Case 1:10-cv-00145-RMC Document 30 Filed 03/21/10 Page 1 of 6. UNITED
STATES DISTRICT COURT. FOR THE DISTRICT OF COLUMBIA. JAMES RYAN
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Case 1:10-cv-00145-RMC Document 30 Filed 03/21/10 Page 1 of 6
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JAMES RYAN, DAVID ALLEN and RONALD SHERMAN, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v.
: :
No: 1:10-CV-00145-RMC STIPULATION AND ORDER
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: WILLIAM WALTON, JOHN FIRESTONE, ANTHONY GARCIA, : LAWRENCE HEBERT, LAURA VAN : ROIJEN, BROOKS BROWNE, ALEX POLLOCK, MARC RACICOT, ANN : BATES, EDWARD MATHIAS, ROBERT LONG, JOAN SWEENEY, ALLIED : CAPITAL CORPORATION, ARES CAPITAL CORPORATION and ARCC : ODYSSEY CORP. Defendants.
IT IS HEREBY STIPULATED AND AGREED, by and between the parties, through their undersigned counsel and subject to the approval of the Court, that: WHEREAS, Allied Capital Corporation (“Allied”) and Ares Capital Corporation (“Ares”) entered into an Agreement and Plan of Merger dated October 26, 2009 (the “Merger Agreement”), pursuant to which Ares will acquire Allied in a stock-for-stock transaction in which each share of Allied common stock will be exchanged for 0.325 shares of Ares common stock (the “Acquisition”); WHEREAS, on November 3, 2009, plaintiffs James M. Harris and Robert Kiesewetter filed a Class Action and Derivative Complaint in the Circuit Court of Montgomery County, Maryland against Defendants (the “ Harris Action”);
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WHEREAS, on December 16, 2009, plaintiffs James Ryan and David Allen filed a Class Action and Derivative Complaint in the Circuit Court for Montgomery County against Defendants (the “Ryan Action”); WHEREAS, on December 16, 2009, plaintiffs Ronald Sherman, Evelyn Sherman and Sherman Enterprizes, Inc. filed a Class Action and Derivative Complaint in the Circuit Court for Montgomery County against Defendants (the “Sherman Action”); WHEREAS, five other similar actions were filed in the Maryland state courts, all of which were either commenced in or transferred to the Circuit Court for Montgomery County, and by Orders dated January 21, 2010 and February 2, 2010, were consolidated under a single action captioned In re Allied Capital Corporation Shareholder Litigation, Case No. 322639V (the “Maryland Action”); WHEREAS, by Order entered January 21, 2010, the Maryland court appointed the law firms of Brower Piven, A Professional Corporation (“Brower Piven”), and Tydings & Rosenberg LLP (“Tydings”) as Interim Co-Lead Counsel in the Maryland Action (“Maryland Co-Lead Counsel”); WHEREAS, on January 25, 2010, Plaintiffs’ counsel voluntarily dismissed the Ryan and Sherman Actions from the Maryland Action; WHEREAS, immediately thereafter, Plaintiffs James Ryan, David Allen and Ronald Sherman commenced this action in this Court (the “Federal Action”); WHEREAS, on January 26, 2010, Plaintiffs filed a Motion for Preliminary Injunction and Expedited Discovery in the Federal Action;
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WHEREAS, on March 9, 2010, this Court entered an Order, which granted limited expedited discovery to Plaintiffs, denied Defendants’ Motions to Stay, and scheduled a preliminary injunction hearing for March 24, 2010; WHEREAS, Maryland Co-Lead Counsel and counsel for Defendants entered into a Stipulation of Settlement dated March 17, 2010 (the “Maryland Settlement”), which was filed in the Maryland Action that same day; WHEREAS, on March 18, 2010, a hearing on the Maryland Settlement was held before The Honorable Michael Mason in the Maryland Action, in which counsel for the plaintiffs in the Federal Action were given notice and participated; WHEREAS, at the conclusion of the hearing on March 18, 2010, the Maryland court entered a Preliminary Approval of Class Action Settlement and Revised Scheduling Order dated March 18, 2010 (the “Preliminary Approval Order”), which preliminarily found that the proposed settlement of the Maryland Action: (i) appears to be the product of serious, informed, non-collusive negotiations; (ii) has no obvious deficiencies; (iii) does not improperly grant preferential treatment to settlement class representatives or segments of the settlement class; (iv) falls within the range of possible approval; and (v) warrants notice to settlement class members of the settlement hearing, at which hearing evidence may be presented in support of and in opposition to the Maryland Settlement; WHEREAS, the Preliminary Approval Order contains an injunction barring class members from pursuing claims pending the hearing to finally approve the Settlement, which is scheduled for July 29, 2010, and provides for notice to be given to the Allied shareholders of the terms of the Settlement and the date of the hearing to consider final approval of the Settlement;
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WHEREAS, before notice is to be sent to the Allied Shareholders of the terms of the Settlement and the date of the hearing to consider final approval of the Settlement, specific additional discovery to confirm the fairness and reasonableness of the Settlement will be conducted; WHEREAS, on March 18, 2010, Allied filed an Emergency Motion to Stay the Federal Action based on the Preliminary Approval Order entered in the Maryland Action; WHEREAS, in the Federal Action, on March 19, 2010, pursuant to the Court’s March 9, 2010 Order, Allied produced to Plaintiffs confidential, non-public documents subject to the Discovery Stipulation, which is currently pending this Court’s approval; WHEREAS, Plaintiffs’ counsel and the expert that was hired to assist Plaintiffs in the investigation of the Federal Action reviewed the discovery produced by Allied; and WHEREAS, Plaintiffs’ counsel in the Federal Action will have the opportunity to participate in the confirmatory discovery outlined above. THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the parties, through their undersigned counsel, that this action, and all proceedings herein, shall be stayed in contemplation of dismissal with prejudice pursuant to Fed. R. Civ. P. 41(a)(1) once the settlement of the Maryland Action has been finally approved. Dated: March 21, 2010 /s/ Donald Enright Donald Enright Michael G. McLellan FINKELSTEIN THOMPSON LLP The Duvall Foundry 1050 30th Street, N.W. Washington, DC 20007 Telephone: (202) 337-8000 Facsimile: (202) 337-8090 4
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-and/s/ Juan Monteverde Joseph Levi, Esq. Juan E. Monteverde, Esq. LEVI & KORSINSKY, LLP 30 Broad Street, 15th Floor New York, New York 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 Attorneys for Plaintiffs /s/ Thomas Connell Thomas F. Connell WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, DC 20006 Telephone: (202) 663-6000 Facsimile: (202) 663-6363 Charles C. Platt WILMER CUTLER PICKERING HALE AND DORR LLP 399 Park Avenue New York, NY 10022 Telephone: (202) 663-6000 Facsimile: (202) 663-6363 Attorneys for Defendants Allied Capital Corporation and William L. Walton, John M. Scheurer, Joan M. Sweeney, Robert E. Long, Ann Torre Bates, Brooks H. Browne, John D. Firestone, Anthony T. Garcia, Lawrence I. Hebert, Robert E. Long, Edward J. Mathias, Alex J. Pollock, Marc F. Racicot, and Laura W. van Roijen
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/s/ Jacqueline Perrell Jacqueline Wood Perrell PROSKAUER ROSE LLP 1001 Pennsylvania Avenue, N.W. Suite 400 South Washington, D.C. 20004 Telephone: (202) 416-5821 Facsimile: (202) 416-6899 Sarah S. Gold (admitted pro hac vice) Margaret A. Dale (admitted pro hac vice) PROSKAUER ROSE LLP 1585 Broadway New York, NY 10036 Telephone: (212) 969-3000 Facsimile: (212) 969-2900 Attorneys for Defendants Ares Capital Corporation and AR CC Odyssey Corp.
SO ORDERED.
ROSEMARY M. COLLYER United States District Judge Dated: March ___, 2010
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