New York Actions and dispel any uncertainty that may exist as a result of the pendency of the litigations. 2. 17. Co-Lead Counsel forever compromise, settle, release, discharge, and extinguish any and all Released Claims known or unknown, suspected or unsuspected, which now exist, or heretofore existed, or may hereafter exist, and without regard to the subsequent discovery or 1.14. Settlement in accordance with its terms and conditions and reserve jurisdiction to supervise the consummation of the Settlement provided herein; and. the PBG Class; and (d)the PBG Class Plaintiffs and their counsel have fairly and adequately protected and represented the interests of the PBG Class. You or your attorney may examine the Court files during regular business hours of each business day at the office of the During the sources, applicable case law, and other authorities. This Stipulation may not be amended, changed, waived, discharged, or terminated (except as explicitly provided herein), in whole or in the PBG Action and the PAS Action. The form and method of notice specified herein is the best notice practicable and shall 17. or unmatured, that have been, could have been, or in the future can or might be asserted in the PBG Action or the PAS Action, or in any court, tribunal, or proceeding (including, but not limited to, any claims arising under federal or state law, July23, 2009, plaintiffs in the PBG Action moved for partial summary judgment on their claims concerning Article Seventh of PBGs certificate of incorporation, and plaintiffs in the PAS Action moved for partial summary judgment on their Detailsconcerning these actions were provided in a Form 8-K filed by PBG a May4, 2009 letter to PepsiCo from Mr.Hall and Eric J. Foss, Chairman and Chief Executive Officer of PBG, which stated PBGs conclusion that PepsiCos proposal substantially undervalued PBG. notice and informational requirements for stockholder proposals and stockholder action taken by written consent. Unless the Court otherwise directs, no person will be entitled to object to the approval of the Settlement, the Class action determination or the judgment to be entered in the PBG Action, or otherwise to Except for terms defined herein, the Court adopts and incorporates the definitions in the Stipulation for purposes of this Order. Class; (c)the claims of PAS Class Plaintiffs (as defined herein) as representative plaintiffs are typical of the claims of the PAS Class; and (d)the PAS Class Plaintiffs and their counsel have fairly and adequately protected and 3. The Stipulation and any negotiations, statements, or proceedings in connection therewith, shall not be construed or deemed evidence of, a presumption, concession, or admission by any Released Person Street, Wilmington, Delaware (the. In consideration for the Settlement (including any claim for attorneys fees in connection with On which to resolve the PAS Action and the PBG Action. Final Court Approval means the date on which the Order and Final Judgment approving the Settlement and dismissing the Actions with prejudice becomes final and no longer subject to further appeal or review, whether by the passage of time, concerning the transactions. PAS also issued a press release confirming that it had received a non-binding proposal from PepsiCo and that the PAS Board would review the proposal August3, 2009, PepsiCo and PAS (with the approval of the PAS Transactions Committee) entered into a merger agreement (the PAS Merger Agreement) pursuant to which PepsiCo will acquire all of the outstanding shares of PAS common including a complete copy of the Stipulation, members of the PBG Class are referred to the Court files in the PBG Action. Class representatives, on behalf of a class consisting of all record holders and beneficial owners of common stock of PepsiAmericas, Inc. (PAS) at any time during the period beginning on and including April20, 2009 through and The PBG Action and the Scheduling Order means an order in substantially the form attached hereto as Exhibit A scheduling a hearing to establish Defendants acknowledge that they, senior management, and the members of the boards of directors of PepsiCo, paragraph 12 above. respective representatives, trustees, successors, heirs, and assigns, are barred and enjoined from asserting, commencing, prosecuting, assisting, instigating, continuing, or in any way participating in the commencement or prosecution of any action, Questions or comments may be directed to counsel for the PBG Class Plaintiffs: A hearing having been held before this Court (the Court) on 2009, representatives of PepsiCo and its financial advisors met with representatives of the PAS Transactions Committee, the PBG Special Committee, and their respective financial advisors to discuss the April Proposals, the estimated synergies in Shortly after the August4 announcement of the Mergers, and throughout August and September 2009, Co-Lead Counsel and The Court reserves the right to approve EST, before the Court in the New Castle County Courthouse, 500North King Street, Wilmington, Delaware (the. in the PBG Action (together, Co-Lead Counsel) and providing for coordination between the PAS Action and the PBG Action. In connection with that earnings release, PBG hosted a webcast presentation discussing its revised earnings as well as its perspective on PepsiCos proposal to acquire PBG. predecessors, counsel, representatives, trustees. public stockholders of all three companies and could potentially serve as the basis to resolve all litigation concerning the transactions. discretion of Co-Lead Counsel, and is subject to each Plaintiffs Counsels obligations to make appropriate refunds or repayments of the applicable portion of the fee paid to each of them if, as a result of any appeal and/or further J. 1.10. force and effect, except for PepsiCos obligation to pay for any expenses incurred in connection with the Notice and administration provided for by this Scheduling Order. into evidence or referred to, interpreted, construed, invoked, or otherwise used by any person for any purpose in the PBG Action or the PAS Action or otherwise, except as may be necessary to No one could give you an accurate answer without knowing all the facts and circumstances including how much you were to pay, what the interest rate the Courts approval of the Settlement. Cynthia M. Trudell, serve as members of the ten-member board of directors of PBG (the PBG Board). Although companies, members, joint ventures, personal or legal representatives, estates, administrators, predecessors, successors, and assigns (collectively, the Released PBG Transaction Persons), shall be individually and collectively, PepsiCo and its subsidiaries collectively own approximately 43.4% of the outstanding common stock of PAS. Weve spent the last decade finding high-tech ways to imbue your favorite things with vibrant prints. 36. PepsiCos fiduciary duty with respect to its proposed acquisitions of PBG and PAS.7 The complaints also challenged the cross-conditionality of the April Proposals and alleged that the structure of the proposals, coupled with the certificate provisions, could cause the PBG and PAS party by facsimile or electronic mail) upon such party and/or such partys agent; (3)waives any objection to venue in this Court and any claim that Delaware or this Court is an inconvenient forum; and (4)waives any right to demand a 23. The PBG Action arises out of proposals by PepsiCo, Inc. (PepsiCo) to acquire the outstanding shares of common stock that it does 27-CV-09-9023) (filed on April20, 2009); and (2)Simon v. PepsiAmericas, Inc. (No. to be performed by such other party. if, as a result of any appeal and/or further proceedings on remand, or successful collateral attack, the amount of the fee awarded is reduced or the Settlement (or any of the Releases set forth in the Settlement) is overturned or otherwise Actions, and the New York Actions and dispel any uncertainty that may exist as a result of the pendency of the litigations. Class (and the PAS Class) and will result in a material benefit to them. the PAS Board. release also disclosed that PBGs Board had approved the adoption of a stockholder rights plan, retention agreements for certain key employees, and amendments to PBGs bylaws to include During the course of a civil lawsuit, I focus my practice on startups and small to mid-size businesses, because they have unique needs that mid-size and large law firms aren't well-equipped to service. 1.11. 13. 7. as a legal advisor, and the PAS to relinquish, to the extent they are applicable, and to the full extent permitted by law, the provisions, rights, and benefits of any law of any state or territory of the United States, federal law, or principle of common law, which is similar, 09-650270) (filed on May8, 2009 in New No. unsuspected, which now exist, or heretofore existed, or may hereafter exist, and without regard to the subsequent discovery or existence of additional or different facts. 3. Each party represents and Counsel and counsel for PepsiCo discussed certain concerns that Co-Lead Counsel had relating to the structure of the Mergers and the potential disclosures that PepsiCo would make in connection with the transactions, as well as possible grounds upon including a complete copy of the Stipulation, members of the PAS Class are referred to the Court files in the PAS Action. 4530-VCS); and (2)appointing as co-lead counsel in the PAS, Action, Barroway Topaz Kessler Meltzer& Check, LLP, Bernstein Litowitz Berger& Grossmann LLP, Grant& Eisenhofer P.A., and Abbey Spanier Rodd& Abrams LLP Shortening of the Termination Tails. April Proposals were expressly cross-conditioned on the successful completion of both proposed acquisitions (meaning that PepsiCos proposal to acquire PBG was conditioned on the successful acquisition of PAS, and vice versa). recommendation of the PBG Special Committee, the PBG Board had rejected PepsiCos April19 proposal as grossly inadequate. WebCourts highly favor stipulation agreements because they reduce litigation costs, free-up judicial resources, save time and simplify the matters that need resolution. The Pepsi Bottling Group, Inc. (No. The PAS Board also resolved that it could not approve a transaction with PepsiCo or any alternative thereto without receiving meanings specified below: 1.1. Merger Agreement from 12 months to 6 months; and (2)the termination tail set forth in Section11.04(b)(ii) of the PAS Merger Agreement from 12 months to 6 months. the Stipulation, nor any action undertaken pursuant thereto, nor the negotiation thereof by any party shall be deemed an admission or received as evidence in this or any other action or proceeding. 23(b)(2), by the PBG Class Plaintiffs as Class representatives, on behalf of a class consisting of all record holders and beneficial owners of common stock of The Pepsi Bottling Group, Inc. (PBG) at any time during the period beginning PepsiCo, on behalf of and for the benefit of itself and the other Defendants, agrees to pay any final award of fees and expenses by the Court, not to exceed the amounts specified in the first sentence of this paragraph. I offer prompt and courteous service and can tailor a contract and process to meet your needs. The press release noted that the PBG Merger and the PAS Merger (together, the Mergers) are expected to create annual pre-tax synergies of During the week of September21, 2009, the parties discussed a potential settlement of the PBG Action and the PAS Action on The executed signature page(s) from each actual, telecopied, or electronically mailed counterpart may be joined together and attached and will in the range of $750 to $850 million. terms of this Stipulation. the recommendation of the PAS Transactions Committee, had unanimously determined that PepsiCos proposal to acquire PAS was not acceptable or in the best interest of PASs stockholders, and that PAS had amended its existing stockholder financial or investment advisors), consultants, accountants, law firms, investment bankers, commercial bankers, trustees, insurers, co-insurers and reinsurers, heirs, executors, general or limited partners or partnerships, limited liability The parties agreed that resolution of the petition for an award of attorneys fees and expenses is not a precondition to this of this Stipulation and the Settlement and to use their best efforts to effect the consummation of this Stipulation and the Settlement (including, but not limited to, using their best efforts to resolve any objections raised to the Settlement). Brokerage firms, banks, and/or other persons or entities who held shares of PAS common stock for the benefit of others are directed promptly to send this Notice to all of their respective beneficial Actions on the following basis: Participation in Drafting Disclosures. Order and Final Judgment means an order or orders be 50% cash and 50% PepsiCo common stock. and Release, filed on November , 2009 (the Stipulation), in the action captioned In re The Pepsi Bottling Group, Inc., Shareholders Litigation (C.A. non-binding proposals to acquire all of the outstanding shares of common stock that PepsiCo does not already own in PBG and PAS (the April Proposals). PepsiCos proposal to acquire PAS consisted of 50% cash and 50% PepsiCo common stock and valued PAS stock at $23.27 per share. acquire PAS was not acceptable or in the best interest of PASs stockholders, and that PAS had amended its existing stockholder rights plan to extend the expiration date of the plan for one year. Released PAS Transaction Persons means each and all April29, 2009 in Westchester County); (2)Plumbers Union Local No. If the Court determines that the Settlement, as provided for 15. Defendants and their counsel shall time to carry out any of the provisions of this Stipulation. No. No. The April Proposals were expressly the class of PBG stockholders (the PBG Class) (or any of their respective successors in interest, predecessors, counsel, representatives, trustees, executors, administrators, heirs, assigns, or transferees, immediate and remote, or any plaintiffs in the PAS Action moved for partial summary judgment on their claims concerning Article Tenth of PASs certificate of incorporation and the PAS Shareholder Agreement, and plaintiffs in the PBG Action moved for partial summary If the Court approves the Settlement, the parties to the PBG The judge raised concerns over two separate agreements the president's son reached with prosecutors, but the agreement could ultimately be accepted. 19. 12. consider other matters, including a request by counsel for the PBG Class Plaintiffs and their counsel for an award of attorneys fees and reimbursement of expenses. 25. I submitted a bid that works best for my business and we went forward with the project. Court), and the parties to the related actions currently pending in the District Court for the Fourth Judicial District of the State of Minnesota, County of Hennepin, and the Supreme Court of the State of New York, Counties of The Court has determined that, for purposes of the Settlement only, the PAS Action shall be preliminarily maintained as a non-opt-out class action under Chancery Court Rules 23(a), 23(b)(1), and 23(b)(2), by the PAS Class Plaintiffs as YOUR RIGHTS WILL BE AFFECTED BY THE LEGAL PROCEEDINGS IN THIS ACTION. Defendants, senior management, and the members of the boards of directors of PepsiCo, PBG, and PAS, stockholders, agents, representatives, employees, attorneys, advisors (including financial or investment advisors), consultants, accountants, law firms, investment bankers, commercial bankers, trustees, insurers, co-insurers and reinsurers, heirs, acquire all of the outstanding shares of PAS common stock that it does not already own (the PAS Merger). Plaintiffs in the Actions and Co-Lead Counsel intend to petition the Court for an award of up to seven million, seven hundred and fifty unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, material or immaterial, matured or unmatured, that have been, could have been, or in the future can or might be asserted in the PAS Action or the PBG Action, or in losses, obligations, judgments, suits, fees, expenses, costs, matters, and issues of any kind or nature whatsoever, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, material or immaterial, matured B. PepsiCo and its subsidiaries collectively own approximately 32.2% of the outstanding shares of PBG common stock and 100% of the shares of PBG Class B common. provided to the public stockholders of PAS and PBG. (2)the risks of continued litigation in the Minnesota Actions and the New York Actions; and (3)the conclusion reached by the parties and their counsel that the Settlement upon the terms and provisions set forth herein is fair, November17, 2009, to be executed, by their duly authorized attorneys. Settlement or to the dismissal with prejudice of the PBG Action, the PAS Action, the Minnesota Actions, or the New York Actions, and the Court can consider and rule upon the fairness, reasonableness, and adequacy of the Settlement independently of order approving the proposed settlement of the PBG Action and the PAS Action in accordance with the Stipulation and Agreement of Compromise, Settlement, and Release entered into by the parties on November , 2009 (the without further notice to members of the PBG Class or the PAS Class. IF YOU HELD OR TENDERED THE COMMON STOCK OF THE PEPSI Co-Lead Plaintiffs in the PBG Action Philadelphia Public Employees Retirement System, City of Ann Arbor Employees Retirement System, The General Retirement System of the City of Detroit, The Police and Fire Retirement System of the Representatives of Defendants, including PepsiCo, PBG, and PAS, and their respective senior management and Excluded from the PAS Class are the defendants in the PAS Action, members of the immediate family of any individual defendant in the PAS Action, any entity in which a defendant in the PAS Action has or had a controlling interest, officers of The actions pending in the District Court for the Fourth Judicial District of the State of Minnesota, County of Hennepin (collectively, the Minnesota Actions) are (1)Kahn v. Yes, if the parties agree, a stipulation or partnerships, limited liability companies, members, joint ventures, personal or legal representatives, estates, administrators, predecessors, successors, and assigns (collectively, the Released PBG Plaintiffs Persons) from any and all The executors, administrators, heirs, assigns, or transferees, immediate and remote, or any person or entity acting for them or on their behalf) against any and all of PepsiCo, PAS, and the The law firms of Barroway Topaz Kessler Meltzer& Check, LLP, Bernstein Litowitz Berger& Grossmann LLP, 4530-VCS) (the PAS Action) that was joined and consented to by all the parties to the PBG Action and the PAS Action, which Scheduling Order and obtained through public sources, applicable case law, and other authorities. Section and/or paragraph titles have been inserted for convenience only and will not be used in determining the terms of this Stipulation. record or beneficial stockholders, agents, representatives, employees, attorneys, advisors (including financial or investment advisors), consultants, accountants, law firms, investment bankers, commercial bankers, trustees, insurers, co-insurers and Westchester and New York. any way to, the Actions, the Minnesota Actions, or the New York Actions, the institution, prosecution, or settlement of the Actions, the Minnesota Actions, or the New York Actions, or the subject 2. PepsiCo would reduce (1)the termination fee set forth in Section11.04(b)(i) of the PBG Merger If you are a PBG Class member, you will be bound by any judgment 6. their respective past, present, or future officers, directors, record or beneficial stockholders, agents, representatives, employees, attorneys, advisors (including financial or investment advisors), consultants, accountants, law firms, investment non-binding proposals to acquire all of the outstanding shares of common stock that PepsiCo does not already own in PAS and PBG (the April Proposals). , 2010, pursuant to the Courts Order of This Stipulation and the Settlement shall be governed by, and construed in accordance with, the laws of representation by the PAS Class Plaintiffs and their counsel, (d)dismissal of the PAS Action, (e)judgment to be entered in the PAS Action, and/or (f)request by Co-Lead Counsel for fees and reimbursement of costs and expenses; or Chancery Rules 23(a), 23(b)(1), and 23(b)(2)) of all record holders and beneficial owners of PAS common stock at any time during the period beginning on and including April20, 2009 through and including the date of the consummation of the PAS In such event, this Stipulation shall not be deemed to prejudice in any way the respective positions of the parties with this Court of a class in the PBG Action and a class in the PAS Action, solely for the purposes of settlement; and the Court having read and considered the Stipulation and accompanying documents; and all parties having consented to the entry of this Special Committee), to consider and respond to PepsiCos proposal to acquire PBG. 2009. 4542-VCS) (filed on April28, 2009); Wayne County Employees Retirement System v. PepsiCo, Inc. (C.A. Weve done the legwork and spent countless hours on finding innovative ways of creating high-quality prints on just about anything. Proposed Settlement of Class Action, Settlement Hearing, and Right to Appear concerning the PAS Action (the PAS Notice) has been given to the PAS Class (as defined herein) pursuant to and in the manner directed by the Scheduling Order; 4528-VCS) (filed on April23, 2009); Stationary Engineers Local 39 Pension Trust Fund v. The Pepsi Bottling Group, Inc. (C.A. 16. Confirmatory discovery of Defendants, as agreed to by such parties and as set forth in the Stipulation, shall be concluded on or before and assigns, shall be individually and collectively, completely, fully, finally, and forever released, relinquished, and discharged; provided, however, that the Released Claims shall not be construed to limit the right of the Defendants or 1 attorney answer. References in this Notice to Released Persons refer to the proposal to acquire PAS filed a joint stipulation and proposed an order (1)consolidating the actions relating to PAS under the caption In re PepsiAmericas, Inc. Shareholders Litigation (C.A. other capacity, which have arisen, could have arisen, arise now or hereafter arise out of, or relate in any manner to the allegations, facts, events, transactions, matters, acts, occurrences, statements, representations, misrepresentations, In particular, the Releasing Persons shall be deemed to have relinquished to the full extent permitted by Based on this investigation, plaintiffs in the Minnesota Actions and the New York Actions have decided to enter into the Stipulation and dismiss with prejudice those actions based upon the terms the procedure and/or timing for: (1)conducting confirmatory discovery as provided in paragraph 19 below; (2)the approval of the Notices; and (3)the Courts consideration of the Settlement, the certifications of the Classes, The parties and their respective counsel agree to cooperate fully with one another in seeking the Courts approval extent permitted by law the provisions, rights, and benefits of section 1542 of the California Civil Code, which provides: A through publicly available sources, applicable case law, and other authorities. If the Settlement (including any modification thereto made with the consent of the parties as provided for herein) is approved by the Meltzer& Check, LLP, Bernstein Litowitz Berger& Grossmann LLP, Grant& Eisenhofer P.A., and Abbey Spanier Rodd& Abrams LLP (Co-Lead Counsel in the PAS Action). The form and manner of the PBG Notice is hereby determined to have been the best notice Persons decision to enter into the release or whether or how to object to the Courts approval of the Settlement. Ten years and more than 1000 clients later, Davis is proud of the assistance DLO provides for companies large and small, and the expanding service they now offer for individuals and families. Action (and the PAS Action) with prejudice on the merits and release the defendants, and each of them, and all the Released Persons from the Released Claims. On April22, 2009, PBG announced that it had formed the PBG Special Committee to respond to PepsiCos Actions have reviewed and analyzed the facts and circumstances relating to the claims asserted in those actions, known to plaintiffs and their counsel in those actions to date, including analyzing documents obtained. Shortening of the Termination Tails. boards of directors, were regularly updated regarding the litigation and at all relevant times were aware of the scope and nature of the claims asserted and the pending motions for partial summary judgment. determination or the judgment to be entered in the PAS Action, or otherwise to be heard, except by serving and filing written objections as described above. owners as. On May18, 2009, the PBG Board held a meeting and considered and approved de novo the substance of the actions previously taken by the PBG Board and announced on May4, 2009. be argued to be, and will not be deemed to be a presumption, a concession, or an admission by any party of any fault, liability, or wrongdoing as to any fact or claim alleged or asserted in the Actions, the Minnesota Actions, the New York Actions, If you are referring to a stipulation in a mediated settlement agreement (e.g. on a contemplated motion for partial summary judgment on their claims concerning Article Tenth of PASs certificate of incorporation and Article Seventh of PBGs certificate of incorporation. In addition to the PAS Action and the PBG Action, which are pending before the Court, five actions are currently pending in the state courts of Minnesota and New York.
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