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Julie Siegmund, Et Al. V. Xuelian Bian, Et Al. 16-CV-62506-Stipulation And

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Julie Siegmund, Et Al. V. Xuelian Bian, Et Al. 16-CV-62506-Stipulation And Case 0:16-cv-62506-FAM Document 295-1 Entered on FLSD Docket 05/21/2019 Page 1 of 89 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 16-cv-62506-FAM-LFL JULIE SIEGMUND and SETH LIPNER, as Co-Successor Trustees of THE FREDERICK SIEGMUND LINKWELL CORP. CLAIMS LIVING TRUST DATED JULY 31,2018, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. XUELIAN BIAN et al., Defendants. STIPULATION AND SETTLEMENT AGREEMENT This Stipulation and Settlement Agreement (together with all exhibits thereto, the "Stipulation") is submitted pursuant to Rule 23 of the Federal Rules of Civil Procedure. Subject to the approval of the Court, this Stipulation is entered into by and among Plaintiffs Julie Siegmund and Seth Lipner in their capacities as Successor Co-Trustees of The Frederick Siegmund Linkwell Corp. Claims Living Trust dated July 31, 2018 (the "Siegmund Trust"), and Defendants Xuelian Bian, Wei Guan and Sidley Austin LLP. RECITALS WHEREAS, Frederick Siegmund filed the Action and alleged, inter alia, that former Linkwell shareholders had received insufficient consideration in and notice of the merger between Linkwell and Leading World Corporation; WHEREAS, Frederick Siegmund asserted claims in the Action on behalf of himself and a proposed class of fmmer Linkwell shareholders; Case 0:16-cv-62506-FAM Document 295-1 Entered on FLSD Docket 05/21/2019 Page 2 of 89 WHEREAS, the Court granted Sidley Austin LLP's motion to dismiss all of the claims asserted against it in the Class Action Complaint; WHEREAS, Frederick Siegmund served a First Amended Class Action Complaint, asserting claims for violation of Section 1O(b) of the Securities Exchange Act of 1934, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and civil conspiracy; WHEREAS, Xuelian Bian, Wei Guan and Sidley Austin LLP moved to dismiss all of the claims asserted against them in the First Amended Complaint; WHEREAS, the Court denied Bian and Guan's motion to dismiss and granted in part and denied in part Sidley Austin LLP's motion to dismiss; WHEREAS, Defendants Xuelian Bian, Wei Guan and Sidley Austin LLP denied that Frederick Siegmund or the proposed class members had any valid claims and asserted numerous defenses; WHEREAS, the parties participated in extensive fact and expert witness discovery, including exchanging interrogatories, producing documents, serving subpoenas on at least seven entities, and taking twelve depositions in the United States and abroad; WHEREAS, Frederick Siegmund died during the pendency of the Action and, as a result, Julie Siegmund and Seth Lipner were substituted as Plaintiffs in their capacities as Successor Co- Trustees of the Siegmund Trust; WHEREAS, the parties, after having engaged in significant discovery and a mediation before a neutral third party, reached an agreement providing for a resolution of all claims that have been or could have been brought in the Action on behalf of Plaintiffs and the Class; WHEREAS, Plaintiffs and Plaintiffs' Counsel have examined and considered the benefits to be provided to the Class under the Settlement provided for in this Stipulation; have considered 2 Case 0:16-cv-62506-FAM Document 295-1 Entered on FLSD Docket 05/21/2019 Page 3 of 89 the claims that have been and could have been asserted in the Action; and believe the Settlement to be in the best interest of the Class, taking into account the risks of continued litigation and the length of time that would be required to complete the litigation and any appeals; WHEREAS, Defendants Xuelian Bian, Wei Guan and Sidley Austin LLP have at all times denied any liability for any of the claims raised in the Action, but believe the resolution as provided in this Stipulation will avoid the substantial expense and dismption of continued litigation; and WHEREAS, Plaintiffs have at all times maintained the merits of the claims in this Action but nevertheless believe the settlement of those claims is in the best interest of the Class. NOW, THEREFORE, the parties agree as follows: DEFINITIONS As used in this Stipulation, the following capitalized te1ms shall have the following meanmgs: 1. "Action" means the lawsuit pending in the U.S. District Comi for the Southern District of Florida and captioned Frederick Siegmund v. Xuelian Bian et al., Case No. 16-cv- 62506-FAM-LFL. 2. "Administration Expenses" means all Court-approved costs, disbursements and expenses incurred implementing this Settlement, including reasonable fees and expenses of the Claim Administrator to administer the Settlement, review Claims filed by Class Members, and transfer payments to Authorized Claimants, as well as the reasonable fees and expenses of the Escrow Agent. 3. "Authorized Claimant" means a Class Member whose claim for recovery has been allowed pursuant to the tetms of the Stipulation. 3 Case 0:16-cv-62506-FAM Document 295-1 Entered on FLSD Docket 05/21/2019 Page 4 of 89 4. "Claim" means a completed and signed Proof of Claim submitted to the Claims Administrator in accordance with the instructions on the Proof of Claim. 5. "Claimant" means a person or entity that submits a Proof of Claim to the Claims Administrator seeking to share in the proceeds of theN et Settlement Fund. 6. "Claims Administrator" means JND Legal Administration, who shall administer the Settlement and who shall be reasonably satisfactory to Settling Defendants' Counsel. 7. "Class" means all persons and entities who owned, either as a record or beneficial owner, one or more shares of Linkwell common stock as of the close of business on September 19, 2014, who did not vote to approve the Merger between Linkwell and Leading World Corporation, whose shares were canceled as a result of the Merger between Linkwell and Leading World Corporation, and were allegedly damaged thereby. Excluded from the Settlement Class are Defendants Xuelian Bian, Wei Guan, Sidley Austin LLP (and its employees or agents), Shanghai Yinling Asset Management Co., Ltd., Leading First Capital Limited and Leading World Corporation and their subsidiaries and affiliates, and all Linkwell shareholders who voted to approve the Merger. Also excluded from the Class are all persons and entities who submit a valid and timely request to be excluded from the Class pursuant to the terms of this Stipulation. 8. "Class Distribution Order" means a Comi order authorizing distribution of the Net Settlement Fund to Authorized Claimants. 9. "Class Member" means a person or entity who falls within the definition of the Class, and includes each of their respective past or present officers, directors, shareholders, employees, agents, attorneys, partners, managers, members, affiliates, subsidiaries, shareholders, spouses, heirs, executors, administrators, representatives, successors and assigns. Class Member 4 Case 0:16-cv-62506-FAM Document 295-1 Entered on FLSD Docket 05/21/2019 Page 5 of 89 also includes the Siegmund Trust. Persons and entities who submit a valid request for exclusion pursuant to the tetms ofthis Stipulation are not included in the definition of Class Member. 10. "Counsel Fees and Expenses" means fees and expenses allowed by the Court that are sought and were incuned by Plaintiffs' Counsel in the prosecution of the Action. 11. "Comt" means the United States District Court for the Southern District of Florida. 12. "Defendants" means Xuelian Bian, Wei Guan, Sidley Austin LLP, Shanghai Yinling Asset Management Co. Ltd., Leading First Capital Limited and Leading World Corporation. 13. "Derivative Action" means the lawsuit filed in the U.S. District Court for the Southern District of Florida and captioned Siegmund v. Linkwell, Case No. 12-62539. 14. "Effective Date" means the first business day after the Court enters the Final Judgment and Order (substantially in the f01m attached as Exhibit D, or any alternative judgment and order entered by the Court which does not result in the election by Plaintiffs or Settling Defendants to terminate this Settlement) and either (i) the expiration of any time to amend or alter a judgment under FRCP 59(e) or any time for review or appeal of the Final Judgment and Order, or (ii) if an appeal is filed and not dismissed, the Final Judgment and Order is upheld on appeal in all material respects and is no longer subject to review upon appeal or review by writ of certiorari. Any award of Counsel Fees and Expenses, Service Award, and the approval of any Plan of Allocation shall not be considered a material provision of the Final Judgment and Order, and any appeal of or challenge to Counsel Fees and Expenses, the Service Award, or the Plan of Allocation will not delay the Effective Date, and any modification as a result of such appeal shall not be considered a modification of a material term. 5 Case 0:16-cv-62506-FAM Document 295-1 Entered on FLSD Docket 05/21/2019 Page 6 of 89 15. "Escrow Agent" means Signature Bank. 16. "Fairness Hearing" means the hearing held by the Court to consider final approval of the Settlement, pursuant to Rule 23 of the Federal Rules of Civil Procedure. 17. "Final Judgment and Order" means the order and judgment entered by the Court approving the Settlement and dismissing the Action with prejudice, substantially in the form attached as Exhibit D, or any alternative order and judgment entered by the Court which does not result in the election by Plaintiffs or Settling Defendants to terminate this Settlement. 18. "Inter-Defendant Settled Claims" means any and all claims, debts, demands, rights, causes of action or liabilities, of every nature and description whatsoever, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, based in law or equity, or based on any foreign, federal, state, local, statutory or common law, or any other law, rule or regulation (including any claims for violations of Fed.
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