Opinion
No. CV 01-3285 (JBW) (MDG).
November 15, 2005
PRELIMINARY APPROVAL ORDER OF PROPOSED SETTLEMENT WITH THE LUXOTTICA DEFENDANTS
WHEREAS, a class action was certified and is pending in this Court styled In re Luxottica Group S.p.A. Securities Litigation, No. CV 01-3285 (JBW) (MDG) (the "Litigation"); and
WHEREAS, the Lead Plaintiff (on behalf of itself and each of the Class Members) and Defendants Luxottica Group S.p.A., Sunglass Hut International Inc. (formerly known as and named in the Litigation as Shade Acquisition Corporation ("Shade")) and Leonardo Del Vecchio, (collectively "the Settling Parties"), having made application pursuant to Rule 23 of the Federal Rules of Civil Procedure for an order approving the partial settlement of this Litigation, in accordance with a Stipulation of Settlement dated November 11, 2005 (the "Stipulation"), which, together with the Exhibits annexed thereto sets forth the terms and conditions for a proposed partial settlement of the Litigation and for dismissal and Final Judgment of a portion of the Litigation with prejudice upon the terms and conditions set forth therein; and
WHEREAS, the Court having read and considered the Stipulation and the Exhibits annexed thereto; and
WHEREAS, all defined terms contained herein shall have the same meanings as set forth in the Stipulation;
NOW THEREFORE, IT IS HEREBY ORDERED:
1. A hearing (the "Settlement Hearing") shall be held before this Court on February 9, 2006 at 10 a.m. in courtroom 10 of the United States District Court for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn, New York 11201, to determine whether the proposed partial settlement of the Litigation on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate as to the Class and should be approved by the Court; whether a Final Judgment as provided in the Stipulation should be entered herein; and to determine the amount of fees and expenses that should be awarded to Lead Counsel. The Court may adjourn the Settlement Hearing without further notice to Members of the Class.
2. The Court approves, as to form and content, the Notice of Proposed Partial Settlement and Hearing Thereon (the "Second Notice"), the Proof of Claim and Release form (the "Proof of Claim"), and Summary Notice annexed as Exhibits A-1, A-2 and A-3 hereto, and finds that the mailing and distribution of the Second Notice and publishing of the Summary Notice substantially in the manner and form set forth in this Order meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, Section 21D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. § 78u-4(a)(7) as amended by the Private Securities Litigation Reform Act of 1995, and due process and any other applicable law, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all Persons entitled thereto.
3. Lead Counsel is hereby authorized to retain The Garden City Group, Inc. ("Claims Administrator") to supervise and administer the notice procedure as well as the processing of claims as more fully set forth below:
(a) Not later than fourteen (14) days after preliminary approval is granted [November 29, 2005] (the "Notice Date"), Lead Counsel shall cause a copy of the Second Notice and the Proof of Claim, substantially in the forms annexed as Exhibits A-1 and A-2 hereto, to be mailed by first class mail to all Class Members who can be identified with reasonable effort;
(b) Not later than seven days from the Notice Date, Lead Counsel shall cause the Summary Notice to be published once in both the Wall Street Journal and the New York Times; and
(c) Prior to the Settlement Hearing, Lead Counsel shall serve on Settling Defendants' counsel and file with the Court proof, by affidavit or declaration, of such mailing and publishing.
4. The Claims Administrator shall use reasonable efforts to give notice to nominee owners such as brokerage firms and other persons or entities who tendered Sunglass Hut common stock in connection with the Tender Offer as record owners but not as beneficial owners. Nominees who tendered the common stock of Sunglass Hut for the benefit of another Person pursuant to the Tender Offer shall be requested to send the Second Notice and the Proof of Claim to all such beneficial owners within ten (10) days after receipt thereof, or to send a list of the names and addresses of such beneficial owners to the Claims Administrator within ten (10) days of receipt thereof in which event the Claims Administrator shall promptly mail the Second Notice and Proof of Claim to such beneficial owners.
5. The form and content of the Second Notice, and the method set forth herein of notifying the Class of the settlement and its terms and conditions, meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, Section 21D(a)(7) of the Securities Exchange Act of 1934, 15 U.S.C. § 78u-4(a)(7) as amended by the Private Securities Litigation Reform Act of 1995, and due process, constitute the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all persons and entities entitled thereto.
6. Any Person falling within the definition of the Class shall be bound by all determinations and judgments in the Litigation, concerning the partial settlement, including, but not limited to, the releases provided for therein, whether favorable or unfavorable to the Class, unless such Persons requested exclusion from the Class in a timely and proper manner, in accordance with the Preliminary Order dated August 9, 2005.
7. Class Members who wish to participate in the partial settlement shall complete and submit Proof of Claim forms in accordance with the instructions contained therein. As provided in the Proof of Claim form, any Class Members who previously submitted a Proof of Claim form and supporting documents in connection with the partial settlement with the Sunglass Hut Defendants, is only required to sign the release and need not submit a second copy of the supporting documents. Unless the Court orders otherwise, all Proof of Claim forms must be submitted no later than March 1, 2006. Any Class Member who does not timely submit a Proof of Claim within the time provided for shall be barred from sharing in the distribution of the proceeds of the Settlement Fund, unless otherwise ordered by the Court.
8. Any Member of the Class may enter an appearance in the Litigation, at their own expense, individually or through counsel of their own choice. If they do not enter an appearance, they will be represented by Lead Counsel.
9. All proceedings against the Settling Defendants in the Litigation are stayed until further order of the Court, except as may be necessary to implement the partial settlement or comply with the terms of the Stipulation. Pending final determination of whether the partial settlement should be approved, neither the Lead Plaintiff, nor any Class Member, either directly, representatively, or in any other capacity, shall commence or prosecute against any of the Released Persons, any action or proceeding in any court or tribunal asserting any of the Released Claims unless the Court shall order otherwise.
10. Any Member of the Class may appear and show cause, if he, she, or it has any reason why the proposed partial settlement of the Litigation should or should not be approved as fair, reasonable, and adequate, or why a judgment should or should not be entered thereon, why the Plan of Allocation should or should not be approved, or why attorneys' fees and expenses should or should not be awarded to Lead Counsel; provided, however, that no Class Member or any other Person shall be heard or entitled to contest the approval of the terms and conditions of the proposed partial settlement, or, if approved, the Judgment to be entered thereon approving the same, or the order approving the Plan of Allocation, or the attorneys' fees and expenses to be awarded to Lead Counsel, unless written objections and copies of any papers and briefs are filed with the Clerk of the United States District Court for the Eastern District of New York, on or before fourteen (14) days prior to the Settlement Hearing date [January 26, 2006]; and copies of said objections, papers, and briefs are also served upon David L. Wales, Esq., Wolf Haldenstein Adler Freeman Herz LLP, 270 Madison Avenue, New York, NY 10016, (212) 545-4600; and Eric Nelson, Esq., Winston Strawn LLP, 200 Park Avenue, New York, NY 10166, (212) 294-2646. Any Class Member who does not make his, her, or its objection in the manner provided shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to the fairness, reasonableness, or adequacy of the proposed settlement, to the Plan of Allocation, or to the award of attorneys' fees and expenses to Lead Counsel, unless otherwise ordered by the Court.
11. All funds held by the Escrow Agent shall be deemed and considered to be in custodia legis, and shall remain subject to the jurisdiction of the Court, until such time as such funds shall be distributed pursuant to the Stipulation and/or further order(s) of the Court, with notice to the Settling Defendants.
12. All motions and papers addressing the settlement, the Plan of Allocation, and any application by Lead Counsel for attorneys' fees or reimbursement of expenses shall be filed and served by seven (7) days prior to the Settlement Hearing date [February 2, 2006].
13. The Released Persons shall have no responsibility for the Plan of Allocation or any application for attorneys' fees or reimbursement of expenses submitted by Lead Counsel (except for the cost of notice as provided in ¶ 2.8 of the Stipulation), and such matters may be considered separately from the fairness, reasonableness, and adequacy of the settlement.
14. At or after the Settlement Hearing, the Court shall determine whether the Plan of Allocation proposed by Lead Counsel and any application for attorneys' fees or reimbursement of expenses shall be approved.
15. All reasonable costs incurred in identifying and notifying class members, as well as in administering the Settlement Fund, shall be paid as set forth in the Stipulation.
16. The Court reserves the right to adjourn the date of the Settlement Hearing without further notice to the Members of the Class and retains jurisdiction to consider all further applications arising out of or connected with the proposed settlement. The Court may approve the settlement, with such modifications as may be agreed to by the Settling Parties, if appropriate, without further notice to the Class.
17. If (a) the Settlement is terminated by the Settling Defendants pursuant to ¶ 7.3 of the Stipulation; or (b) any specified condition to the Settlement set forth in the Stipulation is not satisfied and Lead Counsel or Counsel for the Settling Defendants elects to terminate the Settlement as provided in ¶ 7.3 of the Stipulation, then, in any such event, ¶ 7.3 of the Stipulation shall be in effect, the rest of the Stipulation, including any amendment(s) thereof, and this Order shall be null and void, of no further force or effect, and without prejudice to any party, and may not be introduced as evidence or referred to in any actions or proceedings by any person or entity, and each party shall be restored to his, her or its respective position as it existed prior to the execution of the Stipulation.
IT IS SO ORDERED.