joining the Firm in 2016, Ms. Aiyappasamy was a staff attorney at Simpson Thacher & Bartlett, and a law clerk at the U.S. Attorney’s Office for the Eastern District of New York. EDUCATION: Boston University, B.A., 2001. University of Miami School of Law, J.D., 2004. Florida International University, M.B.A., 2008. BAR ADMISSIONS: Florida. ERIK ALDEBORGH has worked on various matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al, In re Virtus Investment Partners, Inc., Securities Litigation, In re Wilmington Trust Securities Litigation and Bear Stearns Mortgage Pass-Through Litigation. Prior to joining the Firm in 2014, Mr. Aldeborgh was an associate at Goodwin Proctor, LLP, and litigation counsel at Liberty Mutual Insurance Company. EDUCATION: Union College, B.A., with Honors, 1981. Northeastern University School of Law, J.D., 1987. BAR ADMISSIONS: Massachusetts. PEDRO ARISTON has worked on numerous matters at BLB&G, including In re Salix Pharmaceuticals, Ltd. Securities Litigation, Kohut v. KBR, Inc. et al., In re Genworth Financial Inc. Securities Litigation and In re Wilmington Trust Securities Litigation. Prior to joining the firm in 2014, Mr. Ariston was a senior associate at Zambrano & Gruba Law Offices, Philippines, and a staff attorney at Labaton Sucharow LLP. EDUCATION: Ateneo de Manila University School of Arts and Sciences, B.A., cum laude, 1990. Ateneo de Manila University School of Law, J.D., 2002. Georgetown University Law Center, LL.M., 2007. BAR ADMISSIONS: New York. 27 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 40 of 43 JIM BRIGGS has worked on numerous matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al, In re Salix Pharmaceuticals, Ltd., Securities Litigation, In re JPMorgan Chase & Co. Securities Litigation and In re Merck & Co., Inc., Securities Litigation (VIOXX- related). Prior to joining the Firm in 2013, Mr. Briggs was a contract attorney at Paul, Weiss, Rifkind, Wharton & Garrison LLP and Stull, Stull & Brody. EDUCATION: Cornell University, College of Agriculture and Life Sciences, B.S. in Biological Science, cum laude, May 2007. Fordham University School of Law, J.D., 2010. BAR ADMISSIONS: New York. GIROLAMO BRUNETTO has worked on numerous matters at BLB&G, including In re Altisource Portfolio Solutions, S.A., Securities Litigation, In re Genworth Financial Inc. Securities Litigation, In re Facebook, Inc., IPO Securities and Derivative Litigation and In re JPMorgan Chase & Co. Securities Litigation. Mr. Brunetto also works on the settlement of class actions and the administration of class action settlements. Prior to joining the firm in 2014, Mr. Brunetto was a volunteer assistant attorney general in the Investor Protection Bureau at the New York State Office of the Attorney General. EDUCATION: University of Florida, B.S.B.A. and B.A., cum laude, May 2007. New York Law School, J.D., cum laude, 2011. BAR ADMISSIONS: New York. ALEXA BUTLER has worked on numerous matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al, In re Virtus Investment Partners, Inc., Securities Litigation, In re Bank of New York Mellon Corp. Forex Transactions Litigation, In re JPMorgan Chase & Co. Securities Litigation, In re Merck & Co., Inc., Securities Litigation (VIOXX-related), In re MBIA, Inc., Securities Litigation, In re Washington Mutual, Inc., Securities Litigation, In re Merrill Lynch & Co., Inc., Securities, Derivative and ERISA Litigation (Bond Action), In re Refco, Inc., Securities Litigation and Affiliated Computer Services, Inc., Shareholder Derivative Litigation. Prior to joining the Firm in 2007, Ms. Butler was a contract attorney at Whatley Drake & Kallas, LLC. EDUCATION: Georgia Institute of Technology, B.S., 1993. St. John’s University School of Law, J.D., 1997. BAR ADMISSIONS: New York. JEFFREY CASTRO currently works on Medina et al v. Clovis Oncology, Inc., et al, and Fresno County Employees’ Retirement Association v. comScore, Inc. Mr. Castro also worked with BLB&G on behalf of co-counsel on In re Salix Pharmaceuticals, Ltd., Securities Litigation. Prior to joining the Firm, Mr. Castro was a contract attorney at several New York law firms. EDUCATION: Binghamton University, B.A., 1996. New York Law School, J.D., 2004. BAR ADMISSIONS: New York, New Jersey. 28 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 41 of 43 REIKO CYR has worked on numerous matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al, In re Green Mountain Coffee Roasters, Inc., Securities Litigation, In re NII Holdings, Inc., Securities Litigation, General Motors Securities Litigation and In re Bank of New York Mellon Corp. Forex Transactions Litigation. Prior to joining the Firm in 2013, Ms. Cyr was an attorney at Constantine Cannon LLP. EDUCATION: University of Alberta, B.S., 1990. McGill University, Faculty of Law, LL.B and B.C.L., 1999. BAR ADMISSIONS: New York. DANIELLE DISPORTO has worked on various matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al, Town of Davie Police Pension Plan v. CommVault Systems, Inc., et al and In re Altisource Portfolio Solutions, S.A., Securities Litigation. Prior to joining the Firm in 2016, Ms. Disporto was an associate at Wolf Popper LLP, Dreier LLP, and Levy Konigsberg, LLP. EDUCATION: University of Delaware, B.S., 1998; Seton Hall University School of Law, J.D., cum laude, 2003. BAR ADMISSIONS: New York, New Jersey. IGOR FAYNSHTEYN currently works on Medina et al v. Clovis Oncology, Inc., et al, and Fresno County Employees’ Retirement Association v. comScore, Inc. Mr. Faynshteyn also worked with BLB&G on behalf of co-counsel on In re Merck & Co., Inc., Securities Litigation (VIOXX- related). Prior to joining the Firm, Mr. Faynshteyn was a contract attorney at several New York law firms. EDUCATION: City University of New York, Hunter College, B.A., 2005; M.A., 2006. Brooklyn Law School, J.D., 2011. BAR ADMISSIONS: New York. DANIEL GRUTTADARO has worked on numerous matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al, In re Salix Pharmaceuticals, Ltd., Securities Litigation, General Motors Securities Litigation, In re Bank of New York Mellon Corp. Forex Transactions Litigation and In re Merck & Co., Inc., Securities Litigation (VIOXX-related). Prior to joining the Firm in 2014, Mr. Gruttadaro was a staff attorney at Stull, Stull & Brody. EDUCATION: State University of New York at Geneseo, B.S., 2005. State University of New York at Buffalo Law School, J.D., cum laude, 2009. BAR ADMISSIONS: New York. 29 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 42 of 43 IBRAHIM HAMED currently works on Medina et al v. Clovis Oncology, Inc., et al, and Fresno County Employees’ Retirement Association v. comScore, Inc. Mr. Hamed also worked with BLB&G on behalf of co-counsel on In re MF Global Holdings Limited Securities Litigation. Prior to joining the Firm, Mr. Hamed was a contract attorney at several New York law firms. EDUCATION: University of Lagos, Nigeria, LL.B., 1992. Rivers State University, Nigeria, LL.M, 1998. BAR ADMISSIONS: New York. MONIQUE HARDIAL currently works on Medina et al v. Clovis Oncology, Inc., et al, and Fresno County Employees’ Retirement Association v. comScore, Inc. Ms. Hardial also worked with BLB&G on behalf of co-counsel on In re Salix Pharmaceuticals, Ltd., Securities Litigation. Prior to joining the Firm, Ms. Hardial was a contract attorney at several New York law firms. EDUCATION: St. John’s University, B.A., 2003. New York Law School, J.D., 2010. BAR ADMISSIONS: New York. FRANCE KACZANOWSKI has worked on various matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al and San Antonio Fire and Police Pension Fund et al v. Dole Food Company, Inc., et al. Prior to joining the Firm in 2016, Ms. Kaczanowski was a contract attorney at several New York firms. EDUCATION: University of Montreal, B.A., 1989. University of Quebec in Montreal, LL.B., 1993. Touro College Jacob D. Fuchsberg Law Center, LL.M., 1997. BAR ADMISSIONS: New York. MADELEINE SEVERIN has worked on various matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al and In re Salix Pharmaceuticals, Ltd., Securities Litigation. Prior to joining the Firm in 2016, Ms. Severin was a staff attorney at Dewey & LeBoeuf LLP. EDUCATION: Sarah Lawrence College, B.A., 1997. Benjamin N. Cardozo School of Law, J.D., 2004. BAR ADMISSIONS: New York. 30 Case 1:15-cv-02546-RM-MEH Document 170-7 Filed 09/21/17 USDC Colorado Page 43 of 43 JOANNA TARNAWSKI has worked on various matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al and San Antonio Fire and Police Pension Fund et al v. Dole Food Company, Inc., et al. Prior to joining the firm in 2016, Ms. Tarnawski was a contract attorney at several New York firms. Prior to attending law school, Ms. Tarnawski was a Research Scientist at the Institute for Basic Research in Developmental Disabilities. EDUCATION: University of Gdansk, M.S. Polish Academy of Sciences, Ph.D., 2003. Seton Hall University School of Law, J.D., 2008. BAR ADMISSIONS: New Jersey, New York. ALLAN TURISSE has worked on numerous matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al, In re Allergan, Inc., Proxy Violation Securities Litigation, 3-Sigma Value Financial Opportunities LP et al. v. Jones et al. (“CertusHoldings, Inc.”), In re Genworth Financial, Inc., Securities Litigation, In re Bank of New York Mellon Corp. Forex Transactions Litigation, In re State Street Corporation Securities Litigation, SMART Technologies, Inc., Shareholder Litigation, In re Citigroup, Inc., Bond Litigation and In re Washington Mutual, Inc., Securities Litigation. Prior to joining the Firm in 2010, Mr. Turisse was a contract attorney at Labaton Sucharow LLP and Milberg LLP and an associate at Cullen and Dykman LLP and Baxter & Smith P.C. EDUCATION: Fordham University, B.A, 1994. Brooklyn Law School, J.D., 2000. BAR ADMISSIONS: New York. GHAVRIE WALKER has worked on various matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al and San Antonio Fire and Police Pension Fund et al v. Dole Food Company, Inc., et al. Prior to joining the Firm in 2016, Mr. Walker was a contract attorney at several New York firms. EDUCATION: University of Pittsburgh, B.A and B.S, 2000. Thurgood Marshall School of Law, J.D., magna cum laude, 2003. BAR ADMISSIONS: New York. SAUNDRA YAKLIN has worked on numerous matters at BLB&G, including Medina et al v. Clovis Oncology, Inc., et al, In re Virtus Investment Partners, Inc., Securities Litigation, In re Washington Mutual, Inc., Securities Litigation and In re Bristol-Myers Squibb Co. Securities Litigation. Prior to joining the Firm, Ms. Yaklin was an associate at Reed Smith, LLP, and Assistant General Counsel at Exelon Corporation (PECO Energy Co.). EDUCATION: Western Michigan University, M.F.A, cum laude, 1991. University of Pennsylvania Law School, J.D., 1996. BAR ADMISSIONS: New York. 31 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 1 of 23 EXHIBIT 6B Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 2 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH SONNY P. MEDINA, et al., Plaintiffs, v. CLOVIS ONCOLOGY, INC., et al., Defendants. ______ DECLARATION OF LESTER R. HOOKER IN SUPPORT OF LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES FILED ON BEHALF OF SAXENA WHITE P.A. ______ Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 3 of 23 I, Lester R. Hooker, hereby declare under penalty of perjury as follows: 1. I am a Director of the law firm of Saxena White P.A., additional Plaintiffs’ Counsel in the above-captioned action (the “Action”).1 I submit this declaration in support of Lead Counsel’s application for an award of attorneys’ fees in connection with services rendered in the Action, as well as for reimbursement of Litigation Expenses incurred in connection with the Action. I have personal knowledge of the facts set forth herein and, if called upon, could and would testify thereto. 2. My firm served as Plaintiffs’ Counsel of record in the Action and represented named Plaintiff City of St. Petersburg Employees’ Retirement System (“St. Petersburg”). The tasks undertaken by my firm in the Action can be summarized as follows: researched and prepared complaints for filing; reviewed and assisted with the preparation and filing of memoranda offered in opposition to Defendants’ motions to dismiss filed in the Action; engaged in various aspects of discovery, including reviewing Plaintiffs’ initial disclosures and reviewing documents produced by Defendants; regularly discussed and assisted Lead Counsel with the prosecution of the claims brought; reviewed filings, correspondence and participated in counsel conference calls; advised clients of all possible settlement opportunities; and reviewed and assisted Lead Counsel with settlement documents. 3. The schedule attached hereto as Exhibit 1 is a detailed summary indicating the amount of time spent by attorneys and professional support staff employees of my firm who, from inception of the Action through and including September 19, 2017, billed five or more hours to the Action, and the lodestar calculation for those individuals based on my firm’s current 1 Unless otherwise defined herein, all capitalized terms have the meanings set forth in the Stipulation and Agreement of Settlement dated June 18, 2017 (the “Stipulation”) previously filed with the Court. See Dkt. No. 156-1. 1 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 4 of 23 billing rates. For personnel who are no longer employed by my firm, the lodestar calculation is based upon the billing rates for such personnel in his or her final year of employment by my firm. The schedule was prepared from contemporaneous daily time records regularly prepared and maintained by my firm. Time expended on this application for fees and reimbursement of expenses has not been included in this request. 4. The hourly rates for the attorneys and professional support staff in my firm included in Exhibit 1 are the same as the regular rates charged for their services in non- contingent matters and/or which have been accepted in other securities or shareholder litigation. 5. The total number of hours reflected in Exhibit 1 from inception through and including September 19, 2017, is 1,131.00. The total lodestar reflected in Exhibit 1 for that period is $580,037.50, consisting of $435,128.75 for attorneys’ time and $144,908.75 for professional support staff time. 6. My firm’s lodestar figures are based upon the firm’s billing rates, which rates do not include charges for expense items. Expense items are billed separately and such charges are not duplicated in my firm’s billing rates. 7. As detailed in Exhibit 2, my firm is seeking reimbursement for a total of $10,845.09 in Litigation Expenses incurred in connection with the prosecution of this Action from inception through and including September 19, 2017. 8. The Litigation Expenses reflected in Exhibit 2 are the actual incurred expenses or reflect “caps” based on the application of the following criteria: (a) Out-of-town travel – airfare is at coach rates, hotel charges per night are capped at $350 for large cities and $250 for small cities (the relevant cities and how they are categorized are reflected on Exhibit 2); meals are capped at $20 per person for breakfast, $25 per person for lunch, and $50 per person for dinner. (b) Internal Copying – Charged at $0.10 per page. 2 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 5 of 23 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 6 of 23 EXHIBIT 1 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH SAXENA WHITE P.A. TIME REPORT Inception through and including September 19, 2017 HOURLY NAME HOURS RATE LODESTAR Shareholders Maya Saxena, Esq. 60.00 $850.00 $51,000.00 Joseph E. White, III, Esq. 92.75 $850.00 $78,837.50 Director Lester R. Hooker, Esq. 213.75 $700.00 $149,625.00 Associates Dianne M. Anderson, Esq. 222.00 $450.00 $99,900.00 Jordan Utanski, Esq. 8.00 $365.00 $2,920.00 Kathryn W. Weidner, Esq. 29.00 $485.00 $14,065.00 Manuel A. Miranda, Esq. 65.00 $500.00 $32,500.00 Tyler A. Mamone, Esq. 16.75 $375.00 $6,281.25 Staff Attorneys Christian Shern, Esq. 294.00 $365.00 $107,310.00 Maurice Hinton, Esq. 17.50 $365.00 $6,387.50 Paralegals Gilda R. De La Cruz 76.25 $275.00 $20,968.75 Stefanie Leverette 6.50 $275.00 $1,787.50 Melanie Totten 5.50 $250.00 $1,375.00 Litigation Support Marc D. Grobler 24.00 $295.00 $7,080.00 TOTALS 1,131.00 $580,037.50 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 7 of 23 EXHIBIT 2 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH SAXENA WHITE P.A. EXPENSE REPORT Inception through and including September 19, 2017 CATEGORY AMOUNT On-Line Legal Research $1,360.63 Discovery/Document Management $4,075.50 Postage/Express Mail $503.76 Internal Copying $492.40 Filing Fees $422.00 Out of Town Travel* $3,990.80 TOTAL EXPENSES: $10,845.09 * Out of town travel includes hotels in the following “large” city capped at $350 per night: Denver, Colorado. Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 8 of 23 EXHIBIT 3 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH SAXENA WHITE P.A. FIRM RESUME Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 9 of 23 “A highly experienced group of lawyers with national reputations in large securities class actions...” – United States District Court Judge Alan S. Gold FIRM RESUME Boca Center, 5200 Town Center Circle, Suite 601, Boca Raton, FL 33486 ph 561.394.3399 fax 561.394.3382 www.saxenawhite.com Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 10 of 23 SAXENA WHITE Saxena White P.A. was founded in 2006 by Maya Saxena and Joseph White. After spending many years at one of the country’s largest class action law firms, we wanted to do business a different way. Our goal in forming the firm was to become big enough to handle prominent and complex litigation while remaining small enough to offer each client responsive, ethical, and personalized service. Today our firm’s capabilities rival those of our largest competitors. We obtain victories against major corporations represented by the nation’s top defense firms. We represent some of the largest pension funds in major securities fraud cases and have recovered over $2 billion on behalf of injured investors. We have succeeded in improving how corporations do business by requiring the implementation of significant corporate governance reforms. We have formed long-lasting relationships with our clients who know we are only a phone call away. However, the most important attribute of the firm, and the key to its continued success, is the people. Saxena White was built upon the quality, integrity, and camaraderie, of its people — attributes that continue to be its greatest legacy. What Makes us Different? • We are proud to be the only certified minority and female-owned firm in the securities litigation business representing institutional investors and have an ongoing commitment to diversity. • We take a selective approach to litigation, recommending only a few fraud cases per year and litigating them aggressively. • The securities fraud cases in which we have served as lead counsel are rarely dismissed due to our careful selection criteria. • We offer tailored portfolio monitoring services to our clients that reflect their individual philosophies toward litigation. • We emphasize community outreach and welcome opportunities to support our clients in their communities. 1 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 11 of 23 RECENT RECOVERIES In re Jefferies Group, Inc. Shareholders Litigation Saxena White served as co-lead counsel in a class action involving breach of fiduciary duty claims against the board of directors of Jefferies Group, Inc., in connection with that company’s merger with Leucadia National Corporation. In 2012, Jefferies entered into a merger agreement with Leucadia, a holding company which owned 28% of Jefferies and whose founders served on Jefferies’ board. Leucadia’s founders had a longstanding personal and professional relationship with Jefferies CEO, Richard Handler, which included lucrative joint ventures, personal investment advice and support, numerous financing transactions, and off-market stock purchases. As Leucadia’s founders neared retirement, Handler recognized an opportunity to merge his company with Leucadia and serve as CEO of the much larger, combined company. Negotiating in secret for months before informing the independent board members, Handler and Leucadia’s founders structured a deal that greatly benefitted Leucadia, to the detriment of Jefferies shareholders. After aggressively litigating this case for almost two years and defeating the defendants’ motion to dismiss and motion for summary judgment, the plaintiffs ultimately negotiated a settlement which required Leucadia to pay $70 million to class members, an outstanding result for former Jefferies shareholders. City Pension Fund for Firefighters and Police Officers in the City of Miami Beach v. Aracruz Celulose S.A., et al. One of our firm’s areas of expertise is litigating cases against foreign corporations. We recently obtained a significant victory against a Brazilian corporation, Aracruz Celulose. Accomplishing what no other law firm has ever done, Saxena White successfully served process on all three individual executives under the Inter-American Convention on Letters Rogatory. Our efforts included working closely with a Brazilian law firm to defeat the defendants’ challenges to service in both the Brazilian trial and appellate courts. After defeating three motions to dismiss filed by the foreign defendants, Saxena White began the massive and highly technical discovery process. Because the vast majority of the documents were in Portuguese, we hired native Brazilian attorneys to analyze and translate the tens of thousands of documents that were produced. These documents were also incredibly complex, dealing with five dozen separate financial derivative instruments. Simply valuing one instrument required approximately 50,000 calculations. We consulted closely with highly-respected industry and academic experts to gain an unprecedented understanding of the workings of these instruments and how they were valued. In the end, our hard work paid off. Saxena White successfully negotiated a $37.5 million settlement against Aracruz and its executives. This represents up to 50% of maximum provable damages – an outstanding result compared to the average national recovery of just 2.2% in cases of this magnitude. In re Bank of America Securities, Derivative and ERISA Litigation This derivative case arose out of Bank of America’s acquisition of Merrill Lynch during the height of the financial crisis in late 2008. After successfully defending the complaint’s core allegations against multiple motions to dismiss, Saxena White embarked on an extensive discovery process that included 31 depositions of senior BofA and Merrill executives and their attorneys, the review and analysis of 3 million pages of documents from BofA, Merrill and 2 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 12 of 23 multiple third parties, and close consultation with nationally recognized financial and economic experts. On January 11, 2013, the Court approved the Settlement, which includes a $62.5 million cash component and fundamental corporate governance reforms. The cash component alone ranks this Settlement among the top ten derivative settlements approved by federal courts. The extensive corporate governance reforms include the creation of a Board-level committee tasked with special oversight of mergers and acquisitions, which is aimed at preventing the alleged deficiencies surrounding the Merrill Lynch acquisition. The corporate governance reforms also include other components, including revisions to committee charters and director education requirements, which caused one noted scholar to observe that BofA is now at the forefront of corporate governance practices. In re Lehman Brothers Equity/Debt Securities Litigation After conducting an extensive investigation into Lehman and its executives, Saxena White was the first firm to file a complaint alleging violations of the federal securities laws. Subsequent events, including the largest bankruptcy filing in U.S. history, interjected unique challenges to prosecuting this case – not the least of which was that because Lehman itself was in bankruptcy, damaged shareholders could not recover damages from it. Despite these formidable obstacles, we continued to prosecute the case. Our efforts paid off. In the spring of 2012, the Court approved a $90 million partial settlement with Lehman’s senior executives and directors, and a $426 million settlement with several dozen underwriters of its securities. After nearly two more years of hard-fought litigation, we reached a $99 million settlement with E&Y, Lehman’s outside auditor, which was approved in the spring of 2014. The $99 million settlement ranks among the largest ever obtained from an outside auditor and is an outstanding recovery for damaged shareholders. FindWhat Investor Group v. FindWhat.com Saxena White also has significant appellate experience. In this Eleventh Circuit appeal, we won a precedent- setting opinion with the court holding that corporations and their executives who make fraudulent statements that prevent artificial inflation in a company’s stock price from dissipating are just as liable under the securities laws as those whose fraudulent statements introduce artificial inflation into the stock price in the first place. The Eleventh Circuit rejected the defendants’ position that the mere repetition of lies already transmitted to the market cannot damage investors. “We decline to erect a per se rule,” wrote the court, that “once a market is already misinformed about a particular truth, corporations are free to knowingly and intentionally reinforce material misconceptions by repeating falsehoods with impunity.” The Eleventh Circuit’s opinion is a significant win for aggrieved investors. It is the first such ruling from any of the Courts of Appeals in the nation, and will help defrauded investors seeking to recover damages due to fraud. Central Laborers’ Pension Fund v. Sirva Saxena White served as sole lead counsel in this case, which was litigated in the Northern District of Illinois (SIRVA is the parent company of North American Van Lines). After two and a half years of hard-fought litigation, an extensive investigation which involved conducting nearly 120 witness interviews, and the review of approximately 2.7 million documents produced by Defendants, a two day mediation was conducted at which we were able to reach a global $53.3 million settlement on behalf of the proposed shareholder class. In addition, Saxena White conducted a comprehensive review of SIRVA’s corporate governance procedures in an effort to ensure that securities fraud and 3 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 13 of 23 accounting violations were less likely to occur at the Company in the future. This careful and comprehensive review, which was spearheaded in conjunction with retained corporate governance experts, confirmed that SIRVA had made great strides in improving its governance standards over the course of our lawsuit. This was especially true in the area of its internal controls, which was a primary concern. The company formally recognized, in writing, that the lawsuit was one of the main reasons it reformed its governance standards, which confirmed that Saxena White was the key catalyst compelling SIRVA to recognize the need to change the way it does business. In addition, Saxena White was able to obtain even more governance improvements by convincing the Board to discard their plurality (also known as “cumulative”) standard for the election of their directors in favor of a modified majority standard (also known as the “Pfizer model”). This important change gives every SIRVA shareholder a greater voice, as well as improving director accountability, by forcing directors who do not receive a majority of the votes to tender their resignation for the Board’s consideration. Furthermore, SIRVA also agreed to strengthen its requirements regarding director attendance at shareholder meetings, which created more director accountability and increased shareholder input. Importantly, judges are unable to order these types of governance changes – it was only the negotiation and litigation pressure that we imposed upon the Company that allowed these changes to be implemented. In re Sadia S.A. Securities Litigation Sadia was a Brazilian company specializing in poultry and frozen goods that exported a majority of its products. Like Aracruz, it engaged in wildly speculative currency hedging while telling investors that its hedges were conservative and used to protect against sudden changes in currency fluctuation. The Plaintiffs filed a securities fraud complaint against Sadia and its senior executives and board members alleging violations of the federal securities laws. Because the individual Defendants in this case were also citizens of Brazil, they had to be served pursuant to the Inter-American Convention on Letters Rogatory. We were successful in serving the individuals, once again accomplishing what few other law firms have been able to do. We prevailed on the motion to dismiss and on the motion for class certification. Discovery was greatly complicated by the fact that the vast majority of the documents were in Portuguese, and the Court had no subpoena power to force witnesses to appear for deposition. In spite of this, we hired attorneys fluent in Portuguese to help us with the review, and we were able to depose one of the Company’s executives. After three mediations over the course of eight months, we were able to reach a $27 million cash settlement with the Defendants. In re Cox Radio, Inc. Shareholders Litigation Saxena White represented a Florida Police Pension Plan in an action against Cox Radio. The Pension Plan alleged that the initial price offered to public shareholders in the tender offer was unfair and did not properly value the assets of Cox Radio. After considerable discovery and expedited motion practice, we were instrumental in raising the price of the deal by nearly 30%, creating nearly $18 million in additional value for all public shareholders, including the Pension Plan. We also obtained the issuance of additional meaningful disclosures regarding the valuation process used in the deal. 4 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 14 of 23 In re Clear Channel Outdoor Holdings, Inc. Derivative Litigation On March 23, 2012, Saxena White, on behalf of an institutional investor client, filed a derivative action on behalf of nominal defendant Clear Channel Outdoor Holdings (“Outdoor” or the “Company”) against certain of the Company’s current and former directors; its majority stockholder, Clear Channel Communications, Inc. (“Clear Channel”); and other entities with respect to a 2009 agreement between the Company and Clear Channel. The derivative action brought forth claims that Outdoor’s directors breached their fiduciary duties by approving a $1 billion unsecured loan on highly unfavorable terms to Clear Channel. In response to the claims brought forth in the derivative action, the Company’s Board of Directors established a Special Litigation Committee (the “SLC”) and empowered it to investigate the matters and claims raised in the action. After an extensive evaluation and investigation of the derivative claims, the SLC initiated discussions with certain of the Defendants to explore the prospects of settlement. The SLC also initiated discussions with Plaintiffs in order to explore the prospects of settling the derivative action. After several months of working with the SLC, the parties to the derivative action reached an agreement in principle to resolve the action on terms that will provide substantial and meaningful benefits to the Company and its shareholders, including an agreement that would provide a dividend to shareholders in the amount of $200 million, as well as additional corporate governance reforms. The settlement agreement acknowledges that Plaintiffs’ involvement in the settlement negotiations was a factor in achieving the benefits received by Outdoor and its shareholders as a result of the settlement. 5 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 15 of 23 ATTORNEYS M aya S. Saxena Maya Saxena, co-founder of the firm, has been practicing exclusively in the securities litigation area for nearly twenty years, representing institutional investors in shareholder actions involving breaches of fiduciary duty and violations of the federal securities laws. Prior to forming Saxena White, Ms. Saxena served as the Managing Partner of the Florida office of one of the nation’s largest securities litigation firms, successfully directing numerous high profile securities cases. Ms. Saxena gained valuable trial experience before entering private practice while employed as an Assistant Attorney General in Ft. Lauderdale, Florida. During her time as an Assistant Attorney General, Ms. Saxena represented the State of Florida in civil cases at the appellate and trial level and prepared amicus curiae briefs in support of state policies at issue in state and federal courts. In addition, Ms. Saxena represented the Florida Highway Patrol and other law enforcement agencies in civil forfeiture trials. Ms. Saxena has been instrumental in recovering nearly a billion dollars on behalf of investor including cases against Sirva Inc. ($53.3 million recovery), Aracruz Celulose ($37.5 million settlement), and Sunbeam (settled with Arthur Andersen LLP for $110 million - one of the largest settlements ever with an accounting firm - and a $15 million personal contribution from former CEO Al Dunlap). Ms. Saxena is currently heading a committee of the National Association of Public Pension Attorneys on the risks and benefits of opting out of securities litigation and the Firm is finalizing a research project which weighs the pros and cons of filing direct actions after reviewing over 200 securities fraud cases filed over the past decade. She is a frequent speaker at educational forums involving public pension funds and advises public and multi- employer pension funds on how to address fraud-related investment losses. Ms. Saxena graduated from Syracuse University summa cum laude in 1993 with a dual degree in policy studies and economics, and graduated from Pepperdine University School of Law in 1996. Ms. Saxena is a member of the Florida Bar, and is admitted to practice before the U.S. District Courts for the Southern, Northern, and Middle Districts of Florida, as well as the Fifth and Eleventh Circuit Courts of Appeal. She was recently recognized in the South Florida Business Journal’s “Best of the Bar” as one of the top lawyers in South Florida, and has been selected to the Florida Super Lawyers list five years in a row. Ms. Saxena was also selected by her peers for inclusion in The Best Lawyers in America three years in a row. J oseph E. White III Joseph E. White, III, co-founder of Saxena White, has represented shareholders as lead counsel in major securities fraud class actions and merger litigation nationwide. He has represented lead and representative plaintiffs in front-page cases, including actions against Bank of America, Lehman Brothers, and Washington Mutual. He has successfully settled cases yielding over $1 billion against numerous publicly traded companies. Mr. White has developed an expertise in litigating precedent setting cases against foreign publicly traded companies, and recently settled two cases involving Brazilian corporations: In re Sadia S.A. Securities Litigation, ($27 million) and In re Aracruz Cellulous Sec. Litig, ($37.5 million). Mr. White has also helped achieve meaningful corporate governance and monetary recoveries for shareholders in merger related and derivative lawsuits. Most recently, in In re Clear Channel Outdoor Holdings Der. Litig., Mr. White’s efforts obtained repayment of a $200 million loan from Outdoor’s parent company which was then paid as a special dividend to Outdoor shareholders. 6 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 16 of 23 Mr. White regularly lectures on topics of interest to pension trustees, and advises municipal, state, and international institutional investors on instituting effective systems to monitor and prosecute securities and related litigation. Mr. White earned an undergraduate degree in Political Science from Tufts University before obtaining his Juris Doctor from Suffolk University School of Law. He is a member of the bar of the Commonwealth of Massachusetts, the State of Florida, and the State of New York, as well as the United States District Courts for the Southern, Middle, and Northern Districts of Florida, the Southern District of New York, and the District of Massachusetts. Mr. White is also a member of the United States Supreme Court and the United States Circuit Courts of Appeal for the First, Second, and Eleventh Circuits. S teven B. Singer Steven B. Singer is the Director of Litigation at Saxena White. Prior to joining the Firm, Mr. Singer was employed for more than twenty years at Bernstein Litowitz Berger & Grossmann LLP, a well-known plaintiffs’ firm, where he served as a senior partner and member of the firm’s management committee. During his career Mr. Singer has been the lead partner responsible for prosecuting many of the most significant and high-profile securities cases in the country, which collectively have recovered billions of dollars for investors. He led the litigation against Bank of America relating to its acquisition of Merrill Lynch, which resulted in a landmark settlement shortly before trial of $2.43 billion, one of the largest recoveries in history. Mr. Singer’s work on that case was the subject of extensive media coverage, including numerous articles published in The New York Times. He also has substantial trial experience, and was one of the lead trial lawyers on the WorldCom Securities Litigation, which settled for more than $6 billion after a four-week jury trial. In addition, Mr. Singer has been lead counsel in numerous other actions that have resulted in substantial settlements, including cases involving Citigroup Inc. ($730 million, representing the second largest recovery in a case brought on behalf of bond purchasers), Lucent Technologies ($675 million), Mills Corp. ($203 million), WellCare Health Plans ($200 million), Satyam Computer Services ($150 million), Biovail Corp. ($138 million), Bank of New York Mellon ($180 million) and JP Morgan Chase ($150 million). Mr. Singer has been consistently recognized by industry observers for his legal excellence and achievements. He has been selected by Lawdragon magazine as one of the “500 Leading Lawyers in America,” by Benchmark Plaintiff as a “litigation star”, and by the Legal 500 US guide as one of the “Leading Lawyers” in securities litigation – one of only seven plaintiffs’ attorneys so recognized. Mr. Singer graduated cum laude from Duke University in 1988, and from Northwestern University School of Law in 1991. He is an active member of the New York State and American Bar Associations. L ester R. Hooker Lester Hooker is a Director of Saxena White and serves as the firm’s Manager of Case Origination. Mr. Hooker is involved in all of Saxena White’s practice areas, including securities class action litigation, shareholder derivative actions, merger & acquisition litigation and class actions on behalf of consumers. During his tenure at Saxena White, Mr. Hooker has obtained substantial monetary recoveries and secured valuable corporate governance reforms on behalf of investors nationwide. 7 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 17 of 23 Mr. Hooker has served on the litigation teams that successfully prosecuted securities fraud class actions such as In re Jefferies Group, Inc. Shareholders Litigation, No. 8059-CB (Del. Chanc.) ($70 million settlement); Central Laborers’ Pension Fund v. Sirva, Inc., No. 04 C-7644 (N.D. Ill.) ($53.3 million settlement along with the adoption of important corporate governance reforms); City Pension Fund for Firefighters and Police Officers in the City of Miami Beach v. Aracruz Celulose S.A., et al., No. 08-23317 (S.D. Fla.) ($37.5 million settlement); In re Sadia, Inc. Securities Litigation, No. 08 Civ. 9528 (S.D.N.Y.) ($27 million settlement); and In re Tower Group International, Ltd. Securities Litigation, No. 13-cv-05852 (S.D.N.Y.) ($20.5 million settlement). Mr. Hooker is currently part of the litigation teams prosecuting prominent securities fraud class actions such as In re Wilmington Trust Securities Litigation (D. Del.), In re Iconix Brand Group, Inc. (S.D.N.Y.) and In re Rayonier Inc. Securities Litigation (M.D. Fla.). Mr. Hooker received a Bachelor of Arts degree with a major in English from the University of California at Berkeley. He earned his Juris Doctor from the University of San Diego School of Law, where he was awarded the Dean’s Outstanding Scholar Scholarship. Mr. Hooker received his Master’s degree in Business Administration with an emphasis in International Business from the University of San Diego School of Business, where he was awarded the Ahlers Center International Graduate Studies Scholarship. Mr. Hooker is a member of the State Bars of California and Florida, and is admitted to practice law in the United States District Courts for the Northern, Central, Southern and Eastern Districts of California, the Southern, Middle and Northern Districts of Florida, and the Western District of Michigan. Mr. Hooker is also admitted to practice law in the United States Courts of Appeal for the Ninth and the Eleventh Circuits. R honda C avagnaro Rhonda Cavagnaro is Special Counsel to Saxena White and a member of the firm’s Institutional Outreach group. She brings extensive expertise in many areas of employee benefits and pension administration with nearly two decades of public fund experience. Ms. Cavagnaro frequently speaks at industry conferences to further trustee education on fiduciary issues facing institutional investors. Ms. Cavagnaro began her legal career as an Assistant District Attorney (“ADA”) in New York City, where she was instrumental in creating the office’s General Crimes Unit, covering major crimes. As an ADA, Ms. Cavagnaro gained valuable trial experience and prosecuted hundreds of misdemeanor and felony cases. Ms. Cavagnaro started her career serving public pensions as Assistant General Counsel at the New York City Employees’ Retirement System (NYCERS). She then went on to become the first General Counsel to the New York City Police Pension Fund in February 2002, where she worked for over 11 years, providing advice to the Board of Trustees and 140 member staff with respect to benefits administration, fiduciary issues, employment issues, legislation, and transactional matters. Ms. Cavagnaro last served as the Assistant CEO for the Santa Barbara County Employee’s Retirement System (SBCERS), where under the general direction of the CEO and Board of Trustees, she oversaw the day to day operations of the System. Ms. Cavagnaro graduated with a Bachelor of Arts in Political Science and History from the University of Rochester, in Rochester, New York and earned her Juris Doctor from the California Western School of Law in San Diego, California. She is a member of the New York and New Jersey State Bars and is admitted in the Southern and Eastern Districts of New York, and is a current member of the National Association of Public Pension Attorneys (NAPPA). 8 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 18 of 23 J orge A. Amador Jorge A. Amador is Special Counsel to Saxena White and Director of Forensic Accounting. He has extensive experience in analyzing and litigating complex accounting cases. Mr. Amador is a Certified Public Accountant, and Certified in Financial Forensics. For over 15 years, Mr. Amador has prosecuted class actions and private actions on behalf of defrauded investors, particularly in the area of accounting fraud. Previously, he served as the Director of Forensic Accounting of one of the nation’s largest securities litigation firms, where he led a group of accounting professionals that investigated private securities lawsuits involving complex financial issues. He has participated in the litigation of highly complex accounting scandals involving some of America’s largest corporations including Enron, Tyco, Rite Aid, Countrywide, and Xerox. Prior to beginning his legal career, Mr. Amador was a practicing CPA where he directed audits of public companies and closely-held businesses, ranging from financial services to construction companies. In addition, he led a variety of engagements including due diligence in mergers and acquisitions, investigations related to white-collar crime, and consulted and/or testified in business disputes involving valuation issues and piercing of the corporate veil. Mr. Amador regularly lectures on a variety of accounting and legal topics. He was an adjunct lecturer at Baruch College where he taught undergraduate and graduate level courses in Financial Accounting, Financial Statement Analysis, and Forensic Accounting. He has also been a speaker and the co-chair of the Practising Law Institute’s Accounting for Lawyers two-day conference. Mr. Amador is currently a member of the California State Bar, admitted in the Northern District of California, and a member of the American Institute of Certified Public Accountants (AICPA). He graduated with a Bachelor of Science in Business Administration (Accounting) from Norwich University, in Northfield, Vermont and earned his Juris Doctor from Concord School of Law in Los Angeles, California. Mr. Amador is also fluent in Spanish. B randon G rzandziel Brandon Grzandziel focuses his practice on representing institutional investors in class action securities fraud and complex shareholder derivative cases. He is currently a member of the teams prosecuting cases against Wilmington Trust, Knight Capital, and the Bank of New York Mellon. Recently, Mr. Grzandziel has been a member of the teams securing significant recoveries for investors inCity Pension Fund v. Aracruz Celulose S.A. ($37.5 million recovery against a foreign defendant), In re Bank of America ($62.5 million settlement, which ranks among the top ten derivative settlements approved by the federal courts); and In re Sadia, S.A. Securities Litigation ($27 million settlement against foreign defendants). Mr. Grzandziel also has extensive appellate experience. As a member of the appellate team in FindWhat Investor Group v. FindWhat. com, he successfully secured important new precedent for the protection of investors. Mr. Grzandziel earned his Bachelor of Arts from Wake Forest University, where he graduated with Honors in 2005. In 2008, he received his Juris Doctor from the University of Miami School of Law. While at the University of Miami, Mr. Grzandziel was Executive Editor of the University of Miami Business Law Review. His article, “A New Argument for Fair Use Under the Digital Millennium Copyright Act,” was published in the Spring/Summer 2008 issue. Mr. Grzandziel is a member of the Florida Bar, the United States District Courts for the Southern and Middle Districts of Florida, and the United States Court of Appeals for the Second Circuit. 9 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 19 of 23 K enneth M . R ehns Kenneth M. Rehns represents institutional and individual investors in state and federal securities litigations nationwide. His work includes complex shareholder class-actions and individual actions, shareholder derivative actions and merger and proxy challenges. Prior to joining Saxena White, Mr. Rehns was a Senior Associate at Cohen Milstein Sellers & Toll PLLC, a well-known national securities litigation firm where he was as an active member of litigation teams that recovered nearly $2 billion on behalf of investors and achieved meaningful corporate reforms over the span of just eight years, including cases against Countrywide Financial Corp. ($500 million recovery), Royal Bank of Scotland (a $275 million recovery), Bear Stearns ($505 million recovery), Credit Suisse (a $110 million recovery), IntraLinks Holdings (a $14 million recovery) and Ally Securities, Citigroup, Deutsche Bank, Goldman Sachs and UBS Securities (a $335 million recovery). Mr. Rehns’ efforts have focused on all stages of litigation from case origination through pre-trial discovery and resolution. In particular, Mr. Rehns lead discovery efforts in a securities fraud action in which nearly two million pages were produced and 21 depositions were taken in just a short time period, which ultimately led to a successful settlement at the conclusion of fact discovery. Mr. Rehns has been regularly recognized for his legal abilities as well. Before moving to South Florida in mid-2017, Mr. Rehns was selected as a Rising Star in Securities Litigation by SuperLawyers Magazine in 2015, 2016, and 2017 in the New York Metro Area. Mr. Rehns earned his Bachelor of Business Administration degree from The George Washington University in 2005 with a concentration in Business, Economics and Public Policy, graduating with honors. He received his Juris Doctor from the Syracuse University College of Law in 2008, again graduating cum laude. During law school, Mr. Rehns served as an Associate Editor of the Syracuse University Journal of International Law and Commerce and a member of the Business and Community Development Law Clinic. Mr. Rehns is a member of the New York Bar, the New Jersey Bar and his admission to the Florida Bar is pending. He is admitted to the United States Court of Appeals for the Second Circuit and the United States District Courts for the Southern District of New York and the District of New Jersey. K yla G rant Kyla Grant has extensive experience in federal securities class action suits, securities enforcement, and complex commercial litigation in both federal and state courts. Before joining Saxena White, Ms. Grant practiced securities litigation at two top-ranked global law firms, Shearman & Sterling LLP and WilmerHale. Mrs. Grant graduated from the University of Hawai’i at Manoa with distinction in 2004, where she received a Bachelor of Arts degree, majoring in both English and Political Science. She received her Juris Doctor degree from the University of Virginia School of Law in 2008. While attending law school, she was a recipient of the Dean’s Scholarship, was appointed as a Dillard Fellow (a role in which she worked with first year students to improve their persuasive writing skills), and was an Articles Editor for the Virginia Journal of International Law. Ms. Grant is a member of the New York state bar and the United States District Court for the Southern District of New York. 10 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 20 of 23 A dam W arden Adam Warden focuses his practice on merger and acquisition litigation, shareholder derivative actions, and consumer class actions. During his tenure at Saxena White, Mr. Warden has served as a member of the litigation team on In re Jefferies Group, Inc. Shareholders Litigation, a case involving conflicts of interest arising from the merger of an investment bank and a holding company. The Jefferies case ultimately settled for $70 million, one of the largest settlements in the history of the Delaware Court of Chancery. He was also part of the litigation team on In re Lender Processing Services, Inc., Shareholder Litigation, where the defendants agreed to provide shareholders with significant corporate governance reforms and additional financial disclosures related to a proposed merger, which allowed the shareholders to make a more fully informed vote on the transaction. Further, Mr. Warden served on the litigation team in In re Sunoco Inc., where the defendants agreed to provide the public shareholders of Sunoco with additional material information about the proposed sale of the company, along with $100,000 in outplacement assistance services to local employees laid off within one year of the merger. Mr. Warden earned his Bachelor of Arts degree from Emory University in 2001 with a double major in Political Science and Psychology. He received his Juris Doctor from the University of Miami School of Law in 2004. During law school, Mr. Warden served as the Articles Editor of the University of Miami International and Comparative Law Review. His article, “The Battle in Seattle and Beyond: A Brief History of the Antiglobalization Movement” was published in the Review’s Winter 2004 issue. Mr. Warden is a member of the Florida Bar and the District of Columbia Bar. He is admitted to the United States District Courts for the Southern, Middle, and Northern Districts of Florida. J oshua S altzman Joshua Saltzman focuses his practice on securities and derivative litigation. Before joining Saxena White, Mr. Saltzman litigated investor class actions, opt-out securities actions and derivative actions at two boutique law firms in New York City. Mr. Saltzman received a Bachelor of Arts degree in English from Rutgers University in 2002, and a Juris Doctor degree from Brooklyn Law School in 2011, graduating magna cum laude. During law school, Mr. Saltzman served as an editor on the Brooklyn Law Review, where he published a note, and interned for the Hon. Victor Marrero in the United States District Court for the Southern District of New York. Mr. Saltzman is a member of the New York Bar, the United States District Court for the Southern District of New York, and the United States Court of Appeals for the Third Circuit. K athryn W eidner Kathryn Weidner is currently a member of the team prosecuting In re Wilmington Trust Securities Litigation. She has a strong background in e-discovery, providing project management and litigation support services to national organizations and Fortune 500 companies for large-scale corporate litigations, mergers, and acquisitions. Prior to joining Saxena White, Ms. Weidner developed valuable litigation skills as a full-time Certified Legal Intern for the Department of Homeland Security. Ms. Weidner earned a Bachelor of Business Administration from the University of Miami in 2003, with a major in Political Science. During college, she studied abroad at Oxford University, England as part of an Honors program 11 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 21 of 23 for law and politics. Ms. Weidner received her Juris Doctor from Nova Southeastern University in 2006, where she graduated cum laude with a concentration in International Law. While at Nova, her outstanding course work regularly earned Dean’s List and Provost Honor Roll, and she was honored with CALI Book Awards for Secured Transactions and Business Planning Law. Upon graduation, Ms. Weidner was the recipient of the Larry Kalevitch Scholarship Award for exhibiting the most promise in Business and Bankruptcy law. Ms. Weidner is a member of the Florida Bar, and the United States District Courts for the Southern and Northern Districts of Florida. D ianne A nderson Ms. Anderson is currently a member of the litigation teams prosecuting significant securities fraud class actions, such as In re Wilmington Trust Securities Litigation and Fernandez v. Knight Capital Group, Inc., et al. Before joining Saxena White, Ms. Anderson was a legal intern for both Jack in the Box, Inc. and Alliant Insurance Services, Inc. She worked extensively with their in-house departments, assisting in a variety of corporate, employment, and government regulation matters. Ms. Anderson was an intern for Jewish Family Service of San Diego and a legal intern for Housing Opportunities Collaborative, two San Diego pro bono legal organizations. Additionally, she served as a legal intern for the San Diego City Attorney’s Office with their Advisory Division, Public Works Section. Ms. Anderson graduated from the University of California, San Diego in 2008, where she received a Bachelor of Arts degree, majoring in Political Science with a minor in Law and Society. In 2012, she received her Juris Doctor from the University of San Diego School of Law. While attending law school, Ms. Anderson earned various scholarships and awards, including the San Diego La Raza Lawyers Association Scholarship and Frank E. and Dimitra F. Rogozienski Scholarship for outstanding academic performance in business law courses. Her exceptional law school academic achievements culminated in two CALI Excellence for the Future Awards for receiving the top grade in her Fall 2011 International Sports Law and Entertainment Law classes. Ms. Anderson is an alumnus of Phi Delta Phi, the international legal honor society and oldest legal organization in continuous existence in the United States. Ms. Anderson is a member of the Florida and California State Bars. She is admitted to practice before the United States District Courts for the Southern and Northern Districts of Florida and the Northern, Central, Southern, and Eastern Districts of California. M anuel M iranda Prior to joining Saxena White, Mr. Miranda gained valuable experience working as a law clerk for the Honorable Daniel R. Dominguez, United States District Judge for the District of Puerto Rico, and as an intern for the U.S. Department of Justice Civil Division. During his time as a law clerk, he researched and drafted opinions and orders, and participated and advised in civil and criminal hearings and conferences. Mr. Miranda graduated from Bentley University in May 2010, where he received a Bachelor of Science degree in Finance. He received his Juris Doctor from the American University Washington College of Law 2013. During law school, Mr. Miranda had the highest GPA for civil trial advocacy and was a member of the Mock Trial Honor Society. Mr. Miranda is a member of the Florida and New York Bars and is admitted to practice before the United States District Court for the District of Puerto Rico. He is fluent in Spanish. 12 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 22 of 23 PROFESSIONALS M arc G robler Director of Case Analysis Marc Grobler joined Saxena White as the Director of Case Analysis in 2012. Prior to joining the firm, he served as the Senior Business Analyst in the New York office of a leading securities class action law firm and has worked within the securities litigation industry for over ten years. Mr. Grobler plays a key role in new case development including performing in-depth investigations into potential securities fraud class actions, derivative, and other corporate governance related actions. By using a broad spectrum of financial and legal industry research tools, Mr. Grobler analyzes information that helps support the theories behind our litigation efforts. Mr. Grobler is also responsible for protecting the financial interests of our clients by managing the firm’s client portfolio monitoring services and performing complex loss and damage calculations. Mr. Grobler graduated cum laude from Tulane University’s A.B. Freeman School of Business in 1997, with a concentration in Accounting. With fifteen years of overall professional financial experience, Mr. Grobler started his career in New York at PricewaterhouseCoopers performing audit within the Financial Services Group (audit clients included Prudential Financial and Wasserstein Perella). Prior to entering the securities litigation industry, Mr. Grobler worked within the asset management group at Goldman Sachs where he was responsible for the financial reporting of a group of billion dollar fund-of-fund investments. Mr. Grobler also previously worked at UBS Warburg as a Financial Analyst in the investment banking division that focused on financial institutions such as banks, asset managers, insurance and start-up financial technology companies. S tefanie L everette Manager of Client Services Stefanie Leverette is Saxena White’s Manager of Client Services. In this role, she manages the firm’s client outreach and developmental programs. She also oversees the firm’s portfolio monitoring program services to institutional clients, the majority of which are public pension funds, state retirement systems, and Taft-Hartley Funds. Since joining Saxena White in 2008, Ms. Leverette has coordinated the firm’s presence at industry conferences attended by representatives of various institutional clients throughout the United States. In addition, Ms. Leverette is responsible for the timely dissemination of all reports, notifications, and all new cases and class action settlements that may have an impact to an investment portfolio. Ms. Leverette’s main role is acting as the liaison between institutional clients and the firm. Ms. Leverette earned her undergraduate degree in Business Administration with a focus on Management from the University of Central Florida, and her Master’s degree in Business Administration with a focus on International Business at Florida Atlantic University. C huck J eroloman Client Services Mr. Jeroloman is Saxena White’s Director of Marketing for Public Pension and Taft-Hartley Funds. He is currently a member of the FPPTA Advisory board and exhibits at various conferences nationwide. Mr. Jeroloman regularly 13 Case 1:15-cv-02546-RM-MEH Document 170-8 Filed 09/21/17 USDC Colorado Page 23 of 23 speaks at the FPPTA Trustee School, American Alliance conferences, and other national pension conferences. Mr. Jeroloman has authored several articles about pension benefits and issues. He is also an active board member for Our Fallen, a national non-profit organization which raises money for families of police officers who died in the line of duty. Prior to joining Saxena White in 2010, Mr. Jeroloman served as a police officer for the Delray Beach Police Department for 23 years. He was a homicide/robbery detective, street level narcotics investigator, field training officer, and a member of the S.W.A.T. and Terrorists Task Force. During this time, Mr. Jeroloman spent five years as a deputy sheriff with the Rockland County Sheriff’s Department. He was also a member of the Joint Terrorists Task Force with the FBI, NYPD, and Rockland County Sheriff’s Department. Mr. Jeroloman served on the Delray Beach Police and Fire Pension Board for 14 years and was a Chairman during his last five years. Additionally, he is a past member of the Delray Beach Fire and Police Voluntary Employees Beneficiary Association (VEBA) Board. Mr. Jeroloman also served 23 years as the President and union representative for the Fraternal Order of Police (FOP) and Police Benevolent Association (PBA), where he was the union treasurer. Mr. Jeroloman earned his Associate Degree in Criminal Justice. He was an associate scout with the Anaheim Angels and Texas Rangers, and volunteered as a youth baseball coach for high school levels. He also served as a Director Vice President for the Okeeheelee Athletic Association. Mr. Jeroloman started and was Chairman to both the Wellington High Baseball Booster Association and Palm Beach Central Baseball Booster Association. 14 Case 1:15-cv-02546-RM-MEH Document 170-9 Filed 09/21/17 USDC Colorado Page 1 of 8 EXHIBIT 6C Case 1:15-cv-02546-RM-MEH Document 170-9 Filed 09/21/17 USDC Colorado Page 2 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH SONNY P. MEDINA, et al., Plaintiffs, v. CLOVIS ONCOLOGY, INC., et al., Defendants. ______ DECLARATION OF GENE KLEINHENDLER IN SUPPORT OF LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES FILED ON BEHALF OF GROSS, KLEINHENDLER, HODAK, HALEVY, GREENBERG & CO. ______Case 1:15-cv-02546-RM-MEH Document 170-9 Filed 09/21/17 USDC Colorado Page 3 of 8 I, Gene Kleinhendler, hereby declare under penalty of perjury as follows: 1. I am a Founding Partner of the law firm of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co., counsel for Lead Plaintiff M.Arkin (1999) LTD and Arkin Communications LTD (“Lead Plaintiff” or “Arkin Group”).1 I submit this declaration in support of Lead Counsel’s application for an award of attorneys’ fees in connection with services rendered in the in the above-captioned action (the “Action”), as well as for reimbursement of Litigation Expenses incurred in connection with the Action. I have personal knowledge of the facts set forth herein and, if called upon, could and would testify thereto. 2. My firm, which has its primary office at One Azrieli Center, Tel Aviv 6701101, Israel, has a long standing relationship with the Arkin Group. In connection with this case, the tasks undertaken by my firm included an initial evaluation of the strengths of the case, working closely with Lead Plaintiff and Lead Counsel regarding, among other matters, gather information relevant to Arkin Holdings’ trading in Clovis stock, overall case strategy, assessment and evaluation of the duties and obligations of serving as a Lead Plaintiff, and generally facilitating communications between Lead Counsel and Lead Plaintiff. I regularly reviewed the pleadings and other Court filings made by Lead Plaintiff. I also played a significant role in connection with Settlement discussions, and made several visits to New York to conduct in-person meetings with Lead Counsel. I was present at the May 23, 2017 meeting held in Tel Aviv by and among the principals of Arkin Group and Clovis, as well as Lead Counsel and attorneys from Defendants. 1 Unless otherwise defined herein, all capitalized terms have the meanings set forth in the Stipulation and Agreement of Settlement dated June 18, 2017 (the “Stipulation”) previously filed with the Court. See Dkt. No. 156-1. 2 Case 1:15-cv-02546-RM-MEH Document 170-9 Filed 09/21/17 USDC Colorado Page 4 of 8 3. The schedule attached hereto as Exhibit 1 is a summary of the amount of time I spent on this Action from inception through and including September 19, 2017 and the lodestar calculation based on my current billing rate. The schedule was prepared from contemporaneous daily time records regularly prepared and maintained by my firm. Time expended on this application for fees and reimbursement of expenses has not been included in this request. 4. The hourly rate included in Exhibit 1 is the same as the regular rates charged for their services in non-contingent matters and/or which have been accepted in other securities or shareholder litigation. 5. The total number of hours reflected in Exhibit 1 from inception through and including September 19, 2017, is 320. The total lodestar reflected in Exhibit 1 for that period is $160,000. 6. The lodestar figure set forth in Exhibit 1 is based upon the firm’s billing rates, which rates do not include charges for expense items. Expense items are billed separately and such charges are not duplicated in the firm’s billing rates. 7. As detailed in Exhibit 2, my firm is seeking reimbursement for a total of $13,645 in Litigation Expenses incurred in connection with the prosecution of this Action from inception through and including September 19, 2017. 8. The Litigation Expenses reflected in Exhibit 2 are the actual incurred expenses or reflect “caps” based on the application of the following criteria: (a) Out-of-town travel – airfare is at coach rates, hotel charges per night are capped at $350; meals are capped at $20 per person for breakfast, $25 per person for lunch, and $50 per person for dinner. 3 Case 1:15-cv-02546-RM-MEH Document 170-9 Filed 09/21/17 USDC Colorado Page 5 of 8 Case 1:15-cv-02546-RM-MEH Document 170-9 Filed 09/21/17 USDC Colorado Page 6 of 8 EXHIBIT 1 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH GROSS, KLEINHENDLER, HODAK, HALEVY, GREENBERG & CO. TIME REPORT Inception through and including September 19, 2017 HOURLY NAME HOURS RATE LODESTAR Partners Gene Kleinhendler 320 $500 $160,000 TOTALS 320 $160,000 Case 1:15-cv-02546-RM-MEH Document 170-9 Filed 09/21/17 USDC Colorado Page 7 of 8 EXHIBIT 2 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH GROSS, KLEINHENDLER, HODAK, HALEVY, GREENBERG & CO. EXPENSE REPORT Inception through and including September 19, 2017 CATEGORY AMOUNT Postage & Express Mail $45.00 Out of Town Travel* $13,600.00 TOTAL EXPENSES: $13,645.00 * Out of town travel includes hotels in the following “large” cities capped at $350 per night: New York, New York; Denver, Colorado. Case 1:15-cv-02546-RM-MEH Document 170-9 Filed 09/21/17 USDC Colorado Page 8 of 8 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 1 of 33 EXHIBIT 6D Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 2 of 33 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:15-cv-02546-RM-MEH Consolidated with Civil Action Nos. 15-cv-02547-RM-MEH, 15-cv-02697-RM-MEH, and 16-cv-00459-RM-MEH SONNY P. MEDINA, et al., Plaintiffs, v. CLOVIS ONCOLOGY, INC., et al., Defendants. ______ DECLARATION OF KATHRYN A. REILLY IN SUPPORT OF LEAD COUNSEL’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES FILED ON BEHALF OF WHEELER TRIGG O’DONNELL LLP ______ Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 3 of 33 I, Kathryn A. Reilly, hereby declare under penalty of perjury as follows: 1. I am a partner with the law firm of Wheeler Trigg O’Donnell LLP (“WTO”), Colorado counsel for Lead Plaintiff M.Arkin (1999) LTD and Arkin Communications LTD (“Lead Plaintiff”) in the above-captioned action (the “Action”).1 I submit this declaration in support of Lead Counsel’s application for an award of attorneys’ fees in connection with services rendered in the Action. I have personal knowledge of the facts set forth herein and, if called upon, could and would testify thereto. 2. My firm actively participated in the prosecution of the claims on behalf of Lead Plaintiff and the Settlement Class. In particular, my firm performed work on behalf of Lead Plaintiff and the Settlement Class at the direction and under the supervision of the Court- appointed Lead Counsel, Bernstein Litowitz Berger & Grossmann LLP. My firm participated in, among other tasks, reviewing and commenting upon draft complaints, including ensuring compliance with the District of Colorado local rules; assisting with briefing on the motion for appointment of lead plaintiff; reviewing and providing feedback on drafts of the oppositions to Defendants’ motions to dismiss; attending all in-person and telephonic court hearings; and reviewing the scope and terms of the proposed settlement and providing feedback on the motion for preliminary approval. 3. The schedule attached hereto as Exhibit 1 is a detailed summary indicating the amount of time spent by attorneys of my firm who, from inception of the Action through and including September 21, 2017, billed five or more hours to the Action, and the lodestar calculation for those individuals based on my firm’s current billing rates. The schedule was 1 Unless otherwise defined herein, all capitalized terms have the meanings set forth in the Stipulation and Agreement of Settlement dated June 18, 2017 (the “Stipulation”) previously filed with the Court. See Dkt. No. 156-1. 2 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 4 of 33 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 5 of 33 EXHIBIT 1 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH WHEELER TRIGG O’DONNELL LLP TIME REPORT Inception through and including September 21, 2017 HOURLY NAME HOURS RATE LODESTAR Partners Kathryn A. Reilly 33.50 $450.00 $15,075.00 Michael L. O’Donnell 6.90 $630.00 $4,347.00 TOTALS 40.40 $19,422.00 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 6 of 33 EXHIBIT 2 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH WHEELER TRIGG O’DONNELL LLP FIRM RESUME 5 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 7 of 33 Exhibit 2: Firm Resume and Attorney Biographies MICHAEL L. O'DONNELL, PARTNER & CHAIRMAN KATHRYN A. REILLY, PARTNER SEPTEMBER 21, 2017 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 8 of 33 “No firm gets better results year after year.” –Client comment to U.S. News - Best Lawyers Exhibit 2: Firm Resume and Attorney Biographies MICHAEL L. O'DONNELL, PARTNER & CHAIRMAN KATHRYN A. REILLY, PARTNER SEPTEMBER 21, 2017 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 9 of 33 TABLE OF CONTENTS FIRM OVERVIEW ...... 4 Client Focus ...... 5 Representative Clients ...... 6 Testimonials ...... 7 Recognition for WTO ...... 8 National Trial Practice ...... 9 Can Your Law Firm Say That? ...... 10 Practices & Industries ...... 11 ATTORNEY BIOGRAPHIES ...... 12 Michael L. O'Donnell ...... 13 Kathryn A. Reilly...... 22 FOR MORE INFORMATION ...... 27 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 10 of 33 FIRM OVERVIEW "Lawyering at its essence." –The National Law Journal Midsize Hot List 2016 TRIAL TESTED. Denver-based Wheeler Trigg O'Donnell . Acting coaches help our lawyers hone courtroom represents clients in courtrooms across the country. Since delivery skills, and trial presentation specialists assist in 2004, our teams have won 134 trial verdicts and complex telling client stories with visuals and demonstratives that arbitrations, and 72 significant appeals. engage and persuade judges and juries. . WTO's 100 attorneys handle trials, appeals, . We utilize a range alternative fee arrangements based investigations, and related areas of complex, civil on clients' needs and we welcome discussion of creative litigation. structures. . We offer top-market trial experience and results at mid- . WTO is widely recognized for leading the development market rates. of case law on punitive damages, federal preemption, and the use and admissibility of expert evidence. . Our clients include Fortune 500 and international companies, high net worth individuals, and other entities . 84% of WTO associates took active courtroom roles in with brands and reputations to protect. 2016. 79% have served judicial clerkships. . WTO's trial practice emphasizes "difficult cases in difficult places" and winning defense strategies in notorious plaintiffs' jurisdictions. 4 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 11 of 33 CLIENT FOCUS "Unequivocally superior service with the highest level of ethics and professionalism." –Client comment to Benchmark Litigation CLIENTS' INTERESTS FIRST. Telling you what your goals and priorities should be is simply not our approach. You set the agenda. We help you evaluate the risk of litigation strategies, and then implement them as desired. RESPONSIVE CLIENT TEAMS. Our client teams deliver exceptionally responsive and efficient service. When you express a need or preference, our lawyers are poised to act on it—no lengthy practice group or administrative meetings required. BENCH STRENGTH. With 100 full-time litigators and trial lawyers, and contract attorneys added as needed, we can staff up labor-intensive projects quickly with qualified personnel to meet your needs, even as those needs change on short notice. TEAMWORK. We routinely collaborate with lawyers from other firms, including some of the nation's most prestigious law firms. We approach these relationships with our clients' interests at heart and are equally comfortable serving as coordinating, trial, regional, local, or other special-purpose counsel. EFFICIENCY. Our client teams run lean. A partner manages the least number of personnel required for the matter. We maintain a 1:1 partner-to-paralegal ratio to assign tasks to the most cost-effective level, and our dedicated research and ediscovery staff counsel free associates to perform more complex legal work. CREATIVITY & FLEXIBILITY. We cultivate trust and communication with our clients so that together we can perform and deliver positive results on predictable budgets. In 2012, WTO and our client Whirlpool won an Association of Corporate Counsel Value Champions Award for our combined creative and value-based case management. 5 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 12 of 33 REPRESENTATIVE CLIENTS 6 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 13 of 33 TESTIMONIALS 7 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 14 of 33 RECOGNITION FOR WTO The National Law Journal 2016 U.S. News - Best Lawyers 2016 Midsize Hot List Ranked nationwide for environmental Only 20 firms in the nation made the and labor and employment litigation. list. WTO is recognized for the Ranked in Tier 1 in Colorado for 11 second consecutive year. litigation practice areas. Chambers USA 2017 Ranked among the top 15 firms Minority Corporate Counsel nationwide for product liability and Association mass torts litigation. Five WTO Named George B. Vashon lawyers are ranked in this area "Innovator" Award Winner in 2014 for nationwide. the firm's diversity efforts, specifically Band 1 in Colorado for commercial the Women in Leadership Lecture litigation, alongside only one other Series (WILLS). firm. Eight WTO lawyers are ranked Vault Top 5 Midsize Law Firm for commercial litigation in Colorado, Recognized as a 2016 Top 5 Midsize twice as many as the next closest Law Firm to Work For. Ranked fifth firms in the state. overall in U.S. based on Vault’s Band 3 in Colorado for labor and annual Law Firm Associate Survey. employment. Benchmark Litigation 2017 Association of Corporate Counsel Colorado Firm of the Year Value Champion Recognized for the scope and Selected with long-time client significance of litigation matters Whirlpool Corp. as 2012 ACC Value handled in 2016. Champions for creativity and value- based legal management in fee arrangements. 8 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 15 of 33 NATIONAL TRIAL PRACTICE "Absolutely excellent – they are not afraid to walk into a courtroom and try a case." –Client comment to The Legal 500 US Wheeler Trigg O’Donnell Recent Matters ADMITTED in 22 states and the District of Columbia TRIED cases to verdict in 45 states, plus D.C. APPEARED in over two-thirds of U.S. District Courts 9 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 16 of 33 CAN YOUR LAW FIRM SAY THAT? Criteria WTO Other Firm WTO Advantage Trial Verdicts ? Won 91 trial verdicts and 43 arbitrations nationwide since 2004. Defeated class certification over 175 times, decertified several more classes, and tried 7 Class Action Experience ? certified class actions to juries. 7 Fellows of the American College of Trial Lawyers. (Stated differently: 1 of 6 WTO partners is American College ? an ACTL Fellow.) Chambers USA: Tied for most "Notable Practitioners" (5) in the U.S. for Nationwide Product Nation-leading Rankings ? Liability & Mass Torts Defense. WTO and Whirlpool recognized for creativity and value-based legal management in fee ACC Value Champion ? arrangements in 2012. Top-market Experience at WTO stands alongside the most prestigious firms in the country—at a fraction of the cost. Mid-market Rates ? Staffing: 1 partner, 1 associate, and 1 paralegal until more hands are needed. We do not over- Efficiency ? lawyer and then look for work to do. According to NALP 2016 data, WTO exceeds national diversity trends among large firms. Diverse Attorneys ? 20% of WTO equity partners are women; 40% of firm management are women; 7% of equity partners are minorities; and 5% of equity partners are minority women. Minority Corporate Counsel Recognized as a national leader for innovation in diversity efforts with the 2014 MCCA Vashon Innovator Award ? Innovator Award. 84% of associates took active courtroom roles in 2016. 79% have served judicial clerkships, Experienced Associates ? primarily in federal courts or state supreme courts. WTO delivers a truly unique combination of experience and value All of the Above x to clients. 10 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 17 of 33 PRACTICES & INDUSTRIES "This is the firm to hire in the highest exposure cases requiring experienced trial counsel." –Client comment to U.S. News - Best Lawyers LITIGATION PRACTICE AREAS Antitrust & Competition Environmental Litigation Legal Professional Liability Appellate Franchise & Distribution Mass Torts Class Actions Healthcare Professional Liability Personal Injury Defense Commercial Litigation Intellectual Property Product Liability Employment Investigations & Compliance Professional Liability REPRESENTATIVE INDUSTRIES Asbestos Financial Services Natural Resources Automotive Healthcare Oil & Gas Construction & Engineering Insurance Professional Services Consumer Products & Services Legal Services Real Estate Energy Medical Devices & Pharmaceuticals Telecommunications 11 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 18 of 33 ATTORNEY BIOGRAPHIES 12 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 19 of 33 MICHAEL L. O'DONNELL Partner & Chairman [email protected] | P 303.244.1850 | F 303.244.1879 Michael O'Donnell has appeared as lead defense counsel in 40 states for product liability, professional liability, class and mass actions, and complex commercial matters for many of the nation's leading companies. Mike is a Fellow and former Regent of the American College of Trial Lawyers. His colleagues and peers have voted him the #1 lawyer in Colorado Super Lawyers for five consecutive years. EDUCATION HIGHLIGHTS University of Denver Sturm College of Law, . Won a complete defense jury verdict for Michelin in an $80 million, nine-week trial J.D., 1979 in Florida. Intern to the Honorable Sherman Finesilver, United States District Court for the District of . Represented Denver International Airport in high-profile claims involving bid rigging Colorado and unfair competition relating to a $50 million terminal concessions contract. University of Notre Dame, B.A., 1976, Recovered $11.2 million in a paid-out insurance award and attorneys' fees for an English . insurance company facing fraudulent claims. GOVERNMENT SERVICE . Represented Denver International Airport against the Regional Transportation Member, Federal Judicial Evaluation District in a dispute over cost sharing agreements involving a new rail line serving Committee for U. S. Senator Cory Gardner the airport. ADMISSIONS . Won unanimous defense verdict for Michelin in $20 million Arizona tread Colorado separation lawsuit. Wyoming INDUSTRIES PRACTICE AREAS . Professional Services . Class Actions . Asbestos . Mass Torts . Financial Services . Product Liability . Telecommunications . Commercial Litigation . Healthcare . Professional Liability . Construction & Engineering . Personal Injury Defense . Medical Devices & Pharmaceuticals . Toxic Torts . Legal Professional Liability 13 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 20 of 33 MICHAEL L. O'DONNELL BIOGRAPHY as one of 10 "Lawyers of the Decade" and "Lawyer of the Year" in Colorado. In a survey conducted by Law Week Michael O'Donnell is a founder and the chairman of Wheeler Colorado in 2010, Mike was selected by his peers as the Trigg O'Donnell. His national litigation practice focuses on "Best Trial Lawyer" in Colorado complex civil litigation involving product liability, professional liability, torts, class actions and mass actions, commercial In 2012, Mike was honored with the University of Denver litigation, and bet-the-company matters. Mike has appeared Law Outstanding Alumni Award which is presented each as lead counsel in state and federal courts in 40 states, and year to one DU Law graduate who has demonstrated he has served as national trial and resolution counsel for professional achievement and humanitarian service to the numerous highly visible companies, including General community. In 2008, he became only the seventh defense Electric, Michelin North America, Advanced Bionics, lawyer to receive an award from the Colorado Trial Lawyers McKesson, Boston Scientific, Guidant, Skyjack, and Pfizer. Association for the highest standards of competency, ethics, and professionalism. A Fellow of the American College of Trial Lawyers, Mike served as Regent for the 10th Circuit from 2012 to 2016. He CASES also served as chairman of the ACTL's Colorado chapter. He is a Fellow of the International Academy of Trial Lawyers . Dukes v. Michelin (Nineteenth Jud. Cir. St. Lucie Cnty. and member of the American Board of Trial Advocates. Mike FL 2016) - Won a complete defense jury verdict for is a former chairman of The Network of Trial Law Firms, a Michelin following a nine-week trial in Florida in which 7,000-member lawyer organization that offers continuing the plaintiffs requested damages in excess of $80 legal education programs on litigation topics. million. WTO attorneys demonstrated that Michelin's tire was not defective, was well-designed and well- Chambers USA ranks Mike nationwide for product liability manufactured, and had been previously damaged during and mass torts defense. Colorado Super Lawyers has its service life. The jury found Michelin not liable for the ranked Mike the number-one lawyer in Colorado for five accident. years in a row (2013-2017) based on independent research and a survey of his peers--a feat no other Colorado lawyer . Represented Denver International Airport in high-profile has accomplished--and he has been named to its top 10 list claims involving bid rigging and unfair competition every year since 2009. Best Lawyers lists Mike in seven relating to a $50 million terminal concessions contract. litigation practice areas and named him "Denver Legal Malpractice Lawyer of the Year" for 2017 and 2011, and "Denver Product Liability Litigation Lawyer of the Year" for 2013 and 2012. In 2011, Law Week Colorado selected Mike 14 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 21 of 33 MICHAEL L. O'DONNELL . Auto-Owners v. Summit Park, 2016 WL 1321507 (D. . Represent a cochlear implant manufacturer as national Colo. 2016) - Won order vacating a $10 million property coordinating and trial counsel for the defense of product insurance award and disqualifying a national property liability lawsuits involving a Class III medical device used appraiser, and subsequently won sanctions against the to treat hearing loss. policyholders and their lawyers, and won 99.7% of Represented a Fortune 500 company as national trial attorneys' fees and costs. . counsel for hundreds of product liability claims and . Represented Denver International Airport against the lawsuits involving a Class III medical device used to treat Regional Transportation District in a dispute over cost abdominal aortic aneurysms. sharing agreements involving a new rail line serving the Obtained summary judgment from a Texas district court airport. . in a case alleging WTO's client, a life insurance . Allen v. Michelin (Ariz. Sup. Ct. Mohave Cnty. 2015) - company, committed fraud and violated consumer Won a unanimous defense verdict for Michelin North protection laws. America following a three-week trial in Arizona state Obtained a Rule 12(b) dismissal of a complaint filed in court. The plaintiff demanded $20 million in actual and . federal court in Missouri against a large international law punitive damages, claiming our client's tire separated firm. The plaintiffs ultimately obtained an eight-figure jury and caused a rollover accident that resulted in severe verdict against the remaining defendants in the case. injuries. Michelin was found not at fault on all claims. Secured a ruling from a California appeals court Won a complete defense jury verdict in federal court for . . affirming the preemption of claims brought against a large international law firm accused of malpractice. WTO's client for its abdominal stent medical device. The plaintiff hired WTO's client to handle a complex patent infringement matter, then sued the firm for . Obtained a Rule 12(b) dismissal of a malpractice case negligence and breach of fiduciary duty. against five lawyers. The opposing party appealed the dismissal and, while the appeal was pending, the case Represent a global healthcare company in multidistrict . settled with no payments being made by WTO's clients. litigation involving over 12,000 claims relating to dialysis products. . Represent a Fortune 10 company as national resolution counsel in hundreds of cases involving a medical imaging contrast agent alleged to induce a rare disease. 15 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 22 of 33 MICHAEL L. O'DONNELL . Obtained summary judgment for a law firm client and an TEACHING POSITIONS award of attorneys' fees in a legal malpractice case in BAR-BRI Course on Professional Responsibility which the plaintiff sought $7 million in damages. The National Institute for Trial Advocacy plaintiff appealed the award of attorneys' fees, and the University of Denver Sturm College of Law parties settled the appeal with payments being made to Guest Lecturer the client. University of Colorado at Denver, MBA Program Guest Lecturer . Obtained partial summary judgment in federal court on Numerous CLE Presentations behalf of a large national law firm that had been sued for malpractice, aiding and abetting, conspiracy, and REPRESENTATIVE CLIENTS violations of RICO. The ruling reduced the damage claim Advanced Bionics - National Trial Counsel from over $150 million to less than $2 million and paved Boston Scientific - National Trial Counsel the way for a favorable settlement of the case. City & County of Denver . Moore v. Bertuzzi - Successfully defended the CoorsTek Vancouver Canucks NHL organization in a lawsuit Crown Equipment - Regional Trial Counsel brought by Colorado Avalanche player Steven Moore as Denver International Airport a result of severe injuries he sustained during a hockey Dish Network game. WTO obtained dismissal of the lawsuit on the Fresenius - National Counsel grounds of lack of personal jurisdiction and forum non General Electric - National Resolution and Trial Counsel conveniens, and also obtained a six-figure award of Great-West Life & Annuity Insurance attorney's fees and costs in favor of the Canucks Guidant - National Trial Counsel organization and against Mr. Moore. High net-worth individuals Lawyers and Law Firms . Awarded complete summary judgment in a legal Level 3 Communications malpractice case one week before a multi-week trial was Michelin North America, Inc. - National Trial & Resolution scheduled to begin. The plaintiff had sought over $5 Counsel million in damages. . Vastano et al. v. AT&T Wireless - Defended AT&T BAR & COURT ADMISSIONS Wireless in a nationwide class action in Colorado state Colorado court involving the billing of wireless air time. U.S. Court of Appeals for the Tenth Circuit U.S. District Court for the Central District of Illinois 16 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 23 of 33 MICHAEL L. O'DONNELL U.S. District Court for the District of Colorado Member U.S. District Court for the District of Wyoming Chambers USA U.S. Supreme Court Product Liability - Nationwide, 2015-2017 Wyoming Commercial Litigation - Colorado, 2009-2017 Law Week Colorado LEGAL MEMBERSHIPS, ACTIVITIES & HONORS Lawyer of the Year, 2016 Fellow, American College of Trial Lawyers "People's Choice" Civil Litigator, 2016 Regent, 2012-2016 "Barrister's Best" Best Overall Litigator, 2015 Regent Liaison for ACTL Task Force on Discovery and "People's Choice" Class Action Defense Lawyer, 2014 Civil Justice, "Barrister's Best" Best Class Action/Mass Tort Defense 2013-2015 Lawyer, 2012 Sandra Day O'Connor Award Committee, 2013-2015 Lawyers of the Decade, 2011 Federal Rules of Civil Procedure Committee, 2013-2015 "Barrister's Best" Best Trial Lawyer, 2010 Regent's Nominating Committee The Best Lawyers in America Chair, 2016 Denver Personal Injury Litigation Lawyer of the Year, Special Problems in the Administration of Justice 2015, 2018 Committee, Vice Denver Legal Malpractice Lawyer of the Year, 2011, 2014, Chairman, 2011-2012 2017 Adjunct State Committee, 2011-2012 Denver Product Liability Litigation Lawyer of the Year, Colorado State Committee, Chairman, 2008-2010 2012-2013 Chairman-Elect, 2007-2008, Vice Chairman, 2006-2007 Bet-the-Company Litigation, 2005-2018 Code of Conduct Committee, 2007-2008 Commercial Litigation, 2005-2018 Complex Litigation Committee 2004-2005 Legal Malpractice Law, 2005-2018 Fellow, International Academy of Trial Lawyers Mass Tort Litigation/Class Actions, 2017-2018 American Board of Trial Advocates Personal Injury Litigation, 2005-2018 Member Product Liability Litigation, 2005-2018 Fellow, Litigation Counsel of America, The Trial Lawyer Professional Malpractice Law, 2017-2018 Honorary Society The Legal 500 United States Member, Diversity Law Institute Litigation: Product Liability and Mass Tort Defense, 2007, Member, Trial Law Institute 2009-2011, International Association of Defense Counsel 2013 17 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 24 of 33 MICHAEL L. O'DONNELL Benchmark Litigation 2014 Lawyer of the Year - Litigation & Dispute Resolution Commercial Litigation - Colorado, 2011-2017 (Denver) Product Liability - Colorado, 2013-2017 Best of the Bar, Denver Business Journal Professional Liability - Colorado, 2013-2017 Colorado Bar Foundation Colorado Super Lawyers Fellow Ranked #1 in Colorado, 2013-2017 The Network of Trial Law Firms Top 10, 2007, 2009-2017 Chairman, 2005-2006 Personal Injury Defense: Products, 2009-2017 Denver Bar Association Class Action/Mass Torts, 2006-2008 Vice President, Board of Trustees 5280 Magazine Colorado Bar Association Top Lawyer Member, Board of Governors Personal Injury Defense, 2016-2017 American Bar Association Civil Litigation, 2016-2017 Chairman, Issues Affecting the Legal Profession Commercial Litigation, 2017 Young Lawyers Section Liaison to Standing Committee on University of Denver Sturm College of Law Professional Discipline Outstanding Alumni Award, 2012 American Bar Foundation Euromoney's Expert Guides - Litigation and Product Liability Fellow Martindale-Hubbell AV® Peer Review Rated Judge William E. Doyle American Inn of Court, Master The International Who's Who of Product Liability Defense Denver Law Club Lawyers, 2011, 2014-2017 Faculty of Federal Advocates The International Who's Who of Life Sciences Lawyers, Board of Directors, 2004-2005 2014, 2017 Defense Research Institute Institute for the Advancement of the American Legal System Member, Professional Liability Committee (IAALS) Colorado Defense Lawyers Association ACTL Task Force on Discovery and Civil Justice, member USDC Colorado Committee on Conduct, 2012 2015 Rebuilding Justice Award Who's Who in Law, Denver Business Journal Colorado Trial Lawyers Association University of Denver Sturm College of Law Award for Competency, Ethics, and Professionalism, 2008 Co-Chair of Reunion Committee, 2004 The American Lawyer Colorado Judicial Institute Top Commercial Litigation Lawyers, 2006 Board of Directors, 2004-present Corporate LiveWire Judicial Awards Committee, 2006-present 18 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 25 of 33 MICHAEL L. O'DONNELL IAALS Law Firm Council ARTICLES & PRESENTATIONS Founding member . "What the Hail? Exposing Biased Insurance Appraisers," National Center for State Courts presented at the 28th Annual ACIC General Counsel Lawyers Committee Member Seminar Survey, (July 28, 2017). COMMUNITY MEMBERSHIPS, ACTIVITIES & HONORS . "Dealing with Collusion and Fraud in Property Loss Wheeler Trigg O'Donnell Foundation Litigation," Litigation Management in a New York Minute Founder and President, 2005-present - 2016 Edition, presented by The Network of Trial Law Archdiocese of Denver Firms, New York, NY (August 5, 2016). Finance Council, 2008-2013 "Dollars and $ense Negotiating the Pay Raise - Practical Catholic Charities Archdiocese of Denver . Advice from the Decision-Makers" presented at the Board Member, 2010-present Association of Corporate Counsel Colorado Chapter Denver Police Foundation CLE and reception (May 12, 2016). Board of Directors, 2004-present Walking for Kids . Association of Corporate Counsel: Negotiating the Pay Founding Member, Board of Directors, 2009-present Raise, May 12, 2016. Trial.com Foundation, Inc. "Settling Strategies for MDLs: Getting Started, Setting President, 2005-2006 . Values, and Overcoming Obstacles," presented at the The Catholic Foundation Mass Torts Judicial Forum in New York City, (April 15, Board of Directors, Advancement Committee, 2004-2005 2016). American Heart Association of Colorado and Wyoming Chairman of the Board . Co-authored "New Strategies for Defending Professional American Heart Association of Colorado Liability and Malpractice Cases." Best Practices for Denver Metro Division, Chairman of the Board Addressing Professional Liability Claims, (2015). Denver Tennis Club Book Chapter, "Deconstructing the Key Liability Expert: Board of Directors . Strategy and Secrets for Successful Cross- The Village Club Examination," From the Trenches: Strategies and Tips President From 21 of the Nation's Top Trial Lawyers, (2015). Hundred Club of Denver Member 19 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 26 of 33 MICHAEL L. O'DONNELL . "The Defense Perspective: How Loss Prevention and . "Deposition Strategy 101," Colorado Defense Lawyers Firm Management Practices Can Impact Malpractice Association CLE Seminar, (December 4, 2009). Claims," presented at an Ethics CLE at Wheeler Trigg "Leadership and Strategic Management," presented to O'Donnell, (November 19, 2014). . University of Colorado MBA Students, (December 1, . "Managing a Large Casualty Claim," presented at the 2009). Advisen Casualty Insights Conference in New York City, "Leadership," University of Colorado at Denver MBA (March 27, 2014). . Program, (December 1, 2009). "Avoiding Missteps in Handling Litigation and Other . "Preventing Legal Malpractice, Potential Pitfalls and How Disputes," presented to the Association of Corporate . to Avoid Them," Colorado Bar Association Continuing Counsel Colorado Chapter, (December 5, 2012). Legal Education Seminar, (2009-2013). "The Trial of a Legal Malpractice Case," presented at the . "Managing Product Liability in the Americas," quoted in Aon Law Firm Symposium, (October 12, 2012). . Financier Worldwide, (September 2009). "Unique Issues in Mass Torts," presented at University . "Alternative Dispute Resolution," presented to CNA, of Denver Sturm College of Law, (November 7, 2011). . (March 2008). "Negotiation," presented to MBA students at McGill . "Appellate Update on Colorado Law," presented to All University, (October 12, 2011). . Colorado State Court Trial and Appellate Judges, . "The Nuts and Bolts of Successor Liability," presented to (September 2007). CNA, (February 10, 2011). . "What In-House Counsel Want and How to Give It to . "Ethics CLE: Avoiding Malpractice," University of Denver Them," presented at The Network of Trial Law Firms, Alumni Weekend, (October 14, 2010). (April 20, 2007). . "Settlement Negotiation Strategies," Continuing Legal . "Selecting Outside Trial Counsel," presented to Education Seminar, (May 2010). Association of Corporate Counsel Colorado Chapter, (March 21, 2007). . "Strategic Management," University of Colorado at Denver MBA Program, (February 2010). . "Selection of Outside Counsel," presented at The Network of Trial Law Firms, (April 29, 2006). 20 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 27 of 33 MICHAEL L. O'DONNELL . "Pharmaceutical Torts Cases in Colorado," presented at . "Challenging the Admissibility of Medical Causation Colorado Bar Association and Denver Bar Association Opinion Derived From 'Differential Diagnosis - CLE Ethical Consideration for Practitioners, (November Application of Daubert and Amended FRE 702'," 3, 2005). presented at The Network of Trial Law Firms, (October 26, 2001). . "Punitive Damages," presented at The Network of Trial Law Firms, (October 23, 2004). . "Winning by Disqualifying Plaintiff's Experts," presented at The Network of Trial Law Firms, (October 25, 2001). . "Punitive Damages," presented at 27th Annual Conference of Colorado Defense Lawyers Association, . "Preventing Legal Malpractice," presented at Colorado (August 20, 2004). Bar Association CLE Seminar and Torts Update, (October 9, 1998). . "Campbell v. State Farm," presented at The Network of Trial Law Firms' Meeting, (Apr. 2003). . "Colorado Legal Malpractice," presented to the Colorado Bar Association Tort Law Update, (1998). . "Colorado Civil Justice League Legislative Panel," presented in conjunction with the American Tort Reform . "Winning the Battle of the Experts," presented at Association Annual Legislative Conference for State Professional Education Systems Inc., (December 16, Coalition Leaders and Citizens Against Lawsuit Abuse, 1996). (November 14, 2002). . "Discovery," presented at Colorado Defense Lawyers . "Non-Liability to Non-Participants: A Manufacturer's Duty Association, (August 27, 1994). Should End at the Playing Field, and Not Extend to "Depositions: Strategies, Tactics and Mechanics," Criminal Acts," Mealey's Prod. Liab. & Risk, (August 29, . presented at Professional Education Systems Inc., 2002). (November 11, 1992). . "Behold the Future: Emerging Areas Including Mold, Cellular Phones, MTBE, Chromium 6, and More," PERSONAL INTERESTS presented at The Future of Mass Tort Litigation in Family, golf, reading, travel America, (March 23, 2002). . "Ethics and Professionalism in Client Relations," presented at University of Denver Law School, (November 12, 2001). 21 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 28 of 33 KATHRYN A. REILLY Partner [email protected] | P 303.244.1983 | F 303.244.1879 Kathryn Reilly represents clients in complex commercial and antitrust litigation, including in such highly regulated industries as aviation, healthcare, and telecommunications. Just in the past four years, Katie has served as lead counsel in seven unrelated antitrust actions in federal court. She also represents sophisticated business and municipal clients in high-stakes and high-profile commercial and contractual disputes. EDUCATION New York University School of Law, J.D., Benchmark Litigation named Katie to its 2016 Nationwide Under 40 Hot List, and 2001, cum laude Chambers USA ranks her for Colorado General Litigation. University of Virginia, B.A., 1998, Classics HIGHLIGHTS and English, with distinction . Won motions to dismiss all antitrust claims in multiple related lawsuits against a GOVERNMENT SERVICE leading technology distributor. WTO serves as lead trial counsel. Judicial Law Clerk to The Honorable Julia S. . Representing an aerospace supplier in breach of contract claims involving Gibbons, U.S. District Court, Western District responsibility for a $10 million cleanup effort at a rocket launch facility. of Tennessee, and U.S. Court of Appeals, Sixth Circuit, 2001-2002 . Representing the City of Aurora in a Rule 106 action against the City of Greenwood Village involving an intergovernmental agreement between the cities under which OTHER EXPERIENCE Greenwood Village transferred development authority of a real estate parcel to Husch Blackwell Aurora. Jacobs Chase WilmerHale INDUSTRIES PRACTICE AREAS Cravath, Swaine & Moore, Summer Associate . Healthcare . Commercial Litigation . Real Estate . Antitrust & Competition ADMISSIONS Consumer Products & Services Investigations & Compliance Colorado . . New York . Medical Devices & Pharmaceuticals . Appellate 22 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 29 of 33 KATHRYN A. REILLY BIOGRAPHY CASES Kathryn Reilly is a skilled commercial litigator with Antitrust & Competition considerable experience helping clients address antitrust . Won motions to dismiss all antitrust claims against our issues and business disputes across a range of industries. In client, a leading technology distributor, in multiple related the past four years alone, she has served as lead counsel in antitrust conspiracy lawsuits brought by former seven federal antitrust actions. distributors. WTO serves as lead trial counsel in this Katie has favorably represented antitrust clients in matters ongoing matter. involving monopolization, conspiracy, price fixing, exclusive . EPMM Colorado v. Green Cross Colorado (Denver Cnty. dealing, and other competition-related disputes, including Dist. Ct. 2015) - Won reversal of a TRO that had been trade secrets and non-compete actions. She has extensive issued ex parte at the close of business on a Friday, knowledge of the regulatory hurdles and obligations her effectively shutting down operations for a major clients face, and she develops effective litigation and trial manufacturing and distribution client, and subsequently strategies based on her clients' business priorities. Katie also won rejection of the injunction against WTO's client. routinely provides antitrust counseling to clients in connection with their formation of joint ventures, . Beltran v. Noonan et al. (D. Colo. 2015) - Representing development of pricing policies, collaborations with multiple defendants in a $1.2 billion federal antitrust and competitors, and other activities potentially involving antitrust labor class action challenging the au pair exchange laws. program administered by the Department of State. Katie's additional commercial litigation experience includes . Represent a healthcare trade association in an $80 successfully representing clients in business disputes at both million federal antitrust lawsuit alleging conspiracy the trial and appellate levels. Her experience includes among the trade association, health systems, and health contract disputes, business divorces, consumer fraud, and insurance companies. business tort claims. Katie has extensive healthcare industry JetAway Aviation v. Board of County Commissioners of experience, as well as real estate, aviation, manufacturing, . the County of Montrose, Colorado (D. Colo.; 10th Cir.) - sports, and telecommunications. Katie also represents Won summary judgment from trial court and successfully municipalities in high-stakes and often contentious disputes defended that order before the Tenth Circuit in a federal involving other municipal entities. antitrust lawsuit alleging conspiracy to monopolize fixed- base operations at an airport. 23 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 30 of 33 KATHRYN A. REILLY . TOG & Wild Harvest v. U.S.P.S. (D. Colo. 2012) - . Won summary judgment for a major ski resort as plaintiff Successfully defended a government contractor in a in a contract dispute involving a wireless infrastructure federal antitrust class action and obtained early contractor. dismissal of tying and monopolization claims asserted by Represent one of the nation's largest healthcare franchisee plaintiffs. . franchisors in a federal court action challenging the . Counseled healthcare providers regarding antitrust legality of the underlying business model. implications of joint venture transactions, the Successfully represented a Colorado-based healthcare development of integrated networks, ACOs, managed . system in breach of contract action involving provision of care contracting, and price and cost surveys among home healthcare services. competitors. Won a complete verdict in a bench trial in federal Defended a health system against antitrust claims and . . bankruptcy court involving claims of fraud alleged in a state law claims in multiple lawsuits brought by business divorce. physicians relating to failed joint ventures. Bristol Bay Productions v. Lampack (Colo. Denver Dist. Commercial Litigation . Ct. 2008) - Won dismissal from trial court for publisher Representing an aerospace supplier in breach of . Simon & Schuster in a case involving a movie studio's contract claims involving responsibility for a $10 million $50 million damages claim relating to the movie Sahara cleanup effort at a rocket launch facility. and alleging false representation of popular novelist . Representing a leading regional healthcare network as Clive Cussler's readership figures. lead trial counsel in a high-stakes trademark dispute . Represented the founders of a major ski resort in a two- against a national healthcare insurance provider. week jury trial against a leading mountain resort . Obtained dismissal for an insurance company client company in a breach of contract action. facing a civil RICO lawsuit in federal court, with risk of . ThermaSol v. Gems Sensors (Cal., Ventura Cnty. Super. treble damages, for issuing a surety bond to a marijuana Ct.) - Defended a manufacturing company against a business as required by state regulations. The judge multimillion-dollar breach of warranty claim involving granted our client's motion to dismiss because the allegedly defective parts and negotiated a favorable plaintiffs failed to plausibly allege injury sufficient to settlement of less than 10 percent of the damages establish RICO standing. claimed. 24 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 31 of 33 KATHRYN A. REILLY . Hammond v. Opler (Colo. Boulder Cnty. Dist. Ct. 2008) - Real Estate Obtained a favorable verdict and monetary damages in a . Horizon Park Partners v. Gator Horizon Partners (Colo. one-week jury trial based on an extreme and outrageous Ct. App. 2016) - Won reversal of summary judgment conduct claim. against our client, a real estate developer, in a dispute over a reciprocal easement, the outcome of which will Represented a health system and obtained favorable . have a multimillion-dollar effect on the value of the settlement in a breach of contract action based on the property. The case was remanded to district court with termination of a management services contract for a orders to hear evidence at trial. Colorado hospital's oncology department. Obtained injunctive relief for a shopping center owner Represented a Fortune 100 telecommunications . . and developer requiring an adjacent property owner to company in a favorable appeal in the U.S. Court of renovate the shopping center common area according to Appeals for the D.C. Circuit, involving the application of the terms of a reciprocal easement agreement. Federal Communications Commission (FCC) regulations. . Represented a major railroad company in connection with numerous right of way disputes, including quiet title Municipal and condemnation actions. . Representing the City of Aurora in a Rule 106 action against the City of Greenwood Village involving an . Scott v. Chicago Title Insurance (Colo. Denver Cnty. intergovernmental agreement between the cities under Dist. Ct.) - Represented a real estate developer and which Greenwood Village transferred development obtained a $4.8 million judgment against the title authority of a real estate parcel to Aurora. insurance company after a seven-day bench trial in a bad faith breach of title insurance action. . Represented Denver International Airport in high-profile claims involving bid rigging and unfair competition . Bailey & Bailey v. Koss (Colo. Ct. App.) - Represented a relating to a $50 million terminal concessions contract. property owner in the appeal of a quiet title action before the Colorado Court of Appeals. . Represented Denver International Airport against the Regional Transportation District in a dispute over cost REPRESENTATIVE CLIENTS sharing agreements involving a new rail line serving the City & County of Denver airport. Colorado Ambulatory Surgery Center Association Comfort Dental Group, Inc. 25 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 32 of 33 KATHRYN A. REILLY Denver International Airport Board of Directors, 2008-2014 SCL Health Sixth Amendment Task Force Colorado Women's Bar Association Foundation BAR & COURT ADMISSIONS Board of Directors, 2015-present Colorado Colorado Women's Bar Association District of Columbia Faculty of Federal Advocates New York Counsel/Co-counsel Program U.S. Court of Appeals for the District of Columbia Circuit U.S. Court of Appeals for the Tenth Circuit COMMUNITY MEMBERSHIPS, ACTIVITIES & HONORS Denver Kids Inc. LEGAL MEMBERSHIPS, ACTIVITIES & HONORS Board of Directors, 2010-present Chambers USA Executive Committee, 2012-present Up and Coming, General Commercial Litigation - Mentor, 2006-2014 Colorado, 2016-2017 University of Colorado Law School The Best Lawyers in America Dean’s Advisory Council, 2013-present Commercial Litigation, 2018 The Women’s Leadership Foundation, Colorado Women’s Antitrust Litigation, 2018 Chamber of Commerce Benchmark Litigation Charter Member, Board Bound Program Under 40 Hot List, 2016-2017 Denver Metro Chamber of Commerce Law Week Colorado Leadership Denver Program, Class of 2011 Top Women Lawyers, 2016 Denver Metro Chamber Leadership Foundation "People's Choice" Antitrust Lawyer, 2016 Impact Denver Program, Class of 2007 Denver Business Journal La Conexión "Forty Under 40," 2012 Board of Directors, 2006-2007 Colorado Super Lawyers The Women's Foundation of Colorado Antitrust Litigation, 2017 Corporate Committee, 2011-2013 Colorado Rising Stars Business Litigation, 2009-2016 ARTICLES & PRESENTATIONS American Health Lawyers Association . CWBA: Grit Project, March 5, 2015. Antitrust Practice Group Colorado Lawyers Committee 26 Case 1:15-cv-02546-RM-MEH Document 170-10 Filed 09/21/17 USDC Colorado Page 33 of 33 FOR MORE INFORMATION Michael L. O'Donnell Partner & Chairman 303.244.1850 | [email protected] Kathryn A. Reilly Partner 303.244.1983 | [email protected] 27 Case 1:15-cv-02546-RM-MEH Document 170-11 Filed 09/21/17 USDC Colorado Page 1 of 2 EXHIBIT 7 Case 1:15-cv-02546-RM-MEH Document 170-11 Filed 09/21/17 USDC Colorado Page 2 of 2 EXHIBIT 7 Medina, et al. v. Clovis Oncology, Inc., et al. Civil Action No. 1:15-cv-02546-RM-MEH BREAKDOWN OF PLAINTIFFS’ COUNSEL’S LITIGATION EXPENSES BY CATEGORY CATEGORY AMOUNT Electronic Discovery/Document Management $ 66,486.17 Service of Process 4,314.28 On-Line Legal Research 43,476.03 On-Line Factual Research 7,257.13 Telephone 134.34 Postage & Express Mail 1,513.76 Court/Filing Fees 633.00 Internal Copying 992.60 Outside Copying 1,020.58 Out of Town Travel 27,299.53 Court Reporting & Transcripts 346.35 Experts 245,343.23 Mediation Fees 28,316.68 TOTAL EXPENSES: $427,133.68 #1117657 Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 1 of 11 EXHIBIT 8 Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 2 of 11 LEAD,PS6,TERMED U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:99-cv-00266-RPM Rosenfeld v. Laser Technology Inc, et al Date Filed: 02/10/1999 Assigned to: Judge Richard P. Matsch Date Terminated: 10/19/2000 Demand: $0 Jury Demand: Both Cause: 15:78 Securities Exchange Act Nature of Suit: 850 Securities/Commodities Jurisdiction: Federal Question Date Filed # Docket Text 11/01/2001 90 ORDER approving distribution of settlement fund and for payment of fees and expenses of claims administrator and for payment of fees and expenses of claims administrator by Judge Richard P. Matsch: 1. distribution to eligible class members shall be made in accordance w/the calculations made by the Claims Administrator David Berdon & Co. LLP as contained in Exhibit C to the Rosenbaum Affidavit; 2. claimants whose proofs of claims were determined to be deficient by the Claims Administrator as contained in Exhibits D & E to the Rosenbaum Affidavit are disallowed; David Berdon & Co. LLP shall be awarded $44,433.44 in fees and reimbursement of expenses [88-1] in 1:99-cv- 00266, 1:99-cv-00331, 1:99-cv-00341, 1:99-cv-00368, 1:99-cv-00531, 1:99-cv- 00560 (cc: all counsel) ; entry : 11/2/01 (lam) (Entered: 11/02/2001) 08/20/2001 89 AFFIDAVIT of Michael Rosenbaum on behalf of claims Administrator David Berdon & Co. LLP re: motion to approve distribution of the settlement fund [88-1] in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv-00341, 1:99-cv-00368, 1:99- cv-00531, 1:99-cv-00560 (lam) (Entered: 08/21/2001) 08/20/2001 88 MOTION by plaintiffs Moshe Rosenfeld in 1:99-cv-00266, David Chandler in 1:99-cv-00331, Giancarlo Fraccaroli in 1:99-cv-00341, Thomas Dunstan in 1:99-cv-00368, Arthur Cohen in 1:99-cv-00531, Leonello Emili in 1:99-cv- 00560 to approve distribution of the settlement fund purs to the calculations made by Berdon & Co. (lam) (Entered: 08/21/2001) 10/19/2000 87 Final JUDGMENT and Order of Dismissal With Prejudice by Judge Matsch. [55-1] Stipulation for settlement is approved. Court certifies the class. Only class members who have filed valid & timely proofs of claim and release shall be entitled to receive any distrubtion from settlement fund. Court reserves jurisdiction re: implementation, enforcement, distribution, etc. of the settlement fund. Granting motion for attorney fees and reimbursement of expenses [73-1] in amt of 30% of the $850,000 in cash plus accrued interest of 30% of the 475,000 shares of Laser Tech common stock in the settlement fund & expenses of $67,602.20 to be apportioned by co-lead counsel for securities class action & counsel for deriviative action as they deem appropriate. Nunc pro tunc 10/13/00 Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 3 of 11 1:99-cv-00266, 1:99-cv-00331, 1:99-cv-00341, 1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00560 terminating case (cc: all counsel) ; entry date : 10/20/00 (gms) Modified on 10/20/2000 (Entered: 10/20/2000) 10/18/2000 86 CERTIFICATE of Service by class plaintiffs in 1:99-cv-00266, 1:99-cv- 00331,1:99-cv-00341, 1:99-cv-00368,1:99-cv-00531, 1:99-cv-00560 of final jgm & order of dismissal on 10/18/00 (gms) (Entered: 10/19/2000) 10/17/2000 84 TRANSCRIPT of Rule 26(e) Fairness Hearing on 10/13/00 before Judge Matsch ( pages: 1-20) Prepared By: Federal Reporting Service Inc (certified copy) (lam) (Entered: 10/17/2000) 10/13/2000 85 COURTROOM MINUTES by Judge Richard P. Matsch ; settlement conf held 10/13/00 . Court approves settlement. Proposed order to be drafted. Atty fee requests will be granted. Orders will enter nunc pro tunc. (Exhibits Attached) ; entry date : 10/19/00 Court Reporter: Kathy Terasaki ECR Operator (gms) (Entered: 10/19/2000) 10/13/2000 83 AFFIDAVIT of Lynndell Epp regarding sevice of notice to current shareholders re order [80-1] in 1:99-cv-00266 and consolidated cases (lam) (Entered: 10/16/2000) 10/10/2000 82 Correction (ERRATA) by plaintiffs in 1:99-cv-00266, 1:99-cv-00331,1:99-cv- 00341, 1:99-cv-00368,1:99-cv-00531, 1:99-cv-00560 re: declaration in support of class settlement & application for atty fees & reinbursement of expenses [75-1] in 1:99-cv-00266, [0-1] in 1:99-cv-00331, 1:99-cv-00341,1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00560 (gms) (Entered: 10/11/2000) 10/05/2000 81 NOTICE of filing Opinion Requested by the Court by defendant Laser Technology Inc in 1:99-cv-00266 and consolidated cases re: minutes [78-2] (lam) (Entered: 10/10/2000) 08/03/2000 80 ORDER by Judge Richard P. Matsch upon jt motion for order of approval of derivative notice as stated in this Order [79-1] in 1:99-cv-00266 consolidated actions (cc: all counsel) ; entry date : 8/7/00 (lam) (Entered: 08/07/2000) 08/03/2000 79 JT MOTION by derivative plaintiff Ann Arnebold and defendant Laser Technology Inc in 1:99-cv-00266 and consolidated actions for order of approval of derivative notice (attached as Exhibit A) (lam) (Entered: 08/04/2000) 08/02/2000 78 COURTROOM MINUTES by Judge Richard P. Matsch ; Fairness Hearing held 8/2/00; Hearing continued to 10/13/00 1:30 ; new proposed ntc to be presented to the court today or tommorrow for approval, w/proposed order regarding [76-1] in 1:99-cv-00266 and consolidated actions ; entry date : 8/4/00 Court Reporter: ECR - Kathy Terasaki (lam) (Entered: 08/04/2000) 08/02/2000 77 ORDER by Judge Richard P. Matsch ; in court hrg held 8/2/00 ; hearing on the class action settlement is continued to 10/13/00 at 1:30 regarding [76-1] re: motion to set suppl settlement hrging in 1:99-cv-00266 and consolidated actions (cc: all counsel) ; entry date : 8/3/00 (lam) (Entered: 08/03/2000) 07/26/2000 76 MOTION by derivative plaintiff Ann Arnebold and defendant Laser Technology Inc in 1:99-cv-00266 and related actions for order to direct Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 4 of 11 derivative ntc to current shareholders & set suppl settlement hrging (lam) (Entered: 07/27/2000) 07/25/2000 75 DECLARATION of James S. Bailey, Jr. by plaintiffs in Lead Case 1:99-cv- 00266 and related actions in support of a class settlement [69-2] and application for attorneys' fees and reimbursement of expenses [73-1] (lam) (Entered: 07/26/2000) 07/25/2000 74 Memorandum of Law (BRIEF) FILED by plaintiffs in Lead Case 1:99-cv-00266 and related actions in support of approval of the class and derivative settlement regarding [69-1] (lam) Modified on 07/26/2000 (Entered: 07/26/2000) 07/25/2000 73 Application (MOTION) by plaintiffs' Counsel in Lead Case 1:99-cv-00266 and related actions for attorney fees and reimbursement of expenses (lam) (Entered: 07/26/2000) 06/01/2000 72 ORDER by Chief Judge Richard P. Matsch granting motion to amend dates for submitting proofs of claim [71-1] in 1:99-cv-00266 and consolidated cases and the dates in Exhibit A, page 21 and Exhibit C page 2 of this court's order of 5/11/00, are amended as noted re: [69-2] order (cc: all counsel) ; entry date : 6/2/00 (lam) (Entered: 06/02/2000) 05/31/2000 71 Unopposed MOTION by plaintiffs in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv- 00341, 1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00560 to amend dates for submitting proofs of claim (former empl) (Entered: 06/01/2000) 05/12/2000 70 NOTICE of Change of Name Change of Dyer & Shuman LLP by derivative plaintiff Arnebold in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv-00341, 1:99-cv- 00368, 1:99-cv-00531, 1:99-cv-00560 (gms) Modified on 05/17/2000 (Entered: 05/15/2000) 05/11/2000 69 ORDER Preliminarily Approving Settlement and Approving the Form and Manner of Notice by Chief Judge Richard P. Matsch re: [58-1], [60-1] in 1:99- cv-00266 and consolidated cases: plas' class counsel are hereby authorized to retain the firm of David Berdon & Co. as claims administrators to supervise and administer the notice and claim procedures as set forth in this Order; the mailing of the notice and proof of forms shall be accomplished on or before 6/2/00; request for exclusion ddl 7/17/00; written objs must be served on the counsel for the parties and filed with the Court on or before 7/17/00; any class member who objs to the settlement, the proposed plan of allocation, and/or the fee and expense application shall have a right to appear and be heard at the settlement hearing as set forth in this Order ; settlement hrg set for 10:00 8/2/00 (cc: all counsel) ; entry date : 5/12/00 (lam) Modified on 07/26/2000 (Entered: 05/12/2000) 05/11/2000 68 ATTORNEY APPEARANCE for defendant BDO SEIDMAN, LLP in 1:99-cv- 00266 by Hugh Q. Gottschalk and Motion for substitution of counsel's prior law firm from Ottenm Johnson, Robinson , Neff & Ragonetti,P.C. to current law firm Wheeler Trigg & Kennedy, P.C. and advises Brad W. Schacht and Nancy Lipson will not represent BDO Seidman in this matter (lam) Modified on 05/12/2000 (Entered: 05/12/2000) 05/09/2000 67 Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 5 of 11 Stipulated SUPPLEMENT by plaintiffs and defendants in 1:99-cv-00266 and consolidated cases to motion for order for preliminary approval of settlement [58-1] (lam) (Entered: 05/11/2000) 04/12/2000 66 ORDER by Chief Judge Richard P. Matsch regarding [65-1] status conf held 4/12/00 : granting [61-1] motion to withdraw law firm of Holme Roberts & Owen LLP; that John V. McDermott, Adam R. Eaton & Mark A. Adams of Holme Roberts & Owen, LLP are granted leave to w/draw as representing Laser Technology, Inc. in 1:99-cv-00266 and consolidated cases (cc: all counsel) ; entry date : 4/13/00 (lam) (Entered: 04/13/2000) 04/12/2000 65 COURTROOM MINUTES Status Conf/Hearing on Motion to Withdraw by Chief Judge Richard P. Matsch; granting motion to withdraw law firm of Holme Roberts & Owen LLP [61-1], attorneys Mark A. Adams, Adam Ross Eaton, and John V. McDermott as counsel for r Laser Technology Inc in 1:99-cv-00331 and consolidated cases ;entry date : 4/13/00 Court Reporter: ECR - Kathy Terasaki (lam) (Entered: 04/13/2000) 04/12/2000 MAIL Returned minute order [63-2] addressed to Richard J. Leedy counsel for H. DeWorth Williams in 1:99-cv-00331 and consolidated cases (lam) (Entered: 04/12/2000) 04/07/2000 64 ATTORNEY APPEARANCE for defendant Laser Technology Inc in 1:99-cv- 00266 and consolidated cases by John Edwin Bolmer II (lam) (Entered: 04/10/2000) 04/04/2000 63 MINUTE ORDER : by Chief Judge Richard P. Matsch; setting hearing on motion to withdraw law firm of Holme Roberts & Owen LLP [61-1] and status conf set for 2:30 4/12/00 in 1:99-cv-00266 and consolidated cases (cc: all counsel) ; entry date : 4/5/00 (lam) (Entered: 04/05/2000) 03/31/2000 62 NOTICE of Withdrawal to defendant Laser Technology Inc re: Motion for leave to w/draw law firm of Holme Roberts & Owen LLP [61-1] in 1:99-cv-00266 and consolidated cases (lam) (Entered: 04/03/2000) 03/31/2000 61 MOTION by defendant Laser Technology Inc counsel John V. McDermott, Adam R. Eaton & Mark A. Adams in 1:99-cv-00266 and consolidated cases to withdraw law firm of Holme Roberts & Owen LLP (lam) (Entered: 04/03/2000) 03/09/2000 60 MOTION by plaintiff Moshe Rosenfeld in 1:99-cv-00266, plaintiff David Chandler in 1:99-cv-00331, plaintiff Giancarlo Fraccaroli in 1:99-cv-00341, plaintiff Thomas Dunstan in 1:99-cv-00368, plaintiff Arthur Cohen in 1:99-cv- 00531, plaintiff Leonello Emili in 1:99-cv-00560 for status conf re: the class and derivative settlement and expedited entry of order preliminarily approving settlement & approving form and manner of ntc (lam) (Entered: 03/10/2000) 01/24/2000 59 SUPPLEMENT by Derivative plaintiffs, Moshe Rosenfeld in 1:99-cv-00266, David Chandler in 1:99-cv-00331, Giancarlo Fraccaroli in 1:99-cv-00341, Thomas Dunstan in 1:99-cv-00368, Arthur Cohen in 1:99-cv-00531, Leonello Emili in 1:99-cv-00560 to proposed order for preliminary approval of settlement re: motion [58-1] (lam) (Entered: 01/25/2000) 01/21/2000 58 Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 6 of 11 Stipulated MOTION by parties for order for preliminary approval of settlement (gms) (Entered: 01/21/2000) 01/18/2000 MAIL Returned addressed to Richard Leedy re: order [57-1] in 1:99-cv-00266, order [19-1] in 1:99-cv-00331, order [0-1] in 1:99-cv-00341, order [0-1] in 1:99- cv-00368, order [0-1] in 1:99-cv-00531, order [0-1] in 1:99-cv-00560. Remailed 1/19/00 (gms) (Entered: 01/19/2000) 01/07/2000 57 ORDER by Chief Judge Richard P. Matsch granting Derivative plaintiff's motion to extend time to respond to mtns to dismiss [56-1]; should the mtn for approval of the proposed settlement be denied, pla shall oppose the pending mtns to dismiss w/in 30 days of such order re: [48-1] motion to dismiss and [46-1] motion to dismiss in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv-00341, 1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00560 (cc: all counsel) ; entry date : 1/7/00 (lam) (Entered: 01/07/2000) 01/05/2000 56 MOTION by Derivative plaintiff in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv- 00341, 1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00560 to extend time to respond to mtns to dismiss of dfts BDO Seidman LLP, Pamela Sevy, Jeremy Dunne, David Williams, Dan Grothe & Laser Technology, Inc. (lam) (Entered: 01/07/2000) 12/10/1999 55 STIPULATION re: settlement by plaintiff Moshe Rosenfeld in 1:99-cv-00266, defendant Laser Technology Inc in 1:99-cv-00266, defendant David Williams in 1:99-cv-00266, defendant Pamela Sevy in 1:99-cv-00266, defendant Dan N. Grothe in 1:99-cv-00266, defendant H. DeWorth Williams in 1:99-cv-00266, defendant BDO SEIDMAN, LLP in 1:99-cv-00266, plaintiff David Chandler in 1:99-cv-00331, defendant Laser Technology Inc in 1:99-cv-00331, defendant David Williams in 1:99-cv-00331, defendant Pamela Sevy in 1:99-cv-00331, defendant Dan N. Grothe in 1:99-cv-00331, defendant H. DeWorth Williams in 1:99-cv-00331, plaintiff Giancarlo Fraccaroli in 1:99-cv-00341, defendant Laser Technology Inc in 1:99-cv-00341, defendant David W. Williams in 1:99-cv- 00341, defendant Pamela J. Sevy in 1:99-cv-00341, plaintiff Thomas Dunstan in 1:99-cv-00368, defendant Laser Technology Inc in 1:99-cv-00368, defendant David Williams in 1:99-cv-00368, defendant Pamela Sevy in 1:99-cv-00368, defendant Dan N. Grothe in 1:99-cv-00368, defendant H. DeWorth Williams in 1:99-cv-00368, plaintiff Arthur Cohen in 1:99-cv-00531, defendant Laser Technology Inc in 1:99-cv-00531, defendant David W. Williams in 1:99-cv- 00531, defendant Pamela J. Sevy in 1:99-cv-00531, plaintiff Leonello Emili in 1:99-cv-00560, defendant Laser Technology Inc in 1:99-cv-00560, defendant David Williams in 1:99-cv-00560, defendant Pamela Sevy in 1:99-cv-00560, defendant Dan N. Grothe in 1:99-cv-00560, defendant H. Deworth Williams in 1:99-cv-00560 (former empl) (Entered: 12/13/1999) 11/30/1999 ORDER by Chief Judge Richard P. Matsch granting motion to extend time to file the consolidated class action cmp & responsive pleadings to 12/24/99 [55-1] in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv-00341, 1:99-cv-00368, 1:99-cv- 00531, 1:99-cv-00560, granting motion to extend time to file comp and resp pleadings [0-1] in 1:99-cv-00331, 1:99-cv-00266, 1:99-cv-00341, 1:99-cv- 00368, 1:99-cv-00531, 1:99-cv-00560 (cc: all counsel) ; entry date : 12/2/99 (former empl) (Entered: 12/02/1999) Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 7 of 11 11/24/1999 54 MOTION by plaintiff in 1:99-cv-00266, plaintiff in 1:99-cv-00331, plaintiff in 1:99-cv-00341, plaintiff in 1:99-cv-00368, plaintiff in 1:99-cv-00531, plaintiff in 1:99-cv-00560 to extend time to file comp and resp pleadings (former empl) (Entered: 11/29/1999) 11/24/1999 55 MOTION by consolidated class action plaintiffs, Moshe Rosenfeld, David Chandler, Giancarlo Fraccaroli, Thomas Dunstan, Arthur Cohen, Leonello Emili to extend time to file the consolidated class action cmp & responsive pleadings to 12/24/99 (lam) (Entered: 11/26/1999) 10/01/1999 53 ORDER by Chief Judge Richard P. Matsch granting plas' motion to extend time to file consolidated class action cmp to 10/25/99 and dfts have until 12/30/99 to file responsive pleading to consolidated class action complaint [51-1] in 1:99- cv-00266, 1:99-cv-00331, 1:99-cv-00341, 1:99-cv-00368, 1:99-cv-00531, 1:99- cv-00560 (cc: all counsel) ; entry date : 10/12/99 (lam) (Entered: 10/12/1999) 09/30/1999 52 NOTICE of Change of Name of Law Firm of Liaison Cnsl of Bailey & Peterson by class action plaintiffs in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv-00341, 1:99- cv-00368, 1:99-cv-00531, 1:99-cv-00560 (former empl) (Entered: 10/04/1999) 09/30/1999 51 MOTION by class action plaintiffs in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv- 00341, 1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00560 to extend time to file consolidated class action cmp and responsive pleadings to 10/25/99 and dfts response due 12/30/99 (former empl) (Entered: 10/04/1999) 09/02/1999 50 ANSWER by H. DeWorth Williams in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv- 00368, 1:99-cv-00554, 1:99-cv-00560 to complaint [32-1] in 1:99-cv-00266, complaint [1-1] in 1:99-cv-00266, complaint [0-1] in 1:99-cv-00331, complaint [1-1] in 1:99-cv-00331, complaint [0-1] in 1:99-cv-00341, complaint [1-1] in 1:99-cv-00341, complaint [0-1] in 1:99-cv-00368, complaint [1-1] in 1:99-cv- 00368, complaint [0-1] in 1:99-cv-00531, complaint [1-1] in 1:99-cv-00531, complaint [0-1] in 1:99-cv-00554, complaint [1-1] in 1:99-cv-00554, complaint [0-1] in 1:99-cv-00560, complaint [1-1] in 1:99-cv-00560 (gms) Modified on 10/12/1999 (Entered: 09/02/1999) 09/02/1999 49 Memorandum (BRIEF) by defts David Williams & Dan N. Grothe in 1:99-cv- 00266 in support of motion to dismiss [48-1] in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv-00341, 1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00554, 1:99-cv-00560 (gms) (Entered: 09/02/1999) 09/02/1999 48 MOTION by defts David Williams & Dan N. Grothe in 1:99-cv-00266 to dismiss (gms) (Entered: 09/02/1999) 08/30/1999 47 ORDER by Chief Judge Richard P. Matsch. Pltf to respond to BDO Seidman's [46-1] motion to dismiss in 1:99-cv-00266, 1:99-cv-00554 by 9/20/99 (cc: all counsel) ; entry date : 9/2/99 (gms) (Entered: 09/02/1999) 08/25/1999 46 MOTION by defendant BDO SEIDMAN, LLP in 1:99-cv-00266, defendant BDO SEIDMAN, LLP in 1:99-cv-00554 to dismiss (former empl) (Entered: 08/26/1999) 08/23/1999 45 MINUTE ORDER : by Chief Judge Richard P. Matsch granting motion to extend time to answer [42-1] in 1:99-cv-00266, 1:99-cv-00331, 1:99-cv-00341, Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 8 of 11 1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00554, 1:99-cv-00560 (cc: all counsel) ; entry date : 8/25/99 (former empl) (Entered: 08/25/1999) 08/23/1999 44 ORDER by Chief Judge Richard P. Matsch granting motion to extend time to file class action comp and resp pleadings [43-1] in 1:99-cv-00266, 1:99-cv- 00331, 1:99-cv-00341, 1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00554, 1:99-cv- 00560 (cc: all counsel) ; entry date : 8/25/99 (former empl) (Entered: 08/25/1999) 08/20/1999 43 MOTION by plaintiff Moshe Rosenfeld in 1:99-cv-00266, plaintiff David Chandler in 1:99-cv-00331, plaintiff Giancarlo Fraccaroli in 1:99-cv-00341, plaintiff Thomas Dunstan in 1:99-cv-00368, plaintiff Arthur Cohen in 1:99-cv- 00531, plaintiff Ann Arnebold in 1:99-cv-00554, plaintiff Leonello Emili in 1:99-cv-00560 to extend time to file class action comp and resp pleadings (former empl) (Entered: 08/24/1999) 08/20/1999 42 MOTION by defendant BDO SEIDMAN, LLP in 1:99-cv-00266, defendant BDO SEIDMAN, LLP in 1:99-cv-00554 to extend time to answer (former empl) (Entered: 08/23/1999) 08/17/1999 41 MINUTE ORDER : by Chief Judge Richard P. Matsch granting motion to extend time to 8/20/99 to answer [40-1] in 1:99-cv-00266, granting motion to extend time to answer to 8/20/99 [39-1] in 1:99-cv-00266, 1:99-cv-00331, 1:99- cv-00341, 1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00554, 1:99-cv-00560 (cc: all counsel) ; entry date : 8/23/99 (former empl) (Entered: 08/23/1999) 08/16/1999 40 Unopposed MOTION by defendant BDO SEIDMAN, LLP in 1:99-cv-00266 to extend time to 8/20/99 to answer (former empl) (Entered: 08/18/1999) 08/12/1999 39 MOTION by defendant BDO SEIDMAN, LLP in 1:99-cv-00266 to extend time to answer to 8/20/99 (former empl) (Entered: 08/13/1999) 08/11/1999 37 ORDER by Chief Judge Richard P. Matsch vacating order to show cause order [25-1] in 1:99-cv-00331 (cc: all counsel) ; entry date : 8/12/99 (former empl) (Entered: 08/12/1999) 08/11/1999 36 ORDER by Chief Judge Richard P. Matsch granting motion for order to substitute signature page on response to order to show cause [28-1] in 1:99-cv- 00266, 1:99-cv-00331 (cc: all counsel) ; entry date : 8/12/99 (former empl) (Entered: 08/12/1999) 08/11/1999 35 ORDER by Chief Judge Richard P. Matsch discharging order to show cause order [25-1] in 1:99-cv-00266, (cc: all counsel) ; entry date : 8/12/99 (former empl) (Entered: 08/12/1999) 08/02/1999 38 RETURN OF SERVICE of Summons and Complaint upon Gary Lee Mitchell, registered agent for defendant BDO SEIDMAN, LLP in 1:99-cv-00266, defendant BDO SEIDMAN, LLP in 1:99-cv-00554 on 7/29/99 (former empl) (Entered: 08/12/1999) 07/28/1999 34 ORDER by Chief Judge Richard P. Matsch granting motion to substitute attorney [33-1] and substituting attorney Richard J. Leedy (cc: all counsel) ; entry date : 7/29/99 (former empl) (Entered: 07/29/1999) Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 9 of 11 07/26/1999 33 MOTION by defendant H. DeWorth Williams in 1:99-cv-00266, in 1:99-cv- 00331, in 1:99-cv-00368, in 1:99-cv-00554, in 1:99-cv-00560 to substitute attorney (former empl) (Entered: 07/27/1999) 07/26/1999 32 AMENDED Verified Derivative COMPLAINT [1-1] in 1:99-cv-00266, [1-1] in 1:99-cv-00331, [1-1] in 1:99-cv-00341, [1-1] in 1:99-cv-00368, [1-1] in 1:99- cv-00531, [1-1] in 1:99-cv-00554, [1-1] in 1:99-cv-00560 by plaintiffs in 1:99- cv-00266, 1:99-cv-00331, 1:99-cv-00341, 1:99-cv-00368, 1:99-cv-00531, 1:99- cv-00554, 1:99-cv-00560; jury demand (former empl) (Entered: 07/26/1999) 07/19/1999 31 ORDER by Chief Judge Richard P. Matsch granting motion to extend time to file consolidated class action complaint [29-1] to 8/20/99 to file consolidated class action complaint and to l0/20i/99 to respond in 1:99-cv-00266, 1:99-cv- 00331, 1:99-cv-00341, 1:99-cv-00368, 1:99-cv-00531, 1:99-cv-00554, 1:99-cv- 00560 (cc: all counsel) ; entry date : 7/19/99 (former empl) (Entered: 07/19/1999) 07/19/1999 30 MOTION by plaintiff Ann Arnebold in 1:99-cv-00554 to extend time to respond to amended complaint (former empl) (Entered: 07/19/1999) 07/16/1999 29 MOTION by plaintiff Moshe Rosenfeld in 1:99-cv-00266, plaintiff David Chandler in 1:99-cv-00331, plaintiff Giancarlo Fraccaroli in 1:99-cv-00341, plaintiff Thomas Dunstan in 1:99-cv-00368, plaintiff Arthur Cohen in 1:99-cv- 00531, plaintiff Ann Arnebold in 1:99-cv-00554, plaintiff Leonello Emili in 1:99-cv-00560 to extend time to file consolidated class action complaint (former empl) (Entered: 07/19/1999) 07/08/1999 28 MOTION by plaintiff David Chandler in 1:99-cv-00331 for order to substitute signature page on response to order to show cause (former empl) (Entered: 07/09/1999) 07/07/1999 27 Response to ORDER to show cause by plaintiff Moshe Rosenfeld in 1:99-cv- 00266 [25-1] in 1:99-cv-00266, [17-1] in 1:99-cv-00331 (former empl) (Entered: 07/08/1999) 07/07/1999 26 COPY OF Response to ORDER to show cause by counsel for plaintiff David Chandler in 1:99-cv-00331 [25-1] in 1:99-cv-00266, [17-1] in 1:99-cv-00331 (former empl) (Entered: 07/08/1999) 06/23/1999 25 ORDER TO SHOW CAUSE: by Chief Judge Richard P. Matsch returnable 7/7/99 (cc: all counsel) (former empl) (Entered: 06/25/1999) 06/23/1999 24 ORDER by Chief Judge Richard P. Matsch granting motion to consolidate cases [19-1] in 1:99-cv-00266 (cc: all counsel) ; entry date : 6/25/99 (former empl) (Entered: 06/25/1999) 06/16/1999 DESIGNATION of Non-Party by defendant David Williams in 1:99-cv-00554, defendant Pamela Sevy in 1:99-cv-00554, defendant Dan N. Grothe in 1:99-cv- 00554, defendant Jeremy G. Dunne in 1:99-cv-00554, defendant H. DeWorth Williams in 1:99-cv-00554 (former empl) (Entered: 06/18/1999) 06/16/1999 DESIGNATION of Non-Party by defendant Laser Technology Inc in 1:99-cv- 00554 (former empl) (Entered: 06/18/1999) Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 10 of 11 06/08/1999 23 TRANSCRIPT of proceedings of 6/2/99 ( 26 pages) Prepared By: Fed Rptg (former empl) (Entered: 06/09/1999) 06/03/1999 22 STIPULATION re consolidation and ext of time (former empl) (Entered: 06/07/1999) 06/03/1999 STIPULATION for consolidation (former empl) (Entered: 06/07/1999) 06/02/1999 21 COURTROOM MINUTES by Chief Judge Richard P. Matsch granting motion to consolidate cases [19-1] in 1:99-cv-00266, granting motion for order appointing lead plaintiff and approval of co-lead counsel [12-1] in 1:99-cv- 00266, denying motion for order appointment of lead plas and appointment of lead plas lead cnsl [6-1] in 1:99-cv-00266 ; entry date : 6/7/99 Court Reporter: K. Terasaki (former empl) (Entered: 06/07/1999) 05/14/1999 20 ORDER by Chief Judge Richard P. Matsch setting hearing on motion to consolidate cases [19-1] 2:00 6/2/99 (cc: all counsel) ; entry date : 5/18/99 (former empl) (Entered: 05/18/1999) 04/23/1999 18 Supplemental AFFIDAVIT of Neil Arney opposition brief [17-1] (former empl) (Entered: 04/26/1999) 04/23/1999 17 BRIEF by Laser Technology Inc in opposition to motion for order appointment of lead plas and appointment of lead plas lead cnsl [6-1] and in further support of Laser's mtn for appntmtn of lead plf and lead counsel (former empl) (Entered: 04/26/1999) 04/14/1999 19 MOTION by plaintiff, defendant to consolidate cases (former empl) (Entered: 04/26/1999) 04/14/1999 16 Certificate of Compliance motion for order appointing lead plaintiff and approval of co-lead counsel [12-1] (former empl) (Entered: 04/22/1999) 04/14/1999 15 ORDER by Chief Judge Richard P. Matsch terminating case referral to Magistrate Judge Bruce D. Pringle (cc: all counsel) ; entry date : 4/15/99 (former empl) (Entered: 04/15/1999) 04/13/1999 14 MINUTE ORDER : by Magistrate Judge Bruce D. Pringle ; rule 16 conf vacated (cc: all counsel) ; entry date : 4/14/99 (former empl) (Entered: 04/14/1999) 04/12/1999 13 BRIEF in support of motion for order appointing lead plaintiff and approval of co-lead counsel [12-1] (former empl) (Entered: 04/14/1999) 04/12/1999 12 MOTION by Laser Technology plaintiffs group for order appointing lead plaintiff and approval of co-lead counsel (former empl) (Entered: 04/14/1999) 04/12/1999 11 LETTER to counsel re reassignment to Judge Matsch (former empl) (Entered: 04/12/1999) 04/12/1999 9 CERTIFICATE of Service by plaintiff Moshe Rosenfeld (former empl) (Entered: 04/12/1999) 04/12/1999 8 DECLARATION of Erin K. Flory by plaintiff Moshe Rosenfeld brief [7-1], motion for order appointment of lead plas and appointment of lead plas lead cnsl [6-1] (former empl) (Entered: 04/12/1999) Case 1:15-cv-02546-RM-MEH Document 170-12 Filed 09/21/17 USDC Colorado Page 11 of 11 04/12/1999 7 Memorandum of Points and Authorities (BRIEF) by plaintiff Moshe Rosenfeld in support of motion for order appointment of lead plas and appointment of lead plas lead cnsl [6-1] (former empl) (Entered: 04/12/1999) 04/12/1999 6 MOTION by plaintiff Moshe Rosenfeld for order appointment of lead plas and appointment of lead plas lead cnsl (former empl) (Entered: 04/12/1999) 04/09/1999 10 ORDER of Disqualification by Judge Edward W. Nottingham Case reassigned to Chief Judge Richard P. Matsch (cc: all counsel); entry date : 4/12/99 (former empl) (Entered: 04/12/1999) 03/22/1999 5 ORDER FOR RULE 16 CONFERENCE by Magistrate Judge Bruce D. Pringle ; Rule 16 conference set for 1:30 5/3/99 (cc: all counsel) (former empl) (Entered: 03/23/1999) 03/12/1999 4 General Case Management Order and ORDER R16,stat,stlmt,pt,pto. Dispostive motions due 1/7/00. Cases referred to Magistrate Judge Bruce D. Pringle by Judge Edward W. Nottingham (cc: to counsel) (gms) Modified on 03/17/1999 (Entered: 03/16/1999) 02/25/1999 3 LETTER to counsel re reassignment to Judge Nottingham (former empl) (Entered: 02/25/1999) 02/25/1999 2 MEMORANDUM by Judge Zita L. Weinshienk to redraw case; Case reassigned to Judge Edward W. Nottingham (former empl) (Entered: 02/25/1999) 02/10/1999 FILING FEE PAID on 2/10/99 in the amount of $ 150.00, receipt # 203152. (former empl) (Entered: 02/11/1999) 02/10/1999 1 COMPLAINT (Summons(es) issued); jury demand (former empl) (Entered: 02/11/1999) PACER Service Center Transaction Receipt 09/19/2017 22:48:57 PACER Bl0040:2514724:0 Client Code: 2133-001 Login: Search 1:99-cv-00266- Description: Docket Report Criteria: RPM Billable Pages: 7 Cost: 0.70 Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 1 of 20 EXHIBIT 9 Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 2 of 20 LEAD,TERMED U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:00-cv-01181-REB-CBS Rasner v. Vari-L Company, Inc., et al Date Filed: 06/09/2000 Assigned to: Judge Robert E. Blackburn Date Terminated: 03/28/2003 Referred to: Magistrate Judge Craig B. Shaffer Jury Demand: Both Demand: $0 Nature of Suit: 160 Stockholders Suits Cause: 15:78 Securities Exchange Act Jurisdiction: Federal Question Date Filed # Docket Text 05/23/2003 106 NOTICE of Change of address of David A. Zisser attorney for defendant Vari-L Company, Inc. in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00- cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (pap) (Entered: 05/28/2003) 05/21/2003 105 NOTICE of Change of address of Faegr & Benson LLP attorneys for dft Jon C. Clark in 1:00-cv-01181,1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00- cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (pap) (Entered: 05/22/2003) 03/28/2003 103 COURTROOM MINUTES (Fairness Hearing on Settlement Terms) by Judge Robert E. Blackburn: findings of fact and consclusions of law and orders of the court; granting plas' motion for final approval of class action settlement and plan of allocation of settlement proceeds [93-1]; granting plas' motion for attorneys' fees and reimbursement of expenses [94-1]; and the req for exclusion from the class of shareholder David Powell is granted [99-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 entry date : 3/31/03 Court Reporter: Suzanne Claar (lam) Modified on 03/31/2003 (Entered: 03/31/2003) 03/28/2003 104 FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE: by Judge Robert E. Blackburn: this Judgment incorporates by reference the definitions in the stipulation re: [87-1], [89-1]; this court has jurisdiction over the subject matter of the litigation and over all the parties to the litigation, including all members of the settlement class, except as to any individual claim of those persons (identified in Exhibit 1 hereto) who have validly and timely requested exclusion from the settlement class, the litigation as well as all of the released claims are dismissed as to the reprsentative plas and the other members of the settlement class, and as against the dfts, the parties are to bear their own costs, except as otherwise provided by the stipulation ( dismissing Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 3 of 20 cases 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv- 01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00- cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690); the Court approves the settlement set forth in the stipulation and finds that said settlement is fair and reasonable; the settling parties are directed to perform the terms of the stipulation, including the issuance of the settlement stock (and any assessment securities); any plan of allocation submitted by plas' settlement csl or any order entered re: attys' fees and expense application shall be considered separate from this Final Judgment; the court retains continuing jurisdiction over the implementation of this settlement as set forth in this Final Judgment (cc: all counsel) ; entry date : 3/31/03 (lam) Modified on 03/31/2003 (Entered: 03/31/2003) 03/28/2003 102 ORDER by Judge Robert E. Blackburn awarding plaintiffs' counsel's fees and expenses [94-1]: the court awards representative plas' csl attys' fees of 25% of that portion of the settlement fund which is not attributable to disgorgement rec'd from the SEC and reimbursement of litgation expenses in the amt of $246,690.21 together with the interest earned thereon for the same time period and at the same rate as that earned on the settlement fund until paid ; the fees and expenses shall be allocated among representative plas' csl by plas' settlement csl in a manner which, in plas' settlement csl's good-faith jgm, reflects each such Rep plas csl's contribution to the institution, prosecution and resolution of the litigation; the awarded attys' fees and expenses and interest earned thereon, shall be paid to Rep plas' csl immediately after the date this order is signed subject to the terms of the stip in 1:00-cv-01181, 1:00-cv- 01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00- cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (cc: all counsel) ; entry date : 3/28/03 (lam) Modified on 05/16/2003 (Entered: 03/28/2003) 03/28/2003 101 ORDER by Judge Robert E. Blackburn approving plan of allocation of settlement proceeds [93-1] re: stipulation of settlement dated 1/22/03; adequate ntc was directed to all persons and entities who are settlement class members and the court finds that the formula for the calculation of the claims of authorized claims as set forth in the notice of pendency and proposed settlement of class action is fair and reasonable and approves the Plan of Allocation in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (cc: all counsel) ; entry date : 3/28/03 (lam) Modified on 05/16/2003 (Entered: 03/28/2003) 03/24/2003 100 NOTICE of req for exclusion from class of shareholder David Powell re: declaration [98-1] in 1:00-cv-01181 (copy) (lam) Modified on 03/31/2003 (Entered: 03/25/2003) 03/21/2003 99 NOTICE by plaintiffs in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00- cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 of motion and motion 1. final Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 4 of 20 approval of settlement; 2. award of attys' fees and reimbursment of expenses; and 3. approval of plan of allocation of settlement proceedgs re: [94-1], [93-1] (lam) (Entered: 03/24/2003) 03/21/2003 98 DECLARATION of Cheryl Washington by plaintiffs in 1:00-cv-0118, 1:00- cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 re attached a. mailing of ntc of pendency and proposed settlement of class action, proof of claim and release; and b. publication of summary notice [93-1] (lam) (Entered: 03/24/2003) 03/21/2003 97 DECLARATION of Henry Rosen by plaintiffs in 1:00-cv-01181, 1:00-cv- 01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00- cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 in support of final approval of settlement, application for attys' fes and reimbursement of expenses and approval of plan of allocation of settlement proceeds re: [94-1], [93-1] (lam) (Entered: 03/24/2003) 03/21/2003 96 Compendium of plaintiffs' counsels' DECLARATIONS by plaintiffs 1:00-cv- 01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00- cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 in support of application for attorneys' fees and reimbursement of expenses [94-1] (lam) (Entered: 03/21/2003) 03/21/2003 95 APPENDIX of unreported decisions filed by plaintiffs 1:00-cv-01181, 1:00-cv- 01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00- cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 in support of plaintiffs' counsel's application for attorneys' fees and reimbursement of expenses [94-1] (lam) (Entered: 03/21/2003) 03/21/2003 94 Application (MOTION) by plaintiffs counsel 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 for attorneys' fees and reimbursement of expenses (lam) (Entered: 03/21/2003) 03/21/2003 93 MOTION by plaintiffs in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00- cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 for final approval of class action settlement and plan of allocation of settlement proceeds (lam) (Entered: 03/21/2003) 03/12/2003 92 ORDER by Judge Robert E. Blackburn denying dft Vari-L Company's motion to dismiss as moot w/out prej [42-1]; denying dft Kiser's motion to dismiss as moot w/out prej 50-1] in 1:00-cv-01181, 1:00-cv-01198 (cc: all counsel) ; entry date : 3/13/03 (lam) (Entered: 03/13/2003) Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 5 of 20 02/04/2003 91 Declaration of SERVICE by Susan L. Hamilton by US Mail on 2/3/03 in 1:00- cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 of order preliminary approving settlement and providing for notice [89-1] (lam) (Entered: 02/04/2003) 01/31/2003 90 Declaration of SERVICE by Susan L. Hamilton by US Mail on 1/23/03 in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 of stipulation of settlement [87-1], proposed order preliminary approving settlement & providing ntc & memorandum of points & athorities in support [88-1] (lam) (Entered: 02/03/2003) 01/30/2003 89 ORDER by Judge Robert E. Blackburn preliminarily approving settlement and providing for notice [87-1]; settlement hearing is set 3/28/03 at 1:30; the court approves, as to form and content, the notice of pendency and proposed settlement of class action (attached); in 1:00-cv-01181, 1:00-cv-01198, 1:00- cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (cc: all counsel) ; entry date : 1/30/03 (lam) (Entered: 01/30/2003) 01/23/2003 88 Memorandum of Points and Authorities (BRIEF) by plaintiffs and defendants in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv- 01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00- cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 in support of motion for preliminary approval of settlement [87-1] (lam) (Entered: 01/24/2003) 01/23/2003 87 Stipulation (MOTION) by plaintiffs, defendants in 1:00-cv-01181, 1:00-cv- 01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00- cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 for settlement (lam) (Entered: 01/24/2003) 01/17/2003 86 COURTROOM MINUTES (Telephonic Hearing - Discovery Dispute) by Magistrate Judge Craig B. Shaffer: jt mnt to ext ddl to file a stip mtn to dismiss & proposed order by 1/22/03 ; entry date : 1/21/03 Court Reporter: Tape 03-10 (lam) (Entered: 01/21/2003) 01/14/2003 85 ORDER by Judge Robert E. Blackburn ; in court fairness hrging re: settlement of this case set for 1:30 3/28/03; lead csl to file by 1/31/03 a proposed form of ntc in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00- cv-01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv-01690 (cc: all counsel) ; entry date : 1/15/03 (lam) (Entered: 01/15/2003) 01/02/2003 84 STATUS REPORT re: settlement by plaintiffs in 1:00-cv-01181, 1:00-cv- 01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00- Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 6 of 20 cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (lam) (Entered: 01/03/2003) 12/11/2002 83 MINUTE ORDER : by Magistrate Judge Craig B. Shaffer ; settlement conf held 12/10/02 ; pla to file a mtn for preliminary approval of settlement by 1/17/03 (cc: all counsel) ; entry date : 12/12/02 (lam) (Entered: 12/12/2002) 12/04/2002 82 ORDER by Magistrate Judge Craig B. Shaffer granting unopposed motion for substitutition of csl James E. Nesland & Peter A. Gergely for David A. Zisser as counsel for dft Var-L Company, Inc. [80-1] in 1:00-cv-01181, 1:00-cv- 01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00- cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (cc: all counsel) ; entry date : 12/6/02 (lam) (Entered: 12/06/2002) 12/03/2002 81 MEMORANDUM by Judge Robert E. Blackburn referring to Magistrate Judge Craig B. Shaffer the motion for substitutition of csl James E. Nesland & Peter A. Gergely for David A. Zisser for dft Var-L Company, Inc. [80-1] in 1:00-cv- 01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00- cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (dlb) (Entered: 12/04/2002) 11/27/2002 80 Unopposed MOTION by defendant Vari-L Company, Inc. in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 for substitutition of csl James E. Nesland & Peter A. Gergely for David A. Zisser for dft Var-L Company, Inc. (lam) (Entered: 11/29/2002) 11/25/2002 78 MINUTE ORDER : by Magistrate Judge Craig B. Shaffer ; further settlement conf set for 5:00 12/10/02 in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv- 01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00-cv- 01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv- 01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv- 01565, in 1:00-cv-01690 (cc: all counsel) ; entry date : 11/26/02 (lam) (Entered: 11/26/2002) 11/22/2002 79 COURTROOM MINUTES, status conference by Magistrate Judge Craig B. Shaffer. Parties to meet 12/20/20 at Rothgerber, Johnson & Lyons to continue settlement discussions. If everything is worked out, status reports are due ; entry date : 11/29/02 Court Reporter: CBS Civil Tape 2002-209,210 (gms) (Entered: 11/29/2002) 11/18/2002 77 MINUTE ORDER : by Judge Robert E. Blackburn ; status report re: issue of settlement set for 1/2/03 in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv- 01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00-cv- 01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv- 01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv- 01565, in 1:00-cv-01690 (cc: all counsel) ; entry date : 11/20/02 (lam) (Entered: 11/20/2002) Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 7 of 20 11/18/2002 76 MINUTE ORDER : by Magistrate Judge Craig B. Shaffer regarding status [75-1] report tele status conf set for 8:30 11/22/02 in 1:00-cv-01181, in 1:00- cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv- 01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv- 01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv- 01520, in 1:00-cv-01565, in 1:00-cv-01690 (cc: all counsel) ; entry date : 11/19/02 (dlb) (Entered: 11/19/2002) 11/08/2002 75 STATUS REPORT re: settlement by plaintiffs in 1:00-cv-01181, 1:00-cv- 01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00- cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (lam) (Entered: 11/12/2002) 10/16/2002 74 MINUTE ORDER : by Magistrate Judge Craig B. Shaffer ; settlement conf held 10/10/02 ; dsm papers ddl set for 11/8/02 in 1:00-cv-01181, in 1:00-cv- 01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv- 01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv- 01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv- 01520, in 1:00-cv-01565, in 1:00-cv-01690 (cc: all counsel) ; entry date : 10/18/02 (dlb) (Entered: 10/18/2002) 07/30/2002 73 MINUTE ORDER : by Magistrate Judge Craig B. Shaffer ; settlement conf set for 8:00 10/10/02 in 1:00-cv-01181 and consolidated cases (cc: all counsel) ; entry date : 7/31/02 (lam) (Entered: 07/31/2002) 07/12/2002 72 ATTORNEY APPEARANCE for defendant Vari-L Company, Inc. in 1:00-cv- 01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00- cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 by James E. Nesland, Peter Attila Gergely (lam) (Entered: 07/12/2002) 06/26/2002 MAIL Returned order [71-1] in 1:00-cv-01181,in 1:00-cv-01198 addressed to James M. Orman, Esq., 1600 Market St, Ste. 1416, Philadelphie, PA 19103 - return to sender (lam) (Entered: 06/26/2002) 06/17/2002 71 ORDER by Judge Robert E. Blackburn granting motion to withdraw Reed Michael Brodsky and Wilmer, Cutler & Pickering as counsel [70-1] for dft Joseph H. Kiser in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv- 01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00- cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (cc: all counsel) ; entry date : 6/18/02 (lam) (Entered: 06/18/2002) 06/13/2002 70 MOTION by defendant Joseph H. Kiser in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 to withdraw Wilmer, Cutler & Pickering as counsel (lam) (Entered: 06/14/2002) 04/03/2002 Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 8 of 20 MAIL Returned minute order [69-1] addressed to Brian Felgoise, Esq in 1:00- cv-01181 and consolidated cases - attempted not known (lam) (Entered: 04/04/2002) 04/01/2002 MAIL Returned minute order [68-2] addressed to Brian Felgoise, Esq. in 1:00- cv-01181 and consolidated cases - not deliverable as addressed/unable to forward (lam) Modified on 04/08/2002 (Entered: 04/08/2002) 03/20/2002 69 MINUTE ORDER : by Judge Robert E. Blackburn granting defendant Kiser's motion for leave to file reply memorandum in support of motion to dismiss [63-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00- cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (cc: all counsel) ; entry date : 3/21/02 (lam) (Entered: 03/21/2002) 03/14/2002 68 MINUTE ORDER : by Judge Daniel B. Sparr Case reassigned to Judge Robert E. Blackburn (cc: all counsel) ; entry date : 3/14/02 (former empl) (Entered: 03/14/2002) 03/01/2002 67 REPLY by dft, Vari-L Company, Inc. to Lead Pla's response to dft's motion to dismiss for failure to state a claim [42-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (dlb) (Entered: 03/01/2002) 03/01/2002 66 REPLY by dft Joseph H. Kiser to pla's response to dft's motion to dismiss all claims against him in the consolidated amended class action complaint [50-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv- 01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00- cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (dlb) (Entered: 03/01/2002) 03/01/2002 65 MINUTE ORDER : by Judge Daniel B. Sparr granting motion for leave to file a reply to pla's opposition to dft's mtn to dism [58-1] in 1:00-cv-01181, granting motion to file first amended answer to class action complaint [59-1] in 1:00-cv-01181, granting motion for leave to file reply memo in supp of mtn to dism [63-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (cc: all counsel) ; entry date : 3/1/02 (dlb) (Entered: 03/01/2002) 02/19/2002 64 BRIEF by Lead Pla's in opposition to dft's motion for leave to file reply memo in supp of mtn to dism [63-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv- 01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00- cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (dlb) (Entered: 02/20/2002) 02/07/2002 Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 9 of 20 Tendered Reply Memo re: motion for leave to file reply memo in supp of mtn to dism [63-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv- 01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00- cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (dlb) (Entered: 02/08/2002) 02/07/2002 63 MOTION by dft, Joseph Kiser for leave to file reply memo in supp of mtn to dism (dlb) (Entered: 02/08/2002) 01/28/2002 62 NOTICE of Change of Address of Weinstein Kitchenoff Scarlato& Goldman Ltd counsel for Pla, Michael Rasner (dlb) (Entered: 01/29/2002) 01/23/2002 61 BRIEF by Lead Pla's in opposition to Dft, Kiser's motion to dismiss all claims against him in the consolidated amended class action complaint [50-1] in 1:00- cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (dlb) (Entered: 01/24/2002) 01/18/2002 60 Certificate of Compliance by defendant Jon C. Clark in 1:00-cv-01181 and member cases re: motion to file first amended answer to class action complaint [59-1] (lam) (Entered: 01/18/2002) 01/18/2002 Tendered amended answer submitted by defendant Jon C. Clark re: motion to file first amended answer to class action complaint [59-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (lam) (Entered: 01/18/2002) 01/18/2002 59 Unopposed MOTION by defendant Jon C. Clark in 1:00-cv-01181 1:00-cv- 01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00- cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465,1:00- cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 to file first amended answer to class action complaint (lam) (Entered: 01/18/2002) 01/10/2002 Tendered Memo in Opposition re: motion for leave to file a reply to pla's opposition to dft's mtn to dism [58-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00- cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (dlb) (Entered: 01/10/2002) 01/10/2002 58 MOTION by dft, Vari-L Company, Inc. for leave to file a reply to pla's opposition to dft's mtn to dism (dlb) (Entered: 01/10/2002) 01/03/2002 57 NOTICE of Change of Address of William S. Lerach, Esq., counsel for pla's (dlb) (Entered: 01/04/2002) 01/03/2002 56 MINUTE ORDER : by Judge Daniel B. Sparr regarding [50-1] Joseph H. Kiser's motion to dismiss all claims against him in the consolidated amended class action complaint in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00- cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 10 of 20 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690, pla has to 1/23/02 to file a response, no reply w/be allowed (cc: all counsel) ; entry date : 1/4/02 (dlb) (Entered: 01/04/2002) 01/03/2002 55 ORDER R16,stat,stlmt,pt,pto referred to Magistrate Judge Craig B. Shaffer by Judge Daniel B. Sparr (cc: to counsel) (dlb) Modified on 03/25/2003 (Entered: 01/04/2002) 12/20/2001 54 BRIEF by Lead Pla's in opposition to dft, Vari-L Company, Inc's motion to dismiss for failure to state a claim [42-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (dlb) (Entered: 12/21/2001) 12/17/2001 53 NOTICE of Change of Address of Spector, Roseman & Kodroff, PC attys for plas (dlb) (Entered: 12/17/2001) 12/17/2001 52 NOTICE of Change of Address of Milberg Weiss Bershad Hynes &Lerach, LLP attys for plas (dlb) (Entered: 12/17/2001) 12/14/2001 51 BRIEF dft, Joseph H. Kiser in support of motion to dismiss all claims against him in the consolidated amended class action complaint [50-1] in 1:00-cv- 01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00- cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (dlb) (Entered: 12/17/2001) 12/14/2001 50 MOTION by Dft, Joseph H. Kiser to dismiss all claims against him in the consolidated amended class action complaint (dlb) (Entered: 12/17/2001) 12/14/2001 49 ANSWER by Dft, Derek L. Bailey to consolidated amended class action complaint [32-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv- 01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00- cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690; jury demand (dlb) (Entered: 12/17/2001) 12/13/2001 48 ANSWER by Dft, David G. Sherman to pla's Consolidated Amended Class Action complaint [32-1] in 1:00-cv-01181, complaint [0-1] in 1:00-cv-01198, complaint [0-1] in 1:00-cv-01217, complaint [0-1] in 1:00-cv-01238, complaint [0-1] in 1:00-cv-01241, complaint [0-1] in 1:00-cv-01292, complaint [0-1] in 1:00-cv-01395, complaint [0-1] in 1:00-cv-01401, complaint [0-1] in 1:00-cv-01409, complaint [0-1] in 1:00-cv-01460, complaint [0-1] in 1:00-cv-01465, complaint [0-1] in 1:00-cv-01493, complaint [0-1] in 1:00-cv-01518, complaint [0-1] in 1:00-cv-01520, complaint [0-1] in 1:00-cv-01565, complaint [0-1] in 1:00-cv-01690 (dlb) (Entered: 12/13/2001) 11/30/2001 47 MINUTE ORDER : by Judge Daniel B. Sparr granting Sherman's motion to clarify complaint [32-1] his obligation to resp to pla's complaint [43-1] , regarding Pla's Consolidated Amended [32-1] complaint regarding [42-1] Vari- Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 11 of 20 L's motion to dismiss for failure to state a claim in 1:00-cv-01181, 1:00-cv- 01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00- cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690, resp are due by 11/20/01, no reply w/be accepted (cc: all counsel) ; entry date : 12/3/01 (dlb) (Entered: 12/03/2001) 11/30/2001 46 ORDER by Judge Daniel B. Sparr granting in part Vari-L's motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [34-1] , regarding [32-1] complaint in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv- 01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00- cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690. The request for stay is denied but dfts are granted to 11/23/01 to resp to the consolidated amended comp (cc: all counsel) ; entry date : 12/3/01 (dlb) (Entered: 12/03/2001) 11/26/2001 45 JOINDER by defendant Joseph H. Kiser in 1:00-cv-01181 in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00- cv-01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv- 01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv- 01690 his obligation to resp to pla's complaint [43-1] in 1:00-cv-01181 (pap) (Entered: 11/27/2001) 11/26/2001 44 JOINDER by Dft, Jon L. Clark in Dft, David G. Sherman's motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00- cv-01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv- 01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv- 01690 his obligation to resp to pla's complaint [43-1] in 1:00-cv-01181, in complaint [32-1] in 1:00-cv-01181, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00- cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv- 01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv- 01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01198, in complaint [0-1] in 1:00-cv- 01198, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv- 01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv- 01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv- 01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv- 01520, in 1:00-cv-01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01217, in complaint [0-1] in 1:00-cv-01217, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00- cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv- 01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv- 01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00- cv-01238, in complaint [0-1] in 1:00-cv-01238, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv- Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 12 of 20 01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00-cv- 01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv- 01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv- 01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01241, in complaint [0-1] in 1:00-cv-01241, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00- cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv- 01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv- 01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01292, in complaint [0-1] in 1:00-cv- 01292, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv- 01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv- 01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv- 01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv- 01520, in 1:00-cv-01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01395, in complaint [0-1] in 1:00-cv-01395, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00- cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv- 01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv- 01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00- cv-01401, in complaint [0-1] in 1:00-cv-01401, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv- 01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00-cv- 01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv- 01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv- 01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01409, in complaint [0-1] in 1:00-cv-01409, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00- cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv- 01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv- 01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01460, in complaint [0-1] in 1:00-cv- 01460, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv- 01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv- 01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv- 01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv- 01520, in 1:00-cv-01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01465, in complaint [0-1] in 1:00-cv-01465, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00- cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv- 01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv- 01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00- cv-01493, in complaint [0-1] in 1:00-cv-01493, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv- 01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00-cv- 01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv- 01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv- Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 13 of 20 01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01518, in complaint [0-1] in 1:00-cv-01518, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00- cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv- 01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv- 01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01520, in complaint [0-1] in 1:00-cv- 01520, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv- 01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv- 01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv- 01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv- 01520, in 1:00-cv-01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00-cv-01565, in complaint [0-1] in 1:00-cv-01565, in motion to clarify complaint [32-1] in 1:00-cv-01181, in 1:00-cv-01198, in 1:00-cv-01217, in 1:00-cv-01238, in 1:00-cv-01241, in 1:00-cv-01292, in 1:00- cv-01395, in 1:00-cv-01401, in 1:00-cv-01409, in 1:00-cv-01460, in 1:00-cv- 01465, in 1:00-cv-01493, in 1:00-cv-01518, in 1:00-cv-01520, in 1:00-cv- 01565, in 1:00-cv-01690 his obligation to resp to pla's complaint [0-1] in 1:00- cv-01690, in complaint [0-1] in 1:00-cv-01690 (dlb) (Entered: 11/26/2001) 11/21/2001 43 MOTION by dft, David Sherman to clarify complaint [32-1] 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 his obligation to resp to pla's complaint (dlb) Modified on 11/29/2001 (Entered: 11/23/2001) 11/21/2001 42 MOTION by Dft, Vari-L Company, Inc. to dismiss for failure to state a claim (dlb) (Entered: 11/23/2001) 11/20/2001 41 AFFIDAVIT of Jeffrey C. Block in support re: motion response [39-1] in 1:00- cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292,1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (pap) (Entered: 11/21/2001) 11/19/2001 40 EXHIBITS by Lead plaintiffs motion response [39-1] in 1:00-cv-01181, to motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [34-1] (dlb) (Entered: 11/20/2001) 11/19/2001 39 RESPONSE by Lead Plaintiff's to motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [34-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv-01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00-cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690 (dlb) (Entered: 11/20/2001) 11/01/2001 38 JOINDER by Dft, Joseph H. Kiser in Vari-L Company's motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [34-1] in 1:00-cv-01181, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01198, in motion to Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 14 of 20 stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01217, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01238, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01241, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00- cv-01292, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01395, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01401, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01409, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01460, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01465, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01493, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00- cv-01518, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01520, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01565, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01690 (dlb) (Entered: 11/02/2001) 11/01/2001 37 JOINDER by Dft, Derek L. Bailey in Vari-L Company's motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [34-1] in 1:00-cv-01181, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01198, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01217, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01238, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01241, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00- cv-01292, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01395, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01401, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01409, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01460, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01465, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01493, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00- cv-01518, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01520, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01565, in motion to stay proceeding or extend time to answer Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 15 of 20 to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01690 (dlb) (Entered: 11/01/2001) 10/31/2001 36 JOINDER by Dft, David G. Sherman in Vari-L Company's motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [34-1] in 1:00-cv-01181, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01198, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01217, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01238, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01241, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00- cv-01292, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01395, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01401, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01409, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01460, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01465, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01493, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00- cv-01518, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01520, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01565, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01690 (dlb) (Entered: 11/01/2001) 10/31/2001 35 JOINDER by Dft, Jon L. Clark in Vari-L Company's motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [34-1] in 1:00-cv-01181, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01198, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01217, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01238, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01241, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00- cv-01292, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01395, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01401, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01409, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01460, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01465, in motion to stay proceeding or extend time to answer to the consolidated amd Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 16 of 20 comp to 11/23/01 [0-1] in 1:00-cv-01493, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00- cv-01518, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01520, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01565, in motion to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 [0-1] in 1:00-cv-01690 (dlb) (Entered: 11/01/2001) 10/31/2001 34 MOTION by Dft, Vari-L to stay proceeding or extend time to answer to the consolidated amd comp to 11/23/01 (dlb) (Entered: 11/01/2001) 10/12/2001 33 NOTICE by pla's of Change of firm name of Burt & Pucillo, LLP to Berman DeValerio Pease Tabacco Burt & Pucillo (dlb) (Entered: 10/15/2001) 10/09/2001 32 Consolidated Class Action AMENDED COMPLAINT [1-1] in 1:00-cv-01181 by plaintiff Michael Rasner, et al. jury demand; adding defendant Derek L. Bailey to lead case 1:00-cv-01181 (dlb) (Entered: 10/10/2001) 05/10/2001 31 NOTICE of Change of Firm Name for Michael D. Conovan from Donovan Miller LLC to Donovan Searles LLC (gms) Modified on 05/11/2001 (Entered: 05/11/2001) 01/17/2001 30 NOTICE of Change of Address of David W. Stark by defendant Jon C. Clark in 1:00-cv-01181, defendant Jon L. Clark in 1:00-cv-01198, defendant Jon C. Clark in 1:00-cv-01217, defendant Jon L. Clark in 1:00-cv-01238, defendant Jon C. Clark in 1:00-cv-01241, defendant Jon L. Clark in 1:00-cv-01292, defendant Jon C. Clark in 1:00-cv-01395, defendant Jon L. Clark in 1:00-cv- 01401, defendant Jon L. Clark in 1:00-cv-01409, defendant Jon L. Clark in 1:00-cv-01460, defendant Jon C. Clark in 1:00-cv-01465, defendant Jon C. Clark in 1:00-cv-01493, defendant Jon L. Clark in 1:00-cv-01518, defendant Jon C. Clark in 1:00-cv-01520, defendant Jon L. Clark in 1:00-cv-01565, defendant Jon C. Clark in 1:00-cv-01690 (former empl) (Entered: 01/17/2001) 01/05/2001 29 NOTICE of Change of Address of Charles Lilley & Associates to Li,ley & Garcia LLP by plaintiff Michael Rasner in 1:00-cv-01181 (former empl) (Entered: 01/09/2001) 01/05/2001 28 ATTORNEY APPEARANCE for plaintiff Michael Rasner in 1:00-cv-01181 by Charles J. Piven (former empl) (Entered: 01/09/2001) 01/05/2001 27 STIPULATION re: scheduling filing of: First Amended Consolidated Complaint and REsponsive Pleadings; Service of Pleadings; and Preservation of Documents filed by plaintiff Michael Rasner in 1:00-cv-01181, defendant Vari-L Company, Inc. in 1:00-cv-01181, defendant David G. Sherman in 1:00- cv-01181, defendant Joseph H. Kiser in 1:00-cv-01181, defendant Jon C. Clark in 1:00-cv-01181 (former empl) (Entered: 01/09/2001) 10/31/2000 26 ATTORNEY APPEARANCE for defendant Joseph H. Kiser in 1:00-cv-01181, defendant Joseph H. Kiser in 1:00-cv-01198, defendant Joseph H. Kiser in 1:00-cv-01217, defendant Joseph H. Kiser in 1:00-cv-01238, defendant Joseph H. Kiser in 1:00-cv-01241, defendant Joseph H. Kiser in 1:00-cv-01292, defendant Joseph H. Kiser in 1:00-cv-01395, defendant Joseph H. Kiser in Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 17 of 20 1:00-cv-01401, defendant Joseph H. Kiser in 1:00-cv-01409, defendant Joseph H. Kiser in 1:00-cv-01460, defendant Joseph H. Kiser in 1:00-cv-01465, defendant Joseph H. Kiser in 1:00-cv-01493, defendant Joseph H. Kiser in 1:00-cv-01518, defendant Joseph H. Kiser in 1:00-cv-01520, defendant Joseph H. Kiser in 1:00-cv-01565, defendant Joseph H. Kiser in 1:00-cv-01690 by Reed Michael Brodsky (former empl) (Entered: 11/01/2000) 10/17/2000 25 ATTORNEY APPEARANCES for defendant Joseph H. Kiser in 1:00-cv- 01181, in 1:00-cv-01198, in 1:00-cv-01217, Joseph in 1:00-cv-01238, in 1:00- cv-01241, in 1:00-cv-01292, in 1:00-cv-01395, in 1:00-cv-01401, in 1:00-cv- 01409, in 1:00-cv-01460, in 1:00-cv-01465, in 1:00-cv-01493, in 1:00-cv- 01518, in 1:00-cv-01520, in 1:00-cv-01565, in 1:00-cv-01690 by Frederick J. Baumann, Christopher Taylor Sullivan (former empl) (Entered: 10/19/2000) 10/12/2000 24 RETURN OF SERVICE of Summons and Complaint upon Nora Kiser, wife of Joseph H. Kiser, for defendant Joseph H. Kiser in 1:00-cv-01520 on 10/5/00 (former empl) (Entered: 10/16/2000) 10/12/2000 23 RETURN OF SERVICE of Summons and Complaint upon defendant David G. Sherman in 1:00-cv-01520 on 10/4/00 (former empl) (Entered: 10/16/2000) 10/12/2000 22 RETURN OF SERVICE of Summons and Complaint upon Derek Bailey, Vice President of defendant Vari-L Company Inc in 1:00-cv-01520 on 10/3/00 (former empl) (Entered: 10/16/2000) 10/03/2000 21 CERTIFICATE of Service of Entry of Appearance, etc. by plaintiff in 1:00-cv- 01520 (former empl) (Entered: 10/04/2000) 10/03/2000 20 ATTORNEY APPEARANCE for plaintiff Robert H. Schmidt in 1:00-cv- 01520 by Marc I. Gross (former empl) (Entered: 10/04/2000) 09/06/2000 19 ORDER signed 9/1/00, filed 9/6/00 by Judge Daniel B. Sparr granting stipulation NAMING class members Columbus Circle Investors, Steven D. Thomas and Susan E. Thomas, and Abraham Kadisha to serve as Lead Plaintiffs for Class of purchsers of Vari-L Company Inc securities from 12/17/97 thru 7/6/2000; appointing as co-lead counsel for the Class Schiffrin & Barroway,m LLP, Milberg Weiss Bershad Hynes & Lerach LLP, and Berman DeValerio & Pease, LLP with attendant responsibilities as set forth; and Charles Lilley & Associate is approved as Liaison Counsel for the Class [18-1] in 1:00-cv-01181, 1:00-cv-01198, 1:00-cv-01217, 1:00-cv-01238, 1:00-cv- 01241, 1:00-cv-01292, 1:00-cv-01395, 1:00-cv-01401, 1:00-cv-01409, 1:00- cv-01460, 1:00-cv-01465, 1:00-cv-01493, 1:00-cv-01518, 1:00-cv-01520, 1:00-cv-01565, 1:00-cv-01690, granting without prejudice the withdrawal of motion for order appointing movants as lead plaintiffs and to approve movants' selection of lead counsel [9-1] in 1:00-cv-01181, motion to be appointed lead pltf and for approval of lead pltf's selection of lead counsel and liaison counsel [6-1] in 1:00-cv-01181, motion for order to be appointed lead plaintiff and for approval of lead pltfs choice of co-lead counsel [14-1] in 1:00-cv-01181 (cc: all counsel) ; entry date : 9/20/00 (former empl) (Entered: 09/20/2000) 08/30/2000 18 STIPULATION re: among pltfs in support of the appointment of lead pltfs and for approval of lead pltfs' selection of lead counsel and liason counsel, Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 18 of 20 Agreeing: remaining motion pending motion for appointment of lead ptlf/lead counsel are withdrawn without prejudice; request court apoint Columbus Circle Investors, Steven D. Thomas and Susan E. Thomas, and Abraham Kadisha as lead pltfs for the Class of pruchasers of Varii-L Company Inc; the court approve lead pltfs' section of Schiffrin & Barroway, LLP, Milberg Weiss Bershad Hynes & Lerach LLP adn Berman, DeValerio & Pease, LLP as co- lead counsel and Charles Lilley & Associates as Liaison counsel (former empl) (Entered: 09/01/2000) 08/30/2000 17 ORDER signed 8/29/00, filed 8/30/00 by Judge Daniel B. Sparr sua sponte granting motion to consolidate cases 00-S-1518 and 00-S-1181 [15-1] 1:00-cv- 1181 with member cases 1:00-cv-1181, granting document withdraw [16-1], withdrawing motion for order appointing Sevedge and Smith as co-lead pltfs and for approval of lead counsel [11-1]; all future filings to be in 00-S-1181; dft are to answer or otherwise respond to the Consolidated Complaint was previously extended until 20 days after the amended complaint is filed by lead pltf appointed by the court (cc: all counsel) ; entry date : 9/1/00 (former empl) (Entered: 09/01/2000) 08/18/2000 15 Copy of MOTION filed in 00-S-1518 by defendants Vari-L Company, Inc. , David G. Sherman, Joseph H. Kiser and Jon C. Clark in 1:00-cv-01181 to consolidate cases 00-S-1518 and 00-S-1181 (former empl) (Entered: 08/18/2000) 08/17/2000 16 NOTICE by J.P. Sevedge and Jimmy J. Smith in 1:00-cv-01181 of withdrawal of motion for order appointing Sevedge and Smith as co-lead pltfs and for approval of lead counsel [11-1] (former empl) (Entered: 08/21/2000) 08/11/2000 5 RETURN OF SERVICE of Summons and class action Complaint Certification of named pltf pursuant to federal securities law Instructuions Re Notice of Availability of US Magistrate Judge Judge to Exercise Jurisdiction purs to 28 USC 636(c), Local Rule 72.6 upon Dan Wilmot personally as Vice President of dft company in 1:00-cv-01460 on 8/10/00 (former empl) (Entered: 08/15/2000) 08/08/2000 13 DECLARATION of Arthur L. Shingler *NOT ORIGINAL SIGNATURE- ONLY FAX* filed by J.P. Sevedge and Jimmy J. Smith in 1:00-cv-01181 re: motion for order appointing Sevedge and Smith as co-lead pltfs and for approval of lead counsel [11-1] (former empl) (Entered: 08/15/2000) 08/08/2000 12 Memorandum (BRIEF) by J.P. Sevedge and Jimmy J. Smith in 1:00-cv-01181 in support of motion for order appointing Sevedge and Smith as co-lead pltfs and for approval of lead counsel [11-1] (former empl) (Entered: 08/15/2000) 08/08/2000 11 MOTION by J.P. Sevedge and Jimmy J. Smith in 1:00-cv-01181 for order appointing Sevedge and Smith as co-lead pltfs and for approval of lead counsel (former empl) (Entered: 08/15/2000) 08/08/2000 10 Memorandum of Law (BRIEF) by Bulldog Capital Mgmt and Abraham Kadisha in 1:00-cv-01181 in support of motion for order appointing movants as lead plaintiffs and to approve movants' selection of lead counsel [9-1] (former empl) (Entered: 08/15/2000) Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 19 of 20 08/08/2000 9 MOTION by Bulldog Capital Mgmt in and Abraham Kadisha in 1:00-cv- 01181 for order appointing movants as lead plaintiffs and to approve movants' selection of lead counsel (former empl) (Entered: 08/15/2000) 08/08/2000 8 AFFIDAVIT of Stuart L. Berman re: motion to be appointed lead pltf and for approval of lead pltf's selection of lead counsel and liaison counsel [6-1] (former empl) (Entered: 08/15/2000) 08/08/2000 7 Memorandum of Law (BRIEF) by Columbus Circle in 1:00-cv-01181 in support of motion to be appointed lead pltf and for approval of lead pltf's selection of lead counsel and liaison counsel [6-1] (former empl) (Entered: 08/15/2000) 08/08/2000 6 MOTION by Columbus Circle in 1:00-cv-01181 to be appointed lead pltf and for approval of lead pltf's selection of lead counsel and liaison counsel (former empl) (Entered: 08/15/2000) 08/03/2000 14 MOTION by pltf's Vari-L Group in 1:00-cv-01181 for order to be appointed lead plaintiff and for apporval of lead pltfs choice of co-lead counsel (former empl) (Entered: 08/15/2000) 08/03/2000 4 ORDER by Judge Daniel B. Sparr: dfts' unopposed Rule 42(a) motion to consolidate action and Rule 6(b) motion to enlarge the time w/in which dfts may respond to the complaints is granted [3-1], [3-1]; Consolidating Civil Action Nos. 00-WY-1198-CB, 00-S-1217, 00-S-1238, 00-S-1241, 00-S-1292, 00-S-1395, 00-S-1401, 00-S-1409, 00-2-1460, 00-S-1465, and 00-S-1493 for all purposed under the caption of Civil Action No.00-S-1181; all further pleadings in the consolidated cases shall be filed under the caption of the Civil Action No. 00-S-1181; the time w/in which dfts are to answer or otherwise respond to the consolidated complaint is extended until 20 days after dfts are served with an amended complaint filed by the lead plaintiff appointed by the court (cc: all counsel) ; entry date : 8/9/00 (lam) (Entered: 08/09/2000) 07/11/2000 3 MOTION by defendant Vari-L Company, Inc., defendant David G. Sherman, defendant Jon C. Clark to consolidate cases: 00-S-1181, 00-WY-1198-CB, 00- S-1241, 00-S-1217, 00-S-1238 , and to extend time to answer (former empl) (Entered: 07/14/2000) 06/30/2000 2 WAIVER OF SERVICE of Summons and Complaint by defendant Vari-L Company, Inc., defendant David G. Sherman, defendant Joseph H. Kiser, defendant Jon C. Clark on 6/22/00 (gms) (Entered: 07/03/2000) 06/09/2000 FILING FEE PAID: on 6/9/00 in the amount of $ 150, receipt # 216901. (former empl) (Entered: 06/12/2000) 06/09/2000 1 COMPLAINT (Summons(es) issued); jury demand (former empl) (Entered: 06/12/2000) PACER Service Center Transaction Receipt Case 1:15-cv-02546-RM-MEH Document 170-13 Filed 09/21/17 USDC Colorado Page 20 of 20 09/19/2017 22:54:01 PACER Bl0040:2514724:0 Client Code: 2133-001 Login: Search 1:00-cv-01181- Description: Docket Report Criteria: REB-CBS Billable 14 Cost: 1.40 Pages: Case 1:15-cv-02546-RM-MEH Document 170-14 Filed 09/21/17 USDC Colorado Page 1 of 9 EXHIBIT 10 Case 1:15-cv-02546-RM-MEH Document 170-14 Filed 09/21/17 USDC Colorado Page 2 of 9 Case 2:03-cv-00062-PGC Document 92 Filed 03/16/04 Page 1 of 8 Case 1:15-cv-02546-RM-MEH Document 170-14 Filed 09/21/17 USDC Colorado Page 3 of 9 Case 2:03-cv-00062-PGC Document 92 Filed 03/16/04 Page 2 of 8 Case 1:15-cv-02546-RM-MEH Document 170-14 Filed 09/21/17 USDC Colorado Page 4 of 9 Case 2:03-cv-00062-PGC Document 92 Filed 03/16/04 Page 3 of 8 Case 1:15-cv-02546-RM-MEH Document 170-14 Filed 09/21/17 USDC Colorado Page 5 of 9 Case 2:03-cv-00062-PGC Document 92 Filed 03/16/04 Page 4 of 8 Case 1:15-cv-02546-RM-MEH Document 170-14 Filed 09/21/17 USDC Colorado Page 6 of 9 Case 2:03-cv-00062-PGC Document 92 Filed 03/16/04 Page 5 of 8 Case 1:15-cv-02546-RM-MEH Document 170-14 Filed 09/21/17 USDC Colorado Page 7 of 9 Case 2:03-cv-00062-PGC Document 92 Filed 03/16/04 Page 6 of 8 Case 1:15-cv-02546-RM-MEH Document 170-14 Filed 09/21/17 USDC Colorado Page 8 of 9 Case 2:03-cv-00062-PGC Document 92 Filed 03/16/04 Page 7 of 8 Case 1:15-cv-02546-RM-MEH Document 170-14 Filed 09/21/17 USDC Colorado Page 9 of 9 Case 2:03-cv-00062-PGC Document 92 Filed 03/16/04 Page 8 of 8 Case 1:15-cv-02546-RM-MEH Document 170-15 Filed 09/21/17 USDC Colorado Page 1 of 6 EXHIBIT 11 Case 1:15-cv-02546-RM-MEH Document 170-15 Filed 09/21/17 USDC Colorado Page 2 of 6 Ecug!5<24.ex.11268.CYC.NTN!!!Fqewogpv!317!!!Hkngf!22028027!!!Rcig!2!qh!6!RcigKF$!6313 Case 1:15-cv-02546-RM-MEH Document 170-15 Filed 09/21/17 USDC Colorado Page 3 of 6 Ecug!5<24.ex.11268.CYC.NTN!!!Fqewogpv!317!!!Hkngf!22028027!!!Rcig!3!qh!6!RcigKF$!6314 Case 1:15-cv-02546-RM-MEH Document 170-15 Filed 09/21/17 USDC Colorado Page 4 of 6 Ecug!5<24.ex.11268.CYC.NTN!!!Fqewogpv!317!!!Hkngf!22028027!!!Rcig!4!qh!6!RcigKF$!6315 Case 1:15-cv-02546-RM-MEH Document 170-15 Filed 09/21/17 USDC Colorado Page 5 of 6 Ecug!5<24.ex.11268.CYC.NTN!!!Fqewogpv!317!!!Hkngf!22028027!!!Rcig!5!qh!6!RcigKF$!6316 Case 1:15-cv-02546-RM-MEH Document 170-15 Filed 09/21/17 USDC Colorado Page 6 of 6 Ecug!5<24.ex.11268.CYC.NTN!!!Fqewogpv!317!!!Hkngf!22028027!!!Rcig!6!qh!6!RcigKF$!6317 Case 1:15-cv-02546-RM-MEH Document 170-16 Filed 09/21/17 USDC Colorado Page 1 of 5 EXHIBIT 12 Case 1:15-cv-02546-RM-MEH Document 170-16 Filed 09/21/17 USDC Colorado Page 2 of 5 Ecug!2<21.ex.11489.NRU.ORV!!!Fqewogpv!419!!!Hkngf!17037025!!!Rcig!2!qh!5!RcigKF!$ EXHIBIT 13 Case 1:15-cv-02546-RM-MEH Document 170-17 Filed 09/21/17 USDC Colorado Page 2 of Ecug!3<26.ex.11537.DTQ.LGO!!!Fqewogpv!225!!!Hkngf!22025027!!!Rcig!2!qh!44!!!Rcig!KF!$<2711 34 >;@=1 G@;F65 EF2F6E 5;EFD;4F 4AGDF 46@FD2> 5;EFD;4F A7 42>;7AD@;2 4;H;> ?;@GF6E g 86@6D2> IgZhZci7 M]Z AdcdgVWaZ 36H6D>K D6;5 Ah4A@@6>>$ G[VaRQ EaNaR` 5V`a_VPa B_\PRRQV[T`1 &BG AD56D D61 ?AF;A@ 7AD 7;@2> 2BBDAH2> A7 4>2EE 24F;A@ E6FF>6?6@F L0+M 2@5 ?AF;A@ 7AD 2@ 2I2D5 A7 2FFAD@6KEh 766E 2@5 D6;?3GDE6?6@F A7 6JB6@E6E L0,M ;& ;@FDA5G4F;A@ IZcY^c\ WZ[dgZ i]Z 2& B_\PRQb_NY 3NPXT_\b[Q Hc dg V[iZg CVcjVgn /.) /-.2) i]gZZ XVhZh lZgZ XdbbZcXZY ^c i]Z N+L+ =^hig^Xi 4;H;> ?;@GF6E g 86@6D2> l]^X] ]Z hdj\]i id gZegZhZci Vaa ^cY^k^YjVah l]d ejgX]VhZY dg di]Zgl^hZ VXfj^gZY FZYWdm Xdbbdc hidX` WZilZZc GdkZbWZg /-) /-.0 VcY =ZXZbWZg /6) /-.1+ &Crystal v. 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Chrysler Corp.) .2- ?+0Y .-..) .-/- &6i] <^g+ .665''+ AZgZ) EZVY IaV^ci^[[h VaaZ\ZY i]Vi t=Z[ZcYVcihw b^hgZegZhZciVi^dch gZaViZY id FZYWdmwh gZkZcjZh VcY ZmZXji^kZ \dkZgcVcXZ gZhjaiZY ^c Vgi^[^X^Va eg^XZ ^c[aVi^dc d[ FZYWdm hZXjg^i^Zh i]Vi EZVY IaV^ci^[[h ejgX]VhZY) VcY i]Vi jedc Y^hXadhjgZ d[ i]Z VaaZ\ZY b^hgZegZhZciVi^dch) i]Z kVajZ d[ i]Z hZXjg^i^Zh ejgX]VhZY Wn EZVY IaV^ci^[[h YZXa^cZY+u &?^cVa 9eeg+ Fdi+ Vi /.+' Hi]Zg XaVhh bZbWZgh h^b^aVgan ldjaY XaV^b YVbV\Zh gZhjai^c\ [gdb i]Z hVbZ b^hgZegZhZciVi^dch VcY adhh d[ kVajZ+ EZVY 4;H;> ?;@GF6E g 86@6D2> Q& 2QR^bNPf KjaZ /0&V'&1' gZfj^gZh eaV^ci^[[h id h]dl i]Vi ti]Z gZegZhZciVi^kZ eVgi^Zh l^aa [V^gan VcY VYZfjViZan egdiZXi i]Z ^ciZgZhih d[ i]Z XaVhh+u ?ZY+ K+ <^k+ I+ /0&V'&1'+ KZegZhZciVi^dc ^h VYZfjViZ l]Zc i]Z XaVhh gZegZhZciVi^kZ VcY XdjchZa Yd cdi ]VkZ Vcn Xdc[a^Xih d[ ^ciZgZhi l^i] di]Zg XaVhh bZbWZgh) VcY i]Z gZegZhZciVi^kZ eaV^ci^[[ VcY XdjchZa l^aa egdhZXjiZ i]Z VXi^dc k^\dgdjhan dc WZ]Va[ d[ i]Z XaVhh+ Flo & Eddie, /-.2 PE 144360/) Vi (.- &X^i^c\ Evon v. Law Offices of Sidney Mickell) 355 ?+0Y .-.2) .-0. &6i] <^g+ /-./''+ 9h EZVY EZVY IaV^ci^[[h VcY EZVY &?^cVa 9eeg+ Fdi+ Vi //+' M]Z *& DbYR )*"O# N& 4\ZZ\[ CbR`aV\[` B_RQ\ZV[NaR KjaZ /0&W' XVc WZ hVi^h[^ZY ^c dcZ d[ i]gZZ lVnh+ Bc XVhZh a^`Z i]^h dcZ) l]ZgZ IaV^ci^[[h VhhZgi ^cY^k^YjVa^oZY bdcZiVgn XaV^bh) XZgi^[^XVi^dc ^h egdeZgan Xdch^YZgZY jcYZg KjaZ /0&W'&0'+ Wal–Mart) 231 N+L+ Vi 03.+ Md XZgi^[n V XaVhh jcYZg KjaZ /0&W'&0') V Xdjgi bjhi [^cY i]Vi ti]Z fjZhi^dch d[ aVl dg [VXi Xdbbdc id XaVhh bZbWZgh egZYdb^cViZ dkZg Vcn fjZhi^dch V[[ZXi^c\ dcan ^cY^k^YjVa bZbWZgh+u ?ZY+ K+ <^k+ I+ /0&W'&0'+ 4;H;> ?;@GF6E g 86@6D2> M]Z egZYdb^cVcXZ iZhi \Vj\Zh7 l]Zi]Zg egdedhZY XaVhhZh VgZ hj[[^X^Zcian Xd]Zh^kZ id lVggVci VY_jY^XVi^dc Wn gZegZhZciVi^dc + + + TVcYU [dXjhZh dc i]Z gZaVi^dch]^e WZilZZc i]Z Xdbbdc VcY ^cY^k^YjVa ^hhjZh+ vP]Zc Xdbbdc fjZhi^dch egZhZci V h^\c^[^XVci VheZXi d[ i]Z XVhZ VcY i]Zn XVc WZ gZhdakZY [dg Vaa bZbWZgh d[ i]Z XaVhh ^c V h^c\aZ VY_jY^XVi^dc) i]ZgZ ^h V XaZVg _jhi^[^XVi^dc [dg ]VcYa^c\ i]Z Y^hejiZ dc V gZegZhZciVi^kZ gVi]Zg i]Vc dc Vc ^cY^k^YjVa WVh^h+w Flo & Eddie, /-.2 PE 144360/) Vi (.- &X^i^c\ Hanlon) .2- ?+0Y Vi .-//'+ tTIUgZYdb^cVcXZ YdZh cdi gZfj^gZ eaV^ci^[[h id egdkZ i]Vi ZkZgn ZaZbZci d[ V XaV^b ^h hjW_ZXi id XaVhh l^YZ egdd[7 i]Zn cZZY dcan h]dl i]Vi Xdbbdc fjZhi^dch egZYdb^cViZ dkZg fjZhi^dch V[[ZXi^c\ dcan ^cY^k^YjVa XaVhh bZbWZgh+u Amgen Inc. v. 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Ruiz Food Prods.) Gd+ .7.-* 4;H;> ?;@GF6E g 86@6D2> )& FUR DV`X$ 6e]R[`R$ 4\Z]YReVaf$ N[Q >VXRYf 5b_NaV\[ \S 7b_aUR_ >VaVTNaV\[ tBc bdhi h^ijVi^dch) jcaZhh i]Z hZiiaZbZci ^h XaZVgan ^cVYZfjViZ) ^ih VXXZeiVcXZ VcY VeegdkVa VgZ egZ[ZgVWaZ id aZc\i]n VcY ZmeZch^kZ a^i^\Vi^dc l^i] jcXZgiV^c gZhjaih+u Nat’l Rural Telecomms. Coop.) //. ?+K+=+ Vi 2/3 &^ciZgcVa fjdiVi^dc bVg`h db^iiZY'+ EZVY GZmi) EZVY 4 EZVY 4;H;> ?;@GF6E g 86@6D2> ?^cVaan) EZVY *& FUR DV`X \S ?NV[aNV[V[T 4YN`` 2PaV\[ EaNab` FU_\bTU\ba aUR F_VNY EZVY M]Z jcXZgiV^cin hjggdjcY^c\ XaVhh XZgi^[^XVi^dc [Vkdgh VeegdkVa d[ i]Z LZiiaZbZci ]ZgZ) ZheZX^Vaan \^kZc i]Vi ti]ZgZ VgZ YdjWih XdcXZgc^c\ i]Z k^VW^a^in d[ i]Z XaVhh+u In re Toys R Us-Del., Inc.–Fair & Accurate Credit Transactions Act (FACTA) Litig.) /62 ?+K+=+ 105) 12/ &<+=+ +& FUR 2Z\b[a ASSR_RQ V[ ERaaYRZR[a P]Zc Xdch^YZg^c\ i]Z dkZgVaa [V^gcZhh d[ V hZiiaZbZci) V Xdjgi h]djaY k^Zl ti]Z XdbeaZiZ eVX`V\Z iV`Zc Vh V l]daZ) gVi]Zg i]Vc i]Z ^cY^k^YjVa XdbedcZci eVgih+u Officers for Just.) 355 ?+/Y Vi 3/5+ EZVY IaV^ci^[[hw Zhi^bViZY bVm^bjb gZXdkZgn [dg i]Z LZiiaZbZci 4;H;> ?;@GF6E g 86@6D2> ?jcY5 i]jh ZfjViZh id Veegdm^bViZan /+2 eZg XZci d[ i]Z idiVa maximum ediZci^Va gZXdkZgn Zhi^bViZY Wn IaV^ci^[[+ 9 egdedhZY hZiiaZbZci bVn WZ [V^g) VYZfjViZ) VcY gZVhdcVWaZ) ZkZc i]dj\] \gZViZg gZXdkZgn b^\]i WZ VkV^aVWaZ id i]Z XaVhh bZbWZgh Vi ig^Va+ See Linney v. Cellular Alaska P’ship) .2. ?+0Y ./01) ./1/ &6i] <^g+ .665'8 Officers for Just.) 355 ?+/Y Vi 3/5 &tBi ^h lZaa*hZiiaZY aVl i]Vi V XVh] hZiiaZbZci Vbdjci^c\ id dcan V [gVXi^dc d[ i]Z ediZci^Va gZXdkZgn l^aa cdi eZg hZ gZcYZg i]Z hZiiaZbZci ^cVYZfjViZ dg jc[V^g+u'+ ?jgi]Zg) i]Z G^ci] <^gXj^i ]Vh adc\ YZ[ZggZY id i]Z eVgi^Zhw eg^kViZ) XdchZchjVa YZX^h^dch+ See Hanlon) .2- ?+0Y Vi .-/4+ EZVY EZVY 5 9\V^c) Vh d[ 9eg^a 5) /-.3 i]Z LZiiaZbZci ?jcY ldjaY Veegdm^bViZ ".)540)---+--+ M]^h kVajVi^dc hi^aa ZfjViZh id Veegdm^bViZan /+2# d[ i]Z idiVa bVm^bjb ediZci^Va gZXdkZgn+ 6 FZYWdm dcan ]VY ^chjgVcXZ XdkZgV\Z hiVgi^c\ ?ZWgjVgn /-.18 Vh hjX]) i]Z ^chjgZg ^c^i^Vaan YZc^ZY XdkZgV\Z id bdhi d[ i]Z =Z[ZcYVcih) VcY l^i] gZheZXi id FZYWdm ^ihZa[) ^h YZ[ZcY^c\ jcYZg V gZhZgkVi^dc d[ g^\]ih+ &?^ZaYh =ZXa+ Vi 1 c+1+' 4;H;> ?;@GF6E g 86@6D2> ,& FUR 6eaR[a \S 5V`P\cR_f 4\Z]YRaRQ N[Q aUR EaNTR \S aUR B_\PRRQV[T` M]Z ZmiZci d[ Y^hXdkZgn bVn WZ ^cY^XVi^kZ d[ i]Z eVgi^Zhw `cdlaZY\Z d[ i]Z XVhZ VcY ^h i]ZgZ[dgZ gZaZkVci id YZiZgb^c^c\ i]Z dkZgVaa [V^gcZhh d[ V hZiiaZbZci+ Nat’l Rural Telecomms. Coop.) //. ?+K+=+ Vi 2/4+ P]ZgZ i]Z eVgi^Zh ]VkZ XdcYjXiZY ZmiZch^kZ Y^hXdkZgn) i]^h [VXidg [Vkdgh [^cVa VeegdkVa tWZXVjhZ ^i hj\\Zhih i]Vi i]Z eVgi^Zh Vgg^kZY Vi V Xdbegdb^hZ WVhZY dc V [jaa jcYZghiVcY^c\ d[ i]Z aZ\Va VcY [VXijVa ^hhjZh hjggdjcY^c\ i]Z XVhZ+u Id. &^ciZgcVa fjdiVi^dc bVg`h db^iiZY'+ t9 hZiiaZbZci [daadl^c\ hj[[^X^Zci Y^hXdkZgn VcY \Zcj^cZ Vgbh*aZc\i] cZ\di^Vi^dc ^h egZhjbZY [V^g+u Id. Vi 2/5+ M]Z IVgi^Zh ^c i]^h XVhZ ]VkZ tXdcYjXiZY Vc ZmiZch^kZ ^ckZhi^\Vi^dc ^c i]^h 9Xi^dc) egdk^Y^c\ i]Zb l^i] jc^fjZ ^ch^\]i id WZ VWaZ id ZkVajViZ i]Z [V^gcZhh d[ i]Z LZiiaZbZci+u &?^cVa 9eeg+ Fdi+ Vi .2r.3 &X^i^c\ ?^ZaYh =ZXa+ q 15'+' EZVY IaV^ci^[[h VcY EZVY @^kZc EZVY 4;H;> ?;@GF6E g 86@6D2> VcY lZV`cZhh d[ i]Z^g gZheZXi^kZ XVhZh+ 9h hjX]) i]^h [VXidg lZ^\]h ^c [Vkdg d[ VeegdkVa+ Lee Nat’l Rural Telecomms. Coop.) //. ?+K+=+ Vi 2/4+ -& FUR 6e]R_VR[PR N[Q HVRd` \S >RNQ 4\b[`RY tIVgi^Zh gZegZhZciZY Wn XdbeZiZci XdjchZa VgZ WZiiZg edh^i^dcZY i]Vc Xdjgih id egdYjXZ V hZiiaZbZci i]Vi [V^gan gZ[aZXih ZVX] eVginwh ZmeZXiZY djiXdbZ ^c i]Z a^i^\Vi^dc+u In re Pac. Enters. Sec. Litig.) 14 ?+0Y 040) 045 &6i] <^g+ .662'+ EZVY 9[iZg i]Z LZiiaZbZci ^c eg^cX^eaZ lVh gZVX]ZY) i]Z eVgi^Zh Zc\V\ZY ^c [jgi]Zg cZ\di^Vi^dch dkZg i]Z XdjghZ d[ hZkZgVa lZZ`h+ 9cY EZVY Bc k^Zl d[ EZVY .& FUR B_R`R[PR \S N 8\cR_[ZR[aNY BN_aVPV]N[a Gd \dkZgcbZci Zci^in eVgi^X^eViZY ^c i]^h XVhZ+ &?^cVa 9eeg+ Fdi+ Vi .5+' M]^h [VXidg ^h i]ZgZ[dgZ cZjigVa+ /& FUR DRNPaV\[ \S aUR 4YN`` ?RZOR_` a\ aUR B_\]\`RQ ERaaYRZR[a tTMU]Z VWhZcXZ d[ V aVg\Z cjbWZg d[ dW_ZXi^dch id V egdedhZY XaVhh VXi^dc hZiiaZbZci gV^hZh V higdc\ egZhjbei^dc i]Vi i]Z iZgbh + + + VgZ [VkdgVWaZ id i]Z XaVhh bZbWZgh+u Nat’l Rural Telecomms. Coop.) //. ?+K+=+ Vi 2/68 see also Barbosa v. 4;H;> ?;@GF6E g 86@6D2> Cargill Meat Sols. Corp.) /64 ?+K+=+ 10.) 115 &>+=+ 9h d[ 9j\jhi .) /-.3) cd 0& FUR ?RaU\Q \S 5V`a_VObaV\[ 9 Y^hig^Xi Xdjgi bjhi Vahd [^cY i]Vi V egdedhZY hZiiaZbZciwh eaVc [dg VaadXVi^dc Vbdc\ i]Z XaVhh bZbWZgh ^h [V^g VcY gZVhdcVWaZ WZ[dgZ \gVci^c\ [^cVa hZiiaZbZci VeegdkVa+ See Class Plaintiffs) 622 ?+/Y Vi ./51r52+ t9 eaVc d[ VaadXVi^dc i]Vi gZ^bWjghZh XaVhh bZbWZgh WVhZY dc i]Z ineZ VcY ZmiZci d[ i]Z^g ^c_jg^Zh ^h \ZcZgVaan gZVhdcVWaZ+u See In re Citric Acid Antitrust Litig.) .12 ?+ Ljee+ /Y ..2/) ..21 &G+=+ M]Z .- H[ i]Z 06)-3- Gdi^XZ VcY .. EZVY 4;H;> ?;@GF6E g 86@6D2> LZiiaZbZci ?jcY+ &?^cVa 9eeg+ Fdi+ Vi /18 LZiiaZbZci 9\gZZbZci) >m+ . Vi 4.+' 9 \^kZc XaV^bVciwh egd gViV h]VgZ ^h XVaXjaVWaZ Wn i]Z tKZXd\c^oZY Edhh ?dgbjaV)u l]^X] VXXdjcih [dg i]Z eVgi^XjaVg YViZ VcY eg^XZ Vi l]^X] i]Z XaV^bVci ejgX]VhZY,VXfj^gZY ^ih FZYWdm Xdbbdc hidX`+.0 &See LZiiaZbZci 9\gZZbZci) >m+ . Vi 40+' FdgZdkZg) tTiUd i]Z ZmiZci V XaV^bVci ]VY V igVY^c\ \V^c dg vWgd`Z ZkZcw [gdb ]^h) ]Zg dg ^ih dkZgVaa igVchVXi^dch ^c FZYWdm h]VgZh Yjg^c\ i]Z ?jgi]Zg) EZVY Bc hjbbVgn) i]Z [V^gcZhh [VXidgh lZ^\] ^c [Vkdg d[ Veegdk^c\ i]Z hZiiaZbZci V\gZZbZci+ 9h hjX]) i]Z 4& ?\aV\[ S\_ 2aa\_[Rf`h 7RR` N[Q 4\`a`$ N[Q 4YN`` DR]_R`R[aNaVcR BNfZR[a EZVY .0 M]Z IaVc d[ 9aadXVi^dc t^h WVhZY dc i]Z egZb^hZ i]Vi i]Z YZXgZVhZ ^c i]Z eg^XZ d[ FZYWdmwh hZXjg^i^Zh dXXjgg^c\ jedc i]Z gZkZaVi^dc d[ i]Z igji] VWdji =Z[ZcYVcihw VaaZ\ZY b^hgZegZhZciVi^dch id i]Z ^ckZhi^c\ ejWa^X bVn WZ jhZY id bZVhjgZ i]Z VaaZ\ZY Vgi^[^X^Va ^c[aVi^dc ^c i]Z eg^XZ d[ FZYWdmwh hZXjg^i^Zh eg^dg id hjX] gZkZaVi^dch+u &?^ZaYh =ZXa+ q /0+' 4;H;> ?;@GF6E g 86@6D2> egdeZg ^c V hZXjg^i^Zh [gVjY XVhZ+ M]Z ILEK9 hiViZh i]Vi tTiUdiVa ViidgcZnh% [ZZh VcY ZmeZchZh VlVgYZY Wn i]Z Xdjgi id XdjchZa [dg eaV^ci^[[ XaVhh h]Vaa cdi ZmXZZY V gZVhdcVWaZ eZgXZciV\Z d[ i]Z Vbdjci d[ Vcn YVbV\Zh VcY egZ_jY\bZci ^ciZgZhi VXijVaan eV^Y id i]Z XaVhh+u See .2 N+L+<+ p 45jr1&V'&3'8 .2 N+L+<+ p 44or.&V'&3'+ ;n jh^c\ i]^h aVc\jV\Z) t M]Z (& IURaUR_ N[ 2dN_Q \S 2aa\_[Rf`h 7RR` S_\Z aUR 8_\`` ERaaYRZR[a 7b[Q V` 2]]_\]_VNaR 9h Y^hXjhhZY VWdkZ) Vc VlVgY d[ ViidgcZnhw [ZZh [gdb V Xdbbdc [jcY ^h Veegdeg^ViZ dcan l]ZgZ i]Z Xdjgi XVc7 t&.' hj[[^X^Zcian ^YZci^[n i]Z XaVhh d[ WZcZ[^X^Vg^Zh8 &/' VXXjgViZan igVXZ i]Z WZcZ[^ih8 VcY &0' h]^[i i]Z [ZZ id i]dhZ WZcZ[^ii^c\ l^i] hdbZ ZmVXi^ijYZ+u Staton) 0/4 ?+0Y Vi 64/ &X^i^c\ Van Gemert) 111 N+L+ Vi 145r46'+ tvTMU]Z Xg^iZg^V VgZ hVi^h[^ZY l]Zc ZVX] bZbWZg d[ V XZgi^[^ZY XaVhh ]Vh Vc jcY^hejiZY VcY bVi]ZbVi^XVaan VhXZgiV^cVWaZ XaV^b id eVgi d[ V ajbe*hjb _jY\bZci gZXdkZgZY dc ]^h WZ]Va[)w l]ZgZVh i]Zn VgZ cdi hVi^h[^ZY l]Zc va^i^\Vcih h^bean k^cY^XViZ V \ZcZgVa hdX^Va \g^ZkVcXZ+wu Id. &fjdi^c\ Van Gemert) 111 N+L+ Vi 146'+ M]ZhZ Xg^iZg^V VgZ hVi^h[^ZY ]ZgZ8 i]Z LZiiaZbZci ^cY^XViZh ]dl ZVX] LZiiaZbZci .1 4;H;> ?;@GF6E g 86@6D2> XVaXjaVWaZ+.2 M]jh) V eZgXZciV\Z*bZi]dY [ZZ VlVgY WVhZY jedc i]Z LZiiaZbZci ?jcY ]ZgZ ^h Veegdeg^ViZ8 i]Z )& IURaUR_ >RNQ 4\b[`RYh` DR^bR`aRQ 7RR V` 7NV_ N[Q DRN`\[NOYR M]Z Bc Xdch^YZg^c\ i]Z dkZgVaa [V^gcZhh VcY gZVhdcVWaZcZhh d[ V [ZZ VlVgY) V Xdjgi h]djaY Xdch^YZg i]Z [daadl^c\ [VXidgh7 t&.' i]Z gZhjaih VX]^ZkZY8 &/' i]Z g^h` d[ a^i^\Vi^dc8 &0' i]Z h`^aa gZfj^gZY VcY i]Z fjVa^in d[ ldg`8 &1' i]Z Xdci^c\Zci cVijgZ d[ i]Z [ZZ VcY i]Z [^cVcX^Va WjgYZc dc XaVhh XdjchZa8 VcY &2' VlVgYh bVYZ ^c h^b^aVg XVhZh+u In re Omnivision Techs.) 226 ?+ Ljee+ /Y Vi .-13 &X^i^c\ Vizcaino) /6- ?+0Y Vi .-15r2-'+ N& FUR DR`bYa` 2PUVRcRQ tM]Z dkZgVaa gZhjai VcY WZcZ[^i id i]Z XaVhh [gdb i]Z a^i^\Vi^dc ^h i]Z bdhi Xg^i^XVa [VXidg ^c \gVci^c\ V [ZZ VlVgY+u In re Omnivision Techs.) 226 ?+ Ljee+ /Y Vi .-13+ P]Zc Xdch^YZg^c\ i]Z [V^gcZhh VcY gZVhdcVWaZcZhh d[ V [ZZ gZfjZhi) V Y^hig^Xi Xdjgi h]djaY Vahd gZXd\c^oZ i]Z kVajZ d[ cdc*bdcZiVgn gZa^Z[) see Vizcaino) /6- ?+0Y Vi .-16) VcY bVn .2 M]Z Gdi^XZ d[ 4;H;> ?;@GF6E g 86@6D2> ^cXgZVhZ Vc VlVgY tid gZ[aZXi i]Z WZcZ[^ih id i]Z ejWa^X [adl^c\ [gdb i]TZU a^i^\Vi^dc)u see Bebchick v. Wash. Metro. Area Transit Comm’n) 5-2 ?+/Y 063) 1-5 &=+<+ <^g+ .653'+ AZgZ) EZVY O& FUR DV`X` \S >VaVTNaV\[ M]Z g^h` i]Vi [jgi]Zg a^i^\Vi^dc b^\]i gZhjai ^c cd gZXdkZgn ^h V th^\c^[^XVci [VXidgu ^c VhhZhh^c\ i]Z [V^gcZhh VcY gZVhdcVWaZcZhh d[ Vc VlVgY d[ ViidgcZnhw [ZZh+ In re Omnivision Techs.) 226 ?+ Ljee+ /Y Vi .-13r148 see also Vizcaino) /6- ?+0Y Vi .-15 &Y^hXjhh^c\ i]Vi tTgU^h` ^h V gZaZkVci X^gXjbhiVcXZu ^c YZiZgb^c^c\ Vc ViidgcZn [ZZ VlVgY ^c V Xdbbdc [jcY XVhZ'+ Bc ZkVajVi^c\ i]Z g^h` d[ i]Z a^i^\Vi^dc) V Xdjgi bVn Xdch^YZg i]Z XdbeaZm^in d[ i]Z aZ\Va ^hhjZh ^ckdakZY+ In re Omnivision Techs.) 226 ?+ Ljee+ /Y Vi .-13r14+ 9h Y^hXjhhZY VWdkZ) i]ZgZ VgZ hdbZ g^h`h ^ckdakZY ^c [jgi]Zg a^i^\Vi^dc d[ i]^h XVhZ+ &See Y^hXjhh^dc supra LZXi^dch BO+;+/) BO+;+0+' =Z[ZcYVci XdjaY ediZci^Vaan egZkV^a Vi i]Z XaVhh XZgi^[^XVi^dc hiV\Z) i]Z hjbbVgn _jY\bZci hiV\Z) dg Vi ig^Va+ EZVY P& FUR EXVYY DR^bV_RQ N[Q aUR CbNYVaf \S >RNQ 4\b[`RYh` I\_X M]Z 4;H;> ?;@GF6E g 86@6D2> \ZcZgVaanseVgi^XjaVgan i]Z X]VaaZc\Zh egZhZciZY Wn i]Z ILEK9%h eaZVY^c\ gZfj^gZbZcihsgZfj^gZh h`^aaZY XdjchZa [Vb^a^Vg l^i] i]Z gZaZkVci hiVijiZh VcY XVhZ aVl+ In re Am. Apparel, Inc. S'holder Litig.) Gd+ AZgZ) EZVY Bc k^Zl d[ bZY^Vidg CjY\Z I]^aa^ehwh ZkVajVi^dc d[ EZVY Q& FUR 4\[aV[TR[a @Nab_R \S aUR 7RR N[Q aUR 7V[N[PVNY 3b_QR[ 4N__VRQ Of >RNQ 4\b[`RY M]Z Xdci^c\Zci cVijgZ d[ i]Z gZegZhZciVi^dc WZVgh dc i]Z dkZgVaa [V^gcZhh VcY gZVhdcVWaZcZhh d[ V [ZZ gZfjZhi+ See In re Omnivision Techs.) 226 ?+ Ljee+ /Y Vi .-14+ M]Z g^h` i]Vi XdjchZa l^aa cdi gZXdkZg) Vh lZaa Vh i]Z [^cVcX^Va WjgYZc VXXdbeVcn^c\ i]Z Xdci^c\Zci cVijgZ d[ i]Z gZegZhZciVi^dc) bVn _jhi^[n V ]^\]Zg eZgXZciV\Z [ZZ VlVgY+ See id. Vi .-168 see also Vizcaino) /6- ?+0Y Vi .-15r2-+ EZVY 4;H;> ?;@GF6E g 86@6D2> .5+' EZVY R& 2dN_Q` ?NQR V[ EVZVYN_ 4N`R` OVg^djh Y^hig^Xi Xdjgih ^c i]Z G^ci] <^gXj^i ]VkZ [djcY V ilZcin*[^kZ eZgXZci [ZZ gZVhdcVWaZ+ See, e.g.) Ontiveros v. Zamora) 0-0 ?+K+=+ 023) 035) 042 &>+=+ S& FUR DRNPaV\[ \S aUR 4YN`` ?^cVaan) i]Z gZVXi^dc d[ i]Z XaVhh ^h gZaZkVci ^c YZiZgb^c^c\ i]Z dkZgVaa [V^gcZhh VcY gZVhdcVWaZcZhh d[ Vc VlVgY d[ ViidgcZnhw [ZZh+ In re Heritage Bond Litig.) Gd+ -/*FE* .142*=M &K T& 3NYN[PV[T aUR 7NPa\_` EZVY 4;H;> ?;@GF6E g 86@6D2> Xdhih+ 9cY i]^h XVhZ ^ckdakZh ]^\]an XdbeaZm ^hhjZh8 EZVY M]Z *& FUR >\QR`aN_ ?RaU\Q 4_\``%4URPX P]ZgZ i]Z ViidgcZnwh ^ckZhibZci d[ i^bZ ^c i]Z a^i^\Vi^dc ^h b^c^bVa) hjX] Vh ^c i]Z XVhZ d[ Vc ZVgan hZiiaZbZci) i]Z adYZhiVg XVaXjaVi^dc bVn [Vkdg V adlZg eZgXZciV\Z+ Vizcaino) /6- ?+0Y Vi .-2-+ tM]Z adYZhiVg bZi]dY ^h bZgZan V Xgdhh*X]ZX` dc i]Z gZVhdcVWaZcZhh d[ V eZgXZciV\Z [^\jgZ) VcY ^i ^h l^YZan gZXd\c^oZY i]Vi i]Z adYZhiVg bZi]dY XgZViZh ^cXZci^kZh [dg XdjchZa id ZmeZcY bdgZ ]djgh i]Vc bVn WZ cZXZhhVgn dc a^i^\Vi^c\ V XVhZ hd Vh id gZXdkZg V gZVhdcVWaZ [ZZ) h^cXZ i]Z adYZhiVg bZi]dY YdZh cdi gZlVgY ZVgan hZiiaZbZci+u Id. Vi .-2- c+2+ 4;H;> ?;@GF6E g 86@6D2> Cd]chdc $ PZVkZg) EEI ]Vh XVaXjaViZY ^ih adYZhiVg id WZ "3-0)4.-+--) WVhZY jedc .)/65 ]djgh d[ egd[Zhh^dcVa i^bZ ZmeZcYZY dc i]Z 9Xi^dc+ &?^ZaYh =ZXa+ q 36+' LeZX^[^XVaan) EZVY P]^aZ EZVY NcYZg i]Z .4 "203)1/0+2- dkZg ..45+4 ]djgh ZfjViZh id Vc VkZgV\Z ]djgan gViZ d[ "122+.-+ .5 "34)/44+2- dkZg ..6+0 ]djgh ZfjViZh id Vc VkZgV\Z ]djgan gViZ d[ "230+61+ .6 4;H;> ?;@GF6E g 86@6D2> Rosetta Stone) /-.0 PE 21-/./-) Vi (3 &tM]Z ".2-)--- [ZZ VlVgY gZfjZhiZY Wn +& >RNQ 4\b[`RYh` DR^bR`a S\_ DRVZOb_`RZR[a \S 4\`a` N[Q 6e]R[`R` EZVY H& 4A@4>GE;A@ ?dg i]Z [dgZ\d^c\ gZVhdch) i]Z ;F ;E EA AD56D65& /- LeZX^[^XVaan) Cd]chdc $ PZVkZg) EEI VcY IdbZgVcio EEI ^cXjggZY "00)...+/0 VcY "..)163+52 ^c ZmeZchZh) gZheZXi^kZan+ &?^ZaYh =ZXa+ q 4/ c+5+' EXHIBIT 14 CaseCase 1:15-cv-02546-RM-MEH 1:12-cv-00292-RM-KMT Document Document 170-18 263 Filed Filed 06/16/17 09/21/17 USDC USDC Colorado Colorado Page Page 1 2of of 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:12-cv-00292-RM-KMT In re MOLYCORP, INC. SECURITIES LITIGATION ORDER AWARDING ATTORNEYS’ FEES AND EXPENSES CaseCase 1:15-cv-02546-RM-MEH 1:12-cv-00292-RM-KMT Document Document 170-18 263 Filed Filed 06/16/17 09/21/17 USDC USDC Colorado Colorado Page Page 2 3of of 5 6 This matter is before the Court on Lead Counsel’s Motion for an Award of Attorneys’ Fees and Expenses, filed on May 5, 2017 (Dkt. No. 244). All capitalized terms used herein have the meanings set forth in the Stipulation of Settlement, dated October 27, 2016, and filed the same day (Dkt. No. 234). The Court having considered all papers filed and proceedings had herein and otherwise being fully informed of the matters hereto and good cause appearing therefore; THE COURT HEREBY FINDS AND CONCLUDES that: 1. The Court has jurisdiction to enter this Order awarding attorneys’ fees and expenses and over the subject matter of the Litigation and all parties to the Litigation, including all Class Members. 2. Pursuant to and in compliance with Rule 23 of the Federal Rules of Civil Procedure and the Court’s Order Preliminarily Approving Settlement, Approving Notice to the Class, and Scheduling a Final Approval Hearing dated March 6, 2017 (Dkt. No. 239) (the “Preliminary Approval Order”), due and adequate notice was directed to all Class Members, including individual notice to those Class Members who could be identified through reasonable effort, advising them of Lead Counsel’s requests for attorneys’ fees and expenses and reimbursement of costs and expenses to Plaintiffs in connection with their representation of the Class, and of their right to object thereto, and a full and fair opportunity was accorded to Class Members to be heard with respect to the requests for attorneys’ fees and expenses. 3. Lead Counsel are awarded attorneys’ fees in the amount of 30% of the Settlement Amount and expenses in the amount of $249,327.83, plus interest earned on both amounts at the same rate as earned on the Settlement Fund, which sums the Court finds to be fair and reasonable. The attorneys’ fees and expenses awarded will be paid in accordance with the terms of the Stipulation. CaseCase 1:15-cv-02546-RM-MEH 1:12-cv-00292-RM-KMT Document Document 170-18 263 Filed Filed 06/16/17 09/21/17 USDC USDC Colorado Colorado Page Page 3 4of of 5 6 4. In making this award of attorneys’ fees and expenses to be paid from the Settlement Fund, the Court has considered and found that: (a) The Settlement has created a fund of $20,500,000 in cash that has been funded into escrow under the Stipulation, and numerous Class Members who submit acceptable Proofs of Claim will benefit from the Settlement that occurred because of the efforts of Plaintiffs’ Counsel; (b) The fee sought by Lead Counsel has been reviewed and approved as reasonable by Lead Plaintiffs, who were involved in overseeing the prosecution and resolution of the Litigation; (c) Copies of the Notice were mailed to over 166,000 potential Class Members and nominees stating that Lead Counsel would apply to the Court for attorneys’ fees of 30% of the Settlement Amount and expenses not to exceed $600,000, plus interest thereon, to be paid from the Settlement Fund. The Notice advised Class Members of their right to object to Lead Counsel’s motion for attorneys’ fees and expenses, and a full and fair opportunity was accorded to persons who are Class Members to be heard with respect to the motion. There were two objections to the requested attorneys’ fees and expenses which the Court has considered and found to be without merit; (d) Plaintiffs’ Counsel have conducted the Litigation and achieved the Settlement with skill, perseverance, and diligent advocacy; 2 CaseCase 1:15-cv-02546-RM-MEH 1:12-cv-00292-RM-KMT Document Document 170-18 263 Filed Filed 06/16/17 09/21/17 USDC USDC Colorado Colorado Page Page 4 5of of 5 6 (e) The Litigation involves complex factual and legal issues, and, in the absence of settlement, would involve further lengthy proceedings with uncertain resolution if the case were to proceed to trial; (f) Lead Counsel pursued the Litigation on a contingent basis, having received no compensation during the Litigation, and any fee award has been contingent on the result achieved; (g) Plaintiffs’ Counsel have devoted over 7,000 hours to this Litigation, with a lodestar value of $4,257,935.50, to achieve the Settlement; (h) The amount of attorneys’ fees is consistent with awards in similar cases; and (i) The amount of expenses awarded is fair and reasonable and these expenses were necessary for the prosecution and settlement of the Litigation. 5. The Court awards the following amounts to be paid to Plaintiffs from the fees awarded to Lead Counsel, as reimbursement for the Plaintiffs’ reasonable costs and expenses directly related to their representation of the Class: $8,027.44 to Randall Duck; $1,664.25 to Donald E. McAlpin; and $560.00 to Iron Workers Mid-South Pension Fund. 6. Any appeal or any challenge affecting this Court’s approval of any attorneys’ fee and expense application will in no way disturb or affect the finality of the Judgment entered with respect to the Settlement. 3 CaseCase 1:15-cv-02546-RM-MEH 1:12-cv-00292-RM-KMT Document Document 170-18 263 Filed Filed 06/16/17 09/21/17 USDC USDC Colorado Colorado Page Page 5 6of of 5 6 7. The Court retains exclusive jurisdiction over the parties and the Class Members for all matters relating to this Litigation, including the administration, interpretation, effectuation, or enforcement of the Stipulation and this Order. 8. If the Settlement is terminated or the Effective Date of the Settlement otherwise fails to occur, this Order will be rendered null and void to the extent provided by the Stipulation. SO ORDERED. DATED this 16th day of June, 2017. BY THE COURT: ______RAYMOND P. MOORE United States District Judge 4 Case 1:15-cv-02546-RM-MEH Document 170-19 Filed 09/21/17 USDC Colorado Page 1 of 3 EXHIBIT 15 Case 1:15-cv-02546-RM-MEH Document 170-19 Filed 09/21/17 USDC Colorado Page 2 of 3 Case 1:15-cv-02546-RM-MEH Document 170-19 Filed 09/21/17 USDC Colorado Page 3 of 3 Case 1:15-cv-02546-RM-MEH Document 170-20 Filed 09/21/17 USDC Colorado Page 1 of 8 EXHIBIT 16 Case 1:15-cv-02546-RM-MEH Document 170-20 Filed 09/21/17 USDC Colorado Page 2 of 8 Case 1:15-cv-02546-RM-MEH Document 170-20 Filed 09/21/17 USDC Colorado Page 3 of 8 Case 1:15-cv-02546-RM-MEH Document 170-20 Filed 09/21/17 USDC Colorado Page 4 of 8 Case 1:15-cv-02546-RM-MEH Document 170-20 Filed 09/21/17 USDC Colorado Page 5 of 8 Case 1:15-cv-02546-RM-MEH Document 170-20 Filed 09/21/17 USDC Colorado Page 6 of 8 Case 1:15-cv-02546-RM-MEH Document 170-20 Filed 09/21/17 USDC Colorado Page 7 of 8 Case 1:15-cv-02546-RM-MEH Document 170-20 Filed 09/21/17 USDC Colorado Page 8 of 8 Case 1:15-cv-02546-RM-MEH Document 170-21 Filed 09/21/17 USDC Colorado Page 1 of 9 EXHIBIT 17 Case 1:15-cv-02546-RM-MEH Document 170-21 Filed 09/21/17 USDC Colorado Page 2 of 9 Case 1:15-cv-02546-RM-MEH Document 170-21 Filed 09/21/17 USDC Colorado Page 3 of 9 Case 1:15-cv-02546-RM-MEH Document 170-21 Filed 09/21/17 USDC Colorado Page 4 of 9 Case 1:15-cv-02546-RM-MEH Document 170-21 Filed 09/21/17 USDC Colorado Page 5 of 9 Case 1:15-cv-02546-RM-MEH Document 170-21 Filed 09/21/17 USDC Colorado Page 6 of 9 Case 1:15-cv-02546-RM-MEH Document 170-21 Filed 09/21/17 USDC Colorado Page 7 of 9 Case 1:15-cv-02546-RM-MEH Document 170-21 Filed 09/21/17 USDC Colorado Page 8 of 9 Case 1:15-cv-02546-RM-MEH Document 170-21 Filed 09/21/17 USDC Colorado Page 9 of 9 Case 1:15-cv-02546-RM-MEH Document 170-22 Filed 09/21/17 USDC Colorado Page 1 of 4 EXHIBIT 18 Case 1:15-cv-02546-RM-MEH Document 170-22 Filed 09/21/17 USDC Colorado Page 2 of 4 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION KARSTEN SCHUH, Individually and on ) Civil Action No. 3:11-cv-01033 Behalf of All Others Similarly Situated, ) (Consolidated) ) Plaintiff, ) Chief Judge Kevin H. Sharp ) vs. ) Magistrate Judge Barbara D. Holmes ) HCA HOLDINGS, INC., et al., ) CLASS ACTION ) Defendants. ORDER AWARDING ATTORNEYS’ FEES ) AND EXPENSES ) 1098385_1 Case 3:11-cv-01033 Document 563 Filed 04/14/16 Page 1 of 3 PageID #: 46679 Case 1:15-cv-02546-RM-MEH Document 170-22 Filed 09/21/17 USDC Colorado Page 3 of 4 This matter having come before the Court on April 11, 2016, on the motion of counsel for the Lead Plaintiff for an award of attorneys’ fees and expenses incurred in this action, the Court, having considered all papers filed and proceedings conducted herein, having found the settlement of this action to be fair, reasonable and adequate, and otherwise being fully informed in the premises and good cause appearing therefore; IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that: 1. All of the capitalized terms used herein shall have the same meanings as set forth in the Stipulation of Settlement dated December 18, 2015 (the “Stipulation”). Dkt. No. 534. 2. This Court has jurisdiction over the subject matter of this application and all matters relating thereto, including all members of the Class who have not timely and validly requested exclusion. 3. The Court hereby awards Lead Plaintiff’s counsel attorneys’ fees of 30% of the Settlement Amount, and litigation expenses in the amount of $2,016,508.52, together with the interest earned thereon for the same time period and at the same rate as that earned on the Settlement Fund until paid. Said fees and expenses shall be allocated amongst counsel in a manner which, in Lead Counsel’s good faith judgment, reflects each such counsel’s contribution to the institution, prosecution and resolution of the Litigation. The Court finds that the amount of fees awarded is fair and reasonable under the “percentage-of-recovery” method considering, among other things, the following: the highly favorable result achieved for the Class; the contingent nature of Lead Plaintiff’s counsel’s representation; Lead Plaintiff’s counsel’s diligent prosecution of the Litigation; the quality of legal services provided by Lead Plaintiff’s counsel that produced the Settlement; that the Lead Plaintiff appointed by the Court to represent the Class approved the requested fee; the reaction of the Class to the fee request; and that the awarded fee is in accord with Sixth Circuit authority and consistent with other fee awards in cases of this size. - 1 - 1098385_1 Case 3:11-cv-01033 Document 563 Filed 04/14/16 Page 2 of 3 PageID #: 46680 Case 1:15-cv-02546-RM-MEH Document 170-22 Filed 09/21/17 USDC Colorado Page 4 of 4 4. The awarded attorneys’ fees and expenses shall be paid to Lead Counsel immediately after the date this Order is executed subject to the terms, conditions and obligations of the Stipulation and in particular ¶6.2 thereof, which terms, conditions and obligations are incorporated herein. 5. Pursuant to 15 U.S.C. §77z-1(a)(4), Lead Plaintiff New England Teamsters & Trucking Industry Pension Fund is awarded $6,081.25 as payment for its time spent in representing the Class. 6. The Court has considered the objection to the fee award filed by Class Members Mathis and Catherine Bishop, and finds it to be without merit. The objection is therefore overruled in its entirety. IT IS SO ORDERED. DATED: April 14, 2016 THE HONORABLE KEVIN H. SHARP CHIEF UNITED STATES DISTRICT JUDGE - 2 - 1098385_1 Case 3:11-cv-01033 Document 563 Filed 04/14/16 Page 3 of 3 PageID #: 46681 Case 1:15-cv-02546-RM-MEH Document 170-23 Filed 09/21/17 USDC Colorado Page 1 of 7 EXHIBIT 19 Case 1:15-cv-02546-RM-MEH Document 170-23 Filed 09/21/17 USDC Colorado Page 2 of 7 Case 3:03-cv-01519-AET-TJB Document 405 Filed 01/30/13 Page 1 of 6 PageID: 16641 Case 1:15-cv-02546-RM-MEH Document 170-23 Filed 09/21/17 USDC Colorado Page 3 of 7 Case 3:03-cv-01519-AET-TJB Document 405 Filed 01/30/13 Page 2 of 6 PageID: 16642 Case 1:15-cv-02546-RM-MEH Document 170-23 Filed 09/21/17 USDC Colorado Page 4 of 7 Case 3:03-cv-01519-AET-TJB Document 405 Filed 01/30/13 Page 3 of 6 PageID: 16643 Case 1:15-cv-02546-RM-MEH Document 170-23 Filed 09/21/17 USDC Colorado Page 5 of 7 Case 3:03-cv-01519-AET-TJB Document 405 Filed 01/30/13 Page 4 of 6 PageID: 16644 Case 1:15-cv-02546-RM-MEH Document 170-23 Filed 09/21/17 USDC Colorado Page 6 of 7 Case 3:03-cv-01519-AET-TJB Document 405 Filed 01/30/13 Page 5 of 6 PageID: 16645 Case 1:15-cv-02546-RM-MEH Document 170-23 Filed 09/21/17 USDC Colorado Page 7 of 7 Case 3:03-cv-01519-AET-TJB Document 405 Filed 01/30/13 Page 6 of 6 PageID: 16646 Case 1:15-cv-02546-RM-MEH Document 170-24 Filed 09/21/17 USDC Colorado Page 1 of 3 EXHIBIT 20 Case 1:15-cv-02546-RM-MEH Document 170-24 Filed 09/21/17 USDC Colorado Page 2 of 3 Case 1:15-cv-02546-RM-MEH Document 170-24 Filed 09/21/17 USDC Colorado Page 3 of 3 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 1 of 56 EXHIBIT 21 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 2 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 1 of 55 PageID:PagelD: 25151 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY IN RE SCHERING-PLOUGH Civil Action No. 08-397 (DMC) (JAD) CORPORATION / ENHANCE SECURITIES LITIGATION STIPULATION AND AGREEMENT OF SETTLEMENT This Stipulation and Agreement of Settlement dated as of June 3, 2013 (the "Stipulation") is submitted pursuant to Rule 23 of the Federal Rules of Civil Procedure. This Stipulation is entered into, by and through the respective undersigned counsel, and embodies the terms and conditions of the settlement between (a) the Arkansas Teacher Retirement System, the Public Employees' Retirement System of Mississippi, the Louisiana Municipal Police Employees' Retirement System, and the Massachusetts Pension Reserves Investment Management Board (collectively "Lead Plaintiffs" or "Class Representatives"), on behalf of themselves and the Class (defined below); (b) Merck & Co., Inc. ("Merck," defined below); and (c) Schering-Plough Corporation ("Schering," defined below), Merck/Schering-Plough Pharmaceuticals ("M/S-P," defined below), Fred Hassan ("Hassan"), Carrie S. Cox ("Cox"), Robert J. Bertolini ("Bertolini"), Steven H. Koehler ("Koehler"), Susan Ellen Wolf ("Wolf'), and the Director Defendants (defined below) (collectively, the "Schering-Related Defendants"); and the Underwriter Defendants (defined below and, collectively with the Schering-Related Defendants, the "Defendants").1 Subject to the approval of the Court and the terms and conditions expressly provided herein, this Stipulation is intended by the Parties hereto to fully, finally and forever compromise, settle, release, resolve, relinquish, waive, discharge and dismiss with prejudice, the 'All terms with initial capitalization not otherwise defined herein shall have the meanings ascribed to them in paragraph 1 herein. Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 3 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 2 of 55 PageID:PagelD: 25152 above-captioned consolidated securities class action (the "Action") and all claims asserted against Defendants therein, and all Released Claims (defined below) as against the Parties and their respective Releasees (defined below). WHEREAS: A. Beginning in 2002, Legacy Merck (as defined below) and Schering undertook a clinical trial, known as the "ENHANCE" study, to test whether Vytorin, a cholesterol-lowering medication that is a combination of two drugs — Zocor (simvastatin), developed by Legacy Merck, and Zetia (ezetimibe), developed by Schering — was more effective than Zocor alone in reducing the intima-media thickness of the carotid arteries. In January 2008, M/S-P, a joint venture of Legacy Merck and Schering that marketed Vytorin during the Class Period, issued a news release announcing results of the ENHANCE study. In March 2008, the ENHANCE results were published in the New England Journal of Medicine and presented at a conference of the American College of Cardiology. B. In January 2008, the initial complaint in this Action was filed. By Order dated March 3, 2008, the Court ordered that any related securities actions filed in, removed to or transferred to the District of New Jersey be consolidated with this Action. On March 27, 2008, a related securities action, Kamel v. Schering-Plough Corp., et al., Civil Action No. 08-1000 (DMC), was consolidated with this Action for all purposes. C. On April 18, 2008, the Court entered an Order appointing the Arkansas Teacher Retirement System, the Public Employees' Retirement System of Mississippi, the Louisiana Municipal Police Employees' Retirement System, and the Massachusetts Pension Reserves Investment Management Board as lead plaintiffs for the Action pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA"). In the same Order, the Court approved Lead 2 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 4 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 3 of 55 PageID:PagelD: 25153 Plaintiffs' selection of Bernstein Litowitz Berger & Grossmann LLP and Labaton Sucharow LLP as Co-Lead Counsel for the Class and approved Lead Plaintiffs' selection of Carella, Byrne, Cecchi, Olstein, Brody and Agnello (f/k/a Carella, Byrne, Bain, Gilfiflan, Cecchi, Stewart & Olstein) as Liaison Counsel for the Class. D. On September 15, 2008, Lead Plaintiffs filed their Consolidated Class Action Complaint for Violations of the Federal Securities Laws (the "Complaint"), asserting claims under Sections 10(b), 20(a) and 20A of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, and Sections 11, 12(a), 15 of the Securities Act of 1933 (the "Securities Act"). The Complaint alleged that Schering, M/S-P and certain of Schering's officers made false or misleading statements or omitted to disclose material facts about, inter alia, the ENHANCE study and the efficacy and commercial prospects of Vytorin and Zetia. The Complaint further alleged that these false statements and omissions caused the price of Schering securities to be artificially inflated during the Class Period, and that the price of Schering securities declined when truthful corrective information was disclosed. The Complaint also alleged that Cox violated federal securities laws against insider trading because Cox sold Schering common stock while in possession of material, non-public information. The Complaint further alleged that Schering, Hassan, Bertolini, Koehler, Wolf, the Director Defendants, and the Underwriter Defendants are statutorily responsible for false or misleading statements made in offering documents in connection with an August 2007 offering of Schering common stock and Preferred Stock. E. On December 10, 2008, Defendants moved to dismiss the Complaint. On September 2, 2009, the Court issued an Opinion and entered an Order denying Defendants' motions to dismiss. 3 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 5 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 4 of 55 PageID:PagelD: 25154 F. On September 17, 2009, Defendants moved for reconsideration of the Court's Opinion and Order denying their motions to dismiss. The motion for reconsideration was denied by the Court on June 21, 2010. G. On November 18, 2009, Defendants filed their answers to the Complaint. Defendants denied any violations of the securities laws and asserted affirmative defenses to Lead Plaintiffs' allegations. H. On February 7, 2011, Lead Plaintiffs filed their motion for class certification and, on September 22, 2011, filed an amended motion for class certification. Following class certification discovery, on September 25, 2012, the Court issued an Opinion and entered an Order granting Lead Plaintiffs' motion certifying the Class, appointing them as class representatives, and appointing Co-Lead Counsel as Class Counsel. On October 11, 2012, the Court entered an Amended Order relating to the definition of the Class (the "Class Order"). I. On March 1, 2012, Schering, M/S-P and the Individual Defendants moved for partial summary judgment contending, among other things, that the declines in Schering's common stock and Preferred Stock and option prices on certain dates were not caused by disclosure of the alleged fraud. The Underwriter Defendants also moved for summary judgment that day contending, among other things, that they had conducted a reasonable investigation and thus satisfied the "due diligence" defense to liability under the Securities Act. On September 25, 2012, the Court entered an Order denying both motions. J. On October 9, 2012, Defendants filed two petitions in the United States Court of Appeals for the Third Circuit (the "Third Circuit") pursuant to Rule 23(f) of the Federal Rules of Civil Procedure seeking leave to appeal the Court's rulings on class certification. On January 7, 2013, the Third Circuit denied those petitions. 4 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 6 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 5 of 55 PageID:PagelD: 25155 K. By Order entered December 28, 2012, the Court approved the Class Notice, which was sent to putative Class Members beginning on January 17, 2013. Among other things, the Court found that the Class Notice met the requirements of Rule 23 and due process, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled to receive notice. Pursuant to the Court's December 28, 2012 Order, the Class Notice provided these putative Class Members with the opportunity to request exclusion from the Class. The Class Notice explained Class Members' right to request exclusion, set forth the procedure for doing so, stated that it is within the Court's discretion whether to permit a second opportunity to request exclusion if there is a settlement, and provided a deadline of March 1, 2013 for the submission of requests for exclusion. The Class Notice further stated that Class Members who choose to remain a member of the Class "will be bound by all past, present and future orders and judgments in the Action, whether favorable or unfavorable." L Prior to reaching the agreement in principle to settle the Action, counsel for Class Representatives and Defendants completed extensive class, fact and expert discovery which included over ninety (90) depositions, several of which were conducted overseas, and the production and review of more than twelve million pages of documents. M. Additionally, by the date the agreement in principle was reached, Class Representatives and Defendants had virtually completed all pre-trial preparations. Thus, for example, the Pretrial Order, which included the stipulated and contested facts, deposition transcript designations, witness lists, exhibit lists, and several thousand exhibits, had been submitted to the Court, and Daubert motions and motions in limine had been filed. N. Trial of the Action was scheduled by the Court to begin on March 4, 2013. 5 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 7 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 6 of 55 PageID:PagelD: 25156 0. From 2011 through 2013, Co-Lead Counsel and Merck's Counsel participated in a series of mediated discussions, the most recent round of which was conducted by the Court- appointed mediators Stephen M. Greenberg and Jonathan J. Lerner of the Pilgrim Mediation Group, LLC. With the assistance of Mr. Greenberg and Mr. Lerner, on February 25, 2013, Co- Lead Counsel, Merck's Counsel and Defendants' Counsel, on behalf of their respective clients, entered into a term sheet (the "Term Sheet") setting forth, among other things, the agreement to settle and release all claims asserted against the Defendants and the other Defendants' Releasees (defined below) in the Action in return for a cash payment of $473,000,000 by or on behalf of Merck for the benefit of the Class, subject to certain terms and conditions and the execution of a customary "long form" stipulation and agreement of settlement and related papers. The Parties agreed that, except for Schering-Plough Corporation (now known as Merck & Co., Inc.) and its Insurers, none of the Defendants or the other Defendants' Releasees will have any obligation to pay or cause to be paid any portion of the $473,000,000. P. This Stipulation (together with the exhibits hereto) has been duly executed by the undersigned signatories on behalf of their respective clients, and reflects the final and binding agreement among the Parties. Q. Based upon their investigation, prosecution and mediation of the case, Co-Lead Counsel have concluded that the terms and conditions of this Stipulation are fair, reasonable and adequate to the Class Representatives and the other members of the Class, and in their best interests. Based on Class Representatives' direct oversight of the prosecution of this matter and with the advice of their counsel, each of the Class Representatives has agreed to settle the claims raised in the Action pursuant to the terms and provisions of this Stipulation, after considering (a) the substantial financial benefit that Class Representatives and the other members of the Class 6 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 8 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 7 of 55 PageID:PagelD: 25157 will receive immediately under the proposed Settlement; (b) the significant risks of continued litigation and trial; and (c) the desirability of permitting the Settlement to be consummated as provided by the terms of this Stipulation. R. This Stipulation constitutes a compromise of matters that are in dispute between Class Representatives, Defendants and the other Defendants' Releasees. Defendants are entering into this Stipulation solely to eliminate the uncertainty, burden and expense of further protracted litigation. Each of the Defendants denies any wrongdoing, and this Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any of the Defendants, or any of the other Defendants' Releasees, with respect to any claim or allegation of any fault or liability or wrongdoing or damage whatsoever, or any infirmity in the defenses that the Defendants have, or could have, asserted. The Defendants expressly deny that Class Representatives have asserted any valid claims as to any of them, and expressly deny any and all allegations of fault, liability, wrongdoing or damages whatsoever. Similarly, this Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any Class Representative of any infirmity in any of the claims asserted in the Action, or an admission or concession that any of the Defendants' affirmative defenses to liability had any merit. Each of the Parties recognizes and acknowledges, however, that the Action has been initiated, filed and prosecuted by Class Representatives in good faith and defended by Defendants in good faith, and that the Action is being voluntarily settled with the advice of counsel. NOW THEREFORE, without any admission or concession whatsoever on the part of Class Representatives, or any other members of the Class, or Co-Lead Counsel of any lack of merit in any aspect of the claims asserted in the Action, and without any admission or concession 7 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 9 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 8 of 55 PageID:PagelD: 25158 whatsoever on the part of Defendants, or any of the other Defendants' Releasees, or Defendants' Counsel of any liability or wrongdoing or of any lack of merit in the defenses Defendants asserted to the claims alleged in this Action, it is hereby STIPULATED AND AGREED, by and among Class Representatives (individually and on behalf of the Class), Merck and Defendants, by and through their respective undersigned attorneys and subject to the approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure and the PSLRA, that, in consideration of the benefits flowing to the Parties from the Settlement, all Released Claims as against all Parties and their respective Releasees shall be fully, finally and forever compromised, settled, released, resolved, relinquished, waived, discharged and dismissed with prejudice in accordance with and subject to the terms and conditions set forth below. I. DEFINITIONS 1 As used in this Stipulation, and any exhibits attached hereto and made a part hereof, the following capitalized terms shall have the following meanings: (a) "Action" means the consolidated securities action in the matter styled In re Schering-Plough Corp. / ENHANCE Securities Litigation, Civil Action No. 08-397 (DMC) (JAD), and includes all actions consolidated therein. (b) "Alternative Judgment" means a form of final judgment that may be entered by the Court herein but in a form other than the form of Judgment provided for in this Stipulation. (c) "Authorized Claimant" means a Class Member who submits a timely and valid Proof of Claim Form to the Claims Administrator, in accordance with the requirements established by the Court, that is approved for payment from the Net Settlement Fund. (d) "Claim" means a Proof of Claim Form submitted to the Claims Administrator. 8 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 10 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 9 of 55 PageID:PagelD: 25159 (e) "Claim Form" or "Proof of Claim Form" means the form, substantially in the form attached hereto as Exhibit 2 to Exhibit A, that a Claimant or Class Member must complete and submit should that Claimant or Class Member seek to share in a distribution of the Net Settlement Fund. (f) "Claimant" means a Person that submits a Claim Form to the Claims Administrator seeking to share in the proceeds of the Settlement Fund. (g) "Claims Administrator" means the administrator, Epiq Systems, Inc., retained by Co-Lead Counsel on behalf of the Class and approved by the Court in connection with the distribution of the Class Notice, to provide all notices approved by the Court to potential Class Members and to administer the Settlement. (h) "Class" means the class certified by Order of the Court dated October 11, 2012, consisting of all persons and entities that purchased or acquired Schering common stock, 6% mandatory convertible preferred stock maturing August 13, 2010 ("Preferred Stock"), or call options, and/or sold Schering put options, during the period between January 3, 2007 through and including March 28, 2008 (the "Class Period"), and who did not sell their stock and/or options on or before December 11, 2007, and who were damaged thereby. Excluded from the Class by definition are (a) Defendants; (b) members of the Immediate Families of the Individual Defendants; (c) the subsidiaries and affiliates of Defendants; (d) any person or entity who was a partner, executive officer, director, or controlling person of Schering, M/S-P or Merck (including any of their subsidiaries or affiliates), or any other Defendants; (e) any entity in which any Defendant has a controlling interest; (f) Defendants' directors' and officers' liability insurance carriers, and any affiliates or subsidiaries thereof; and (g) the legal representatives, heirs, successors and assigns of any such excluded party. Also excluded from the Class are any 9 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 11 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 10 of 55 PageID:PagelD: 25160 Persons listed in Appendix 1 hereto who previously submitted a valid or Court-approved request for exclusion and who do not opt back into the Class. If and only if the Court affords a second opportunity for Class Members to request exclusion from the Class, also excluded from the Class shall be any Persons who exclude themselves by submitting a valid or Court-approved request for exclusion in connection with the Settlement Notice who do not withdraw their requests for exclusion and whose requests are accepted by the Court. For purposes of clarification, any Investment Vehicle (as defined herein) shall not be deemed an excluded person or entity by definition. (i) "Class Distribution Order" means an order entered by the Court authorizing and directing that the Net Settlement Fund be distributed, in whole or in part, to Authorized Claimants. "Class Member" means a Person that is a member of the Class. (k) "Class Notice" means the notice previously authorized by Order of the Court entered December 28, 2012, which was sent to Class Members in accordance with that Order. (1) "Class Period" means the period between January 3, 2007 through and including March 28, 2008. ) "Co-Lead Counsel" means Bernstein Litowitz Berger & Grossmann LLP and Labaton Sucharow LLP. (n) "Complaint" means the Consolidated Class Action Complaint for Violations of the Federal Securities Laws filed on September 15, 2008. 10 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 12 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 11 of 55 PageID:PagelD: 25161 (o) "Complete Bar Order" means the bar order, the text of which is set forth in ¶ 33 below, to be proposed to the Court as part of the Judgment, or Alternative Judgment if applicable. (p) "Court" means the United States District Court for the District of New Jersey. (q) "Defendants" means the Schering-Related Defendants and the Underwriter Defendants. (r) "Defendants' Counsel" means Schering-Related Defendants' Counsel and Underwriter Defendants' Counsel. (s) "Defendants' Releasees" means the Defendants and their respective present and former parents, subsidiaries, divisions, joint ventures and affiliates, and each of their respective present and former employees, members, partners, principals, officers, directors, attorneys, advisors, accountants, auditors, and insurers (but only in such insurers' capacity as insurers of the foregoing); and the predecessors, successors, estates, heirs, executors, trusts, trustees, administrators, agents, fiduciaries, consultants, representatives and assigns of each of them, in their capacity as such. (t) "Director Defendants" means Hans W. Becherer, Thomas J. Colligan, C. Robert Kidder, Philip Leder, M.D., Eugene R. McGrath, Carl E. Mundy, Jr., Antonio M. Perez, Patricia F. Russo, Jack L. Stahl, Kathryn C. Turner, Robert F.W. van Oordt, and Arthur F. Weinbach. (u) "Effective Date," with respect to the Settlement, shall occur upon the occurrence or waiver of all of the conditions set forth in 1136, below. 11 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 13 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 12 of 55 PageID:PagelD: 25162 (v) "Escrow Account" means an account maintained at Citibank, N.A. to hold the Settlement Fund, which account shall be deemed to be in the custody of the Court and shall remain subject to the jurisdiction of the Court until such time as the funds therein are paid out as provided for in this Stipulation, and wherein the Settlement Amount shall be deposited and held in escrow. (w) "Escrow Agent" means Citibank, N.A. (x) "Escrow Agreement" means the agreement between Co-Lead Counsel and the Escrow Agent setting forth the terms under which the Escrow Agent shall maintain the Escrow Account. (y) "Final," with respect to the Judgment, or Alternative Judgment, if applicable, means: (i) if no appeal is filed, the expiration date of the time provided for filing or noticing of any appeal under the Federal Rules of Civil Procedure, i.e., thirty (30) calendar days after entry of the Judgment, or Alternative Judgment, if applicable; or (ii) if there is an appeal from the Judgment, or Alternative Judgment, if applicable, the date of (a) final dismissal of all such appeals, or the final dismissal of any proceeding on certiorari or otherwise to review the Judgment, or Alternative Judgment, if applicable, or (b) the date the Judgment, or Alternative Judgment, if applicable, is finally affirmed on an appeal, the expiration of the time to file a petition for a writ of certiorari or other form of review, or the denial of a writ of certiorari or other form of review of the Judgment, or Alternative Judgment, if applicable, and, if certiorari or other form of review is granted, the date of final affirmance of the Judgment, or Alternative Judgment, if applicable, following review pursuant to that grant. However, any appeal or proceeding seeking subsequent judicial review pertaining solely to an order issued with respect to (i) attorneys' fees, costs or expenses, or (ii) the plan of allocation (as submitted or 12 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 14 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 13 of 55 PageID:PagelD: 25163 subsequently modified), shall not in any way delay or preclude the Judgment or Alternative Judgment, if applicable, from becoming Final. (z) "Immediate Family" means, as set forth in 17 C.F.R. § 229.404, children, stepchildren, parents, stepparents, spouses, siblings, mothers-in-law, fathers-in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law. "Spouse" as used in this definition also means a husband, a wife, or a partner in a state-recognized domestic partnership, civil union, or marriage. (aa) "Individual Defendants" means defendants Fred Hassan, Carrie S. Cox, Robert J. Bertolini, Steven H. Koehler, Susan Ellen Wolf, Hans W. Becherer, Thomas J. Colligan, C. Robert Kidder, Philip Leder, M.D., Eugene R. McGrath, Carl E. Mundy, Jr., Antonio M. Perez, Patricia F. Russo, Jack L. Stahl, Kathryn C. Turner, Robert F.W. van Oordt, and Arthur F. Weinbach. (bb) "Insurers" means any and all of Merck's or the Defendants' insurance carriers who may contribute to the payment of the Settlement Amount. (cc) "Investment Vehicle" means any investment company or pooled investment fund, including, but not limited to, mutual fund families, exchange-traded funds, fund of funds and hedge funds, in which any Underwriter Defendant has or may have a direct or indirect interest, or as to which its affiliates may act as an investment advisor but of which any Underwriter Defendant or any of its respective affiliates is not a majority owner or does not hold a majority beneficial interest. (dd) "Judgment" means the final judgment and order, substantially in the form attached hereto as Exhibit B, to be entered by the Court approving the Settlement. 13 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 15 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 14 of 55 PageID:PagelD: 25164 (ee) "Lead Plaintiffs" or "Class Representatives" means the Arkansas Teacher Retirement System, the Public Employees' Retirement System of Mississippi, the Louisiana Municipal Police Employees' Retirement System, and the Massachusetts Pension Reserves Investment Management Board. (ff) "Legacy Merck" means Merck & Co., Inc. as it existed prior to its merger with Schering in November 2009. (gg) "Liaison Counsel" means Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC. (hh) "Litigation Expenses" means costs and expenses incurred in connection with commencing, prosecuting, and settling the Action (which may include the costs and expenses incurred by Class Representatives directly related to their representation of the Class), for which Co-Lead Counsel intend to apply to the Court for reimbursement from the Settlement Fund. (ii) "Merck" means Merck & Co., Inc., formerly known as Schering-Plough Corporation, the surviving company after the merger of Legacy Merck and Schering in November 2009. (jj) "Merck's Counsel" means Paul, Weiss, Rifkind, Wharton & Garrison LLP. (kk) "M/S-P" means Merck/Schering-Plough Pharmaceuticals. (11) "Net Settlement Fund" means the Settlement Fund less: (i) any Taxes; (ii) any Notice and Administration Costs; (iii) any Litigation Expenses awarded by the Court; and (iv) any attorneys' fees awarded by the Court. 14 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 16 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 15 of 55 PageID:PagelD: 25165 (mm) "Notice and Administration Costs" means the costs, fees and expenses that are incurred by the Claims Administrator and/or Co-Lead Counsel in connection with (i) providing notice to the Class (including, but not limited to, the Class Notice and the Settlement Notice); (ii) administering the Claims process; and (iii) the Escrow Account. (nn) "Parties" means Merck, Defendants and Class Representatives, on behalf of themselves and the Class. (oo) "Payment Information" means the federal taxpayer identification number for the Escrow Account and the instructions for making payments to the Escrow Account both by check and by wire transfer. (pp) "Person" means an individual, corporation, partnership, limited partnership, 1 ited liability partnership, limited liability corporation, association, affiliate, joint stock company, government and any political subdivision thereof, legal representative, trust, trustee, unincorporated association, or any business or legal entity. (qq) "Plaintiffs' Counsel" means Co-Lead Counsel, Liaison Counsel, and all other legal counsel who, at the direction and under the supervision of Co-Lead Counsel, performed services on behalf of or for the benefit of the Class. (rr) "Plaintiffs' Releasees" means Class Representatives and all other Class Members, Plaintiffs' Counsel, including Co-Lead Counsel and Liaison Counsel, and each of their respective present and former parents, subsidiaries, divisions and affiliates and their respective present and former employees, members, partners, principals, officers, directors, attorneys, advisors, accountants, auditors, and insurers (but only in such insurers' capacity as insurers of the foregoing); and the predecessors, successors, estates, heirs, executors, trusts, 15 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 17 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 16 of 55 PageID:PagelD: 25166 trustees, administrators, agents, fiduciaries, consultants, representatives and assigns of each of them, in their capacity as such. (ss) "Plan of Allocation" means the proposed plan of allocation of the Net Settlement Fund set forth in the Settlement Notice. (tt) "Preferred Stock" means Schering 6% mandatory convertible preferred stock maturing August 13, 2010. (uu) "Preliminary Approval Order" means the order, substantially in the form attached hereto as Exhibit A, to be entered by the Court preliminarily approving the Settlement and directing that notice of the Settlement be provided to the Class. (vv) "PSLRA" means the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §§ 77z-1, 78u-4, et seq., as amended. (ww) "Released Defendants' Claims" means any and all claims, actions, causes of action, controversies, demands, duties, debts, damages, obligations, contracts, agreements, promises, issues, judgments, liabilities, losses, sums of money, matters, suits, proceedings, and rights of every nature and description, whether known claims or Unknown Claims, suspected or unsuspected, concealed or unconcealed, foreseen or unforeseen, fixed or contingent, matured or unmatured, accrued or unaccrued, liquidated or unliquidated, and whether based on federal, state, local or foreign statutory law, rule, regulation, common law, or equity, that arise out of or relate in any way to the institution, prosecution, or settlement of the claims asserted in this Action, that Defendants could have asserted against any of the Class Representatives, any of the other Class Members, or any of the other Plaintiffs' Releasees, except for claims relating to the enforcement of the Settlement. Released Defendants' Claims do not include such claims against: (i) any Person listed in Appendix 1 hereto who previously submitted a valid or Court-approved request 16 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 18 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 17 of 55 PageID:PagelD: 25167 for exclusion from the Class and who does not opt back into the Class; or (ii) if and only if the Court affords a second opportunity for Class Members to request exclusion from the Class, any Person who submits a valid or Court-approved request for exclusion from the Class in connection with the Settlement Notice who does not withdraw his, her or its request for exclusion and whose request is accepted by the Court. (xx) "Released Plaintiffs' Claims" means any and all claims, actions, causes of action, controversies, demands, duties, debts, damages, obligations, contracts, agreements, promises, issues, judgments, liabilities, losses, sums of money, matters, suits, proceedings, and rights of every nature and description, whether known claims or Unknown Claims, suspected or unsuspected, concealed or unconcealed, foreseen or unforeseen, fixed or contingent, matured or unmatured, accrued or unaccrued, liquidated or unliquidated, whether based on federal, state, local or foreign statutory law, rule, regulation, common law, or equity, and whether direct, representative, class, or individual, to the fullest extent permitted by law, that Class Representatives or any other member of the Class: (i) asserted in the Action, including in the Complaint; or (ii) could have asserted in any forum arising out of, related to, or based in whole or in part upon, in connection with, or in any way involving any of the occurrences, causes, breaches of duty, neglect, error, misstatements, misleading statements, representations, omissions, acts, or facts, circumstances, situations, events, or transactions alleged, involved, set forth, contained, or referred to in the Action, including in the Complaint, and arise out of the purchase, acquisition, or holding of Schering common stock, Preferred Stock, or call options, or sale of Schering put options during the Class Period. Released Plaintiffs' Claims do not release, bar, or waive: (i) claims which were asserted in the actions entitled Cain v. Hassan, Civil Action No. 2:08-cv-01022 (D.N.J.), In re Schering-Plough Corp. ENHANCE ERISA Litigation, Civil 17 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 19 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 18 of 55 PageID:PagelD: 25168 Action No. 08-CV-1432 (D.N.J.), In re Vytorin/Zetia Marketing Sales Practices and Products Liability Litigation, 08-cv-0285 (DMC) (D.N.J.), In re Merck & Co. Inc., Vytorin/Zetia Securities Litigation, 08-cv-02177 (DMC) (D.N.J.), Local No. 38 International Brotherhood Of Electrical Workers Pension Fund v. Clark, et al., 09-cv-05668 (DMC) (D.N.J.), or In re Merck & Co. Inc. Vytorin ERISA Litigation, 08-cv-1974 (DMC) (D.N.J.) that are not already released, barred or waived by the orders or judgments therein, or by operation of law; (ii) any claims of any Person listed in Appendix 1 hereto that submitted a valid or Court-approved request for exclusion and who does not opt back into the Class; or (iii) if and only if the Court affords a second opportunity to request exclusion from the Class, any claims of any Person that submits a valid or Court-approved request for exclusion in connection with the Settlement Notice who does not withdraw his, her or its request for exclusion and whose request is accepted by the Court (collectively, the "Excluded Claims"). Additionally, Released Plaintiffs' Claims do not include claims relating to the enforcement of the Settlement. (yy) "Released Claims" means all Released Defendants' Claims and all Released Plaintiffs' Claims. (zz) "Releasee(s)" means each and any of Defendants' Releasees and Plaintiffs' Releasees. (aaa) "Releases" means the releases set forth in ¶T 4-6 of this Stipulation. (bbb) "Schering" means Schering-Plough Corporation (now known as Merck & Co., Inc.). (ccc) "Schering-Related Defendants" means Schering, M/S-P, Fred Hassan, Carrie S. Cox, Robert J. Bertolini, Steven H. Koehler, Susan Ellen Wolf, and the Director Defendants. 18 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 20 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 19 of 55 PageID:PagelD: 25169 (ddd) "Schering-Related Defendants' Counsel" means Paul, Weiss, Rifkind, Wharton & Garrison LLP. (eee) "Settlement" means the settlement between Class Representatives, Merck, and Defendants on the terms and conditions set forth in this Stipulation. (fff) "Settlement Amount" means Four Hundred Seventy Three Million Dollars ($473,000,000) in cash. (ggg) "Settlement Fund" means the Settlement Amount plus any and all interest earned thereon. (hhh) "Settlement Hearing" means the hearing set by the Court under Rule 23(e)(2) of the Federal Rules of Civil Procedure to consider final approval of the Settlement. (iii) "Settlement Notice" means the Notice of (I) Proposed Settlement and Plan of Allocation; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses, substantially in the form attached hereto as Exhibit 1 to Exhibit A, which is to be sent to Class Members. "Summary Settlement Notice" means the Summary Notice of (I) Proposed Settlement and Plan of Allocation; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses, substantially in the form attached hereto as Exhibit 3 to Exhibit A to be published as set forth in the Preliminary Approval Order. (kkk) "Taxes" means: (i) all federal, state and/or local taxes of any kind (including any interest or penalties thereon) on any income earned by the Settlement Fund; (ii) the expenses and costs incurred by Co-Lead Counsel in connection with determining the amount 19 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 21 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 20 of 55 PageID:PagelD: 25170 of, and paying, any taxes owed by the Settlement Fund (including, without limitation, expenses of tax attorneys and accountants); and (iii) all taxes for withholding obligations. (Ill) "Underwriter Defendants" means ABN AMRO Rothschild LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated (as successor by merger to Banc of America Securities LLC), Banca IMI SpA, BBVA Securities Inc., Bear, Stearns & Co. Inc. (now J.P. Morgan Securities LLC), BNP Paribas Securities Corp., BNY Capital Markets, Inc. (now BNY Mellon Capital Markets, LLC), Citigroup Global Markets, Inc., Credit Suisse Securities (USA) LLC, Daiwa Securities America Inc. (now Daiwa Capital Markets America Inc.), Goldman, Sachs & Co., ING Financial Markets LLC, J.P. Morgan Securities Inc. (now J.P. Morgan Securities LLC), Mizuho Securities USA Inc., Morgan Stanley & Co. Incorporated (now Morgan Stanley & Co. LLC), Santander Investment Securities Inc., Utendahl Capital Partners, L.P., and The Williams Capital Group L.P. (mmm)"Underwriter Defendants' Counsel" means Shearman & Sterling LLP. (nnn) "Unknown Claims" means any Released Claims which Class Representatives, any other Class Member, or each of the Defendants or any of the other Releasees, does not know or suspect to exist in his, her or its favor at the time of the release of each or any of the other Releasees, which, if known by him, her or it, might have affected his, her or its decision(s) with respect to the Settlement. With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date of the Settlement, Class Representatives and each of the Defendants expressly waive, and each of the other Class Members and each of the other Releasees shall be deemed to have waived, and by operation of the Judgment, or if applicable, the Alternative Judgment, shall have expressly waived, any and all provisions, rights, and benefits conferred by any law of any state or territory of the United 20 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 22 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 21 of 55 PagelD:PageID: 25171 States, or principle of common law or foreign law, which is similar, comparable, or equivalent to California Civil Code §1542, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Class Representatives, any other Class Member, Defendants, and their respective Releasees may hereafter discover facts in addition to or different from those which he, she, or it now knows or believes to be true with respect to the subject matter of the Released Claims, but the Parties stipulate and agree that, upon the Effective Date of the Settlement, Class Representatives and each of the Defendants shall expressly waive, and each of the other Class Members and Releasees shall be deemed to have waived, and by operation of the Judgment, or if applicable, the Alternative Judgment, shall have expressly waived any and all Released Claims without regard to the subsequent discovery or existence of such different or additional facts. Class Representatives and each of the Defendants acknowledge, and each of the other Class Members and each of the other Releasees shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for and is a key element of the Settlement. II. PRELIMINARY APPROVAL OF SETTLEMENT 2. Promptly upon execution of this Stipulation, Class Representatives will move for preliminary approval of the Settlement and for the scheduling of a hearing for consideration of final approval of the Settlement. Concurrently with the motion for preliminary Court approval, Class Representatives shall apply to the Court for, and Defendants shall agree to, entry of the Preliminary Approval Order, substantially in the form attached hereto as Exhibit A, including approval of the Settlement Notice, Claim Form, and Summary Settlement Notice substantially in the form as attached as Exhibits 1, 2, and 3, respectively, to the Preliminary Approval Order. 21 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 23 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 22 of 55 PageID:PagelD: 25172 3. Lead Plaintiffs represent and warrant that they have filed no other actions asserting Released Claims other than the Action, and covenant and agree that, pending final approval or termination of the Settlement, they shall file no other claim or action of any kind asserting any Released Claim in any action or proceeding of any kind, including any civil, criminal, or administrative action or proceeding. III. RELEASE OF CLAIMS 4. The obligations incurred pursuant to this Stipulation shall be in full and final disposition of the Action as against the Defendants and shall fully, finally and forever compromise, settle, release, resolve, relinquish, waive, discharge and dismiss with prejudice, the Action and any and all Released Claims against the Parties and all of the Releasees upon the occurrence of the Effective Date. This Stipulation does not release the Excluded Claims. 5. Pursuant to the Judgment, or the Alternative Judgment if applicable, without further action by anyone, upon the Effective Date of the Settlement, Class Representatives, and each of the other Class Members, on behalf of themselves, their heirs, executors, administrators, predecessors, successors, affiliates and assigns, shall be deemed to have, and by operation of law and of the Judgment, or the Alternative Judgment if applicable, shall have, fully, finally and forever compromised, settled, released, resolved, relinquished, waived, discharged and dismissed each and every Released Plaintiffs' Claim against the Defendants and the other Defendants' Releasees and shall forever be barred and enjoined from prosecuting any or all of the Released Plaintiffs' Claims against any of the Defendants or any of the other Defendants' Releasees. This Release shall not apply to: (a) any Person listed in Appendix 1 hereto who previously submitted a valid or Court-approved request for exclusion from the Class in connection with the Class Notice and who does not opt back into the Class in accordance with the provisions set forth in the Settlement Notice; and (b) if and only if the Court affords a second opportunity for Class 22 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 24 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 23 of 55 PageID:PagelD: 25173 Members to request exclusion from the Class, any Person who submits a valid or Court-approved request for exclusion from the Class in connection with the Settlement Notice who does not withdraw his, her or its request for exclusion and whose request is accepted by the Court. 6. Pursuant to the Judgment, or the Alternative Judgment if applicable, without further action by anyone, upon the Effective Date of the Settlement, each of the Defendants, on behalf of themselves, their heirs, executors, administrators, predecessors, successors, affiliates and assigns, shall be deemed to have, and by operation of law and of the Judgment, or the Alternative Judgment if applicable, shall have, fully, finally and forever compromised, settled, released, resolved, relinquished, waived, discharged and dismissed each and every Released Defendants' Claim against all of the Class Representatives, all of the other Class Members, and all of the other Plaintiffs' Releasees and shall forever be barred and enjoined from prosecuting any or all of the Released Defendants' Claims against any of the Class Representatives, any of the other Class Members, and any of the other Plaintiffs' Releasees. This Release shall not apply to: (a) any Person listed in Appendix 1 hereto who previously submitted a valid or Court- approved request for exclusion from the Class in connection with the Class Notice and who does not opt back into the Class in accordance with the provisions set forth in the Settlement Notice; and (b) if and only if the Court affords a second opportunity for Class Members to request exclusion from the Class, any Person who submits a valid or Court-approved request for exclusion from the Class in connection with the Settlement Notice who does not withdraw his, her or its request for exclusion and whose request is accepted by the Court. 7. Notwithstanding '1 4-6 above, nothing in the Judgment or the Alternative Judgment, if applicable, shall bar any action by any of the Parties to enforce or effectuate the terms of this Stipulation or the Judgment, or Alternative Judgment, if applicable. 23 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 25 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 24 of 55 PageID:PagelD: 25174 8. The Releases contained in this section were separately bargained for and are essential elements of the Settlement as embodied in this Stipulation. 9. The Parties will seek to obtain from the Court a Judgment as further described in 33 below, to be entered simultaneously with or promptly after approval of the Settlement as embodied in this Stipulation. IV. THE SETTLEMENT CONSIDERATION 10. In consideration of the full and complete settlement of the Released Plaintiffs' Claims against the Defendants and the other Defendants' Releasees, Merck shall pay or cause to be paid the Settlement Amount into the Escrow Account on or before the later of: (a) twenty (20) calendar days after Co-Lead Counsel provides Merck's Counsel with the Payment Information, or (b) thirty (30) calendar days after the Court's entry of an order preliminarily approving the Settlement. Payment of the Settlement Amount by Merck or its Insurers in accordance with the terms of this Stipulation constitutes the entirety of Merck's, Defendants' and the other Defendants' Releasees' payment obligation with respect to this Stipulation and the Parties agree that, except for Schering-Plough Corporation (now known as Merck & Co, Inc.) and its Insurers, none of the Defendants or Defendant Releasees will have any obligation to pay or cause to be paid any portion of the Settlement Amount. Should Merck fail to pay or cause the Settlement Amount to be paid as required by this paragraph, Class Representatives shall have the right to immediately terminate the Settlement. V. USE OF SETTLEMENT FUND 11. The Settlement Fund shall be used to pay: (a) any Taxes, (b) any Notice and Administration Costs, (c) any Litigation Expenses awarded by the Court; and (d) any attorneys' fees awarded by the Court. The balance remaining in the Settlement Fund, that is, the Net Settlement Fund, shall be distributed to Authorized Claimants as provided in ¶T 21-32 below. 24 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 26 of Case 2:08-cv-00397-ES-JAD DocumentDocument 419-1 56 FiledFiled 06/04/13 Page 25 of 55 PageID:PagelD: 25175 12. Except as provided herein or pursuant to orders of the Court, the Net Settlement Fund shall remain in the Escrow Account prior to the Effective Date. All funds held by the Escrow Agent shall be deemed to be in the custody of the Court and shall remain subject to the jurisdiction of the Court until such time as the funds shall be distributed or returned pursuant to the terms of this Stipulation and/or further order of the Court. The Escrow Agent shall invest any funds in the Escrow Account exclusively in United States Treasury Bills or other instruments backed by the full faith and credit of the United States Government or fully insured by the United States Government or an agency thereof, including a U.S. Treasury Money Market Fund or a bank account insured by the Federal Deposit Insurance Corporation ("FDIC") up to the guaranteed FDIC limit. Defendants and the other Defendants' Releasees shall not have any liability or responsibility with respect to such Escrow Account or the investment thereof. 13. The Parties agree that the Settlement Fund is intended to be a Qualified Settlement Fund within the meaning of Treasury Regulation § 1.468B-1 and that Co-Lead Counsel, as administrators of the Settlement Fund within the meaning of Treasury Regulation § 1.468B-2(k)(3), shall be solely responsible for filing or causing to be filed all informational and other tax returns as may be necessary or appropriate (including, without limitation, the returns described in Treasury Regulation § 1.468B-2(k)) for the Settlement Fund. Such returns shall be consistent with this paragraph and in all events shall reflect that all Taxes on the income earned on the Settlement Fund shall be paid out of the Settlement Fund as provided below. Co- Lead Counsel shall also be responsible for causing payment to be made from the Settlement Fund of any Taxes owed with respect to the Settlement Fund. Defendants and the other Defendants' Releasees shall not have any liability or responsibility for any such Taxes. Upon written request, Merck will provide to Co-Lead Counsel the statement described in Treasury 25 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 27 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 26 of 55 PageID:PagelD: 25176 Regulation § 1.468B-3(e). Co-Lead Counsel, as administrators of the Settlement Fund within the meaning of Treasury Regulation § 1.468B-2(k)(3), shall timely make such elections as are necessary or advisable to carry out this paragraph, including, as necessary, making a "relation back election," as described in Treasury Regulation § 1.468B-1(j), to cause the Qualified Settlement Fund to come into existence at the earliest allowable date, and shall take or cause to be taken all actions as may be necessary or appropriate in connection therewith. In no event shall Defendants have any responsibility whatsoever for filing election or other required statements, or tax returns, or for paying the costs associated therewith, or the payment of any taxes due with respect to the Settlement Fund, or the payment of Notice and Administration Costs. 14. All Taxes shall be paid out of the Settlement Fund, and shall be timely paid by the Escrow Agent pursuant to the disbursement instructions to be set forth in the Escrow Agreement, and without further order of the Court or approval by Merck, Defendants, and/or the other Defendants' Releasees. Any tax returns prepared for the Settlement Fund (as well as the election set forth therein) shall be consistent with the previous paragraph and in all events shall reflect that all Taxes on the income earned by the Settlement Fund shall be paid out of the Settlement Fund as provided herein. Defendants and the other Defendants' Releasees shall not have any responsibility or liability with respect to the acts or omissions of Co-Lead Counsel or their agents with respect to the payment of Taxes, as described herein. 15. The Settlement is not a claims-made settlement. Upon the occurrence of the Effective Date, neither Merck nor any Defendant, nor any other Defendants' Releasee, Insurer or any other Person shall have any right to the return of the Settlement Fund or any portion thereof for any reason whatsoever, including without limitation, the number of Proof of Claim Forms 26 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 28 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 27 of 55 PageID:PagelD: 25177 submitted, the collective amount of Recognized Claims of Authorized Claimants, the percentage of recovery of losses, or the amounts to be paid to Authorized Claimants from the Net Settlement Fund. 16. The Claims Administrator shall discharge its duties under Co-Lead Counsel's supervision and subject to the jurisdiction of the Court. Defendants and the other Defendants' Releasees shall have no responsibility whatsoever for the administration of the Settlement, and shall have no liability whatsoever to any Person, including but not limited to, Class Representatives, any other Class Members, or Co-Lead Counsel, in connection with any such administration. Co-Lead Counsel shall cause the Claims Administrator to mail the Settlement Notice and Proof of Claim Form to those members of the Class at the address of each such Person who may be identified through reasonable effort. Co-Lead Counsel shall cause the Claims Administrator to publish the Summary Settlement Notice pursuant to the terms of the Preliminary Approval Order or in whatever other form or manner might be ordered by the Court. 17. Co-Lead Counsel may pay from the Settlement Fund, without further approval from Merck, or the Defendants or further order of the Court, all Notice and Administration Costs actually and reasonably incurred. Such costs and expenses shall include, without limitation, the actual costs of publication of the Summary Settlement Notice and printing and mailing the Settlement Notice, reimbursements to nominee owners for forwarding the Settlement Notice to their beneficial owners, the administrative expenses incurred and fees charged by the Claims Administrator in connection with providing notice and processing the submitted Claims, and the fees, if any, of the Escrow Agent. In the event that the Settlement is terminated pursuant to the terms of this Stipulation (including the Supplemental Agreement), all Notice and Administration Costs reasonably paid or incurred, including any related fees, shall not be returned or repaid to 27 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 29 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 28 of 55 PageID:PagelD: 25178 Merck, any Defendant, any of the other Defendants' Releasees, the Insurers, or any other Person who or which paid any portion of the Settlement Amount. VI. ATTORNEYS' FEES AND LITIGATION EXPENSES 18. Co-Lead Counsel will apply to the Court for a collective award of attorneys' fees to Plaintiffs' Counsel to be paid from the Settlement Fund. Co-Lead Counsel also will apply to the Court for reimbursement of Litigation Expenses and for reimbursement of Class Representatives' costs and expenses directly related to their representation of the Class to be paid from the Settlement Fund. Co-Lead Counsel's application for an award of attorneys' fees and Litigation Expenses is not the subject of any agreement between Merck, Defendants or Class Representatives other than what is set forth in this Stipulation. 19. Any attorneys' fees and Litigation Expenses that are awarded by the Court shall be paid to Co-Lead Counsel immediately upon award, notwithstanding the existence of any timely filed objections thereto, or potential for appeal therefrom, or collateral attack on the Settlement or any part thereof, subject to Co-Lead Counsel's obligation to make appropriate refunds or repayments to the Settlement Fund, plus accrued interest at the same net rate as is earned by the Settlement Fund, if the Effective Date does not occur or if the Settlement is terminated pursuant to the terms of this Stipulation or if, as a result of any appeal or further proceedings on remand, or successful collateral attack, the award of attorneys' fees and/or Litigation Expenses is reduced or reversed by final non-appealable order. Co-Lead Counsel shall make the appropriate refund or repayment in full no later than thirty (30) calendar days after receiving notice that the Effective Date will not occur or notice of the termination of the Settlement or notice of any reduction of the award of attorneys' fees and/or Litigation Expenses by final non-appealable order. An award of attorneys' fees and/or Litigation Expenses is not a necessary term of this Stipulation and is not a condition of the Settlement embodied herein. 28 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 30 of Case 2:08-cv-00397-ES-JAD DocumentDocument 419-1 56 FiledFiled 06/04/13 Page 29 of 55 PageID:PagelD: 25179 Neither Class Representatives nor Co-Lead Counsel may cancel or terminate the Settlement based on this Court's or any appellate court's ruling with respect to attorneys' fees and/or Litigation Expenses. 20. Co-Lead Counsel shall allocate the attorneys' fees awarded amongst Plaintiffs' Counsel in a manner which they, in good faith, believe reflects the contributions of such counsel to the institution, prosecution and settlement of the Action. Defendants and the other Defendants' Releasees shall have no responsibility for or liability whatsoever with respect to the allocation or award of attorneys' fees or Litigation Expenses. The attorneys' fees and Litigation Expenses that are awarded to Plaintiffs' Counsel shall be payable solely from the Escrow Account. VII. CLAIMS ADMINISTRATOR 21. The Claims Administrator shall administer the process of receiving, reviewing and approving or denying Claims subject to the jurisdiction of the Court. Neither Merck, the Defendants, nor the other Defendants' Releasees, shall have any responsibility whatsoever for the administration of the Settlement or the claims process and shall have no liability whatsoever to any Person, including, but not limited to, Class Representatives, any other Class Members or Co-Lead Counsel in connection with such administration. Defendants' Counsel shall cooperate in the administration of the Settlement to the extent reasonably necessary to effectuate its terms. 22. The Claims Administrator shall receive Claims and determine first, whether the Claim is a valid Claim, in whole or part, and second, each Authorized Claimant's pro rata share of the Net Settlement Fund based upon each Authorized Claimant's Recognized Claim compared to the total Recognized Claims of all Authorized Claimants (as set forth in the Plan of Allocation set forth in the Settlement Notice attached hereto as Exhibit 1 to Exhibit A, or in such other plan of allocation as the Court approves). 29 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 31 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 30 of 55 PageID:PagelD: 25180 23. The Plan of Allocation proposed in the Settlement Notice is not a necessary term of the Settlement or of this Stipulation, and it is not a condition of the Settlement or this Stipulation that any particular plan of allocation be approved by the Court. Class Representatives and Co-Lead Counsel may not cancel or terminate the Settlement (or the Stipulation) based on this Court's or any appellate court's ruling with respect to the Plan of Allocation or any plan of allocation in this Action. 24. Neither Merck, Defendants, the other Defendants' Releasees, nor Defendants' Counsel shall have any involvement in, responsibility for, or liability with respect to the Plan of Allocation, the form, substance, method, or manner of allocation, administration, or distribution of the Settlement Fund, any tax liability that a Class Member may incur as a result of the Settlement, or as a result of any action taken pursuant to this Stipulation, the administration or processing of claims, including, without limitation, determination as to the validity of any Proof of Claim, the amounts of claims or distribution of the Net Settlement Fund, or the maintenance of the Settlement Fund as a Qualified Settlement Fund. 25. Any Class Member who does not submit a timely and valid Claim Form will not be entitled to receive any distribution from the Net Settlement Fund but will otherwise be bound by all of the terms of this Stipulation, including the terms of the Judgment or Alternative Judgment, if applicable, to be entered in the Action and the Releases provided for herein and therein, and will be permanently barred and enjoined from bringing any action, claim, or other proceeding of any kind against the Releasees with respect to the Released Claims in the event that the Effective Date occurs with respect to the Settlement. 26. Co-Lead Counsel shall be responsible for supervising the administration of the Settlement and disbursement of the Net Settlement Fund subject to Court approval. Neither 30 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 32 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 31 of 55 PageID:PagelD: 25181 Merck, Defendants, nor the other Defendants' Releasees, shall have any liability, obligation or responsibility whatsoever for the administration of the Settlement or disbursement of the Net Settlement Fund. Neither Merck, Defendants, nor the other Defendants' Releasees, shall be permitted to review, contest or object to any Claim Form, or any decision of the Claims Administrator or Co-Lead Counsel with respect to accepting or rejecting any Claim for payment by a Class Member. Co-Lead Counsel shall have the right, but not the obligation, to waive what they deem to be formal or technical defects in any Claim Forms submitted in the interests of achieving substantial justice. 27. For purposes of determining the extent, if any, to which a Class Member shall be entitled to be treated as an Authorized Claimant, the following conditions shall apply: (a) Each Class Member shall be required to submit a Claim Form, substantially in the form attached hereto as Exhibit 2 to Exhibit A, supported by such documents as are designated therein, including proof of the Claimant's loss, or such other documents or proof as the Claims Administrator or Co-Lead Counsel, in their discretion, may deem acceptable; (b) All Claim Forms must be submitted by the date set by the Court in the Preliminary Approval Order and specified in the Settlement Notice. Any Class Member who fails to submit a Claim Form by such date shall be forever barred from receiving any distribution from the Net Settlement Fund or payment pursuant to this Stipulation (unless by Order of the Court such Class Member's Claim Form is accepted), but shall in all other respects be bound by all of the terms of this Stipulation and the Settlement, including the terms of the Judgment or Alternative Judgment, if applicable, and the Releases provided for herein and therein, and will be permanently barred and enjoined from bringing any action, claim or other proceeding of any kind against Defendants or any of the other Defendants' Releasees concerning any Released 31 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 33 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 32 of 55 PageID:PagelD: 25182 Plaintiffs' Claim. Provided that it is mailed by the claim-submission deadline, a Claim Form shall be deemed to be submitted when postmarked, if received with a postmark indicated on the envelope and if mailed by first-class mail and addressed in accordance with the instructions thereon. In all other cases, the Claim Form shall be deemed to have been submitted on the date when actually received by the Claims Administrator; (c) Each Claim Form shall be submitted to and reviewed by the Claims Administrator, under the supervision of Co-Lead Counsel, who shall determine in accordance with this Stipulation and the plan of allocation the extent, if any, to which each Claim shall be allowed, subject to review by the Court pursuant to subparagraph (e) below as necessary; (d) Claim Forms that do not meet the submission requirements may be rejected. Prior to rejecting a Claim in whole or in part, the Claims Administrator shall communicate with the Claimant in writing, to give the Claimant the chance to remedy any curable deficiencies in the Claim Form submitted. The Claims Administrator, under supervision of Co-Lead Counsel, shall notify, in a timely fashion and in writing, all Claimants whose Claim the Claims Administrator proposes to reject in whole or in part, setting forth the reasons therefor, and shall indicate in such notice that the Claimant whose Claim is to be rejected has the right to a review by the Court if the Claimant so desires and complies with the requirements of subparagraph (e) below; and (e) If any Claimant whose Claim has been rejected in whole or in part desires to contest such rejection, the Claimant must, within twenty (20) calendar days after the date of mailing of the notice required in subparagraph (d) above, serve upon the Claims Administrator a notice and statement of reasons indicating the Claimant's grounds for contesting the rejection along with any supporting documentation, and requesting a review thereof by the Court. If a 32 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 34 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 33 of 55 PageID:PagelD: 25183 dispute concerning a Claim cannot be otherwise resolved, Co-Lead Counsel shall thereafter present the request for review to the Court. 28. Each Claimant shall be deemed to have submitted to the jurisdiction of the Court with respect to the Claimant's Claim, and the Claim will be subject to investigation and discovery under the Federal Rules of Civil Procedure, provided that such investigation and discovery shall be limited to that Claimant's status as a Class Member and the validity and amount of the Claimant's Claim. No discovery shall be allowed on the merits of this Action or of the Settlement in connection with the processing of Claim Forms. 29. Co-Lead Counsel will apply to the Court, on notice to Defendants' Counsel, for a Class Distribution Order: (a) approving the Claims Administrator's administrative determinations concerning the acceptance and rejection of the Claims submitted; (b) approving payment of any administration fees and expenses associated with the administration of the Settlement from the Escrow Account; and (c) if the Effective Date has occurred, directing payment of the Net Settlement Fund to Authorized Claimants from the Escrow Account. 30. Payment pursuant to the Class Distribution Order shall be final and conclusive against all Class Members. All Class Members whose Claims are not approved by the Court for payment shall be barred from participating in distributions from the Net Settlement Fund, but otherwise shall be bound by all of the terms of this Stipulation and the Settlement, including the terms of the Judgment or Alternative Judgment, if applicable, to be entered in this Action and the Releases provided for herein and therein, and will be permanently barred and enjoined from bringing any action against Defendants or any and all of the other Defendants' Releasees concerning any and all of the Released Plaintiffs' Claims. 33 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 35 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 34 of 55 PageID:PagelD: 25184 31. No Person shall have any claim against Class Representatives, Plaintiffs' Counsel, the Claims Administrator or any other agent designated by Co-Lead Counsel, or Defendants, or the other Defendants' Releasees and/or their respective counsel, arising from distributions made substantially in accordance with the Stipulation, the plan of allocation approved by the Court, or any order of the Court. Class Representatives, Merck, Defendants, their respective counsel, Class Representatives' damages expert, and the other Releasees shall have no liability whatsoever for the investment or distribution of the Settlement Fund or the Net Settlement Fund, the Plan of Allocation, or the determination, administration, calculation, or payment of any claim or nonperformance of the Claims Administrator, the payment or withholding of Taxes (including interest and penalties) owed by the Settlement Fund, or any losses incurred in connection therewith. 32. All proceedings with respect to the administration, processing and determination of Claims and the determination of all controversies relating thereto, including disputed questions of law and fact with respect to the validity of Claims, shall be subject to the jurisdiction of the Court. All Class Members and Parties to this Settlement expressly waive trial by jury (to the extent any such right may exist) and any right of appeal or review with respect to such determinations. VIII. TERMS OF THE JUDGMENT 33. If the Settlement embodied in this Stipulation is approved by the Court, Co-Lead Counsel and Defendants' Counsel shall request that the Court enter a Judgment, substantially in the form annexed hereto as Exhibit B which shall, among other things, contain a provision providing for a Complete Bar Order in the Action, as follows in subparagraphs (a) — (d), and subject to ¶ 35 of this Stipulation: 34 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 36 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 35 of 55 PageID:PagelD: 25185 (a) Except as provided below, any and all Persons are permanently barred, enjoined and restrained, to the fullest extent permitted by applicable law, from commencing, prosecuting or asserting any claim for indemnity or contribution against Defendants and any of the other Defendants' Releasees (or any other claim against Defendants or the other Defendants' Releasees where the alleged injury to such Person is that Person's actual or threatened liability to the Class or a Class Member in the Action), based upon, arising out of or related to the Released Plaintiffs' Claims, whether arising under federal, state, local or foreign law, or equity, as claims, cross-claims, counterclaims, or third-party claims, whether asserted in the Action, in this Court, in any federal or state court, or in any other court, arbitration proceeding, administrative agency, or other forum in the United States or elsewhere. (b) Except as provided below, Defendants and each and every one of the other Defendants' Releasees are hereby permanently barred, enjoined and restrained, to the fullest extent permitted by applicable law, from commencing, prosecuting, or asserting any claim for indemnity or contribution against any Person (or any other claim against any such Person where the alleged injury to such Defendant or other Defendants' Releasee is that Defendant's or other Defendants' Releasee's actual or threatened liability to the Class or a Class Member in the Action) based upon, arising out of or related to the Released Plaintiffs' Claims, whether arising under federal, state, local, or foreign law, or equity, as claims, cross-claims, counterclaims, or third-party claims, whether asserted in the Action, in this Court, in any other federal or state court, or in any other court, arbitration proceeding, administrative agency, or other forum in the United States or elsewhere. (c) Nothing in this Complete Bar Order shall prevent the following Persons from pursuing any Released Plaintiffs' Claim against Defendants or the other Defendants' 35 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 37 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 36 of 55 PageID:PagelD: 25186 Releasees: (i) any Person listed in Appendix 1 hereto who previously submitted a valid or Court- approved request for exclusion from the Class and who has not opted back into the Class in accordance with the provisions set forth in the Settlement Notice; or (ii) if and only if the Court affords a second opportunity for Class Members to request exclusion from the Class, a Person who submits a valid or Court-approved request for exclusion from the Class in connection with the Settlement Notice who does not withdraw his, her or its request for exclusion and whose request is accepted by the Court. If any such Person pursues any such Released Plaintiffs' Claim against any Defendants or any of the other Defendants' Releasees, nothing in this Complete Bar Order or in this Stipulation shall operate to preclude such Defendants or other Defendants' Releasees from asserting any claim of any kind against such Person, including any Released Defendants' Claims (or seeking contribution or indemnity from any Person, including any Defendant in the Action, in respect of the claim of such Class Member who is excluded from the Class pursuant to request). (d) Nothing in this Complete Bar Order shall operate to release or alter the contractual rights, if any, (i) between or among the Underwriter Defendants under their applicable Agreement Among Underwriters relating to any offering of securities by Schering or Merck, or (ii) between the Underwriter Defendants, on the one hand, and Schering or Merck, on the other hand, under any applicable underwriter agreements with respect to any right of indemnification or contribution. (e) If any provision of this Complete Bar Order is subsequently held to be unenforceable or modified, the Parties shall propose to the Court alternative terms so as to afford all of the Defendants and the other Defendants' Releasees the fullest protection permitted by law consistent with the Court's view. 36 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 38 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 37 of 55 PageID:PagelD: 25187 34. The Parties agree that the terms of this Stipulation shall be satisfied if either (a) the Complete Bar Order set forth in ¶ 33 above, or (b) a bar order to the fullest extent allowable under the PSLRA, is included in the Judgment (or in the Alternative Judgment, if applicable) that is entered by the Court. Should the Court enter a bar order other than that referenced in (a) or (b) of the preceding sentence (or if a bar order referenced in (a) or (b) of the preceding sentence is entered but its terms are materially modified on appeal, or is vacated on appeal and not subsequently reinstated), and if a dispute arises as to whether the failure to obtain entry of a bar order referenced in (a) or (b) of the preceding sentence provides a basis for Merck, Defendants, or Class Representatives to terminate the Settlement, then the relevant Parties shall submit the dispute to the Court. 35. Notwithstanding anything herein, nothing in this Stipulation, the Judgment, the Alternative Judgment, or the Complete Bar Order shall operate to: (a) release any claim by Defendants or the other Defendants' Releasees for insurance or reinsurance coverage, or otherwise preclude Defendants or the other Defendants' Releasees from asserting any claims against their own insurers or reinsurers; or (b) preclude the Individual Defendants or Director Defendants from asserting claims for contribution or indemnity against Merck in connection with or arising out of the Excluded Claims. IX. CONDITIONS OF SETTLEMENT; EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION 36. If the Settlement is approved by the Court, the Effective Date of the Settlement shall be deemed to occur on the occurrence or waiver of all of the following events: (a) the Court has entered the Preliminary Approval Order, substantially in the form set forth in Exhibit A annexed hereto, as required by 2 above; 37 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 39 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 38 of 55 PageID:PagelD: 25188 (b) Merck has fully paid, or caused to be paid, the Settlement Amount as required above; (c) Merck has not exercised its option to terminate the Settlement pursuant to the provisions of this Stipulation (including the Supplemental Agreement); (d) Class Representatives have not exercised their option to terminate the Settlement pursuant to the provisions of this Stipulation; (e) the Court has approved the Settlement as described herein, following notice to the Class and a hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure, and entered the Judgment and the Judgment has become Final, or the Court has entered an Alternative Judgment and neither Merck nor the Class Representatives seek to terminate the Settlement and the Alternative Judgment has become Final. 37. Upon the occurrence or waiver, as applicable, of all of the events referenced in 1136 above, any and all remaining interest in, or right to, the Settlement Fund held by Merck or the Insurers, if any, shall be absolutely and forever extinguished and the Releases herein shall be effective. 38. If (i) Merck exercises its right to terminate the Settlement as provided in this Stipulation; (ii) Class Representatives exercise their right to terminate this Settlement as provided in this Stipulation; (iii) the Court disapproves the Settlement; or (iv) the Effective Date as to the Settlement otherwise fails to occur, then: (a) The Settlement and the relevant portions of this Stipulation shall be canceled and terminated. (b) Class Representatives and Defendants shall be restored to their respective positions in the Action immediately prior to February 25, 2013. 38 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 40 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 39 of 55 PageID:PagelD: 25189 (c) The terms and provisions of this Stipulation, with the exception of this ¶ 38 and IN 41-42, shall have no further force and effect with respect to the Parties and shall not be used in the Action or in any other proceeding for any purpose, and any Judgment, Alternative Judgment, or order entered by the Court in accordance with the terms of this Stipulation shall be treated as vacated, nunc pro tunc. (d) Within fourteen (14) business days after written notification of te mination is sent by Merck's Counsel and Co-Lead Counsel to the Escrow Agent pursuant to the terms of the Escrow Agreement, the Settlement Fund (including accrued interest thereon and any funds received by Co-Lead Counsel consistent with 1119 above), less any expenses and any costs which have either been disbursed or incurred and chargeable to Notice and Administration Costs and less any Taxes paid or due or owing, shall be refunded by the Escrow Agent to the Merck entity and/or the Insurer(s) that paid any portion of the Settlement Amount in proportion to their contributions, pursuant to instructions to be provided by Merck to Co-Lead Counsel. Co-Lead Counsel shall return any attorneys' fees, as set forth in ¶ 19 above. In the event that the funds received by Co-Lead Counsel consistent with ¶ 19 above have not been refunded to the Settlement Fund within the fourteen (14) business days specified in this paragraph, those funds shall be refunded by the Escrow Agent to the Merck entity and/or the Insurer(s) that paid any portion of the Settlement Amount in proportion to their contributions, pursuant to instructions to be provided by Merck to Co-Lead Counsel, immediately upon their deposit into the Escrow Account consistent with ¶ 19 above. This provision may be enforced by Merck and/or the Insurer(s) that paid any portion of the Settlement Amount. 39. It is further stipulated and agreed that Class Representatives, provided they unanimously agree, and Merck, shall each have the right to terminate the Settlement and this 39 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 41 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 40 of 55 PageID:PagelD: 25190 Stipulation, by providing written notice of their election to do so ("Termination Notice") to the other Parties to this Stipulation within thirty (30) calendar days of: (a) the Court's declining to enter the Preliminary Approval Order in any material respect; (b) the Court's declining to approve the Settlement or any material part thereof; (c) the Court's declining to enter the Judgment in any material respect as to the Settlement; (d) the date upon which the Judgment is modified or reversed in any material respect by the United States Court of Appeals for the Third Circuit or the United States Supreme Court; or (e) the date upon which an Alternative Judgment is modified or reversed in any material respect by the United States Court of Appeals for the Third Circuit or the United States Supreme Court, and the provisions of '1138 above shall apply. However, any decision or proceeding, whether in this Court or any appellate court, with respect to an application for attorneys' fees or Litigation Expenses or with respect to any plan of allocation, or with respect to whether Class Members should be afforded a second opportunity to opt out of the Class, shall not be considered material to the Settlement, shall not affect the finality of any Judgment or Alternative Judgment, and shall not be grounds for termination of the Settlement. 40. In addition to the grounds set forth in 11- 39 above, in the event that the Court affords Class Members a second opportunity to exclude themselves from the Class in connection with this Settlement, Merck shall have the sole option to terminate the Settlement in the event that Class Members requesting exclusion from the Class meet the conditions set forth in its confidential supplemental agreement with Class Representatives (the "Supplemental Agreement"), in accordance with the terms of that agreement. The Supplemental Agreement, which is being executed concurrently herewith, shall not be filed with the Court and its terms shall not be disclosed in any other manner to any Person other than the Parties and their counsel 40 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 42 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 41 of 55 PageID:PagelD: 25191 (other than the statements herein and in the Settlement Notice, to the extent necessary, or as otherwise provided in the Supplemental Agreement) unless and until the Court otherwise directs or a dispute arises between Class Representatives and Merck concerning its interpretation or application. If submission of the Supplemental Agreement is required for resolution of a dispute or is otherwise ordered by the Court, the applicable Parties will undertake to have the Supplemental Agreement submitted to the Court in camera. X. NO ADMISSION OF WRONGDOING 41. It is understood that Defendants have denied and continue to deny any liability or wrongdoing with respect to each and every claim alleged in the Action, and have denied and continue to deny, any allegation that Class Representatives or other Class Members have suffered damages as a result of any of the alleged acts or omissions. 42. Except as set forth in ¶ 43 below, neither the Term Sheet, this Stipulation (whether or not consummated), nor any negotiations, proceedings, or agreements related to the same, shall be offered or received against the Parties or other Releasees for any purpose, and particularly: (a) shall not be offered against Defendants or the other Defendants' Releasees as evidence of, or construed as, or deemed to be evidence of any presumption, concession, or admission by Defendants or the other Defendants' Releasees with respect to the truth of any fact alleged by Class Representatives or the Class, or the validity of any claim that was or could have been asserted or the deficiency of any defense that has been or could have been asserted in this Action or in any litigation, or of any liability, negligence, fault, damages or other wrongdoing of any kind of Defendants or any of the other Defendants' Releasees; (b) shall not be offered against any of the Class Representatives, any of the other Class Members, or any of the other Plaintiffs' Releasees as evidence of, or construed as, or 41 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 43 of Case 2:08-cv-00397-ES-JAD DocumentDocument 419-1 56 FiledFiled 06/04/13 Page 42 of 55 PageID:PagelD: 25192 deemed to be evidence of, any presumption, concession or admission with respect to any liability, negligence, fault or wrongdoing of any kind of the Class Representatives, any of the other Class Members, or any of the other Plaintiffs' Releasees; (c) shall not be referred to for any reason against the Parties or other Releasees in any other civil, criminal, or administrative action or proceeding; (d) shall not be construed against the Parties or other Releasees as an admission, concession, or presumption that the consideration to be given hereunder represents the amount which could be or would have been recovered after trial; and (e) shall not be construed against the Class Representatives, the other Class Members, or the other Plaintiffs' Releasees as an admission, concession or presumption that any of their claims are without merit, that any of the Defendants or the other Defendants' Releasees had meritorious defenses, or that damages recoverable under the Complaint would not have exceeded the Settlement Amount. 43. Notwithstanding the foregoing, the Parties and other Releasees may file or refer to this Stipulation, Judgment, and/or any Claim Form: (a) to effectuate the liability protections granted hereunder, including without limitation, to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good-faith settlement, judgment bar or reduction, or any theory of claim preclusion or issue preclusion or similar defense or counterclaim; (b) to effectuate the liability protections granted under any applicable insurance policies; or (c) to enforce the terms of this Stipulation and/or Judgment. The Parties and other Releasees submit to the jurisdiction of the Court for purposes of implementing and enforcing the Settlement. 42 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 44 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 43 of 55 PageID:PagelD: 25193 XI. MISCELLANEOUS PROVISIONS 44. All of the exhibits attached hereto are hereby incorporated by reference as though fully set forth herein. Notwithstanding the foregoing, in the event that there exists a conflict or inconsistency between the terms of this Stipulation and the terms of any exhibit attached hereto, the tennis of the Stipulation shall prevail. 45. In the event of the entry of a final order of a court of competent jurisdiction determining the transfer of money to the Settlement Fund or any portion thereof by or on behalf of Merck to be a preference, voidable transfer, fraudulent transfer or similar transaction and any portion thereof is required to be returned, and such amount is not promptly deposited into the Settlement Fund by others, then, at the election of Class Representatives, the Class Representatives and the Defendants shall jointly move the Court to vacate and set aside the Releases given and the Judgment or Alternative Judgment, if applicable, entered in favor of the Defendants and the other Defendants' Releasees pursuant to this Stipulation, which releases and Judgment, or Alternative Judgment, shall be null and void, and the Parties shall be restored to their respective positions in the litigation as provided in ¶ 38 above and any cash amounts in the Settlement Fund (less any Taxes paid, due or owing with respect to the Settlement Fund and less any Notice and Administration Costs actually incurred, paid or payable) shall be returned as provided in 38. 46. The Parties intend this Stipulation and the Settlement to be a final and complete resolution of all disputes asserted or which could be asserted by the Class Representatives, any other Class Members and their attorneys against Defendants and the other Defendants' Releasees with respect to all Released Plaintiffs' Claims. Accordingly, Class Representatives, Plaintiffs' Counsel, Merck and each Defendant and his, her or its counsel agree not to assert in any forum that this Action was brought by Class Representatives or defended by the Defendants in bad faith 43 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 45 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 44 of 55 PageID:PagelD: 25194 or without a reasonable basis. No Party shall assert any claims of any violation of Rule 11 of the Federal Rules of Civil Procedure relating to the institution, prosecution, defense, or settlement of this Action. The Parties agree that the amounts paid and the other terms of the Settlement were negotiated at arm's-length and in good faith by the Parties, including through a mediation process supervised and conducted by Stephen M. Greenberg and Jonathan J. Lerner, and reflect the Settlement that was reached voluntarily after extensive negotiations and consultation with experienced legal counsel, who were fully competent to assess the strengths and weaknesses of their respective clients' claims or defenses. 47. Merck, Defendants and their counsel retain their right to deny that the claims asserted in the Action were meritorious and to deny that the Settlement constitutes an admission of any claim or defense alleged. Class Representatives and their counsel and Merck, Defendants and their counsel acknowledge that the Action was commenced, prosecuted, defended, and settled in good faith and is being settled voluntarily after consultation with competent legal counsel. 48. The terms of the Settlement, as reflected in this Stipulation, may not be modified or amended, nor may any of its provisions be waived except by a writing signed on behalf of Class Representatives, Merck and Defendants (or their successors-in-interest). 49. The headings herein are used for the purpose of convenience only and are not meant to have legal effect. 50. The administration and consummation of the Settlement as embodied in this Stipulation, shall be under the authority of the Court, and the Court shall retain jurisdiction for the purpose of entering orders providing for awards of attorneys' fees and Litigation Expenses to 44 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 46 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 45 of 55 PageID:PagelD: 25195 Co-Lead Counsel and enforcing the terms of this Stipulation, including the Plan of Allocation and the distribution of the Net Settlement Fund to Class Members. 51. The waiver by one Party of any breach of this Stipulation by any other Party shall not be deemed a waiver of any other prior or subsequent breach of this Stipulation. 52. This Stipulation and its exhibits and the Supplemental Agreement constitute the entire agreement among Class Representatives, Merck and Defendants concerning the Settlement and this Stipulation and its exhibits. All Parties acknowledge that no other agreements, representations, warranties, or inducements have been made by any Party hereto concerning this Stipulation, its exhibits or the Supplemental Agreement other than those contained and memorialized in such documents. 53. This Stipulation may be executed in one or more counterparts, including by signature transmitted via facsimile, or by a .pdf/.tif image of the signature transmitted via email. All executed counterparts and each of them shall be deemed to be one and the same instrument. 54. This Stipulation shall be binding upon and inure to the benefit of the successors and assigns of the Parties, including any and all Releasees and any corporation, partnership, or other entity into or with which any Party hereto may merge, consolidate or reorganize. 55. The construction, interpretation, operation, effect and validity of this Stipulation, the Supplemental Agreement and all documents necessary to effectuate it shall be governed by the internal laws of the State of New Jersey without regard to conflicts of laws, except to the extent that federal law requires that federal law govern. 56. Any action arising under or to enforce this Stipulation or any portion thereof, shall be commenced and maintained only in this Court. 45 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 47 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 46 of 55 PageID:PagelD: 25196 57. This Stipulation shall not be construed more strictly against one Party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the Parties, it being recognized that it is the result of arm's-length negotiations between the Parties and all Parties have contributed substantially and materially to the preparation of this Stipulation. 58. All counsel and any other person executing this Stipulation and any of the exhibits hereto, or any related Settlement documents, warrant and represent that they have the full authority to do so and that they have the authority to take appropriate action required or permitted to be taken pursuant to the Stipulation to effectuate its terms. 59. Co-Lead Counsel and Defendants' Counsel agree to cooperate fully with one another in seeking Court approval of the Preliminary Approval Order and the Settlement, as embodied in this Stipulation, and to use best efforts to promptly agree upon and execute all such other documentation as may be reasonably required to obtain final approval by the Court of the Settlement. 60. If any Party is required to give notice to another Party under this Stipulation, such notice shall be in writing and shall be deemed to have been duly given upon receipt of hand delivery or facsimile transmission with confirmation of receipt. Notice shall be provided as follows: 46 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 48 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 47 of 55 PageID:PagelD: 25197 If to Class Representatives Bernstein Litowitz Berger & Grossmann LLP or Co-Lead Counsel: Attn: Salvatore J. Graziano, Esq. 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 Labaton Sucharow LLP Attn: Christopher J. McDonald, Esq. 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 If to Merck and/or Schering-Related Paul, Weiss, Rifkind, Wharton & Garrison LLP Defendants: Attn: Daniel J. Kramer, Esq. Daniel J. Juceam, Esq. 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 If to the Director Defendants: Krovatin Klingeman LLC Attn: Gerald Krovatin, Esq. 60 Park Place, Suite 1100 Newark, NJ 07102 Telephone: (973) 424-9777 Facsimile: (973) 424-9779 If to the Underwriter Defendants: Shearman & Sterling LLP Attn: Daniel H.R. Laguardia, Esq. 599 Lexington Avenue New York, NY 10022 Telephone: (212) 848-4000 Facsimile: (212) 848-7179 61. Except as otherwise provided herein, each Party shall bear its own costs. 47 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 49 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 48 of 55 PageID:PagelD: 25198 62. Whether or not the Stipulation is approved by the Court and whether or not the Stipulation is consummated, the Parties and their counsel shall use their best efforts to keep all negotiations, discussions, acts performed, agreements, drafts, documents signed and proceedings in connection with the Stipulation confidential. 63. All agreements made and orders entered during the course of this Action relating to the confidentiality of information shall survive this Settlement. 64. No opinion or advice concerning the tax consequences of the proposed Settlement to individual Class Members is being given or will be given by the Parties to the Settlement or their counsel; nor is any representation or warranty in this regard made by virtue of this Stipulation. Each Class Member's tax obligations, and the determination thereof, are the sole responsibility of the Class Member, and it is understood that the tax consequences may vary depending on the particular circumstances of each individual Class Member. IN WITNESS WHEREOF, the Parties hereto have caused this Stipulation to be executed, by their duly authorized attorneys, as of June 3, 2013. 48 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 50 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 49 of 55 PageID:PagelD: 25199 BERNSTEIN LITOWITZ BERGER PAUL, WEISS, RIFKIND, WHARTON & GROSSMANN LLP & GARRISON LLP By: By: Daniel J. Kramer Salvatore J. Graziano 1285 Avenue of the Americas 1285 Avenue of the Americas New York, NY 10019 New York, NY 10019 (212) 373-3000 (212) 554-1400 Counsel for Class Representatives Arkansas Counsel for the Schering-Related Defendants Teacher Retirement System, Public and Merck & Co., Inc. Employees ' Retirement System of Mississippi, Louisiana Municipal Police Employees' Retirement System and Co-Lead Counsel for the Class LABATON SUCHAROW LLP KROVATIN KLINGEMAN LLC By: By: Jonathan M. Plasse Gerald Krovatin Christopher J. McDonald 60 Park Place, Suite 1100 140 Broadway Newark, NJ 07102 New York, NY 10005 (973) 424-9777 (212) 907-0700 Counsel for Class Representative Counsel for the Schering Director Defendants Massachusetts Pension Reserves Investment Management Board and Co-Lead Counsel for the Class 49 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 51 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 50 of 55 PageID:PagelD: 25200 BERNSTEIN LITOWITZ BERGER PAUL, WEISS, RIFKIND, WHARTON & GROSSMANN LLP & GARRISON LLP By: By: Max W. Berger Daniel J. Kramer Salvatore J. Graziano 1285 Avenue of the Americas 1285 Avenue of the Americas New York, NY 10019 New York, NY 10019 (212) 373-3000 (212) 554-1400 Counsel for Class Representatives Arkansas Counsel for the Schering-Related Defendants Teacher Retirement System, Public and Merck & Co., Inc. Employees' Retirement System of Mississippi, Louisiana Municipal Police Employees' Retirement System and Co-Lead Counsel for the Class LABATON SUCHAROW LLP KROVATIN KLINGEMAN LLC By: By: Jonalha . se Gerald Krovatin Christ° lher J. McDonald 60 Park Place, Suite 1100 140 Broadway Newark, NJ 07102 New York, NY 10005 (973) 424-9777 (212) 907-0700 Counsel for Class Representative Counsel for the Schering Director Defendants Massachusetts Pension Reserves Investment Management Board and Co-Lead Counsel for the Class 49 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 52 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 51 of 55 PageID:PagelD: 25201 BERNSTEIN LITOWITZ BERGER PAUL, WEISS, RIFKIND, WHARTON & GROSSMANN LLP & GARRISON LLP By: By: Max W. Berger Daniel J. Kramer Salvatore J. Graziano 1285 Avenue of the Americas 1285 Avenue of the Americas New York, NY 10019 New York, NY 10019 (212) 373-3000 (212) 554-1400 Counsel for Class Representatives Arkansas Counsel for the Schering-Related Defendants Teacher Retirement System, Public and Merck & Co., Inc. Employees' Retirement System of Mississippi, Louisiana Municipal Police Employees' Retirement System and Co-Lead Counsel for the Class LABATON SUCHAROW LLP KROVATIN KLINGEMAN LLC By: By: Jonathan M. Plasse G ra d Krovatin Christopher J. McDonald 61 Park Place, Suite 1100 140 Broadway N wark, NJ 07102 New York, NY 10005 ( 3) 424-9777 (212) 907-0700 Counsel for Class Representative Counsel for the Schering Director Defendants Massachusetts Pension Reserves Investment Management Board and Co-Lead Counsel Or the Class 49 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 53 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 52 of 55 PageID:PagelD: 25202 R.' AN & STERLING LIT By: Daniel FIR. Laguardia 599 Lexington Avenue New York, NY 10022 (212) 848-4000 Counsel jar the Underwriter Defendants 712006 50 Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 54 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 53 of 55 PageID:PagelD: 25203 APPENDIX 1 Requests for Exclusion Received in Connection with Notice of Pendency of Class Action Wanda L. Sigler 13. Estate of Marjorie Crosby Jacksonville, AR by Dorothy M. Fischesser, Executor Gardner, MA 2. Helen E. Kascin Mountainside, NJ 14. Hollis P. Behannon Jasper, TX 3. John H. Duesbury Platteville, WI 15. Richard W. Stout Bristol, IN 4. Evelyn M. Duesbury Platteville, WI 16. Estate of Stanley V. Hucko, by Joyce A. Mauer, Executrix 5. Maurice Ledrappier Allentown, NJ Chatham, NJ 17. Adele D. Kaminski 6. Melinda G. Axel Bloomfield, NJ c/o Paul Axel-Lute, submitted by Paul Axel-Lute 18. Wayne A. Viner South Orange, NJ Lakeland, FL 7. Paul Axel Lute ADM EST 19. Jan Nemec Melinda G. Axel, Unterschleissheim, Germany submitted by Paul Axel-Lute South Orange, NJ 20. Lori K. Walswick Vancouver, WA 8. Louis B. Shader, Sigrid Shader and 21. Andrew Sylwestrowicz Evan Shader Gilliam Merrillville, IN Orlando, FL 22. Faye Gwendolyn Knutson 9. Louella Hill and Estate of Alger Knutson Falmouth, KY Clark, SD 10. Frank J. Corradi, Jr. 23. Lidyann T. Spinola Point Pleasant Beach, NJ Kettering, OH 11. Florence L. Vail 24. Gary Chilton Effingham, IL Rockwall, TX 12. David Cesarz 25. Hsien-Lin Su Scotch Plains, NJ Brookline, MA Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 55 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 54 of 55 PageID:PagelD: 25204 26. Betsy G. Mabry 39. Ronald D. Marotta, Anniston, AL by Ronald M. Marotta, Attorney-in-Fact Cranford, NJ 27. Phyllis D. Haynes San Marcos, TX 40. Estate of Albert Greenleaf Hutchins III, by Linda Hutchins, Executor 28. Ellen R. Cline Fairfax, VA Silver City, NM 41. Government of Singapore Investment 29. Barbara R. Cohen Corporation Pte Ltd. Pikesville, MD Singapore 30. Marcus D. Royal 42. General Board of Pension and Health Decatur, GA Benefits of The United Methodist Church Glenview, IL 31. Victor G. Hart Stuart, FL 43. North Sound Capital LLC, North Sound Legacy International, and 32. Kathleen Bockhold North Sound Legacy Institutional Germantown, TN Greenwich, CT 33. Estate of Caroline Manfred, by Elaine Lederman, Executor Paramus, NJ 34. Sandra M. Dewyer Bowling Green, OH 35. United Food Commercial Workers Local 1500 Pension Fund Westbury, NY 36. Thomas J. Pitner Hays, KS 37. Vernon L. Watkins and Billie Don Watkins Jt Ten Amarillo, TX 38. Estate of Helen J. Marotta by Ronald M. Marotta, Executor Cranford, NJ Case 1:15-cv-02546-RM-MEH Document 170-25 Filed 09/21/17 USDC Colorado Page 56 of Case 2:08-cv-00397-ES-JAD Document 419-1 56 Filed 06/04/13 Page 55 of 55 PageID:PagelD: 25205 44. Colonial First State Investments Ltd., 49. Elizabeth W. Gallimore CFSIL- CFS Wholesale Indexed Global Waynesboro, VA Share Fund, Commonwealth Bank Officers 50. Ann Polites Superannuation Corporation as Trustee Charleston, WV Fund Officers Superannuation Fund - WGSSO4, 51. Irma Warmhoff CFSIL - Commonwealth Global Shares Hopkins, MI Fund 4, Commonwealth Bank Officers Superannuation Corporation as Trustee Fund Officers Superannuation Fund - WGSS02, Commonwealth Bank Officers Superannuation Corporation as Trustee Fund Officers Superannuation Fund - WTRA02, CFSIL - Commonwealth Specialist Fund 13, CFSIL- CFS Wholesale Geared Global Share Fund, CFSIL ATF CMLA International Share Fund, CFSIL - Commonwealth Global Shares Fund 6, CFSIL- Commonwealth Global Shares Fund 2, CFSIL - CFS Wholesale Acadian Global Equity Fund, CFSIL- CFS Wholesale Global Health & Biotechnology Fund, and CFSIL - CFS Wholesale Global Share Fund Sydney, NSW Australia 45. Monica Ioana Botocan Bucarest, Romania 46. Fouad Chatila Louisville, KY 47. Ingegerd M. Carlson Camano Island, WA 48. Frank Boscarello Oceanside, NY Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 1 of 110 EXHIBIT 22 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 2 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 1 of 109 Exhibit 1 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 3 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 2 of 109 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS HILL v. STATE STREET CORPORATION ) ______) ) Master Docket No.1:09-cv-12146-GAO THIS DOCUMENT RELATES TO THE ) SECURITIES ACTION ) ) DOCKET NO. 09-cv-12146-GAO ) STIPULATION AND AGREEMENT OF SETTLEMENT This Stipulation and Agreement of Settlement, dated as of July 8, 2014 (the “Stipulation”) is entered into between (a) the Public Employees’ Retirement System of Mississippi and Union Asset Management Holding AG (collectively, “Lead Plaintiffs”), on behalf of themselves, Miami Beach Employees Retirement Plan and Marilyn Demory (together with Lead Plaintiffs, “Plaintiffs”) and the Settlement Class (defined below), and (b) defendants (i) State Street Corporation (“State Street”); (ii) Ronald E. Logue, Edward J. Resch, Pamela D. Gormley, Kennett F. Burnes, Peter Coym, Nader F. Darehshori, Amelia C. Fawcett, David P. Gruber, Linda A. Hill, Charles R. LaMantia, Maureen J. Miskovic, Richard P. Sergel, Ronald L. Skates, Gregory L. Summe, and Robert E. Weissman (the “Individual Defendants”); (iii) Goldman, Sachs & Co., Morgan Stanley & Co. LLC (formerly known as Morgan Stanley & Co. Incorporated), Credit Suisse Securities (USA) LLC, and UBS Securities LLC (the “Underwriter Defendants”); and (iv) Ernst & Young LLP (“Ernst & Young”) (collectively, “Defendants”), by and through their respective undersigned counsel, and embodies the terms and conditions of the settlement of the above-captioned action (the “Action”).1 Subject to the approval of the Court 1 All terms with initial capitalization not otherwise defined herein shall have the meanings ascribed to them in ¶ 1 herein. Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 4 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 3 of 109 and the terms and conditions expressly provided herein, this Stipulation is intended to fully, finally and forever compromise, settle, release, resolve, and dismiss with prejudice the Action and all claims asserted therein. WHEREAS: A. Beginning on December 18, 2009, two class action complaints were filed in the United States District Court for the District of Massachusetts (the “Court”), styled Hill v. State Street Corporation, et al., No. 1:09-cv-12146 (the “Hill Action”) and Demory v. State Street Corporation et al., 1:10-cv-10064 (the “Demory Action”). B. By Amended Order Consolidating Related Actions, Appointing Lead Counsel, and Appointing Lead Plaintiffs (the “Consolidation Order”) dated May 25, 2010, the Court ordered that these cases be consolidated for all purposes and captioned as Hill v. State Street Corporation et al., No. 1:09-cv-12146; appointed the Public Employees’ Retirement System of Mississippi and Union Asset Management Holding AG as Lead Plaintiffs for the consolidated securities action; and approved Lead Plaintiffs’ selection of Bernstein Litowitz Berger & Grossmann LLP and Motley Rice LLC as Co-Lead Counsel for the class and Berman DeValerio as liaison counsel for the class. C. On July 29, 2010, Lead Plaintiffs filed and served their Consolidated Amended Class Action Complaint (the “Complaint”), which included the Miami Beach Employees Retirement Plan and Marilyn Demory as additional named plaintiffs. The Complaint asserted claims against State Street, Ronald E. Logue and Edward J. Resch under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder and against Logue and Resch under Section 20(a) of the Exchange Act, alleging that these defendants made, or controlled others who made, materially false and misleading statements and 2 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 5 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 4 of 109 failed to disclose material facts about (i) State Street’s foreign exchange business; (ii) the quality of State Street’s internal controls; and (iii) the quality of the assets held in State Street’s investment portfolio and in off-balance sheet entities known as conduits. The Complaint alleged that these statements and omissions caused the market price of State Street common stock to be artificially inflated. The Complaint also asserted claims against all Defendants under Section 11 of the Securities Act of 1933 (the “Securities Act”); against State Street and the Underwriter Defendants under Section 12(a)(2) of the Securities Act; and against certain of the Individual Defendants under Section 15 of the Securities Act, alleging that the defendants named in the Securities Act claims were statutorily liable for the allegedly materially untrue statements and misleading omissions in the registration statement and offering documents for a public offering of State Street common stock that occurred in June 2008. D. On September 24, 2010, Defendants filed and served their motions to dismiss the Complaint. On November 5, 2010, Lead Plaintiffs filed and served their papers in opposition to the motions and, on December 8, 2010, Defendants filed and served their reply papers. Oral argument on the motions was held on February 16 and 17, 2011, and on August 3, 2011, the Court entered its Memorandum and Order denying Defendants’ motions to dismiss. E. On September 30, 2011, Defendants filed and served their answers to the Complaint. F. Following the entry of the Court’s opinion on Defendants’ motions to dismiss, the Parties engaged in extensive fact discovery. Document discovery included numerous document requests and interrogatories and resulted in the production of more than 24 million pages of documents that were reviewed and analyzed by Plaintiffs’ Counsel. Beginning in September 2013, Lead Plaintiffs took the depositions of seven witnesses, including senior officers of State 3 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 6 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 5 of 109 Street. The Parties also engaged in extensive discovery relating to class certification, which included Plaintiffs’ production of hundreds of thousands of pages of documents to Defendants and the depositions of three Plaintiffs’ representatives. Discovery was vigorously contested. The Parties engaged in multiple and protracted negotiations over the scope and adequacy of discovery responses, there were over 20 discovery motions brought by the various Parties, and there were approximately fifteen hearings before the magistrate judge who oversaw discovery issues in the Action. G. On October 28, 2013, Lead Plaintiffs filed their motion for class certification. Defendants had not filed their responses to the motion and the Court had not taken any action on the motion at the time that the agreement in principle to settle the Action was reached. H. On March 12, 2014, following arm’s-length settlement negotiations, Lead Plaintiffs and State Street reached an agreement in principle to settle the Action. Lead Plaintiffs’ and State Street’s agreement was memorialized in a term sheet (the “Term Sheet”) executed on May 6, 2014. The Term Sheet sets forth, among other things, the agreement of the parties to the Term Sheet to settle and release all claims asserted against all Defendants in the Action in return for a cash payment of $60,000,000 to be made on behalf of State Street for the benefit of the Settlement Class, subject to certain terms and conditions and the negotiation of this Stipulation. I. This Stipulation (together with the exhibits hereto) has been duly executed by the undersigned signatories on behalf of their respective clients, and reflects the final and binding agreement between the Parties. J. Based upon their investigation and prosecution of the case, Lead Plaintiffs and Co-Lead Counsel have concluded that the terms and conditions of this Stipulation are fair, reasonable and adequate to Lead Plaintiffs and the other members of the Settlement Class, and in 4 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 7 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 6 of 109 their best interests. Based on Lead Plaintiffs’ direct oversight of the prosecution of this matter and with the advice of their counsel, each of the Lead Plaintiffs has agreed to settle and release the claims raised in the Action pursuant to the terms and provisions of this Stipulation, after considering (a) the substantial financial benefit that Lead Plaintiffs and the other members of the Settlement Class will receive under the proposed Settlement; (b) the significant risks of continued litigation and trial; and (c) the desirability of permitting the Settlement to be consummated as provided by the terms of this Stipulation. K. This Stipulation constitutes a compromise of matters that are in dispute between the Plaintiffs and Defendants. Defendants are entering into this Stipulation solely to eliminate the uncertainty, distraction, burden and expense of further litigation. Each of the Defendants denies any wrongdoing, and this Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any of the Defendants, or any other of the Defendants’ Releasees (defined below), with respect to any claim or allegation of any fault or liability or wrongdoing or damage whatsoever, or any infirmity in the defenses that the Defendants have, or could have, asserted. The Defendants expressly deny that Plaintiffs have asserted any valid claims as to any of them, and expressly deny any and all allegations of fault, liability, wrongdoing or damages whatsoever. Similarly, this Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any Plaintiff, or any other of the Plaintiffs’ Releasees (defined below) of any infirmity in any of the claims asserted in the Action, or an admission or concession that any of the Defendants’ defenses to liability had any merit. Each of the Parties recognizes and acknowledges that the Action has been initiated, filed and prosecuted, and defended in good faith, that the Action is being 5 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 8 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 7 of 109 voluntarily settled with the advice of counsel, and that the terms of the Settlement are fair, adequate and reasonable. NOW THEREFORE, it is hereby STIPULATED AND AGREED, by and among Lead Plaintiffs (individually and on behalf of Miami Beach Employees Retirement Plan, Marilyn Demory, and the other members of the Settlement Class) and Defendants, by and through their respective undersigned attorneys and subject to the approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, that, in consideration of the benefits flowing to the Plaintiffs and the other members of the Settlement Class and the Defendants from the Settlement, the Action shall be dismissed with prejudice and all Released Plaintiffs’ Claims as against the Defendants and the other Defendants’ Releasees and all Released Defendants’ Claims as against the Plaintiffs and the other Plaintiffs’ Releasees shall be settled and released, upon and subject to the terms and conditions set forth below. DEFINITIONS 1. As used in this Stipulation and any exhibits attached hereto and made a part hereof, the following capitalized terms shall have the following meanings: (a) “Action” means the consolidated securities class action in the matter styled Hill v. State Street Corporation, Master Docket No. 1:09-cv-12146-GAO, and includes all actions consolidated therein. “Action” does not include Richard v. State Street Corp., Docket No. 1:10-cv-10184-GAO or Kenney v. State Street Corp., Docket No. 1:09-cv-10750-DJC. (b) “Alternate Judgment” means a form of final judgment that may be entered by the Court with the agreement of the Parties that is different from the Judgment attached hereto as Exhibit B. 6 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 9 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 8 of 109 (c) “Authorized Claimant” means a person or entity who or which submits a Proof of Claim Form to the Claims Administrator that is approved by the Court for payment from the Net Settlement Fund. (d) “Claim” means a Proof of Claim Form submitted to the Claims Administrator. (e) “Claim Form” or “Proof of Claim Form” means the form, substantially in the form attached hereto as Exhibit 2 to Exhibit A, that a Claimant or Settlement Class Member must complete and submit should that Claimant or Settlement Class Member seek to share in a distribution of the Net Settlement Fund. (f) “Claimant” means a person or entity who or which submits a Claim Form to the Claims Administrator seeking to share in the proceeds of the Settlement Fund. (g) “Claims Administrator” means the firm retained by Lead Plaintiffs and Co-Lead Counsel, subject to approval of the Court, to provide all notices approved by the Court to potential Settlement Class Members and to administer the Settlement. (h) “Class Distribution Order” means an order entered by the Court authorizing and directing that the Net Settlement Fund be distributed, in whole or in part, to Authorized Claimants. (i) “Co-Lead Counsel” means the law firms of Bernstein Litowitz Berger & Grossmann LLP and Motley Rice LLC. (j) “Complaint” means the Consolidated Amended Class Action Complaint filed by Lead Plaintiffs in the Action on July 29, 2010. (k) “Court” means the United States District Court for the District of Massachusetts. 7 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 10 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 9 of 109 (l) “Defendants” means State Street, the Individual Defendants, the Underwriter Defendants and Ernst & Young LLP. (m) “Defendants’ Counsel” means the law firms of Wilmer Cutler Pickering Hale and Dorr LLP, Goodwin Procter LLP, and Skadden, Arps, Slate, Meagher & Flom LLP. (n) “Defendants’ Releasees” means the Defendants and State Street Bank and Trust Company, their predecessors, successors, past, present and future parents, subsidiaries and affiliates, and their respective past or present general partners, limited partners, principals, members, officers, directors, trustees, employees, agents, servants, attorneys, accountants, auditors, underwriters, investment advisors, insurers, co-insurers, reinsurers and related or affiliated entities, in their capacities as such and in their capacities as fiduciaries for any ERISA plan for State Street employees. (o) “Effective Date” with respect to the Settlement means the first date by which all of the events and conditions specified in ¶ 31 of this Stipulation have been met and have occurred or have been waived. (p) “Escrow Account” means an account maintained at Valley National Bank wherein the Settlement Amount shall be deposited and held in escrow and invested consistent with the provisions of ¶ 10 herein, which account shall be deemed to be in the custody of the Court and shall remain subject to the jurisdiction of the Court until such time as the funds therein are paid out as provided for in this Stipulation. (q) “Escrow Agent” means Valley National Bank. (r) “Escrow Agreement” means the agreement between Co-Lead Counsel and the Escrow Agent setting forth the terms under which the Escrow Agent shall maintain the Escrow Account. 8 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 11 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 10 of 109 (s) “Excluded Claims” means (i) any claims that as of May 6, 2014 were or had been asserted in (a) Richard v. State Street Corp., Docket No. 1:10-cv-10184-GAO; (b) Kenney v. State Street Corp., Docket No. 1:09-cv-10750-DJC; (c) Operative Plasterers’ & Cement Masons’ Local Union Officers’ & Employees’ Pension Fund v. Hooley, Docket No. 1:12-cv-10767-GAO; (d) Arkansas Teacher Retirement System v. State Street Bank & Trust Co., Docket No. 1:11-cv-10230-MLW; (e) Henriquez v. State Street Bank & Trust Co., Docket No. 1:11-cv-12049-MLW; and/or (f) The Andover Companies Employee Savings & Profit Sharing Plan v. State Street Bank & Trust Co., Docket No. 1:12-cv-11698-MLW, and (ii) any claims of any person or entity who or which submits a request for exclusion that is accepted by the Court. (t) “Final,” with respect to the Judgment or, if applicable, the Alternate Judgment, or any other court order means that: (i) the time in which the Federal Rules of Appellate Procedure permit an appeal of the Judgment, Alternate Judgment, or any other court order has expired without the filing of any appeal, or, (ii) in the event of any appeal, an order has been entered dismissing the appeal or affirming the Judgment, the Alternate Judgment, or any other court order and any time period for further appeal, including a petition for writ of certiorari, has expired. However, any appeal or proceeding seeking subsequent judicial review pertaining solely to an order issued with respect to (i) attorneys’ fees, costs or expenses, or (ii) the plan of allocation of Settlement proceeds (as submitted or subsequently modified), shall not in any way delay or preclude a judgment from becoming Final. (u) “Immediate Family” means children, stepchildren, parents, stepparents, spouses, siblings, mothers-in-law, fathers-in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law. As used in this paragraph, “spouse” shall mean a husband, a wife, or a partner in a state-recognized domestic relationship or civil union. 9 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 12 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 11 of 109 (v) “Individual Defendants” means Ronald E. Logue, Edward J. Resch, Pamela D. Gormley, Kennett F. Burnes, Peter Coym, Nader F. Darehshori, Amelia C. Fawcett, David P. Gruber, Linda A. Hill, Charles R. LaMantia, Maureen J. Miskovic, Richard P. Sergel, Ronald L. Skates, Gregory L. Summe, and Robert E. Weissman. (w) “Investment Vehicle” means any investment company, pooled investment fund or customer account of a Defendant, including but not limited to mutual fund families, exchange-traded funds, fund of funds, and hedge funds, in which any Defendant has or may have a direct or indirect interest or as to which its affiliates may act as an investment advisor or custodian but of which any Defendant or any of its respective affiliates is not a majority owner or does not hold a majority beneficial interest. (x) “Judgment” means the final judgment, substantially in the form attached hereto as Exhibit B, to be entered by the Court approving the Settlement. (y) “Lead Plaintiffs” means the Public Employees’ Retirement System of Mississippi and Union Asset Management Holding AG. (z) “Liaison Counsel” means the law firm of Berman DeValerio. (aa) “Litigation Expenses” means costs and expenses incurred in connection with commencing, prosecuting and settling the Action (which may include the costs and expenses of Plaintiffs directly related to their representation of the Settlement Class), for which Co-Lead Counsel intend to apply to the Court for reimbursement from the Settlement Fund. (bb) “Net Settlement Fund” means the Settlement Fund less: (i) any Taxes; (ii) any Notice and Administration Costs; (iii) any Litigation Expenses awarded by the Court; and (iv) any attorneys’ fees awarded by the Court. 10 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 13 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 12 of 109 (cc) “Notice” means the Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses, substantially in the form attached hereto as Exhibit 1 to Exhibit A, which is to be mailed to Settlement Class Members. (dd) “Notice and Administration Costs” means the costs, fees and expenses that are incurred by the Claims Administrator and/or Co-Lead Counsel in connection with (i) providing notices to the Settlement Class; and (ii) administering the Settlement, including but not limited to the Claims process, as well as the costs, fees and expenses incurred in connection with the Escrow Account. (ee) “Parties” means Defendants and Lead Plaintiffs on behalf of themselves and the Settlement Class. (ff) “Plaintiffs” means Lead Plaintiffs, Miami Beach Employees Retirement Plan, and Marilyn Demory. (gg) “Plaintiffs’ Counsel” means Co-Lead Counsel, Liaison Counsel and all other legal counsel who, at the direction and under the supervision of Co-Lead Counsel, performed services on behalf of the Settlement Class in the Action. (hh) “Plaintiffs’ Releasees” means all plaintiffs in the Action and their respective attorneys and all other Settlement Class members, and each of the foregoings’ predecessors, successors, past, present and future parents, subsidiaries and affiliates, and their respective past or present general partners, limited partners, principals, members, officers, directors, trustees, employees, agents, servants, attorneys, accountants, auditors, insurers, co- insurers, reinsurers and related or affiliated entities, in their capacities as such. 11 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 14 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 13 of 109 (ii) “Plan of Allocation” means the plan of allocation of the Net Settlement Fund set forth in the Notice. (jj) “Preliminary Approval Order” means the order, substantially in the form attached hereto as Exhibit A, to be entered by the Court preliminarily approving the Settlement and directing that notice of the Settlement be provided to the Settlement Class. (kk) “PSLRA” means the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §§ 77z-1 and 78u-4, as amended. (ll) “Released Claims” means all Released Defendants’ Claims and all Released Plaintiffs’ Claims. (mm) “Released Defendants’ Claims” means all claims, causes of action or rights of recovery of every nature and description, whether known claims or Unknown Claims, whether direct or indirect, asserted or unasserted, foreseen or unforeseen, matured or unmatured, contingent or vested, whether arising under federal, state, local, statutory, common, foreign or other law, rule or regulation that arise out of or relate in any way to the institution, prosecution, or settlement of the claims against Defendants in the Action. Released Defendants’ Claims do not include any claims relating to the enforcement of the Settlement or any claims against any person or entity who or which submits a request for exclusion from the Settlement Class that is accepted by the Court. (nn) “Released Plaintiffs’ Claims” means all individual, representative and class claims, causes of action or rights of recovery of every nature and description, whether known claims or Unknown Claims, direct or indirect, asserted or unasserted, foreseen or unforeseen, matured or unmatured, contingent or vested, whether arising under federal, state, local, statutory, common, foreign or other law, rule or regulation, that Plaintiffs or any other 12 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 15 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 14 of 109 member of the Settlement Class (a) asserted in the Complaint, or (b) could have asserted or could in the future assert in any court or forum based upon, relating to or arising from the allegations, transactions, facts, matters or occurrences, errors, representations, actions, failures to act or omissions that were alleged, set forth, or referred to in the Complaint and that relate in any way, directly or indirectly, to the holding, purchase, or sale of State Street common stock during the Settlement Class Period. Released Plaintiffs’ Claims do not include (i) any claims relating to the enforcement of the Settlement or (ii) any Excluded Claims. (oo) “Releasee(s)” means each and any of the Defendants’ Releasees and each and any of the Plaintiffs’ Releasees. (pp) “Releases” means the releases set forth in ¶¶ 5-6 of this Stipulation. (qq) “Settlement” means the settlement between Lead Plaintiffs and Defendants on the terms and conditions set forth in this Stipulation. (rr) “Settlement Amount” means sixty million dollars ($60,000,000) in cash. (ss) “Settlement Class” means all persons and entities who or which purchased or otherwise acquired publicly traded common stock of State Street during the period from October 17, 2006 through October 21, 2009, inclusive (the “Settlement Class Period”), including all persons and entities who or which purchased or otherwise acquired State Street common stock pursuant and/or traceable to a registered public offering conducted on or about June 3, 2008, and who were damaged thereby. Excluded from the Settlement Class are: (a) Defendants; (b) members of the Immediate Families of the Individual Defendants; (c) the subsidiaries and affiliates of State Street (provided, that no ERISA plan for the benefit of any employees of State Street shall be excluded), the Underwriter Defendants, and Ernst & Young; (d) any person or entity who is a partner, chief executive officer, executive vice president, chief financial officer, 13 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 16 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 15 of 109 principal accounting officer (or if there is no such accounting officer, the controller), director, member, or controlling person of State Street, any Underwriter Defendant, or Ernst & Young; (e) any entity in which any Defendant has a controlling interest; and (f) the legal representatives, heirs, successors and assigns of any such excluded party; provided, however, that any Investment Vehicle shall not be excluded from the Settlement Class. Also excluded from the Settlement Class are any persons or entities who or which exclude themselves by submitting a request for exclusion that is accepted by the Court. (tt) “Settlement Class Member” means each person and entity who or which is a member of the Settlement Class. (uu) “Settlement Class Period” means the period from October 17, 2006 through October 21, 2009, inclusive. (vv) “Settlement Fund” means the Settlement Amount plus any and all interest earned thereon. (ww) “Settlement Hearing” or “Settlement Fairness Hearing” means the hearing set by the Court under Rule 23(e)(2) of the Federal Rules of Civil Procedure to consider final approval of the Settlement (xx) “State Street” means State Street Corporation. (yy) “State Street’s Counsel” means the law firm of Wilmer Cutler Pickering Hale and Dorr LLP. (zz) “Summary Notice” means the Summary Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation 14 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 17 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 16 of 109 Expenses, substantially in the form attached hereto as Exhibit 3 to Exhibit A, to be published as set forth in the Preliminary Approval Order. (aaa) “Taxes” means: (i) all federal, state and/or local taxes of any kind (including any interest or penalties thereon) on any income earned by the Settlement Fund; (ii) the expenses and costs incurred by Co-Lead Counsel in connection with determining the amount of, and paying, any taxes owed by the Settlement Fund (including, without limitation, expenses of tax attorneys and accountants); and (iii) all taxes imposed on payments by the Settlement Fund, including withholding taxes. (bbb) “Underwriter Defendants” means Goldman, Sachs & Co., Morgan Stanley & Co. LLC (formerly known as Morgan Stanley & Co. Incorporated), Credit Suisse Securities (USA) LLC, and UBS Securities LLC. (ccc) “Unknown Claims” means any Released Plaintiffs’ Claims which any Plaintiff or any other Settlement Class Member does not know or suspect to exist in his, her or its favor at the time of the release of such claims, and any Released Defendants’ Claims which any Defendant does not know or suspect to exist in his, her, or its favor at the time of the release of such claims, which, if known by him, her or it, might have affected his, her or its decision(s) with respect to this Settlement. With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date of the Settlement, Lead Plaintiffs, the other Plaintiffs and Defendants shall expressly waive, and each of the other Settlement Class Members shall be deemed to have waived, and by operation of the Judgment or the Alternate Judgment, if applicable, shall have expressly waived, any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle of common law or foreign law, which is similar, comparable, or equivalent to California Civil Code §1542, which provides: 15 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 18 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 17 of 109 A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Lead Plaintiffs and Defendants acknowledge, and each of the other Settlement Class Members shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for and a key element of the Settlement. CLASS CERTIFICATION 2. Solely for purposes of the Settlement and for no other purpose, Defendants stipulate and agree to: (a) certification of the Action as a class action pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of the Settlement Class; (b) certification of Lead Plaintiffs as Class Representatives for the Settlement Class; and (c) appointment of Co-Lead Counsel as Class Counsel for the Settlement Class pursuant to Rule 23(g) of the Federal Rules of Civil Procedure. PRELIMINARY APPROVAL OF SETTLEMENT 3. Within ten (10) business days of the execution of this Stipulation, Lead Plaintiffs will move for preliminary approval of the Settlement, certification of the Settlement Class for settlement purposes only, and the scheduling of a hearing for consideration of final approval of the Settlement (“Preliminary Approval Motion”). Lead Plaintiffs shall cooperate in good faith to address any comments or concerns of the Defendants with respect to the Preliminary Approval Motion. Concurrently with the Preliminary Approval Motion, Lead Plaintiffs shall apply to the Court for, and Defendants shall agree to, entry of the Preliminary Approval Order. Defendants shall not oppose entry of the Preliminary Approval Order. 16 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 19 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 18 of 109 RELEASE OF CLAIMS 4. The obligations incurred pursuant to this Stipulation are in consideration of the full and final dismissal of the Action as against Defendants and the Releases provided for herein. 5. Pursuant to the Judgment, or the Alternate Judgment, if applicable, without further action by anyone, upon the Effective Date of the Settlement, Plaintiffs and the other members of the Settlement Class, on behalf of themselves and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, shall be deemed to have, and by operation of law and of the judgment shall have, fully, finally and forever compromised, settled, remised, released, resolved, relinquished, waived and discharged Defendants and the other Defendants’ Releasees, and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, of and from each and every Released Plaintiffs’ Claim, and shall forever be enjoined from prosecuting any or all of the Released Plaintiffs’ Claims against any of the Defendants or any of the other Defendants’ Releasees. This Release shall not apply to any Excluded Claim. 6. Pursuant to the Judgment, or the Alternate Judgment, if applicable, without further action by anyone, upon the Effective Date of the Settlement, Defendants, on behalf of themselves and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, shall be deemed to have, and by operation of law and of the judgment shall have, fully, finally and forever compromised, settled, remised, released, resolved, relinquished, waived and discharged Plaintiffs and the other Plaintiffs’ Releasees, and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, of and from each and every Released Defendants’ Claim, and shall forever be enjoined from prosecuting any or all of the Released Defendants’ Claims against any of the Plaintiffs or 17 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 20 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 19 of 109 any of the other Plaintiffs’ Releasees. This Release shall not apply to any person or entity who or which submits a request for exclusion from the Settlement Class that is accepted by the Court. 7. Notwithstanding ¶¶ 5-6 above, nothing in the Judgment, or the Alternate Judgment, if applicable, shall bar any action by any of the Defendants or Plaintiffs to enforce or effectuate the terms of this Stipulation or the Judgment, or the Alternate Judgment if applicable. THE SETTLEMENT CONSIDERATION 8. In consideration of the settlement of the Released Plaintiffs’ Claims against Defendants and the other Defendants’ Releasees, State Street shall cause its insurers to pay the Settlement Amount into the Escrow Account within the later of thirty (30) calendar days after (i) the date of entry by the Court of an order preliminarily approving this Settlement or (ii) receipt by State Street and its insurers of all information necessary to permit them to make payment by wire and check (payee, tax identification number, wire transfer instructions, and address for physical delivery of a check with the contact person’s name and telephone number, and an executed Form W-9 for the Settlement Fund); provided, however, that State Street must, no later than two (2) business days after the filing of the motion for preliminary approval of the Settlement, provide Co-Lead Counsel with the contact information (including email addresses) for the persons to whom the above-noted information is to be provided. USE OF SETTLEMENT FUND 9. The Settlement Fund shall, with the approval of the Court or as provided in this Stipulation, be used to pay: (a) any Taxes; (b) any Notice and Administration Costs; (c) any Litigation Expenses awarded by the Court; and (d) any attorneys’ fees awarded by the Court. The balance remaining in the Settlement Fund after payment of any amounts described in 18 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 21 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 20 of 109 subparagraphs 9(a) through 9(d) (“Net Settlement Fund”) shall be distributed to Authorized Claimants as provided in ¶¶ 18-29 below. 10. Except as provided herein, the Settlement Fund (less payments provided for in paragraph 9) shall remain in the Escrow Account prior to the Effective Date. All funds held by the Escrow Agent shall be deemed to be in the custody of the Court and shall remain subject to the jurisdiction of the Court until such time as the funds shall be distributed or returned pursuant to the terms of this Stipulation and/or further order of the Court. The Escrow Agent shall invest any funds in the Escrow Account exclusively in United States Treasury Bills (or a mutual fund invested solely in such instruments) and shall collect and reinvest all interest accrued thereon in the same manner, except that any residual cash balances up to the amount that is insured by the FDIC may be deposited in any account that is fully insured by the FDIC. In the event that the yield on United States Treasury Bills is negative, in lieu of purchasing such Treasury Bills, all or any portion of the funds held by the Escrow Agent may be deposited in any account that is fully insured by the FDIC or backed by the full faith and credit of the United States. The Escrow Agreement shall provide that, until the Escrow Agent receives joint notification from Co-Lead Counsel and State Street’s Counsel that the Effective Date of the Settlement has occurred, all withdrawal instructions from the Escrow Account, other than for the payment of Taxes, shall require a signature from State Street’s Counsel. 11. The Parties agree that the Settlement Fund is intended to be a Qualified Settlement Fund within the meaning of Treasury Regulation § 1.468B-1 and that Co-Lead Counsel, as administrators of the Settlement Fund within the meaning of Treasury Regulation § 1.468B-2(k)(3), shall be solely responsible for filing or causing to be filed all informational and other tax returns as may be necessary or appropriate (including, without limitation, the 19 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 22 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 21 of 109 returns described in Treasury Regulation § 1.468B-2(k)) for the Settlement Fund. Co-Lead Counsel shall also be responsible for causing payment to be made from the Settlement Fund of any Taxes owed with respect to the Settlement Fund. The Defendants and the other Defendants’ Releasees shall not have any liability or responsibility for any such Taxes. Upon written request, Defendants will provide to Co-Lead Counsel the statement described in Treasury Regulation § 1.468B-3(e). Co-Lead Counsel, as administrators of the Settlement Fund within the meaning of Treasury Regulation § 1.468B-2(k)(3), shall timely make such elections as are necessary or advisable to carry out this paragraph, including, as necessary, making a “relation back election,” as described in Treasury Regulation § 1.468B-1(j), to cause the Qualified Settlement Fund to come into existence at the earliest allowable date, and shall take or cause to be taken all actions as may be necessary or appropriate in connection therewith. 12. All Taxes shall be paid out of the Settlement Fund, and shall be timely paid by the Escrow Agent pursuant to the disbursement instructions to be set forth in the Escrow Agreement, and without further order of the Court. Any tax returns prepared for the Settlement Fund (as well as the election set forth therein) shall be consistent with the previous paragraph and in all events shall reflect that all Taxes on the income earned by the Settlement Fund shall be paid out of the Settlement Fund as provided herein. The Defendants and the other Defendants’ Releasees shall have no responsibility or liability for the acts or omissions of Co-Lead Counsel or their agents with respect to the payment of Taxes, as described herein. 13. The Settlement is not a claims-made settlement. Upon the occurrence of the Effective Date, no Defendant, Defendants’ Releasee, nor any other person or entity who or which paid any portion of the Settlement Amount shall have any right to the return of the Settlement Fund or any portion thereof for any reason whatsoever, including without limitation, 20 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 23 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 22 of 109 the number of Claim Forms submitted, the collective amount of Recognized Claims of Authorized Claimants, the percentage of recovery of losses, or the amounts to be paid to Authorized Claimants from the Net Settlement Fund. 14. Notwithstanding the fact that the Effective Date has not yet occurred, Co-Lead Counsel may pay from the Escrow Account the reasonable and actual Notice and Administration Costs incurred, up to $500,000, without further approval from Defendants or further order of the Court. Such costs and expenses shall include, without limitation, the actual costs of printing and mailing the Notice, publishing the Summary Notice, reimbursements to nominee owners for forwarding the Notice to their beneficial owners, the administrative expenses incurred and fees charged by the Claims Administrator in connection with providing notice, administering the Settlement (including processing the submitted Claims), and the fees, if any, of the Escrow Agent. Payment, prior to the Effective Date, of any additional Notice and Administration Costs shall be subject to approval by State Street, not to be unreasonably withheld. In the event that the Settlement is not consummated, money paid or incurred for Notice and Administration Costs, including any related fees, shall not be returned or repaid to State Street or its insurers. Any dispute concerning whether a failure to provide approval called for by this Stipulation was reasonable shall be submitted to the Court. ATTORNEYS’ FEES AND LITIGATION EXPENSES 15. Co-Lead Counsel will apply to the Court for a collective award of attorneys’ fees to Plaintiffs’ Counsel to be paid from (and out of) the Settlement Fund. Co-Lead Counsel also will apply to the Court for reimbursement of Litigation Expenses, which may include a request for reimbursement of Plaintiffs’ costs and expenses directly related to their representation of the Settlement Class, to be paid from (and out of) the Settlement Fund. Co-Lead Counsel’s 21 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 24 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 23 of 109 application for an award of attorneys’ fees and/or Litigation Expenses is not the subject of any agreement between Defendants and Lead Plaintiffs other than what is set forth in this Stipulation. Defendants agree not to take a position on any such application for an award of attorneys’ fees and/or Litigation Expenses. 16. Any attorneys’ fees and Litigation Expenses that are awarded by the Court, whether by Judge O’Toole or Magistrate Judge Dein (whether by order or report and recommendation), shall be paid to Co-Lead Counsel immediately upon award, notwithstanding the existence of any timely filed objections thereto, or potential for appeal therefrom, or collateral attack on the Settlement or any part thereof, subject to Co-Lead Counsel’s obligation to be jointly and severally liable to make appropriate refunds or repayments to the Settlement Fund, plus accrued interest at the same net rate as is earned by the Settlement Fund, if the Settlement is terminated pursuant to the terms of this Stipulation or if the award of attorneys’ fees and/or Litigation Expenses is reduced or reversed and such order reducing or reversing the award has become Final. Co-Lead Counsel shall make the appropriate refund or repayment in full no later than thirty (30) days after (a) receiving from State Street’s Counsel notice of the termination of the Settlement; or (b) any order reducing or reversing the award of attorneys’ fees and/or Litigation Expenses has become Final. An award of attorneys’ fees and/or Litigation Expenses is not a necessary term of this Stipulation and is not a condition of the Settlement embodied herein. Neither Lead Plaintiffs nor Co-Lead Counsel may cancel or terminate the Settlement based on this Court’s or any appellate court’s ruling with respect to attorneys’ fees and/or Litigation Expenses. 17. Co-Lead Counsel shall allocate the attorneys’ fees awarded amongst Plaintiffs’ Counsel in a manner which they, in good faith, believe reflects the contributions of such counsel 22 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 25 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 24 of 109 to the institution, prosecution and settlement of the Action. Defendants and the other Defendants’ Releasees shall have no responsibility for or liability whatsoever with respect to the allocation or award of attorneys’ fees or Litigation Expenses. The attorneys’ fees and Litigation Expenses that are awarded to Plaintiffs’ Counsel shall be payable solely from the Escrow Account. NOTICE AND SETTLEMENT ADMINISTRATION 18. As part of the Preliminary Approval Order, Lead Plaintiffs shall seek appointment of a Claims Administrator. The Claims Administrator shall administer the Settlement, including but not limited to the process of receiving, reviewing and approving or denying Claims, under Co-Lead Counsel’s supervision and subject to the jurisdiction of the Court. Other than State Street’s obligation to provide their securities holders records as provided in ¶ 19 below, none of the Defendants or other Defendants’ Releasees shall have any involvement in or any responsibility, authority or liability whatsoever for the selection of the Claims Administrator, the Plan of Allocation, the administration of the Settlement, the claims process, or disbursement of the Net Settlement Fund, and shall have no liability whatsoever to any person or entity, including, but not limited to, Lead Plaintiffs, any other Settlement Class Members or Co-Lead Counsel in connection with the foregoing. Counsel for the Parties shall cooperate in the administration of the Settlement to the extent reasonably necessary to effectuate its terms. 19. In accordance with the terms of the Preliminary Approval Order entered by the Court, Co-Lead Counsel shall cause the Claims Administrator to mail the Notice and Proof of Claim Form to those members of the Settlement Class as may be identified through reasonable effort. Co-Lead Counsel shall also cause the Claims Administrator to have the Summary Notice published in accordance with the terms of the Preliminary Approval Order to be entered by the 23 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 26 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 25 of 109 Court. For the purposes of identifying and providing notice to the Settlement Class, within five (5) business days of the date of entry of the Preliminary Approval Order, State Street shall provide or cause to be provided to the Claims Administrator (at no cost to the Settlement Fund, Co-Lead Counsel or the Claims Administrator) its list of names and addresses of shareholders of State Street common stock during the Settlement Class Period, in electronic form. 20. The Claims Administrator shall receive Claims and determine first, whether the Claim is a valid Claim, in whole or part, and second, each Authorized Claimant’s pro rata share of the Net Settlement Fund based upon each Authorized Claimant’s Recognized Claim compared to the total Recognized Claims of all Authorized Claimants (as set forth in the Plan of Allocation set forth in the Notice attached hereto as Exhibit 1 to Exhibit A, or in such other plan of allocation as the Court approves). 21. It is not a condition of the Settlement or of this Stipulation that any particular plan of allocation be approved by the Court. Lead Plaintiffs and Co-Lead Counsel may not cancel or terminate the Settlement (or this Stipulation) based on this Court’s or any appellate court’s ruling with respect to the Plan of Allocation or any other plan of allocation in this Action. Defendants and the other Defendants’ Releasees shall not object to the Plan of Allocation or any other plan of allocation in this Action. Defendants and the other Defendants’ Releasees shall have no involvement with or liability, obligation or responsibility whatsoever for the Court-approved plan of allocation or the disbursement of the Settlement Fund. 22. Any Settlement Class Member who does not submit a valid Claim Form will not be entitled to receive any distribution from the Net Settlement Fund but will nevertheless be bound by all of the terms of this Stipulation and Settlement, including the terms of the Judgment or, the Alternate Judgment, if applicable, entered in the Action and the releases provided for 24 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 27 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 26 of 109 herein and therein, and will be permanently barred and enjoined from bringing any action, claim, or other proceeding of any kind against the Defendants and the other Defendants’ Releasees with respect to the Released Plaintiffs’ Claims in the event that the Effective Date occurs with respect to the Settlement. 23. Co-Lead Counsel shall be responsible for supervising the administration of the Settlement and the disbursement of the Net Settlement Fund subject to Court approval. No Defendant, or any other Defendants’ Releasees, shall be permitted to review, contest or object to any Claim Form, or any decision of the Claims Administrator or Lead Counsel with respect to accepting or rejecting any Claim for payment by a Settlement Class Member. Co-Lead Counsel shall have the right, but not the obligation, to waive what it deems to be formal or technical defects in any Claim Forms submitted in the interests of achieving substantial justice. 24. For purposes of determining the extent, if any, to which a Settlement Class Member shall be entitled to be treated as an Authorized Claimant, the following conditions shall apply: (a) Each Settlement Class Member shall be required to submit a Claim Form, substantially in the form attached hereto as Exhibit 2 to Exhibit A, supported by such documents as are designated therein, including proof of the Claimant’s loss, or such other documents or proof as the Claims Administrator or Co-Lead Counsel, in their discretion, may deem acceptable; (b) All Claim Forms must be submitted by the date set by the Court in the Preliminary Approval Order and specified in the Notice. Any Settlement Class Member who fails to submit a Claim Form by such date shall be forever barred from receiving any distribution from the Net Settlement Fund or payment pursuant to this Stipulation (unless by Order of the Court such Settlement Class Member’s Claim Form is accepted), but shall nevertheless be bound 25 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 28 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 27 of 109 by all of the terms of this Stipulation and the Settlement, including the terms of the Judgment or Alternate Judgment, if applicable, and the Releases provided for herein and therein, and will be permanently barred and enjoined from bringing any action, claim or other proceeding of any kind against any Defendant or any other Defendants’ Releasees with respect to any Released Plaintiffs’ Claim. Provided that it is mailed by the claim-submission deadline, a Claim Form shall be deemed to be submitted when postmarked, if received with a postmark indicated on the envelope and if mailed by first-class mail and addressed in accordance with the instructions thereon. In all other cases, the Claim Form shall be deemed to have been submitted on the date when actually received by the Claims Administrator; (c) Each Claim Form shall be submitted to and reviewed by the Claims Administrator who shall determine in accordance with this Stipulation and the plan of allocation the extent, if any, to which each Claim shall be allowed, subject to review by the Court pursuant to subparagraph (e) below as necessary; (d) Claim Forms that do not meet the submission requirements may be rejected. Prior to rejecting a Claim in whole or in part, the Claims Administrator shall communicate with the Claimant in writing, to give the Claimant the chance to remedy any curable deficiencies in the Claim Form submitted. The Claims Administrator shall notify, in a timely fashion and in writing, all Claimants whose Claim the Claims Administrator proposes to reject in whole or in part, setting forth the reasons therefor, and shall indicate in such notice that the Claimant whose Claim is to be rejected has the right to a review by the Court if the Claimant so desires and complies with the requirements of subparagraph (e) below; and (e) If any Claimant whose Claim has been rejected in whole or in part desires to contest such rejection, the Claimant must, within twenty (20) days after the date of mailing of 26 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 29 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 28 of 109 the notice required in subparagraph (d) above, serve upon the Claims Administrator a notice and statement of reasons indicating the Claimant’s grounds for contesting the rejection along with any supporting documentation, and requesting a review thereof by the Court. If a dispute concerning a Claim cannot be otherwise resolved, Co-Lead Counsel shall thereafter present the request for review to the Court. 25. Each Claimant shall be deemed to have submitted to the jurisdiction of the Court with respect to the Claimant’s Claim, and the Claim will be subject to investigation and discovery under the Federal Rules of Civil Procedure, provided that such investigation and discovery shall be limited to that Claimant’s status as a Settlement Class Member and the validity and amount of the Claimant’s Claim. No discovery shall be allowed on the merits of this Action or of the Settlement in connection with the processing of Claim Forms. 26. Co-Lead Counsel will apply to the Court, on notice to Defendants’ Counsel, for a Class Distribution Order: (a) approving the Claims Administrator’s administrative determinations concerning the acceptance and rejection of the Claims submitted; (b) approving payment of any administration fees and expenses associated with the administration of the Settlement from the Escrow Account; and (c) if the Effective Date has occurred, directing payment of the Net Settlement Fund to Authorized Claimants from the Escrow Account. 27. Payment pursuant to the Class Distribution Order shall be final and conclusive against all Settlement Class Members. All Settlement Class Members whose Claims are not approved by the Court for payment shall be barred from participating in distributions from the Net Settlement Fund, but otherwise shall be bound by all of the terms of this Stipulation and the Settlement, including the terms of the Judgment or Alternate Judgment, if applicable, to be entered in this Action and the Releases provided for herein and therein, and will be permanently 27 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 30 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 29 of 109 barred and enjoined from bringing any action against any and all Defendants and the other Defendants’ Releasees with respect to any and all of the Released Plaintiffs’ Claims. 28. No person or entity shall have any claim against Lead Plaintiffs, Co-Lead Counsel, the Claims Administrator or any other agent designated by Co-Lead Counsel or Defendants or the other Defendants’ Releasees and/or their respective counsel, arising from distributions made substantially in accordance with the Stipulation, the plan of allocation approved by the Court, or any order of the Court. Lead Plaintiffs and the Defendants, and their respective counsel, and Lead Plaintiffs’ damages expert and all other Releasees shall have no liability whatsoever for the investment or distribution of the Settlement Fund or the Net Settlement Fund, the plan of allocation, or the determination, administration, calculation, or payment of any claim or nonperformance of the Claims Administrator, the payment or withholding of taxes (including interest and penalties) owed by the Settlement Fund, or any losses incurred in connection therewith. 29. All proceedings with respect to the administration, processing and determination of Claims and the determination of all controversies relating thereto, including disputed questions of law and fact with respect to the validity of Claims, shall be subject to the jurisdiction of the Court. All Settlement Class Members and Parties to this Settlement expressly waive trial by jury (to the extent any such right may exist) and any right of appeal or review with respect to such determinations. TERMS OF THE JUDGMENT 30. If the Settlement contemplated by this Stipulation is approved by the Court, the Court shall enter a Judgment substantially in the form attached hereto as Exhibit B or an Alternate Judgment. 28 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 31 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 30 of 109 CONDITIONS OF SETTLEMENT AND EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION 31. The Effective Date of the Settlement shall be deemed to occur on the occurrence or waiver of all of the following events: (a) the Court has entered the Preliminary Approval Order, substantially in the form set forth in Exhibit A attached hereto; (b) the Settlement Amount has been deposited into the Escrow Account in accordance with the provisions of ¶ 8 above; (c) State Street has not exercised its option to terminate the Settlement pursuant to the provisions of this Stipulation (including the Supplemental Agreement described in ¶ 35 below); (d) Lead Plaintiffs have not exercised their option to terminate the Settlement pursuant to the provisions of this Stipulation; and (e) the Court has approved the Settlement as described herein, following notice to the Settlement Class and a hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure, the Court has entered the Judgment, and the Judgment has become Final, or the Court has with the consent of the Parties entered an Alternate Judgment and none of the Parties seek to terminate the Settlement and the Alternate Judgment has become Final. 32. Upon the occurrence of all of the events referenced in ¶ 31 above, any and all remaining interest or right of the Defendants and their insurers in or to the Settlement Fund, if any, shall be absolutely and forever extinguished and the Releases herein shall be effective. 33. If (i) State Street exercises its right to terminate the Settlement as provided in this Stipulation; (ii) Lead Plaintiffs exercise their right to terminate this Settlement as provided in this Stipulation; (iii) the Court does not approve the Settlement; (iv) the Judgment or Alternate 29 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 32 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 31 of 109 Judgment (if any) does not or cannot become Final, or (v) the Effective Date as to the Settlement otherwise fails to occur, then: (a) The Settlement and the relevant portions of this Stipulation shall be canceled and terminated. (b) Plaintiffs and Defendants shall revert to their respective positions in the Action immediately prior to March 12, 2014. (c) The terms and provisions of this Stipulation, with the exception of this ¶ 33 and ¶¶ 14, 16, 36, 57 and 58 shall have no further force and effect with respect to the Plaintiffs and Defendants and shall not be used in the Action or in any other proceeding for any purpose, and any Judgment, or Alternate Judgment, if applicable, or order entered by the Court in accordance with the terms of this Stipulation shall be treated as vacated, nunc pro tunc. (d) Within thirty (30) calendar days after joint written notification of termination is sent by State Street’s Counsel and Co-Lead Counsel to the Escrow Agent, the Settlement Fund (including accrued interest thereon and any funds received by Co-Lead Counsel consistent with ¶ 16 above), less any expenses and any costs which have either been disbursed or incurred and chargeable to Notice and Administration Costs and less any Taxes paid or due or owing shall be refunded by the Escrow Agent to State Street (or such other persons or entities as State Street may direct). In the event that the funds to be received from counsel for Plaintiffs consistent with ¶ 16 above have not been refunded to the Settlement Fund within the thirty (30) calendar days specified in this paragraph, those funds shall be refunded by the Escrow Agent to State Street (or such other persons or entities as State Street may direct) immediately upon their deposit into the Escrow Account consistent with ¶ 16 above. 30 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 33 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 32 of 109 34. It is further stipulated and agreed that Lead Plaintiffs, provided they unanimously agree, and State Street shall each have the right to terminate the Settlement and this Stipulation, by providing written notice of their election to do so (“Termination Notice”) to the other Parties to this Stipulation within thirty (30) days of: (a) the Court’s declining to enter the Preliminary Approval Order in any material respect; (b) the Court’s refusal to approve the Settlement or any material part thereof; (c) the Court’s declining to enter the Judgment in any material respect as to the Settlement; (d) the date upon which the Judgment is modified or reversed in any material respect by the United States Court of Appeals for the First Circuit or the United States Supreme Court; or (e) the date upon which an Alternate Judgment is modified or reversed in any material respect by the United States Court of Appeals for the First Circuit or the United States Supreme Court, and the provisions of ¶ 33 above shall apply. However, any decision or proceeding after the Court enters the Judgment or Alternate Judgment, if applicable, whether in this Court or any appellate court, with respect to an application for attorneys’ fees or reimbursement of Litigation Expenses or with respect to any plan of allocation shall not be considered material to the Settlement, shall not affect the finality of any Judgment or Alternate Judgment, if applicable, and shall not be grounds for termination of the Settlement. 35. In addition to the grounds set forth in ¶ 34 above, State Street shall have the unilateral right to terminate the Settlement in the event that the conditions set forth in State Street’s confidential supplemental agreement with Lead Plaintiffs (the “Supplemental Agreement”) are met. The Supplemental Agreement, which is being executed concurrently herewith, shall not be filed with the Court and its terms shall not be disclosed in any manner (other than the statements herein and in the Notice, or as otherwise provided in the Supplemental Agreement) unless and until the Court otherwise directs or a dispute arises between Lead 31 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 34 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 33 of 109 Plaintiffs and State Street concerning its interpretation or application. If submission of the Supplemental Agreement is required for resolution of a dispute or is otherwise ordered by the Court, Lead Plaintiffs and State Street will seek to have the Supplemental Agreement submitted to the Court in camera. NO ADMISSION OF WRONGDOING 36. Neither the Term Sheet, this Stipulation (whether or not consummated), including the exhibits hereto and the Plan of Allocation contained therein (or any other plan of allocation that may be approved by the Court), the negotiations leading to the execution of the Term Sheet and this Stipulation, nor any proceedings taken pursuant to or in connection with the Term Sheet, this Stipulation and/or approval of the Settlement (including any arguments proffered in connection therewith): (a) shall be offered against any of the Defendants or any of the other Defendants’ Releasees as evidence of, or construed as, or deemed to be evidence of any presumption, concession, or admission by any of the Defendants or any of the other Defendants’ Releasees with respect to the truth of any fact alleged by Plaintiffs or the validity of any claim that was or could have been asserted or the deficiency of any defense that has been or could have been asserted in this Action or in any other litigation, or of any liability, negligence, fault, or other wrongdoing of any kind of any of the Defendants or any of the other Defendants’ Releasees or in any way referred to for any other reason as against any of the Defendants or any of the other Defendants’ Releasees, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Stipulation; (b) shall be offered against any of the Plaintiffs or any of the other Plaintiffs’ Releasees, as evidence of, or construed as, or deemed to be evidence of any presumption, 32 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 35 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 34 of 109 concession or admission by any of the Plaintiffs or any of the other Plaintiffs’ Releasees that any of their claims are without merit, that any of the Defendants or any of the other Defendants’ Releasees had meritorious defenses, or that damages recoverable under the Complaint would not have exceeded the Settlement Amount or with respect to any liability, negligence, fault or wrongdoing of any kind, or in any way referred to for any other reason as against any of the Plaintiffs or any of the other Plaintiffs’ Releasees, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Stipulation; or (c) shall be construed against any of Releasees as an admission, concession, or presumption that the consideration to be given hereunder represents the amount which could be or would have been recovered after trial. (d) If this Stipulation is approved by the Court, the Parties and the Releasees and their respective counsel may refer to it to effectuate the protections from liability granted hereunder or otherwise to enforce the terms of the Settlement. MISCELLANEOUS PROVISIONS 37. All of the exhibits attached hereto are hereby incorporated by reference as though fully set forth herein. Notwithstanding the foregoing, in the event that there exists a conflict or inconsistency between the terms of this Stipulation and the terms of any exhibit attached hereto, the terms of the Stipulation shall prevail. 38. State Street warrants that, as to the payments made or to be made on behalf of it, at the time of entering into this Stipulation and at the time of such payment it, or to its knowledge any persons or entities contributing to the payment of the Settlement Amount, was/were not insolvent, nor will the payment required to be made by or on behalf of it to its knowledge render 33 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 36 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 35 of 109 it/them insolvent, within the meaning of and/or for the purposes of the United States Bankruptcy Code, including §§ 101 and 547 thereof. This representation is made by State Street and not by its counsel. 39. In the event of the entry of a final order of a court of competent jurisdiction determining the transfer of money to the Settlement Fund or any portion thereof by or on behalf of State Street to be a preference, voidable transfer, fraudulent transfer or similar transaction and any portion thereof is required to be returned, and such amount is not promptly deposited into the Settlement Fund by others, then, at the election of Lead Plaintiffs, Lead Plaintiffs and Defendants shall jointly move the Court to vacate and set aside the Releases given and the Judgment or Alternate Judgment, if applicable, entered in favor of Defendants and the other Releasees pursuant to this Stipulation, in which event the Releases and Judgment, or Alternate Judgment, if applicable, shall be null and void, and the Parties shall be restored to their respective positions in the litigation as provided in ¶ 33 above and any cash amounts in the Settlement Fund (less any Taxes paid, due or owing with respect to the Settlement Fund and less any Notice and Administration Costs actually incurred, paid or payable) shall be returned as provided in ¶ 33. 40. State Street shall determine the form of notice to be provided for the purpose of satisfying the requirements of the Class Action Fairness Act (“CAFA Notice”) and the identity of those who will receive the CAFA Notice. The Claims Administrator shall mail the CAFA Notice, and shall submit an affidavit describing the efforts taken to effect such notice. 41. The Parties intend this Stipulation and the Settlement to be a final and complete resolution of all disputes asserted or which could be asserted by Plaintiffs and any other Settlement Class Members against the Defendants or other Defendants’ Releasees with respect to 34 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 37 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 36 of 109 the Released Plaintiffs’ Claims. Accordingly, Lead Plaintiffs and their counsel and Defendants and their counsel agree not to assert in any forum that this Action was brought by Lead Plaintiffs or defended by Defendants in bad faith or without a reasonable basis. No Party shall assert any claims of any violation of Rule 11 of the Federal Rules of Civil Procedure relating to the institution, prosecution, defense, or settlement of this Action. The Parties agree that the amounts paid and the other terms of the Settlement were negotiated at arm’s-length and in good faith by the Parties and reflect the Settlement that was reached voluntarily after extensive negotiations and consultation with experienced legal counsel, who were fully competent to assess the strengths and weaknesses of their respective clients’ claims or defenses. 42. While retaining their right to deny that the claims asserted in the Action were meritorious, Defendants and their counsel, in any statement made to any media representative (whether or not for attribution) will not assert that the Action was commenced or prosecuted in bad faith nor will they deny that the Action is being settled voluntarily after consultation with competent legal counsel. In all events, Lead Plaintiffs and their counsel and Defendants and their counsel shall not make any accusations of wrongful or actionable conduct by any Party concerning the prosecution, defense, and resolution of the Action, and shall not otherwise suggest that the Settlement constitutes an admission of any claim or defense alleged. 43. The terms of the Settlement, as reflected in this Stipulation, may not be modified or amended, nor may any of its provisions be waived except by a writing signed on behalf of both Lead Plaintiffs and Defendants (or their successors-in-interest). 44. The headings herein are used for the purpose of convenience only and are not meant to have legal effect. 35 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 38 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 37 of 109 45. The administration and consummation of the Settlement as embodied in this Stipulation shall be under the authority of the Court, and the Court shall retain jurisdiction for the purpose of entering orders providing for awards of attorneys’ fees and Litigation Expenses to Plaintiffs’ Counsel and enforcing the terms of this Stipulation, including the Plan of Allocation (or such other plan of allocation as may be approved by the Court) and the distribution of the Net Settlement Fund to Settlement Class Members. 46. The waiver by one Party of any breach of this Stipulation by any other Party shall not be deemed a waiver of any other prior or subsequent breach of this Stipulation. 47. This Stipulation and its exhibits and the Supplemental Agreement constitute the entire agreement among Lead Plaintiffs and Defendants concerning the Settlement. All Parties acknowledge that no other agreements, representations, warranties, or inducements have been made by any Party hereto concerning this Stipulation, its exhibits or the Supplemental Agreement other than those contained and memorialized in such documents. 48. This Stipulation may be executed in one or more counterparts, including by signature transmitted via facsimile, or by a .pdf/.tif image of the signature transmitted via email. All executed counterparts and each of them shall be deemed to be one and the same instrument. 49. This Stipulation shall be binding upon and inure to the benefit of the successors and assigns of the Parties, including any and all Releasees and any corporation, partnership, or other entity into or with which any Party hereto may merge, consolidate or reorganize. 50. The construction, interpretation, operation, effect and validity of this Stipulation, the Supplemental Agreement and all documents necessary to effectuate it shall be governed by the internal laws of the Commonwealth of Massachusetts without regard to conflicts of laws, except to the extent that federal law requires that federal law govern. 36 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 39 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 38 of 109 51. Any action arising under or to enforce this Stipulation or any portion thereof, shall be commenced and maintained only in the Court. 52. This Stipulation shall not be construed more strictly against one Party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the Parties, it being recognized that it is the result of arm’s-length negotiations between the Parties and all Parties have contributed substantially and materially to the preparation of this Stipulation. 53. All counsel and any other person executing this Stipulation and any of the exhibits hereto, or any related Settlement documents, warrant and represent that they have the full authority to do so and that they have the authority to take appropriate action required or permitted to be taken pursuant to the Stipulation to effectuate its terms. 54. Co-Lead Counsel and Defendants’ Counsel agree to cooperate reasonably with one another in seeking Court approval of the Preliminary Approval Order and the Settlement, as embodied in this Stipulation, and to use best efforts to promptly agree upon and execute all such other documentation as may be reasonably required to obtain final approval by the Court of the Settlement. 55. If any Party is required to give notice to another Party under this Stipulation, such notice shall be in writing and shall be deemed to have been duly given upon receipt of hand delivery or facsimile or email transmission, with confirmation of receipt. Notice shall be provided as follows: 37 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 40 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 39 of 109 If to Lead Plaintiffs or Co-Lead Bernstein Litowitz Berger & Grossmann LLP Counsel: Attn: John C. Browne, Esq. 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 Email: [email protected] and Motley Rice LLC Attn: William H. Narwold, Esq. 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 Telephone: (843) 216-9000 Facsimile: (843) 216-9450 Email: [email protected] If to State Street or the Individual Wilmer Cutler Pickering Hale and Dorr LLP Defendants: Attn: William H. Paine, Esq. 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 Email: [email protected] If to the Underwriter Defendants: Goodwin Procter LLP Attn: Stephen D. Poss, Esq. 53 State Street Boston, MA 02109 Telephone: (617) 570-1000 Facsimile: (617) 523-1231 Email: [email protected] If to Ernst & Young: Skadden, Arps, Slate, Meagher & Flom LLP Attn: Thomas J. Dougherty, Esq. 500 Boylston Street Boston, MA 02116 Telephone: (617) 573-4800 Facsimile: (617) 573-4822 Email: [email protected] 56. Except as otherwise provided herein, each Party shall bear its own costs. 38 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 41 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 40 of 109 57. Whether or not the Stipulation is approved by the Court and whether or not the Stipulation is consummated, or the Effective Date occurs, the Parties and their counsel shall use their best efforts to keep all negotiations, discussions, acts performed, agreements, drafts, documents signed and proceedings in connection with the Stipulation confidential. 58. All agreements made and orders entered during the course of this Action relating to the confidentiality of information shall survive this Settlement. Lead Plaintiffs and Plaintiffs shall return or destroy material produced by Defendants in accordance with the provisions of Common Stipulation and [Proposed] Order for the Production and Exchange of Confidential Information that was So Ordered by the Court on November 22, 2011. 59. No opinion or advice concerning the tax consequences of the proposed Settlement to individual Settlement Class Members is being given or will be given by the Parties or their counsel; nor is any representation or warranty in this regard made by virtue of this Stipulation. Each Settlement Class Member’s tax obligations, and the determination thereof, are the sole responsibility of the Settlement Class Member, and it is understood that the tax consequences may vary depending on the particular circumstances of each individual Settlement Class Member. 39 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 42 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 41 of 109 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 43 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 42 of 109 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 44 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 43 of 109 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 45 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 44 of 109 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 46 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 45 of 109 Exhibit A Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 47 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 46 of 109 Exhibit A IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS HILL v. STATE STREET CORPORATION ) ______) ) Master Docket No.1:09-cv-12146-GAO THIS DOCUMENT RELATES TO THE ) SECURITIES ACTION ) ) DOCKET NO. 09-cv-12146-GAO ) [PROPOSED] ORDER PRELIMINARILY APPROVING PROPOSED SETTLEMENT AND PROVIDING FOR NOTICE WHEREAS, a consolidated securities class action is pending in this Court entitled Hill v. State Street Corporation, Master Docket No. 1:09-cv-12146-GAO (the “Action”); WHEREAS, (a) Lead Plaintiffs the Public Employees’ Retirement System of Mississippi and Union Asset Management Holding AG (collectively, “Lead Plaintiffs”), on behalf of themselves, Miami Beach Employees Retirement Plan and Marilyn Demory (together with Lead Plaintiffs, “Plaintiffs”), and the Settlement Class (defined below), and (b) defendants (i) State Street Corporation (“State Street”); (ii) Ronald E. Logue, Edward J. Resch, Pamela D. Gormley, Kennett F. Burnes, Peter Coym, Nader F. Darehshori, Amelia C. Fawcett, David P. Gruber, Linda A. Hill, Charles R. LaMantia, Maureen J. Miskovic, Richard P. Sergel, Ronald L. Skates, Gregory L. Summe, and Robert E. Weissman (the “Individual Defendants”); (iii) Goldman, Sachs & Co., Morgan Stanley & Co. LLC (formerly known as Morgan Stanley & Co. Incorporated), Credit Suisse Securities (USA) LLC, and UBS Securities LLC (the “Underwriter Defendants”); and (iv) Ernst & Young LLP (“Ernst & Young”) (collectively, “Defendants” and together with Lead Plaintiffs, the “Parties”) have determined to settle all claims asserted against Defendants in this Action with prejudice on the terms and conditions set forth in the Stipulation Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 48 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 47 of 109 and Agreement of Settlement dated July 8, 2014 (the “Stipulation”) subject to approval of this Court (the “Settlement”); WHEREAS, Lead Plaintiffs have made an application, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for an order preliminarily approving the Settlement in accordance with the Stipulation, certifying the Settlement Class for purposes of the Settlement only, and allowing notice to Settlement Class Members as more fully described herein; WHEREAS, the Court has read and considered (a) the Consolidated Amended Class Action Complaint filed by Lead Plaintiffs in the Action on July 29, 2010; (b) Lead Plaintiffs’ motion for preliminary approval of the Settlement, and the papers filed and arguments made in connection therewith; and (c) the Stipulation and the exhibits attached thereto; and WHEREAS, unless otherwise defined herein, all capitalized words contained herein shall have the same meanings as they have in the Stipulation; NOW THEREFORE, IT IS HEREBY ORDERED: 1. Class Certification for Settlement Purposes – Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, the Court certifies, solely for purposes of effectuating the proposed Settlement, a Settlement Class consisting of all persons and entities who or which purchased or otherwise acquired publicly traded common stock of State Street during the period from October 17, 2006 through October 21, 2009, inclusive (the “Settlement Class Period”), including all persons and entities who or which purchased or otherwise acquired State Street common stock pursuant and/or traceable to a registered public offering conducted on or about June 3, 2008, and who were damaged thereby. Excluded from the Settlement Class are: (a) Defendants; (b) members of the Immediate Families1 of the Individual Defendants; (c) the 1 “Immediate Family” means children, stepchildren, parents, stepparents, spouses, siblings, mothers-in- law, fathers-in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law. As used in this 2 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 49 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 48 of 109 subsidiaries and affiliates of State Street (provided, that no ERISA plan for the benefit of any employees of State Street shall be excluded), the Underwriter Defendants, and Ernst & Young; (d) any person or entity who is a partner, chief executive officer, executive vice president, chief financial officer, principal accounting officer (or if there is no such accounting officer, the controller), director, member, or controlling person of State Street, any Underwriter Defendant, or Ernst & Young; (e) any entity in which any Defendant has a controlling interest; and (f) the legal representatives, heirs, successors and assigns of any such excluded party; provided, however, that any Investment Vehicle shall not be excluded from the Settlement Class.2 Also excluded from the Settlement Class are any persons or entities who or which exclude themselves by submitting a request for exclusion that is accepted by the Court. 2. Class Findings – Solely for purposes of the proposed Settlement of this Action, the Court finds that each element required for certification of the Settlement Class pursuant to Rule 23 of the Federal Rules of Civil Procedure has been met: (a) the members of the Settlement Class are so numerous that their joinder in the Action would be impracticable; (b) there are questions of law and fact common to the Settlement Class which predominate over any individual questions; (c) the claims of Lead Plaintiffs in the Action are typical of the claims of the Settlement Class; (d) Lead Plaintiffs and Co-Lead Counsel have and will fairly and adequately represent and protect the interests of the Settlement Class; and (e) a class action is superior to other available methods for the fair and efficient adjudication of the Action. paragraph, “spouse” shall mean a husband, a wife, or a partner in a state-recognized domestic relationship or civil union. 2 “Investment Vehicle” means investment company, pooled investment fund or customer account of a Defendant, including but not limited to mutual fund families, exchange-traded funds, fund of funds, and hedge funds, in which any Defendant has or may have a direct or indirect interest or as to which its affiliates may act as an investment advisor or custodian but of which any Defendant or any of its respective affiliates is not a majority owner or does not hold a majority beneficial interest. 3 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 50 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 49 of 109 3. The Court hereby finds and concludes that pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes of the Settlement only, Lead Plaintiffs (the Public Employees’ Retirement System of Mississippi and Union Asset Management Holding AG) are adequate class representatives and certifies them as Class Representatives for the Settlement Class. The Court also appoints Co-Lead Counsel as Class Counsel for the Settlement Class, pursuant to Rule 23(g) of the Federal Rules of Civil Procedure. 4. Preliminary Approval of the Settlement – The Court hereby preliminarily approves the Settlement, as embodied in the Stipulation, as being fair, reasonable and adequate to the Settlement Class, subject to further consideration at the Settlement Hearing to be conducted as described below. 5. Settlement Hearing – The Court will hold a settlement hearing (the “Settlement Hearing”) on ______, 2014 at __:__ _.m. in Courtroom __, ____ Floor, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210, for the following purposes: (a) to determine whether the proposed Settlement on the terms and conditions provided for in the Stipulation is fair, reasonable and adequate to the Settlement Class, and should be approved by the Court; (b) to determine whether a Judgment substantially in the form attached as Exhibit B to the Stipulation should be entered dismissing the Action with prejudice against Defendants; (c) to determine whether the proposed Plan of Allocation for the proceeds of the Settlement is fair and reasonable and should be approved; (d) to determine whether the motion by Co-Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses should be approved; and (e) to consider any other matters that may properly be brought before the Court in connection with the Settlement. Notice of the Settlement and the Settlement Hearing shall be given to Settlement Class Members as set forth in paragraph 7 of this Order. 4 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 51 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 50 of 109 6. The Court may adjourn the Settlement Hearing and approve the proposed Settlement with such modifications as the parties to the Settlement may agree to, if appropriate, without further notice to the Settlement Class. 7. Retention of Claims Administrator and Manner of Giving Notice – Co-Lead Counsel are hereby authorized to retain Epiq Class Action & Claims Solutions, Inc. (“Epiq Systems, Inc.” or the “Claims Administrator”) to supervise and administer the notice procedure in connection with the proposed Settlement as well as the processing of Claims as more fully set forth below. Notice of the Settlement and the Settlement Hearing shall be given by Co-Lead Counsel as follows: (a) within five (5) business days of the date of entry of this Order, State Street shall provide or cause to be provided to the Claims Administrator (at no cost to the Settlement Fund, Co-Lead Counsel or the Claims Administrator) its list of the names and addresses of shareholders of State Street common stock during the Settlement Class Period, in electronic form; (b) not later than twenty (20) business days after the date of entry of this Order (the “Notice Date”), the Claims Administrator shall cause a copy of the Notice and the Proof of Claim Form, substantially in the forms attached hereto as Exhibits 1 and 2, respectively (the “Notice Packet”), to be mailed by first-class mail to potential Settlement Class Members at the addresses set forth in the records provided by State Street or which State Street caused to be provided, or who otherwise may be identified through further reasonable effort; (c) contemporaneously with the mailing of the Notice Packet, the Claims Administrator shall cause copies of the Complaint, Stipulation, Notice and the Proof of Claim 5 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 52 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 51 of 109 Form to be posted on a website to be developed for the Settlement, from which Settlement Class Members may download copies of the Notice and Proof of Claim Form; (d) not later than ten (10) business days after the Notice Date, the Claims Administrator shall cause the Summary Notice, substantially in the form attached hereto as Exhibit 3, to be published once the national edition of The Wall Street Journal and to be transmitted once over the PR Newswire; and (e) not later than seven (7) calendar days prior to the Settlement Hearing, Co- Lead Counsel shall serve on Defendants’ Counsel and file with the Court proof, by affidavit or declaration, of such mailing and publication. Such affidavit or declaration will also reflect that the CAFA Notice was mailed by the Claims Administrator as set forth in paragraph 40 of the Stipulation. 8. Approval of Form and Content of Notice – The Court (a) approves, as to form and content, the Notice, the Proof of Claim Form, and the Summary Notice, attached hereto as Exhibits 1, 2, and 3, respectively, and (b) finds that the mailing and distribution of the Notice and Proof of Claim Form and the publication of the Summary Notice in the manner and form set forth in paragraph 7 of this Order (i) is the best notice practicable under the circumstances; (ii) constitutes notice that is reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Action, of the effect of the proposed Settlement (including the Releases to be provided thereunder), of Co-Lead Counsel’s motion for an award an attorneys’ fees and reimbursement of Litigation Expenses, of their right to object to the Settlement, the Plan of Allocation and/or Co-Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses, of their right to exclude themselves from the Settlement Class, and of their right to appear at the Settlement Hearing; (iii) constitutes due, adequate and 6 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 53 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 52 of 109 sufficient notice to all persons and entities entitled to receive notice of the proposed Settlement; and (iv) satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §§ 77z-1 and 78u-4, as amended, and all other applicable law and rules. The date and time of the Settlement Hearing shall be included in the Notice and Summary Notice before they are mailed and published, respectively. 9. Nominee Procedures – Brokers and other nominees who purchased or otherwise acquired State Street common stock during the Settlement Class Period for the benefit of another person or entity shall (a) within ten (10) calendar days of receipt of the Notice, request from the Claims Administrator sufficient copies of the Notice Packet to forward to all such beneficial owners and within ten (10) calendar days of receipt of those Notice Packets forward them to all such beneficial owners; or (b) within ten (10) calendar days of receipt of the Notice, send a list of the names and addresses of all such beneficial owners to the Claims Administrator in which event the Claims Administrator shall promptly mail the Notice Packet to such beneficial owners. Upon full compliance with this Order, such nominees may seek reimbursement of their reasonable expenses actually incurred in complying with this Order by providing the Claims Administrator with proper documentation supporting the expenses for which reimbursement is sought. Such properly documented expenses incurred by nominees in compliance with the terms of this Order shall be paid from the Settlement Fund, with any disputes as to the reasonableness or documentation of expenses incurred subject to review by the Court. 10. Participation in the Settlement – Settlement Class Members who wish to participate in the Settlement and to be eligible to receive a distribution from the Net Settlement Fund must complete and submit a Proof of Claim Form in accordance with the instructions 7 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 54 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 53 of 109 contained therein. Unless the Court orders otherwise, all Proof of Claim Forms must be postmarked no later than one hundred twenty (120) calendar days after the Notice Date. Notwithstanding the foregoing, Co-Lead Counsel may, at their discretion, accept for processing late Claims provided such acceptance does not delay the distribution of the Net Settlement Fund to the Settlement Class. By submitting a Claim, a person or entity shall be deemed to have submitted to the jurisdiction of the Court with respect to his, her or its Claim and the subject matter of the Settlement. 11. Each Proof of Claim Form submitted must satisfy the following conditions: (a) it must be properly completed, signed and submitted in a timely manner in accordance with the provisions of the preceding paragraph; (b) it must be accompanied by adequate supporting documentation for the transactions and holdings reported therein, in the form of broker confirmation slips, broker account statements, an authorized statement from the broker containing the transactional and holding information found in a broker confirmation slip or account statement, or such other documentation as is deemed adequate by Co-Lead Counsel or the Claims Administrator; (c) if the person executing the Proof of Claim Form is acting in a representative capacity, a certification of his, her or its current authority to act on behalf of the Settlement Class Member must be included in the Proof of Claim Form to the satisfaction of Co- Lead Counsel or the Claims Administrator; and (d) the Proof of Claim Form must be complete and contain no material deletions or modifications of any of the printed matter contained therein and must be signed under penalty of perjury. 12. Any Settlement Class Member that does not timely and validly submit a Proof of Claim Form or whose Claim is not otherwise approved by the Court: (a) shall be deemed to have waived his, her or its right to share in the Net Settlement Fund; (b) shall be forever barred from 8 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 55 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 54 of 109 participating in any distributions therefrom; (c) shall be bound by the provisions of the Stipulation and the Settlement and all proceedings, determinations, orders and judgments in the Action relating thereto, including, without limitation, the Judgment or Alternate Judgment, if applicable, and the Releases provided for therein, whether favorable or unfavorable to the Settlement Class; and (d) will be barred from commencing, maintaining or prosecuting any of the Released Plaintiffs’ Claims against any of the Defendants or any of the other Defendants’ Releasees, as more fully described in the Stipulation and Notice. Notwithstanding the foregoing, late Proof of Claim Forms may be accepted for processing as set forth in paragraph 10 above. 13. Exclusion From the Settlement Class – Any member of the Settlement Class who wishes to exclude himself, herself or itself from the Settlement Class must request exclusion in writing within the time and in the manner set forth in the Notice, which shall provide that: (a) any such request for exclusion from the Settlement Class must be mailed or delivered such that it is received no later than twenty-one (21) calendar days prior to the Settlement Hearing, to: Hill v. State Street Corporation, EXCLUSIONS, c/o Epiq Systems, Inc., P.O. Box 2876, Portland, OR 97208-2876, and (b) that each request for exclusion must (i) state the name, address and telephone number of the person or entity requesting exclusion, and in the case of entities the name and telephone number of the appropriate contact person; (ii) state that such person or entity “requests exclusion from the Settlement Class in Hill v. State Street Corporation, Master Docket No. 1:09-cv-12146-GAO”; (iii) state the number of shares of publicly traded State Street common stock that the person or entity requesting exclusion purchased/acquired and/or sold during the Settlement Class Period, as well as the dates and prices of each such purchase/acquisition and sale; and (iv) be signed by the person or entity requesting exclusion or an authorized representative. A request for exclusion shall not be 9 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 56 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 55 of 109 effective unless it provides all the required information and is received within the time stated above, or is otherwise accepted by the Court. 14. Any person or entity who or which timely and validly requests exclusion in compliance with the terms stated in this Order and is excluded from the Settlement Class shall not be a Settlement Class Member, shall not be bound by the terms of the Settlement or any orders or judgments in the Action and shall not receive any payment out of the Net Settlement Fund. 15. Any Settlement Class Member who or which does not timely and validly request exclusion from the Settlement Class in the manner stated in this Order: (a) shall be deemed to have waived his, her or its right to be excluded from the Settlement Class; (b) shall be forever barred from requesting exclusion from the Settlement Class in this or any other proceeding; (c) shall be bound by the provisions of the Stipulation and Settlement and all proceedings, determinations, orders and judgments in the Action, including, but not limited to, the Judgment or Alternate Judgment, if applicable, and the releases provided for therein, whether favorable or unfavorable to the Settlement Class; and (d) will be barred from commencing, maintaining or prosecuting any of the Released Plaintiffs’ Claims against any of the Defendants and the other Defendants’ Releasees, as more fully described in the Stipulation and Notice. 16. Appearance and Objections at Settlement Hearing – Any Settlement Class Member who does not request exclusion from the Settlement Class may enter an appearance in the Action, at his, her or its own expense, individually or through counsel of his, her or its own choice, by filing with the Clerk of Court and delivering a notice of appearance to both Representative Co-Lead Counsel and Representative Defendants’ Counsel, at the addresses set forth in paragraph 17 below, such that it is received no later than twenty-one (21) calendar days 10 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 57 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 56 of 109 prior to the Settlement Hearing, or as the Court may otherwise direct. Any Settlement Class Member who does not enter an appearance will be represented by Co-Lead Counsel. 17. Any Settlement Class Member who does not request exclusion from the Settlement Class may file a written objection to the proposed Settlement, the proposed Plan of Allocation, and/or Co-Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses and appear and show cause, if he, she or it has any cause, why the proposed Settlement, the proposed Plan of Allocation and/or Co-Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses should not be approved; provided, however, that no Settlement Class Member shall be heard or entitled to contest the approval of the terms and conditions of the proposed Settlement, the proposed Plan of Allocation and/or the motion for attorneys’ fees and reimbursement of Litigation Expenses unless that person or entity has filed a written objection with the Court and served copies of such objection on Representative Co-Lead Counsel and Representative Defendants’ Counsel at the addresses set forth below such that they are received no later than twenty-one (21) calendar days prior to the Settlement Hearing. Representative Co-Lead Counsel Representative Defendants’ Counsel Bernstein Litowitz Berger & Wilmer Cutler Pickering Hale Grossmann LLP and Dorr LLP John C. Browne, Esq. William H. Paine, Esq. 1285 Avenue of the Americas 60 State Street New York, NY 10019 Boston, MA 02109 18. Any objections, filings and other submissions by the objecting Settlement Class Member (a) must state the name, address and telephone number of the person or entity objecting and must be signed by the objector; (b) must contain a statement of the Settlement Class Member’s objection or objections, and the specific reasons for each objection, including any 11 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 58 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 57 of 109 legal and evidentiary support the Settlement Class Member wishes to bring to the Court’s attention; and (c) must include documents sufficient to prove membership in the Settlement Class, including the number of shares of publicly traded State Street common stock that the objecting Settlement Class Member purchased/acquired and/or sold during the Settlement Class Period, as well as the dates and prices of each such purchase/acquisition and sale. 19. Any Settlement Class Member who or which does not make his, her or its objection in the manner provided herein shall be deemed to have waived his, her or its right to object to any aspect of the proposed Settlement, the proposed Plan of Allocation, and Co-Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses and shall be forever barred and foreclosed from objecting to the fairness, reasonableness or adequacy of the Settlement, the Plan of Allocation or the requested attorneys’ fees and Litigation Expenses, or from otherwise being heard concerning the Settlement, the Plan of Allocation or the requested attorneys’ fees and Litigation Expenses in this or any other proceeding. 20. Stay and Temporary Injunction – Until otherwise ordered by the Court, the Court stays all proceedings in the Action other than proceedings necessary to carry out or enforce the terms and conditions of the Stipulation. Pending final determination of whether the Settlement should be approved, the Court bars and enjoins Plaintiffs, and all other members of the Settlement Class, from commencing or prosecuting any and all of the Released Plaintiffs’ Claims against each and all of the Defendants’ Releasees. 21. Settlement Administration Fees and Expenses – All reasonable costs incurred in identifying Settlement Class Members and notifying them of the Settlement as well as in administering the Settlement shall be paid as set forth in the Stipulation without further order of the Court. 12 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 59 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 58 of 109 22. Settlement Fund – The contents of the Settlement Fund held by Valley National Bank (which the Court approves as the Escrow Agent), shall be deemed and considered to be in custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until such time as they shall be distributed pursuant to the Stipulation and/or further order(s) of the Court. 23. Taxes – Co-Lead Counsel are authorized and directed to prepare any tax returns and any other tax reporting form for or in respect of the Settlement Fund, to pay from the Settlement Fund any Taxes owed with respect to the Settlement Fund, and to otherwise perform all obligations with respect to Taxes and any reporting or filings in respect thereof without further order of the Court in a manner consistent with the provisions of the Stipulation. 24. Termination of Settlement – If the Settlement is terminated as provided in the Stipulation, the Settlement is not approved, or the Effective Date of the Settlement otherwise fails to occur, this Order shall be vacated, rendered null and void and be of no further force and effect, except as otherwise provided by the Stipulation, and this Order shall be without prejudice to the rights of Plaintiffs, the other Settlement Class Members and Defendants, and the Plaintiffs and Defendants shall revert to their respective positions in the Action immediately prior to March 12, 2014, as provided in the Stipulation. 25. Use of this Order – Neither this Order, the Term Sheet, the Stipulation (whether or not consummated), including the exhibits thereto and the Plan of Allocation contained therein (or any other plan of allocation that may be approved by the Court), the negotiations leading to the execution of the Term Sheet and the Stipulation, nor any proceedings taken pursuant to or in connection with the Term Sheet, the Stipulation and/or approval of the Settlement (including any arguments proffered in connection therewith): (a) shall be offered against any of the Defendants or any of the other Defendants’ Releasees as evidence of, or construed as, or deemed to be 13 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 60 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 59 of 109 evidence of any presumption, concession, or admission by any of the Defendants or any of the other Defendants’ Releasees with respect to the truth of any fact alleged by Plaintiffs or the validity of any claim that was or could have been asserted or the deficiency of any defense that has been or could have been asserted in this Action or in any other litigation, or of any liability, negligence, fault, or other wrongdoing of any kind of any of the Defendants or any of the other Defendants’ Releasees or in any way referred to for any other reason as against any of the Defendants or any of the other Defendants’ Releasees, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Stipulation; (b) shall be offered against any of the Plaintiffs or any of the other Plaintiffs’ Releasees, as evidence of, or construed as, or deemed to be evidence of any presumption, concession or admission by any of the Plaintiffs or any of the other Plaintiffs’ Releasees that any of their claims are without merit, that any of the Defendants or any of the other Defendants’ Releasees had meritorious defenses, or that damages recoverable under the Complaint would not have exceeded the Settlement Amount or with respect to any liability, negligence, fault or wrongdoing of any kind, or in any way referred to for any other reason as against any of the Plaintiffs or any of the other Plaintiffs’ Releasees, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; or (c) shall be construed against any of Releasees as an admission, concession, or presumption that the consideration to be given under the Settlement represents the amount which could be or would have been recovered after trial; provided, however, that if the Stipulation is approved by the Court, the Parties and the Releasees and their respective counsel may refer to it to effectuate the protections from liability granted thereunder or otherwise to enforce the terms of the Settlement. 14 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 61 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 60 of 109 26. Supporting Papers – Co-Lead Counsel shall file and serve the opening papers in support of the proposed Settlement, the Plan of Allocation, and Co-Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses no later than thirty-five (35) calendar days prior to the Settlement Hearing; and reply papers, if any, shall be filed and served no later than seven (7) calendar days prior to the Settlement Hearing. 27. The Court retains jurisdiction to consider all further applications arising out of or connected with the proposed Settlement. SO ORDERED this ______day of ______, 2014. ______[George A. O’Toole, Jr. United States District Judge or Judith G. Dein United States Magistrate Judge] #806101 15 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 62 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 61 of 109 Exhibit A-1 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 63 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 62 of 109 Exhibit A-1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS HILL v. STATE STREET CORPORATION ) ______) ) Master Docket No.1:09-cv-12146-GAO THIS DOCUMENT RELATES TO THE ) SECURITIES ACTION ) ) DOCKET NO. 09-cv-12146-GAO ) NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES A Federal Court authorized this Notice. This is not a solicitation from a lawyer. NOTICE OF PENDENCY OF CLASS ACTION: Please be advised that your rights may be affected by the above-captioned securities class action (the “Action”) pending in the United States District Court for the District of Massachusetts (the “Court”), if, during the period from October 17, 2006 through October 21, 2009, inclusive (the “Settlement Class Period”), you purchased or otherwise acquired publicly traded common stock of State Street Corporation (“State Street”), including if you purchased or otherwise acquired State Street common stock pursuant and/or traceable to a registered public offering conducted on or about June 3, 2008, and were damaged thereby.1 NOTICE OF SETTLEMENT: Please also be advised that the Court-appointed Lead Plaintiffs, the Public Employees’ Retirement System of Mississippi and Union Asset Management Holding AG (“Lead Plaintiffs”), on behalf of themselves and the Settlement Class (as defined in ¶ 21 below), have reached a proposed settlement of the Action for $60,000,000 in cash that, if approved, will resolve all claims in the Action (the “Settlement”). PLEASE READ THIS NOTICE CAREFULLY. This Notice explains important rights you may have, including the possible receipt of cash from the Settlement. If you are a member of the Settlement Class, your legal rights will be affected whether or not you act. If you have any questions about this Notice, the proposed Settlement, or your eligibility to participate in the Settlement, please DO NOT contact State Street, any other Defendants in the Action, or their counsel. All questions should be directed to Co-Lead Counsel or the Claims Administrator (see ¶ 79 below). 1 Any capitalized terms used in this Notice that are not otherwise defined herein shall have the meanings ascribed to them in the Stipulation and Agreement of Settlement dated July 8, 2014 (the “Stipulation”), which is available at www.statestreetclassactionsettlement.com. Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 64 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 63 of 109 1. Description of the Action and the Settlement Class: This Notice relates to a proposed Settlement of claims in a pending securities class action brought by investors alleging that Defendants (as defined in paragraph 30 below) violated the federal securities laws by, among other things, making false and misleading statements regarding State Street’s foreign exchange business and the quality of assets held in State Street’s investment portfolio and in off-balance sheet entities known as conduits. The Defendants deny these claims. A more detailed description of the Action is set forth in paragraphs 11-20 below. The proposed Settlement, if approved by the Court, will settle claims in the Action of the Settlement Class, as defined in paragraph 21 below. [The Action is pending before United States District Judge George A. O’Toole. Judge O’Toole has, with the consent of the parties, assigned to United States Magistrate Judge Judith G. Dein the responsibility to consider approval of the proposed settlement (including the manner in which notice will be provided) and the proposed Plan of Allocation of the Settlement proceeds if the Settlement is approved, as well as the motion for an award of attorneys’ fees and reimbursement of Litigation Expenses, and all matters relating to the proposed settlement including any objections that may be filed. Judge Dein’s rulings on these matters will be final; they will not be reviewed by Judge O’Toole.] 2. Statement of the Settlement Class’s Recovery: Subject to Court approval, Lead Plaintiffs, on behalf of themselves and the Settlement Class, have agreed to settle the Action in exchange for a settlement payment of $60,000,000 in cash (the “Settlement Amount”) to be deposited into an escrow account. The Net Settlement Fund (i.e., the Settlement Amount plus any and all interest earned thereon (the “Settlement Fund”) less (a) any Taxes, (b) any Notice and Administration Costs, (c) any Litigation Expenses awarded by the Court, and (d) any attorneys’ fees awarded by the Court) will be distributed in accordance with a plan of allocation that is approved by the Court, which will determine how the Net Settlement Fund shall be allocated among members of the Settlement Class. The proposed plan of allocation (the “Plan of Allocation”) is set forth on pages __-__ below. 3. Estimate of Average Amount of Recovery Per Share: Based on Lead Plaintiffs’ damages expert’s estimate of the number of shares of publicly traded State Street common stock purchased during the Settlement Class Period that may have been affected by the conduct at issue in the Action and assuming that all Settlement Class Members elect to participate in the Settlement, the estimated average recovery (before the deduction of any Court-approved fees, expenses and costs as described herein) is $0.19 per eligible share. Settlement Class Members should note, however, that the foregoing average recovery per share is only an estimate. Some Settlement Class Members may recover more or less than this estimated amount depending on, among other factors, when and at what prices they purchased/acquired or sold their State Street common stock, and the total number of valid claim forms submitted. Distributions to Settlement Class Members will be made based on the Plan of Allocation set forth herein (see pages __-__ below) or such other plan of allocation as may be ordered by the Court. 4. Average Amount of Damages Per Share: The Parties do not agree on the average amount of damages per share that would be recoverable if Lead Plaintiffs were to prevail in the Action. Among other things, Defendants do not agree with the assertion that they violated the federal securities laws or that any damages were suffered by any members of the Settlement Class as a result of their conduct. 2 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 65 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 64 of 109 5. Attorneys’ Fees and Expenses Sought: Plaintiffs’ Counsel, which have been prosecuting the Action on a wholly contingent basis since 2010, have not received any payment of attorneys’ fees for their representation of the Settlement Class and have advanced the funds to pay expenses necessarily incurred to prosecute this Action. Court-appointed Co-Lead Counsel, Bernstein Litowitz Berger & Grossmann LLP and Motley Rice LLC, will apply to the Court for an award of attorneys’ fees for all Plaintiffs’ Counsel in an amount not to exceed 17% of the Settlement Fund. In addition, Co-Lead Counsel will apply for reimbursement of Litigation Expenses paid or incurred in connection with the institution, prosecution and resolution of the claims against Defendants, in an amount not to exceed $1,300,000, which may include an application for reimbursement of the reasonable costs and expenses incurred by Plaintiffs directly related to their representation of the Settlement Class. Any fees and expenses awarded by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses. Estimates of the average cost per affected share of State Street common stock, if the Court approves Co-Lead Counsel’s fee and expense application, is $0.04 per share. 6. Identification of Attorneys’ Representatives: Lead Plaintiffs and the Settlement Class are represented by John C. Browne, Esq. of Bernstein Litowitz Berger & Grossmann LLP, 1285 Avenue of the Americas, New York, NY 10019, (800) 380-8496, [email protected] and William H. Narwold, Esq. of Motley Rice LLC., 28 Bridgeside Blvd., Mt. Pleasant, SC 29464, (843) 216-9000, [email protected]. 7. Reasons for the Settlement: Lead Plaintiffs’ principal reason for entering into the Settlement is the substantial immediate cash benefit for the Settlement Class without the risk or the delays inherent in further litigation. Moreover, the substantial cash benefit provided under the Settlement must be considered against the significant risk that a smaller recovery – or indeed no recovery at all – might be achieved after contested motions, a trial of the Action and likely appeals that would follow a trial, a process that could be expected to last several years. Defendants, who deny all allegations of wrongdoing or liability whatsoever, are entering into the Settlement solely to eliminate the uncertainty, distraction, burden and expense of further protracted litigation. YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT: SUBMIT A CLAIM FORM This is the only way to be eligible to receive a payment from POSTMARKED NO LATER the Settlement Fund. If you are a Settlement Class Member THAN ______, 2014. and you remain in the Settlement Class, you will be bound by the Settlement as approved by the Court and you will give up any Released Plaintiffs’ Claims (defined in ¶ 31 below) that you have against Defendants and the other Defendants’ Releasees (defined in ¶ 32 below), so it is in your interest to submit a Claim Form. 3 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 66 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 65 of 109 EXCLUDE YOURSELF If you exclude yourself from the Settlement Class, you will FROM THE SETTLEMENT not be eligible to receive any payment from the Settlement CLASS BY SUBMITTING A Fund. This is the only option that allows you ever to be part WRITTEN REQUEST FOR of any other lawsuit against any of the Defendants or the EXCLUSION SO THAT IT other Defendants’ Releasees concerning the Released IS RECEIVED NO LATER Plaintiffs’ Claims. THAN ______, 2014. OBJECT TO THE If you do not like the proposed Settlement, the proposed Plan SETTLEMENT BY of Allocation, or the request for attorneys’ fees and SUBMITTING A WRITTEN reimbursement of Litigation Expenses, you may write to the OBJECTION SO THAT IT Court and explain why you do not like them. You cannot IS RECEIVED NO LATER object to the Settlement, the Plan of Allocation or the fee and THAN ______, 2014. expense request unless you are a Settlement Class Member and do not exclude yourself from the Settlement Class. GO TO A HEARING ON Filing a written objection and notice of intention to appear by ______, 2014 AT ______, 2014 allows you to speak in Court, at the __:__ __.M., AND FILE A discretion of the Court, about the fairness of the proposed NOTICE OF INTENTION Settlement, the Plan of Allocation, and/or the request for TO APPEAR SO THAT IT attorneys’ fees and reimbursement of Litigation Expenses. If IS RECEIVED NO LATER you submit a written objection, you may (but you do not have THAN ______, 2014. to) attend the hearing and, at the discretion of the Court, speak to the Court about your objection. DO NOTHING. If you are a member of the Settlement Class and you do not submit a valid Claim Form, you will not be eligible to receive any payment from the Settlement Fund. You will, however, remain a member of the Settlement Class, which means that you give up your right to sue about the claims that are resolved by the Settlement and you will be bound by any judgments or orders entered by the Court in the Action. WHAT THIS NOTICE CONTAINS Why Did I Get This Notice? Page __ What Is This Case About? Page __ How Do I Know If I Am Affected By The Settlement? Who Is Included In The Settlement Class? Page __ What Are Lead Plaintiffs’ Reasons For The Settlement? Page __ What Might Happen If There Were No Settlement? Page __ How Are Settlement Class Members Affected By The Action And The Settlement? Page __ How Do I Participate In The Settlement? What Do I Need To Do? Page __ How Much Will My Payment Be? Page __ What Payment Are The Attorneys For The Settlement Class Seeking? 4 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 67 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 66 of 109 How Will The Lawyers Be Paid? Page __ What If I Do Not Want To Be A Member Of The Settlement Class? How Do I Exclude Myself? Page __ When And Where Will The Court Decide Whether To Approve The Settlement? Do I Have To Come To The Hearing? May I Speak At The Hearing If I Don’t Like The Settlement? Page __ What If I Bought Shares On Someone Else’s Behalf? Page __ Can I See The Court File? Whom Should I Contact If I Have Questions? Page __ WHY DID I GET THIS NOTICE? 8. The Court directed that this Notice be mailed to you because you or someone in your family or an investment account for which you serve as a custodian may have purchased or otherwise acquired publicly traded State Street common stock during the Settlement Class Period. The Court has directed us to send you this Notice because, as a potential Settlement Class Member, you have a right to know about your options before the Court rules on the proposed Settlement. Additionally, you have the right to understand how this class action lawsuit may generally affect your legal rights. If the Court approves the Settlement, and the Plan of Allocation (or some other plan of allocation), the claims administrator selected by Lead Plaintiffs and approved by the Court will make payments pursuant to the Settlement after any objections and appeals are resolved. 9. The purpose of this Notice is to inform you of the existence of this case, that it is a class action, how you might be affected, and how to exclude yourself from the Settlement Class if you wish to so do. It is also being sent to inform you of the terms of the proposed Settlement, and of a hearing to be held by the Court to consider the fairness, reasonableness, and adequacy of the Settlement, the proposed Plan of Allocation and the motion by Co-Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses (the “Settlement Hearing”). See paragraph 70 below for details about the Settlement Hearing, including the date and location of the hearing. 10. The issuance of this Notice is not an expression of any opinion by the Court concerning the merits of any claim in the Action, and the Court still has to decide whether to approve the Settlement. If the Court approves the Settlement and a plan of allocation, then payments to Authorized Claimants will be made after any appeals are resolved and after the completion of all claims processing. Please be patient, as this process can take some time to complete. WHAT IS THIS CASE ABOUT? 11. Beginning on December 18, 2009, two class action complaints were filed in the United States District Court for the District of Massachusetts (the “Court”). By order dated May 25, 2010, the Court ordered that these cases be consolidated for all purposes as this Action, approved the appointment of Lead Plaintiffs and Co-Lead Counsel, and approved the appointment of Berman DeValerio as liaison counsel for the class. 12. On July 29, 2010, Lead Plaintiffs filed and served their Consolidated Amended Class Action Complaint (the “Complaint”). The Complaint asserted claims against State Street, Ronald E. Logue and Edward J. Resch under Section 10(b) of the Securities Exchange Act of 5 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 68 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 67 of 109 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder and against Logue and Resch under Section 20(a) of the Exchange Act, alleging that these defendants made, or controlled others who made, materially false and misleading statements and failed to disclose material facts about (i) State Street’s foreign exchange business, (ii) the quality of State Street’s internal controls, and (iii) the quality of assets held in State Street’s investment portfolio and in off-balance-sheet entities known as conduits. The Complaint alleged that these false and misleading statements and material omissions caused the price of State Street common stock to be artificially inflated. The Complaint also asserted claims against all Defendants under Section 11 of the Securities Act of 1933 (the “Securities Act”); against State Street and the Underwriter Defendants under Section 12(a)(2) of the Securities Act; and against certain of the Individual Defendants under Section 15 of the Securities Act, alleging that the defendants named in the Securities Act claims were statutorily liable for the allegedly materially untrue statements and misleading omissions in the registration statement and offering documents for a public offering of State Street common stock that occurred in June 2008. 13. On September 24, 2010, Defendants filed and served their motions to dismiss the Complaint. The motions were fully briefed and the Court heard oral argument on February 16 and 17, 2011. On August 3, 2011, the Court entered its Memorandum and Order denying Defendants’ motions. 14. On September 30, 2011, Defendants filed and served their answers to the Complaint. Defendants denied all liability and interposed a variety of defenses to the claims set forth in the Complaint. 15. Following the entry of the Court’s opinion on Defendants’ motions to dismiss, the Parties engaged in extensive fact discovery. Document discovery included numerous document requests and interrogatories and resulted in the production of more than 24 million pages of documents that were reviewed and analyzed by Plaintiffs’ Counsel. Beginning in September 2013, Lead Plaintiffs took the depositions of witnesses, including senior officers of State Street. The Parties also engaged in extensive discovery relating to class certification, which included Plaintiffs’ production of hundreds of thousands of pages of documents to Defendants and the depositions of three Plaintiffs’ representatives. Discovery was vigorously contested. There were over 20 discovery motions brought by the various Parties, and there were approximately fifteen hearings before the magistrate judge who oversaw discovery issues in the Action. 16. On October 28, 2013, Lead Plaintiffs filed their motion for class certification. Defendants had not filed their responses to the motion and the Court had not taken any action on the motion at the time that the agreement in principle to settle the Action was reached. 17. On March 12, 2014, following arm’s-length settlement negotiations, Lead Plaintiffs and State Street reached an agreement in principle to settle the Action for a cash payment of $60,000,000 to be made on behalf of State Street for the benefit of the Settlement Class. 18. Based on their investigation and prosecution of the case, Lead Plaintiffs and Co-Lead Counsel have concluded that the terms and conditions of the proposed Settlement are fair, reasonable and adequate to Lead Plaintiffs and the other members of the Settlement Class, and in their best interests. Based on Lead Plaintiffs’ direct oversight of the prosecution of this matter and with the advice of their counsel, each of the Lead Plaintiffs has agreed to settle and release the claims raised in the Action pursuant to the terms and provisions of the Stipulation, after considering (a) the substantial financial benefit that Lead Plaintiffs and the other members of the 6 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 69 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 68 of 109 Settlement Class will receive under the proposed Settlement; (b) the significant risks of continued litigation and trial; and (c) the desirability of permitting the Settlement to be consummated as provided by the terms of the Stipulation. 19. Defendants are entering into the Stipulation solely to eliminate the uncertainty, distraction, burden and expense of further protracted litigation. Each of the Defendants denies any wrongdoing, and the Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any of the Defendants, or any other of the Defendants’ Releasees (defined in ¶ 32 below), with respect to any claim or allegation of any fault or liability or wrongdoing or damage whatsoever, or any infirmity in the defenses that the Defendants have, or could have, asserted. Similarly, the Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any Lead Plaintiff of any infirmity in any of the claims asserted in the Action or an admission or concession that any of the Defendants’ defenses to liability had any merit. 20. On ______, 2014, the Court preliminarily approved the Settlement, authorized this Notice to be disseminated to potential Settlement Class Members, and scheduled the Settlement Hearing to consider whether to grant final approval to the Settlement. HOW DO I KNOW IF I AM AFFECTED BY THE SETTLEMENT? WHO IS INCLUDED IN THE SETTLEMENT CLASS? 21. If you are a member of the Settlement Class, you are subject to the Settlement, unless you timely request to be excluded. The Settlement Class consists of: all persons and entities who or which purchased or otherwise acquired publicly traded common stock of State Street during the period from October 17, 2006 through October 21, 2009, inclusive (the “Settlement Class Period”), including all persons and entities who or which purchased or otherwise acquired State Street common stock pursuant and/or traceable to a registered public offering conducted on or about June 3, 2008, and who were damaged thereby. Excluded from the Settlement Class are (a) Defendants; (b) members of the Immediate Families2 of the Individual Defendants; (c) the subsidiaries and affiliates of State Street (provided, that no ERISA plan for the benefit of any employees of State Street shall be excluded), the Underwriter Defendants, and Ernst & Young; (d) any person or entity who is a partner, chief executive officer, executive vice president, chief financial officer, principal accounting officer (or if there is no such accounting officer, the controller), director, member, or controlling person of State Street, any Underwriter Defendant, or Ernst & Young; (e) any entity in which any Defendant has a controlling interest; and (f) the legal representatives, heirs, successors and assigns of any such excluded party; provided, however, that any Investment Vehicle3 shall not be excluded from the 2 “Immediate Family” means children, stepchildren, parents, stepparents, spouses, siblings, mothers-in-law, fathers- in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law. As used in this paragraph, “spouse” shall mean a husband, a wife, or a partner in a state-recognized domestic relationship or civil union. 3 “Investment Vehicle” means any investment company, pooled investment fund or customer account of a Defendant, including but not limited to mutual fund families, exchange-traded funds, fund of funds, and hedge funds, in which any Defendant has or may have a direct or indirect interest or as to which its affiliates may act as an 7 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 70 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 69 of 109 Settlement Class. Also excluded from the Settlement Class are any persons or entities who or which exclude themselves by submitting a request for exclusion in accordance with the requirements set forth in this Notice. See “What if I Do Not Want To Be A Member Of The Settlement Class? How Do I Exclude Myself,” on page [__] below. PLEASE NOTE: RECEIPT OF THIS NOTICE DOES NOT MEAN THAT YOU ARE A SETTLEMENT CLASS MEMBER OR THAT YOU WILL BE ENTITLED TO RECEIVE PROCEEDS FROM THE SETTLEMENT. IF YOU ARE A SETTLEMENT CLASS MEMBER AND YOU WISH TO BE ELIGIBLE TO PARTICIPATE IN THE DISTRIBUTION OF PROCEEDS FROM THE SETTLEMENT, YOU ARE REQUIRED TO SUBMIT THE CLAIM FORM THAT IS BEING DISTRIBUTED WITH THIS NOTICE AND THE REQUIRED SUPPORTING DOCUMENTATION AS SET FORTH THEREIN POSTMARKED NO LATER THAN ______, 2014. WHAT ARE LEAD PLAINTIFFS’ REASONS FOR THE SETTLEMENT? 22. Lead Plaintiffs and Co-Lead Counsel believe that the claims asserted against Defendants have merit. They recognize, however, the expense and length of continued proceedings necessary to pursue their claims against the remaining Defendants through trial and appeals, as well as the very substantial risks they would face in establishing liability and damages. While Lead Plaintiffs allege that State Street’s foreign exchange revenues were artificially inflated by the addition of an undisclosed and unauthorized “mark-up” to each transaction for its custodial clients, Defendants contend that State Street’s custodial contracts generally did not prohibit it from setting rates for indirect foreign exchange transactions in the way that it did and that there was nothing illicit or improper about the way it conducted its indirect foreign exchange business during the Settlement Class Period. Lead Plaintiffs also faced significant risks in establishing that the declines in the prices of State Street common stock were caused by revelation of the alleged false and misleading statements made by Defendants, rather than other news concerning State Street. Plaintiffs would have to prevail at several stages – including motions for summary judgment, trial, and if they prevailed on those, on the appeals that were likely to follow. Thus, there were very significant risks attendant to the continued prosecution of the Action. 23. In light of these risks, the amount of the Settlement and the immediacy of recovery to the Settlement Class, Lead Plaintiffs and Co-Lead Counsel believe that the proposed Settlement is fair, reasonable and adequate, and in the best interests of the Settlement Class. Lead Plaintiffs and Co-Lead Counsel believe that the Settlement provides a substantial benefit to the Settlement Class, namely $60,000,000 in cash (less the various deductions described in this Notice), as compared to the risk that the claims in the Action would produce a smaller, or no recovery after summary judgment, trial and appeals, possibly years in the future. 24. Defendants have denied the claims asserted against them in the Action and deny having engaged in any wrongdoing or violation of law of any kind whatsoever. Defendants have agreed to the Settlement solely to eliminate the uncertainty, burden, distraction and expense of continued litigation. Accordingly, the Settlement may not be construed as an admission of any wrongdoing by Defendants. investment advisor or custodian but of which any Defendant or any of its respective affiliates is not a majority owner or does not hold a majority beneficial interest. 8 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 71 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 70 of 109 WHAT MIGHT HAPPEN IF THERE WERE NO SETTLEMENT? 25. If there were no Settlement and Lead Plaintiffs failed to establish any essential legal or factual element of their claims against Defendants, neither Lead Plaintiffs nor the other members of the Settlement Class would recover anything from Defendants. Also, if Defendants were successful in proving any of their defenses, either at summary judgment, at trial or on appeal, the Settlement Class could recover substantially less than the amount provided in the Settlement, or nothing at all. HOW ARE SETTLEMENT CLASS MEMBERS AFFECTED BY THE ACTION AND THE SETTLEMENT? 26. As a Settlement Class Member, you are represented by Lead Plaintiffs and Co-Lead Counsel, unless you enter an appearance through counsel of your own choice at your own expense. You are not required to retain your own counsel, but if you choose to do so, such counsel must file a notice of appearance on your behalf and must serve copies of his or her appearance on the attorneys listed in the section entitled, “When And Where Will The Court Decide Whether To Approve The Settlement?,” below. 27. If you are a Settlement Class Member and do not wish to remain a Settlement Class Member, you may exclude yourself from the Settlement Class by following the instructions in the section entitled, “What If I Do Not Want To Be A Member Of The Settlement Class? How Do I Exclude Myself?,” below. 28. If you are a Settlement Class Member and you wish to object to the Settlement, the Plan of Allocation, or Co-Lead Counsel’s application for attorneys’ fees and reimbursement of Litigation Expenses, and if you do not exclude yourself from the Settlement Class, you may present your objections by following the instructions in the section entitled, “When And Where Will The Court Decide Whether To Approve The Settlement?,” below. 29. If you are a Settlement Class Member and you do not exclude yourself from the Settlement Class, you will be bound by any orders issued by the Court. If the Settlement is approved, the Court will enter a judgment (the “Judgment”). The Judgment will dismiss with prejudice the claims against Defendants and will provide that, upon the Effective Date of the Settlement, Plaintiffs and other members of the Settlement Class, on behalf of themselves and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, will have fully, finally and forever compromised, settled, remised, released, resolved, relinquished, waived and discharged Defendants and the other Defendants’ Releasees, (as defined in ¶ 32 below) and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, of and from each and every Released Plaintiffs’ Claim (as defined in ¶ 31 below) and shall forever be enjoined from prosecuting any or all of the Released Plaintiffs’ Claims against any of the Defendants’ Releasees. 30. “Defendants” means State Street Corporation, Ronald E. Logue, Edward J. Resch, Pamela D. Gormley, Kennett F. Burnes, Peter Coym, Nader F. Darehshori, Amelia C. Fawcett, David P. Gruber, Linda A. Hill, Charles R. LaMantia, Maureen J. Miskovic, Richard P. Sergel, Ronald L. Skates, Gregory L. Summe, Robert E. Weissman, Goldman, Sachs & Co., Morgan 9 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 72 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 71 of 109 Stanley & Co. LLC (formerly known as Morgan Stanley & Co. Incorporated), Credit Suisse Securities (USA) LLC, UBS Securities LLC and Ernst & Young LLP. 31. “Released Plaintiffs’ Claims” means all individual, representative and class claims, causes of action or rights of recovery of every nature and description, whether known claims or Unknown Claims, direct or indirect, asserted or unasserted, foreseen or unforeseen, matured or unmatured, contingent or vested, whether arising under federal, state, local, statutory, common, foreign or other law, rule or regulation, that Plaintiffs or any other member of the Settlement Class (a) asserted in the Complaint, or (b) could have asserted or could in the future assert in any court or forum based upon, relating to or arising from the allegations, transactions, facts, matters or occurrences, errors, representations, actions, failures to act or omissions that were alleged, set forth, or referred to in the Complaint and that relate in any way, directly or indirectly, to the holding, purchase, or sale of State Street common stock during the Settlement Class Period. Released Plaintiffs’ Claims do not include (i) any claims relating to the enforcement of the Settlement, (ii) any claims that as of May 6, 2014 were or had been asserted in (a) Richard v. State Street Corp., Docket No. 1:10-cv-10184-GAO (D. Mass.); (b) Kenney v. State Street Corp., Docket No. 1:09-cv-10750-DJC (D. Mass.); (c) Operative Plasterers’ & Cement Masons’ Local Union Officers’ & Employees’ Pension Fund v. Hooley, Docket No. 1:12-cv-10767-GAO (D. Mass.); (d) Arkansas Teacher Retirement System v. State Street Bank & Trust Co., Docket No. 1:11-cv-10230-MLW (D. Mass.); (e) Henriquez v. State Street Bank & Trust Co., Docket No. 1:11-cv-12049-MLW (D. Mass.); and/or (f) The Andover Companies Employee Savings & Profit Sharing Plan v. State Street Bank & Trust Co., Docket No. 1:12-cv-11698-MLW (D. Mass.); and (iii) any claims of any person or entity who or which submits a request for exclusion that is accepted by the Court. 32. “Defendants’ Releasees” means the Defendants and State Street Bank and Trust Company, their predecessors, successors, past, present and future parents, subsidiaries and affiliates, and their respective past or present general partners, limited partners, principals, members, officers, directors, trustees, employees, agents, servants, attorneys, accountants, auditors, underwriters, investment advisors, insurers, co-insurers, reinsurers and related or affiliated entities, in their capacities as such and in their capacities as fiduciaries for any ERISA plan for State Street employees. 33. “Unknown Claims” means any Released Plaintiffs’ Claims which any Plaintiff or any other Settlement Class Member does not know or suspect to exist in his, her or its favor at the time of the release of such claims, and any Released Defendants’ Claims which any Defendant does not know or suspect to exist in his, her, or its favor at the time of the release of such claims, which, if known by him, her or it, might have affected his, her or its decision(s) with respect to this Settlement. With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date of the Settlement, Lead Plaintiffs, the other Plaintiffs and Defendants shall expressly waive, and each of the other Settlement Class Members shall be deemed to have waived, and by operation of the Judgment or the Alternate Judgment, if applicable, shall have expressly waived, any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle of common law or foreign law, which is similar, comparable, or equivalent to California Civil Code §1542, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if 10 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 73 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 72 of 109 known by him or her must have materially affected his or her settlement with the debtor. Lead Plaintiffs and Defendants acknowledge, and each of the other Settlement Class Members shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for and a key element of the Settlement. 34. The Judgment will also provide that, upon the Effective Date of the Settlement, Defendants, on behalf of themselves and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, will have fully, finally and forever compromised, settled, remised, released, resolved, relinquished, waived and discharged Plaintiffs and the other Plaintiffs’ Releasees (as defined in ¶ 36 below) and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, of and from each and every Released Defendants’ Claim (as defined in ¶ 35 below) and shall forever be enjoined from prosecuting any or all of the Released Defendants’ Claims against any of the Plaintiffs’ Releasees. 35. “Released Defendants’ Claims” means all claims, causes of action or rights of recovery of every nature and description, whether known claims or Unknown Claims, whether direct or indirect, asserted or unasserted, foreseen or unforeseen, matured or unmatured, contingent or vested, whether arising under federal, state, local, statutory, common, foreign or other law, rule or regulation that arise out of or relate in any way to the institution, prosecution, or settlement of the claims against Defendants in the Action. Released Defendants’ Claims do not do not include any claims relating to the enforcement of the Settlement or any claims against any person or entity who or which submits a request for exclusion from the Settlement Class that is accepted by the Court. 36. “Plaintiffs’ Releasees” means all plaintiffs in the Action and their respective attorneys and all other Settlement Class members, and each of the foregoings’ predecessors, successors, past, present and future parents, subsidiaries and affiliates, and their respective past or present general partners, limited partners, principals, members, officers, directors, trustees, employees, agents, servants, attorneys, accountants, auditors, insurers, co-insurers, reinsurers and related or affiliated entities, in their capacities as such. HOW DO I PARTICIPATE IN THE SETTLEMENT? WHAT DO I NEED TO DO? 37. To be eligible for a payment from the proceeds of the Settlement, you must be a member of the Settlement Class and you must timely complete and return the Claim Form with adequate supporting documentation postmarked no later than ______, 2014. A Claim Form is included with this Notice, or you may obtain one from the website maintained by the Claims Administrator for the Settlement, www.statestreetclassactionsettlement.com, or you may request that a Claim Form be mailed to you by calling the Claims Administrator toll free at 1-888-287- 8136. Please retain all records of your ownership of and transactions in State Street common stock, as they may be needed to document your Claim. If you request exclusion from the Settlement Class or do not submit a timely and valid Claim Form, you will not be eligible to share in the Net Settlement Fund. 11 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 74 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 73 of 109 HOW MUCH WILL MY PAYMENT BE? 38. At this time, it is not possible to make any determination as to how much any individual Settlement Class Member may receive from the Settlement. 39. Pursuant to the Settlement, sixty million dollars ($60,000,000) in cash will be paid on behalf of State Street into an escrow account. This Settlement Amount plus any interest earned thereon is referred to as the “Settlement Fund.” If the Settlement is approved by the Court and the Effective Date occurs, the “Net Settlement Fund” (that is, the Settlement Fund less (a) all federal, state and/or local taxes on any income earned by the Settlement Fund and the reasonable costs incurred in connection with determining the amount of and paying taxes owed by the Settlement Fund (including reasonable expenses of tax attorneys and accountants); (b) the costs and expenses incurred in connection with providing notice to Settlement Class Members and administering the Settlement on behalf of Settlement Class Members; and (c) any attorneys’ fees and Litigation Expenses awarded by the Court) will be distributed to Settlement Class Members who submit valid Claim Forms, in accordance with the proposed Plan of Allocation or such other plan of allocation as the Court may approve. 40. The Net Settlement Fund will not be distributed unless and until the Court has approved the Settlement and a plan of allocation, and the time for any petition for rehearing, appeal or review, whether by certiorari or otherwise, has expired. 41. Neither State Street nor any person or entity that paid any portion of the Settlement Amount is entitled to get back any portion of the Settlement Fund once the Court’s order or judgment approving the Settlement becomes Final. Defendants shall not have any liability, obligation or responsibility for the administration of the Settlement, the disbursement of the Net Settlement Fund or the plan of allocation. 42. Approval of the Settlement is independent from approval of a plan of allocation. Any determination with respect to a plan of allocation will not affect the Settlement, if approved. 43. Unless the Court otherwise orders, any Settlement Class Member who fails to submit a Claim Form postmarked on or before ______, 2014 shall be fully and forever barred from receiving payments pursuant to the Settlement but will remain a Settlement Class Member and be subject to the provisions of the Stipulation, including the terms of any Judgment entered and the releases given. This means that each Settlement Class Member releases the Defendants’ Releasees (as defined in ¶ 32 above) of and from the Released Plaintiffs’ Claims (as defined in ¶ 31 above) and will be enjoined and prohibited from filing, prosecuting, or pursuing any of the Released Plaintiffs’ Claims against any of the Defendants’ Releasees whether or not such Settlement Class Member submits a Claim Form. 44. The Court has reserved jurisdiction to allow, disallow, or adjust on equitable grounds the Claim of any Settlement Class Member. 45. Each Claimant shall be deemed to have submitted to the jurisdiction of the Court with respect to his, her or its Claim Form. 46. Only Settlement Class Members, i.e., persons and entities who purchased or otherwise acquired publicly traded State Street common stock during the Settlement Class Period and were damaged as a result of such purchases or acquisitions will be eligible to share in the distribution 12 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 75 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 74 of 109 of the Net Settlement Fund. Persons and entities that are excluded from the Settlement Class by definition or that exclude themselves from the Settlement Class pursuant to request will not be eligible to receive a distribution from the Net Settlement Fund and should not submit Claim Forms. The only security included in the Settlement is State Street common stock. PROPOSED PLAN OF ALLOCATION 47. The objective of the Plan of Allocation is to equitably distribute the Settlement proceeds to those Settlement Class Members who suffered economic losses as a proximate result of the alleged wrongdoing. The calculations made pursuant to the Plan of Allocation are not intended to be estimates of, nor indicative of, the amounts that Settlement Class Members might have been able to recover after a trial. Nor are the calculations pursuant to the Plan of Allocation intended to be estimates of the amounts that will be paid to Authorized Claimants pursuant to the Settlement. The computations under the Plan of Allocation are only a method to weigh the claims of Authorized Claimants against one another for the purposes of making pro rata allocations of the Net Settlement Fund. 48. In developing the Plan of Allocation, Lead Plaintiffs’ damages expert calculated the potential amount of estimated alleged artificial inflation in the per share closing prices of State Street common stock which allegedly was proximately caused by Defendants’ alleged false and misleading statements and omissions. In calculating the estimated alleged artificial inflation allegedly caused by Defendants’ alleged misrepresentations and omissions, Lead Plaintiffs’ damages expert considered price changes in State Street common stock in reaction to certain public announcements regarding State Street in which such alleged misrepresentations and omissions were alleged to have been revealed to the market, adjusting for price changes that were attributable to market or industry forces, the allegations in the Complaint and the evidence developed in support thereof, as advised by Co-Lead Counsel. The estimated potential alleged artificial inflation in State Street common stock is shown in Table A set forth at the end of this Notice. Defendants disagree with Lead Plaintiffs’ damages expert, for among other reasons, because they do not believe that any harm was caused by the statements challenged in the Actions. CALCULATION OF RECOGNIZED LOSS AMOUNTS 49. Based on the formula set forth below, a “Recognized Loss Amount” shall be calculated for each purchase or acquisition of State Street publicly traded common stock during the Settlement Class Period that is listed in the Proof of Claim Form and for which adequate documentation is provided. In the calculations below, if a Recognized Loss Amount calculates to a negative number, that Recognized Loss Amount shall be zero. 50. For each share of State Street common stock purchased or acquired between October 17, 2006 and October 21, 2009, inclusive, and: (a) Sold between October 17, 2006 and the close of trading on October 21, 2009, the Recognized Loss Amount shall be the lesser of: (i) the amount of artificial inflation per share as set forth in Table A on the date of purchase minus the amount of artificial inflation per share as set forth in Table A on the date of the sale; or (ii) purchase/acquisition price minus the sale price. (b) Sold between October 22, 2009 and the close of trading on January 19, 2010, the Recognized Loss Amount shall be the least of: (i) the amount of artificial 13 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 76 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 75 of 109 inflation per share as set forth in Table A on the date of purchase; (ii) the purchase/acquisition price minus the sale price; or (iii) the purchase/acquisition price minus the average closing price between October 22, 2009 and the date of sale as shown on Table B set forth at the end of this Notice. (c) Held as of the close of trading on January 19, 2010, the Recognized Loss Amount shall be the lesser of: (i) the amount of artificial inflation per share as set forth in Table A on the date of purchase; or (ii) the purchase/acquisition price minus $42.54, the average closing price for State Street common stock between October 22, 2009 and January 19, 2010 (the last entry on Table B).4 51. For each share of State Street common stock purchased or acquired from October 17, 2006 through October 21, 2009, inclusive, pursuant to or traceable to the offering of State Street common stock conducted on or about June 3, 2008, if it calculates to a Recognized Loss Amount that is a positive number pursuant to ¶ 50 above, that number shall be increased by 15%. ADDITIONAL PROVISIONS 52. The Net Settlement Fund will be allocated among all Authorized Claimants whose Distribution Amount (defined in paragraph 55 below) is $10.00 or greater. 53. If a Settlement Class Member has more than one purchase/acquisition or sale of publicly traded State Street common stock, purchases/acquisitions and sales shall be matched on a First In, First Out (“FIFO”) basis. Settlement Class Period sales will be matched first against any holdings at the beginning of the Settlement Class Period, and then against purchases/acquisitions in chronological order, beginning with the earliest purchase/acquisition made during the Settlement Class Period. 54. A Claimant’s “Recognized Claim” under the Plan of Allocation shall be the sum of his, her or its Recognized Loss Amounts. 55. The Net Settlement Fund will be distributed to Authorized Claimants on a pro rata basis based on the relative size of their Recognized Claims. Specifically, a “Distribution Amount” will be calculated for each Authorized Claimant, which shall be the Authorized Claimant’s Recognized Claim divided by the total Recognized Claims of all Authorized Claimants, multiplied by the total amount in the Net Settlement Fund. If any Authorized Claimant’s Distribution Amount calculates to less than $10.00, it will not be included in the calculation and no distribution will be made to such Authorized Claimant. 4 Pursuant to PSLRA Section 21D(e)(1) “in any private action arising under this Act in which the plaintiff seeks to establish damages by reference to the market price of a security, the award of damages to the plaintiff shall not exceed the difference between the purchase or sale price paid or received, as appropriate, by the plaintiff for the subject security and the mean trading price of that security during the 90-day period beginning on the date on which the information correcting the misstatement or omission that is the basis for the action is disseminated to the market.” Consistent with the requirements of the PSLRA, Recognized Loss Amounts are reduced to an appropriate extent by taking into account the closing prices of State Street common stock during the 90-day look-back period. The mean (average) closing price for State Street common stock during this 90-day look-back period was $42.54. 14 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 77 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 76 of 109 56. Purchases or acquisitions and sales of State Street common stock shall be deemed to have occurred on the “contract” or “trade” date as opposed to the “settlement” or “payment” date. The receipt or grant by gift, inheritance or operation of law of State Street common stock during the Settlement Class Period shall not be deemed a purchase, acquisition or sale of State Street common stock for the calculation of an Authorized Claimant’s Recognized Loss Amount, nor shall the receipt or grant be deemed an assignment of any claim relating to the purchase/acquisition of any State Street common stock unless (i) the donor or decedent purchased or otherwise acquired such State Street common stock during the Settlement Class Period; (ii) no Claim Form was submitted by or on behalf of the donor, on behalf of the decedent, or by anyone else with respect to those shares; and (iii) it is specifically so provided in the instrument of gift or assignment. 57. The date of covering a “short sale” is deemed to be the date of purchase or acquisition of the State Street common stock. The date of a “short sale” is deemed to be the date of sale of the State Street common stock. Under the Plan of Allocation, however, the Recognized Loss Amount on “short sales” is zero. In the event that a Claimant has an opening short position in State Street common stock, the earliest Settlement Class Period purchases or acquisitions of State Street common stock shall be matched against such opening short position, and not be entitled to a recovery, until that short position is fully covered. 58. Option contracts are not securities eligible to participate in the Settlement. With respect to State Street common stock purchased or sold through the exercise of an option, the purchase/sale date of the common stock is the exercise date of the option and the purchase/sale price of the common stock is the exercise price of the option. 59. To the extent a Claimant had a market gain with respect to his, her, or its overall transactions in State Street common stock during the Settlement Class Period, the value of the Claimant’s Recognized Claim shall be zero. Such Claimants shall in any event be bound by the Settlement. To the extent that a Claimant suffered an overall market loss with respect to his, her, or its overall transactions in State Street common stock during the Settlement Class Period, but that market loss was less than the total Recognized Claim calculated above, then the Claimant’s Recognized Claim shall be limited to the amount of the actual market loss. 60. For purposes of determining whether a Claimant had a market gain with respect to his, her, or its overall transactions in State Street common stock during the Settlement Class Period or suffered a market loss, the Claims Administrator shall determine the difference between (i) the Total Purchase Amount5 and (ii) the sum of the Total Sales Proceeds6 and Holding Value.7 This 5 The “Total Purchase Amount” is the total amount the Claimant paid (excluding commissions and other charges) for all State Street common stock purchased or acquired during the Settlement Class Period. 6 The Claims Administrator shall match any sales of State Street common stock during the Settlement Class Period, first against the Claimant’s opening position in the stock (the proceeds of those sales will not be considered for purposes of calculating market gains or losses). The total amount received (excluding commissions and other charges) for the remaining sales of State Street common stock sold during the Settlement Class Period shall be the “Total Sales Proceeds”. 7 The Claims Administrator shall ascribe a value of $46.68 per share for State Street common stock purchased or acquired during the Settlement Class Period and still held as of the close of trading on October 21, 2009 (the “Holding Value”). 15 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 78 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 77 of 109 difference shall be deemed a Claimant’s market gain or loss with respect to his, her, or its overall transactions in State Street common stock during the Settlement Class Period. 61. After the initial distribution of the Net Settlement Fund, the Claims Administrator shall make reasonable and diligent efforts to have Authorized Claimants cash their distribution checks. To the extent any monies remain in the fund nine (9) months after the initial distribution, if Co- Lead Counsel, in consultation with the Claims Administrator, determine that it is cost-effective to do so, the Claims Administrator shall conduct a re-distribution of the funds remaining after payment of any unpaid fees and expenses incurred in administering the Settlement, including for such re-distribution, to Authorized Claimants who have cashed their initial distributions and who would receive at least $10.00 from such re-distribution. Additional re-distributions to Authorized Claimants who have cashed their prior checks and who would receive at least $10.00 on such additional re-distributions may occur thereafter if Co-Lead Counsel, in consultation with the Claims Administrator, determine that additional re-distributions, after the deduction of any additional fees and expenses incurred in administering the Settlement, including for such re- distributions, would be cost-effective. At such time as it is determined that the re-distribution of funds remaining in the Net Settlement Fund is not cost-effective, the remaining balance shall be contributed to non-sectarian, not-for-profit organization(s) to be recommended by Co-Lead Counsel and approved by the Court. 62. Payment pursuant to the Plan of Allocation, or such other plan of allocation as may be approved by the Court, shall be conclusive against all Authorized Claimants. No person shall have any claim against Lead Plaintiffs, Plaintiffs’ Counsel, Lead Plaintiffs’ damages expert, or the Claims Administrator or other agent designated by Co-Lead Counsel, or the Defendants’ Releasees and/or their respective counsel, arising from distributions made substantially in accordance with the Stipulation, the plan of allocation approved by the Court, or further Orders of the Court. Lead Plaintiffs and Defendants, their respective counsel, Lead Plaintiffs’ damages expert, and all other Releasees shall have no responsibility or liability whatsoever for the investment or distribution of the Settlement Fund, the Net Settlement Fund, the plan of allocation, or the determination, administration, calculation, or payment of any Claim Form or nonperformance of the Claims Administrator, the payment or withholding of taxes (including interest and penalties) owed by the Settlement Fund, or any losses incurred in connection therewith. 63. The Plan of Allocation set forth herein is the plan that is being proposed to the Court for its approval by Lead Plaintiffs after consultation with their damages expert. The Court may approve this plan as proposed or it may modify the Plan of Allocation without further notice to the Settlement Class. Any Orders regarding any modification of the Plan of Allocation will be posted on the settlement website, www.statestreetclassactionsettlement.com. WHAT PAYMENT ARE THE ATTORNEYS FOR THE SETTLEMENT CLASS SEEKING? HOW WILL THE LAWYERS BE PAID? 64. Plaintiffs’ Counsel have not received any payment for their services in pursuing claims against the Defendants on behalf of the Settlement Class, nor have Plaintiffs’ Counsel been reimbursed for their out-of-pocket expenses. Before final approval of the Settlement, Co-Lead Counsel will apply to the Court for an award of attorneys’ fees for all Plaintiffs’ Counsel in an amount not to exceed 17% of the Settlement Fund. At the same time, Co-Lead Counsel also intend to apply for reimbursement of Litigation Expenses in an amount not to exceed 16 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 79 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 78 of 109 $1,300,000, which may include an application for reimbursement of the reasonable costs and expenses incurred by Plaintiffs directly related to their representation of the Settlement Class. The Court will determine the amount of any award of attorneys’ fees or reimbursement of Litigation Expenses. Such sums as may be approved by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses. WHAT IF I DO NOT WANT TO BE A MEMBER OF THE SETTLEMENT CLASS? HOW DO I EXCLUDE MYSELF? 65. Each Settlement Class Member will be bound by all determinations and judgments in this lawsuit, whether favorable or unfavorable, unless such person or entity mails or delivers a written Request for Exclusion from the Settlement Class, addressed to Hill v. State Street Corporation, EXCLUSIONS, c/o Epiq Systems, Inc., P.O. Box 2876, Portland, OR 97208-2876. The exclusion request must be received no later than ______, 2014. You will not be able to exclude yourself from the Settlement Class after that date. Each Request for Exclusion must (a) state the name, address and telephone number of the person or entity requesting exclusion, and in the case of entities the name and telephone number of the appropriate contact person; (b) state that such person or entity “requests exclusion from the Settlement Class in Hill v. State Street Corporation, Master Docket No. 1:09-cv-12146-GAO”; (c) state the number of shares of publicly traded State Street common stock that the person or entity requesting exclusion purchased/acquired and/or sold during the Settlement Class Period (i.e., from October 17, 2006 through October 21, 2009, inclusive), as well as the dates and prices of each such purchase/acquisition and sale; and (d) be signed by the person or entity requesting exclusion or an authorized representative. A Request for Exclusion shall not be valid and effective unless it provides all the information called for in this paragraph and is received within the time stated above, or is otherwise accepted by the Court. 66. If you do not want to be part of the Settlement Class, you must follow these instructions for exclusion even if you have pending, or later file, another lawsuit, arbitration, or other proceeding relating to any Released Plaintiffs’ Claim against any of the Defendants’ Releasees. 67. If you ask to be excluded from the Settlement Class, you will not be eligible to receive any payment out of the Net Settlement Fund. 68. Defendants have the right to terminate the Settlement if valid requests for exclusion are received from persons and entities entitled to be members of the Settlement Class in an amount that exceeds an amount agreed to by Lead Plaintiffs and Defendants. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? DO I HAVE TO COME TO THE HEARING? MAY I SPEAK AT THE HEARING IF I DON’T LIKE THE SETTLEMENT? 69. Settlement Class Members do not need to attend the Settlement Hearing. The Court will consider any submission made in accordance with the provisions below even if a Settlement Class Member does not attend the hearing. You can participate in the Settlement without attending the Settlement Hearing. 17 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 80 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 79 of 109 70. The Settlement Hearing will be held on ______, 2014 at __:__ _.m., before the Honorable [Judith G. Dein/George A. O’Toole] at the United States District Court for the District of Massachusetts, Courtroom __, ___ Floor, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210. The Court reserves the right to approve the Settlement, the Plan of Allocation, Co-Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses and/or any other matter related to the Settlement at or after the Settlement Hearing without further notice to the members of the Settlement Class. 71. Any Settlement Class Member who or which does not request exclusion may object to the Settlement, the proposed Plan of Allocation or Co-Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses. Objections must be in writing. You must file any written objection, together with copies of all other papers and briefs supporting the objection, with the Clerk’s Office at the United States District Court for the District of Massachusetts at the address set forth below on or before ______, 2014. You must also serve the papers on Representative Co-Lead Counsel and on Representative Defendants’ Counsel at the addresses set forth below so that the papers are received on or before ______, 2014. Representative Representative Clerk’s Office Co-Lead Counsel Defendants’ Counsel United States District Court Bernstein Litowitz Berger & Wilmer Cutler Pickering District of Massachusetts Grossmann LLP Hale and Dorr LLP Clerk of the Court John C. Browne, Esq. William H. Paine, Esq. J. J. Moakley U.S. Courthouse 1285 Avenue of the Americas 60 State Street 1 Courthouse Way New York, NY 10019 Boston, MA 02109 Boston, MA 02210 72. Any objection (a) must state the name, address and telephone number of the person or entity objecting and must be signed by the objector; (b) must contain a statement of the Settlement Class Member’s objection or objections, and the specific reasons for each objection, including any legal and evidentiary support the Settlement Class Member wishes to bring to the Court’s attention; and (c) must include documents sufficient to prove membership in the Settlement Class, including the number of shares of publicly traded State Street common stock that the objecting Settlement Class Member purchased/acquired and/or sold during the Settlement Class Period (i.e., from October 17, 2006 through October 21, 2009, inclusive), as well as the dates and prices of each such purchase/acquisition and sale. You may not object to the Settlement, the Plan of Allocation or Co-Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses if you exclude yourself from the Settlement Class or if you are not a member of the Settlement Class. 73. You may file a written objection without having to appear at the Settlement Hearing. You may not, however, appear at the Settlement Hearing to present your objection unless you first filed and served a written objection in accordance with the procedures described above, unless the Court orders otherwise. 74. If you wish to be heard orally at the hearing in opposition to the approval of the Settlement, the Plan of Allocation or Co-Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses, and if you file and serve a timely written objection as 18 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 81 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 80 of 109 described above, you must also file a notice of appearance with the Clerk’s Office and serve it on Representative Co-Lead Counsel and Representative Defendants’ Counsel at the addresses set forth above so that it is received on or before ______, 2014. Persons who intend to object and desire to present evidence at the Settlement Hearing must include in their written objection or notice of appearance the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the hearing. Such persons may be heard orally at the discretion of the Court. 75. You are not required to hire an attorney to represent you in making written objections or in appearing at the Settlement Hearing. However, if you decide to hire an attorney, it will be at your own expense, and that attorney must file a notice of appearance with the Court and serve it on Co-Lead Counsel and Representative Defendants’ Counsel at the addresses set forth in ¶ 71 above so that the notice is received on or before ______, 2014. 76. The Settlement Hearing may be adjourned by the Court without further written notice to the Settlement Class. If you intend to attend the Settlement Hearing, you should confirm the date and time with Co-Lead Counsel. 77. Unless the Court orders otherwise, any Settlement Class Member who does not object in the manner described above will be deemed to have waived any objection and shall be forever foreclosed from making any objection to the proposed Settlement, the proposed Plan of Allocation or Co-Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses. Settlement Class Members do not need to appear at the Settlement Hearing or take any other action to indicate their approval. WHAT IF I BOUGHT SHARES ON SOMEONE ELSE’S BEHALF? 78. If you purchased or otherwise acquired any State Street common stock from October 17, 2006 through October 21, 2009, inclusive, for the beneficial interest of persons or organizations other than yourself, you must either (a) within ten (10) calendar days of receipt of this Notice, request from the Claims Administrator sufficient copies of the Notice and Claim Form (the “Notice Packet”) to forward to all such beneficial owners and within ten (10) calendar days of receipt of those Notice Packets forward them to all such beneficial owners; or (b) within ten (10) calendar days of receipt of this Notice, provide a list of the names and addresses of all such beneficial owners to Hill v. State Street Corporation, c/o Epiq Systems, Inc., P.O. Box 2876, Portland, OR 97208-2876. If you choose the second option, the Claims Administrator will send a copy of the Notice and the Claim Form to the beneficial owners. Upon full compliance with these directions, such nominees may seek reimbursement of their reasonable expenses actually incurred, by providing the Claims Administrator with proper documentation supporting the expenses for which reimbursement is sought. Copies of this Notice and the Claim Form may also be obtained from the website maintained by the Claims Administrator, www.statestreetclassactionsettlement.com, or by calling the Claims Administrator toll-free at 1- 888-287-8136. CAN I SEE THE COURT FILE? WHOM SHOULD I CONTACT IF I HAVE QUESTIONS? 79. This Notice contains only a summary of the terms of the proposed Settlement. For more detailed information about the matters involved in this Action, you are referred to the papers on 19 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 82 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 81 of 109 file in the Action, including the Stipulation, which may be inspected during regular office hours at the Office of the Clerk, United States District Court for the District of Massachusetts, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210. Additionally, copies of the Stipulation and any related orders entered by the Court will be posted on the website maintained by the Claims Administrator, www.statestreetclassactionsettlement.com. All inquiries concerning this Notice and the Claim Form should be directed to: Hill v. State Street Corporation c/o Epiq Systems, Inc. P.O. Box 2876 Portland, OR 97208-2876 888-287-8136 www.statestreetclassactionsettlement.com John C. Browne, Esq. and/or William H. Narwold, Esq. BERNSTEIN LITOWITZ BERGER Motley Rice LLC & GROSSMANN LLP 28 Bridgeside Blvd. 1285 Avenue of the Americas Mt. Pleasant, SC 29464 New York, NY 10019 (843) 216-9000 (800) 380-8496 [email protected] [email protected] DO NOT CALL OR WRITE THE COURT, THE OFFICE OF THE CLERK OF THE COURT, DEFENDANTS OR THEIR COUNSEL REGARDING THIS NOTICE. Dated: ______, 2014 By Order of the Court United States District Court District of Massachusetts # 808322 20 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 83 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 82 of 109 TABLE A Purchase and Sale Inflation October 17, 2006 — October 21, 2009 Transaction Date Inflation October 17, 2006-October 14, 2008 $2.40 October 15, 2008-January 19, 2009 $18.85 January 20, 2009-October 19, 2009 $2.40 October 20, 2009 $1.73 October 21, 2009 $0.71 21 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 84 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 83 of 109 TABLE B State Street Closing Price and Average Closing Price October 22, 2009 — January 19, 2010 Average Closing Average Closing Price Between Price Between Closing 10/22/09 and Date Closing 10/22/09 and Date Date Price Shown Date Price Shown 10/22/2009 $46.68 $46.68 12/4/2009 $41.68 $42.30 10/23/2009 $45.70 $46.19 12/7/2009 $40.84 $42.25 10/26/2009 $44.50 $45.63 12/8/2009 $40.74 $42.21 10/27/2009 $43.25 $45.03 12/9/2009 $41.00 $42.17 10/28/2009 $42.58 $44.54 12/10/2009 $40.56 $42.12 10/29/2009 $44.52 $44.54 12/11/2009 $39.40 $42.05 10/30/2009 $41.98 $44.17 12/14/2009 $39.93 $41.99 11/2/2009 $42.45 $43.96 12/15/2009 $39.80 $41.93 11/3/2009 $42.21 $43.76 12/16/2009 $40.19 $41.89 11/4/2009 $40.64 $43.45 12/17/2009 $39.73 $41.83 11/5/2009 $42.81 $43.39 12/18/2009 $41.60 $41.83 11/6/2009 $41.45 $43.23 12/21/2009 $42.26 $41.84 11/9/2009 $43.73 $43.27 12/22/2009 $43.86 $41.89 11/10/2009 $42.90 $43.24 12/23/2009 $44.64 $41.95 11/11/2009 $42.23 $43.18 12/24/2009 $44.99 $42.02 11/12/2009 $40.66 $43.02 12/28/2009 $44.37 $42.07 11/13/2009 $40.45 $42.87 12/29/2009 $43.96 $42.11 11/16/2009 $40.69 $42.75 12/30/2009 $43.89 $42.15 11/17/2009 $41.86 $42.70 12/31/2009 $43.54 $42.17 11/18/2009 $42.73 $42.70 1/4/2010 $44.46 $42.22 11/19/2009 $41.69 $42.65 1/5/2010 $44.55 $42.26 11/20/2009 $40.80 $42.57 1/6/2010 $43.81 $42.29 11/23/2009 $41.74 $42.53 1/7/2010 $44.60 $42.34 11/24/2009 $41.56 $42.49 1/8/2010 $45.51 $42.40 11/25/2009 $41.30 $42.44 1/11/2010 $44.36 $42.43 11/27/2009 $40.20 $42.36 1/12/2010 $44.20 $42.46 11/30/2009 $41.30 $42.32 1/13/2010 $44.61 $42.50 12/1/2009 $42.72 $42.33 1/14/2010 $43.79 $42.52 12/2/2009 $43.04 $42.36 1/15/2010 $42.67 $42.53 12/3/2009 $41.15 $42.32 1/19/2010 $43.20 $42.54 22 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 85 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 84 of 109 Exhibit A-2 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 86 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 85 of 109 Exhibit A-2 Hill v. State Street Corporation c/o Epiq Systems, Inc. P.O. Box 2876 Portland, OR 97208-2876 888-287-8136 www.statestreetclassactionsettlement.com.com PROOF OF CLAIM AND RELEASE FORM TO BE ELIGIBLE TO RECEIVE A SHARE OF THE NET SETTLEMENT FUND IN CONNECTION WITH THE SETTLEMENT OF THIS ACTION, YOU MUST COMPLETE AND SIGN THIS PROOF OF CLAIM AND RELEASE FORM (“CLAIM FORM”) AND MAIL IT BY PREPAID, FIRST-CLASS MAIL TO THE ABOVE ADDRESS, POSTMARKED NO LATER THAN ______, 2014. FAILURE TO SUBMIT YOUR CLAIM FORM BY THE DATE SPECIFIED WILL SUBJECT YOUR CLAIM TO REJECTION AND MAY PRECLUDE YOU FROM BEING ELIGIBLE TO RECOVER ANY MONEY IN CONNECTION WITH THE SETTLEMENT. DO NOT MAIL OR DELIVER YOUR CLAIM FORM TO THE COURT, THE PARTIES TO THIS ACTION, OR THEIR COUNSEL. SUBMIT YOUR CLAIM FORM ONLY TO THE CLAIMS ADMINISTRATOR AT THE ADDRESS SET FORTH ABOVE. TABLE OF CONTENTS PAGE # PART I – CLAIMANT INFORMATION PART II – GENERAL INSTRUCTIONS PART III – SCHEDULE OF TRANSACTIONS IN STATE STREET COMMON STOCK PART IV – RELEASE OF CLAIMS AND SIGNATURE Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 87 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 86 of 109 PART I – CLAIMANT INFORMATION The Claims Administrator will use this information for all communications regarding this Claim Form. If this information changes, you MUST notify the Claims Administrator in writing at the address above. Claimant Names(s) (as the name(s) should appear on check, if eligible for payment; if the securities are jointly owned, the names of all beneficial owners must be provided): Name of Person the Claims Administrator Should Contact Regarding this Claim Form (Must Be Provided): Mailing Address – Line 1: Street Address/P.O. Box: Mailing Address – Line 2 (If Applicable): Apartment/Suite/Floor Number: City: State/Province: Zip Code: Country: Last 4 digits of Claimant Social Security/Taxpayer Identification Number: Daytime Telephone Number: Evening Telephone Number: Email address (E-mail address is not required, but if you provide it you authorize the Claims Administrator to use it in providing you with information relevant to this claim.): Page 2 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 88 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 87 of 109 PART II – GENERAL INSTRUCTIONS 1. It is important that you completely read and understand the Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses (the “Notice”) that accompanies this Claim Form, including the Plan of Allocation of the Net Settlement Fund set forth in the Notice. The Notice describes the proposed Settlement, how Settlement Class Members are affected by the Settlement, and the manner in which the Net Settlement Fund will be distributed if the Settlement and Plan of Allocation are approved by the Court. The Notice also contains the definitions of many of the defined terms (which are indicated by initial capital letters) used in this Claim Form. By signing and submitting this Claim Form, you will be certifying that you have read and that you understand the Notice, including the terms of the releases described therein and provided for herein. 2. IF YOU ARE NOT A SETTLEMENT CLASS MEMBER (see definition of Settlement Class on page ___ of the Notice, which sets forth who is included in and who is excluded from the Settlement Class), OR IF YOU, OR SOMEONE ACTING ON YOUR BEHALF, SUBMITTED A REQUEST FOR EXCLUSION FROM THE SETTLEMENT CLASS, DO NOT SUBMIT A CLAIM FORM. YOU MAY NOT, DIRECTLY OR INDIRECTLY, PARTICIPATE IN THE SETTLEMENT IF YOU ARE NOT A SETTLEMENT CLASS MEMBER. THUS, IF YOU ARE EXCLUDED FROM THE SETTLEMENT CLASS, ANY CLAIM FORM THAT YOU SUBMIT, OR THAT MAY BE SUBMITTED ON YOUR BEHALF, WILL NOT BE ACCEPTED. 3. Submission of this Claim Form does not guarantee that you will share in the proceeds of the Settlement. The distribution of the Net Settlement Fund will be governed by the Plan of Allocation set forth in the Notice, if it is approved by the Court, or by such other plan of allocation as the Court approves. 4. Use the Schedule of Transactions in Part III of this Claim Form to supply all required details of your transaction(s) (including free transfers and deliveries) in and holdings of State Street common stock. On this schedule, please provide all of the requested information with respect to your holdings, purchases, acquisitions, and sales of State Street common stock, whether such transactions resulted in a profit or a loss. Failure to report all transaction and holding information during the requested time period may result in the rejection of your claim. 5. Please note: Only State Street common stock purchased/acquired during the Settlement Class Period (i.e., from October 17, 2006 through October 21, 2009, inclusive) is eligible under the Settlement. However, under the “90-day look-back period” (described in the Plan of Allocation set forth in the Settlement Notice), your sales of State Street common stock during the period from October 22, 2009 through January 19, 2010, inclusive, will be used for purposes of calculating your claim under the Plan of Allocation. Therefore, in order for the Claims Administrator to be able to balance your claim, the requested purchase information during the 90-day look-back period must also be provided. 6. You are required to submit genuine and sufficient documentation for all of your transactions in and holdings of State Street common stock set forth in the Schedule of Transactions in Part III of this Claim Form. Documentation may consist of copies of brokerage confirmations or monthly statements. The Parties and the Claims Administrator do not independently have information about your investments in State Street common stock. IF SUCH DOCUMENTS ARE NOT IN YOUR POSSESSION, PLEASE OBTAIN COPIES Page 3 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 89 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 88 of 109 OR EQUIVALENT CONTEMPORANEOUS DOCUMENTS FROM YOUR BROKER. FAILURE TO SUPPLY THIS DOCUMENTATION MAY RESULT IN THE REJECTION OF YOUR CLAIM. DO NOT SEND ORIGINAL DOCUMENTS. Please keep a copy of all documents that you send to the Claims Administrator. Also, please do not highlight any portion of the Claim Form or any supporting documents. 7. Separate Claim Forms should be submitted for each separate legal entity (e.g., a claim from joint owners should not include separate transactions of just one of the joint owners, and an individual should not combine his or her IRA transactions with transactions made solely in the individual’s name). Conversely, a single Claim Form should be submitted on behalf of one legal entity including all transactions made by that entity on one Claim Form, no matter how many separate accounts that entity has (e.g., a corporation with multiple brokerage accounts should include all transactions made in all accounts on one Claim Form). 8. All joint beneficial owners must each sign this Claim Form and their names must appear as “Claimants” in Part I of this Claim Form. If you purchased or otherwise acquired State Street common stock during the Settlement Class Period and held the securities in your name, you are the beneficial owner as well as the record owner and you must sign this Claim Form to participate in the Settlement. If, however, you held, purchased or otherwise acquired State Street common stock during the relevant time period and the securities were registered in the name of a third party, such as a nominee or brokerage firm, you are the beneficial owner of these securities, but the third party is the record owner. The beneficial owner, not the record owner, must sign this Claim Form to be eligible to participate in the Settlement. 9. Agents, executors, administrators, guardians, and trustees must complete and sign the Claim Form on behalf of persons represented by them, and they must: (a) expressly state the capacity in which they are acting; (b) identify the name, account number, Social Security Number (or taxpayer identification number), address and telephone number of the beneficial owner of (or other person or entity on whose behalf they are acting with respect to) the State Street common stock; and (c) furnish herewith evidence of their authority to bind to the Claim Form the person or entity on whose behalf they are acting. (Authority to complete and sign a Claim Form cannot be established by stockbrokers demonstrating only that they have discretionary authority to trade securities in another person’s accounts.) 10. By submitting a signed Claim Form, you will be swearing that you: (a) own(ed) the State Street common stock you have listed in the Claim Form; or (b) are expressly authorized to act on behalf of the owner thereof. 11. By submitting a signed Claim Form, you will be swearing to the truth of the statements contained therein and the genuineness of the documents attached thereto, subject to penalties of perjury under the laws of the United States of America. The making of false statements, or the submission of forged or fraudulent documentation, will result in the rejection of your claim and may subject you to civil liability or criminal prosecution. 12. If the Court approves the Settlement, payments to eligible Authorized Claimants pursuant to the Page 4 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 90 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 89 of 109 Plan of Allocation (or such other plan of allocation as the Court approves) will be made after any appeals are resolved, and after the completion of all claims processing. The claims process could take substantial time to complete fully and fairly. Please be patient. 13. PLEASE NOTE: As set forth in the Plan of Allocation, each Authorized Claimant shall receive his/her/its pro rata share of the Net Settlement Fund. If the prorated payment to any Authorized Claimant calculates to less than $10.00, it will not be included in the calculation and no distribution will be made to that Authorized Claimant. 14. If you have questions concerning the Claim Form, or need additional copies of the Claim Form or the Notice, you may contact the Claims Administrator, Epiq Systems, Inc., at the above address or by toll- free phone at 1-888-287-8136, or you may download the documents from www.statestreetclassactionsettlement.com. 15. NOTICE REGARDING ELECTRONIC FILES: Certain claimants with large numbers of transactions may request, or may be requested, to submit information regarding their transactions in electronic files. To obtain the mandatory electronic filing requirements and file layout, you may visit the settlement website at www.statestreetclassactionsettlement.com or you may email the Claims Administrator’s electronic filing department at ______.com. Any file not in accordance with the required electronic filing format will be subject to rejection. No electronic files will be considered to have been properly submitted unless the Claims Administrator issues an email after processing your file with your claim numbers and respective account information. Do not assume that your file has been received or processed until you receive this email. If you do not receive such an email within 10 days of your submission, you should contact the electronic filling department at ______.com to inquire about your file and confirm it was received and acceptable. Page 5 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 91 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 90 of 109 PART III – SCHEDULE OF TRANSACTIONS IN STATE STREET COMMON STOCK Please be sure to include proper documentation with your Claim Form as described in detail in Part II – General Instructions, Paragraph 6, above. 1. BEGINNING HOLDINGS – State the total number of shares of State Proof of Street common stock held as of the opening of trading on October 17, 2006. Position If none, write “zero” or “0”. (Must be documented.) ______shares Enclosed ○ Y ○ N 2. PURCHASES/ACQUISITIONS DURING THE SETTLEMENT CLASS PERIOD – Separately list each and every purchase/acquisition (including free receipts) of State Street common stock from after the opening of trading on October 17, 2006 through and including the close of trading on October 21, 2009. (Must be documented.) Date of Number of Shares Purchase/Acquisition Check Here if Shares Proof of Purchase/Acquisition Purchased/Acquired Price Per Share Purchased/Acquired Purchase/ (List Chronologically) (excluding taxes, Pursuant to Registered Acquisition MM DD YYYY commissions and Public Offering Enclosed fees) Conducted On or About June 3, 2008 (Must be Documented) / / $ ○ Y ○ N / / $ ○ Y ○ N / / $ ○ Y ○ N / / $ ○ Y ○ N / / $ ○ Y ○ N 3. PURCHASES/ACQUISITIONS DURING THE 90-DAY LOOK- BACK PERIOD – State the total number of shares of State Street common stock purchased/acquired (including free receipts) from after the opening of ______shares trading on October 22, 2009 through and including the close of trading on January 19, 2010. If none, write “zero” or “0”. 4. SALES DURING THE SETTLEMENT CLASS PERIOD AND DURING THE 90-DAY LOOK- IF NONE, BACK PERIOD – Separately list each and every sale (including free deliveries) of State Street CHECK HERE common stock from after the opening of trading on October 17, 2006 through and including the close of trading on January 19, 2010. (Must be documented.) ○ Date of Sale (List Chronologically) Number of Sale Price Per Share (excluding taxes, Proof of Sale MM DD YYYY Shares Sold commissions and fees) Enclosed / / $ ○ Y ○ N / / $ ○ Y ○ N / / $ ○ Y ○ N / / $ ○ Y ○ N Page 6 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 92 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 91 of 109 / / $ ○ Y ○ N 5. ENDING HOLDINGS – State the total number of shares of State Street Proof of common stock held as of the close of trading on January 19, 2010. If none, Position write “zero” or “0”. (Must be documented.) ______shares Enclosed ○ Y ○ N IF YOU REQUIRE ADDITIONAL SPACE FOR ANY OF THE SCHEDULES ABOVE, ATTACH EXTRA SCHEDULES IN THE SAME FORMAT. PRINT THE BENEFICIAL OWNER’S FULL NAME AND LAST FOUR DIGITS OF SOCIAL SECURITY/TAXPAYER IDENTIFICATION NUMBER ON EACH ADDITIONAL PAGE. IF YOU DO ATTACH EXTRA SCHEDULES, CHECK THIS BOX □ Page 7 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 93 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 92 of 109 PART IV - RELEASE OF CLAIMS AND SIGNATURE YOU MUST ALSO READ THE RELEASE AND CERTIFICATION BELOW AND SIGN ON PAGE __ OF THIS CLAIM FORM. I (we) hereby acknowledge that, pursuant to the terms set forth in the Stipulation, without further action by anyone, upon the Effective Date of the Settlement, I (we), on behalf of myself (ourselves) and my (our) legal representatives, heirs, executors, successors, and assigns in their capacities as such, shall be deemed to have, and by operation of law and of the judgment shall have, fully, finally and forever compromised, settled, remised, released, resolved, relinquished, waived and discharged Defendants and the other Defendants’ Releasees, and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, of and from each and every Released Plaintiffs’ Claim and shall forever be enjoined from prosecuting any or all of the Released Plaintiffs’ Claims against any of the Defendants’ Releasees. CERTIFICATION By signing and submitting this Claim Form, the claimant(s) or the person(s) who represent(s) the claimant(s) certifies (certify), as follows: 1. that I (we) have read and understand the contents of the Notice and this Claim Form, including the releases provided for in the Settlement and the terms of the Plan of Allocation; 2. that the claimant(s) is a (are) Settlement Class Member(s), as defined in the Notice, and is (are) not excluded by definition from the Settlement Class as set forth in the Notice; 3. that the claimant has not submitted a request for exclusion from the Settlement Class; 4. that I (we) own(ed) the State Street common stock identified in the Claim Form and have not assigned the claim against any of the Defendants or any of the other Defendants’ Releasees to another, or that, in signing and submitting this Claim Form, I (we) have the authority to act on behalf of the owner(s) thereof; 5. that the claimant(s) has (have) not submitted any other claim covering the same purchases/acquisitions of State Street common stock and knows (know) of no other person having done so on the claimant’s (claimants’) behalf; 6. that the claimant(s) submit(s) to the jurisdiction of the Court with respect to claimant’s (claimants’) claim and for purposes of enforcing the releases set forth herein; 7. that I (we) agree to furnish such additional information with respect to this Claim Form as Co- Lead Counsel, the Claims Administrator or the Court may require; 8. that the claimant(s) waive(s) the right to trial by jury, to the extent it exists, and agree(s) to the Court’s summary disposition of the determination of the validity or amount of the claim made by this Claim Form; 9. that I (we) acknowledge that the claimant(s) will be bound by and subject to the terms of any judgment(s) that may be entered in the Action; and Page 8 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 94 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 93 of 109 10. that the claimant(s) is (are) NOT subject to backup withholding under the provisions of Section 3406(a)(1)(C) of the Internal Revenue Code because (a) the claimant(s) is (are) exempt from backup withholding or (b) the claimant(s) has (have) not been notified by the IRS that he/she/it is subject to backup withholding as a result of a failure to report all interest or dividends or (c) the IRS has notified the claimant(s) that he/she/it is no longer subject to backup withholding. If the IRS has notified the claimant(s) that he/she/it is subject to backup withholding, please strike out the language in the preceding sentence indicating that the claim is not subject to backup withholding in the certification above. UNDER THE PENALTIES OF PERJURY, I (WE) CERTIFY THAT ALL OF THE INFORMATION PROVIDED BY ME (US) ON THIS CLAIM FORM IS TRUE, CORRECT, AND COMPLETE, AND THAT THE DOCUMENTS SUBMITTED HEREWITH ARE TRUE AND CORRECT COPIES OF WHAT THEY PURPORT TO BE. Signature of claimant Date Print your name here Signature of joint claimant, if any Date Print your name here If the claimant is other than an individual, or is not the person completing this form, the following also must be provided: Signature of person signing on behalf of claimant Date Print your name here Capacity of person signing on behalf of claimant, if other than an individual, e.g., executor, president, trustee, custodian, etc. (Must provide evidence of authority to act on behalf of claimant – see paragraph 9 on page ___ of this Claim Form.) Page 9 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 95 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 94 of 109 REMINDER CHECKLIST: 1. Please sign the above release and certification. If this Claim Form is being made on behalf of joint claimants, then both must sign. 2. Remember to attach only copies of acceptable supporting documentation as these documents will not be returned to you. 3. Please do not highlight any portion of the Claim Form or any supporting documents. 4. Keep copies of the completed Claim Form and documentation for your own records. 5. The Claims Administrator will acknowledge receipt of your Claim Form by mail, within 60 days. Your claim is not deemed filed until you receive an acknowledgement postcard. If you do not receive an acknowledgement postcard within 60 days, please call the Claims Administrator toll free at 1-888- 287-8136. 6. If your address changes in the future, or if this Claim Form was sent to an old or incorrect address, please send the Claims Administrator written notification of your new address. If you change your name, please inform the Claims Administrator. 7. If you have any questions or concerns regarding your claim, please contact the Claims Administrator at the above address or toll-free at 1-888-287-8136, or visit www.statestreetclassactionsettlement.com. Please DO NOT call State Street, any other Defendants or their counsel with questions regarding your claim. THIS CLAIM FORM MUST BE MAILED TO THE CLAIMS ADMINISTRATOR BY PREPAID, FIRST- CLASS MAIL, POSTMARKED NO LATER THAN ______, 2014, ADDRESSED AS FOLLOWS: Hill v. State Street Corporation c/o Epiq Systems, Inc. P.O. Box 2876 Portland, OR 97208-2876 888-287-8136 www.statestreetclassactionsettlement.com A Claim Form received by the Claims Administrator shall be deemed to have been submitted when posted, if a postmark date on or before ______, 2014 is indicated on the envelope and it is mailed First Class, and addressed in accordance with the above instructions. In all other cases, a Claim Form shall be deemed to have been submitted when actually received by the Claims Administrator. You should be aware that it will take a significant amount of time to fully process all of the Claim Forms. Please be patient and notify the Claims Administrator of any change of address. # 810902 Page 10 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 96 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 95 of 109 Exhibit A-3 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 97 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 96 of 109 Exhibit A-3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS HILL v. STATE STREET CORPORATION ) ______) ) Master Docket No.1:09-cv-12146-GAO THIS DOCUMENT RELATES TO THE ) SECURITIES ACTION ) ) DOCKET NO. 09-cv-12146-GAO ) SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All persons and entities who or which purchased or otherwise acquired publicly traded common stock of State Street Corporation (“State Street”) during the period from October 17, 2006 through October 21, 2009, inclusive, including all persons and entities who or which purchased or otherwise acquired State Street common stock pursuant and/or traceable to a registered public offering conducted on or about June 3, 2008, and were damaged thereby (the “Settlement Class”): PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the District of Massachusetts, that the above-captioned litigation (the “Action”) has been certified, for settlement purposes only, as a class action on behalf of the Settlement Class, except for certain persons and entities excluded from the Settlement Class by definition as set forth in the full printed Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses (the “Notice”). YOU ARE ALSO NOTIFIED that Lead Plaintiffs in the Action have reached a proposed settlement of the Action for $60,000,000 in cash (the “Settlement”), that, if approved, will resolve all claims in the Action. A hearing will be held on ______, 2014 at __:__ _.m., before the Honorable [Judith G. Dein/George A. O’Toole, Jr.] at the United States District Court for the District of Massachusetts, Courtroom __, ___ Floor, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210, to determine (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation and Agreement of Settlement dated July 8, 2014 (and in the Notice) should be granted; (iii) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (iv) whether Co-Lead Counsel’s application for an award of attorneys’ fees and reimbursement of expenses should be approved. Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 98 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 97 of 109 If you are a member of the Settlement Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Settlement Fund. If you have not yet received the Notice and a Proof of Claim Form, you may obtain copies of these documents by contacting the Claims Administrator at Hill v. State Street Corporation, c/o Epiq Systems, Inc., P.O. Box 2876, Portland, OR 97208-2876; 1-888-287- 8136. Copies of the Notice and Proof of Claim Form can also be downloaded from the website maintained by the Claims Administrator, www.statestreetclassactionsettlement.com. If you are a member of the Settlement Class, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Proof of Claim Form postmarked no later than ______, 2014. If you are a Settlement Class Member and do not submit a proper Proof of Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a member of the Settlement Class and wish to exclude yourself from the Settlement Class, you must submit a request for exclusion such that it is received no later than ______, 2014, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel’s motion for attorneys’ fees and reimbursement of expenses, must be filed with the Court and delivered to Representative Co-Lead Counsel and Representative Defendants’ Counsel such that they are received no later than ______, 2014, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk’s office, State Street, any of the other Defendants, or their counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to Co-Lead Counsel or the Claims Administrator. Inquiries, other than requests for the Notice and Proof of Claim Form, should be made to Co-Lead Counsel: Bernstein Litowitz Berger & Motley Rice LLC Grossmann LLP William H. Narwold, Esq. John C. Browne, Esq. 28 Bridgeside Blvd. 1285 Avenue of the Americas Mt. Pleasant, SC 29464 New York, NY 10019 (843) 216-9000 (800) 380-8496 [email protected] [email protected] Requests for the Notice and Proof of Claim Form should be made to: Hill v. State Street Corporation c/o Epiq Systems, Inc. P.O. Box 2876 Portland, OR 97208-2876 888-287-8136 www.statestreetclassactionsettlement.com By Order of the Court #806131 2 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 99 of Case 1:09-cv-12146-GAO Document 110 478-1 Filed 07/08/14 Page 98 of 109 Exhibit B Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 100 Case 1:09-cv-12146-GAO Document of 110478-1 Filed 07/08/14 Page 99 of 109 Exhibit B IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS HILL v. STATE STREET CORPORATION ) ______) ) Master Docket No.1:09-cv-12146-GAO THIS DOCUMENT RELATES TO THE ) SECURITIES ACTION ) ) DOCKET NO. 09-cv-12146-GAO ) FINAL JUDGMENT APPROVING CLASS ACTION SETTLEMENT AND OF DISMISSAL WITH PREJUDICE WHEREAS, a consolidated securities class action is pending in this Court entitled Hill v. State Street Corporation, Master Docket No. 1:09-cv-12146-GAO (the “Action”); WHEREAS, (a) Lead Plaintiffs the Public Employees’ Retirement System of Mississippi and Union Asset Management Holding AG (collectively, “Lead Plaintiffs”), on behalf of themselves, Miami Beach Employees Retirement Plan and Marilyn Demory (together with Lead Plaintiffs, “Plaintiffs”), and the Settlement Class (defined below), and (b) defendants (i) State Street Corporation (“State Street”); (ii) Ronald E. Logue, Edward J. Resch, Pamela D. Gormley, Kennett F. Burnes, Peter Coym, Nader F. Darehshori, Amelia C. Fawcett, David P. Gruber, Linda A. Hill, Charles R. LaMantia, Maureen J. Miskovic, Richard P. Sergel, Ronald L. Skates, Gregory L. Summe, and Robert E. Weissman (the “Individual Defendants”); (iii) Goldman, Sachs & Co., Morgan Stanley & Co. LLC (formerly known as Morgan Stanley & Co. Incorporated), Credit Suisse Securities (USA) LLC, and UBS Securities LLC (the “Underwriter Defendants”); and (iv) Ernst & Young LLP (“Ernst & Young”) (collectively, “Defendants” and together with Lead Plaintiffs, the “Parties”) have entered into a Stipulation and Agreement of Settlement dated July 8, 2014 (the “Stipulation”), that provides for a complete dismissal with Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 101 Case 1:09-cv-12146-GAO Document of 478-1110 Filed 07/08/14 Page 100 of 109 prejudice of the claims asserted against Defendants in the Action on the terms and conditions set forth in the Stipulation, subject to the approval of this Court (the “Settlement”); WHEREAS, unless otherwise defined in this Judgment, the capitalized terms herein shall have the same meaning as they have in the Stipulation; WHEREAS, by Order dated ______, 2014 (the “Preliminary Approval Order”), this Court (a) preliminarily approved the Settlement; (b) certified the Settlement Class solely for purposes of effectuating the Settlement; (c) ordered that notice of the proposed Settlement be provided to potential Settlement Class Members; (d) provided Settlement Class Members with the opportunity either to exclude themselves from the Settlement Class or to object to the proposed Settlement; and (e) scheduled a hearing regarding final approval of the Settlement; WHEREAS, due and adequate notice has been given to the Settlement Class and the notice required by the Class Action Fairness Act has been provided; WHEREAS, the Court conducted a hearing on ______, 2014 (the “Settlement Hearing”) to consider, among other things, (a) whether the terms and conditions of the Settlement are fair, reasonable and adequate to the Settlement Class, and should therefore be approved; and (b) whether a judgment should be entered dismissing the Action with prejudice as against the Defendants; and WHEREAS, the Court having reviewed and considered the Stipulation, all papers filed and proceedings held herein in connection with the Settlement, all oral and written comments received regarding the Settlement, and the record in the Action, and good cause appearing therefor; 2 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 102 Case 1:09-cv-12146-GAO Document of 478-1110 Filed 07/08/14 Page 101 of 109 NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. Jurisdiction – The Court has jurisdiction over the subject matter of the Action, and all matters relating to the Settlement, as well as personal jurisdiction over all of the Parties and each of the Settlement Class Members. 2. Incorporation of Settlement Documents – This Judgment incorporates and makes a part hereof: (a) the Stipulation filed with the Court on July 8, 2014 (a copy of which is attached hereto as Exhibit 1); and (b) the Notice and the Summary Notice, both of which were filed with the Court on ______, 2014. Unless otherwise defined herein, the definitions of capitalized terms set forth in the Stipulation apply throughout this Judgment. 3. Class Certification for Settlement Purposes – The Court hereby affirms its determinations in the Preliminary Approval Order certifying, for the purposes of the Settlement only, the Action as a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure on behalf of the Settlement Class consisting of all persons and entities who or which purchased or otherwise acquired publicly traded common stock of State Street during the period from October 17, 2006 through October 21, 2009, inclusive (the “Settlement Class Period”), including all persons and entities who or which purchased or otherwise acquired State Street common stock pursuant and/or traceable to a registered public offering conducted on or about June 3, 2008, and who were damaged thereby. Excluded from the Settlement Class are: (a) Defendants; (b) members of the Immediate Families1 of the Individual Defendants; (c) the subsidiaries and affiliates of State Street (provided, that no ERISA plan for the benefit of any 1 “Immediate Family” means children, stepchildren, parents, stepparents, spouses, siblings, mothers-in- law, fathers-in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law. As used in this paragraph, “spouse” shall mean a husband, a wife, or a partner in a state-recognized domestic relationship or civil union. 3 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 103 Case 1:09-cv-12146-GAO Document of 478-1110 Filed 07/08/14 Page 102 of 109 employees of State Street shall be excluded), the Underwriter Defendants, and Ernst & Young; (d) any person or entity who is a partner, chief executive officer, executive vice president, chief financial officer, principal accounting officer (or if there is no such accounting officer, the controller), director, member, or controlling person of State Street, any Underwriter Defendant, or Ernst & Young; (e) any entity in which any Defendant has a controlling interest; and (f) the legal representatives, heirs, successors and assigns of any such excluded party; provided, however, that any Investment Vehicle2 shall not be excluded from the Settlement Class. [Also excluded from the Settlement Class are the persons and entities listed on Exhibit 2 hereto who or which are excluded from the Settlement Class pursuant to request. No person or entity not listed in Exhibit 2 has been excluded from the Settlement Class pursuant to request.] 4. Adequacy of Representation – Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes of the Settlement only, the Court hereby affirms its determinations in the Preliminary Approval Order certifying Lead Plaintiffs as Class Representatives for the Settlement Class and appointing Co-Lead Counsel as Class Counsel for the Settlement Class. Lead Plaintiffs and Co-Lead Counsel have fairly and adequately represented the Settlement Class both in terms of litigating the Action and for purposes of entering into and implementing the Settlement and have satisfied the requirements of Federal Rules of Civil Procedure 23(a)(4) and 23(g), respectively. 5. Notice to Settlement Class Members – The Court finds that the dissemination of the Notice and the publication of the Summary Notice: (a) were implemented in accordance 2 “Investment Vehicle” means any investment company, pooled investment fund or customer account of a Defendant, including but not limited to mutual fund families, exchange-traded funds, fund of funds, and hedge funds, in which any Defendant has or may have a direct or indirect interest or as to which its affiliates may act as an investment advisor or custodian but of which any Defendant or any of its respective affiliates is not a majority owner or does not hold a majority beneficial interest. 4 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 104 Case 1:09-cv-12146-GAO Document of 478-1110 Filed 07/08/14 Page 103 of 109 with the Preliminary Approval Order; (b) constituted the best notice practicable under the circumstances; (c) constituted notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of (i) the pendency of the Action; (ii) the effect of the proposed Settlement (including the Releases to be provided thereunder); (iii) Co-Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses; (iv) their right to object to any aspect of the Settlement, the Plan of Allocation and/or Co-Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses; (v) their right to exclude themselves from the Settlement Class; and (vi) their right to appear at the Settlement Hearing; (d) constituted due, adequate, and sufficient notice to all persons and entities entitled to receive notice of the proposed Settlement; and (e) satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §§ 77z-1 and 78u-4, as amended, and all other applicable law and rules. 6. CAFA Notice - The Claims Administrator timely mailed notice to those required by the Class Action Fairness Act to receive notice of the Settlement (“CAFA Notice”). The form of notice and method of providing notice complied with all requirements of CAFA necessary to make the Releases herein binding upon Settlement Class Members. 7. Final Settlement Approval and Dismissal of Claims – Pursuant to, and in accordance with, Rule 23 of the Federal Rules of Civil Procedure, this Court hereby fully and finally approves the Settlement set forth in the Stipulation in all respects (including, without limitation: the amount of the Settlement; the Releases provided for therein, including the release of the Released Plaintiffs’ Claims as against the Defendants’ Releasees; and the dismissal with prejudice of the claims asserted against Defendants in the Action), and finds that the Settlement 5 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 105 Case 1:09-cv-12146-GAO Document of 478-1110 Filed 07/08/14 Page 104 of 109 is, in all respects, fair, reasonable and adequate to the Settlement Class. The Parties are directed to implement, perform and consummate the Settlement in accordance with the terms and provisions contained in the Stipulation. 8. The Action and all of the claims asserted against Defendants in the Action by Plaintiffs and the other Settlement Class Members are hereby dismissed with prejudice. The Parties shall bear their own costs and expenses, except as otherwise expressly provided in the Stipulation. 9. Binding Effect – The terms of the Stipulation and of this Judgment shall be forever binding on Defendants, Plaintiffs and all other Settlement Class Members (regardless of whether any individual Settlement Class Member submits a Proof of Claim Form or seeks or obtains a distribution from the Net Settlement Fund), as well as their respective successors and assigns. [The persons and entities listed on Exhibit 2 hereto are excluded from the Settlement Class pursuant to request and are not bound by the terms of the Stipulation or this Judgment.] 10. Releases – The Releases set forth in paragraphs 5 and 6 of the Stipulation, together with the definitions contained in paragraph 1 of the Stipulation relating thereto, are expressly incorporated herein in all respects. The Releases are effective as of the Effective Date. Accordingly, this Court orders that: (a) Without further action by anyone, and subject to paragraph 11 below, upon the Effective Date of the Settlement, Plaintiffs and the other members of the Settlement Class, on behalf of themselves and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, shall be deemed to have, and by operation of law and of this Judgment shall have, fully, finally and forever compromised, settled, remised, released, resolved, relinquished, waived and discharged Defendants and the other Defendants’ 6 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 106 Case 1:09-cv-12146-GAO Document of 478-1110 Filed 07/08/14 Page 105 of 109 Releasees, and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, of and from each and every Released Plaintiffs’ Claim, and shall forever be enjoined from prosecuting any or all of the Released Plaintiffs’ Claims against Defendants and the other Defendants’ Releasees. This Release shall not apply to any Excluded Claim (as that term is defined in paragraph 1(s) of the Stipulation). (b) Without further action by anyone, and subject to paragraph 11 below, upon the Effective Date of the Settlement, Defendants, on behalf of themselves and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, shall be deemed to have, and by operation of law and of this Judgment shall have, fully, finally and forever compromised, settled, remised, released, resolved, relinquished, waived and discharged Plaintiffs and the other Plaintiffs’ Releasees, and each of their respective legal representatives, heirs, executors, successors, and assigns in their capacities as such, of and from each and every Released Defendants’ Claim, and shall forever be enjoined from prosecuting any or all of the Released Defendants’ Claims against Plaintiffs and the other Plaintiffs’ Releasees. [This Release shall not apply to any person or entity listed on Exhibit 2 hereto.] 11. Notwithstanding paragraphs 10(a) – (b) above, nothing in this Judgment shall bar any action by any of the Parties to enforce or effectuate the terms of the Stipulation or this Judgment. 12. Rule 11 Findings – The Court finds and concludes that the Parties and their respective counsel have complied in all respects with the requirements of Rule 11 of the Federal Rules of Civil Procedure in connection with the institution, prosecution, defense, and settlement of the Action. 7 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 107 Case 1:09-cv-12146-GAO Document of 478-1110 Filed 07/08/14 Page 106 of 109 13. No Admissions – Neither this Judgment, the Term Sheet, the Stipulation (whether or not consummated), including the exhibits thereto and the Plan of Allocation contained therein (or any other plan of allocation that may be approved by the Court), the negotiations leading to the execution of the Term Sheet and the Stipulation, nor any proceedings taken pursuant to or in connection with the Term Sheet, the Stipulation and/or approval of the Settlement (including any arguments proffered in connection therewith): (a) shall be offered against any of the Defendants or any of the other Defendants’ Releasees as evidence of, or construed as, or deemed to be evidence of any presumption, concession, or admission by any of the Defendants or any of the other Defendants’ Releasees with respect to the truth of any fact alleged by Plaintiffs or the validity of any claim that was or could have been asserted or the deficiency of any defense that has been or could have been asserted in this Action or in any other litigation, or of any liability, negligence, fault, or other wrongdoing of any kind of any of the Defendants or any of the other Defendants’ Releasees or in any way referred to for any other reason as against any of the Defendants or any of the other Defendants’ Releasees, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; (b) shall be offered against any of the Plaintiffs or any of the other Plaintiffs’ Releasees, as evidence of, or construed as, or deemed to be evidence of any presumption, concession or admission by any of the Plaintiffs or any of the other Plaintiffs’ Releasees that any of their claims are without merit, that any of the Defendants or any of the other Defendants’ Releasees had meritorious defenses, or that damages recoverable under the Complaint would not have exceeded the Settlement Amount or with respect to any liability, negligence, fault or wrongdoing of any kind, or in any way referred to for any other reason as against any of the 8 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 108 Case 1:09-cv-12146-GAO Document of 478-1110 Filed 07/08/14 Page 107 of 109 Plaintiffs or any of the other Plaintiffs’ Releasees, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; or (c) shall be construed against any of Releasees as an admission, concession, or presumption that the consideration to be given under the Settlement represents the amount which could be or would have been recovered after trial. (d) The Parties and the Releasees and their respective counsel may refer to this Judgment and the Stipulation to effectuate the protections from liability granted hereunder and thereunder or otherwise to enforce the terms of the Settlement. 14. Retention of Jurisdiction – Without affecting the finality of this Judgment in any way, this Court retains continuing and exclusive jurisdiction over: (a) the Parties for purposes of the administration, interpretation, implementation and enforcement of the Settlement; (b) the disposition of the Settlement Fund; (c) any motion for an award of attorneys’ fees and/or Litigation Expenses by Co-Lead Counsel in the Action that will be paid from the Settlement Fund; (d) any motion to approve the Plan of Allocation; (e) any motion to approve the Class Distribution Order; and (f) the Settlement Class Members for all matters relating to the Action. 15. Separate orders shall be entered regarding approval of a plan of allocation and the motion of Co-Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses. Such orders shall in no way affect or delay the finality of this Judgment and shall not affect or delay the Effective Date of the Settlement. 16. Modification of the Agreement of Settlement – Without further approval from the Court, Lead Plaintiffs and Defendants are hereby authorized to agree to and adopt such amendments or modifications of the Stipulation or any exhibits attached thereto to effectuate the 9 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 109 Case 1:09-cv-12146-GAO Document of 478-1110 Filed 07/08/14 Page 108 of 109 Settlement that: (a) are not materially inconsistent with this Judgment; and (b) do not materially limit the rights of Settlement Class Members in connection with the Settlement. Without further order of the Court, Lead Plaintiffs and Defendants may agree to reasonable extensions of time to carry out any provisions of the Settlement. 17. Termination of Settlement – If the Settlement is terminated as provided in the Stipulation or the Effective Date of the Settlement otherwise fails to occur, this Judgment shall be vacated, rendered null and void and be of no further force and effect, except as otherwise provided by the Stipulation, and this Judgment shall be without prejudice to the rights of Lead Plaintiffs, the other Settlement Class Members and Defendants, and the Plaintiffs and Defendants shall revert to their respective positions in the Action immediately prior to March 12, 2014, as provided in the Stipulation. 18. Entry of Final Judgment – There is no just reason to delay the entry of this Judgment as a final judgment in this Action. Accordingly, the Clerk of the Court is directed to immediately enter this final judgment in this Action. SO ORDERED this ______day of ______, 2014. ______[George A. O’Toole, Jr. United States District Judge or Judith G. Dein United States Magistrate Judge] #806128 10 Case 1:15-cv-02546-RM-MEH Document 170-26 Filed 09/21/17 USDC Colorado Page 110 Case 1:09-cv-12146-GAO Document of 478-1110 Filed 07/08/14 Page 109 of 109 Exhibit 2 List of Persons and Entities Excluded from the Settlement Class Pursuant to Request 11 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 1 of 111 EXHIBIT 23 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 2 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 1 of 110 Exhibit 1 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 3 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 2 of 110 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE BIOSCRIP, INC. SECURITIES Civil Action No. 13-cv-6922-AJN LITIGATION STIPULATION AND AGREEMENT OF SETTLEMENT This Stipulation and Agreement of Settlement, dated as of December 18, 2015 (the “Stipulation”) is hereby submitted to the Court pursuant to Rule 23 of the Federal Rules of Civil Procedure. Subject to the approval of the Court, this Stipulation is entered into among Lead Plaintiff Fresno County Employees’ Retirement Association (“Lead Plaintiff”), on behalf of itself and the Settlement Class (defined below), BioScrip, Inc. (“BioScrip”), Richard M. Smith, Hai V. Tran, Patricia Bogusz, Myron Z. Holubiak, Charlotte W. Collins, Samuel P. Frieder, David R. Hubers, Richard L. Robbins, Stuart A. Samuels, Gordon H. Woodward, and Kimberlee Seah (the “Individual Defendants”), Jefferies LLC, Morgan Stanley & Co. LLC, SunTrust Robinson Humphrey, Inc., Dougherty & Company, and Noble International Investments, Inc. (the “Underwriter Defendants”) and Kohlberg & Co., LLC (“Kohlberg” and together with BioScrip, the Individual Defendants, and the Underwriter Defendants, the “Defendants”), by and through their respective counsel. This Stipulation embodies the terms and conditions of the settlement of the above-captioned action (the “Action”).1 Subject to the approval of the Court and the terms and conditions expressly provided herein, this Stipulation is intended to fully, finally and forever 1 All terms with initial capitalization not otherwise defined herein shall have the meanings ascribed to them in ¶ 1 herein. Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 4 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 3 of 110 compromise, settle, release, resolve, and dismiss with prejudice the Action and all claims asserted therein against Defendants. WHEREAS: A. Beginning on September 30, 2013, multiple putative securities class action complaints were filed in the United States District Court for the Southern District of New York (the “Court”). In accordance with the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4, as amended (the “PSLRA”), notice to the public was issued stating the deadline by which putative class members could move the Court for appointment as lead plaintiff. B. By Order dated December 19, 2013, the Court consolidated the related actions in the Action, appointed Fresno County Employees’ Retirement Association as Lead Plaintiff for the Action, and approved Lead Plaintiff’s selection of Bernstein Litowitz Berger & Grossmann LLP as Lead Counsel. C. On February 19, 2014, Lead Plaintiff filed and served its Consolidated Class Action Complaint (the “Complaint”). In the Complaint, Lead Plaintiff and additional named plaintiff West Palm Beach Police Pension Fund asserted claims under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder against BioScrip and certain of the Individual Defendants, and under Section 20(a) of the Exchange Act against Kohlberg and certain of the Individual Defendants. The Complaint also asserted claims under Section 11 of the Securities Act of 1933 (the “Securities Act”) against BioScrip, the Individual Defendants and the Underwriter Defendants, under Section 12(a)(2) of the Securities Act against BioScrip and the Underwriter Defendants, and under Section 15 of the Securities Act against the Individual Defendants and Kohlberg. 2 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 5 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 4 of 110 D. On April 28, 2014, Defendants filed and served their motions to dismiss the Complaint. On June 27, 2014, Lead Plaintiff filed and served its papers in opposition to the motions, and on July 28, 2014, Defendants filed and served their reply papers. E. On March 31, 2015, the Court entered its Memorandum Decision and Order granting in part and denying in part Defendants’ motions to dismiss the Complaint.2 F. On April 14, 2015, Defendants filed a motion for partial reconsideration of the Court’s March 31, 2015 Memorandum Decision and Order on their motions to dismiss. On April 28, 2015, Lead Plaintiff filed and served its papers in opposition to the motion for partial reconsideration, and on May 8, 2015, Defendants filed and served their reply papers. G. On June 5, 2015, the Court issued a Memorandum and Order denying Defendants’ motion for partial reconsideration. H. On May 21, 2015, Defendants filed their answers and affirmative defenses to the Complaint, denying any violations of the Securities Act or the Exchange Act or liability as alleged in the Complaint. I. Discovery in the Action commenced in June 2015. Defendants have produced approximately 800,000 pages of documents, and Lead Plaintiff has reviewed and analyzed these documents. J. Following extensive arm’s-length negotiations, including significant mediation efforts conducted by former United States District Judge Layn Phillips in September and October 2015, the Parties reached an agreement to settle the Action as set forth herein. This Stipulation (together with the exhibits hereto) reflects the final and binding agreement between the Parties. 2 The Court’s March 31, 2015 Memorandum Decision and Order dismissed all claims asserted against Kohlberg in the Complaint. 3 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 6 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 5 of 110 K. Based upon their investigation, prosecution and mediation of the case, Lead Plaintiff and Lead Counsel have concluded that the terms and conditions of this Stipulation are fair, reasonable and adequate to Lead Plaintiff and the other members of the Settlement Class, and in their best interests. Based on Lead Plaintiff’s direct oversight of the prosecution of this matter and with the advice of its counsel, Lead Plaintiff has agreed to settle and release the claims raised in the Action pursuant to the terms and provisions of this Stipulation, after considering, among other things: (a) the substantial financial benefit that Lead Plaintiff and the other members of the Settlement Class will receive under the proposed Settlement; and (b) the significant risks and costs of continued litigation and trial. L. This Stipulation constitutes a compromise of matters that are in dispute between the Parties. Defendants are entering into this Stipulation solely to eliminate the uncertainty, burden, and expense of further protracted litigation. Each of the Defendants has denied and continues to deny any wrongdoing, and this Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of any of the Defendants with respect to any claim or allegation of any fault or liability or wrongdoing or damage whatsoever, or any infirmity in the defenses that the Defendants have, or could have, asserted. The Defendants expressly deny that Lead Plaintiff has asserted any valid claims as to any of them, and expressly deny any and all allegations of fault, liability, wrongdoing, or damages whatsoever. Similarly, this Stipulation shall in no event be construed or deemed to be evidence of or an admission or concession on the part of Lead Plaintiff of any infirmity in any of the claims asserted in the Action, or an admission or concession that any of the Defendants’ defenses to liability had any merit. Each of the Parties recognizes and acknowledges, however, that the Action has been initiated, filed and prosecuted by Lead Plaintiff in good faith and defended by Defendants in good faith, that the 4 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 7 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 6 of 110 Action is being voluntarily settled with the advice of counsel, and that the terms of the Settlement are fair, adequate, and reasonable. NOW THEREFORE, it is hereby STIPULATED AND AGREED, by and among Lead Plaintiff (individually and on behalf of all other members of the Settlement Class) and Defendants, by and through their respective undersigned attorneys and subject to the approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, that, in consideration of the benefits flowing to the Parties from the Settlement, all Released Plaintiffs’ Claims as against the Released Defendant Persons and all Released Defendants’ Claims as against the Released Plaintiff Persons shall be settled and released, upon and subject to the terms and conditions set forth below. DEFINITIONS 1. As used in this Stipulation and any exhibits attached hereto and made a part hereof, the following capitalized terms shall have the following meanings: (a) “Action” means the consolidated securities class action in the matter styled In re BioScrip, Inc. Securities Litigation, No. 13-cv-6922 (AJN), and includes all actions consolidated therein. (b) “Alternate Judgment” means a form of final judgment that may be entered by the Court herein but in a form other than the form of Judgment provided for in this Stipulation. (c) “Authorized Claimant” means a Settlement Class Member who submits a Proof of Claim Form to the Claims Administrator that is approved by the Court for payment from the Net Settlement Fund. (d) “BioScrip” means BioScrip, Inc. (e) “Claim” means a Proof of Claim Form submitted to the Claims Administrator. 5 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 8 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 7 of 110 (f) “Claim Form” or “Proof of Claim Form” means the form, substantially in the form attached hereto as Exhibit 2 to Exhibit A, that a Claimant or Settlement Class Member must complete and submit should that Claimant or Settlement Class Member seek to share in a distribution of the Net Settlement Fund. (g) “Claimant” means a person or entity who or which submits a Claim Form to the Claims Administrator seeking to be eligible to share in the proceeds of the Settlement Fund. (h) “Claims Administrator” means the firm retained by Lead Plaintiff and Lead Counsel, subject to approval of the Court, to provide all notices approved by the Court to potential Settlement Class Members and to administer the Settlement. (i) “Class Distribution Order” means an order entered by the Court authorizing and directing that the Net Settlement Fund be distributed, in whole or in part, to Authorized Claimants. (j) “Complaint” means the Consolidated Class Action Complaint filed by Lead Plaintiff in the Action on February 19, 2014. (k) “Court” means the United States District Court for the Southern District of New York. (l) “Defendants” means, collectively, BioScrip, the Individual Defendants, the Underwriter Defendants and Kohlberg. (m) “Defendants’ Counsel” means Kirkland & Ellis LLP, O’Melveny & Myers LLP and Paul, Weiss, Rifkind, Wharton & Garrison LLP. (n) “Effective Date” with respect to the Settlement means the first date by which all of the events and conditions specified in ¶ 37 of this Stipulation have been met and have occurred or have been waived. 6 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 9 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 8 of 110 (o) “Escrow Account” means an account maintained at Valley National Bank wherein the Settlement Amount shall be deposited and held in escrow under the control of Lead Counsel. (p) “Escrow Agent” means Valley National Bank. (q) “Escrow Agreement” means the agreement between Lead Counsel and the Escrow Agent setting forth the terms under which the Escrow Agent shall maintain the Escrow Account. (r) “ERISA” means the Employee Retirement Income Security Act of 1974. (s) “Final,” with respect to the Judgment or, if applicable, the Alternate Judgment, or any other court order, means: (i) if no appeal is filed, the expiration date of the time provided for filing or noticing any appeal under the Federal Rules of Appellate Procedure, i.e., thirty (30) days after entry of the judgment or order; or (ii) if there is an appeal from the judgment or order, (a) the date of final dismissal of all such appeals, or the final dismissal of any proceeding on certiorari or otherwise, or (b) the date the judgment or order is finally affirmed on an appeal, the expiration of the time to file a petition for a writ of certiorari or other form of review, or the denial of a writ of certiorari or other form of review, and, if certiorari or other form of review is granted, the date of final affirmance following review pursuant to that grant. However, any appeal or proceeding seeking subsequent judicial review pertaining solely to an order issued with respect to (i) attorneys’ fees, costs or expenses, or (ii) the plan of allocation of Settlement proceeds (as submitted or subsequently modified), shall not in any way delay or preclude a judgment from becoming Final. (t) “Immediate Family” means children, stepchildren, parents, stepparents, spouses, siblings, mothers-in-law, fathers-in-law, sons-in-law, daughters-in-law, brothers-in-law, 7 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 10 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 9 of 110 and sisters-in-law. As used in this paragraph, “spouse” shall mean a husband, a wife, or a partner in a state-recognized domestic relationship or civil union. (u) “Individual Defendants” means, collectively, Richard M. Smith, Hai V. Tran, Patricia Bogusz, Myron Z. Holubiak, Charlotte W. Collins, Samuel P. Frieder, David R. Hubers, Richard L. Robbins, Stuart A. Samuels, Gordon H. Woodward, and Kimberlee Seah. (v) “Judgment” means the final judgment, substantially in the form attached hereto as Exhibit B, to be entered by the Court approving the Settlement. (w) “Lead Counsel” means the law firm of Bernstein Litowitz Berger & Grossmann LLP. (x) “Lead Plaintiff” means Fresno County Employees’ Retirement Association. (y) “Litigation Expenses” means costs and expenses incurred in connection with commencing, prosecuting, and settling the Action (which may include the costs and expenses of Plaintiffs directly related to their representation of the Settlement Class), for which Lead Counsel intends to apply to the Court for reimbursement from the Settlement Fund. (z) “Net Settlement Fund” means the Settlement Fund less: (i) any Taxes; (ii) any Notice and Administration Costs; (iii) any Litigation Expenses awarded by the Court; and (iv) any attorneys’ fees awarded by the Court. (aa) “Notice” means the Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses, substantially in the form attached hereto as Exhibit 1 to Exhibit A, which is to be mailed to Settlement Class Members. (bb) “Notice and Administration Costs” means the costs, fees, and expenses that are incurred by the Claims Administrator and/or Lead Counsel in connection with: (i) providing 8 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 11 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 10 of 110 notices to the Settlement Class; and (ii) administering the Settlement, including but not limited to the Claims process, as well as the costs, fees, and expenses incurred in connection with the Escrow Account. All such Notice and Administration Costs shall be paid from the Settlement Fund. (cc) “Officer” means any officer as that term is defined in Securities and Exchange Act Rule 16a-1(f). (dd) “Parties” means Defendants and Lead Plaintiff, on behalf of itself and the Settlement Class. (ee) “Plaintiffs” means Lead Plaintiff and additional named plaintiff West Palm Beach Police Pension Fund. (ff) “Plaintiffs’ Counsel” means Lead Counsel and Saxena White P.A. (gg) “Plan of Allocation” means the proposed plan of allocation of the Net Settlement Fund set forth in the Notice. Any plan of allocation is not part of the Stipulation and the Released Defendant Persons shall have no responsibility or liability with respect to the plan of allocation. (hh) “Preliminary Approval Order” means the order, substantially in the form attached hereto as Exhibit A, to be entered by the Court preliminarily approving the Settlement and directing that notice of the Settlement be provided to the Settlement Class. (ii) “PSLRA” means the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4, as amended. (jj) “Released Claims” means all Released Defendants’ Claims and all Released Plaintiffs’ Claims. (kk) “Released Defendants’ Claims” means any and all claims, debts, demands, rights, liabilities, or causes of action (including, but not limited to, any claims for damages, interest, 9 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 12 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 11 of 110 attorneys’ fees, expert or consulting fees, and any other costs, expenses, or amounts), whether based on federal, state, local, statutory or common law or any other law, rule or regulation, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, at law or in equity, matured or unmatured, including both known and Unknown Claims, that (i) have been or could have been asserted in the Action or in any forum by the Defendants, or any of them, or the successors and assigns of any of them, in their capacities as such, against Lead Plaintiff, Settlement Class Members, or any of their attorneys, and (ii) arise out of or relate in any way to the institution, prosecution, or Settlement of the Action. Released Defendants’ Claims do not include any claims relating to the enforcement of the Settlement or any claims against any person or entity who or which submits a request for exclusion from the Settlement Class that is accepted by the Court. (ll) “Released Defendant Persons” means Defendants and their current and former parents, affiliates and subsidiaries, all current and former officers, directors, members, agents, employees and attorneys of each of the foregoing, in their capacities as such, and all insurers (and their reinsurers), successors, predecessors, assigns and assignees of the foregoing, in their capacities as such. (mm) “Released Plaintiffs’ Claims” means any and all claims, debts, demands, rights, liabilities, or causes of action (including, but not limited to, any claims for damages, interest, attorneys’ fees, expert or consulting fees, and any other costs, expenses, or amounts), whether based on federal, state, local, statutory or common law or any other law, rule or regulation, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, at law or in equity, matured or unmatured, whether individual, class or of any other description, including both known claims and Unknown Claims (i) that have been asserted in the Action against any of the Defendants, or (ii) that could have been asserted in the Action or in any forum by Lead Plaintiff and/or the 10 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 13 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 12 of 110 Settlement Class Members or any of them, or by their heirs, agents, executors, administrators, trustees, beneficiaries, predecessors, successors, attorneys, or assigns, in their capacities as such, against any of the Released Defendant Persons, which arise out of or are related to any of the allegations, transactions, facts, matters or occurrences, representations, or omissions involved, set forth, or referred to in the Complaint (including, without limitation, those concerning (a) Exjade, (b) any government investigation concerning Exjade, and (c) BioScrip’s PBM business) and that relate to the purchase or sale of BioScrip common stock during the Settlement Class Period. Released Plaintiffs’ Claims do not include: (i) any claims relating to the enforcement of the Settlement; (ii) any claims that are or were asserted in any ERISA or derivative actions pending or the subject of an appeal as of October 30, 2015, including but not limited to Park Employees & Retirement Board Employees’ Annuity & Benefit Fund of Chicago v. Richard M. Smith, et al., C.A. No. 11000-VCG (Del. Ch.); and (iii) any claims of any person or entity who or which submits a request for exclusion that is accepted by the Court. (nn) “Released Plaintiff Persons” means Plaintiffs, all other plaintiffs in the Action, their respective attorneys, and all other Settlement Class Members, and their current and former parents, affiliates and subsidiaries, all current and former officers, directors, members, agents, employees and attorneys of each of the foregoing, in their capacities as such, and all insurers (and their reinsurers), successors, predecessors, assigns and assignees of the foregoing, in their capacities as such. (oo) “Releasee(s)” means each and any of the Released Defendant Persons and each and any of the Released Plaintiff Persons. (pp) “Releases” means the releases set forth in ¶¶ 5-6 of this Stipulation. 11 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 14 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 13 of 110 (qq) “Settlement” means the settlement between Lead Plaintiff and Defendants on the terms and conditions set forth in this Stipulation. (rr) “Settlement Amount” means $10,900,000 in cash. (ss) “Settlement Class” means all persons and entities who purchased the common stock of BioScrip during the period from November 9, 2012 through November 6, 2013, inclusive (the “Settlement Class Period”), and were damaged thereby. Excluded from the Settlement Class are: (i) Defendants; (ii) members of the immediate families of the Individual Defendants; (iii) the subsidiaries of BioScrip, the Underwriter Defendants, and Kohlberg; (iv) any persons who served as partners, control persons, officers, and/or directors of BioScrip, the Underwriter Defendants, or Kohlberg during the Settlement Class Period and/or at any other relevant time; (v) any firm, trust, corporation, or other entity in which any Defendant has or had a controlling interest; (vi) Defendants’ liability insurance carriers; and (vii) the legal representatives, heirs, successors, and assigns of any such excluded party. Also excluded from the Settlement Class are any persons and entities who or which exclude themselves by submitting a request for exclusion that is accepted by the Court. (tt) “Settlement Class Member” means each person and entity who or which is a member of the Settlement Class. (uu) “Settlement Class Period” means the period from November 9, 2012 through November 6, 2013, inclusive. (vv) “Settlement Fund” means the Settlement Amount plus any and all interest earned thereon. (ww) “Settlement Hearing” means the hearing set by the Court under Rule 23(e)(2) of the Federal Rules of Civil Procedure to determine: (i) whether the proposed Settlement should 12 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 15 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 14 of 110 be approved as fair, reasonable, and adequate; (2) whether all Released Claims should be dismissed with prejudice; (3) whether an order approving the Settlement should be entered thereon; (4) whether the allocation of the Settlement Fund should be approved; and (5) whether any application for an award of attorneys’ fees and/or Litigation Expenses should be approved. (xx) “Summary Notice” means the Summary Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses, substantially in the form attached hereto as Exhibit 3 to Exhibit A, to be published as set forth in the Preliminary Approval Order. (yy) “Taxes” means: (i) all federal, state and/or local taxes of any kind (including any interest or penalties thereon) on any income earned by the Settlement Fund; (ii) all taxes imposed on payments by the Settlement Fund, including withholding taxes; and (iii) the expenses and costs incurred by Lead Counsel in connection with determining the amount of, and paying, any taxes owed by the Settlement Fund (including, without limitation, expenses of tax attorneys and accountants). (zz) “Underwriter Defendants” means, collectively, Jefferies LLC, Morgan Stanley & Co. LLC, SunTrust Robinson Humphrey, Inc., Dougherty & Company, and Noble International Investments, Inc. (aaa) “Unknown Claims” means any Released Plaintiffs’ Claims which Lead Plaintiff or any other Settlement Class Member does not know or suspect to exist in his, her, or its favor at the time of the release of such claims, and any Released Defendants’ Claims which any Defendant does not know or suspect to exist in his, her, or its favor at the time of the release of such claims, which, if known by him, her, or it, might have affected his, her, or its decision(s) with 13 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 16 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 15 of 110 respect to this Settlement. With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date of the Settlement, Lead Plaintiff and Defendants shall expressly waive, and each of the other Settlement Class Members shall be deemed to have waived, and by operation of the Judgment or the Alternate Judgment, if applicable, shall have expressly waived, any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle of common law or foreign law, which is similar, comparable, or equivalent to California Civil Code §1542, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Lead Plaintiff and Defendants acknowledge, and each of the other Settlement Class Members shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for and is a key element of the Settlement of which this release is a part. CLASS CERTIFICATION 2. Solely for purposes of the Settlement and for no other purpose, Defendants stipulate and agree to: (a) certification of the Action as a class action pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of the Settlement Class; (b) certification of Plaintiffs as Class Representatives for the Settlement Class; and (c) appointment of Lead Counsel as Class Counsel for the Settlement Class pursuant to Rule 23(g) of the Federal Rules of Civil Procedure; provided, however, that if the conditions set out in ¶ 37 are not met, or if any Party otherwise exercises its right to terminate the Settlement as provided in this Stipulation, Defendants reserve their right to contest (a) certification of the Action as a class action; (b) certification of Plaintiffs as Class Representatives for the Settlement Class; and (c) appointment of Lead Counsel as Class Counsel for the Settlement Class. 14 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 17 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 16 of 110 PRELIMINARY APPROVAL OF SETTLEMENT 3. Promptly upon execution of this Stipulation, Lead Plaintiff will move for preliminary approval of the Settlement, certification of the Settlement Class for settlement purposes only, and the scheduling of a hearing for consideration of final approval of the Settlement, which motion shall be unopposed by Defendants. Concurrently with the motion for preliminary approval, Lead Plaintiff shall apply to the Court for, and Defendants shall agree to, entry of the Preliminary Approval Order, substantially in the form attached hereto as Exhibit A. RELEASE OF CLAIMS 4. The obligations incurred pursuant to this Stipulation are in consideration of: (i) the full and final disposition of the Action as against Defendants; and (ii) the Releases provided for herein. 5. Pursuant to the Judgment, or the Alternate Judgment, if applicable, without further action by anyone, upon the Effective Date of the Settlement, Lead Plaintiff and each of the other Settlement Class Members, on behalf of themselves, and their respective current and future heirs, executors, administrators, predecessors, successors, attorneys, insurers, agents, and assigns, in their capacities as such, shall be deemed to have, and by operation of law and of the judgment shall have, fully, finally, and forever compromised, settled, released, resolved, relinquished, waived, and discharged each and every Released Plaintiffs’ Claim against the Released Defendant Persons, and shall forever be barred and enjoined from commencing any action with respect to, instituting any action with respect to, or prosecuting any or all of the Released Plaintiffs’ Claims against any of the Released Defendant Persons. 6. Pursuant to the Judgment, or the Alternate Judgment, if applicable, without further action by anyone, upon the Effective Date of the Settlement, Defendants, on behalf of 15 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 18 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 17 of 110 themselves, and their respective current and future heirs, executors, administrators, predecessors, successors, attorneys, insurers, agents, and assigns, in their capacities as such, shall be deemed to have, and by operation of law and of the judgment shall have, fully, finally, and forever compromised, settled, released, resolved, relinquished, waived, and discharged each and every Released Defendants’ Claim against Lead Plaintiff and the other Released Plaintiff Persons, and shall forever be barred and enjoined from commencing any action with respect to, instituting any action with respect to, or prosecuting any or all of the Released Defendants’ Claims against any of the Released Plaintiff Persons. 7. Notwithstanding ¶¶ 5-6 above, nothing in the Judgment, or the Alternate Judgment, if applicable, shall bar any action by any of the Parties to enforce or effectuate the terms of this Stipulation or the Judgment, or Alternate Judgment, if applicable. THE SETTLEMENT CONSIDERATION 8. In consideration of the settlement of the Released Plaintiffs’ Claims against Defendants and the other Released Defendant Persons, BioScrip shall pay or cause to be paid the Settlement Amount into the Escrow Account no later than fifteen (15) business days after the later of: (a) the date of entry by the Court of an order preliminarily approving this Settlement; or (b) Defendants’ Counsel’s receipt from Lead Counsel of the information necessary to deliver a check or effectuate a transfer of funds to the Escrow Account, including wiring instructions that include the bank name and ABA routing number, account name and number, the proper name of the payee of and address for delivery of any check, and a signed W-9 reflecting a valid taxpayer identification number for the qualified settlement fund in which the Settlement Amount is to be deposited. 16 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 19 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 18 of 110 USE OF SETTLEMENT FUND 9. The Settlement Fund shall be used to pay: (a) any Taxes; (b) any Notice and Administration Costs; (c) any Litigation Expenses awarded by the Court; and (d) any attorneys’ fees awarded by the Court. The balance remaining in the Settlement Fund, that is, the Net Settlement Fund, shall be distributed to Authorized Claimants as provided in ¶¶ 24-35 below. 10. The Escrow Agent shall not disburse the Settlement Fund, or any portion thereof, except: (a) as provided in the Stipulation; or (b) by an order of the Court. 11. The Released Defendant Persons shall have no responsibility for, interest in, or liability whatsoever with respect to the actions of the Escrow Agent, or any transaction executed by the Escrow Agent. 12. Except as provided herein or pursuant to orders of the Court, the Net Settlement Fund shall remain in the Escrow Account prior to the Effective Date. All funds held by the Escrow Agent shall be deemed to be in the custody of the Court and shall remain subject to the jurisdiction of the Court until such time as the funds shall be distributed or returned pursuant to the terms of this Stipulation and/or further order of the Court. 13. The Escrow Agent shall invest any funds in the Escrow Account exclusively in United States Treasury Bills (or a mutual fund invested solely in such instruments) and shall collect and reinvest all interest accrued thereon, except that any residual cash balances up to the amount that is insured by the FDIC may be deposited in any account that is fully insured by the FDIC. In the event that the yield on United States Treasury Bills is negative, in lieu of purchasing such Treasury Bills, all or any portion of the funds held by the Escrow Agent may be deposited in any account that is fully insured by the FDIC or backed by the full faith and credit of the United States. Interest earned on the money deposited into the Escrow Account shall be part of the Settlement 17 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 20 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 19 of 110 Fund. All costs and risks related to the investment of the Settlement Fund in accordance with the guidelines set forth in this paragraph shall be borne by the Settlement Fund. 14. The Parties agree that the Settlement Fund is intended to be a Qualified Settlement Fund within the meaning of Treasury Regulation § 1.468B-1. Lead Counsel, as administrator of the Settlement Fund within the meaning of Treasury Regulation § 1.468B-2(k)(3), shall be solely responsible for filing or causing to be filed all informational and other tax returns as may be necessary or appropriate (including, without limitation, the returns described in Treasury Regulation § 1.468B-2(k)) for the Settlement Fund. Lead Counsel shall also be responsible for causing payment to be made from the Settlement Fund of any Taxes owed with respect to the Settlement Fund. The Released Defendant Persons shall not have any liability or responsibility for any such Taxes. Upon written request, Defendants will provide to Lead Counsel the statement described in Treasury Regulation § 1.468B-3(e). Lead Counsel, as administrator of the Settlement Fund within the meaning of Treasury Regulation § 1.468B-2(k)(3), shall timely make such elections as are necessary or advisable to carry out this paragraph, including, as necessary, making a “relation back election,” as described in Treasury Regulation § 1.468B-1(j), to cause the Qualified Settlement Fund to come into existence at the earliest allowable date, and shall take or cause to be taken all actions as may be necessary or appropriate in connection therewith. 15. All Taxes shall be paid out of the Settlement Fund, and shall be timely paid by the Escrow Agent pursuant to the disbursement instructions to be set forth in the Escrow Agreement, and without further order of the Court. Any tax returns prepared for the Settlement Fund (as well as the election set forth therein) shall be consistent with the previous paragraph and in all events shall reflect that all Taxes on the income earned by the Settlement Fund shall be paid out of the Settlement Fund as provided herein. The Released Defendant Persons shall have no 18 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 21 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 20 of 110 responsibility or liability for the acts or omissions of Lead Counsel or its agents with respect to the payment of Taxes, as described herein. 16. The Settlement is not a claims-made settlement. Upon the occurrence of the Effective Date, no Released Defendant Person or any other person or entity who or which paid any portion of the Settlement Amount shall have any right to the return of the Settlement Fund or any portion thereof for any reason whatsoever, including without limitation, the number of Claim Forms submitted, the collective amount of Recognized Claims of Authorized Claimants, the percentage of recovery of losses, or the amounts to be paid to Authorized Claimants from the Net Settlement Fund. 17. Notwithstanding the fact that the Effective Date of the Settlement has not yet occurred, Lead Counsel may pay from the Settlement Fund, without further approval from Defendants or further order of the Court, all Notice and Administration Costs actually incurred and paid or payable. Such costs and expenses shall include, without limitation, the actual costs of printing and mailing the Notice, publishing the Summary Notice, reimbursements to nominee owners for forwarding the Notice to their beneficial owners, the administrative expenses incurred and fees charged by the Claims Administrator in connection with providing notice, administering the Settlement (including processing the submitted Claims), and the fees, if any, of the Escrow Agent. In the event that the Settlement is terminated pursuant to the terms of this Stipulation, all Notice and Administration Costs paid or incurred, including any related fees, shall not be returned or repaid to Defendants, any of the other Released Defendant Persons, or any other person or entity who or which paid any portion of the Settlement Amount. 18. After the Effective Date, the Released Defendant Persons shall have no interest in the Settlement Fund or in the Net Settlement Fund. The Released Defendant Persons shall not 19 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 22 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 21 of 110 be liable for the loss of any portion of the Settlement Fund, nor have any liability, obligation, or responsibility for the payment of claims, taxes, legal fees, or any other expenses payable from the Settlement Fund. ATTORNEYS’ FEES AND LITIGATION EXPENSES 19. Lead Counsel will apply to the Court for a collective award of attorneys’ fees to Plaintiffs’ Counsel to be paid solely from (and out of) the Settlement Fund. Lead Counsel also will apply to the Court for reimbursement of Litigation Expenses, which may include a request for reimbursement of Plaintiffs’ costs and expenses directly related to their representation of the Settlement Class, to be paid solely from (and out of) the Settlement Fund. Lead Counsel’s application for an award of attorneys’ fees and/or Litigation Expenses is not the subject of any agreement between Defendants and Lead Plaintiff other than what is set forth in this Stipulation. 20. Any attorneys’ fees and Litigation Expenses that are awarded by the Court shall be paid to Lead Counsel immediately upon award, notwithstanding the existence of any timely filed objections thereto, or potential for appeal therefrom, or collateral attack on the Settlement or any part thereof, subject to Plaintiffs’ Counsel’s obligation to make appropriate refunds or repayments to the Settlement Fund, plus accrued interest at the same net rate as is earned by the Settlement Fund, if the Settlement is terminated pursuant to the terms of this Stipulation or if, as a result of any appeal or further proceedings on remand, or successful collateral attack, the award of attorneys’ fees and/or Litigation Expenses is reduced or reversed and such order reducing or reversing the award has become Final. Plaintiffs’ Counsel shall make the appropriate refund or repayment to the Settlement Fund in full no later than ten (10) business days after: (a) receiving from Defendants’ Counsel notice of the termination of the Settlement; or (b) any order reducing or reversing the award of attorneys’ fees and/or Litigation Expenses has become Final. Such 20 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 23 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 22 of 110 refund or repayment will include interest thereon at the same rate as earned on the Settlement Fund in an amount consistent with such reversal or modification. Any refunds required pursuant to this paragraph shall be the joint and several obligation of each Plaintiffs’ Counsel receiving fees or expenses to make appropriate refunds or repayments to the Settlement Fund. 21. An award of attorneys’ fees and/or Litigation Expenses is not a necessary term of this Stipulation and is not a condition of the Settlement embodied herein. Neither Lead Plaintiff nor Lead Counsel may cancel or terminate the Settlement based on this Court’s or any appellate court’s ruling with respect to attorneys’ fees and/or Litigation Expenses. It is further agreed that the procedure for and the allowance or disallowance by the Court of any applications by Lead Counsel for attorneys’ fees and Litigation Expenses, including fees for experts and consultants to be paid out of the Settlement Fund, and any order or proceeding relating thereto, are not part of the Settlement set forth in the Stipulation, and any order or proceeding relating to such applications, or any appeal from any order relating thereto or reversal or modification thereof, shall not operate to terminate or cancel the Stipulation, or affect or delay the finality of the Judgment approving the Stipulation and the Settlement of the Action. 22. Lead Counsel shall allocate the attorneys’ fees awarded amongst Plaintiffs’ Counsel in a manner which it, in good faith, believes reflects the contributions of such counsel to the institution, prosecution and settlement of the Action. Released Defendant Persons shall have no responsibility for or liability whatsoever with respect to the allocation or award of attorneys’ fees or Litigation Expenses. The attorneys’ fees and Litigation Expenses that are awarded to Plaintiffs’ Counsel shall be payable solely from the Escrow Account. 21 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 24 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 23 of 110 23. Released Defendant Persons shall have no responsibility for any payment of attorneys’ fees and Litigation Expenses to Lead Counsel or any other Plaintiffs’ Counsel apart from payment of the Settlement Amount pursuant to ¶ 8. NOTICE AND SETTLEMENT ADMINISTRATION 24. As part of the Preliminary Approval Order, Lead Plaintiff shall seek appointment of a Claims Administrator. The Claims Administrator shall administer the Settlement, including but not limited to the process of receiving, reviewing, and approving or denying Claims, under Lead Counsel’s supervision and subject to the jurisdiction of the Court. Other than BioScrip’s obligation to provide or cause to be provided its shareholder records as provided in ¶ 25 below, none of the Defendants, nor any other Released Defendant Persons, shall have any involvement in or any responsibility, authority, or liability whatsoever for the selection of the Claims Administrator, the Plan of Allocation, the administration of the Settlement, the claims process, or disbursement of the Net Settlement Fund, and shall have no liability whatsoever to any person or entity, including, but not limited to, Lead Plaintiff, any other Settlement Class Members, or Lead Counsel in connection with the foregoing. Defendants’ Counsel shall cooperate in the administration of the Settlement to the extent reasonably necessary to effectuate its terms. 25. In accordance with the terms of the Preliminary Approval Order to be entered by the Court, Lead Counsel shall cause the Claims Administrator to mail the Notice and Proof of Claim Form to those members of the Settlement Class as may be identified through reasonable effort. Lead Counsel shall also cause the Claims Administrator to have the Summary Notice published in accordance with the terms of the Preliminary Approval Order to be entered by the Court. For the purposes of identifying and providing notice to the Settlement Class, within ten (10) business days of the date of entry of the Preliminary Approval Order, BioScrip shall provide 22 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 25 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 24 of 110 or cause to be provided to the Claims Administrator in electronic format (at no cost to the Settlement Fund, Lead Counsel or the Claims Administrator) its shareholder lists (consisting of names and addresses) of the holders of BioScrip common stock during the Settlement Class Period. 26. The Claims Administrator shall receive Claims and determine first, whether the Claim is a valid Claim, in whole or part, and second, each Authorized Claimant’s pro rata share of the Net Settlement Fund based upon each Authorized Claimant’s Recognized Claim compared to the total Recognized Claims of all Authorized Claimants (as set forth in the Plan of Allocation set forth in the Notice attached hereto as Exhibit 1 to Exhibit A, or in such other plan of allocation as the Court approves). 27. The Plan of Allocation proposed in the Notice is not a necessary term of the Settlement or of this Stipulation and it is not a condition of the Settlement or of this Stipulation that any particular plan of allocation be approved by the Court. Lead Plaintiff and Lead Counsel may not cancel or terminate the Settlement (or this Stipulation) based on this Court’s or any appellate court’s ruling with respect to the Plan of Allocation or any other plan of allocation in this Action. Defendants and the other Released Defendant Persons shall not object in any way to the Plan of Allocation or any other plan of allocation in this Action. No Defendant, nor any other Released Defendant Persons, shall have any involvement with or liability, obligation, or responsibility whatsoever for the application of the Court-approved plan of allocation. 28. Any Settlement Class Member who does not submit a valid Claim Form will not be entitled to receive any distribution from the Net Settlement Fund, but will otherwise be bound by all of the terms of this Stipulation and Settlement, including the terms of the Judgment or, the Alternate Judgment, if applicable, to be entered in the Action and the releases provided for herein and therein, and will be permanently barred and enjoined from bringing any action, claim, or other 23 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 26 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 25 of 110 proceeding of any kind against the Released Defendant Persons with respect to the Released Plaintiffs’ Claims in the event that the Effective Date occurs with respect to the Settlement. 29. Lead Counsel shall be responsible for supervising the administration of the Settlement and the disbursement of the Net Settlement Fund subject to Court approval. No Defendant, or any other Released Defendant Persons, shall be permitted to review, contest or object to any Claim Form, or any decision of the Claims Administrator or Lead Counsel with respect to accepting or rejecting any Claim for payment by a Settlement Class Member. Lead Counsel shall have the right, but not the obligation, to waive what it deems to be formal or technical defects in any Claim Forms submitted in the interests of achieving substantial justice. 30. For purposes of determining the extent, if any, to which a Settlement Class Member shall be entitled to be treated as an Authorized Claimant, the following conditions shall apply: (a) Each Settlement Class Member shall be required to submit a Claim Form, substantially in the form attached hereto as Exhibit 2 to Exhibit A, supported by such documents as are designated therein, including proof of the Claimant’s loss, or such other documents or proof as the Claims Administrator or Lead Counsel, in their discretion, may deem acceptable; (b) All Claim Forms must be submitted by the date set by the Court in the Preliminary Approval Order and specified in the Notice. Any Settlement Class Member who fails to submit a Claim Form by such date shall be forever barred from receiving any distribution from the Net Settlement Fund or payment pursuant to this Stipulation (unless by Order of the Court such Settlement Class Member’s Claim Form is accepted), but shall in all other respects be bound by all of the terms of this Stipulation and the Settlement, including the terms of the Judgment or Alternate Judgment, if applicable, and the Releases provided for herein and therein, and will be 24 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 27 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 26 of 110 permanently barred and enjoined from bringing any action, claim or other proceeding of any kind against any Released Defendant Persons with respect to any Released Plaintiffs’ Claim. Provided that it is mailed by the claim-submission deadline, a Claim Form shall be deemed to be submitted when postmarked, if received with a postmark indicated on the envelope and if mailed by first- class mail and addressed in accordance with the instructions thereon. In all other cases, the Claim Form shall be deemed to have been submitted on the date when actually received by the Claims Administrator; (c) Each Claim Form shall be submitted to and reviewed by the Claims Administrator who shall determine in accordance with this Stipulation and the plan of allocation the extent, if any, to which each Claim shall be allowed, subject to review by the Court pursuant to subparagraph (e) below as necessary. (d) Claim Forms that do not meet the submission requirements may be rejected. Prior to rejecting a Claim in whole or in part, the Claims Administrator shall communicate with the Claimant in writing, to give the Claimant the chance to remedy any curable deficiencies in the Claim Form submitted. The Claims Administrator shall notify, in a timely fashion and in writing, all Claimants whose Claim the Claims Administrator proposes to reject in whole or in part, setting forth the reasons therefor, and shall indicate in such notice that the Claimant whose Claim is to be rejected has the right to a review by the Court if the Claimant so desires and complies with the requirements of subparagraph (e) below; and (e) If any Claimant whose Claim has been rejected in whole or in part desires to contest such rejection, the Claimant must, within twenty (20) days after the date of mailing of the notice required in subparagraph (e) above, serve upon the Claims Administrator a notice and statement of reasons indicating the Claimant’s grounds for contesting the rejection along with any 25 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 28 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 27 of 110 supporting documentation, and requesting a review thereof by the Court. If a dispute concerning a Claim cannot be otherwise resolved, Lead Counsel shall thereafter present the request for review to the Court. 31. Each Claimant shall be deemed to have submitted to the jurisdiction of the Court with respect to the Claimant’s Claim, and the Claim will be subject to investigation and discovery under the Federal Rules of Civil Procedure, provided, however, that such investigation and discovery shall be limited to that Claimant’s status as a Settlement Class Member and the validity and amount of the Claimant’s Claim. No discovery shall be allowed on the merits of this Action or of the Settlement in connection with the processing of Claim Forms. 32. Lead Counsel will apply to the Court, on notice to Defendants’ Counsel, for a Class Distribution Order: (a) approving the Claims Administrator’s administrative determinations concerning the acceptance and rejection of the Claims submitted; (b) approving payment of any administration fees and expenses associated with the administration of the Settlement from the Escrow Account; and (c) if the Effective Date has occurred, directing payment of the Net Settlement Fund to Authorized Claimants from the Escrow Account. 33. Payment pursuant to the Class Distribution Order shall be final and conclusive against all Settlement Class Members. All Settlement Class Members whose Claims are not approved by the Court for payment shall be barred from participating in distributions from the Net Settlement Fund, but otherwise shall be bound by all of the terms of this Stipulation and the Settlement, including the terms of the Judgment or Alternate Judgment, if applicable, to be entered in this Action and the Releases provided for herein and therein, and will be permanently barred and enjoined from bringing any action against any and all Released Defendant Persons with respect to any and all of the Released Plaintiffs’ Claims. 26 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 29 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 28 of 110 34. No person or entity shall have any claim against Lead Plaintiff, Lead Counsel, the Claims Administrator or any other agent designated by Lead Counsel, or the Released Defendant Persons and/or their respective counsel, arising from distributions made substantially in accordance with the Stipulation, the plan of allocation approved by the Court, or any order of the Court. Lead Plaintiff and Released Defendant Persons, and their respective counsel, and Lead Plaintiff’s damages expert and all other Releasees shall have no liability whatsoever for the investment or distribution of the Settlement Fund or the Net Settlement Fund, the plan of allocation, or the determination, administration, calculation, or payment of any claim or nonperformance of the Claims Administrator, the payment or withholding of taxes (including interest and penalties) owed by the Settlement Fund, or any losses incurred in connection therewith. 35. All proceedings with respect to the administration, processing, and determination of Claims and the determination of all controversies relating thereto, including disputed questions of law and fact with respect to the validity of Claims, shall be subject to the jurisdiction of the Court. All Settlement Class Members and Parties to this Settlement expressly waive trial by jury (to the extent any such right may exist) and any right of appeal or review with respect to such determinations. TERMS OF THE JUDGMENT 36. If the Settlement contemplated by this Stipulation is approved by the Court, Lead Counsel and Defendants’ Counsel shall request that the Court enter a Judgment, substantially in the form attached hereto as Exhibit B. 27 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 30 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 29 of 110 CONDITIONS OF SETTLEMENT AND EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION 37. The Effective Date of the Settlement shall be deemed to occur on the occurrence or waiver of all of the following events: (a) the Court has entered the Preliminary Approval Order, substantially in the form set forth in Exhibit A attached hereto, as required by ¶ 3 above; (b) the Settlement Amount has been deposited into the Escrow Account in accordance with the provisions of ¶ 8 above; (c) BioScrip has not exercised its option to terminate the Settlement pursuant to the provisions of this Stipulation (including the Supplemental Agreement described in ¶ 41 below); (d) Lead Plaintiff has not exercised its option to terminate the Settlement pursuant to the provisions of this Stipulation; and (e) the Court has approved the Settlement as described herein, following notice to the Settlement Class and a hearing, as prescribed by Rule 23 of the Federal Rules of Civil Procedure, and entered the Judgment and the Judgment has become Final, or the Court has entered an Alternate Judgment and none of the Parties seek to terminate the Settlement and the Alternate Judgment has become Final. 38. Upon the occurrence of all of the events referenced in ¶ 37 above, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished and the Releases herein shall be effective. 39. If (i) BioScrip exercises its right to terminate the Settlement as provided in this Stipulation; (ii) Lead Plaintiff exercises its right to terminate the Settlement as provided in this Stipulation; (iii) the Court disapproves the Settlement; or (iv) the Effective Date as to the Settlement otherwise fails to occur, then: 28 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 31 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 30 of 110 (a) The Settlement and the relevant portions of this Stipulation shall be canceled and terminated. (b) Lead Plaintiff and Defendants shall revert to their respective positions in the Action as of October 30, 2015. (c) The terms and provisions of this Stipulation, with the exception of this ¶ 39 and ¶¶ 17, 20, 42 and 67, shall have no further force and effect with respect to the Parties and shall not be used in the Action or in any other proceeding for any purpose, and any Judgment, or Alternate Judgment, if applicable, or order entered by the Court in accordance with the terms of this Stipulation shall be treated as vacated, nunc pro tunc. (d) Within five (5) business days after joint written notification of termination is sent by Defendants’ Counsel and Lead Counsel to the Escrow Agent, the Settlement Fund (including accrued interest thereon and any funds received by Lead Counsel consistent with ¶ 20 above), less any Notice and Administration Costs actually incurred, paid or payable and less any Taxes paid, due or owing shall be refunded by the Escrow Agent to BioScrip (or such other persons or entities as BioScrip may direct). In the event that the funds received by Lead Counsel consistent with ¶ 20 above have not been refunded to the Settlement Fund within the five (5) business days specified in this paragraph, those funds shall be refunded by the Escrow Agent to BioScrip (or such other persons or entities as BioScrip may direct) immediately upon their deposit into the Escrow Account consistent with ¶ 20 above. (e) At the request of any Defendant or Lead Plaintiff, the Escrow Agent or its designee shall apply for any tax refund owed to the Settlement Fund and pay the proceeds of the tax refund, after deduction of any fees and expenses incurred in connection with such application(s) for refund, to BioScrip (or such other persons or entities as BioScrip may direct). 29 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 32 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 31 of 110 40. It is further stipulated and agreed that Lead Plaintiff and BioScrip shall each have the right to terminate the Settlement and this Stipulation, by providing written notice of their election to do so (“Termination Notice”) to the other Parties to this Stipulation within thirty (30) days of: (a) the Court’s final refusal to enter the Preliminary Approval Order in any material respect; (b) the Court’s final refusal to approve the Settlement or any material part thereof; (c) the Court’s final refusal to enter the Judgment in any material respect as to the Settlement; (d) the date upon which the Judgment is modified or reversed in any material respect by the United States Court of Appeals for the Second Circuit or the United States Supreme Court; or (e) the date upon which an Alternate Judgment is modified or reversed in any material respect by the United States Court of Appeals for the Second Circuit or the United States Supreme Court, and the provisions of ¶ 39 above shall apply. However, any decision or proceeding, whether in this Court or any appellate court, with respect to an application for attorneys’ fees or reimbursement of Litigation Expenses or with respect to any plan of allocation shall not be considered material to the Settlement, shall not affect the finality of any Judgment or Alternate Judgment, if applicable, and shall not be grounds for termination of the Settlement. 41. In addition to the grounds set forth in ¶ 40 above, BioScrip shall have the unilateral right to terminate the Settlement in the event that Settlement Class Members timely and validly requesting exclusion from the Settlement Class meet the conditions set forth in Bioscrip’s confidential supplemental agreement with Lead Plaintiff (the “Supplemental Agreement”), in accordance with the terms of that agreement. The Supplemental Agreement, which is being executed concurrently herewith, shall not be filed with the Court and its terms shall not be disclosed in any other manner (other than the statements herein and in the Notice, to the extent necessary, or as otherwise provided in the Supplemental Agreement) unless and until the Court 30 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 33 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 32 of 110 otherwise directs or a dispute arises between Lead Plaintiff and BioScrip concerning its interpretation or application. NO ADMISSION OF WRONGDOING 42. Neither this Stipulation (whether or not consummated), including the exhibits hereto and the Plan of Allocation contained therein (or any other plan of allocation that may be approved by the Court), the negotiations leading to the execution of this Stipulation, nor any proceedings taken pursuant to or in connection with this Stipulation and/or approval of the Settlement (including any arguments proffered in connection therewith): (a) shall be offered against any of the Released Defendant Persons as evidence of, or construed as, or deemed to be evidence of any presumption, concession, or admission by any of the Released Defendant Persons with respect to the truth of any fact alleged by Lead Plaintiff or the validity of any claim that was or could have been asserted or the deficiency of any defense that has been or could have been asserted in this Action or in any other litigation, or of any liability, negligence, fault, or other wrongdoing of any kind of any of the Released Defendant Persons or in any way referred to for any other reason as against any of the Released Defendant Persons, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Stipulation; provided, however, that Released Defendant Persons may file the Stipulation and/or the Judgment and/or the Alternate Judgment in any action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim; 31 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 34 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 33 of 110 (b) shall be offered against any of the Released Plaintiff Persons, as evidence of, or construed as, or deemed to be evidence of any presumption, concession or admission by any of the Released Plaintiff Persons that any of their claims are without merit, that any of the Released Defendant Persons had meritorious defenses, or that damages recoverable under the Complaint would not have exceeded the Settlement Amount or with respect to any liability, negligence, fault or wrongdoing of any kind, or in any way referred to for any other reason as against any of the Released Plaintiff Persons, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of this Stipulation; or (c) shall be construed against any of the Releasees as an admission, concession, or presumption that the consideration to be given hereunder represents the amount which could be or would have been recovered after trial; provided, however, that if this Stipulation is approved by the Court, the Parties and the Releasees and their respective counsel may refer to it to effectuate the protections from liability granted hereunder or otherwise to enforce the terms of the Settlement. MISCELLANEOUS PROVISIONS 43. No later than ten (10) days after the Stipulation is filed with the Court, Defendants shall, at Defendants’ expense, serve or caused to be served proper notice of the proposed Settlement upon the appropriate federal and state officials pursuant to the Class Action Fairness Act, 28 U.S.C. § 1715(b)-(c). Simultaneously, Defendants shall provide a copy of such notice as well as proof of service of such notice to Lead Counsel. 44. The Parties acknowledge and warrant as follows: (a) By executing this Stipulation, each of the Parties represents that they have carefully read and fully understand this Stipulation and its final and binding effect; 32 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 35 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 34 of 110 (b) By executing this Stipulation, each of the Parties represents that the execution and delivery of this Stipulation and the performance of each and every obligation in this Stipulation do not and will not result in a breach of or constitute a default under, or require any consent under, any duty, relationship, contract, agreement, covenant, promise, guarantee, obligation or instrument to which the executing Party is a party or by which the executing Party is bound or affected. (c) By executing this Stipulation, each of the Parties represents that there is no demand for monetary, non-monetary, or injunctive relief, or any civil, criminal, administrative, or arbitration proceeding for monetary, non-monetary, or injunctive relief known or suspected to exist against them that would affect this Stipulation or their ability to enter into, execute or perform each and every obligation in this Stipulation. (d) By executing this Stipulation, each of the Parties represents that this Stipulation is fair and is executed voluntarily, with full knowledge of the consequences and implications of the obligations contained herein. (e) By executing this Stipulation, each of the Parties represents that this Stipulation is not the result of any fraud, duress, or undue influence, and that they have not assigned, transferred, or conveyed or purported to assign, transfer, or convey, voluntarily, involuntarily or by operation of law, any or all of their respective rights and claims. (f) By executing this Stipulation, each of the Parties represents that they have had the opportunity to be represented by counsel of their choice that is duly licensed to practice in the State of New York throughout the negotiations which preceded the execution of this Stipulation and in connection with the preparation and execution of this Stipulation. 33 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 36 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 35 of 110 (g) By executing this Stipulation, each of the Parties represents that they have been afforded sufficient time and opportunity to review this Stipulation with advisors and counsel of their choice. 45. All of the exhibits attached hereto are hereby incorporated by reference as though fully set forth herein. Notwithstanding the foregoing, in the event that there exists a conflict or inconsistency between the terms of this Stipulation and the terms of any exhibit attached hereto, the terms of the Stipulation shall prevail. 46. The terms of the Settlement, as reflected in this Stipulation, may not be modified or amended, nor may any of its provisions be waived, except by a writing signed on behalf of both Lead Plaintiff and Defendants (or their successors-in-interest). 47. This Stipulation and its exhibits and the Supplemental Agreement constitute the entire agreement among Lead Plaintiff and Defendants concerning the Settlement and this Stipulation and its exhibits. All Parties acknowledge that no other agreements, representations, warranties, or inducements have been made by any Party hereto concerning this Stipulation, its exhibits or the Supplemental Agreement other than those contained and memorialized in such documents. 48. Except as otherwise provided herein, each Party shall bear its own costs. 49. Lead Plaintiff, on behalf of the Settlement Class, is expressly authorized to take all appropriate action required or permitted to be taken by the Settlement Class pursuant to this Stipulation to effectuate its terms and is also expressly authorized to enter into any modifications or amendments to this Stipulation on behalf of the Settlement Class that: (a) are not materially inconsistent with the Judgment entered by the Court; and (b) do not materially limit the rights of Settlement Class Members in connection with the Settlement. 34 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 37 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 36 of 110 50. This Stipulation may be executed in one or more counterparts, including by signature transmitted via facsimile, or by a .pdf/.tif image of the signature transmitted via email. All executed counterparts and each of them shall be deemed to be one and the same instrument. The Parties shall exchange among themselves original signed counterparts of this Stipulation, and a complete set of executed counterparts of this Stipulation shall be filed with the Court. 51. This Stipulation shall be binding upon and inure to the benefit of the successors and assigns of the Parties, including any and all Releasees and any corporation, partnership, or other entity into or with which any Party hereto may merge, consolidate or reorganize. No assignment shall relieve any party hereto of any obligations hereunder. 52. The construction, interpretation, operation, effect and validity of this Stipulation, the Supplemental Agreement and all documents necessary to effectuate it shall be governed by the internal laws of the State of New York without regard to conflicts of laws, except to the extent that federal law requires that federal law govern. 53. The administration and consummation of the Settlement as embodied in this Stipulation shall be under the authority of the Court, and the Court shall retain jurisdiction for the purpose of entering orders providing for awards of attorneys’ fees and Litigation Expenses to Plaintiffs’ Counsel and enforcing the terms of this Stipulation, including the Plan of Allocation (or such other plan of allocation as may be approved by the Court) and the distribution of the Net Settlement Fund to Settlement Class Members. 54. The headings herein are used for the purpose of convenience only and are not meant to have legal effect. 55. BioScrip warrants that, as to the payments made or to be made by or on behalf of it and the other Defendants, at the time of entering into this Stipulation and at the time of such 35 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 38 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 37 of 110 payment, BioScrip, or to its knowledge any persons or entities contributing to the payment of the Settlement Amount, were not insolvent, nor will the payment required to be made by or on behalf of it and the other Defendants render them insolvent, within the meaning of and/or for the purposes of the United States Bankruptcy Code, including §§ 101 and 547 thereof. This representation is made by BioScrip and not by its counsel. 56. In the event of the entry of a final order of a court of competent jurisdiction determining the transfer of money to the Settlement Fund or any portion thereof by or on behalf of Defendants to be a preference, voidable transfer, fraudulent transfer, or similar transaction and any portion thereof is required to be returned, and such amount is not promptly deposited into the Settlement Fund by others, then, at the election of Lead Plaintiff, Lead Plaintiff and Defendants shall jointly move the Court to vacate and set aside the Releases given and the Judgment or Alternate Judgment, if applicable, entered in favor of Defendants and the other Releasees pursuant to this Stipulation, in which event the releases and Judgment, or Alternate Judgment, if applicable, shall be null and void, and the Parties shall be restored to their respective positions in the litigation as provided in ¶ 39 above and any cash amounts in the Settlement Fund (less any Taxes paid, due or owing with respect to the Settlement Fund and less any Notice and Administration Costs actually incurred, paid or payable) shall be returned as provided in ¶ 39. 57. The Parties intend this Stipulation and the Settlement to be a final and complete resolution of all disputes asserted or which could be asserted by Lead Plaintiff and any other Settlement Class Members against the Released Defendant Persons with respect to the Released Plaintiffs’ Claims. Accordingly, Lead Plaintiff and its counsel and Defendants and their counsel agree not to assert in any forum that this Action was brought by Lead Plaintiff or defended by Defendants in bad faith or without a reasonable basis. No Party shall assert any claims of any 36 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 39 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 38 of 110 violation of Rule 11 of the Federal Rules of Civil Procedure relating to the institution, prosecution, defense, or settlement of this Action. The Parties agree that the amounts paid and the other terms of the Settlement were negotiated at arm’s-length and in good faith by the Parties, including through a mediation process supervised and conducted by Judge Phillips, and reflect the Settlement that was reached voluntarily after extensive negotiations and consultation with experienced legal counsel, who were fully competent to assess the strengths and weaknesses of their respective clients’ claims or defenses. 58. While retaining their right to deny that the claims asserted in the Action were meritorious, Defendants and their counsel, in any statement made to any media representative (whether or not for attribution) will not assert that the Action was commenced or prosecuted in bad faith, nor will they deny that the Action was commenced and prosecuted in good faith and is being settled voluntarily after consultation with competent legal counsel. In all events, Lead Plaintiff and its counsel and Defendants and their counsel shall not make any accusations of wrongful or actionable conduct by either Party concerning the prosecution, defense, and resolution of the Action, and shall not otherwise suggest that the Settlement constitutes an admission of any claim or defense alleged. 59. The waiver by one Party of any breach of this Stipulation by any other Party shall not be deemed a waiver of any other prior or subsequent breach of this Stipulation. The provisions of this Stipulation may not be waived except by a writing signed by the affected Party or counsel for that Party. No failure or delay on the part of any Party in exercising any right, remedy, power, or privilege under this Stipulation shall operate as a waiver thereof or of any other right, remedy, power, or privilege of such Party under this Stipulation; nor shall any single or partial exercise of any right, remedy, power, or privilege under this Stipulation on the part of any Party operate as a 37 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 40 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 39 of 110 waiver thereof or of any other right, remedy, power, or privilege of such Party under this Stipulation, or preclude further exercise thereof or the exercise of any other right, remedy, power, or privilege. 60. The Parties agree that nothing contained in this Stipulation shall cause any Party to be the agent or legal representative of another Party for any purpose whatsoever, nor shall this Stipulation be deemed to create any form of business organization between the Parties, nor is any Party granted any right or authority to assume or create any obligation or responsibility on behalf of any other Party, nor shall any Party be in any way liable for any debt of another Party as a result of this Stipulation except as explicitly set forth herein. 61. Any action arising under or to enforce this Stipulation or any portion thereof, shall be commenced and maintained only in the Court. 62. This Stipulation shall not be construed more strictly against one Party than another merely by virtue of the fact that it, or any part of it, may have been prepared by counsel for one of the Parties, it being recognized that this Stipulation is the result of arm’s-length negotiations between the Parties and all Parties have contributed substantially and materially to the preparation of this Stipulation. 63. All counsel and any other person executing this Stipulation and any of the exhibits hereto, or any related Settlement documents, warrant and represent that they have the right, legal capacity, power, and authority to enter into this Stipulation and to perform their obligations hereunder, without the further consent, approval, or authorization of any person, board, entity, tribunal, or other regulatory or governmental authority. 64. Lead Counsel and Defendants’ Counsel agree to cooperate fully with one another in seeking Court approval of the Preliminary Approval Order and the Settlement, as embodied in 38 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 41 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 40 of 110 this Stipulation, and to use best efforts to promptly agree upon and execute all such other documentation as may be reasonably required to obtain final approval by the Court of the Settlement. 65. All agreements made and orders entered during the course of the Action relating to the confidentiality of documents and information shall survive this Stipulation. 66. If any Party is required to give notice to another Party under this Stipulation, such notice shall be in writing and shall be deemed to have been duly given upon receipt of hand delivery or facsimile or email transmission, with confirmation of receipt. Notice shall be provided as follows: If to Lead Plaintiff or Lead Counsel: Bernstein Litowitz Berger & Grossmann LLP Attn: Hannah G. Ross, Esq. 1251 Avenue of the Americas, 44th Floor New York, NY 10020 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 Email: [email protected] If to BioScrip or the Individual Kirkland & Ellis LLP Defendants: Attn: Shireen A. Barday, Esq. 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 Email: [email protected] With a copy, which shall not BioScrip, Inc. constitute notice, to: Attn: Matthew F. Dexter, Esq. 100 Clearbrook Road Elmsford, NY 10523 Telephone: (914) 460-1600 Facsimile: (914) 371-2368 Email: [email protected] 39 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 42 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 41 of 110 If to the Underwriter Defendants: O’Melveny & Myers LLP Attn: Jonathan Rosenberg, Esq. William Sushon, Esq. 7 Times Square New York, NY 10036 Telephone: (212) 326-2000 Facsimile: (212) 326-2061 Email: [email protected] If to Kohlberg: Paul, Weiss, Rifkind, Wharton & Garrison LLP Attn: Leslie Gordon Fagen, Esq. 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 Email: [email protected] 67. Whether or not the Stipulation is approved by the Court and whether or not the Stipulation is consummated, or the Effective Date occurs, the Parties and their counsel shall use their best efforts to keep all negotiations, discussions, acts performed, agreements, drafts, documents signed and proceedings in connection with the Stipulation confidential. 68. No opinion or advice concerning the tax consequences of the proposed Settlement to individual Settlement Class Members is being given or will be given by the Parties or their counsel; nor is any representation or warranty in this regard made by virtue of this Stipulation. Each Settlement Class Member’s tax obligations, and the determination thereof, are the sole responsibility of the Settlement Class Member, and it is understood that the tax consequences may vary depending on the particular circumstances of each individual Settlement Class Member. 69. This Stipulation shall be construed and interpreted to effectuate the intent of the Parties, which is to resolve completely those claims and disputes as more fully described herein. 70. Pending approval of the Court of the Stipulation and its exhibits, all proceedings in the Action shall be stayed and Lead Plaintiff and all members of the Settlement Class shall be 40 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 43 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 42 of 110 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 44 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 43 of 110 barred and enjoined from prosecuting any of the Released Plaintiffs' Claims again the Released Defendant Persons. IN WITNESS WHEREOF, the Parties hereto have caused this Stipulation to be executed, by their duly authorized attorneys, as of December 18, 2015. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP By: Hannah G. Ross 1251 Avenue of the Americas, 44th Floor New York, NY 10020 Telephone: (212) 5541400 Facsimile: (212) 5541444 Lead Counsel for Lead Plaintiff and the Settlement Class KIRKLAND & ELLIS LLP New York, NY 10022 Telephone: (212) 4464800 Facsimile: (212)4464900 Counsel for Defendants BioScrip, Inc., Richard M. Smith, Hai V Tran, Patricia Bogusz, Myron Z. Holubiak, Charlotte W. Collins, Samuel P. Frieder, David R. Hubers, Richard L. Robbins, Stuart A. Samuels, Gordon H. Woodward, and Kimberlee Seah 41 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 45 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 44 of 110 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 46 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 45 of 110 O'MELVENY & MYERS LLP By: Jonathan Rosenberg William J. Sushon 7 Times Square New York, NY 10036 Telephone: (212) 326-2000 Facsimile: (212) 326-2061 Counsel for Defendants Jefferies LLC, Morgan Stanley & Co., SunTrust Robinson Humphrey, Inc., Dougherty & Co., and Noble International Investments, Inc. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Leslie Gordon Fagen Daniel J. Kramer Robert N. Kravitz 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 Counsel for Kohlberg & Co., LLC 42 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 47 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 46 of 110 Exhibit A Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 48 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 47 of 110 Exhibit A UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE BIOSCRIP, INC. SECURITIES Civil Action No. 13-cv-6922-AJN LITIGATION [PROPOSED] ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR NOTICE WHEREAS, a consolidated class action is pending in this Court entitled In re BioScrip, Inc. Securities Litigation, No. 13-cv-6922 (AJN) (the “Action”); WHEREAS, (a) Lead Plaintiff Fresno County Employees’ Retirement Association, on behalf of itself and the Settlement Class (defined below), and (b) defendants BioScrip, Inc. (“BioScrip”), Richard M. Smith, Hai V. Tran, Patricia Bogusz, Myron Z. Holubiak, Charlotte W. Collins, Samuel P. Frieder, David R. Hubers, Richard L. Robbins, Stuart A. Samuels, Gordon H. Woodward, and Kimberlee Seah (the “Individual Defendants”); Jefferies LLC, Morgan Stanley & Co. LLC, SunTrust Robinson Humphrey, Inc., Dougherty & Company, and Noble International Investments, Inc. (the “Underwriter Defendants”) and Kohlberg & Co., LLC (“Kohlberg” and, together with BioScrip, the Individual Defendants and the Underwriter Defendants, the “Defendants,” and, together with Lead Plaintiff, the “Parties”), have determined to settle all claims asserted against Defendants in this Action with prejudice on the terms and conditions set forth in the Stipulation and Agreement of Settlement dated December 18, 2015 (the “Stipulation”) subject to approval of this Court (the “Settlement”); WHEREAS, Lead Plaintiff has made an application, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for an order preliminarily approving the Settlement in accordance with the Stipulation, certifying the Settlement Class for purposes of the Settlement only, and allowing Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 49 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 48 of 110 notice to members of the Settlement Class (the “Settlement Class Members”) as more fully described herein; WHEREAS, the Court has read and considered: (a) Lead Plaintiff’s motion for preliminary approval of the Settlement, and the papers filed and arguments made in connection therewith; and (b) the Stipulation and the exhibits attached thereto; and WHEREAS, unless otherwise defined herein, all capitalized words contained herein shall have the same meanings as they have in the Stipulation; NOW THEREFORE, IT IS HEREBY ORDERED: 1. Class Certification for Settlement Purposes – Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, the Court preliminarily certifies, solely for purposes of effectuating the proposed Settlement, a Settlement Class consisting of all persons and entities who purchased the common stock of BioScrip during the period from November 9, 2012 through November 6, 2013, inclusive (the “Settlement Class Period”), and were damaged thereby. Excluded from the Settlement Class are: (i) Defendants; (ii) members of the immediate families of the Individual Defendants; (iii) the subsidiaries of BioScrip, the Underwriter Defendants, and Kohlberg; (iv) any persons who served as partners, control persons, officers, and/or directors of BioScrip, the Underwriter Defendants, or Kohlberg during the Settlement Class Period and/or at any other relevant time; (v) any firm, trust, corporation, or other entity in which any Defendant has or had a controlling interest; (vi) Defendants’ liability insurance carriers; and (vii) the legal representatives, heirs, successors, and assigns of any such excluded party. Also excluded from the Settlement Class are any persons or entities who or which exclude themselves by submitting a request for exclusion that is accepted by the Court. 2 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 50 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 49 of 110 2. Class Findings – The Court finds, preliminarily and solely for purposes of the proposed Settlement of this Action, that each element required for certification of the Settlement Class pursuant to Rule 23 of the Federal Rules of Civil Procedure has been met: (a) the members of the Settlement Class are so numerous that their joinder in the Action would be impracticable; (b) there are questions of law and fact common to the Settlement Class; (c) the claims of Lead Plaintiff Fresno County Employees’ Retirement Association and additional named plaintiff West Palm Beach Police Pension Fund (collectively, “Plaintiffs”) in the Action are typical of the claims of the Settlement Class they seek to represent; (d) Plaintiffs and Lead Counsel have and will fairly and adequately represent and protect the interests of the Settlement Class; (e) the questions of law and fact common to the members of the Settlement Class predominate over any questions affecting only individual members of the Settlement Class; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the Action. 3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court finds, preliminarily and solely for the purposes of the proposed Settlement of this Action, that Plaintiffs are adequate class representatives and certifies them as Class Representatives for the Settlement Class. The Court also appoints Lead Counsel, Bernstein Litowitz Berger & Grossmann LLP, as Class Counsel for the Settlement Class, pursuant to Rule 23(g) of the Federal Rules of Civil Procedure. 4. Preliminary Approval of the Settlement – The Court hereby preliminarily approves the Settlement, as embodied in the Stipulation, as being fair, reasonable, and adequate to the Settlement Class, subject to further consideration at the Settlement Hearing to be conducted as described below. 3 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 51 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 50 of 110 5. Settlement Hearing – The Court will hold a settlement hearing (the “Settlement Hearing”) pursuant to Federal Rule of Procedure 23(e) on ______, 2016 at __:__ _.m. in Courtroom 906 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007, for the following purposes: (a) to determine for purposes of settlement whether the Action satisfies the applicable prerequisites for class action treatment under Federal Rules of Civil Procedure 23(a) and (b); (b) to determine whether the proposed Settlement on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate to the Settlement Class, and should be approved by the Court; (c) to determine whether a Judgment substantially in the form attached as Exhibit B to the Stipulation should be entered dismissing the Action with prejudice against Defendants; (d) to determine whether the proposed Plan of Allocation for the proceeds of the Settlement is fair and reasonable and should be approved; (e) to determine whether the motion by Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses should be approved; (f) to consider any Settlement Class Members’ objections to the Settlement, the Plan of Allocation, and/or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses; and (g) to consider any other matters that may properly be brought before the Court in connection with the Settlement. Notice of the Settlement and the Settlement Hearing shall be given to Settlement Class Members as set forth in paragraph 9 of this Order. 4 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 52 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 51 of 110 6. The Released Defendant Persons shall have no responsibility for the Plan of Allocation or any application for attorneys’ fees or reimbursement of Litigation Expenses submitted by Lead Counsel, and such matters will be considered separately from the fairness, reasonableness, and adequacy of the Settlement. 7. The Court may adjourn the Settlement Hearing to a later date without further notice to the Settlement Class. The Court may enter the Judgment approving the Settlement and dismissing the Complaint with prejudice, regardless of whether it has approved the Plan of Allocation or awarded attorneys’ fees or reimbursement of Litigation Expenses. 8. The Court may approve the proposed Settlement with such modifications as the Parties may agree to, if appropriate, and without further notice to the Settlement Class where to do so would not materially limit the rights of Settlement Class Members. 9. Retention of Claims Administrator and Manner of Giving Notice – Lead Counsel is hereby authorized to retain A.B. Data, Ltd. (the “Claims Administrator”), solely for the purposes of the proposed Settlement of this Action, to supervise and administer the notice procedure in connection with the proposed Settlement as well as the processing of Claims as more fully set forth below. Notice of the Settlement and the Settlement Hearing shall be given by Lead Counsel as follows: (a) within ten (10) business days of the date of entry of this Order, BioScrip shall provide or cause to be provided to the Claims Administrator in electronic format (at no cost to the Settlement Fund, Lead Counsel, or the Claims Administrator) its shareholder lists (consisting of names and addresses) of the holders of BioScrip common stock during the Settlement Class Period; 5 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 53 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 52 of 110 (b) not later than twenty (20) business days after the date of entry of this Order (the “Notice Date”), the Claims Administrator shall cause a copy of the Notice and the Claim Form, substantially in the forms attached hereto as Exhibits 1 and 2, respectively (the “Notice Packet”), to be mailed by first-class mail to potential Settlement Class Members at the addresses set forth in the records provided by BioScrip or in the records which BioScrip caused to be provided, or who otherwise may be identified through further reasonable effort; (c) contemporaneously with the mailing of the Notice Packet, the Claims Administrator shall cause copies of the Notice and the Claim Form to be posted on a website to be developed for the Settlement, from which copies of the Notice and Claim Form can be downloaded; (d) not later than ten (10) business days after the Notice Date, the Claims Administrator shall cause the Summary Notice, substantially in the form attached hereto as Exhibit 3, to be published once in Investor’s Business Daily and to be transmitted once over the PR Newswire; and (e) not later than seven (7) calendar days prior to the Settlement Hearing, Lead Counsel shall serve on Defendants’ Counsel and file with the Court proof, by affidavit or declaration, of such mailing and publication. 10. Approval of Form and Content of Notice – The Court (a) approves, as to form and content, the Notice, the Claim Form, and the Summary Notice, attached hereto as Exhibits 1, 2, and 3, respectively, and (b) finds that the mailing and distribution of the Notice and Claim Form and the publication of the Summary Notice in the manner and form set forth in paragraph 9 of this Order (i) is the best notice practicable under the circumstances; (ii) constitutes notice that is reasonably calculated, under the circumstances, to apprise Settlement Class Members of the 6 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 54 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 53 of 110 pendency of the Action, of the effect of the proposed Settlement (including the Releases to be provided thereunder), of Lead Counsel’s motion for an award an attorneys’ fees and reimbursement of Litigation Expenses, of their right to object to the Settlement, the Plan of Allocation and/or Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses, of their right to exclude themselves from the Settlement Class, and of their right to appear at the Settlement Hearing; (iii) constitutes due, adequate, and sufficient notice to all persons and entities entitled to receive notice of the proposed Settlement; and (iv) satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §§ 77z-1(a)(7), 78u-4(a)(7), and all other applicable law and rules. The date and time of the Settlement Hearing shall be included in the Notice and Summary Notice before they are mailed and published, respectively. 11. Nominee Procedures – Brokers and other nominees who purchased BioScrip common stock during the Settlement Class Period for the benefit of another person or entity shall (a) within seven (7) calendar days of receipt of the Notice, request from the Claims Administrator sufficient copies of the Notice Packet to forward to all such beneficial owners and within seven (7) calendar days of receipt of those Notice Packets forward them to all such beneficial owners; or (b) within seven (7) calendar days of receipt of the Notice, send a list of the names and addresses of all such beneficial owners to the Claims Administrator in which event the Claims Administrator shall promptly mail the Notice Packet to such beneficial owners. Upon full compliance with this Order, such nominees may seek reimbursement of their reasonable expenses actually incurred in complying with this Order by providing the Claims Administrator with proper documentation supporting the expenses for which reimbursement is sought. Such 7 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 55 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 54 of 110 properly documented expenses incurred by nominees in compliance with the terms of this Order shall be paid from the Settlement Fund, with any disputes as to the reasonableness or documentation of expenses incurred subject to review by the Court. 12. Participation in the Settlement – Settlement Class Members who wish to participate in the Settlement and to be eligible to receive a distribution from the Net Settlement Fund must complete and submit a Claim Form in accordance with the instructions contained therein. Unless the Court orders otherwise, all Claim Forms must be postmarked no later than one hundred twenty (120) calendar days after the Notice Date. Notwithstanding the foregoing, Lead Counsel may, at its discretion, accept for processing late Claims provided such acceptance does not delay the distribution of the Net Settlement Fund to the Settlement Class. By submitting a Claim, a person or entity shall be deemed to have submitted to the jurisdiction of the Court with respect to his, her, or its Claim and the subject matter of the Settlement. 13. Each Claim Form submitted must satisfy the following conditions: (a) it must be properly completed, signed, and submitted in a timely manner in accordance with the provisions of the preceding paragraph; (b) it must be accompanied by adequate supporting documentation for the transactions and holdings reported therein, in the form of broker confirmation slips, broker account statements, an authorized statement from the broker containing the transactional and holding information found in a broker confirmation slip or account statement, or such other documentation as is deemed adequate by Lead Counsel or the Claims Administrator; (c) if the person executing the Claim Form is acting in a representative capacity, a certification of his, her, or its current authority to act on behalf of the Settlement Class Member must be included in the Claim Form to the satisfaction of Lead Counsel or the Claims Administrator; and (d) the Claim 8 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 56 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 55 of 110 Form must be complete and contain no material deletions or modifications of any of the printed matter contained therein and must be signed under penalty of perjury. 14. Any Settlement Class Member that does not timely and validly submit a Claim Form or whose Claim is not otherwise approved by the Court, and that has not requested to exclude himself, herself, or itself from the Settlement Class as set forth in paragraph 15 below: (a) shall be deemed to have waived his, her or its right to share in the Net Settlement Fund; (b) shall be forever barred from participating in any distributions therefrom; (c) shall be bound by the provisions of the Stipulation and the Settlement and all proceedings, determinations, orders and judgments in the Action relating thereto, including, without limitation, the Judgment or Alternate Judgment, if applicable, and the Releases provided for therein, whether favorable or unfavorable to the Settlement Class; and (d) will be barred from commencing, maintaining or prosecuting any of the Released Plaintiffs’ Claims against each and all of the Released Defendant Persons, as more fully described in the Stipulation and Notice. Notwithstanding the foregoing, late Claim Forms may be accepted for processing as set forth in paragraph 12 above. 15. Exclusion From the Settlement Class – Any member of the Settlement Class who wishes to exclude himself, herself or itself from the Settlement Class must request exclusion in writing within the time and in the manner set forth in the Notice, which shall provide that: (a) any such request for exclusion from the Settlement Class must be mailed or delivered such that it is received no later than twenty-one (21) calendar days prior to the Settlement Hearing, to: In re BioScrip, Inc. Securities Litigation, EXCLUSIONS, c/o A.B. Data, Ltd., P.O. Box 170500, Milwaukee, WI 53217, and (b) each request for exclusion must (i) state the name, address, and telephone number of the person or entity requesting exclusion, and in the case of entities, the name and telephone number of the appropriate contact person; (ii) state that such person or entity 9 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 57 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 56 of 110 “requests exclusion from the Settlement Class in In re BioScrip, Inc. Securities Litigation, No. 13-cv-6922 (AJN)”; (iii) state the number of shares of BioScrip common stock that the person or entity requesting exclusion purchased and/or sold during the Settlement Class Period, as well as the dates and prices of each such purchase and sale; and (iv) be signed by the person or entity requesting exclusion or an authorized representative. A request for exclusion shall not be effective unless it provides all the required information and is received within the time stated above, or is otherwise accepted by the Court. 16. Any person or entity who or which timely and validly requests exclusion in compliance with the terms stated in this Order and is excluded from the Settlement Class shall not be a Settlement Class Member, shall not be bound by the terms of the Settlement or any orders or judgments in the Action, and shall not receive any payment out of the Net Settlement Fund. 17. Any Settlement Class Member who or which does not timely and validly request exclusion from the Settlement Class in the manner stated in this Order: (a) shall be deemed to have waived his, her or its right to be excluded from the Settlement Class; (b) shall be forever barred from requesting exclusion from the Settlement Class in this or any other proceeding; (c) shall be bound by the provisions of the Stipulation and Settlement and all proceedings, determinations, orders and judgments in the Action, including, but not limited to, the Judgment or Alternate Judgment, if applicable, and the Releases provided for therein, whether favorable or unfavorable to the Settlement Class; and (d) will be barred from commencing, maintaining or prosecuting any of the Released Plaintiffs’ Claims against any of the Released Defendant Persons, as more fully described in the Stipulation and Notice. 10 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 58 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 57 of 110 18. Appearance and Objections at Settlement Hearing – Any Settlement Class Member who does not request exclusion from the Settlement Class may enter an appearance in the Action, at his, her or its own expense, individually or through counsel of his, her or its own choice, by filing with the Clerk of Court and delivering a notice of appearance to both Lead Counsel and representative Defendants’ Counsel, at the addresses set forth in paragraph 19 below, such that it is received no later than twenty-one (21) calendar days prior to the Settlement Hearing, or as the Court may otherwise direct. Any Settlement Class Member who does not enter an appearance will be represented by Lead Counsel. 19. Any Settlement Class Member who does not request exclusion from the Settlement Class may file a written objection to the proposed Settlement, the proposed Plan of Allocation, and/or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses and appear and show cause, if he, she or it has any cause, why the proposed Settlement, the proposed Plan of Allocation and/or Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses should not be approved; provided, however, that no Settlement Class Member shall be heard or entitled to contest the approval of the terms and conditions of the proposed Settlement, the proposed Plan of Allocation and/or the motion for attorneys’ fees and reimbursement of Litigation Expenses unless that person or entity has filed a written objection with the Court and served copies of such objection on Lead Counsel and representative Defendants’ Counsel at the addresses set forth below such that they are received no later than twenty-one (21) calendar days prior to the Settlement Hearing. Lead Counsel Representative Defendants’ Counsel Bernstein Litowitz Berger & Kirkland & Ellis LLP Grossmann LLP Shireen A. Barday, Esq. Hannah G. Ross, Esq. 601 Lexington Avenue 1251 Avenue of the Americas, 44th Floor New York, NY 10022 11 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 59 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 58 of 110 New York, NY 10020 20. Any objections, filings and other submissions by the objecting Settlement Class Member: (a) must state the name, address, and telephone number of the person or entity objecting and must be signed by the objector; (b) must contain a statement of the Settlement Class Member’s objection or objections, and the specific reasons for each objection, including any legal and evidentiary support the Settlement Class Member wishes to bring to the Court’s attention; and (c) must include documents sufficient to prove membership in the Settlement Class, including the number of shares of BioScrip common stock that the objecting Settlement Class Member purchased and/or sold during the Settlement Class Period, as well as the dates and prices of each such purchase and sale. Objectors who enter an appearance and desire to present evidence at the Settlement Hearing in support of their objection must include in their written objection or notice of appearance the identity of any witnesses they may call to testify and any exhibits they intend to introduce into evidence at the hearing. 21. Any Settlement Class Member who or which does not make his, her, or its objection in the manner provided herein shall be deemed to have waived his, her, or its right to object to any aspect of the proposed Settlement, the proposed Plan of Allocation, and Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses and shall be forever barred and foreclosed from objecting to the fairness, reasonableness, or adequacy of the Settlement, the Plan of Allocation or the requested attorneys’ fees and Litigation Expenses, or from otherwise being heard concerning the Settlement, the Plan of Allocation or the requested attorneys’ fees and Litigation Expenses in this or any other proceeding. 22. Stay and Temporary Injunction – Until otherwise ordered by the Court, the Court stays all proceedings in the Action other than proceedings necessary to carry out or 12 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 60 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 59 of 110 enforce the terms and conditions of the Stipulation. Pending final determination of whether the Settlement should be approved, the Court bars and enjoins Lead Plaintiff, and all other members of the Settlement Class, from prosecuting any of the Released Plaintiffs’ Claims against the Released Defendant Persons. 23. Settlement Administration Fees and Expenses – All reasonable costs incurred in identifying Settlement Class Members and notifying them of the Settlement as well as in administering the Settlement shall be paid as set forth in the Stipulation without further order of the Court. 24. Settlement Fund – The contents of the Settlement Fund held by Valley National Bank (which the Court approves as the Escrow Agent), shall be deemed and considered to be in custodia legis of the Court, and shall remain subject to the jurisdiction of the Court, until such time as they shall be distributed pursuant to the Stipulation and/or further order(s) of the Court. 25. Taxes – Lead Counsel is authorized and directed to prepare any tax returns and any other tax reporting form for or in respect to the Settlement Fund, to pay from the Settlement Fund any Taxes owed with respect to the Settlement Fund, and to otherwise perform all obligations with respect to Taxes and any reporting or filings in respect thereof without further order of the Court in a manner consistent with the provisions of the Stipulation. 26. Termination of Settlement – If the Settlement is terminated as provided in the Stipulation, the Settlement is not approved, or the Effective Date of the Settlement otherwise fails to occur, this Order shall be vacated, rendered null and void, and be of no further force and effect, except as otherwise provided by the Stipulation, and this Order shall be without prejudice to the rights of Lead Plaintiff, the other Settlement Class Members and Defendants, and the 13 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 61 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 60 of 110 Parties shall revert to their respective positions in the Action as of October 30, 2015, as provided in the Stipulation. 27. Use of this Order – Neither this Order, the Stipulation (whether or not consummated), including the exhibits thereto and the Plan of Allocation contained therein (or any other plan of allocation that may be approved by the Court), the negotiations leading to the execution of the Stipulation, nor any proceedings taken pursuant to or in connection with the Stipulation and/or approval of the Settlement (including any arguments proffered in connection therewith): (a) shall be offered against any of the Released Defendant Persons as evidence of, or construed as, or deemed to be evidence of any presumption, concession, or admission by any of the Released Defendant Persons with respect to the truth of any fact alleged by Lead Plaintiff or the validity of any claim that was or could have been asserted or the deficiency of any defense that has been or could have been asserted in this Action or in any other litigation, or of any liability, negligence, fault, or other wrongdoing of any kind of any of the Released Defendant Persons or in any way referred to for any other reason as against any of the Released Defendant Persons, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; provided, however, that Released Defendant Persons may file the Stipulation and/or the Judgment and/or the Alternate Judgment in any action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim; (b) shall be offered against any of the Released Plaintiff Persons, as evidence of, or construed as, or deemed to be evidence of any presumption, concession or admission by any of the Released Plaintiff Persons that any of their claims are 14 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 62 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 61 of 110 without merit, that any of the Released Defendant Persons had meritorious defenses, or that damages recoverable under the Complaint would not have exceeded the Settlement Amount or with respect to any liability, negligence, fault or wrongdoing of any kind, or in any way referred to for any other reason as against any of the Released Plaintiff Persons, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; or (c) shall be construed against any of the Releasees as an admission, concession, or presumption that the consideration to be given under the Settlement represents the amount which could be or would have been recovered after trial; provided, however, that if the Stipulation is approved by the Court, the Parties and the Releasees and their respective counsel may refer to it to effectuate the protections from liability granted thereunder or otherwise to enforce the terms of the Settlement. 28. Supporting Papers – Lead Counsel shall file and serve the opening papers in support of the proposed Settlement, the Plan of Allocation, and Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses no later than thirty-five (35) calendar days prior to the Settlement Hearing; and reply papers, if any, shall be filed and served no later than seven (7) calendar days prior to the Settlement Hearing. 29. The Court retains exclusive jurisdiction to consider all further applications arising out of or connected with the proposed Settlement. SO ORDERED this ______day of ______, 20__. ______The Honorable Alison J. Nathan United States District Judge #943524 15 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 63 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 62 of 110 Exhibit A-1 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 64 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 63 of 110 Exhibit A-1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE BIOSCRIP, INC. SECURITIES Civil Action No. 13-cv-6922-AJN LITIGATION NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All persons who purchased the common stock of BioScrip, Inc. (“BioScrip”) during the period from November 9, 2012 through November 6, 2013, inclusive (the “Settlement Class Period”), and were damaged thereby.1 A Federal Court authorized this Notice. This is not a solicitation from a lawyer. NOTICE OF PENDENCY OF CLASS ACTION: Please be advised that your rights may be affected by the above-captioned securities class action (the “Action”) pending in the United States District Court for the Southern District of New York (the “Court”). NOTICE OF SETTLEMENT: Please also be advised that the Court-appointed Lead Plaintiff Fresno County Employees’ Retirement Association (“Lead Plaintiff”), on behalf of itself and the Settlement Class (as defined in ¶ 23 below), has reached a proposed settlement of the Action for $10,900,000 in cash that, if approved, will resolve all claims in the Action (the “Settlement”). PLEASE READ THIS NOTICE CAREFULLY. This Notice explains important rights you may have, including the possible receipt of cash from the Settlement. If you are a member of the Settlement Class, your legal rights will be affected whether or not you act. If you have any questions about this Notice, the proposed Settlement, or your eligibility to participate in the Settlement, please DO NOT contact the Court, BioScrip, any other Defendants in the Action, or their counsel. All questions should be directed to the Claims Administrator or Lead Counsel (see ¶ 80 below). 1. Description of the Action and the Settlement Class: This Notice relates to a proposed Settlement of claims in a pending securities class action brought by investors alleging that defendant BioScrip; defendants Richard M. Smith, Hai V. Tran, Patricia Bogusz, Myron Z. Holubiak, Charlotte W. Collins, Samuel P. Frieder, David R. Hubers, Richard L. Robbins, Stuart A. Samuels, Gordon H. Woodward, and Kimberlee Seah (the “Individual Defendants”); defendants Jefferies LLC, Morgan Stanley & Co. LLC, SunTrust Robinson Humphrey, Inc., 1 All capitalized terms used in this Notice that are not otherwise defined herein shall have the meanings ascribed to them in the Stipulation and Agreement of Settlement dated December 18, 2015 (the “Stipulation”), which is available at www.BioScripSecuritiesLitigation.com. Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 65 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 64 of 110 Dougherty & Company, and Noble International Investments, Inc. (the “Underwriter Defendants”); and former defendant Kohlberg & Co. LLC (“Kohlberg”) (collectively, “Defendants”) violated the federal securities laws by making, or controlling others who made, materially false and misleading statements and failing to disclose material facts regarding BioScrip during the Settlement Class Period. Defendants deny that they have violated the federal securities laws or any laws. Defendants have denied and continue to deny each and all of the claims and contentions alleged in the Action. Defendants also have denied and continue to deny, inter alia, the allegations that any of the Defendants made, knowingly or otherwise, any material misstatements or omissions. A more detailed description of the Action is set forth in paragraphs 11-22 below. The proposed Settlement, if approved by the Court, will resolve claims of the Settlement Class, as defined in paragraph 23 below. 2. Statement of the Settlement Class’s Recovery: Subject to Court approval, Lead Plaintiff, on behalf of itself and the Settlement Class, has agreed to settle the Action in exchange for $10,900,000 in cash (the “Settlement Amount”), which has been deposited into an escrow account. The “Net Settlement Fund” (i.e., the Settlement Amount plus any and all interest earned thereon (the “Settlement Fund”) less (a) any Taxes,2 (b) any Notice and Administration Costs,3 (c) any Litigation Expenses4 awarded by the Court, and (d) any attorneys’ fees awarded by the Court) will be distributed to Settlement Class Members according to a Court-approved plan of allocation. The proposed plan of allocation (the “Plan of Allocation”) is set forth on pages __-__ below. 3. Estimate of Average Amount of Recovery Per Share: Based on Lead Plaintiff’s damages expert’s estimate of the number of shares of BioScrip common stock purchased during the Settlement Class Period that may have been affected by the conduct at issue in the Action, and assuming that all Settlement Class Members elect to participate in the Settlement, the estimated average recovery (before the deduction of any Court-approved fees, expenses, and costs as described herein) is $0.23 per affected share of BioScrip common stock.5 Settlement Class Members should note, however, that the foregoing average recovery per share is only an estimate. Settlement Class Members may recover more or less than this estimated amount depending on, among other factors, when and at what prices they purchased or sold their shares and the total number of shares for which valid Claim Forms are submitted. Distributions to 2 “Taxes” means (i) all federal, state and/or local taxes of any kind (including any interest or penalties thereon) on any income earned by the Settlement Fund; (ii) all taxes imposed on payments by the Settlement Fund, including withholding taxes; and (iii) the expenses and costs incurred by Lead Counsel in connection with determining the amount of, and paying, any taxes owed by the Settlement Fund (including, without limitation, expenses of tax attorneys and accountants). 3 “Notice and Administration Costs” means the costs, fees, and expenses that are incurred by the Claims Administrator and/or Lead Counsel in connection with: (i) providing notices to the Settlement Class; and (ii) administering the Settlement, including but not limited to the Claims process, as well as the costs, fees, and expenses incurred in connection with the escrow account referenced above. 4 “Litigation Expenses” means costs and expenses incurred in connection with commencing, prosecuting, and settling the Action (which may include the costs and expenses of Plaintiffs directly related to their representation of the Settlement Class), for which Lead Counsel intends to apply to the Court for reimbursement from the Settlement Fund. 5 An affected share might have been traded more than once during the Settlement Class Period, and this average recovery would be the total for all purchasers of that share. 2 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 66 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 65 of 110 Settlement Class Members will be made based on the Plan of Allocation set forth herein (see pages __-__ below) or such other plan of allocation as may be ordered by the Court. 4. Average Amount of Damages Per Share: The Parties do not agree on the average amount of damages per share that would be recoverable if Lead Plaintiff were to prevail in the Action. Among other things, Defendants do not agree with the assertion that they violated the federal securities laws or that damages were suffered by any members of the Settlement Class as a result of their conduct. 5. Attorneys’ Fees and Expenses Sought: Plaintiffs’ Counsel, which have been prosecuting the Action on a wholly contingent basis since its inception in 2013, have not received any payment of attorneys’ fees for their representation of the Settlement Class and have advanced the funds to pay expenses necessarily incurred to prosecute the Action. Court- appointed Lead Counsel, Bernstein Litowitz Berger & Grossmann LLP, will apply to the Court for an award of attorneys’ fees for all Plaintiffs’ Counsel in an amount not to exceed 25% of the Settlement Fund. In addition, Lead Counsel will apply for reimbursement of Litigation Expenses paid or incurred in connection with the institution, prosecution, and resolution of the claims against the Defendants, in an amount not to exceed $250,000, which may include an application for reimbursement of the reasonable costs and expenses incurred by Plaintiffs directly related to their representation of the Settlement Class. Any fees and expenses awarded by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses. If the Court approves Lead Counsel’s fee and expense application, the estimated average cost per affected share of BioScrip common stock will be approximately $0.06. 6. Identification of Attorneys’ Representatives: Lead Plaintiff and the Settlement Class are represented by Hannah G. Ross, Esq. of Bernstein Litowitz Berger & Grossmann LLP, 1251 Avenue of the Americas, 44th Floor, New York, NY 10020, (800) 380-8496, [email protected]. 7. Reasons for the Settlement: Lead Plaintiff’s principal reason for entering into the Settlement is the substantial and immediate cash benefit for the Settlement Class without the risks and delays inherent in further litigation. Moreover, the substantial cash benefit provided by the Settlement must be considered against the significant risk that a smaller recovery – or indeed no recovery at all – might be achieved after contested motions, a trial of the Action, and the likely appeals that would follow a trial. This process could be expected to last several years. Defendants, who deny all allegations of wrongdoing or liability whatsoever, are entering into the Settlement solely to eliminate the uncertainty, burden, and expense of further protracted litigation. SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT SUBMIT A CLAIM FORM This is the only way to be eligible to receive a payment from POSTMARKED NO LATER the Settlement Fund. If you are a Settlement Class Member THAN ______, 2016. and you do not exclude yourself from the Settlement Class, you will be bound by the Settlement as approved by the Court and you will give up any Released Plaintiffs’ Claims (defined in ¶ 30 below) that you have against Defendants and the other 3 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 67 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 66 of 110 Released Defendant Persons (defined in ¶ 31 below), so it is in your interest to submit a Claim Form. EXCLUDE YOURSELF If you exclude yourself from the Settlement Class, you will FROM THE SETTLEMENT not be eligible to receive any payment from the Settlement CLASS BY SUBMITTING A Fund. This is the only option that allows you ever to be part WRITTEN REQUEST FOR of any other lawsuit against any of the Defendants or the EXCLUSION SO THAT IT other Released Defendant Persons concerning the Released IS RECEIVED NO LATER Plaintiffs’ Claims. THAN ______, 2016. OBJECT TO THE If you do not like the proposed Settlement, the proposed Plan SETTLEMENT BY of Allocation, and/or the request for attorneys’ fees and SUBMITTING A WRITTEN reimbursement of Litigation Expenses, you may write to the OBJECTION SO THAT IT Court and explain why you do not like them. You cannot IS RECEIVED NO LATER object to the Settlement, the Plan of Allocation, and/or the fee THAN ______, 2016. and expense request unless you are a Settlement Class Member and do not exclude yourself from the Settlement Class. FILE A NOTICE OF Filing a written objection and notice of intention to appear by INTENTION TO APPEAR ______, 2016, allows you to speak in Court, at the SO THAT IT IS RECEIVED discretion of the Court, about the fairness of the proposed NO LATER THAN Settlement, the Plan of Allocation, and/or the request for ______, 2016, attorneys’ fees and reimbursement of Litigation Expenses. If AND GO TO THE you submit a written objection, you may (but you do not have SETTLEMENT HEARING to) attend the hearing and, at the discretion of the Court, ON ______, 2016 AT speak to the Court about your objection. __:__ __.M. DO NOTHING. If you are a member of the Settlement Class and you do not submit a valid Claim Form, you will not be eligible to receive any payment from the Settlement Fund. You will, however, remain a member of the Settlement Class, which means that you give up your right to sue about the claims that are resolved by the Settlement and you will be bound by any judgments or orders entered by the Court in the Action. WHAT THIS NOTICE CONTAINS Why Did I Get This Notice? Page __ What Is This Case About? Page __ How Do I Know If I Am Affected By The Settlement? Who Is Included In The Settlement Class? Page __ What Are Lead Plaintiff’s Reasons For The Settlement? Page __ What Might Happen If There Were No Settlement? Page __ How Are Settlement Class Members Affected By The Action 4 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 68 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 67 of 110 And The Settlement? What Claims Will Be Released By The Settlement? Page __ How Do I Participate In The Settlement? What Do I Need To Do? Page __ How Much Will My Payment Be? What Is The Proposed Plan Of Allocation? Page __ What Payment Are The Attorneys For The Settlement Class Seeking? How Will The Lawyers Be Paid? Page __ What If I Do Not Want To Be A Member Of The Settlement Class? How Do I Exclude Myself? Page __ When And Where Will The Court Decide Whether To Approve The Settlement? Do I Have To Come To The Hearing? May I Speak At The Hearing If I Don’t Like The Settlement? Page __ What If I Bought Shares On Behalf Of Someone Else? Page __ Can I See The Court File? Whom Should I Contact If I Have Questions Or Would Like Additional Information? Page __ WHY DID I GET THIS NOTICE? 8. The purpose of this Notice is to inform you of the existence of this case, that it is a class action, how you might be affected, and how to exclude yourself from the Settlement Class if you wish to do so. It is also being sent to inform you of the terms of the proposed Settlement, and of a hearing to be held by the Court to consider the fairness, reasonableness, and adequacy of the Settlement, the proposed Plan of Allocation, and the motion by Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses (the “Settlement Hearing”). See paragraph 70 below for details about the Settlement Hearing, including the date and location of the hearing. 9. The Court directed that this Notice be mailed to you because you or someone in your family or an investment account for which you serve as a custodian may have purchased BioScrip common stock during the Settlement Class Period. The Court has directed us to send you this Notice because, as a potential Settlement Class Member, you have a right to know about your options before the Court rules on the proposed Settlement. Additionally, you have the right to understand how this class action lawsuit may generally affect your legal rights. 10. The issuance of this Notice is not an expression of any opinion by the Court concerning the merits of any claim in the Action, and the Court still has to decide whether to approve the Settlement. If the Court approves the Settlement and a plan of allocation, then payments to Authorized Claimants will be made after any appeals are resolved and after the completion of all claims processing. Please be patient, as this process will take some time to complete. WHAT IS THIS CASE ABOUT? 11. This case is known as In re BioScrip, Inc. Securities Litigation, Civil Action No. 13-cv- 6922-AJN, and the Court in charge of the case is the United States District Court for the Southern District of New York. BioScrip is a home-healthcare and pharmaceuticals company. This Action is a securities class action which alleges that Defendants violated the securities laws by engaging in two separate schemes relating to BioScrip’s business. First, the Action alleges that Defendants made materially false and misleading statements and failed to disclose material 5 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 69 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 68 of 110 facts relating to BioScrip’s alleged participation in a kickback scheme concerning a drug called Exjade. Second, the Action alleges that Defendants concealed certain facts regarding the business condition and results of BioScrip’s pharmacy benefit management (“PBM”) business segment. The Action alleges that investors were harmed when the truth about these matters was eventually revealed and that the price of BioScrip’s common stock declined precipitously as a result. Defendants deny that they have violated the federal securities laws or any laws. Defendants also have denied and continue to deny specifically each and all of the claims and contentions alleged in the Action. 12. Beginning on September 30, 2013, multiple putative securities class action complaints were filed in the Court. In accordance with the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §§ 77z-1, 78u-4 (the “PSLRA”), notice to the public was issued stating the deadline by which putative class members could move the Court for appointment as lead plaintiff. 13. By Order dated December 19, 2013, the Court consolidated the related actions in the Action, appointed Fresno County Employees’ Retirement Association as Lead Plaintiff for the Action, and approved Lead Plaintiff’s selection of Bernstein Litowitz Berger & Grossmann LLP as Lead Counsel. 14. On February 19, 2014, Lead Plaintiff filed and served its Consolidated Class Action Complaint (the “Complaint”). In the Complaint, Lead Plaintiff and additional named plaintiff West Palm Beach Police Pension Fund asserted claims under Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder against BioScrip and certain of the Individual Defendants, and under Section 20(a) of the Exchange Act against Kohlberg and certain of the Individual Defendants. The Complaint also asserted claims under Section 11 of the Securities Act of 1933 (the “Securities Act”) against BioScrip, the Individual Defendants, and the Underwriter Defendants, under Section 12(a)(2) of the Securities Act against BioScrip and the Underwriter Defendants, and under Section 15 of the Securities Act against the Individual Defendants and Kohlberg. The Complaint alleged that Defendants made, or controlled others who made, materially false and misleading statements and failed to disclose material facts about BioScrip’s alleged participation in the alleged Exjade kickback scheme and about the business condition and results of BioScrip’s PBM segment. The Complaint alleged that these false and misleading statements and material omissions caused the price of BioScrip common stock to be artificially inflated. 15. On April 28, 2014, Defendants filed and served their motions to dismiss the Complaint. On June 27, 2014, Lead Plaintiff filed and served its papers in opposition to the motions, and on July 28, 2014, Defendants filed and served their reply papers. 16. On March 31, 2015, the Court entered its Memorandum Decision and Order granting in part and denying in part Defendants’ motions to dismiss the Complaint.6 17. On April 14, 2015, Defendants filed a motion for partial reconsideration of the Court’s March 31, 2015 Memorandum Decision and Order on their motions to dismiss. On April 28, 2015, Lead Plaintiff filed and served its papers in opposition to the motion for partial reconsideration, and on May 8, 2015, Defendants filed and served their reply papers. 6 The Court’s March 31, 2015 Memorandum Decision and Order dismissed all claims asserted against Kohlberg in the Complaint. 6 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 70 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 69 of 110 18. On June 5, 2015, the Court issued a Memorandum and Order denying Defendants’ motion for partial reconsideration. 19. On May 21, 2015, Defendants filed their answers and affirmative defenses to the Complaint, denying any violations of the Securities Act or the Exchange Act or liability as alleged in the Complaint. 20. Discovery in the Action commenced in June 2015. Defendants have produced approximately 800,000 pages of documents, and Lead Counsel has reviewed and analyzed these documents. 21. Following extensive arm’s-length negotiations, including significant mediation efforts conducted by former United States District Judge Layn Phillips in September and October 2015, the Parties reached an agreement to settle the Action in return for a cash payment of $10,900,000 that BioScrip will pay or cause to be paid for the benefit of the Settlement Class. On December 18, 2015, the Parties entered into the Stipulation and Agreement of Settlement (the “Stipulation”) setting forth the terms and conditions of the Settlement. The Stipulation can be viewed at www.BioScripSecuritiesLitigation.com. 22. On ______, 20__, the Court preliminarily approved the Settlement, authorized this Notice to be disseminated to potential Settlement Class Members, and scheduled the Settlement Hearing to consider whether to grant final approval of the Settlement. HOW DO I KNOW IF I AM AFFECTED BY THE SETTLEMENT? WHO IS INCLUDED IN THE SETTLEMENT CLASS? 23. If you are a member of the Settlement Class, you are subject to the Settlement, unless you timely request to be excluded. The Settlement Class consists of: all persons and entities who purchased the common stock of BioScrip during the period from November 9, 2012 through November 6, 2013, inclusive (the “Settlement Class Period”), and were damaged thereby. Excluded from the Settlement Class are: (i) Defendants; (ii) members of the immediate families of the Individual Defendants; (iii) the subsidiaries of BioScrip, the Underwriter Defendants, and Kohlberg; (iv) any persons who served as partners, control persons, officers, and/or directors of BioScrip, the Underwriter Defendants, or Kohlberg during the Settlement Class Period and/or at any other relevant time; (v) any firm, trust, corporation, or other entity in which any Defendant has or had a controlling interest; (vi) Defendants’ liability insurance carriers; and (vii) the legal representatives, heirs, successors and assigns of any such excluded party. Also excluded from the Settlement Class are any persons or entities who or which exclude themselves by submitting a request for exclusion in accordance with the requirements set forth in this Notice. See “What If I Do Not Want To Be A Member Of The Settlement Class? How Do I Exclude Myself?,” on page [__] below. PLEASE NOTE: RECEIPT OF THIS NOTICE DOES NOT MEAN THAT YOU ARE A SETTLEMENT CLASS MEMBER OR THAT YOU WILL BE ENTITLED TO RECEIVE PROCEEDS FROM THE SETTLEMENT. IF YOU ARE A SETTLEMENT CLASS MEMBER AND YOU WISH TO BE ELIGIBLE TO PARTICIPATE IN THE DISTRIBUTION OF PROCEEDS FROM THE SETTLEMENT, YOU ARE REQUIRED 7 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 71 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 70 of 110 TO SUBMIT THE CLAIM FORM THAT IS BEING DISTRIBUTED WITH THIS NOTICE AND THE REQUIRED SUPPORTING DOCUMENTATION AS SET FORTH THEREIN POSTMARKED NO LATER THAN ______, 2016. WHAT ARE LEAD PLAINTIFF’S REASONS FOR THE SETTLEMENT? 24. Lead Plaintiff and Lead Counsel believe that the claims asserted against Defendants have merit. Lead Plaintiff and Lead Counsel recognize, however, the expense and length of continued proceedings necessary to pursue their claims against Defendants through trial and appeals, as well as the very substantial risks they would face in establishing liability and damages. In particular, Lead Plaintiff recognizes that Defendants have significant arguments that their alleged misstatements were not materially misleading and that, even if they made materially misleading statements, they did not do so intentionally or recklessly. Lead Plaintiff also would face challenges with respect to establishing loss causation and class-wide damages. Lead Plaintiff recognizes that Defendants have substantial arguments that the decline in BioScrip’s stock price during the Settlement Class Period was not caused by revelations concerning the alleged Exjade kickback scheme or the PBM segment, and that even if some portion of the decline in BioScrip’s stock price was caused by these revelations, damages were minimal. Had any of these arguments been accepted in whole or part, they could have eliminated or, at a minimum, dramatically limited any potential recovery. Further, Lead Plaintiff would have had to prevail at several stages – class certification, motion for summary judgment and trial – and if it prevailed at those stages, the appeals that were likely to follow. Moreover, there were also very real risks to recovering a judgment substantially larger than the Settlement in light of BioScrip’s financial condition and limited officer and directors’ insurance. Thus, there were very significant risks attendant to the continued prosecution of the Action. 25. In light of these risks, the amount of the Settlement, and the immediacy of recovery to the Settlement Class, Lead Plaintiff and Lead Counsel believe that the proposed Settlement is fair, reasonable, and adequate, and in the best interests of the Settlement Class. Lead Plaintiff and Lead Counsel believe that the Settlement provides a substantial benefit to the Settlement Class, namely $10,900,000 in cash (less the various deductions described in this Notice), as compared to the risk that the claims in the Action would produce a smaller or no recovery after summary judgment, trial, and appeals, possibly years in the future. 26. Defendants have agreed to the Settlement solely to eliminate the burden and expense of continued litigation. Defendants deny the claims asserted against them in the Action and deny having engaged in any wrongdoing or violation of law of any kind whatsoever. WHAT MIGHT HAPPEN IF THERE WERE NO SETTLEMENT? 27. If there were no Settlement and Lead Plaintiff failed to establish any essential legal or factual element of its claims against Defendants, neither Lead Plaintiff nor the other members of the Settlement Class would recover anything from Defendants. Also, if Defendants were successful in proving any of their defenses, either at summary judgment, at trial, or on appeal, the Settlement Class could recover substantially less than the amount provided in the Settlement, or nothing at all. 8 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 72 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 71 of 110 HOW ARE SETTLEMENT CLASS MEMBERS AFFECTED BY THE ACTION AND THE SETTLEMENT? WHAT CLAIMS WILL BE RELEASED BY THE SETTLEMENT? 28. As a Settlement Class Member, you are represented by Lead Plaintiff Fresno County Employees’ Retirement Association, additional named plaintiff West Palm Beach Police Pension Fund, and Lead Counsel, unless you enter an appearance through counsel of your own choice at your own expense. You are not required to retain your own counsel. Settlement Class Members may enter an appearance through an attorney if they so desire, but such counsel must file and serve a notice of appearance as provided in paragraphs 75 and 76 below and will be retained at the individual Settlement Class Member’s expense. 29. If you are a Settlement Class Member and you do not exclude yourself from the Settlement Class, you will be bound by any orders issued by the Court. If the Settlement is approved, the Court will enter a judgment (the “Judgment”). The Judgment will dismiss with prejudice the Action against Defendants and will provide that, upon the Effective Date of the Settlement, Lead Plaintiff and each of the other Settlement Class Members, on behalf of themselves, and their respective current and future heirs, executors, administrators, predecessors, successors, attorneys, insurers, agents, and assigns, in their capacities as such, will have fully, finally, and forever compromised, settled, released, resolved, relinquished, waived, and discharged each and every Released Plaintiffs’ Claim (as defined in ¶ 30 below) against the Released Defendant Persons (as defined in ¶ 31 below), and shall forever be barred and enjoined from commencing any action with respect to, instituting any action with respect to, or prosecuting any or all of the Released Plaintiffs’ Claims against any of the Released Defendant Persons. 30. “Released Plaintiffs’ Claims” means any and all claims, debts, demands, rights, liabilities, or causes of action (including, but not limited to, any claims for damages, interest, attorneys’ fees, expert or consulting fees, and any other costs, expenses, or amounts), whether based on federal, state, local, statutory or common law or any other law, rule or regulation, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, at law or in equity, matured or unmatured, whether individual, class or of any other description, including both known claims and Unknown Claims (i) that have been asserted in the Action against any of the Defendants, or (ii) that could have been asserted in the Action or in any forum by Lead Plaintiff and/or the Settlement Class Members or any of them, or by their heirs, agents, executors, administrators, trustees, beneficiaries, predecessors, successors, attorneys, or assigns, in their capacities as such, against any of the Released Defendant Persons, which arise out of or are related to any of the allegations, transactions, facts, matters or occurrences, representations, or omissions involved, set forth, or referred to in the Complaint (including, without limitation, those concerning (a) Exjade, (b) any government investigation concerning Exjade, and (c) BioScrip’s PBM business) and that relate to the purchase or sale of BioScrip common stock during the Settlement Class Period. Released Plaintiffs’ Claims do not include (i) any claims relating to the enforcement of the Settlement; (ii) any claims that are or were asserted in any ERISA or derivative actions pending or the subject of an appeal as of October 30, 2015, including but not limited to Park Employees & Retirement Board Employees’ Annuity & Benefit Fund of Chicago v. Richard M. Smith, et al., C.A. No. 11000-VCG (Del. Ch.); and (iii) any claims of any person or entity who or which submits a request for exclusion that is accepted by the Court. 9 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 73 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 72 of 110 31. “Released Defendant Persons” means Defendants and their current and former parents, affiliates and subsidiaries, all current and former officers, directors, members, agents, employees and attorneys of each of the foregoing, in their capacities as such, and all insurers (and their reinsurers), successors, predecessors, assigns and assignees of the foregoing, in their capacities as such. 32. “Unknown Claims” means any Released Plaintiffs’ Claims which Lead Plaintiff or any other Settlement Class Member does not know or suspect to exist in his, her, or its favor at the time of the release of such claims, and any Released Defendants’ Claims which any Defendant does not know or suspect to exist in his, her, or its favor at the time of the release of such claims, which, if known by him, her, or it, might have affected his, her, or its decision(s) with respect to this Settlement. With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date of the Settlement, Lead Plaintiff and Defendants shall expressly waive, and each of the other Settlement Class Members shall be deemed to have waived, and by operation of the Judgment or the Alternate Judgment, if applicable, shall have expressly waived, any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle of common law or foreign law, which is similar, comparable, or equivalent to California Civil Code §1542, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Lead Plaintiff and Defendants acknowledge, and each of the other Settlement Class Members shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for and is a key element of the Settlement. 33. The Judgment will also provide that, upon the Effective Date of the Settlement, Defendants, on behalf of themselves, and their respective current and future heirs, executors, administrators, predecessors, successors, attorneys, insurers, agents, and assigns, in their capacities as such, will have fully, finally, and forever compromised, settled, released, resolved, relinquished, waived, and discharged each and every Released Defendants’ Claim (as defined in ¶ 34 below) against Lead Plaintiff and the other Released Plaintiff Persons (as defined in ¶ 35 below), and shall forever be barred and enjoined from commencing any action with respect to, instituting any action with respect to, or prosecuting any or all of the Released Defendants’ Claims against any of the Released Plaintiff Persons. 34. “Released Defendants’ Claims” means any and all claims, debts, demands, rights, liabilities or causes of action (including, but not limited to, any claims for damages, interest, attorneys’ fees, expert or consulting fees, and any other costs, expenses, or amounts), whether based on federal, state, local, statutory or common law or any other law, rule or regulation, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, at law or in equity, matured or unmatured, including both known and Unknown Claims, that (i) have been or could have been asserted in the Action or in any forum by the Defendants, or any of them, or the successors and assigns of any of them, in their capacities as such, against Lead Plaintiff, Settlement Class Members, or any of their attorneys, and (ii) arise out of or relate in any way to the institution, prosecution, or Settlement of the Action. Released Defendants’ Claims do not include any claims relating to the enforcement of the Settlement or any claims against any person 10 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 74 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 73 of 110 or entity who or which submits a request for exclusion from the Settlement Class that is accepted by the Court. 35. “Released Plaintiff Persons” means Plaintiffs, all other plaintiffs in the Action, their respective attorneys, and all other Settlement Class Members, and their current and former parents, affiliates and subsidiaries, all current and former officers, directors, members, agents, employees and attorneys of each of the foregoing, in their capacities as such, and all insurers (and their reinsurers), successors, predecessors, assigns and assignees of the foregoing, in their capacities as such. HOW DO I PARTICIPATE IN THE SETTLEMENT? WHAT DO I NEED TO DO? 36. To be eligible for a payment from the proceeds of the Settlement, you must be a member of the Settlement Class and you must timely complete and return the Claim Form with adequate supporting documentation postmarked no later than ______, 2016. A Claim Form is included with this Notice, or you may obtain one from the website maintained by the Claims Administrator for the Settlement, www.BioScripSecuritiesLitigation.com, or you may request that a Claim Form be mailed to you by calling the Claims Administrator toll free at 1-866-217- 4456. Please retain all records of your ownership of and transactions in BioScrip common stock, as they may be needed to document your Claim. If you request exclusion from the Settlement Class or do not submit a timely and valid Claim Form, you will not be eligible to share in the Net Settlement Fund. HOW MUCH WILL MY PAYMENT BE? WHAT IS THE PROPOSED PLAN OF ALLOCATION? 37. At this time, it is not possible to make any determination as to how much any individual Settlement Class Member may receive from the Settlement. A Claimant’s recovery will depend upon several factors, including when and at what prices he, she, or it purchased or sold the shares, and the total number of shares for which valid Claim Forms are submitted. 38. As set forth above, BioScrip has agreed to pay or caused to be paid $10.9 million to settle the Action. The Settlement Amount has been deposited into an escrow account. The Settlement Amount plus any interest earned thereon is referred to as the “Settlement Fund.” If the Settlement is approved by the Court and the Effective Date occurs, the Net Settlement Fund will be distributed to Settlement Class Members who submit valid Claim Forms, in accordance with the proposed Plan of Allocation or such other plan of allocation as the Court may approve. 39. The Net Settlement Fund will not be distributed unless and until the Court has approved the Settlement and a plan of allocation, and the time for any petition for rehearing, appeal, or review, whether by certiorari or otherwise, has expired. 40. Neither Defendants nor any other person or entity that paid any portion of the Settlement Amount on their behalf are entitled to get back any portion of the Settlement Fund once the Court’s order or judgment approving the Settlement becomes Final. Defendants shall not have any liability, obligation, or responsibility for the administration of the Settlement, the disbursement of the Net Settlement Fund, or the plan of allocation. 11 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 75 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 74 of 110 41. Approval of the Settlement is independent from approval of a plan of allocation. Any determination with respect to a plan of allocation will not affect the Settlement, if approved. 42. Unless the Court orders otherwise, any Settlement Class Member who fails to submit a Claim Form postmarked on or before ______, 2016 shall be fully and forever barred from receiving payments pursuant to the Settlement but will in all other respects remain a Settlement Class Member and be subject to the provisions of the Stipulation, including the terms of any Judgment entered and the releases given. This means that each Settlement Class Member will release the Released Plaintiffs’ Claims (as defined in ¶ 30 above) against the Released Defendant Persons (as defined in ¶ 31 above) and will be barred and enjoined from prosecuting any of the Released Plaintiffs’ Claims against any of the Released Defendant Persons whether or not such Settlement Class Member submits a Claim Form. 43. Participants in and beneficiaries of a plan covered by the Employee Retirement Income Security Act of 1974 (“ERISA Plan”) should NOT include any information relating to their transactions in BioScrip common stock held through the ERISA Plan in any Claim Form that they may submit in this Action. They should include ONLY those shares that they purchased outside of the ERISA Plan. Claims based on any ERISA Plan’s purchases of BioScrip common stock during the Settlement Class Period may be made by the plan’s trustees. To the extent any of the Defendants or any of the other persons or entities excluded from the Settlement Class are participants in the ERISA Plan, such persons or entities shall not receive, either directly or indirectly, any portion of the recovery that may be obtained from the Settlement by the ERISA Plan. 44. Each Claimant shall be deemed to have submitted to the jurisdiction of the Court with respect to his, her, or its Claim Form. The Court has reserved jurisdiction to allow, disallow, or adjust on equitable grounds the Claim of any Settlement Class Member. 45. Only Settlement Class Members, i.e., persons and entities who purchased BioScrip common stock during the Settlement Class Period and were damaged as a result of such purchases, will be eligible to share in the distribution of the Net Settlement Fund. Persons and entities that are excluded from the Settlement Class by definition or that exclude themselves from the Settlement Class pursuant to request will not be eligible to receive a distribution from the Net Settlement Fund and should not submit Claim Forms. The only security that is included in the Settlement is BioScrip common stock. PROPOSED PLAN OF ALLOCATION 46. The objective of the Plan of Allocation is to equitably distribute the Settlement proceeds to those Settlement Class Members who suffered economic losses as a proximate result of the alleged wrongdoing. The calculations made in accordance with the Plan of Allocation are not intended to be estimates of, or indicative of, the amounts that Settlement Class Members might have been able to recover after a trial. Nor are the calculations in accordance with the Plan of Allocation intended to be estimates of the amounts that will be paid to Authorized Claimants under the Settlement. The computations under the Plan of Allocation are only a method to weigh the claims of Authorized Claimants against one another for the purpose of making pro rata allocations of the Net Settlement Fund. 47. In developing the Plan of Allocation, Lead Plaintiff’s damages expert calculated the potential amount of estimated artificial inflation in the per share closing prices of BioScrip 12 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 76 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 75 of 110 common stock that allegedly was proximately caused by Defendants’ materially false and misleading statements and omissions. In calculating the estimated artificial inflation caused by Defendants’ alleged misrepresentations and omissions, Lead Plaintiff’s damages expert considered price changes in BioScrip common stock in reaction to certain public announcements regarding BioScrip in which the misrepresentations and omissions were alleged to have been revealed to the market, adjusting for price changes that were attributable to market or industry forces, the evidence developed in support of the allegations in the Complaint, and the strength of the claims. 48. For all shares purchased during the Settlement Class Period (with the exception of shares purchased in the April 18, 2013 offering of BioScrip common stock (the “April 18, 2013 Offering”)), the estimated artificial inflation in BioScrip common stock is shown in Table A at the end of this Notice. 49. Under the Court’s prior rulings, shares purchased in the April 18, 2013 Offering have claims related to alleged misrepresentations in the Offering Documents related to BioScrip’s PBM business for which other shares (including shares purchased in the August 14, 2013 offering of BioScrip common stock) do not have claims. As a result, shares purchased in the April 18, 2013 Offering have additional inflation per share related to these additional alleged misrepresentations. The estimated artificial inflation in BioScrip common stock for shares purchased in the April 18, 2013 Offering, adjusted for price changes that were attributable to market or industry forces, the evidence developed in support of the allegations in the Complaint, and the strength of the claims, is shown in Table B at the end of this Notice.7 CALCULATION OF RECOGNIZED LOSS AMOUNTS 50. Based on the formula stated below, a “Recognized Loss Amount” will be calculated for each purchase of BioScrip common stock during the Settlement Class Period that is listed on the Proof of Claim Form and for which adequate documentation is provided. If a Recognized Loss Amount calculates to a negative number under the formula below, that Recognized Loss Amount will be zero. 51. For each share of BioScrip common stock purchased from November 9, 2012 through November 6, 2013, inclusive (except shares purchased in the April 18, 2013 Offering) and: (a) Sold from November 9, 2012 through the close of trading on November 6, 2013, the Recognized Loss Amount will be the lesser of: (i) the amount of artificial inflation per share stated in Table A on the date of purchase minus the amount of artificial inflation per share stated in Table A on the date of sale; or (ii) the purchase price minus the sale price. (b) Sold from November 7, 2013 through the close of trading on February 4, 2014, the Recognized Loss Amount will be the least of: (i) the amount of artificial inflation per share stated in Table A on the date of purchase; (ii) the purchase price minus the sale price; or (iii) the purchase price minus the average closing 7 More specifically, shares purchased in the April 18, 2013 Offering have additional inflation (over and above the inflation for all other shares purchased during the Settlement Class Period) resulting from the alleged corrective disclosure that occurred after the close of trading on August 7, 2013. 13 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 77 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 76 of 110 price between November 7, 2013 and the date of sale stated in Table C at the end of this Notice. (c) Held as of the close of trading on February 4, 2014, the Recognized Loss Amount will be the lesser of: (i) the amount of artificial inflation per share stated in Table A on the date of purchase; or (ii) the purchase price minus $6.99, the average closing price for BioScrip common stock between November 7, 2013 and February 4, 2014 (the last entry on Table C).8 52. For each share of BioScrip common stock purchased in the April 18, 2013 Offering and: (a) Sold from April 18, 2013 through the close of trading on November 6, 2013, the Recognized Loss Amount will be the lesser of: (i) $2.99 (the amount of artificial inflation per share on April 18, 2013) minus the amount of artificial inflation per share stated in Table B on the date of the sale; or (ii) $12.00 (the Offering Price) minus the sale price. (b) Held as of the close of trading on November 6, 2013, the Recognized Loss Amount will be $2.99 (the amount of artificial inflation per share on April 18, 2013). ADDITIONAL PROVISIONS 53. The Net Settlement Fund will be allocated among all Authorized Claimants whose Distribution Amount (defined in paragraph 56 below) is $10.00 or greater. 54. If a Settlement Class Member has more than one purchase or sale of BioScrip common stock, purchases and sales will be matched on a First In, First Out (“FIFO”) basis. Settlement Class Period sales will be matched first against any holdings at the beginning of the Settlement Class Period, and then against purchases in chronological order, beginning with the earliest purchase made during the Settlement Class Period. 55. A Claimant’s “Recognized Claim” under the Plan of Allocation will be the sum of his, her, or its Recognized Loss Amounts. 56. The Net Settlement Fund will be distributed to Authorized Claimants on a pro rata basis based on the relative size of their Recognized Claims. Specifically, a “Distribution Amount” will be calculated for each Authorized Claimant, which will be the Authorized Claimant’s Recognized Claim divided by the total Recognized Claims of all Authorized Claimants, multiplied by the total amount in the Net Settlement Fund. If any Authorized 8 Under Section 21(D)(e)(1) of the Exchange Act, “in any private action arising under this Act in which the plaintiff seeks to establish damages by reference to the market price of a security, the award of damages to the plaintiff shall not exceed the difference between the purchase or sale price paid or received, as appropriate, by the plaintiff for the subject security and the mean trading price of that security during the 90-day period beginning on the date on which the information correcting the misstatement or omission that is the basis for the action is disseminated to the market.” Consistent with the requirements of the statute, Recognized Loss Amounts are reduced to an appropriate extent by taking into account the closing prices of BioScrip common stock during the 90-day look-back period. The mean (average) closing price for BioScrip common stock during this 90-day look-back period was $6.99. 14 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 78 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 77 of 110 Claimant’s Distribution Amount calculates to less than $10.00, it will not be included in the calculation and no distribution will be made to that Authorized Claimant. 57. Purchases and sales of BioScrip common stock will be deemed to have occurred on the “contract” or “trade” date as opposed to the “settlement” or “payment” date. The receipt or grant by gift, inheritance, or operation of law of BioScrip common stock during the Settlement Class Period will not be deemed a purchase or sale of BioScrip common stock for the calculation of an Authorized Claimant’s Recognized Loss Amount, nor will the receipt or grant be deemed an assignment of any claim relating to the purchase of BioScrip common stock unless (i) the donor or decedent purchased the shares during the Settlement Class Period; (ii) no Claim Form was submitted by or on behalf of the donor, on behalf of the decedent, or by anyone else with respect to those shares; and (iii) it is specifically so provided in the instrument of gift or assignment. 58. The date of covering a “short sale” is deemed to be the date of purchase of the BioScrip common stock. The date of a “short sale” is deemed to be the date of sale of BioScrip common stock. Under the Plan of Allocation, however, the Recognized Loss Amount on “short sales” is zero. In the event that a Claimant has an opening short position in BioScrip common stock, his, her, or its earliest Settlement Class Period purchases of BioScrip common stock will be matched against the opening short position, and not be entitled to a recovery, until that short position is fully covered. 59. Option contracts are not securities eligible to participate in the Settlement. With respect to shares of BioScrip common stock purchased or sold through the exercise of an option, the purchase/sale date of the BioScrip common stock is the exercise date of the option and the purchase/sale price of the BioScrip common stock is the exercise price of the option. 60. If a Claimant had a market gain with respect to his, her, or its overall transactions in BioScrip common stock during the Settlement Class Period, the value of the Claimant’s Recognized Claim will be zero, and the Claimant will in any event be bound by the Settlement. If a Claimant suffered an overall market loss with respect to his, her, or its overall transactions in BioScrip common stock during the Settlement Class Period but that market loss was less than the Claimant’s total Recognized Claim calculated above, then the Claimant’s Recognized Claim will be limited to the amount of the actual market loss. 61. For purposes of determining whether a Claimant had a market gain with respect to his, her, or its overall transactions in BioScrip common stock during the Settlement Class Period or suffered a market loss, the Claims Administrator will determine the difference between (i) the Total Purchase Amount9 and (ii) the sum of the Total Sales Proceeds10 and Holding Value.11 9 The “Total Purchase Amount” is the total amount the Claimant paid (excluding commissions and other charges) for BioScrip common stock purchased during the Settlement Class Period. 10 The Claims Administrator will match any sales of BioScrip common stock during the Settlement Class Period first against the Claimant’s opening position (the proceeds of those sales will not be considered for purposes of calculating market gains or losses). The total amount received (excluding commissions and other charges) for the remaining sales of BioScrip common stock sold during the Settlement Class Period will be the “Total Sales Proceeds”. 11 The Claims Administrator will ascribe a value of $5.65 per share for BioScrip common stock purchased during the Settlement Class Period and still held as of the close of trading on November 6, 2013 (the “Holding Value”). 15 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 79 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 78 of 110 This difference will be deemed a Claimant’s market gain or loss with respect to his, her, or its overall transactions in BioScrip common stock during the Settlement Class Period. 62. After the initial distribution of the Net Settlement Fund, the Claims Administrator will make reasonable and diligent efforts to have Authorized Claimants cash their distribution checks. To the extent any monies remain in the fund nine (9) months after the initial distribution, if Lead Counsel, in consultation with the Claims Administrator, determines that it is cost-effective to do so, the Claims Administrator will conduct a re-distribution of the funds remaining after payment of any unpaid fees and expenses incurred in administering the Settlement, including for such re- distribution, to Authorized Claimants who have cashed their initial distributions and who would receive at least $10.00 from such re-distribution. Additional re-distributions to Authorized Claimants who have cashed their prior checks and who would receive at least $10.00 on such additional re-distributions may occur thereafter if Lead Counsel, in consultation with the Claims Administrator, determines that additional re-distributions, after the deduction of any additional fees and expenses incurred in administering the Settlement, including for such re-distributions, would be cost-effective. At such time as it is determined that the re-distribution of funds remaining in the Net Settlement Fund is not cost-effective, the remaining balance shall be contributed to non-sectarian, not-for-profit organization(s), to be recommended by Lead Counsel and approved by the Court. 63. Payment pursuant to the Plan of Allocation, or such other plan of allocation as may be approved by the Court, shall be conclusive against all Authorized Claimants. No person shall have any claim against Lead Plaintiff, Plaintiffs’ Counsel, Lead Plaintiff’s damages expert, Defendants, Defendants’ Counsel, or any of the other Released Plaintiff Persons or Released Defendant Persons, or the Claims Administrator or other agent designated by Lead Counsel arising from distributions made substantially in accordance with the Stipulation, the plan of allocation approved by the Court, or further Orders of the Court. Lead Plaintiff, Defendants and their respective counsel, and all other Released Defendant Persons, shall have no responsibility or liability whatsoever for the investment or distribution of the Settlement Fund or the Net Settlement Fund; the plan of allocation; the determination, administration, calculation, or payment of any Claim Form or nonperformance of the Claims Administrator; the payment or withholding of Taxes; or any losses incurred in connection therewith. 64. The Plan of Allocation set forth herein is the plan that is being proposed to the Court for its approval by Lead Plaintiff after consultation with its damages expert. The Court may approve this plan as proposed or it may modify the Plan of Allocation without further notice to the Settlement Class. Any Orders regarding any modification of the Plan of Allocation will be posted on the settlement website, www.BioScripSecuritiesLitigation.com. WHAT PAYMENT ARE THE ATTORNEYS FOR THE SETTLEMENT CLASS SEEKING? HOW WILL THE LAWYERS BE PAID? 65. Plaintiffs’ Counsel have not received any payment for their services in pursuing claims against the Defendants on behalf of the Settlement Class, nor have Plaintiffs’ Counsel been reimbursed for their out-of-pocket expenses incurred in the prosecution of this Action. Before final approval of the Settlement, Lead Counsel will apply to the Court for an award of attorneys’ fees for all Plaintiffs’ Counsel in an amount not to exceed 25% of the Settlement Fund. At the same time, Lead Counsel also intends to apply for reimbursement of Litigation Expenses in an 16 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 80 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 79 of 110 amount not to exceed $250,000, which may include an application for reimbursement of the reasonable costs and expenses incurred by Plaintiffs directly related to their representation of the Settlement Class. The Court will determine the amount of any award of attorneys’ fees or reimbursement of Litigation Expenses. Such sums as may be approved by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses. WHAT IF I DO NOT WANT TO BE A MEMBER OF THE SETTLEMENT CLASS? HOW DO I EXCLUDE MYSELF? 66. Each Settlement Class Member will be bound by all determinations and judgments in this lawsuit, whether favorable or unfavorable, unless such person or entity mails or delivers a written Request for Exclusion from the Settlement Class addressed to In re BioScrip, Inc. Securities Litigation, EXCLUSIONS, c/o A.B. Data, Ltd., P.O. Box 170500, Milwaukee, WI 53217. The exclusion request must be received no later than ______, 2016. You will not be able to exclude yourself from the Settlement Class after that date. Each Request for Exclusion must: (a) state the name, address, and telephone number of the person or entity requesting exclusion, and in the case of entities, the name and telephone number of the appropriate contact person; (b) state that such person or entity “requests exclusion from the Settlement Class in In re BioScrip, Inc. Securities Litigation, No. 13-cv-6922 (AJN)”; (c) state the number of shares of BioScrip common stock that the person or entity requesting exclusion purchased and/or sold during the Settlement Class Period (i.e., from November 9, 2012 through November 6, 2013, inclusive), as well as the dates and prices of each such purchase and sale; and (d) be signed by the person or entity requesting exclusion or an authorized representative. A Request for Exclusion shall not be valid and effective unless it provides all the information called for in this paragraph and is received within the time stated above, or is otherwise accepted by the Court. 67. If you do not want to be part of the Settlement Class, you must follow these instructions for exclusion even if you have pending, or later file, another lawsuit, arbitration, or other proceeding relating to any Released Plaintiffs’ Claim against any of the Released Defendant Persons. 68. If you ask to be excluded from the Settlement Class, you will not be eligible to receive any payment out of the Net Settlement Fund. 69. Defendants have the right to terminate the Settlement if valid requests for exclusion are received from persons and entities entitled to be members of the Settlement Class in an amount that exceeds an amount agreed to by Lead Plaintiff and Defendants. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT? DO I HAVE TO COME TO THE HEARING? MAY I SPEAK AT THE HEARING IF I DON’T LIKE THE SETTLEMENT? 70. The Settlement Hearing will be held on ______, 2016 at __:__ _.m., before the Honorable Alison J. Nathan at the United States District Court for the Southern District of New York, Thurgood Marshall United States Courthouse, Courtroom 906, 40 Foley Square, New York, NY 10007. The Court reserves the right to approve the Settlement, the Plan of Allocation, 17 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 81 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 80 of 110 Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses and/or any other matter related to the Settlement at or after the Settlement Hearing without further notice to the members of the Settlement Class. 71. Settlement Class Members do not need to attend the Settlement Hearing. The Court will consider any submission made in accordance with the provisions below even if a Settlement Class Member does not attend the hearing. Participation in the Settlement is not conditioned on attendance at the Settlement Hearing. 72. Any Settlement Class Member who or which does not request exclusion may object to the Settlement, the proposed Plan of Allocation, or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses. Objections must be in writing. You must file any written objection, together with copies of all other papers and briefs supporting the objection, with the Clerk’s Office at the United States District Court for the Southern District of New York at the address set forth below on or before ______, 2016. You must also serve the papers on Lead Counsel and on representative Defendants’ Counsel at the addresses set forth below so that the papers are received on or before ______, 2016. Clerk’s Office Lead Counsel Representative Defendants’ Counsel United States District Court Bernstein Litowitz Berger & Southern District of New York Grossmann LLP Kirkland & Ellis LLP Clerk of the Court Hannah G. Ross, Esq. Shireen A. Barday, Esq. Thurgood Marshall 1251 Avenue of the Americas, 601 Lexington Avenue United States Courthouse 44th Floor New York, NY 10022 40 Foley Square New York, NY 10020 New York, NY 10007 73. Any objection: (a) must state the name, address, and telephone number of the person or entity objecting and must be signed by the objector; (b) must contain a statement of the Settlement Class Member’s objection or objections, and the specific reasons for each objection, including any legal and evidentiary support the Settlement Class Member wishes to bring to the Court’s attention; and (c) must include documents sufficient to prove membership in the Settlement Class, including the number of shares of BioScrip common stock that the objecting Settlement Class Member purchased and/or sold during the Settlement Class Period (i.e., from November 9, 2012 through November 6, 2013, inclusive), as well as the dates and prices of each such purchase and sale. Documents sufficient to prove membership in the Settlement Class include brokerage statements, confirmation slips, or authorized statements from a broker containing the transaction and holding information found in a confirmation slip or account statement. You may not object to the Settlement, the Plan of Allocation, or Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses if you exclude yourself from the Settlement Class or if you are not a member of the Settlement Class. 74. You may file a written objection without having to appear at the Settlement Hearing. You may not, however, appear at the Settlement Hearing to present your objection unless you first file and serve a written objection in accordance with the procedures described above, unless the Court orders otherwise. 18 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 82 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 81 of 110 75. If you wish to be heard orally at the hearing in opposition to the approval of the Settlement, the Plan of Allocation, or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses, and if you timely file and serve a written objection as described above, you must also file a notice of appearance with the Clerk’s Office and serve it on Lead Counsel and Defendants’ Counsel at the addresses set forth above so that it is received on or before ______, 2016. Persons who intend to object and desire to present evidence at the Settlement Hearing must include in their written objection or notice of appearance the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the hearing. Such persons may be heard orally at the discretion of the Court. 76. You are not required to hire an attorney to represent you in making written objections or in appearing at the Settlement Hearing. However, if you decide to hire an attorney, it will be at your own expense, and that attorney must file a notice of appearance with the Court and serve it on Lead Counsel and representative Defendants’ Counsel at the addresses set forth in ¶ 72 above so that the notice is received on or before ______, 2016. 77. The Settlement Hearing may be adjourned by the Court without further written notice to the Settlement Class. If you plan to attend the Settlement Hearing, you should confirm the date and time with Lead Counsel. 78. Unless the Court orders otherwise, any Settlement Class Member who does not object in the manner described above will be deemed to have waived any objection and shall be forever foreclosed from making any objection to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel’s motion for an award of attorneys’ fees and reimbursement of Litigation Expenses. Settlement Class Members do not need to appear at the Settlement Hearing or take any other action to indicate their approval. WHAT IF I BOUGHT SHARES ON BEHALF OF SOMEONE ELSE? 79. If you purchased BioScrip common stock from November 9, 2012 through November 6, 2013, inclusive, for the beneficial interest of persons or organizations other than yourself, you must either: (a) within seven (7) calendar days of receipt of this Notice, request from the Claims Administrator sufficient copies of the Notice and Claim Form (the “Notice Packet”) to forward to all such beneficial owners and within seven (7) calendar days of receipt of those Notice Packets forward them to all such beneficial owners; or (b) within seven (7) calendar days of receipt of this Notice, provide a list of the names and addresses of all such beneficial owners to In re BioScrip, Inc. Securities Litigation, c/o A.B. Data, Ltd., P.O. Box 170500, Milwaukee, WI 53217. If you choose the second option, the Claims Administrator will send a copy of the Notice Packet to the beneficial owners. Upon full compliance with these directions, such nominees may seek reimbursement of their reasonable expenses actually incurred, by providing the Claims Administrator with proper documentation supporting the expenses for which reimbursement is sought. Copies of this Notice and the Claim Form may also be obtained from the website maintained by the Claims Administrator, www.BioScripSecuritiesLitigation.com, or by calling the Claims Administrator toll-free at 1-866-217-4456. 19 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 83 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 82 of 110 CAN I SEE THE COURT FILE? WHOM SHOULD I CONTACT IF I HAVE QUESTIONS OR WOULD LIKE ADDITIONAL INFORMATION? 80. This Notice contains only a summary of the terms of the proposed Settlement. For more detailed information about the matters involved in this Action, you are referred to the papers on file in the Action, including the Stipulation, which may be inspected during regular office hours at the Office of the Clerk, United States District Court for the Southern District of New York, Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007. Additionally, copies of the Stipulation, this Notice, the Claim Form, the proposed Judgment, and any related orders entered by the Court will be posted on the website maintained by the Claims Administrator, www.BioScripSecuritiesLitigation.com. All inquiries concerning this Notice and the Claim Form, or requests for additional information, should be directed to: In re BioScrip, Inc. Securities Litigation and/or Hannah G. Ross, Esq. c/o A.B. Data, Ltd. BERNSTEIN LITOWITZ BERGER P.O. Box 170500 & GROSSMANN LLP Milwaukee, WI 53217 1251 Avenue of the Americas, 44th 866-217-4456 Floor www.BioScripSecuritiesLitigation.com New York, NY 10020 (800) 380-8496 [email protected] DO NOT CALL OR WRITE THE COURT, THE OFFICE OF THE CLERK OF THE COURT, DEFENDANTS, OR THEIR COUNSEL REGARDING THIS NOTICE. Dated: ______By Order of the Court United States District Court Southern District of New York #943606 20 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 84 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 83 of 110 TABLE A Alleged Purchase and Sale Inflation for All Purchases Except Shares Purchased in the April 18, 2013 Offering, to be used solely to determine the allocation of the Net Settlement Fund Inflation Per Transaction Date Share November 9, 2012 – September 22, 2013 $1.39 September 23, 2013 – November 6, 2013 $0.77 TABLE B Alleged Sale Inflation for Shares Purchased in the April 18, 2013 Offering, to be used solely to determine the allocation of the Net Settlement Fund Inflation Per Transaction Date Share April 18, 2013 – August 7, 2013 $2.99 August 8, 2013 – September 22, 2013 $1.39 September 23, 2013 – November 6, 2013 $0.77 21 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 85 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 84 of 110 TABLE C BioScrip Closing Price and Average Closing Price November 7, 2013 – February 4, 2014 Average Closing Average Closing Price Between Price Between Closing November 7, 2013 Closing November 7, 2013 Date Price and Date Shown Date Price and Date Shown 11/7/2013 $5.65 $5.65 12/20/2013 $7.19 $6.31 11/8/2013 $6.14 $5.90 12/23/2013 $7.46 $6.34 11/11/2013 $6.05 $5.95 12/24/2013 $7.26 $6.37 11/12/2013 $5.99 $5.96 12/26/2013 $7.09 $6.39 11/13/2013 $5.77 $5.92 12/27/2013 $7.15 $6.41 11/14/2013 $5.79 $5.90 12/30/2013 $7.27 $6.44 11/15/2013 $5.86 $5.89 12/31/2013 $7.40 $6.46 11/18/2013 $5.76 $5.88 1/2/2014 $7.29 $6.48 11/19/2013 $5.67 $5.85 1/3/2014 $7.34 $6.51 11/20/2013 $5.85 $5.85 1/6/2014 $7.03 $6.52 11/21/2013 $6.03 $5.87 1/7/2014 $7.11 $6.53 11/22/2013 $5.95 $5.88 1/8/2014 $7.36 $6.55 11/25/2013 $5.86 $5.87 1/9/2014 $7.43 $6.57 11/26/2013 $5.90 $5.88 1/10/2014 $7.52 $6.60 11/27/2013 $6.92 $5.95 1/13/2014 $7.66 $6.62 11/29/2013 $6.81 $6.00 1/14/2014 $7.57 $6.64 12/2/2013 $6.54 $6.03 1/15/2014 $7.66 $6.66 12/3/2013 $6.36 $6.05 1/16/2014 $7.61 $6.68 12/4/2013 $6.26 $6.06 1/17/2014 $7.54 $6.70 12/5/2013 $6.35 $6.08 1/21/2014 $8.26 $6.73 12/6/2013 $6.45 $6.09 1/22/2014 $8.11 $6.76 12/9/2013 $6.35 $6.11 1/23/2014 $8.39 $6.79 12/10/2013 $6.42 $6.12 1/24/2014 $8.27 $6.82 12/11/2013 $6.38 $6.13 1/27/2014 $8.11 $6.84 12/12/2013 $6.57 $6.15 1/28/2014 $8.24 $6.87 12/13/2013 $6.53 $6.16 1/29/2014 $8.25 $6.89 12/16/2013 $6.54 $6.18 1/30/2014 $8.55 $6.92 12/17/2013 $7.12 $6.21 1/31/2014 $8.51 $6.95 12/18/2013 $7.03 $6.24 2/3/2014 $8.51 $6.97 12/19/2013 $7.39 $6.28 2/4/2014 $8.18 $6.99 22 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 86 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 85 of 110 Exhibit A-2 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 87 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 86 of 110 Exhibit A-2 In re BioScrip, Inc. Securities Litigation c/o A.B. Data, Ltd. P.O. Box 170500 Milwaukee, WI 53217 1-866-217-4456 www.BioScripSecuritiesLitigation.com PROOF OF CLAIM AND RELEASE FORM TO BE ELIGIBLE TO RECEIVE A SHARE OF THE NET SETTLEMENT FUND IN CONNECTION WITH THE SETTLEMENT OF THIS ACTION, YOU MUST COMPLETE AND SIGN THIS PROOF OF CLAIM AND RELEASE FORM (“CLAIM FORM”) AND MAIL IT BY PREPAID, FIRST-CLASS MAIL TO THE ABOVE ADDRESS, POSTMARKED NO LATER THAN ______, 2016. FAILURE TO SUBMIT YOUR CLAIM FORM BY THE DATE SPECIFIED WILL SUBJECT YOUR CLAIM TO REJECTION AND MAY PRECLUDE YOU FROM BEING ELIGIBLE TO RECEIVE ANY MONEY IN CONNECTION WITH THE SETTLEMENT. DO NOT MAIL OR DELIVER YOUR CLAIM FORM TO THE COURT, THE PARTIES TO THIS ACTION, OR THEIR COUNSEL. SUBMIT YOUR CLAIM FORM ONLY TO THE CLAIMS ADMINISTRATOR AT THE ADDRESS SET FORTH ABOVE. TABLE OF CONTENTS PAGE # PART I – CLAIMANT INFORMATION __ PART II – GENERAL INSTRUCTIONS __ PART III – SCHEDULE OF TRANSACTIONS IN BIOSCRIP COMMON STOCK __ PART IV – RELEASE OF CLAIMS AND SIGNATURE __ Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 88 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 87 of 110 PART I – CLAIMANT INFORMATION The Claims Administrator will use this information for all communications regarding this Claim Form. If this information changes, you MUST notify the Claims Administrator in writing at the address above. Claimant Names(s) (as the name(s) should appear on check, if eligible for payment; if the shares are jointly owned, the names of all beneficial owners must be provided): Name of Person the Claims Administrator Should Contact Regarding this Claim Form (Must Be Provided): Mailing Address – Line 1: Street Address/P.O. Box: Mailing Address – Line 2 (If Applicable): Apartment/Suite/Floor Number: City: State/Province: Zip Code: Country: Last 4 digits of Claimant Social Security/Taxpayer Identification Number:1 Daytime Telephone Number: Evening Telephone Number: Email address (E-mail address is not required, but if you provide it you authorize the Claims Administrator to use it in providing you with information relevant to this claim.): 1 The last four digits of the taxpayer identification number (TIN), consisting of a valid Social Security Number (SSN) for individuals or Employer Identification Number (EIN) for business entities, trusts, estates, etc., and telephone number of the beneficial owner(s) may be used in verifying this claim. Page 2 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 89 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 88 of 110 PART II – GENERAL INSTRUCTIONS 1. It is important that you completely read and understand the Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses (the “Notice”) that accompanies this Claim Form, including the Plan of Allocation of the Net Settlement Fund set forth in the Notice. The Notice describes the proposed Settlement, how Settlement Class Members are affected by the Settlement, and the manner in which the Net Settlement Fund will be distributed if the Settlement and Plan of Allocation are approved by the Court. The Notice also contains the definitions of many of the defined terms (which are indicated by initial capital letters) used in this Claim Form. By signing and submitting this Claim Form, you will be certifying that you have read and that you understand the Notice, including the terms of the releases described therein and provided for herein. 2. By submitting this Claim Form, you will be making a request to share in the proceeds of the Settlement described in the Notice. IF YOU ARE NOT A SETTLEMENT CLASS MEMBER (see the definition of the Settlement Class on page __ of the Notice, which sets forth who is included in and who is excluded from the Class), OR IF YOU, OR SOMEONE ACTING ON YOUR BEHALF, SUBMITTED A REQUEST FOR EXCLUSION FROM THE SETTLEMENT CLASS, DO NOT SUBMIT A CLAIM FORM. YOU MAY NOT, DIRECTLY OR INDIRECTLY, PARTICIPATE IN THE SETTLEMENT IF YOU ARE NOT A SETTLEMENT CLASS MEMBER. THUS, IF YOU ARE EXCLUDED FROM THE SETTLEMENT CLASS, ANY CLAIM FORM THAT YOU SUBMIT, OR THAT MAY BE SUBMITTED ON YOUR BEHALF, WILL NOT BE ACCEPTED. 3. Submission of this Claim Form does not guarantee that you will share in the proceeds of the Settlement. The distribution of the Net Settlement Fund will be governed by the Plan of Allocation set forth in the Notice, if it is approved by the Court, or by such other plan of allocation as the Court approves. 4. Use the Schedule of Transactions in Part III of this Claim Form to supply all required details of your transaction(s) (including free transfers and deliveries) in and holdings of BioScrip common stock. On this schedule, please provide all of the requested information with respect to your holdings, purchases, acquisitions, and sales of BioScrip common stock, whether such transactions resulted in a profit or a loss. Failure to report all transaction and holding information during the requested time period may result in the rejection of your claim. 5. Please note: Only BioScrip common stock purchased during the Settlement Class Period (i.e., from November 9, 2012 through November 6, 2013, inclusive) is eligible under the Settlement. However, under the “90-day look-back period” (described in the Plan of Allocation set forth in the Notice), your sales of BioScrip common stock during the period from November 7, 2013 through February 4, 2014, inclusive, will be used for purposes of calculating your claim under the Plan of Allocation. Therefore, in order for the Claims Administrator to be able to balance your claim, the requested purchase information during the 90-day look-back period must also be provided. 6. You are required to submit genuine and sufficient documentation for all of your transactions in and holdings of BioScrip common stock set forth in the Schedule of Transactions in Part III of this Claim Form. Documentation may consist of copies of brokerage confirmation slips or monthly brokerage account statements, or an authorized statement from your broker containing the transactional and holding information found in a Page 3 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 90 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 89 of 110 broker confirmation slip or account statement. Please note that monthly statements may not be sufficient to provide the required support to demonstrate that your shares of BioScrip common stock were purchased in BioScrip’s secondary offering of common stock that occurred on or about April 18, 2013. In order to establish that shares of BioScrip common stock were purchased in this offering, you may have to provide the confirmation slips for such purchases. The Parties and the Claims Administrator do not independently have information about your investments in BioScrip common stock. IF SUCH DOCUMENTS ARE NOT IN YOUR POSSESSION, PLEASE OBTAIN COPIES OR EQUIVALENT DOCUMENTS FROM YOUR BROKER. FAILURE TO SUPPLY THIS DOCUMENTATION MAY RESULT IN THE REJECTION OF YOUR CLAIM. DO NOT SEND ORIGINAL DOCUMENTS. Please keep a copy of all documents that you send to the Claims Administrator. Also, please do not highlight any portion of the Claim Form or any supporting documents. 7. Separate Claim Forms should be submitted for each separate legal entity (e.g., a claim from joint owners should not include separate transactions of just one of the joint owners, and an individual should not combine his or her IRA transactions with transactions made solely in the individual’s name). Conversely, a single Claim Form should be submitted on behalf of one legal entity including all transactions made by that entity on one Claim Form, no matter how many separate accounts that entity has (e.g., a corporation with multiple brokerage accounts should include all transactions made in all accounts on one Claim Form). 8. All joint beneficial owners must each sign this Claim Form and their names must appear as “Claimants” in Part I of this Claim Form. If you purchased BioScrip common stock during the Settlement Class Period and held the shares in your name, you are the beneficial owner as well as the record owner and you must sign this Claim Form to participate in the Settlement. If, however, you purchased BioScrip common stock during the relevant time period and the securities were registered in the name of a third party, such as a nominee or brokerage firm, you are the beneficial owner of these shares, but the third party is the record owner. The beneficial owner, not the record owner, must sign this Claim Form to be eligible to participate in the Settlement. 9. Agents, executors, administrators, guardians, and trustees must complete and sign the Claim Form on behalf of persons represented by them, and they must: (a) expressly state the capacity in which they are acting; (b) identify the name, account number, Social Security Number (or taxpayer identification number), address and telephone number of the beneficial owner of (or other person or entity on whose behalf they are acting with respect to) the BioScrip common stock; and (c) furnish herewith evidence of their authority to bind to the Claim Form the person or entity on whose behalf they are acting. (Authority to complete and sign a Claim Form cannot be established by stockbrokers demonstrating only that they have discretionary authority to trade securities in another person’s accounts.) 10. By submitting a signed Claim Form, you will be swearing that you: (a) own(ed) the BioScrip common stock you have listed in the Claim Form; or (b) are expressly authorized to act on behalf of the owner thereof. 11. By submitting a signed Claim Form, you will be swearing to the truth of the statements contained therein and the genuineness of the documents attached thereto, subject to penalties of perjury under the laws of the United States of America. The making of false statements, or the submission of forged or Page 4 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 91 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 90 of 110 fraudulent documentation, will result in the rejection of your claim and may subject you to civil liability or criminal prosecution. 12. If the Court approves the Settlement, payments to eligible Authorized Claimants pursuant to the Plan of Allocation (or such other plan of allocation as the Court approves) will be made after any appeals are resolved, and after the completion of all claims processing. The claims process will take substantial time to complete fully and fairly. Please be patient. 13. PLEASE NOTE: As set forth in the Plan of Allocation, each Authorized Claimant shall receive his, her or its pro rata share of the Net Settlement Fund. If the prorated payment to any Authorized Claimant calculates to less than $10.00, it will not be included in the calculation and no distribution will be made to that Authorized Claimant. 14. If you have questions concerning the Claim Form, or need additional copies of the Claim Form or the Notice, you may contact the Claims Administrator, A.B. Data, Ltd., at the above address or by toll-free phone at 1-866-217-4456, or you may download the documents from www.BioScripSecuritiesLitigation.com. 15. NOTICE REGARDING ELECTRONIC FILES: Certain claimants with large numbers of transactions may request, or may be requested, to submit information regarding their transactions in electronic files. To obtain the mandatory electronic filing requirements and file layout, you may visit the settlement website at www.BioScripSecuritiesLitigation.com or you may email the Claims Administrator’s electronic filing department at [email protected]. Any file not in accordance with the required electronic filing format will be subject to rejection. No electronic files will be considered to have been properly submitted unless the Claims Administrator issues an email to that effect after processing your file with your claim numbers and respective account information. Do not assume that your file has been received or processed until you receive this email. If you do not receive such an email within 10 days of your submission, you should contact the electronic filing department at [email protected] to inquire about your file and confirm it was received and acceptable. IMPORTANT: PLEASE NOTE YOUR CLAIM IS NOT DEEMED FILED UNTIL YOU RECEIVE AN ACKNOWLEDGEMENT POSTCARD. THE CLAIMS ADMINISTRATOR WILL ACKNOWLEDGE RECEIPT OF YOUR CLAIM FORM BY MAIL, WITHIN 60 DAYS. IF YOU DO NOT RECEIVE AN ACKNOWLEDGEMENT POSTCARD WITHIN 60 DAYS, PLEASE CALL THE CLAIMS ADMINISTRATOR TOLL FREE AT (866) 217-4456. Page 5 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 92 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 91 of 110 PART III – SCHEDULE OF TRANSACTIONS IN BIOSCRIP COMMON STOCK Please be sure to include proper documentation with your Claim Form as described in detail in Part II – General Instructions, Paragraph 6, above. Do not include information regarding securities other than BioScrip common stock. 1. HOLDINGS AS OF NOVEMBER 9, 2012 – State the total number of shares of BioScrip common Confirm Proof stock held as of the opening of trading on November 9, 2012. (Must be documented.) If none, write “zero” of Position or “0.” ______Enclosed ○ 2. PURCHASES/ACQUISITIONS FROM NOVEMBER 9, 2012 THROUGH NOVEMBER 6, 2013 IF NONE, – Separately list each and every purchase/acquisition (including free receipts) of BioScrip common stock CHECK HERE from after the opening of trading on November 9, 2012 through and including the close of trading on November 6, 2013. (Must be documented.) ○ Date of Purchase/ Number of Shares Purchase/ Total Purchase/ Check here if Confirm Proof Acquisition (List Purchased/Acquired Acquisition Acquisition Price shares were of Purchase Chronologically) Price Per Share (excluding taxes, purchased in Enclosed (Month/Day/Year) commissions, and April 18, 2013 fees) offering / / $ $ ○ ○ / / $ $ ○ ○ / / $ $ ○ ○ / / $ $ ○ ○ 3. PURCHASES/ACQUISITIONS FROM NOVEMBER 7, 2013 THROUGH FEBRUARY 4, 2014 – State the total number of shares of BioScrip common stock purchased/acquired (including free receipts) from after the opening of trading on November 7, 2013 through and including the close of trading on February 4, 2014. If none, write “zero” or “0.”2 ______4. SALES FROM NOVEMBER 9, 2012 THROUGH FEBRUARY 4, 2014 – Separately list each and IF NONE, every sale/disposition (including free deliveries) of BioScrip common stock from after the opening of CHECK HERE trading on November 9, 2012 through and including the close of trading on February 4, 2014. (Must be documented.) ○ Date of Sale Number of Sale Price Total Sale Price Confirm Proof (List Shares Sold Per Share (excluding taxes, commissions, and of Sale Enclosed Chronologically) fees) (Month/Day/Year) / / $ $ ○ / / $ $ ○ 2 Please note: Information requested with respect to your purchases/acquisitions of BioScrip common stock from after the opening of trading on November 7, 2013 through and including the close of trading on February 4, 2014 is needed in order to balance your claim; purchases during this period, however, are not eligible under the Settlement and will not be used for purposes of calculating your Recognized Claim pursuant to the Plan of Allocation. Page 6 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 93 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 92 of 110 / / $ $ ○ / / $ $ ○ 5. HOLDINGS AS OF FEBRUARY 4, 2014 – State the total number of shares of BioScrip common Confirm Proof stock held as of the close of trading on February 4, 2014. (Must be documented.) If none, write “zero” or of Position “0.” ______Enclosed ○ IF YOU REQUIRE ADDITIONAL SPACE FOR THE SCHEDULE ABOVE, ATTACH EXTRA SCHEDULES IN THE SAME FORMAT. PRINT THE BENEFICIAL OWNER’S FULL NAME AND LAST FOUR DIGITS OF SOCIAL SECURITY/TAXPAYER IDENTIFICATION NUMBER ON EACH ADDITIONAL PAGE. IF YOU DO ATTACH EXTRA SCHEDULES, CHECK THIS BOX Page 7 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 94 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 93 of 110 PART IV - RELEASE OF CLAIMS AND SIGNATURE YOU MUST ALSO READ THE RELEASE AND CERTIFICATION BELOW AND SIGN ON PAGE __ OF THIS CLAIM FORM. I (we) hereby acknowledge that, pursuant to the terms set forth in the Stipulation, without further action by anyone, upon the Effective Date of the Settlement, I (we), on behalf of myself (ourselves) and my (our) current and future heirs, executors, administrators, predecessors, successors, attorneys, insurers, agents, and assigns, in their capacities as such, shall be deemed to have, and by operation of law and of the judgment shall have, fully, finally, and forever compromised, settled, released, resolved, relinquished, waived, and discharged each and every Released Plaintiffs’ Claim (including, without limitation, any Unknown Claims) against the Released Defendant Persons and shall forever be barred and enjoined from commencing any action with respect to, instituting any action with respect to, or prosecuting any or all of the Released Plaintiffs’ Claims against any of the Released Defendant Persons. CERTIFICATION By signing and submitting this Claim Form, the claimant(s) or the person(s) who represent(s) the claimant(s) certifies (certify), as follows: 1. that I (we) have read and understand the contents of the Notice and this Claim Form, including the releases provided for in the Settlement and the terms of the Plan of Allocation; 2. that the claimant(s) is a (are) Settlement Class Member(s), as defined in the Notice, and is (are) not excluded by definition from the Settlement Class as set forth in the Notice; 3. that the claimant has not submitted a request for exclusion from the Settlement Class; 4. that I (we) own(ed) the BioScrip common stock identified in the Claim Form and have not assigned the claim against any of the Defendants or any of the other Released Defendant Persons to another, or that, in signing and submitting this Claim Form, I (we) have the authority to act on behalf of the owner(s) thereof; 5. that the claimant(s) has (have) not submitted any other claim covering the same purchases of BioScrip common stock and knows (know) of no other person having done so on the claimant’s (claimants’) behalf; 6. that the claimant(s) submit(s) to the jurisdiction of the Court with respect to claimant’s (claimants’) claim and for purposes of enforcing the releases set forth herein; 7. that I (we) agree to furnish such additional information with respect to this Claim Form as Lead Counsel, the Claims Administrator or the Court may require; 8. that the claimant(s) waive(s) the right to trial by jury, to the extent it exists, and agree(s) to the Court’s summary disposition of the determination of the validity or amount of the claim made by this Claim Form; 9. that I (we) acknowledge that the claimant(s) will be bound by and subject to the terms of any judgment(s) that may be entered in the Action; and Page 8 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 95 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 94 of 110 10. that the claimant(s) is (are) NOT subject to backup withholding under the provisions of Section 3406(a)(1)(C) of the Internal Revenue Code because (a) the claimant(s) is (are) exempt from backup withholding or (b) the claimant(s) has (have) not been notified by the IRS that he/she/it is subject to backup withholding as a result of a failure to report all interest or dividends or (c) the IRS has notified the claimant(s) that he/she/it is no longer subject to backup withholding. If the IRS has notified the claimant(s) that he/she/it is subject to backup withholding, please strike out the language in the preceding sentence indicating that the claim is not subject to backup withholding in the certification above. UNDER THE PENALTIES OF PERJURY, I (WE) CERTIFY THAT ALL OF THE INFORMATION PROVIDED BY ME (US) ON THIS CLAIM FORM IS TRUE, CORRECT, AND COMPLETE, AND THAT THE DOCUMENTS SUBMITTED HEREWITH ARE TRUE AND CORRECT COPIES OF WHAT THEY PURPORT TO BE. Signature of claimant Date Print your name here Signature of joint claimant, if any Date Print your name here If the claimant is other than an individual, or is not the person completing this form, the following also must be provided: Signature of person signing on behalf of claimant Date Print your name here Capacity of person signing on behalf of claimant, if other than an individual, e.g., executor, president, trustee, custodian, etc. (Must provide evidence of authority to act on behalf of claimant – see paragraph 9 on page __ of this Claim Form.) Page 9 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 96 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 95 of 110 REMINDER CHECKLIST: 1. Please sign the above release and certification. If this Claim Form is being made on behalf of joint claimants, then both must sign. 2. Remember to attach only copies of acceptable supporting documentation as these documents will not be returned to you. 3. Please do not highlight any portion of the Claim Form or any supporting documents. 4. Keep copies of the completed Claim Form and documentation for your own records. 5. The Claims Administrator will acknowledge receipt of your Claim Form by mail, within 60 days. Your claim is not deemed filed until you receive an acknowledgement postcard. IF YOU DO NOT RECEIVE AN ACKNOWLEDGEMENT POSTCARD WITHIN 60 DAYS, PLEASE CALL THE CLAIMS ADMINISTRATOR TOLL FREE AT 1-866-217-4456. 6. If your address changes in the future, or if this Claim Form was sent to an old or incorrect address, please send the Claims Administrator written notification of your new address. If you change your name, please inform the Claims Administrator. 7. If you have any questions or concerns regarding your claim, please contact the Claims Administrator at the above address or toll free at 1-866-217-4456, visit www.BioScripSecuritiesLitigation.com or email [email protected]. Please DO NOT call BioScrip, any other Defendants, or their counsel with questions regarding your claim. THIS CLAIM FORM MUST BE MAILED TO THE CLAIMS ADMINISTRATOR BY PREPAID, FIRST- CLASS MAIL, POSTMARKED NO LATER THAN ______, 2016, ADDRESSED AS FOLLOWS: In re BioScrip, Inc. Securities Litigation c/o A.B. Data, Ltd. P.O. Box 170500 Milwaukee, WI 53217 1-866-217-4456 www.BioScripSecuritiesLitigation.com A Claim Form received by the Claims Administrator shall be deemed to have been submitted when posted, if a postmark date on or before ______, 2016 is indicated on the envelope and it is mailed First Class, and addressed in accordance with the above instructions. In all other cases, a Claim Form shall be deemed to have been submitted when actually received by the Claims Administrator. You should be aware that it will take a significant amount of time to fully process all of the Claim Forms. Please be patient and notify the Claims Administrator of any change of address. #944078 Page 10 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 97 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 96 of 110 Exhibit A-3 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 98 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 97 of 110 Exhibit A-3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE BIOSCRIP, INC. SECURITIES Civil Action No. 13-cv-6922-AJN LITIGATION SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All persons and entities who purchased the common stock of BioScrip, Inc. (“BioScrip”) during the period from November 9, 2012 through November 6, 2013, inclusive, and were damaged thereby (the “Settlement Class”): PLEASE READ THIS NOTICE CAREFULLY. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT, AND YOU MAY BE ENTITLED TO SHARE IN THE $10,900,000 SETTLEMENT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of New York, that the parties in the above-captioned litigation (the “Action”) have reached a proposed settlement for $10,900,000 in cash (the “Settlement”), that, if approved, will resolve all claims in the Action. YOU ARE ALSO NOTIFIED that the Action has been certified for settlement purposes only as a class action on behalf of the Settlement Class. Certain persons and entities are, however, excluded from the Settlement Class by definition as set forth in the full printed Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and Reimbursement of Litigation Expenses (the “Notice”), which more completely describes the Settlement and your rights thereunder. If you have not yet received the Notice and Claim Form, you may obtain copies of these documents by contacting the Claims Administrator at In re BioScrip, Inc. Securities Litigation, c/o A.B. Data, Ltd., P.O. Box 170500, Milwaukee, WI 53217, 1-866-217-4456. Copies of the Notice and Claim Form can also be downloaded from www.BioScripSecuritiesLitigation.com. A hearing will be held on ______, 2016 at __:__ _.m., before the Honorable Alison J. Nathan at the United States District Court for the Southern District of New York, Thurgood Marshall United States Courthouse, Courtroom 906, 40 Foley Square, New York, NY 10007, to determine: (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation and Agreement of Settlement dated Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 99 of Case 1:13-cv-06922-AJN Document 111 101-1 Filed 12/18/15 Page 98 of 110 December 18, 2015 (and in the Notice) should be granted; (iii) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (iv) whether Lead Counsel’s application for an award of attorneys’ fees and reimbursement of expenses should be approved. If you are a member of the Settlement Class, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Claim Form postmarked no later than ______, 2016. If you are a member of the Settlement Class and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement, but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a member of the Settlement Class and wish to exclude yourself from the Settlement Class, you must submit a request for exclusion such that it is received no later than ______, 2016, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel’s motion for attorneys’ fees and reimbursement of expenses, must be filed with the Court and delivered to Lead Counsel and representative Defendants’ Counsel such that they are received no later than ______, 2016, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk’s office, BioScrip, the other Defendants, or their counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to the Claims Administrator or Lead Counsel. Requests for the Notice and Claim Form should be made to: In re BioScrip, Inc. Securities Litigation, c/o A.B. Data, Ltd. P.O. Box 170500 Milwaukee, WI 53217 (866) 217-4456 www.BioScripSecuritiesLitigation.com Inquiries, other than requests for the Notice and Claim Form, should be made to Lead Counsel: BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP Hannah G. Ross, Esq. 1251 Avenue of the Americas, 44th Floor New York, NY 10020 (800) 380-8496 [email protected] By Order of the Court 2 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 100 Case 1:13-cv-06922-AJN Document of 101-1111 Filed 12/18/15 Page 99 of 110 Exhibit B Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 101 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 100 of 110 Exhibit B UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE BIOSCRIP, INC. SECURITIES Civil Action No. 13-cv-6922-AJN LITIGATION JUDGMENT APPROVING CLASS ACTION SETTLEMENT WHEREAS, a consolidated class action is pending in this Court entitled In re BioScrip, Inc. Securities Litigation, No. 13-cv-6922 (AJN) (the “Action”); WHEREAS, (a) Lead Plaintiff Fresno County Employees’ Retirement Association, on behalf of itself and the Settlement Class (defined below), and (b) defendants BioScrip, Inc. (“BioScrip”), Richard M. Smith, Hai V. Tran, Patricia Bogusz, Myron Z. Holubiak, Charlotte W. Collins, Samuel P. Frieder, David R. Hubers, Richard L. Robbins, Stuart A. Samuels, Gordon H. Woodward, and Kimberlee Seah (the “Individual Defendants”); Jefferies LLC, Morgan Stanley & Co. LLC, SunTrust Robinson Humphrey, Inc., Dougherty & Company, and Noble International Investments, Inc. (the “Underwriter Defendants”) and Kohlberg & Co., LLC (“Kohlberg” and, together with BioScrip, the Individual Defendants and the Underwriter Defendants, the “Defendants,” and, together with Lead Plaintiff, the “Parties”) have entered into a Stipulation and Agreement of Settlement dated December 18, 2015 (the “Stipulation”), that provides for a complete dismissal with prejudice of the claims asserted against Defendants in the Action on the terms and conditions set forth in the Stipulation, subject to the approval of this Court (the “Settlement”); WHEREAS, unless otherwise defined in this Judgment, the capitalized terms herein shall have the same meaning as they have in the Stipulation; Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 102 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 101 of 110 WHEREAS, by Order dated ______, 20__ (the “Preliminary Approval Order”), this Court: (a) preliminarily approved the Settlement; (b) preliminarily certified the Settlement Class solely for purposes of effectuating the Settlement; (c) ordered that notice of the proposed Settlement be provided to potential Settlement Class Members; (d) provided Settlement Class Members with the opportunity either to exclude themselves from the Settlement Class or to object to the proposed Settlement; and (e) scheduled a hearing regarding final approval of the Settlement; WHEREAS, due and adequate notice has been given to the Settlement Class; WHEREAS, the Court conducted a hearing on ______, 2016 (the “Settlement Hearing”) to consider, among other things, (a) whether the terms and conditions of the Settlement are fair, reasonable and adequate to the Settlement Class, and should therefore be approved; and (b) whether a judgment should be entered dismissing the Action with prejudice as against the Defendants; and WHEREAS, the Court having reviewed and considered the Stipulation, all papers filed and proceedings held herein in connection with the Settlement, all oral and written comments received regarding the Settlement, and the record in the Action, and good cause appearing therefor; IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. Jurisdiction – The Court has jurisdiction over the subject matter of the Action, and all matters relating to the Settlement, as well as personal jurisdiction over all of the Parties and each of the Settlement Class Members. 2. Incorporation of Settlement Documents – This Judgment incorporates and makes a part hereof: (a) the Stipulation filed with the Court on December 18, 2015; and (b) the Notice and the Summary Notice, both of which were filed with the Court on ______, 2016. 2 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 103 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 102 of 110 3. Class Certification for Settlement Purposes – The Court hereby affirms its determinations in the Preliminary Approval Order and finds, for purposes of the Settlement Only, that the prerequisites for a class action under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the members of the Settlement Class are so numerous that their joinder in the Action would be impracticable; (b) there are questions of law and fact common to the Settlement Class; (c) the claims of Plaintiffs in the Action are typical of the claims of the Settlement Class they seek to represent; (d) Plaintiffs and Lead Counsel have and will fairly and adequately represent and protect the interests of the Settlement Class; (e) the questions of law and fact common to the members of the Settlement Class predominate over any questions affecting only individual members of the Settlement Class; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the Action. 4. Accordingly, for the purposes of the Settlement only, the Court hereby finally certifies the Action as a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure on behalf of the Settlement Class consisting of all persons and entities who purchased BioScrip common stock during the period from November 9, 2012 through November 6, 2013, inclusive (the “Settlement Class Period”), and were damaged thereby. Excluded from the Settlement Class are: (i) Defendants; (ii) members of the immediate families of the Individual Defendants; (iii) the subsidiaries of BioScrip, the Underwriter Defendants, and Kohlberg; (iv) any persons who served as partners, control persons, officers, and/or directors of BioScrip, the Underwriter Defendants, or Kohlberg during the Settlement Class Period and/or at any other relevant time; (v) any firm, trust, corporation, or other entity in which any Defendant has or had a controlling interest; (vi) Defendants’ liability insurance carriers; and (vii) the legal representatives, heirs, successors, and assigns of any such excluded party. [Also excluded from the Settlement 3 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 104 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 103 of 110 Class are the persons and entities listed on Exhibit 1 hereto who or which are excluded from the Settlement Class pursuant to a request for exclusion that is valid and timely in accordance with the Preliminary Approval Order or is otherwise accepted by the Court.] 5. Appointment of Class Representatives and Class Counsel – Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes of the Settlement only, the Court hereby certifies Plaintiffs as Class Representatives for the Settlement Class and appoints Lead Counsel as Class Counsel for the Settlement Class. Plaintiffs and Lead Counsel have fairly and adequately represented the Settlement Class both in terms of litigating the Action and for purposes of entering into and implementing the Settlement and have satisfied the requirements of Federal Rules of Civil Procedure 23(a)(4) and 23(g), respectively. 6. Notice – The Court finds that the dissemination of the Notice and the publication of the Summary Notice: (a) were implemented in accordance with the Preliminary Approval Order; (b) constituted the best notice practicable under the circumstances; (c) constituted notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of (i) the pendency of the Action; (ii) the effect of the proposed Settlement (including the Releases to be provided thereunder); (iii) Lead Counsel’s motion for an award an attorneys’ fees and reimbursement of Litigation Expenses; (iv) their right to object to any aspect of the Settlement, the Plan of Allocation and/or Lead Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses; (v) their right to exclude themselves from the Settlement Class; and (vi) their right to appear at the Settlement Hearing; (d) constituted due, adequate, and sufficient notice to all persons and entities entitled to receive notice of the proposed Settlement; and (e) satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the Private Securities Litigation Reform Act of 1995, 15 4 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 105 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 104 of 110 U.S.C. §§ 77z-1(a)(7), 78u-4(a)(7), and all other applicable law and rules. A full opportunity has been offered to the Settlement Class Members to object to the proposed Settlement and to participate in the hearing thereon. 7. Final Settlement Approval and Dismissal of Claims – Pursuant to, and in accordance with, Rule 23 of the Federal Rules of Civil Procedure, this Court hereby fully and finally approves the Settlement set forth in the Stipulation in all respects (including, without limitation: the amount of the Settlement; the Releases provided for therein; and the dismissal with prejudice of the claims asserted against Defendants in the Action), and finds that the Settlement is, in all respects, fair, reasonable and adequate to the Settlement Class. The Parties are directed to implement, perform and consummate the Settlement in accordance with the terms and provisions contained in the Stipulation. 8. The Action and all of the claims asserted against Defendants in the Action by Lead Plaintiff and the other Settlement Class Members are hereby dismissed with prejudice. The Parties shall bear their own costs and expenses, except as otherwise expressly provided in the Stipulation. 9. Binding Effect – The terms of the Stipulation and of this Judgment shall be forever binding on Defendants, Lead Plaintiff and all other Settlement Class Members (regardless of whether or not any individual Settlement Class Member submits a Claim Form or seeks or obtains a distribution from the Net Settlement Fund), as well as their respective successors and assigns. [The persons and entities listed on Exhibit 1 hereto are not bound by the terms of the Stipulation or this Judgment because they are excluded from the Settlement Class pursuant to a request for exclusion that is valid and timely in accordance with the Preliminary Approval Order or is otherwise accepted by the Court.] 5 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 106 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 105 of 110 10. Releases – The Releases set forth in paragraphs 5 and 6 of the Stipulation, together with the definitions contained in paragraph 1 of the Stipulation relating thereto, are expressly incorporated herein in all respects. The Releases are effective as of the Effective Date. Accordingly, this Court orders that: (a) Without further action by anyone, and subject to paragraph 11 below, upon the Effective Date of the Settlement, Lead Plaintiff and each of the other Settlement Class Members, on behalf of themselves, and their respective current and future heirs, executors, administrators, predecessors, successors, attorneys, insurers, agents and assigns, in their capacities as such, shall be deemed to have, and by operation of law and of this Judgment shall have, fully, finally and forever compromised, settled, released, resolved, relinquished, waived and discharged each and every Released Plaintiffs’ Claim against the Released Defendant Persons, and shall forever be barred and enjoined from commencing any action with respect to, instituting any action with respect to, or prosecuting any or all of the Released Plaintiffs’ Claims against any of the Released Defendant Persons. (b) Without further action by anyone, and subject to paragraph 11 below, upon the Effective Date of the Settlement, Defendants, on behalf of themselves, and their respective current and future heirs, executors, administrators, predecessors, successors, attorneys, insurers, agents and assigns, in their capacities as such, shall be deemed to have, and by operation of law and of this Judgment shall have, fully, finally and forever compromised, settled, released, resolved, relinquished, waived and discharged each and every Released Defendants’ Claim against Lead Plaintiff and the other Released Plaintiff Persons, and shall forever be barred and enjoined from commencing any action with respect to, instituting any action with respect to, or prosecuting any or all of the Released Defendants’ Claims against any of the Released Plaintiff Persons. [This 6 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 107 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 106 of 110 Release shall not apply to any person or entity listed on Exhibit 1 hereto because they are excluded from the Settlement Class pursuant to a request for exclusion that is valid and timely in accordance with the Preliminary Approval Order or is otherwise accepted by the Court.] 11. Notwithstanding paragraphs 10(a) – (b) above, nothing in this Judgment shall bar any action by any of the Parties to enforce or effectuate the terms of the Stipulation or this Judgment. 12. Rule 11 Findings – The Court finds and concludes that the Parties and their respective counsel have complied in all respects with the requirements of Rule 11 of the Federal Rules of Civil Procedure in connection with the institution, prosecution, defense, and settlement of the Action. 13. No Admissions – Neither this Judgment, the Stipulation (whether or not consummated), including the exhibits thereto and the Plan of Allocation contained therein (or any other plan of allocation that may be approved by the Court), the negotiations leading to the execution of the Stipulation, nor any proceedings taken pursuant to or in connection with the Stipulation and/or approval of the Settlement (including any arguments proffered in connection therewith): (a) shall be offered against any of the Released Defendant Persons as evidence of, or construed as, or deemed to be evidence of any presumption, concession, or admission by any of the Released Defendant Persons with respect to the truth of any fact alleged by Lead Plaintiff or the validity of any claim that was or could have been asserted or the deficiency of any defense that has been or could have been asserted in this Action or in any other litigation, or of any liability, negligence, fault, or other wrongdoing of any kind of any of the Released Defendant Persons or in any way referred to for any other reason as against any of the Released Defendant 7 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 108 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 107 of 110 Persons, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; provided, however, that Released Defendant Persons may file the Stipulation and/or this Judgment in any action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim; (b) shall be offered against any of the Released Plaintiff Persons, as evidence of, or construed as, or deemed to be evidence of any presumption, concession or admission by any of the Released Plaintiff Persons that any of their claims are without merit, that any of the Released Defendant Persons had meritorious defenses, or that damages recoverable under the Complaint would not have exceeded the Settlement Amount or with respect to any liability, negligence, fault or wrongdoing of any kind, or in any way referred to for any other reason as against any of the Released Plaintiff Persons, in any civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the Stipulation; or (c) shall be construed against any of the Releasees as an admission, concession, or presumption that the consideration to be given under the Settlement represents the amount which could be or would have been recovered after trial; provided, however, that the Parties and the Releasees and their respective counsel may refer to this Judgment and the Stipulation to effectuate the protections from liability granted hereunder and thereunder or otherwise to enforce the terms of the Settlement. 14. Retention of Jurisdiction – Without affecting the finality of this Judgment in any way, this Court retains continuing and exclusive jurisdiction over: (a) the Parties for purposes of the administration, interpretation, implementation and enforcement of the Settlement; (b) the 8 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 109 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 108 of 110 disposition of the Settlement Fund; (c) any motion for an award of attorneys’ fees and/or Litigation Expenses by Lead Counsel in the Action that will be paid from the Settlement Fund; (d) any motion to approve the Plan of Allocation; (e) any motion to approve the Class Distribution Order; and (f) the Settlement Class Members for all matters relating to the Action. 15. Separate orders shall be entered regarding approval of a plan of allocation and the motion of Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation Expenses. Such orders shall in no way affect or delay the finality of this Judgment and shall not affect or delay the Effective Date of the Settlement. 16. Modification of the Agreement of Settlement – Without further approval from the Court, Lead Plaintiff and Defendants are hereby authorized to jointly agree to and adopt such amendments or modifications of the Stipulation or any exhibits attached thereto to effectuate the Settlement that: (a) are not materially inconsistent with this Judgment; and (b) do not materially limit the rights of the Settlement Class Members in connection with the Settlement. Without further order of the Court, Lead Plaintiff and Defendants may agree to reasonable extensions of time to carry out any provisions of the Settlement. 17. Termination of Settlement – If the Settlement is terminated as provided in the Stipulation or the Effective Date of the Settlement otherwise fails to occur, this Judgment shall be vacated, rendered null and void and be of no further force and effect, except as otherwise provided by the Stipulation, and this Judgment shall be without prejudice to the rights of Lead Plaintiff, the other Settlement Class Members and Defendants, and the Parties shall be deemed to have reverted to their respective positions in the Action as of October 30, 2015, preserving in that event all of their respective claims and defenses in the Action. 9 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 110 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 109 of 110 18. Entry of Final Judgment – There is no just reason to delay the entry of this Judgment as a final judgment in this Action. Accordingly, the Clerk of the Court is expressly directed to immediately enter this final judgment in this Action. SO ORDERED this ______day of ______, 20__. ______The Honorable Alison J. Nathan United States District Judge 10 Case 1:15-cv-02546-RM-MEH Document 170-27 Filed 09/21/17 USDC Colorado Page 111 Case 1:13-cv-06922-AJN Document of 101-1 111 Filed 12/18/15 Page 110 of 110 Exhibit 1 [List of Persons and Entities Excluded from the Settlement Class Pursuant to Request] 11 Case 1:15-cv-02546-RM-MEH Document 170-28 Filed 09/21/17 USDC Colorado Page 1 of 7 EXHIBIT 24 Case 1:15-cv-02546-RM-MEH Document 170-28 Filed 09/21/17 USDC Colorado Page 2 of 7 1 STRADLING YOCCA CARLSON & RAUTH, P.C. John F. Cannon (SBN 149263)149263) 2 Aaron Humes (SBN 272141) 90 New Montgomery Street, Suite 101581015? ECEIVEDE C E E V E D - FILEF E L E B 3 San Francisco, CA 94105 SANS AN MATEO COUNTYCO UNT" Telephone: (415) 321-6026 SEP 2 7 2016201B 4 Facsimile: (415) 283-1446 . CLERK OF THE_ SUPERIOR COURT OCT 0"3 3 20162015 [email protected] SAN MATEO COUNTY ism” ~ 5 [email protected] Clef 01 e u I ruoun‘;Olitt By -/ V 6 Attorneys forfor Specially Appearing Defendants Clovis DEPUTV CLEfiK Oncology, Ina,Inc., Patric/clPatrick- J. Mahafij),Mahaffy, Erle TT. Mast, 7 M.M James Barrett, Brian G. Atwood, ‘ \OOO\]O\ Paul Klingensz‘ein,Klingenstein, and Edward J. McKinley 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 1010 ELECTRICAL WORKERS LOCAL #357 Case No. CIV537068 1111 . PENSION AND HEALTH & WELFARE TRUSTS, t ON BEHALF ON BEHALF OF ITSELF AND ALL OTHERS fe.11-01:6(4945)RDER RE MOTION TO 1212 SIMILARLY SITUATED, WEIR . STAY PROCEEDINGS 1313 Plaintiff, Assigned for All Purposes to 1414 v. Hon. Marie S. Weiner, Dept. 2 1515 CLOVIS ONCOLOGY, INC., et al.,31., Hearing Date: SeptemberSeptembeT 23, 2016 Hearing 1616' Hearing Time: 2:00 p.m.pm. ; Defendants. Hearing Judge: Hon. Marie S. Weiner Hearing Judge: Hon. Marie S. Weiner ‘ ndjwllgq 1717 Hearing Dept: 2 1818 Date Action Filed: January 22, 2016 Trial Date: Not Set akin 1919 20 21 22 2323_ 24 25 - — _ _ _ {/CITEam—séCIV537068 26 ORD0RD i 0Order der , 27 II 206699 28 II IIllllllllIHIHIIIIUIIIWHllllil_ II 1111 1111 [PROPOSED][PROPOSED] ORDER RE MOTION TO STAY PROCEEDINGS Case 1:15-cv-02546-RM-MEH Document 170-28 Filed 09/21/17• USDC Colorado Page 3 of 7 so a a 2 am EN Case 1:15-cv-02546-RM-MEH Document 170-28 Filed 09/21/17 USDC Colorado Page 4 of 7 1 [PROPOSED]IPROPOSEDI ORDER 2 On September 23, 2016, the Court heard the motion to stay proceedings of specially 3 appearing defendants Clovis Oncology, Inc.,1nc., Patrick J. Mahaffy, ErieErle T. Mast, M. James Barrett, U‘I-DUJN4 BrianBrian G. Atwood, Paul Klingenstein, Edward J. McKinley, NEA Partners, 1313 L.P.,LP, NEANBA 1313 GP, Ltd, 5 ScottScott'D. D. Sandell, Forest Baskett, Aberdare Ventures IV, L.P., J.P.J .P. Morgan Securities LLC, Credit 6 Suisse SecuritiesSecurities. (USA) LLC, Stifel, Nicolaus & Company, Incorporated, and Mizuho SecuritiesSeourities 7 USA. Inc. All parties appeared by and through their respective counsel. Having considered the \DOOVO‘N 8 papers and argument presented on the motion, the Court hereby rules as follows: 9 1.1. The defendants filed the motion to stay proceedings on two grounds: (1) pursuant to 1010 the Court'sCourt’s inherent authority to issue stays in favor of parallel, pending federal actions under Caiafa 11ll ProfProf. Law Corp. v. State Farm FFireire & Cas. Co.,Co, 1515 Cal. App. 4th 800 (1993); and (2) on the basis of 1212 forumforum non conveniens pursuant to California Code of Civil Procedure section 410.30. 1313 2. The motion to stay proceedings pursuant to Caiafa is DENIED. 1414 3. TheThe. motion to stay proceedings on forumforum nonnon. conveniens grounds pursuant to 1515 California Code of Civil Procedure section 410.3.0410.30 is GRANTED in favor of the related securities 1616 class action captioned Medina v. Clovis Oncology, Inc,Inc., et al., No. 1:15-cv-2546,1:15-cv-2546, pending before the 1717 Honorable Raymond P. Moore in the United States District Court for the District of Colorado (the 1818 "Colorado“Colorado Action").Action”). The reasons for granting the stay on forumforum non conveniens grounds include 1919 that the nucleus of the case appears to be in Colorado, discovery is not particularly based in San 20 Mateo County, and the Court does not see an increased benefitbenefit of having the case proceed in San 21 Mateo County. 22 4. The Court maintains jurisdiction over the present action, and the stay is without 23 prejudice to any party moving to lift the stay for good cause at any time..time. 24 5. The ruling on the defendants'defendants’ demurrers to the amended complaint is stayed, but the I 25 Court is prepared to rule on them in the event the stay is lifted. 26 6. The parties shall update this Court as to the progressprogreSs of the ColoradoColoradoAction. Action. The 27 parties shall filefile a status report once every six months, with the firstfirSt status report due six months 28 fromfrom September 23, 2016, on March 23, 2017..2017., [PROPOSED][PROPOSED] ORDER RE MOTION TO STAY PROCEEDINGS 11 Case 1:15-cv-02546-RM-MEH Document 170-28 Filed 09/21/17 USDC Colorado Page 5 of 7 N 1 IT IS SO ORDERED. 2 3 Dated:Datedzr 00C1 d. 3,3 3,2016, 2016 /%%/M The HonorableHonoragle Marie S. Weiner 4 San Mateo Superior Court Judge 5\IO‘xUI-AWN 6 7 8 9 101o _ 1111 1212 ’ 1313 R 1414 1515 1616 1717 1818 , 1919 20 21 g 22 . 23 24 25 26 27 28 [PROPOSED][PROPOSED] ORDER RE MOTION TO STAY PROCEEDINGS 2 Case 1:15-cv-02546-RM-MEH Document 170-28 Filed 09/21/17 USDC Colorado Page 6 of 7 1 PROOF OF SERVICESERVICE 2 I,1, Amanda Jaramillo, am employed by Stradling Yocca Carlson & Rauth, P.C., in the County DON of San Francisco, State of California. I am over the age of 1818 and not a party to the within action. 3 My business address is 90 New Montgomery Street, Suite 1015,1015, San Francisco, CA 94105. 4 On September 27, 2016, I served a copy of the following document(s) described as: 5U) [PROPOSED][PROPOSED] ORDER RE MOTION TO STAY PROCEEDINGS 6 on the interested parties in this action as follows: 7 \QOO\10\ El By overnight delivery. I enclosed the above-referenced document(s) in an envelope or 8 package designated by an overnight delivery carrier with delivery fees paid or provided for and addressed to the person(s)personCs) at the address(es) listed below. I placed the envelope or 9 package for collection and overnight delivery at an officeoffice or a regularly utilized drop box 1010 of the overnight delivery carrier. 11ll See Attached Service List 1212 I also caused a courtesy copy of the above documents to be sent via electronic mail to 1313 counsel for the parties listed on the attached Service List. 1414 I declare that I am employed in the officeoffice of a member of the bar of this court whose direction the service was made. I declare under penalty of perjury under the laws of the State of 1515 California that the above is true and correct. 1616 Executed on September 27, 2016, at San Francisco, California. 1717 AMA /fl2fla—\ 1818 Amanda Jaramillo 1919 20 21 22 23 2424- 25 26 i 27 28 [PROPOSED][PROPOSED] ORDER RE MOTION TO STAY PROCEEDINGS 3 Case 1:15-cv-02546-RM-MEH Document 170-28 Filed 09/21/17 USDC Colorado Page 7 of 7 1 SERVICE LIST 2 Shawn A. Williams James I. Jaconette ROBBINS GELLER RUDMAN & DOWD Thomas E. Egler 3 LLP Laurie L. Largent 4 One Montgomery Street, Suite 18001800 ROBBINS GELLER RUDMAN & DOWD LLP San Francisco, CA 94104 655 West Broadway, Suite 19001900 5 Telephone: 415-288-4545 San Diego, CA 92101 Facsimile: 415-288-4534 Telephone: 619-231-1058619~231~1058 6\IO\U1 [email protected] Facsimile: 619-231-7423 [email protected] 7 . Attorneys forfor Plaintiff [email protected]@rgrd1aw.com 8 [email protected]@rgrdlaW.com 9 Attorneys forfor Plainti/j’Plaintiff Laura K. Oswell Robert A. Sacks 1010 SULLIVAN & CROMWELL LLP Alexa M. Lawson-Remer 1870 Embarcadero Road SULLIVAN & CROMWELL LLP 1111 1870 Palo Alto, CA 94303 18881888 Century Park East, Suite 2100 1212 Telephone: 650-461-5600 Los Angeles, CA 90067 Facsimile: 650-461-5700650-461~5700 Telephone: 310-712-6600 1313 [email protected] Facsimile: 310-712-8800 [email protected] 1414 Attorneys forfor Defendants JP Morgan [email protected] 1515 Securities (USA) LLC, Credit Suisse Securities (USA) LLC, Stifel, Nicolaus & Attorneys forfor Defendants JP [MorganMorgan Securities 1616 Company, Incorporated, and Mizuho (USA) LLC, Credit Suisse Securities (USA) LLC, Securities USA Inc. Stifel, Nicolaus & Company, Incorporated, and 1717 Mizuho Securities USA Inc. ‘ Thomas S. Brown Roger A. Lane 1818 FOLEY & LARDNER LLP FOLEY & LARDNER LLP 555 California Street 1111 1 1 Huntington Avenue 1919 Suite 17001700 Suite 2600 San Francisco, CA 94104 Suite 2600 20 Telephone: (415) 984-9830984—9830 Boston, MA 02199 Facsimile: (415) 434-4507434—4507 Telephone: 617-342-4098 21 [email protected] Facsimile: 617-342-4001 22 [email protected] Attorneys forfor Defendants Scott D. Sandell, 23 Forest Baskett,Baslcett, NEA Partners 13, LR,L.P., NEA Attorneys forfor Defendants Scott D. Sandell, 13 GP, LTD, and Aberdare Ventures IV, LP.L.P. Forest Baskett, NEA Partners 13, LP,L.P., NEA 13 24 ~ GP, LTD, and Aberdare Ventures IIV, V LIP.L.P. Hon. Marie S. Weiner 25 Superior Court of California, San Mateo ' 26 County Department 2, Courtroom 2E 27 400 County Center Redwood City, CA 94063 28 [PROPOSED][PROPOSED] ORDER RE MOTION TO STAY PROCEEDINGS 4