ORDER

PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR NOTICE

ECF No. 148

JENNIFER A. DORSEY, District Judge.

WHEREAS, Plaintiff in the above-captioned shareholder derivative action has made an unopposed application pursuant to Fed.R.Civ.P. 23.1(c) for an order: (i) preliminarily approving a settlement of this action in accordance with the Settlement Agreement dated August 10, 2017, which sets forth the terms and conditions for the proposed settlement and dismissal of this action with prejudice, and (ii) approving the form and content of the Notice to be sent to current Abakan shareholders directly via first-class mail;

WHEREAS, all capitalized terms contained herein shall have the same meanings as set forth in the Settlement Agreement (in addition to the capitalized terms therein); and

WHEREAS, the Court has reviewed and considered the Settlement Agreement;

NOW, THEREFORE, IT IS HEREBY ORDERED:

1. The Court does hereby preliminarily approve, subject to further consideration at the Settlement Hearing described below, the Settlement Agreement annexed as Exhibit A to Plaintiff's unopposed motion, including the terms and conditions for the settlement and dismissal with prejudice of this action.

2. A hearing ("Settlement Hearing") shall be held before this Court on Dec. 14, 2017, at 9 a.m. to determine: (i) whether the terms and conditions of the Settlement Agreement are fair, reasonable, and adequate to current Abakan shareholders, (ii) whether a final order and judgment approving the Settlement Agreement should be entered, and (iii) whether the reimbursement of the requested attorneys' fees and costs to Plaintiff's counsel should be finally approved.

3. The Court approves, as to form and content, the Notice annexed as Exhibit B to Plaintiff's unopposed motion, and finds that the distribution of such notice substantially in the form set forth in this Order meets the requirements of Fed.R.Civ.P. 23.1 and due process, and is the best notice practicable under the circumstances and shall constitute due and sufficient notice to all persons entitled thereto.

4. Within ten (10) days of the Court's entry of this Order, Abakan shall cause the Notice to be sent to current Abakan shareholders directly via first-class mail, the cost of which shall be borne by Abakan's insurance carrier.

5. All papers in support of final approval of the settlement shall be filed with the Court at least thirty (30) days prior to the Settlement Hearing, and any reply papers shall be filed with the Court at least seven (7) days prior to the Settlement Hearing.

6. Any current Abakan shareholder may object and/or appear and show cause, if such shareholder has any concern why the proposed settlement should not be approved as fair, reasonable, and adequate, or why a final order and judgment should not be entered thereon, or why the reimbursement of the requested attorneys' fees and costs to Plaintiff's counsel should not be finally approved; provided, however, unless otherwise ordered by the Court, no current Abakan shareholder shall be heard or entitled to contest the approval of the terms and conditions of the settlement, or if approved, a final order and judgment to be entered thereon approving the same, or the fee award, unless that shareholder has, at least fourteen (14) days prior to the Settlement Hearing: (i) filed with the Clerk of Court a written objection to the settlement setting forth (a) the nature of the objection, (b) proof of ownership of Abakan stock through the date of the Settlement Hearing, including the number of Abakan shares and the date of purchase, (c) any documentation in support of such objection, and (ii) if a current Abakan shareholder intends to appear and requests to be heard at the Settlement Hearing, such shareholder must have, in addition to the foregoing requirements, filed with the Clerk of Court (a) a written notice of such shareholder's intention to appear, (b) a statement that indicates the basis for such appearance, and (c) the identities of any witnesses the shareholder intends to call at the Settlement Hearing and a statement as to the subjects of their testimony. If a current Abakan shareholder files a written objection and/or written notice of intent to appear, such shareholder must also simultaneously serve copies of such notice, proof, statement, and documentation, together with copies of any other papers or briefs such shareholder files with the Court, either by hand delivery or first class mail on each of the following counsel of record:

Any current Abakan shareholder who does not make their objection in the manner provided herein 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 settlement as incorporated in the Settlement Agreement, unless otherwise ordered by the Court, and shall otherwise be bound by the final order and judgment to be entered and the releases to be given.

7. All current Abakan shareholders shall be bound by all orders, determinations, and judgments in the action concerning the settlement.

8. The Court reserves the right to adjourn the date of the Settlement Hearing or modify any other dates set forth herein without further notice to current Abakan shareholders, and retains jurisdiction to consider all further applications arising out of or in connection with the settlement. The Court may approve the settlement and any of its terms, with such modifications as may be agreed to by the Parties, if appropriate, without further notice to current Abakan shareholders.

9. In accordance with the prior Order on Stipulation (ECF No. 147), the Court hereby extends the stay of this action, including all deadlines and discovery, until such time as the Court enters an order on Plaintiff's motion for final approval of the settlement. In the event the Court denies Plaintiff's motion for final approval of the settlement, the parties will jointly seek the entry of a new scheduling order, if necessary.

IT IS SO ORDERED.