GRANTED IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE STIPULATION AND FINAL ORDER

Transcription

1 GRANTED IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN RE NYMEX SHAREHOLDER LITIGATION C.A. No VCN SHELBY GREENE, on behalf of herself and all others similarly situated, Plaintiff, C.A. No VCN - against - NEW YORK MERCANTILE EXCHANGE, INC., NYMEX HOLDINGS, INC., RICHARD SCHAEFFER, THOMAS GORDON, JAMES NEWSOME, STEPHEN ARDIZZONE, A. GEORGE GERO, NEIL CITRONE, FRANK SICILIANO, WILLIAM FORD, HARVEY GRALLA, WILLIAM MAXWELL, HOWARD GABLER, DANIEL RAPPAPORT, DENNIS SUSKIND, MELVYN FALIS, ROBERT STEELE, JOHN MCNAMARA, CME GROUP, INC., and CMEG NY INC., Defendants. STIPULATION AND FINAL ORDER WHEREAS, on March 17, 2008, NYMEX Holdings, Inc. ( NYMEX ) and CME Group, Inc. ( CME ) announced that they had entered into a definitive agreement under which CME would acquire NYMEX for $36 in cash and Shares of NYMEX stock (the Merger Agreement ). As a condition to the Merger Agreement, CME would purchase 100% of the outstanding NYMEX Class A Memberships for $612,750 per seat; WHEREAS, on March 17, 2008, plaintiffs Estate of Cataldo J. Capozza, Joan Haedrich, and Polly Winters ( Shareholder Plaintiffs ) commenced Case No VCN on behalf of the NYMEX shareholders alleging that the proposed merger was negotiated by a flawed process and was for inadequate consideration;

2 WHEREAS, on June 16, 2008, Shelby Greene filed Case No VCN (collectively with 3621-VCN the Actions ), alleging inter alia, that the consideration to be paid for the Class A Memberships was unfair and inadequate and that the disclosures in the Proxy were insufficient to apprise the Class A Members of all material information concerning the fairness of the valuation methodology of the Class A Memberships, with specific respect to the 311(G) electronic trading revenue rights. WHEREAS, on July 21, 2008, CME announced the price for Class A Membership would increase from $612,750 to $750,000 per seat and that the Class A Members retained their electronic and open outcry (i.e., floor) trading rights, trading discounts, and the right to either sell or lease the seats at any time after completion of the merger, thereby mooting a portion of the claims in Plaintiff Greene s Action; WHEREAS, on August 7, 2008, CME and NYMEX issued a Supplemental Proxy, which included additional disclosures negotiated for by plaintiffs, thereby mooting a portion of plaintiffs claims; WHEREAS, pursuant to Orders dated September 30, 2009, the Court dismissed the remaining claims in the Actions; WHEREAS, on October 28, 2009, plaintiffs counsel filed a Petition for Award of Attorneys Fees and Reimbursement of Litigation Costs and Expenses on Behalf of Counsel for the Shareholder Plaintiffs and Class A Member Plaintiff Greene (the Fee Petition ) seeking a fee award and reimbursement of costs and expenses; WHEREAS, on October 29, 2009, plaintiffs filed Notices of Appeal of the Orders dismissing the Actions;

3 WHEREAS, on December 9, 2009, plaintiffs voluntarily dismissed the appeals pending in the Actions; WHEREAS, the parties have conferred and agree, subject to Court approval, the Fee Petition can be resolved without notice to the stockholders and Class A Members of NYMEX because all claims in the Actions have been dismissed by the Court s September 30, 2009 Orders; NOW THEREFORE, the parties, by and through their counsel, hereby stipulate and agree as follows: 1. NYMEX shall cause to be paid attorneys fees and expenses in the amount of $1,800,000, which shall be paid on or before January 15, 2010, in accordance with payment instructions from plaintiffs counsel. 2. All claims for attorneys fees and reimbursement of expenses in the captioned matter are finally resolved upon entry of the Order. 3. This action is dismissed with prejudice and with each of the parties to bear their respective costs.

4 AGREED: _/s/ Pamela_S. Tikellis Pamela S. Tikellis (#2172) Scott M. Tucker (#4925) CHIMICLES & TIKELLIS LLP P.O. Box Delaware Avenue Wilmington, Delaware Counsel for the Shareholder Plaintiffs and Plaintiff Greene /s/ Edward P. Welch Edward P. Welch (#671) Edward B. Micheletti (#3794) SKADDEN ARPS SLATE MEAGHER & FLOM LLP One Rodney Square P.O. Box 636 Wilmington, Delaware Counsel for the CME Group, Inc. and CMEG NY Inc. Dated: December 22, 2009 _/s/ Raymond J. DiCamillo Raymond J. DiCamillo (#3188) Jillian G. Remming (#5097) Richards, Layton & Finger, P.A. One Rodney Square 920 North King Street Wilmington, Delaware Counsel for the NYMEX Defendants SO ORDERED: Vice Chancellor

5 Court: DE Court of Chancery Civil Action Judge: Multi-case File & Serve Transaction ID: Current Date: Jan 04, 2010 Case Number: Multi-case Case Name: Multi-case Court Authorizer: John Noble /s/ Judge John Noble