YVONNE GONZALEZ ROGERS, District Judge.
This matter came before the Court for hearing pursuant to the Order of this Court, dated April 15, 2014 ("Order"), on the application of Plaintiff for approval of the proposed settlement ("Settlement") set forth in the Stipulation of Settlement dated January 16, 2014, and attached hereto as Exhibit A (the "Stipulation").
The Court has reviewed and considered all documents, evidence, objections (if any) and arguments presented in support of or against the Settlement; the Court being fully advised of the premises and good cause appearing therefore, the Court enters this Final Order and Judgment.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED this 12th day of August, 2014, that:
1. This Final Order and Judgment incorporates by reference the definitions in the Stipulation, and all capitalized terms used herein shall have the same meanings as set forth in the Stipulation.
2. This Court has jurisdiction over the subject matter of the Action, including all matters necessary to effectuate the Settlement, and over all Parties.
3. The Court finds that, for the purposes of settlement only, the Action is a proper class action pursuant to Rules 23(a), 23(b)(1) and 23(b)(2) of the Federal Rules of Civil Procedure. Specifically, this Court finds that: (a) the members of the Class are so numerous that separate joinder of each member is impracticable; (b) there are questions of law or fact common to the Class, including whether the disclosures made by Abaxis in connection with the Plan Amendment were adequate, whether the Individual Defendants breached their fiduciary duties to members of the Class and whether Plaintiffs and the members of the Class were injured as a consequence of Defendants' actions; (c) the claims or defenses of the Plaintiff are typical of the claims or defenses of the Class in that they all arise from the same allegedly wrongful course of conduct and are based on the same legal theories; (d) Plaintiff and its counsel have fairly and adequately protected the interests of Abaxis and the Class; (e) the prosecution of separate actions by individual members of the Class would create a risk of either (i) inconsistent or varying adjudications with respect to individual members of the Class which would establish incompatible standards of conduct for Defendants, or (ii) adjudications with respect to individual members of the Class which would as a practical matter be dispositive of the interests of the other members of the Class who are not parties to the adjudications or substantially impair or impede their ability to protect their interests; and (f) there were allegations that Defendants acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. Thus, for the purposes of settlement only, the Action is a proper class action pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(1) and 23(b)(2).
4. The Action is certified as a mandatory non-opt-out class action pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(1) and 23(b)(2) on behalf of a class consisting of all persons and entities that held common stock in Abaxis as of the close of business on August 31, 2012, which represents the record date for the shareholders entitled to vote at Abaxis's October 24, 2012 Annual Meeting (excluding the Individual Defendants, members of the immediate family of any Individual Defendant, and any person, firm, trust, corporation, or other entity related to, or affiliated with, any Individual Defendant, and the legal representatives, heirs, successors or assigns of any such Excluded Person).
5. Plaintiff St. Louis Police Retirement System is hereby certified as Class representative.
6. The Court finds that the notice of the proposed Settlement disseminated to Abaxis shareholders satisfied the requirements of due process and all other applicable laws, and constitutes due and sufficient notice to all persons entitled thereto.
7. All members of the Class are bound by this Final Order and Judgment, as full and adequate notice of the proceedings was given and a full opportunity to be heard was provided to members of the Class.
8. The Court finds that, during the course of the litigation of the Action, the Parties and their respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11 and all other similar laws.
9. The Court finds that the terms of the Stipulation and Settlement are fair, reasonable and adequate as to the Class and each of the Parties, and hereby finally approves the Stipulation and Settlement in all respects, and orders the Parties to perform its terms to the extent the Parties have not already done so.
10. The Action and all claims contained therein, as well as all of the Released Claims, are hereby dismissed with prejudice. The Parties are to bear their own costs, except as otherwise provided in the Stipulation.
11. Upon the Effective Date, as defined in the Stipulation, Plaintiff (acting on its own behalf and derivatively on behalf of Abaxis), Abaxis, and each member of the Class (solely in his, her or its capacity as an Abaxis shareholder) shall be deemed to have, and by operation of this Final Order and Judgment shall have, fully, finally and forever released, relinquished and discharged the Released Claims against the Released Persons and any and all claims (including Unknown Claims) arising out of, relating to, or in connection with, the defense, settlement or resolution of the Action against the Released Persons.
12. Upon the Effective Date, as defined in the Stipulation, each of the Released Persons, Abaxis and each member of the Class (solely in his, her or its capacity as a Abaxis shareholder) shall be deemed to have, and by operation of this Final Order and Judgment shall have, fully, finally and forever released, relinquished and discharged each and all of the Plaintiff and Plaintiff's Counsel from all claims (including Unknown Claims) arising out of, relating to, or in connection with, the institution, prosecution, assertion, settlement or resolution of the Action or the Released Claims.
13. The Parties have expressly waived any and all provisions, rights and benefits conferred by any law of any jurisdiction or any state or territory of the United States, or principle of common law, which is similar, comparable or equivalent to California Civil Code § 1542, which provides:
The Parties acknowledge, and members of the Class are hereby deemed to have acknowledged, that the waiver of Unknown Claims was separately bargained for and is a key element of the Settlement.
14. Abaxis, Plaintiff and each member of the Class (solely in his, her or its capacity as an Abaxis shareholder) are hereby forever barred and enjoined from instituting and/or prosecuting any other action against the Released Persons in any court or jurisdiction asserting any Released Claims.
15. Nothing herein shall in any way impair or restrict the rights of any Party to enforce the terms of the Stipulation.
16. Plaintiff's Counsel is hereby awarded
17. This Final Order and Judgment shall not be deemed a presumption, concession, or admission by any Party of any fault, liability, or wrongdoing, or lack of merit as to any facts or claims alleged or asserted in the Action or in any other action or proceeding, and shall not be interpreted, construed, deemed, invoked, offered, or received into evidence or otherwise used by any person in the Action or in any other action or proceeding, whether civil, criminal, or administrative, except in connection with any proceeding to enforce the terms of the Settlement. The Released Persons may file the Stipulation and/or this Final Order and Judgment in any action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, full faith and credit, release, good faith settlement, judgment bar or reduction or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim; and any of the Parties may file the Stipulation and documents executed pursuant thereto and in furtherance thereof in any action to enforce the Settlement.
18. Without affecting the finality of this Final Order and Judgment in any way, this Court hereby retains continuing jurisdiction for a period of one (1) year from the date hereof with respect to implementation and enforcement of the terms of the Stipulation.
19. This Final Order and Judgment is a final, appealable judgment and should be entered forthwith by the Clerk in accordance with Federal Rule of Civil Procedure 58 and all other similar laws.
This Stipulation of Settlement (the "Stipulation" or the "Settlement"), is made and entered into by and among the following Parties (as defined further in ¶ 1.11 hereof), each by and through their respective counsel: (i) St. Louis Police Retirement System ("Plaintiff") on behalf of itself and all others similarly situated, and derivatively on behalf of Abaxis, Inc. ("Abaxis" or the "Company"); (ii) defendants Clinton H. Severson ("Severson"), Alberto R. Santa Ines ("Santa Ines"), Kenneth P. Aron ("Aron"), Vladimir E. Ostoich ("Ostoich"), Donald P. Wood ("Wood"), Martin V. Mulroy ("Mulroy"), Richard J. Bastiani ("Bastiani"), Michael D. Casey ("Casey"), Henk J. Evenhuis ("Evenhuis"), Prithipal Singh ("Singh"), Vernon E. Altman ("Altman") and Ernest S. Tucker ("Tucker") (collectively, the "Individual Defendants"); and (iii) nominal defendant Abaxis (collectively with the Individual Defendants, "Defendants"). This Stipulation is intended by the Parties to fully, finally and forever resolve, discharge and settle the Released Claims (as defined in ¶ 1.17 hereof), upon and subject to the terms and conditions hereof. Capitalized terms not otherwise defined shall have the definitions set forth in ¶¶ 1.1-1.18 below.
On October 1, 2012, Plaintiff filed in the Court a Verified Shareholder Class Action and Derivative Complaint (the "Complaint") that asserted class claims on behalf of a class of all persons and entities that held common stock in Abaxis as of the close of business on August 31, 2012, which represents the record date for the shareholders entitled to vote at Abaxis's October 24, 2012 Annual Meeting (excluding the Individual Defendants, members of the immediate family of any Individual Defendant, and any person, firm, trust, corporation, or other entity related to, or affiliated with, any Individual Defendant ("Excluded Persons"), and the legal representatives, heirs, successors or assigns of any such Excluded Person) (the "Class"). The Complaint also asserted derivative claims on behalf of nominal defendant Abaxis against the Individual Defendants alleging, inter alia, that: (1) the Grantor Defendants violated the terms of the Company's 2005 Equity Incentive Plan (the "2005 Plan") by purportedly granting to the Officer Defendants and other Abaxis employees more restricted stock units ("Restricted Stock Units" or "RSUs") than could be settled pursuant to the 500,000 share limit contained in the 2005 Plan (the "Restricted Stock Limit"); and (2) in total, the Abaxis board of directors (the "Board") issued 870,179 shares of common stock upon settlement of Restricted Stock Units granted under the 2005 Plan since October 2005 (370,179 shares in excess of the Restricted Stock Limit) and granted a total of 2,045,000 Restricted Stock Units pursuant to the 2005 Plan (representing, if settled, 1,545,000 more shares than could be issued in accordance with the Restricted Stock Limit) (the "Excess RSUs").
Also on October 1, 2012, Plaintiff filed a motion for preliminary injunction seeking to enjoin Abaxis' annual meeting of shareholders scheduled for October 24, 2012 (the "2012 Annual Meeting") because the Company's September 27, 2012 Form DEF 14A proxy statement (the "2012 Proxy") allegedly contained materially false and misleading statements regarding a proposed amendment to the 2005 Plan (the "Plan Amendment").
On October 23, 2012, the Court granted, in part, Plaintiff's motion for preliminary injunction, enjoining the shareholder vote on the Plan Amendment until the Company made certain additional disclosures in the 2012 Proxy sought by Plaintiff. On October 24, 2012, the Company filed with the United States Securities and Exchange Commission ("SEC") supplemental proxy materials containing the additional disclosures required by the Court. On November 8, 2012, the Company reconvened the 2012 Annual Meeting in order to allow shareholders to vote on the Plan Amendment, which was approved.
On December 28, 2012, Defendants filed motions to dismiss Plaintiff's derivative claims contained in the Complaint (the "Motions to Dismiss"), in which Defendants argued that Plaintiff, inter alia, failed to adequately plead demand futility and failed to state a claim for relief. Defendants' Motions to Dismiss have been fully briefed and oral argument was held on May 7, 2013. At the request of the Parties, the Court agreed to defer ruling on the Motions to Dismiss pending the Parties' efforts to reach a settlement of the Action.
Counsel for the Parties engaged in settlement negotiations in or about May 2013 and attended a mediation on September 20, 2013. Following the exchange of numerous proposals and counter proposals, and related negotiations, the Parties reached an agreement in principle to settle the Action on the terms set forth herein, which include changes to the Company's corporate governance practices and policies. However, the Parties did not begin negotiating the amount of attorneys' fees and expenses payable to Plaintiff's Counsel as a result of the benefits conferred due to the prosecution and settlement of the Action until after the substantive terms of the Settlement were negotiated and agreed to. On or about December 10, 2013, the Parties entered into a memorandum of understanding (the "MOU") memorializing their agreement in principle to settle the Action. Following additional negotiations among the Parties, the Parties have been unable to agree upon the amount of attorneys' fees and expenses payable to Plaintiff's Counsel.
Plaintiff believes that the claims it has asserted in the Action have merit. Plaintiff, however, recognizes and acknowledges the expense and length of continued proceedings necessary to prosecute the Action against the Individual Defendants through trial and appeals. Plaintiff and its counsel have also taken into account the uncertain outcome and the risk of any litigation, especially in complex actions such as the Action, as well as the difficulties and delays inherent in such litigation. Plaintiff and its counsel are also mindful of the inherent problems of proof and possible defenses to the claims asserted in the Action. Based on their evaluation, Plaintiff and its counsel have determined that the Settlement set forth in this Stipulation is in the best interests of Abaxis and its shareholders. Plaintiff's Counsel believe that the Settlement set forth in the Stipulation confers substantial benefits upon Abaxis and its shareholders. Plaintiff's Counsel base this conclusion upon, inter alia, their extensive investigation during the development, prosecution and settlement of the Action, which included, inter alia: (i) inspecting, reviewing and analyzing the Company's filings with the SEC; (ii) researching corporate governance issues; and (iii) researching the applicable law with respect to the claims asserted in the Action and the potential defenses thereto.
The Individual Defendants have denied, and continue to deny, that they have committed any breach of fiduciary duty, waste of assets, or any other violation of law or engaged in any of the wrongful acts alleged in the Action, or that they have been unjustly enriched by any of the acts alleged in the Action, and expressly maintain that they diligently and scrupulously complied with their fiduciary and other legal duties, to the extent such duties exist. Nonetheless, the Individual Defendants have also taken into account the uncertainty and risks inherent in any litigation, especially in complex cases like the Action. Therefore, they have determined that it is desirable and beneficial that the Action be fully and finally settled in the manner and upon the terms and conditions set forth in this Stipulation. Abaxis believes that the Settlement set forth in this Stipulation confers benefits upon Abaxis and its shareholders and that the Settlement is in the best interests of Abaxis and its shareholders.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the Plaintiff (for itself and derivatively on behalf of Abaxis), the Individual Defendants and Abaxis, by and through their respective counsel or attorneys of record, as follows:
As used in this Stipulation, the following terms have the meanings specified below:
1.1 "2010 Annual Meeting" means Abaxis' annual meeting of shareholders held on October 27, 2010.
1.2 "2010 Proxy" means Abaxis' proxy statement issued on or about September 15, 2010 in connection with the 2010 Annual Meeting.
1.3 "Action" means the above-captioned action styled, Case No. 4:12-cv-05086-YGR; St. Louis Police Retirement System, On Behalf of Itself and All Others Similarly Situated and Derivatively on Behalf of Nominal Defendant Abaxis, Inc. v. Clinton H. Severson, Alberto R. Santa Ines, Kenneth P. Aron, Vladimir E. Ostoich, Donald P. Wood, Martin V. Mulroy, Richard J. Bastiani, Michael D. Casey, Henk J. Evenhuis, Prithipal Singh, Vernon E. Altman, and Ernest S. Tucker, Defendants, and Abaxis, Inc., Nominal Defendant, pending in the United States District Court for the Northern District of California.
1.4 "Court" means the United States District Court for the Northern District of California.
1.5 "Effective Date" means the first date by which all of the events and conditions specified in ¶ 7.1 of this Stipulation have been met and have occurred.
1.6 "Final Order and Judgment" or "Judgment" means the order and judgment to be rendered by the Court, substantially in the form attached hereto as Exhibit C.
1.7 "Final" means the time when a judgment that has not been reversed, vacated or modified in any way is no longer subject to appellate review, either because of disposition on appeal and conclusion of the appellate process or because of passage, without action, of time for seeking appellate review. More specifically, it is that situation when: (a) either no appeal has been filed and the time has passed for any notice of appeal to be timely filed in the Action; or (b) an appeal has been filed and the court of appeals has/have either affirmed the judgment or dismissed that appeal and the time for any reconsideration or further appellate review has passed; or (c) a higher court has granted further appellate review and that court has either affirmed the underlying judgment or affirmed the court of appeals' decision affirming the judgment or dismissing the appeal.
1.8 "Grantor Defendants" means defendants Severson, Bastiani, Casey, Evenhuis, Singh Altman and Tucker.
1.9 "Notice" or "Notice of Proposed Settlement" means the notice of the Settlement to be provided by Abaxis, substantially in the form of the attached Exhibit B.
1.10 "Officer Defendants" means defendants Severson, Santa Ines, Aron, Ostoich, Wood and Mulroy.
1.11 "Parties" means, collectively, (i) Plaintiff; (ii) the Individual Defendants; and (iii) Abaxis.
1.12 "Person" means an individual, corporation, limited liability company, professional corporation, partnership, limited partnership, limited liability partnership, association, joint stock company, estate, legal representative, trust, unincorporated association, government or any political subdivision or agency thereof, and any business or legal entity, and each of their spouses, heirs, predecessors, successors, representatives, or assignees.
1.13 "Plaintiff's Counsel" means Kessler Topaz Meltzer & Check, LLP and Saxena White, P.A.
1.14 "Preliminary Order" means the order to be rendered by the Court, substantially in the form of the attached Exhibit A.
1.15 "Related Persons" means each of a person's spouses, heirs, executors, estates, marital communities, trustees, agents or administrators, present and former attorneys, legal representatives, assigns, past and present directors, officers, agents, advisors, employees, affiliates, predecessors, successors, parents, subsidiaries, divisions, affiliated entities, and any person or entity acting for or on behalf of any of them and each of them (including without limitation, any investment bankers, accountants, insurers, reinsurers, attorneys and any past, present or future officers, directors and employees of them).
1.16 "Released Persons" means Plaintiff and Defendants, and their respective Related Persons.
1.17 "Released Claims" means any claims, demands, rights, actions, causes of action, liabilities, damages, losses, obligations, judgments, duties, suits, costs, expenses, matters, and issues known or unknown, including Unknown Claims, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, liquidated or unliquidated, matured or unmatured, accrued or unaccrued, apparent or unapparent, whether state, federal, or foreign, common law, statutory, or regulatory, including, without limitation, claims under the federal securities laws, that have been or could have been asserted in any court, tribunal or proceeding: (a) by Plaintiff, or any Abaxis shareholder, derivatively on behalf of Abaxis, or by Abaxis, against any Released Person concerning the granting and/or receipt of the Excess RSUs, the 2005 Plan, the 2010 Proxy and/or any disclosures related to the 2010 Annual Meeting, the 2012 Proxy and/or any disclosures related to the 2012 Annual Meeting; (b) by Plaintiff, individually and/or on behalf of the Class, or by any member of the Class, against Abaxis or any Released Person, concerning the granting and/or receipt of the Excess RSUs, the 2005 Plan, the 2010 Proxy and/or any disclosures related to the 2010 Annual Meeting, the 2012 Proxy and/or any disclosures related to the 2012 Annual Meeting; and (c) by Plaintiff, any Abaxis shareholder, the Individual Defendants or Abaxis, concerning the settlement of the Action; provided, however, that Released Claims do not include claims to enforce the Settlement, or claims regarding the value of Plaintiff's securities other than those claims related to these subjects above.
1.18 "Unknown Claims" means any of the Released Claims which Plaintiff, any Abaxis shareholder, the Individual Defendants or Abaxis do not know or suspect to exist in his, her or its favor at the time of the release of the Released Persons, including claims which, if known by him, her or it, might have affected his, her or its settlement with and release of the Released Persons, or might have affected his, her or its decision not to object to this Settlement. With respect to any and all Released Claims, the Parties stipulate and agree that, upon the Effective Date, Plaintiff, the Individual Defendants, and Abaxis shall expressly waive and each of the Abaxis shareholders shall be deemed to have, and by operation of the final order and judgment shall have, expressly waived any and all provisions, rights and benefits conferred by any law of any jurisdiction or any state or territory of the United States, or principle of common law, which is similar, comparable or equivalent to California Civil Code § 1542, which provides:
The Plaintiff, Individual Defendants, Abaxis and Abaxis shareholders may hereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Released Claims, but, upon the effective date of the Settlement, the Plaintiff, Individual Defendants and Abaxis shall expressly settle and release, and each Abaxis shareholder shall be deemed to have, and by operation of the final order and judgment shall have, fully, finally, and forever settled and released, any and all Released Claims, known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist, or heretofore have existed upon any theory of law or equity now existing or coming into existence in the future, including, but not limited to, conduct which is negligent, intentional, with or without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such different or additional facts. The Parties acknowledge, and Abaxis shareholders shall be deemed by operation of the Final Order and Judgment to have acknowledged, that the foregoing waiver was separately bargained for and is a key element of the Settlement of which this release is a part.
The Parties agree that, as a result of the filing, pendency, prosecution and settlement of the Action, Abaxis and/or the Board shall take all necessary steps to adopt the corporate governance measures outlined below in consideration of the Settlement and maintain such measures for five years from the date of adoption. The Parties agree the measures set forth below constitute a benefit to Abaxis and its shareholders.
E. The Company's annual proxy statement shall contain a certification from the Compensation Committee and/or the Board, as applicable, that they have reviewed the terms of the Company's equity incentive plans and that all equity awards granted during the prior fiscal year were granted in compliance with the terms of the Company's equity incentive plans;
3.1 The Parties agree, for settlement purposes only, to the certification of the Action as a mandatory non-opt-out class action, pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(1) and 23(b)(2), on behalf of the Class, as defined above. In the event the Settlement does not become final for any reason, the certification of the Class shall be deemed vacated, and the Action shall proceed as though the Class had never been certified.
4.1 After execution of the Stipulation, Plaintiff and Defendants shall submit the Stipulation together with its exhibits to the Court and shall apply for entry of an order substantially in the form of Exhibit A hereto, requesting, inter alia, the preliminary approval of the Settlement set forth in the Stipulation and approval of the Notice, substantially in the form of Exhibit B hereto, which shall include the general terms of the Settlement set forth in this Stipulation, including, but not limited to, the maximum amount of attorneys' fees and expenses that Plaintiff's Counsel will seek in an application to the Court and the date of the Settlement Hearing, as defined in ¶ 4.2 below. Notice of the Proposed Settlement shall be provided by Abaxis at its expense by causing the Notice to be filed with the SEC on Form 8-K, in accordance with the Preliminary Order, or as otherwise ordered by the Court. Abaxis will also be responsible for any and all costs associated with the dissemination of any additional notice ordered by the Court. Counsel for Abaxis shall, at least twenty one (21) business days before the Settlement Hearing (as defined below), file with the Court an appropriate affidavit with respect to the preparation and dissemination of the Notice.
4.2 Plaintiff will request that after the Notice is given, the Court hold a hearing (the "Settlement Hearing") to consider and determine whether to approve the terms of the Settlement as fair, reasonable and adequate and to consider Plaintiff's Counsel's application to the Court for an award of attorneys' fees and reimbursement of expenses.
5.1 Upon the Effective Date, Plaintiff, Abaxis, and each member of the Class (solely in his, her or its capacity as an Abaxis shareholder) shall be deemed to have, and by operation of the Final Order and Judgment shall have, fully, finally, and forever released, relinquished and discharged the Released Claims against the Released Persons and any and all claims (including Unknown Claims) arising out of, relating to, or in connection with, the defense, settlement or resolution of the Action against the Released Persons.
5.2 Upon the Effective Date each of the Released Persons and each Abaxis shareholder shall be deemed to have, and by operation of the Final Order and Judgment shall have, fully, finally, and forever released, relinquished and discharged Plaintiff and Plaintiff's Counsel from all claims (including Unknown Claims) arising out of, relating to, or in connection with, the institution, prosecution, assertion, settlement or resolution of the Action or the Released Claims.
5.3 Nothing herein shall in any way impair or restrict the rights of any Party to enforce the terms of the Stipulation.
6.1 Plaintiff contends that its counsel is entitled to an award of attorneys' fees and expenses for their role in the prosecution and settlement of the Action, and the Parties have attempted to negotiate an amount of fees and expenses to be paid to Plaintiff's Counsel. As of the date of this Stipulation, the Parties have not reached agreement on an award of attorneys' fees and expenses. Plaintiff's Counsel intends to apply to the Court for an award of attorneys' fees and expenses of no more than $2,000,000 in the aggregate, and the Parties intend to, and do, preserve all arguments in connection with any petition for attorneys' fees and expenses by Plaintiff's Counsel. Defendants may oppose the amount of any application for fees and expenses made by Plaintiff's Counsel. Abaxis and/or its insurance carrier shall pay such fees and expenses as may be awarded by the Court (the "Fee Award"). Any failure of the Court to approve the Settlement shall have no impact on or preclude Plaintiff's Counsel from applying for an award of attorneys' fees and expenses on grounds of mootness, and Defendants reserve the right to oppose any such application. However, any failure by the Parties to reach agreement on an amount of fees and expenses, or by the Court to approve the amount of such fees, shall not affect the validity of the Settlement.
6.2 The payment of the Fee Award shall be made by Abaxis and/or its insurance carrier within ten (10) calendar days after entry of the Final Order and Judgment. The Fee Award shall be paid by check or wire transfer to an account designated by Kessler Topaz Meltzer & Check, LLP, and such payment shall fully discharge any and all obligations of the Defendants with respect to attorneys' fees and expenses of Plaintiff. Any such payment shall be made subject to Plaintiff's Counsel's obligation to make refunds or repayment to the Company if any specified condition to the Settlement is not satisfied. Any order or proceeding relating to the Fee Award, or any appeal from any order relating thereto or reversal or modification thereof, shall not operate to terminate or cancel this Stipulation, or affect or delay the finality of the Order and Final Judgment approving the Stipulation and the Settlement as set forth herein.
7.1 The Effective Date of this Stipulation shall be conditioned on the occurrence of all of the following events:
(a) The conditional certification of the Action as a non-opt-out class action pursuant to Fed. R. Civ. P. 23 on behalf of a Class as defined herein;
(b) the entry by the Court of the Final Order and Judgment, substantially in the form of Exhibit C hereto; and
(c) the Final Order and Judgment has become Final.
7.2 If any of the conditions specified in ¶ 7.1 are not met, then this Stipulation shall be canceled and terminated unless the Parties mutually agree in writing, by and through their respective counsel, to proceed with the Stipulation.
7.3 In the event that the Stipulation or Settlement is not approved by the Court, or the Settlement is terminated for any reason, the Parties shall be restored to their respective positions in the Action as of December 10, 2013, the last date before the execution of the MOU, and all negotiations, proceedings, documents prepared and statements made in connection herewith shall be without prejudice to the Parties, shall not be deemed or construed to be an admission by any Party of any act, matter, or proposition and shall not be used in any manner for any purpose in any subsequent proceeding in the Action or in any other action or proceeding. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶ 1.1-1.18, 7.2, 8.6, 8.8, 8.9, 8.10, 8.11 and 8.13 herein, shall have no further force and effect with respect to the Parties and shall not be used in the Action or in any other proceeding for any purpose, and any judgment or orders entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc.
8.1 The Parties (a) acknowledge that it is their intent to consummate this Stipulation; and (b) agree to cooperate to the extent reasonably necessary to effectuate and implement all terms and conditions of this Stipulation and to exercise their best efforts to accomplish the foregoing terms and conditions of this Stipulation. The Parties and their counsel agree that they will refrain from disparaging each other in any publicly disseminated statements in connection with the Action.
8.2 The Parties intend this Settlement to be a final and complete resolution of all disputes between Plaintiff, Abaxis, and the Individual Defendants with respect to the Action. The Settlement compromises claims which are contested and shall not be deemed an admission by any Party as to the merits of any claim, allegation or defense. The Parties further agree that the claims are being settled voluntarily after consultation with competent legal counsel. The Final Order and Judgment shall contain a finding that during the course of the litigation, the Parties and their respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11 and all other similar laws.
8.3 Pending final determination of whether the Settlement should be approved, all proceedings and all further activity between the Parties regarding or directed toward the Action, except for those activities and proceedings relating to this Stipulation and the Settlement, shall be stayed.
8.4 Pending the Effective Date of this Stipulation or the termination of the Stipulation according to its terms, Plaintiff and all Abaxis shareholders, and their respective Related Persons, shall be barred and enjoined from commencing, prosecuting, instigating, or in any way participating in the commencement or prosecution of any action asserting any Released Claims against any Released Person.
8.5 The provisions contained in this Stipulation (including any exhibits attached hereto) shall not be deemed a presumption, concession, or admission by any Party of any fault, liability, or wrongdoing, or lack of merit as to any facts or claims alleged or asserted in the Action or in any other action or proceeding, and shall not be interpreted, construed, deemed, invoked, offered, or received into evidence or otherwise used by any person in the Action or in any other action or proceeding, whether civil, criminal, or administrative, except in connection with any proceeding to enforce the terms of the Settlement. The Released Persons may file the Stipulation and/or the Final Order and Judgment in any action that may be brought against them in order to support a defense or counterclaim based on principles of res judicata, collateral estoppel, full faith and credit, release, good faith settlement, judgment bar or reduction or any other theory of claim preclusion or issue preclusion or similar defense or counterclaim.
8.6 The exhibits to this Stipulation are material and integral parts hereof and are fully incorporated herein by this reference.
8.7 The Stipulation may be amended or modified only by a written instrument signed by or on behalf of all Parties or their respective successors-in-interest.
8.8 This Stipulation and the exhibits attached hereto constitute the entire agreement among the Parties and no representations, warranties or inducements have been made to any Party concerning the Stipulation or any of its exhibits other than the representations, warranties and covenants contained and memorialized in such documents. Except as otherwise provided herein, each Party shall bear its own costs.
8.9 Each Party severally acknowledges that no promise, inducement or agreement not expressed herein has been made to it or him, that this Stipulation contains the entire agreement between or among the Parties concerning the matters described in this Stipulation, and, except as expressly provided herein, that there are no third-party beneficiaries to this Stipulation.
8.10 This Stipulation shall be binding upon and shall inure to the benefit of the Parties and their respective agents, successors, executors, heirs, and assigns.
8.11 This Stipulation and the Settlement contemplated by it shall be governed by and construed in accordance with the laws of the State of California without regard to conflict of laws principles. Any action arising out of or relating to this Stipulation shall be brought exclusively in the Court, or if the Court shall lack subject-matter jurisdiction over the action, then in such state court of the State of California as may have subject-matter jurisdiction over such action.
8.12 If any provision or provisions of this Stipulation shall be held to be invalid, illegal, unenforceable or in conflict with the law of the State of California, the validity, legality and enforceability of the remaining provisions of the Stipulation shall not in any way be affected or impaired thereby.
8.13 Each counsel or other Person executing this Stipulation or its exhibits on behalf of any Party hereby warrants that such Person has the full authority to do so.
8.14 This Stipulation may be executed in one or more counterparts. A faxed or pdf signature shall be deemed an original signature for the purposes of this Stipulation. All executed counterparts, and each of them, shall be deemed to be one and the same instrument. A complete set of counterparts, either originally executed or copies thereof, shall be filed with the Court.
8.15 This Stipulation shall be binding upon, and inure to the benefit of, the successors and assigns of the Parties and the Released Persons.
8.16 The Court shall retain jurisdiction with respect to implementation and enforcement of the terms of the Stipulation, and the Parties submit to the jurisdiction of the Court for purposes of implementing and enforcing the Settlement embodied in the Stipulation.
