GRANTED EFiled: Nov 04 2015 10:22AM EST Transaction ID 58111132 Case No. 10470-VCG IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN RE AVANIR PHARMACEUTICALS, INC. STOCKHOLDERS LITIGATION ) ) CONSOLIDATED C.A. No. 10470-VCG STIPULATION AND [PROPOSED] ORDER REGARDING DISMISSAL AND ATTORNEYS FEES AND EXPENSES WHEREAS, on December 2, 2014, Avanir Pharmaceuticals, Inc. ( Avanir ) and Otsuka Pharmaceutical Co., Ltd. ( Otsuka ) announced that they had entered into a merger agreement pursuant to 8 Del. C. 251(h) whereby Otsuka would acquire Avanir for $17.00 per share in cash (the Transaction ); WHEREAS, between December 4, 2014 and December 17, 2014, twelve lawsuits in the Delaware Court of Chancery styled as class actions were filed under the captions Kim v. Avanir Pharmaceuticals, Inc., et al., C.A. No. 10423-VCG (Del. Ch.); Speer v. Avanir Pharmaceuticals, Inc., et al., C.A. No. 10429-VCG (Del. Ch.); Minette v. Katkin, et al., C.A. No. 10432-VCG (Del. Ch.); Wengell v. Bishop, et al., C.A. No. 10433-VCG (Del. Ch.); Shoneye v. Avanir Pharmaceuticals, Inc., et al., C.A. No. 10439-VCG (Del. Ch.); Brenden v. Avanir Pharmaceuticals, Inc., et al., C.A. No. 10445-VCG (Del. Ch.); Presta v. Avanir Pharmaceuticals, Inc., et al., C.A. No. 10446-VCG (Del. Ch.); Therrien v. Avanir Pharmaceuticals, Inc., et al., C.A. No. 10450-VCG (Del. Ch.); Landefeld, et al. v. Avanir Pharmaceuticals, Inc., et al., C.A. No. 10453-VCG (Del. Ch.); Kenworthy v. Avanir Pharmaceuticals, Inc., et al., C.A. No. 10454-VCG (Del. Ch.); Romero v.
Otsuka Pharmaceutical Co., Ltd., et al., C.A. No. 10458-VCG (Del. Ch.); and Morano v. Otsuka Pharmaceutical Co., Ltd., et al., C.A. No. 10470-VCG (Del. Ch.) (collectively, the Actions ); WHEREAS, these lawsuits alleged generally that Avanir directors (the Director Defendants ) breached their fiduciary duties to Avanir stockholders by seeking to sell Avanir through an allegedly defective process, for an unfair price, and on unfair terms; that Avanir s Solicitation/Recommendation Statement on Schedule 14D-9 (the Schedule 14D-9 ), filed with the Securities and Exchange Commission on December 12, 2014, omitted certain material information; and that Otsuka and Bigarade Corporation aided and abetted such breaches; WHEREAS, on December 29, 2014, Otsuka moved to dismiss the only action in which any plaintiff maintained that service was made on Otsuka, which Otsuka disputes, and between December 29, 2014 and January 12, 2015, Bigarade Corporation moved to dismiss each of the eight actions in which the plaintiffs served Bigarade Corporation; WHEREAS, between December 29, 2014 and January 5, 2015, Avanir moved to dismiss each of the six actions in which Avanir was named as a defendant; 2
WHEREAS, between December 29, 2014 and January 20, 2015, the Director Defendants moved to dismiss each of the eight actions in which they had been served; WHEREAS, on January 2, 2015, Avanir issued a supplement to the Schedule 14D-9 (the Supplement, attached hereto as Exhibit A) containing additional disclosures regarding the Transaction which mooted plaintiffs disclosure claims; WHEREAS, on January 7, 2015, the Court granted plaintiffs Morano, Romero, and Shoneye s Motion for Consolidation, Appointment as Lead Plaintiffs and Appointment of Lead Counsel and entered an order consolidating the related actions under the caption In re Avanir Pharmaceuticals, Inc. Stockholders Litigation, Consol. C.A. No. 10470-VCG (the Consolidated Action ); WHEREAS, the Transaction closed on January 13, 2015; WHEREAS, after the Supplement was issued, Lead Counsel concluded that the disclosure claims asserted in the Consolidated Action, for which plaintiffs were primarily seeking equitable relief, were moot due to the additional disclosures and that Lead Plaintiffs would not pursue any other claims; WHEREAS, on April 2, 2015, Lead Counsel submitted a letter to the Court in which they indicated that they had decided to voluntarily dismiss the Consolidated Action without prejudice, and intended to file a fee application due to 3
the additional disclosures made in the Supplement prior to the closing of the Transaction; WHEREAS, after April 2, 2015, Lead Counsel and Defendants engaged in negotiations regarding Lead Counsel s anticipated mootness fee application; WHEREAS, Defendants have agreed to a resolution of the anticipated application for mootness fees by agreeing to a fee and expense payment in the amount of $425,000.00; and WHEREAS, the Court has not passed on the amount of the fee. IT IS HEREBY STIPULATED AND AGREED, pursuant to Rules 23(e) and 41(a) of the Rules of the Court of Chancery, subject to the approval of the Court, that: 1. Within ten (10) business days of the entry of this Stipulation and Proposed Order ( Order ) by the Court, counsel for plaintiffs, at their own expense, shall cause notice of the Order to be published on Business Wire and shall coordinate with Defendants to cause notice to be posted on the Avanir website, substantially in the form attached hereto as Exhibit B, which constitutes adequate notice for purposes of Rule 23(e) (the Notice ); 2. Avanir shall continue to maintain the Notice on the Avanir website for a period of 60 days from the date the Court enters this Order; 4
3. Lead Plaintiffs shall file with the Court an affidavit that the Notice has been made (the Affidavit ) in accordance with Paragraph 1 above no later than three (3) business days after the Notice has been disseminated; 4. Upon the filing of the Affidavit: a. The Consolidated Action will be dismissed. The disclosure claims will be dismissed as moot. All other claims will be dismissed with prejudice as to the Lead Plaintiffs and all other undersigned named plaintiffs, and without prejudice as to all other Avanir stockholders. b. The Register in Chancery is directed to close the Consolidated Action, and all of the individual actions that comprise the Consolidated Action, on the docket. 5. The Company shall pay to Lead Counsel fees in the amount of $425,000 within twenty (20) business days of the entry of the Order to an account designated by Lead Counsel, provided that Lead Plaintiffs have filed the Affidavit with the Court in accordance with Paragraph 3 above. 5
Dated: October 23, 2015. FRIEDLANDER & GORRIS /s/ Christopher M. Foulds Joel E. Friedlander (ID No. 3163) Jeffrey M. Gorris (ID No. 5012) Christopher M. Foulds (ID No. 5169) Benjamin P. Chapple (ID No. 5871) 222 Delaware Ave., Suite 1400 Wilmington, DE 19801 Attorneys for Lead Plaintiffs OF COUNSEL: Randall J. Baron A. Rick Atwood, Jr. David T. Wissbroecker ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 (619) 231-7423 Mark Lebovitch Jeroen van Kwawegen BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1285 Avenue of the Americas New York, NY 10019 (212) 554-1400 POTTER ANDERSON & CORROON LLP /s/ Matthew E. Fischer Donald J. Wolfe, Jr. (ID No. 285) Matthew E. Fischer (ID No. 3092) Timothy R. Dudderar (ID No. 3890) Matthew F. Davis (ID No. 4696) 1313 N. Market Street Wilmington, DE 19801 Attorneys for Defendants Avanir Pharmaceuticals, Inc., Corinne H. Nevinny, Dennis G. Podlesak, Keith A. Katkin, Hans E. Bishop, David J. Mazzo, Craig A. Wheeler and Mark Corrigan OF COUNSEL: Meryl L. Young GIBSON DUNN & CRUTCHER LLP 3161 Michelson Drive Irvine, CA 92612-4412 (949) 451-3800 Brian M. Lutz GIBSON DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105-0921 (415) 393-8200 6
ANDREWS & SPRINGER, LLC /s/ Peter B. Andrews Peter B. Andrews (ID No.4623) Craig J. Springer (ID No. 5529) 3801 Kennett Pike Building C, Suite 305 Greenville, DE 19807 Attorneys for Plaintiffs Harry Kenworthy and Virgil Presta COOCH & TAYLOR, P.A. /s/ Blake Bennett Blake A. Bennett (ID No. 5133) The Brandywine Building 1000 West Street, 10 th Floor P.O. Box 1680 Wilmington, DE 19899 Attorneys for Plaintiffs John Kim and Jason Brenden SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP /s/ Edward B.Micheletti Edward B. Micheletti (ID No. 3794) Jenness E. Parker (ID No. 4659) Alyssa S. O Connell (ID No. 4351) Bonnie W. David (ID No. 5964) 920 North King Street P.O. Box 636 Wilmington, DE 19899 Attorneys for Defendants Otsuka Pharmaceutical Co., Ltd. and Bigarade Corporation ROSENTHAL, MONHAIT & GODDESS, P.A. /s/ Carmella P. Keener Carmella P. Keener (ID No. 2810) 919 Market Street, Suite 1401 P.O. Box 1070 Wilmington, DE 19899 Attorney for Plaintiff Adeline Speer SO ORDERED this day of, 2015. Vice Chancellor 7
Court: Judge: DE Court of Chancery Civil Action Sam Glasscock File & Serve Transaction ID: 58061282 Current Date: Nov 04, 2015 Case Number: 10470-VCG Case Name: CONS W/ 10423 10429 10432 10433 10439 10445 10446 10450 10453 10454 10458- VCG IMO Anavir Pharmaceuticals Inc Stockholders Litigation Court Authorizer: Glasscock, Sam /s/ Judge Glasscock, Sam