CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events: (a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties; (b) the Settlement Amount has been deposited with the Escrow Agent; (c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof; (d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof; (e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and (f) the Judgment has become Final, as defined in ¶1.10 hereof. 8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement. 8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal. 8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class. 8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement. 8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel. 8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.
Appears in 3 contracts
Sources: Settlement Agreement, Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1. The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount This Agreement has been deposited with signed by the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice OrderParties and Class Counsel, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed individual settlement agreements with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the heirs of ▇▇▇▇▇ v. Camping World▇▇▇▇▇, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and will take all steps reasonably appropriate to seek such dismissal.▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇ have been fully executed;
8.4 If(b) The Court has entered an order granting Preliminary Approval of the Agreement;
(c) The Court has entered a Final Approval Order finally approving the Agreement, prior to the or a judgment substantially consistent with this Settlement Agreement that has become final and unappealable, following Notice and a Final Approval Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons as provided in the aggregate purchased or otherwise acquired a number Federal Rules of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion Civil Procedure; and
(“Supplemental Agreement”d) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves Court enters an approval order and final judgment in a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later form other than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so provided above (“Termination NoticeAlternative Approval Order”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed Parties have consented, that Alternative Approval Order has become final and unappealable.
9.2. If some or vacated or altered following an appeal taken therefromall of the conditions specified in Paragraph 9.1 are not met, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the that this Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 9.3, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Illinois Fee Award and Ohio Fee Award to Class Counsel set forth above or the incentive award to the Class Representatives, regardless of the amounts awarded, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3. If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1, 6.2, 9.1, or 9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Actions as of August 16if this Agreement had never been entered into, 2019including Defendant’s right to seek to compel arbitration as to the Plaintiffs named in the Second Amended Complaint.
9.4. In the event the Settlement is terminated or fails to become effective for any reason, the Illinois Settlement Fund and Ohio Settlement Fund, together with any earnings thereon at the same rate as earned, less any taxes paid or due, less Settlement Administrative Expenses actually incurred and paid or payable from the Settlement Fund, shall be required returned to present an amended trial schedule Defendant or its Insurer within thirty (30) calendar days after written notification of such event in accordance with instructions provided by Defendant’s Counsel to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationSettlement Administrator.
Appears in 3 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 7.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents Court has entered the Preliminary Approval Order, as may be required to obtain final Court approval of by ¶3.1 hereof, substantially in the Stipulation form set forth in a form satisfactory to the Settling PartiesExhibit A attached hereto;
(b) the Settlement Amount has been deposited with into the Escrow Agent▇▇▇▇;
(c) Defendants have the Court has entered the Judgment, or a judgment substantially in the form of Exhibit B attached hereto;
(d) Lexmark has not exercised their its option to terminate the Stipulation pursuant to ¶8.4 ¶7.3 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(fe) the Judgment has become Final, as defined in ¶1.10 ¶1.12 hereof.
8.2 7.2 Upon the occurrence of all of the events referenced in ¶8.1 hereofEffective Date, any and all remaining interest or right of the Defendants or the Defendants’ insurers in or to the Settlement Fund, if any, shall be absolutely and forever extinguishedextinguished and the releases herein shall be effective. If all of the conditions specified in ¶8.1 ¶7.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 ¶7.4 hereof unless Lead Counsel and counsel for Defendants Defendants’ Counsel mutually agree in writing to proceed with the SettlementStipulation.
8.3 The Settling Parties expect that, upon 7.3 Only Lexmark possesses the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate option to seek such dismissal.
8.4 If, prior to terminate the Settlement Hearing, Persons who otherwise would be members of in the Class have timely requested event that valid requests for exclusion from the Class in accordance with exceed the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures criteria set forth in the Supplemental Agreement, executed between Lead Plaintiff and Lexmark through their respective counsel concurrently with this Agreement. The terms of the Supplemental Agreement will shall not be filed with disclosed in any other manner other than the Court statements herein and in the Notice, or as otherwise provided in the Supplemental Agreement unless and until the Court otherwise directs or a dispute arises between Plaintiffs Lead Plaintiff and Camping World Defendants concerning its interpretation or application arisesapplication. Copies If submission of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court is required for resolution of a dispute or is otherwise ordered by no later than 5:00 PM Eastern Time the Court, the parties will undertake to have the Court review the Supplemental Agreement in camera without filing it on the day prior to docket. If the Settlement HearingCourt requires that the Supplemental Agreement be filed, the parties shall request that it be filed under seal or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from with the Classpercentage redacted.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 7.4 Unless otherwise ordered by the Court, in the event the Stipulation shall terminateis not approved or this Stipulation is terminated, or be canceled, or shall not become effective for any reasonthe Effective Date otherwise fails to occur, within five ten (510) business days after written notification of such event is sent by counsel for Defendants Defendants’ Counsel or Lead CounselCounsel to the Escrow Agent, the Settlement Fund (including accrued interest), less expenses Taxes, Tax Expenses, and Notice and Administration Expenses which have either been incurred or disbursed pursuant to ¶¶3.7 ¶¶2.1 and 2.8 hereof, or 3.8 are chargeable to the Settlement Fund pursuant to ¶¶2.1 and 2.8 hereof, shall be refunded by the Escrow Agent pursuant to written instructions from Defendants’ counselCounsel. At the request of counsel for Defendants, the The Escrow Agent or their its designee shall apply for any tax refund owed on the Settlement Fund Amount and pay the proceeds, after deduction of any fees or expenses incurred in connection with such application(s) for refund, at the pursuant to written direction of instructions from Defendants’ counselCounsel.
8.7 7.5 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action Litigation as of August 16January 28, 20192020. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28¶¶1.1–1.36, 3.7-3.92.6–2.9, 7.26.3–6.5, 8.4-8.6 7.4–7.6, and 9.3-9.5 9.5–9.6 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead any of Plaintiffs’ Counsel or Plaintiffs expenses to the Lead Plaintiff shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Stipulation.
7.6 If the Effective Date does not occur, or if the Stipulation is terminated pursuant to its terms, neither Lead Plaintiff nor any of its counsel shall have any obligation to repay any amounts disbursed pursuant to ¶¶2.1 or 2.8. In addition, any expenses already incurred pursuant to ¶¶2.1 or 2.8 hereof at the time of such termination or cancellation but which have not been paid, shall be paid by the Escrow Agent in accordance with the terms of the Stipulation prior to the balance being refunded in accordance with ¶¶2.9 and 7.4 hereof.
7.7 Defendants warrant and represent that they are not “insolvent” within the meaning of 11 U.S.C. § 101(32) as of the time the Stipulation is executed and will not be as of the time the payments of the Settlement Amount are actually transferred or made as reflected in the Stipulation. This representation is made by Defendants and not by Defendants’ Counsel. In the event of a final order of a court of competent jurisdiction, not subject to any further proceedings, determining the transfer of the Settlement Fund, or any portion thereof, by or on behalf of Defendants to be a voidable preference, voidable transfer, fraudulent transfer, or similar transaction under Title 11 of the United States Code (Bankruptcy), or applicable state law, and any portion thereof is required to be refunded and such amount is not promptly deposited in the Settlement Fund by or on behalf of any Defendants, then, at the election of Lead Plaintiff the Settlement may be terminated and the Judgment entered in favor of Defendants pursuant to the Settlement shall be null and void. Alternatively, at the election of Lead Plaintiff, the Settling Parties shall jointly move the Court to vacate and set aside the release given and the Judgment entered in favor of the Defendants and that the Defendants and Lead Plaintiff and the Members of the Class shall be restored to their litigation positions as of January 28, 2020 and the Settlement Fund shall be promptly returned.
Appears in 3 contracts
Sources: Stipulation and Agreement of Settlement, Stipulation and Agreement of Settlement, Stipulation and Agreement of Settlement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 74. The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs subject to the provisions in Paragraph 75:
(a) execution a. This Agreement has been signed by the Parties, Class Counsel and Defendant’s Counsel;
b. The Court has entered a Preliminary Approval Order;
c. The Court has entered a Final Approval Order, or a judgment materially identical to this Settlement Agreement that has become final and no longer appealable, following Notice to the Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure; and
d. In the Stipulation event that the Court enters an approval order and such other documents as may be required to obtain final Court approval of the Stipulation judgment in a form satisfactory other than that provided above (the “Alternative Approval Order”) to which the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants Parties have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderconsented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and no longer appealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished75. If some or all of the conditions specified in ¶8.1 hereof Paragraph 74 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Paragraph 76, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the following shall not prevent the Settlement Agreement from becoming effective, nor shall they be grounds for termination of the Agreement: (1) the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the Service Award to the Class Representative, regardless of the amounts awarded, or (2) the Court’s determination that it lacks jurisdiction such that the Parties’ Agreement will be renewed in an appropriate forum.
76. If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Settlement Agreement had never been entered into.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 6.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(ai) execution the entry of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesPreliminary Approval Order;
(bii) the Settlement Amount has been deposited with Court’s entry of the Escrow AgentJudgment;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(diii) the Court has entered payment of the Notice OrderFee and Expense Amount in accordance with Section IV, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above¶¶ 5.1-5.2 herein; and
(fiv) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, 6.2 If any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section IV, ¶ 6.1 are not met, then the Stipulation shall be canceled cancelled and terminated subject to ¶8.5 hereof Section IV, ¶ 6.4, and Plaintiffs and Defendants shall be restored to their respective positions in the Derivative Action as of the date immediately preceding the date of this Stipulation unless Lead Plaintiffs’ Counsel and counsel for Defendants Defendants’ Counsel mutually agree in writing to proceed with the SettlementStipulation.
8.3 The Settling Parties expect that, upon the occurrence of all 6.3 Each of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants Parties shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto Parties within thirty twenty (3020) calendar days ofof the date on which: (ai) the Court’s refusal Court refuses to enter approve this Stipulation, or the Notice Orderterms contained herein, in any material respect; (bii) the Court’s refusal to approve Preliminary Approval Order is not entered in substantially the Settlementform attached as Exhibit C hereto; (ciii) the Court’s refusal to enter Judgment is not entered in substantially the Judgmentform attached as Exhibit D hereto; (div) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefromsubstantially modified on appeal, reconsideration, or otherwise; (v) the payment of the Fee and Expense Amount in accordance with Section IV, ¶¶ 5.1-5.2 herein is successfully collaterally attackednot made; or (evi) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court Settlement cannot otherwise occur; except that such termination shall not be effective unless and until the terminating Party has, within twenty (20) calendar days of the date on which notice of the termination event has been provided to all other Parties, attempted in good faith to confer with the other Parties and/or to participate in a mediation session with the Mediator and the other Parties to attempt to remedy the issue. Any order or proceeding relating to the Fee and Expense Amount, or any appeal from any order relating thereto or reversal or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ feesthereof, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall not operate to terminate or cancel this Stipulation or constitute grounds the Stipulation, allow for cancellation or the termination of the Settlement, or affect or delay the finality of the Judgment approving the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 6.4 In the event that the Stipulation is not approved by the Court Court, or the Settlement set forth in the Stipulation is terminated or fails for any reason, including pursuant to become effective in accordance with its termsSection IV, ¶ 6.3 above, the Settling Parties Plaintiffs and the Defendants shall be restored to their respective positions as of the date immediately preceding the date of this Stipulation, 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 of the Parties of any act, matter, or proposition, and shall not be used in any manner for any purpose in any subsequent proceeding in the Derivative Action as of August 16, 2019or in any other action or proceeding. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1Section IV, ¶¶ 1.1-1.281.29, 3.75.5, 6.4, 8.5-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof8.20 herein, shall have no further force and effect with respect to the Settling Parties and shall not be used in this the Derivative Action or in any other proceeding for any purpose, and any Judgment judgment or order orders entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.
Appears in 2 contracts
Sources: Settlement Agreement (Impinj Inc), Stipulation and Agreement of Settlement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs subject to the provisions in Section 1.12:
(a) execution a. This Agreement has been signed by the Parties, Class Counsel and Defendant’s Counsel;
b. The Court has entered a Preliminary Approval Order approving the Agreement;
c. The Court has entered a Final Approval Order finally approving the Agreement, or a judgment substantially consistent with this Settlement Agreement that has become final and unappealable, following Notice to the Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure; and
d. In the Stipulation event that the Court enters an approval order and such other documents as may be required to obtain final Court approval of the Stipulation judgment in a form satisfactory other than that provided above (“Alternative Approval Order”) to which the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants Parties have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderconsented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Section 9.3, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive awards to the Class Representative, regardless of the amounts awarded shall not prevent the Settlement Agreement from becoming effective and settlement payments being distributed, nor shall they be grounds for termination of the Agreement.
9.3 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as of August 16if this Settlement Agreement had never been entered into.
9.4 In the event the Settlement is terminated or fails to become effective for any reason, 2019the Settlement Fund, together with any earnings thereon at the same rate as earned, less any taxes paid or due, less Settlement Administrative Expenses actually incurred and paid or payable from the respective settlement funds, shall be required returned to present an amended trial schedule Defendant within thirty (30) days after written notification of such event in accordance with instructions provided by Defendant’s Counsel to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationSettlement Administrator.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 7.1 Lead Counsel and Defendants’ counsel shall request that the Court enter a Judgment, substantially in the form attached hereto as Exhibit B, if the Settlement contemplated by this Stipulation is approved by the Court. The Effective Date of the Stipulation shall be conditioned on the occurrence or waiver of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesStipulation;
(b) the Settlement Amount has been deposited with into the Escrow AgentAccount;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 ¶7.3 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 ¶3.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs Lead Plaintiff and the Class and Defendants, with each party to bear its own fees, costs, and expenses (except as expressly provided herein or by the Court), as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 ¶1.8 hereof.
8.2 7.2 Upon the occurrence or waiver of all of the events referenced in ¶8.1 ¶7.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 ¶7.1 hereof are not metmet or waived, then the Stipulation shall be canceled and terminated subject to ¶8.5 ¶7.4 hereof unless Lead Counsel and counsel for Defendants on behalf of their respective clients mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon 7.3 If the occurrence of all of Court provides an additional opportunity for Class Members to request exclusion from the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissedClass, and will take all steps reasonably appropriate to seek such dismissal.
8.4 Ifif, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely and validly requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in that the aggregate purchased or otherwise acquired a combined number of shares of Camping World Under Armour Class A and Class C common stock during the Class Period in represented by such exclusion requests equals or exceeds an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs Lead Plaintiff and Camping WorldDefendants, Camping World then Defendants shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement is confidential and will not be filed with submitted to the Court unless and until a dispute between Plaintiffs Lead Plaintiff and Camping World Defendants concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before unless the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded Settling Parties are ordered by the Court to Lead Counsel or costs or awards do so, in which cases the Supplemental Agreement may be submitted to Plaintiffs shall operate the Court in camera, with such submission being carried out to terminate or cancel this Stipulation or constitute grounds for cancellation or termination preserve the confidentiality of the Settlementterms of the Supplemental Agreement to the fullest extent possible in accordance with the practices of the Court.
8.6 7.4 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five fourteen (514) business calendar days after written notification of such event is sent by counsel for Defendants or Lead Counselto the Escrow Agent, the Settlement Fund (including any accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 ¶¶2.9 or 3.8 2.10 hereof, shall be refunded pursuant to written instructions from Defendants’ counselcounsel to the party, parties, or insurers that paid the Settlement. At the request of counsel for Defendants, the Escrow Agent or their its designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counselcounsel to the party, parties, or insurers that paid the Settlement within twenty-one (21) calendar days from the date of the notice from counsel for Defendants.
8.7 7.5 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16June 20, 20192024. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.281.29, 3.7-3.92.9- 2.11, 7.27.4, 8.4-8.6 8.1, and 9.3-9.5 9.4 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16June 20, 2019, and shall be required to present an amended trial schedule to the Court2024. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, fees and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs Lead Plaintiff shall constitute grounds for cancellation or termination of the Stipulation.
7.6 Each of the Defendants warrants and represents that, as of the time this Stipulation is executed and as of the time the Settlement Amount is actually transferred or made as reflected in this Stipulation, it is not “insolvent” within the meaning of 11 U.S.C. §101(32). In the event of a final order of a court of competent jurisdiction, not subject to any further proceedings, determining the transfer of the Settlement Fund, or any portion thereof, by or on behalf of any Defendant to be a preference, voidable transfer, fraudulent transfer or similar transaction under Title 11 of the United States Code (Bankruptcy) or applicable state law and any portion thereof is required to be refunded and such amount is not promptly deposited in the Settlement Fund by or on behalf of any other Defendant, then, at the election of Lead Counsel, as to the Defendant as to whom such order applies, the Settlement may be terminated and the releases given and the judgment entered in favor of such Defendant pursuant to the Settlement shall be null and void. In such instances, the releases given and the judgments entered in favor of other Defendants shall remain in full force and effect. Alternatively, Lead Counsel may elect to terminate the entire Settlement as to all Defendants and all of the releases given and the judgments entered in favor of the Defendants pursuant to the Settlement shall be null and void and Lead Plaintiff may proceed as if the Settlement was never entered into.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of Settlement Amount has been deposited into the Stipulation in a form satisfactory to the Settling PartiesEscrow Account;
(b) the Settlement Amount Court has been deposited with entered the Escrow AgentPreliminary Approval Order, as required by ¶3.1 hereof;
(c) Defendants have the Court has entered the Judgment, or a judgment substantially in the form of Exhibit B attached hereto;
(d) the Foundation has not exercised their its option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 ¶1.13 hereof; and
(f) the State Court has entered an order dismissing the State Litigation with prejudice, and the State Court’s order dismissing the State Litigation with prejudice has become Final, as defined in ¶1.13 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereofEffective Date, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. .
8.3 If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 ¶¶8.5-8.7 hereof unless Federal Lead Counsel and State Lead Counsel and counsel for all Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissalStipulation.
8.4 If, prior to the Settlement Hearing, If Persons who would otherwise would be members of the Settlement Class Members have timely requested exclusion from the Class this settlement in accordance with the provisions of Notice, the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World Foundation shall have the sole option to terminate this Stipulation and Settlement the settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that Settlement Class Members representing more than 5% of all XTZ tokens allocated in the Camping World serves a written notice Tezos genesis block (i.e. 38,000,000 of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out XTZ tokens) exclude themselves from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants any Defendant or Federal Lead CounselCounsel and State Lead Counsel to the Escrow Agent, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 ¶¶2.10 or 3.8 2.12 hereof, or are chargeable to the Settlement Fund pursuant to ¶¶2.10 or 2.12 hereof, shall be refunded by the Escrow Agent pursuant to written instructions from Defendants’ the Tezos Foundation’s counsel. At the request of counsel for Defendants, the The Escrow Agent or their its designee shall apply for any tax refund owed on the Settlement Fund Amount and pay the proceeds, after deduction of any fees or expenses incurred in connection with such application(s) for refund, at pursuant to written instructions from the written direction of Defendants’ Tezos Foundation’s counsel.
8.7 8.6 In the event that the Stipulation is not approved by the Court or the Settlement settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action Litigations as of August 16November 25, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.281.39, 3.72.10-3.92.13, 7.26.9, 8.47.3, 7.5, 8.5-8.6 8.7, 9.7, and 9.3-9.5 9.9 hereof, shall be null and void, have no further force and effect with respect to the Settling Parties effect, and shall not be used in this Action these Litigations or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and shall not be used in the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the CourtLitigations or in any other proceeding for any purpose. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation Allocation, or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Federal Lead Counsel or Plaintiffs State Lead Counsel, or any other plaintiff’s counsel, or any order of the Court or State Court concerning the amount of any service award, shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Stipulation.
8.7 If the Effective Date does not occur, or if the Stipulation is terminated pursuant to its terms, neither Federal Lead Plaintiff nor State Plaintiff nor any of their counsel shall have any obligation to repay any amounts disbursed pursuant to ¶¶2.10 or 2.12. In addition, any expenses already incurred pursuant to ¶¶2.10 or 2.12 hereof at the time of such termination or cancellation but which have not been paid, shall be paid by the Escrow Agent in accordance with the terms of the Stipulation prior to the balance being refunded in accordance with ¶¶2.13 and 8.5 hereof.
8.8 The Tezos Foundation warrants and represents that it is not “insolvent” within the meaning of 11 U.S.C. §101(32) as of the time the Stipulation is executed and anticipates it will not be as of the time the payments of the Settlement Amount are actually transferred or made as reflected in the Stipulation. This representation is made by the Tezos Foundation and not by the Foundation’s counsel. In the event of a final order of a court of competent jurisdiction, not subject to any further proceedings, determining the transfer of the Settlement Amount to the Settlement Fund, or any portion thereof, by the Foundation to be a voidable preference, voidable transfer, fraudulent transfer, or similar transaction under Title 11 of the United States Code (Bankruptcy), or applicable state law, and any portion thereof is required to be refunded, then the Settling Parties shall jointly move the Court to vacate and set aside the release given and the Judgment entered in favor of Defendants, the Settling Parties shall be restored to their litigation positions as of November 25, 2019, and the Settlement Fund shall be promptly returned.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 7.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of Settlement Amount has been deposited into the Stipulation in a form satisfactory to the Settling PartiesEscrow Account;
(b) the Settlement Amount Court has been deposited with entered the Escrow AgentPreliminary Approval Order, as required by ¶3.1 hereof, substantially in the form set forth in Exhibit A attached hereto;
(c) Defendants have the Court has granted final approval to the Settlement as described herein, following notice to the Class and a hearing, as required by Rule 23 of the Federal Rules of Civil Procedure, and entered the Judgment, or a judgment substantially in the form of Exhibit B attached hereto;
(d) OneMain has not exercised their its option to terminate the Stipulation pursuant to ¶8.4 ¶7.3 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(fe) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 7.2 Upon the occurrence of all of the events referenced in ¶8.1 hereofEffective Date, any and all remaining interest or right of the Defendants and/or the Defendants’ insurers in or to the Settlement Fund, if any, shall be absolutely and forever extinguishedextinguished and the releases herein shall be effective. If all of the conditions specified in ¶8.1 ¶7.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 ¶7.4 hereof unless Lead Counsel and counsel for the Defendants mutually agree in writing to proceed with the SettlementStipulation.
8.3 The Settling Parties expect that, upon 7.3 OneMain shall have the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate option to seek such dismissal.
8.4 If, prior to terminate the Settlement Hearing, Persons who otherwise would be members in the event that Class Members representing more than a certain percentage of the Class have timely requested exclusion OneMain common shares subject to this Settlement exclude themselves from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant theretoNotice, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified as set forth in a confidential separate Supplemental Agreement Regarding Requests for Exclusion agreement (the “Supplemental Agreement”) to be executed between Plaintiffs Plaintiff and Camping WorldDefendants, Camping World by and through their counsel, concurrently with this agreement. The terms of the Supplemental Agreement shall have not be disclosed in any other manner other than the sole option to terminate this Stipulation statements herein and Settlement in accordance with the procedures set forth Notice, or as otherwise provided in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until the Court otherwise directs or a dispute arises between Plaintiffs Plaintiff and Camping World Defendants concerning its interpretation or application arisesapplication. Copies If submission of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court is required for resolution of a dispute or is otherwise ordered by no later than 5:00 PM Eastern Time the Court, the parties will undertake to have the Court review the Supplemental Agreement in camera without filing it on the day prior to docket. If the Settlement HearingCourt requires that the Supplemental Agreement be filed, the parties shall request that it be filed under seal or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from with the Classpercentage redacted.
8.5 7.4 Each of Plaintiffs Plaintiff and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice OrderPreliminary Approval Order substantially in the form set forth in Exhibit A attached hereto; (b) the Court’s refusal to approve the Settlementthis Stipulation; (c) the Court’s refusal to enter the Judgment, or a judgment substantially in the form of Exhibit B attached hereto; (d) the date upon which the Judgment is reversed or vacated or altered following an any appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, expenses expenses, and interest awarded by the Court to Lead Counsel or costs or awards any amount awarded to Plaintiffs Plaintiff shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the SettlementStipulation.
8.6 7.5 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for the Defendants or Lead CounselCounsel to the Escrow Agent, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 ¶¶2.5 and 2.7 hereof, or 3.8 are chargeable to the Settlement Fund pursuant to ¶¶2.5 and 2.7 hereof, shall be refunded by the Escrow Agent pursuant to written instructions from Defendants’ counselCounsel. At the request of counsel for Defendants, the The Escrow Agent or their its designee shall apply for any tax refund owed on the Settlement Fund Amount and pay the proceeds, after deduction of any fees or expenses incurred in connection with such application(s) for refund, at the pursuant to written direction of instructions from Defendants’ counselCounsel.
8.7 7.6 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action Litigation as of August 16March 20, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1¶¶1.1- 1.30, 2.5-1.282.8, 3.76.3-3.96.4, 7.27.4-7.6, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel any of plaintiffs’ counsel or Plaintiffs award to Plaintiff pursuant to 15 U.S.C. §78u-4(a)(4) shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Stipulation.
7.7 If the Effective Date does not occur, or if the Stipulation is terminated pursuant to its terms, neither Plaintiff nor any of his counsel shall have any obligation to repay any amounts disbursed pursuant to ¶¶2.5 or 2.7. In addition, any expenses already incurred pursuant to ¶¶2.5 or 2.7 hereof at the time of such termination or cancellation but which have not been paid, shall be paid by the Escrow Agent in accordance with the terms of the Stipulation prior to the balance being refunded in accordance with ¶¶2.8 and 7.5 hereof.
7.8 In the event of a final order of a court of competent jurisdiction, not subject to any further proceedings, determining the transfer of the Settlement Fund, or any portion thereof, by or on behalf of Defendants to be a voidable preference, voidable transfer, fraudulent transfer, or similar transaction under Title 11 of the United States Code (Bankruptcy), or applicable state law, and any portion thereof is required to be refunded and such amount is not promptly deposited in the Settlement Fund by or on behalf of any Defendant, then, at the election of Plaintiff, as to Defendants, the Settlement may be terminated and the Judgment entered in favor of Defendants pursuant to the Settlement shall be null and void and the Settlement Fund shall be promptly returned. Alternatively, at the election of Plaintiff, the Settling Parties shall jointly move the Court to vacate and set aside the release given and the Judgment entered in favor of the Defendants and that the Defendants and Plaintiff and the Members of the Class shall be restored to their litigation positions as of March 20, 2019, and the Settlement Fund shall be promptly returned.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount Defendant has been deposited with the Escrow Agent;
(c) Defendants have not exercised their its option to terminate the Stipulation Settlement Agreement pursuant to ¶8.4 hereof;¶ 4.3,
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(eb) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fc) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.14.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 10.2 If all of the conditions specified in ¶8.1 ¶ 1.14 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof unless Lead Class Counsel and Defendant’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that10.3 Within fourteen (14) days after the Opt-Out Date, upon the occurrence Settlement Administrator shall furnish to Class Counsel and to Defendant’s counsel a complete list of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, timely and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all valid requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate (the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. “Opt-Out List”).
10.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation Agreement or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, releases set forth in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is ¶ 6.1 above are not approved by the Court or the Settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or Service Awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, Defendant shall be obligated to pay amounts already billed or incurred for costs of notice to the Class, Settlement Administration, and Dispute Resolution pursuant to ¶¶ 2.4, 3.2, 9.1-9.4 above and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties, Defendant’s Counsel, Class Counsel, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesPlaintiff’s Counsel, have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereofSettlement Class and a Final Approval Hearing, as provided in the Washington Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final; and
(e) Any appeals arising out of this Class Settlement are completed, including by objectors, or, if no appeal is pursued, the time period in which such appeal could be noticed has expired.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its termsthe terms of the Agreement, then this Agreement shall be canceled and terminated subject to Paragraph 6 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the terms hereof, any other Party, provided that such other Party is in substantial compliance with the terms of this Agreement, may terminate this Agreement upon written notice to all of the Parties, except that any attempted termination of this Agreement after the Preliminary Approval Order is entered will not take effect without an order of the Court, and that this Agreement may not be terminated after Final Judgment is entered without an order of the Court vacating the Final Judgment or an order of any appellate court reversing or vacating the Final Judgment. Notwithstanding anything herein, the Settling Parties agree that the Court’s failure to approve, in whole or in part, the Fee & Cost Award and/or the Service Award set forth in Paragraph 8 above shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1-6.2 or 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tuncvacated by the Court, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Agreement had never been entered into.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1. The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Preliminary Approval Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof¶ 3.1;
(eb) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fc) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.15.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished9.2. If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.3 unless Lead Proposed Class Counsel and Defendants counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last9.3. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation as if the Agreement had never been entered into (and without prejudice to any of August 16the Parties respective positions on the issue of class certification or any other issue) and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as to avoid prejudice to any Settling Party, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 Settlement Agreement shall be void and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, including but not limited to ¶ 9.4, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, attorneys fees and expenses, and interest awarded by litigation costs or expenses and/or the Court to Lead Counsel or Plaintiffs service award shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, Defendants shall be obligated to pay amounts already billed or incurred for costs of Notice and Claims Administration and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
9.4. This Settlement Agreement may be terminated and/or cancelled by any of the Parties if (i) the Court rejects, materially modifies, materially amends, or changes, or declines to preliminarily approve or finally approve the Settlement Agreement apart from the award of attorneys fees and expenses; (ii) an appellate court reverses the Preliminary Approval Order and/or Judgment, and the Settlement Agreement is not reinstated and finally approved without material change by the Court on remand; or (iii) the Court or any reviewing appellate court incorporates material terms or provisions into, or deletes or strikes material terms or provisions from, or materially modifies, amends, or changes, the proposed Preliminary Approval Order, the Preliminary Approval Order, the proposed Judgment, the Judgment, or the Settlement Agreement, other than the amount of attorneys fees and expenses.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs subject to the provisions in Section 1.12:
(a) execution of a. This Agreement has been signed by the Stipulation Parties, Class Counsel and such other documents as may be required Defendant’s Counsel;
b. The Court has entered a Preliminary Approval Order approving the Agreement;
c. The Court has entered a Final Approval Order finally approving the Agreement, or a judgment substantially consistent with this Settlement Agreement that has become final and unappealable, following Notice to obtain the Settlement Class and a Final Approval Hearing; and
d. In the event that the Court enters an approval order and final Court approval of the Stipulation judgment in a form satisfactory other than that provided above (“Alternative Approval Order”) to which the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants Parties have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderconsented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Section 9.3, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive award to the Class Representative, regardless of the amounts awarded, shall not prevent the Settlement Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Settlement Agreement had never been entered into.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 12.1 The Parties’ willingness to settle this Litigation on a class-action basis and to agree to the accompanying certification of the Settlement Class for settlement purposes is dependent on achieving finality in this Litigation and the desire to avoid the expense of this and other litigation. Consequently, the Settling Parties have the right to terminate this Settlement Agreement, declare it null and void, with no further obligations under this Settlement Agreement, unless each of the following conditions occur:
a) The Court has entered a Preliminary Approval Order;
b) The Court enters a Final Approval Order; and
c) The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth aboveoccurred; and
(fd) The number of Opt-Outs is fewer than the Judgment has become Final, as defined agreed upon threshold of the Settlement Class Members in ¶1.10 hereofParagraph 7.5.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 12.2 If all of the conditions specified in ¶8.1 hereof ¶ 12.1 are not metfully satisfied and the Effective Date does not occur, then the Stipulation shall this Settlement Agreement may be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and by any Settling Party by serving on counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, opposing Party and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed filing with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or within 14 calendar days’ notice before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. becoming effective.
12.3 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement set forth in the Stipulation Agreement is terminated or fails to become effective in accordance with its terms, the terms of ¶ 12.2: (a) the Settling Parties shall be restored to their respective positions in the Action Litigation that existed prior to August 11, 2023 and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as to avoid prejudice to any Settling Party or litigant, which extension shall be subject to the decision of August 16, 2019. In such event, the Court; and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement, including certification of the Settlement Class for settlement purposes only, shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneysrequested Attorneys’ fees, costs, Fees and expenses, and interest awarded by the Court Expenses Award to Lead Settlement Class Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in accordance with its termsParagraphs 6.1 and 9.1-9.2 above, the Settling Parties shall be restored to their respective positions in the Action as of August 16the date of the signing of this Agreement, 2019unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with the Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid or payable and less any taxes and tax expenses paid, due or owing, shall be required refunded by the Settlement Administrator to present Defendant based upon written instructions provided by Defendant’s Counsel. In the event that the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an amended trial schedule appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days repay to Defendant based upon written instructions provided by Defendant’s Counsel, the Court. No order full amount of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees and costs paid to Class Counsel from the Settlement Fund, costs, including any accrued interest. In the event the attorneys’ fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Lead Defendant based upon written instructions provided by Defendant’s Counsel, the attorneys’ fees and costs paid to Class Counsel and/or Class Representatives from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, including any accrued interest.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of This Agreement has been signed by the Stipulation Parties, Class Counsel and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesDefendant’s Counsel;
(b) The Court has entered an order granting Preliminary Approval of the Settlement Amount has been deposited with the Escrow AgentAgreement;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment substantially consistent with this Agreement; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an order and final judgment in a form other than that provided above (“Alternative Judgment”) and that has the consent of the Parties, such Alternative Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Paragraph 9.3 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above, regardless of the amount awarded, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1, 9.1, or 9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Agreement had never been entered into.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1. The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation 9.1.1. The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the 9.1.2. The Court has entered the Notice Preliminary Approval Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the 9.1.3. The Court has entered an order finally approving the Judgment thatAgreement, inter alia, dismisses with prejudice following Notice to the ActionSettlement Class and a Final Approval Hearing, as to Plaintiffs provided in the Federal Rules of Civil Procedure, and has entered the DefendantsFinal Judgment, as set forth aboveor a judgment consistent with this Agreement in all material respects; and
(f) the 9.1.4. The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an order and final judgment in a form other than that provided above (“Alternative Judgment”) and that has the consent of the Parties, such Alternative Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished9.2. If some or all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then or in the Stipulation shall be canceled and terminated subject to ¶8.5 hereof event that this Agreement is not approved by the Court, or the settlement set forth
6.1 unless Lead Class Counsel and counsel for Defendants Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settlement.
8.3 The Settling Parties expect thatterms hereof and fails to cure such material breach within 30 days of notice, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement upon the occurrence of notice to all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissalSettling Parties.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental 9.3. If this Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective for the reasons set forth in accordance with its termsParagraphs 6.1 and 9.1-9.2 above, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Agreement had never been entered into.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1. The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Preliminary Approval Order, substantially as described in the form of Exhibit A hereto, as required by ¶4.1 hereof¶ 3.1;
(eb) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fc) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.13.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished9.2. If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.3 unless Lead Proposed Class Counsel and Systems East’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last9.3. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation as if the Agreement had never been entered into (and without prejudice to any of August 16the Parties’ respective positions on the issue of class certification or any other issue) and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as to avoid prejudice to any Settling Party, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 Settlement Agreement shall be void and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, including but not limited to ¶ 9.4, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, fees and expenses, and interest awarded by litigation costs or expenses and/or the Court to Lead Counsel or Plaintiffs service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, Systems East shall be obligated to pay amounts already billed or incurred for costs of Notice and Claims Administration and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
9.4. This Settlement Agreement may be terminated and/or cancelled by any of the Parties if (i) the Court rejects, materially modifies, materially amends, or changes, or declines to preliminarily approve or finally approve the Settlement Agreement apart from the award of attorneys’ fees and expenses; (ii) an appellate court reverses the Final Approval Order and/or Judgment, and the Settlement Agreement is not reinstated and finally approved without material change by the Court on remand; or (iii) the Court or any reviewing appellate court incorporates material terms or provisions into, or deletes or strikes material terms or provisions from, or materially modifies, amends, or changes, the proposed Preliminary Approval Order, the Preliminary Approval Order, the proposed Judgment, the Judgment, or the Settlement Agreement, other than the amount of attorneys’ fees and expenses.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Settling Parties. Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, the attorneys’ fees payment to Class Counsel and/or the service award set forth in Paragraph 8 above shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1 and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16the date of the signing of this Agreement, 2019unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with the Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.the
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this
9.3 If this Agreement is terminated or fails to become effective for the Settling reasons set forth in Paragraphs 6.1 or 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid or payable and less any taxes and tax expenses paid, due or owing, shall be required refunded by the Settlement Administrator to present Defendant or Defendant’s insurers, based upon written instructions provided by Defendant’s Counsel. In the event Defendant terminates this Agreements because of Plaintiffs or Class Counsel breach of this Agreement, Class Counsel shall refund to Defendant, based upon written instructions provided by Defendant’s Counsel, any Settlement Administration costs actually incurred prior to termination. In the event that the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an amended trial schedule appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days repay to Defendant or Defendant’s insurers, based upon written instructions provided by Defendant’s Counsel, the Court. No order full amount of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees and costs paid to Class Counsel from the Settlement Fund, costs, including any accrued interest. In the event the attorney fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Lead Defendant or Defendant’s insurers, based upon written instructions provided by Defendant’s Counsel, the attorneys’ fees and costs paid to Class Counsel and/or Class Representative from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, including any accrued interest.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) 9.1.1. the Court has entered the Notice Preliminary Approval Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereofSection 3.1;
(e) 9.1.2. the Court has entered the Judgment that, inter alia, dismisses with prejudice granting Final Approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(f) 9.1.3. the Judgment has become Final, as defined in ¶1.10 hereofSection 1.10.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 Section 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof Section 9.4 unless Lead Class Counsel and counsel for Defendants UNITE HERE mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before 9.3 Within seven (7) business days after the receipt Opt-Out Date, the Settlement Administrator shall furnish to Class Counsel and to counsel for UNITE HERE a complete list of all of the copies of the timely and valid requests for exclusion, on or before ten exclusion (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. “Opt-Out List”).
9.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation Agreement or the amount of attorneys’ feesreleases set forth in Sections 6.1, expenses 6.2, and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered 6.3 above are not approved by the Court, in the event the Stipulation shall terminateeither preliminarily or finally, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, : (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled Litigation deadlines be reasonably extended by the Court so as of August 16, 2019. In such event, to avoid prejudice to any Settling Party or Settling Party’s counsel; (ii) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, ; and (iii) any Judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service award shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, UNITE HERE shall be obligated to pay amounts already billed or incurred by the Settlement Administrator, as of the date the Court denies preliminary or final approval, for costs of notice to the Settlement Class and for Settlement Administration, and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs subject to the provisions in Paragraph 1.9:
(a) execution of a. This Agreement has been signed by the Stipulation Parties, Class Counsel, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesDefendants’ Counsel;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the b. The State Court has entered the Notice Preliminary Approval Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) c. The State Court has finally approved the Court Settlement, following Notice to the Settlement Class and a Final Approval Hearing, and has entered the Judgment thatFinal Approval Order, inter aliaor an order and judgment materially identical to the Final Approval Order, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth abovesuch order and judgment has become final and unappealable; and
d. In the event that the State Court enters an approval order and final judgment in a form other than that provided above (f“Alternative Approval Order”) to which the Judgment Parties have consented, that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court State Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Paragraph 9.4, unless Class Counsel and Defendants’ Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the State Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the Incentive Award to the Class Representative, regardless of the amounts awarded, shall not prevent the Settlement Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3 If, prior to the Final Approval Hearing, the number of members of the Settlement Class who have timely submitted requests for exclusion from the Settlement Class in accordance with the provisions of the Preliminary Approval Order and the Notice given pursuant thereto exceeds 2,271 (which is one-half of one percent (.5%) of the highest estimated size of the Settlement Class of 454,219), Defendants shall have, in their sole and absolute discretion, the option to terminate this Agreement. Defendants may terminate the Agreement by filing a Termination Notice with the State Court and serving such Termination Notice on Class Counsel by hand delivery or overnight courier within ten (10) business days after being informed in writing by the Settlement Administrator that requests for exclusion have been timely filed in a number that exceeds 2,271, .5% of the upper range of the estimated size of the Settlement Class.
9.4 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the Federal Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the State Court in accordance with the terms of the Stipulation this Agreement, including, but not limited to, class certification, shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their the Federal Action as if this Settlement Agreement had never been entered into. To be returned to the status as of August 16, 2019quo with respect to the Federal Action means the Parties agree to jointly move to dismiss the State Action without prejudice, and shall be required to present an amended trial schedule to jointly move the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Federal Court to Lead Counsel or Plaintiffs shall constitute grounds lift the stay on the proceedings in the Federal Action and to rule on the Defendants’ pending motion for cancellation or termination of the Stipulationsummary judgment.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 7.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) CSG or its insurers, on behalf of Defendants, have deposited the Settlement Amount has been deposited Fund with the Escrow Agent;
(c) the Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 ¶7.3 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 ¶3.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, Action as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 7.2 Upon the occurrence of all of the events referenced in ¶8.1 ¶7.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 ¶7.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 ¶7.4 hereof unless Co-Lead Counsel and counsel for the Defendants mutually agree in writing to proceed with the Settlement.
8.3 7.3 The Settling Parties expect that, upon Defendants shall have the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate option to seek such dismissal.
8.4 If, prior to terminate the Settlement Hearing, Persons who otherwise would be members in the event that Class Members representing more than a certain number of the Class have timely requested exclusion CSG securities subject to this Settlement choose to exclude themselves from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant theretoSettlement Class, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified as set forth in a separate Supplemental Agreement Regarding Requests for Exclusion agreement (the “Supplemental Agreement”) executed between Lead Plaintiffs and Camping Worldthe Defendants. If the Court requires that the Supplement Agreement be filed, Camping World it shall have the sole option to terminate this Stipulation and Settlement in accordance be filed under seal with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the ClassCourt.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 7.4 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for the Defendants or Co-Lead CounselCounsel to the Escrow Agent, the Settlement Fund (including accrued interestinterest and income), less expenses which have either been incurred or disbursed for notice and administration costs pursuant to ¶¶3.7 ¶2.1, or 3.8 pursuant to ¶2.6 hereof, shall be refunded to CSG and its insurers pursuant to written instructions from DefendantsCSG’s counsel, which instructions shall reflect CSG’s and its insurers’ counselrespective contributions to the Settlement Fund, as well as repayment of their respective pro rata shares of any interest and income. At the request of counsel for the Defendants, the Escrow Agent or their designee its designees shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of counsel to the Defendants’ counsel.
8.7 7.5 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.281.20, 3.72.4, 2.6, 2.7, 6.2, 7.4-3.9, 7.2, 8.47.5 and 8.3-8.6 and 9.3-9.5 8.4 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16January 6, 20192011, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation Distribution or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Co-Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs:
(a) execution a. This Agreement has been signed by the Parties and Class Counsel;
b. The District Court has entered an order granting Preliminary Approval of the Stipulation Agreement;
c. The Bankruptcy Court enters final and such other documents unappealable orders approving the Bankruptcy Settlements;
d. The Settlement Fund is fully funded with Nine Hundred Twenty Thousand Dollars ($920,000.00);
e. The District Court has entered an order finally approving the Agreement, following Notice to the Settlement Class and a Final Approval Hearing, as may be required to obtain provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment substantially consistent with this Settlement Agreement that has become final and unappealable; and
f. In the event that the District Court approval of the Stipulation enters an order and final judgment in a form satisfactory other than that provided above (“Alternative Judgment”) to which the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants Parties have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderconsented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the that Alternative Judgment has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court District Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Section 9.3, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the District Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive award to the Class Representatives, regardless of the amounts awarded, shall not prevent the Settlement Agreement from becoming effective, nor shall they be grounds for termination of the Agreement.
9.3 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the Action as of August 16the date of the signing of this Agreement, 2019and Defendant’s entry into the Settlement Agreement shall not be considered, in any way, as an admission concerning liability or the propriety of class certification. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the District Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Settlement Agreement had never been entered into.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount Defendant has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation Settlement Agreement pursuant to ¶8.4 hereof¶ 4.3;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(eb) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs settlement and certification of the Defendants, Class as set forth aboveherein; and
(fc) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.13.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 10.2 If all of the conditions specified in ¶8.1 ¶ 1.13 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof unless Lead Class Counsel and Defendant’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that10.3 Within 10 days after the Opt-Out Date, upon the occurrence Settlement Administrator shall furnish to Class Counsel and to Defendant’s counsel a complete list of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, timely and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all valid requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate (the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. “Opt-Out List”).
10.4 In the event that the Camping World serves a written notice of termination pursuant to Settlement Agreement including the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is releases are not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party or Settling Party’s counsel, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, Defendant shall be obligated to pay amounts already billed or incurred for costs of notice to the Class, Settlement Administration, and Dispute Resolution and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until ten (10) days after each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined in ¶1.10 hereofabove, or, if the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental if this Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to paragraph 6.1 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is
9.3 If this Agreement is terminated or fails to become effective for the Settling reasons set forth in paragraphs 6.1 or 6.2 and/or 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the moment just prior to the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid or payable and less any taxes and tax expenses paid, due or owing, shall be required refunded by the Settlement Administrator to present Defendant, based upon written instructions provided by Defendant’s Counsel. If the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an amended trial schedule appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days repay to Defendant, based upon written instructions provided by Defendant’s Counsel, the Court. No order full amount of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees and costs paid to Class Counsel from the Settlement Fund, costs, plus interest. If the attorney fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Lead DocuSign Envelope ID: C942345B-F242-41E4-A1EA-ABFF0BD1F4E5 Defendant, based upon written instructions provided by Defendant’s Counsel, the attorneys’ fees and costs paid to Class Counsel and/or Class Representative from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, plus interest.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1. The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Order of Preliminary Approval and Publishing of Notice Order, substantially in the form of Exhibit A heretoa Final Fairness Hearing, as required by ¶4.1 hereof¶ 3.1;
(eb) PTHC has not exercised its option to terminate the Settlement Agreement pursuant to ¶ 4.4;
c) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.14.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished9.2. If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.3 unless Lead Proposed Class Counsel and PTHC’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 9.3. The Settling Parties expect thatagree for the purposes of this Settlement Agreement only, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members certification of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs lastClass. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (a) the Settling Parties shall be restored to their respective positions in the Action Litigation as if the Agreement had never been entered into (and without prejudice to any of August 16the Parties respective positions on the issue of class certification or any other issue) and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as to avoid prejudice to any Settling Party or Settling Party’s counsel, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 Settlement Agreement shall be void and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, including but not limited to ¶ 9.4, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, attorney’s fees and expenses, and interest awarded by litigation costs and/or the Court to Lead Counsel or Plaintiffs service award shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. The Parties’ agreement to the certification of the Class and the Settlement Class is also without prejudice to any position asserted by the Parties in any other proceeding, case or action, as to which all other rights are specifically preserved. Further, notwithstanding any statement in this Settlement Agreement to the contrary, PTHC shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class and Claims Administration and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
9.4. This Settlement Agreement may be terminated and/or cancelled by any of the Parties if (i) the Court rejects, materially modifies, materially amends, or changes, or declines to preliminarily approve or finally approve the Settlement Agreement apart from the award of attorneys’ fees and costs; (ii) an appellate court reverses the Preliminary Approval Oder and/or Judgment, and the Settlement Agreement is not reinstated and finally approved without material change by the Court on remand; or (iii) the Court or any reviewing appellate court incorporates material terms or provisions into, or deletes or strikes material terms or provisions from, or materially modifies, amends, or changes, the proposed Preliminary Approval Order, the Preliminary Approval Order, the proposed Judgment, the Judgment, or the Settlement Agreement, other than the amount of attorneys’ fees and costs.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 12.1. The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of 12.1.1. This Agreement has been signed by the Stipulation Parties, Class Counsel, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesDefendants’ counsel;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the 12.1.2. The Court has entered the Notice Preliminary Approval Order;
12.1.3. The Court has entered an order finally approving the Settlement Agreement, substantially following notice to the Settlement Class and a Final Approval Hearing, as provided in the form Federal Rules of Exhibit A hereto, as required by ¶4.1 hereofCivil Procedure;
(e) 12.1.4. The Court has certified the Class in accordance with the Class definition in this Agreement;
12.1.5. The Court has entered the Judgment thatFinal Judgment, inter alia, dismisses or a judgment substantially consistent with prejudice the Action, as to Plaintiffs and the Defendants, as set forth abovethis Agreement; and
(f) the 12.1.6. The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an order and final judgment in a form other than that provided above (“Alternative Judgment”) to which the Parties have consented, that Alternative Judgment has become Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished12.2. If some or all of the conditions specified in ¶8.1 hereof Paragraph 12.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the this Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 10.1, unless Class Counsel and Defendants’ Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above, regardless of the amounts awarded, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
12.3. If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 10.1, 12.1, or 12.2 above, no party will be estopped as a result of the termination, and the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order status quo ante with respect to the Action as if this Agreement had never been entered into and, pursuant to Paragraph 13.4 below, this Agreement shall not be used for any purpose whatsoever against any of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationParties.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1. The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs:
(a) execution of this Agreement has been signed by the Stipulation Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesClass Counsel;
(b) the Settlement Amount Court has been deposited with entered an order granting Preliminary Approval of the Escrow AgentAgreement;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;Court has entered a Final Approval Order finally approving the Agreement, or a judgment substantially consistent with this Settlement Agreement that has become final and unappealable, following Notice and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure; and
(d) in the event that the Court has entered enters an approval order and final judgment in a form other than that provided above (“Alternative Approval Order”) to which the Notice OrderParties have consented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished9.2. If some or all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the this Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 9.3, unless Class Counsel and Defendants’ Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive award to the Class Representatives, regardless of the amounts awarded, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3. If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1, 9.1, or 9.2, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date this Agreement is fully executed. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, as if this Agreement had never been entered into.
9.4. In the event the Settlement is terminated or fails to become effective for any reason, the Settlement Fund, together with any earnings thereon at the same rate as earned, less any taxes paid or due, and less Settlement Administrative Expenses actually incurred and paid or payable from the Settling Parties Settlement Funds, shall be deemed returned to return to their status as Defendant within thirty (30) calendar days after written notification of August 16such event, 2019, and shall be required to present an amended trial schedule in accordance with instructions provided by Defendant’s Counsel to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationSettlement Administrator.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on means one (1) business day after the occurrence of all of the following events:
: (ai) execution the settlement pursuant to this Settlement Agreement is approved by the Court; and (ii) the time to appeal or seek permission to appeal from the Final Approval Order has expired or, if appealed, the appeal has been dismissed in its entirety, or the Final Approval Order has been affirmed in its entirety by the court of last resort to which such appeal may be taken, and such dismissal or affirmance has become no longer subject to further appeal or review. Notwithstanding the above, any order modifying or reversing any Attorneys’ Fees and Expense Award or Service Award made in this case shall not affect the calculation of the Stipulation and such other documents as may be required to obtain final Effective Date.
9.2 If the Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) does not approve the Settlement Amount has been deposited with Agreement or the Escrow Agent;
(c) Defendants have Effective Date does not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderoccur for any reason, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.5 unless Lead Class Counsel and Defendant’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before 9.3 Within seven (7) business days after the receipt Opt-Out Date, the Claims Administrator shall furnish to Class Counsel and to Defendant’s counsel a complete list of all of the copies of the timely and valid requests for exclusionexclusion (the “Opt-Out List”).
9.4 In the event that the Settlement Agreement or the releases set forth in ¶¶ 6.1, on or before ten (10) business days after 6.2, and 6.3 above are not approved by the Court grants additional time for exclusion Court, the Effective Date does not occur for any reason, or on or before three (3) business days before the settlement set forth in the Settlement Hearing, whichever occurs last. In Agreement is terminated in accordance with its terms,
(i) the event Parties shall be restored to their respective positions in the Litigation and shall jointly request that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination all scheduled litigation deadlines be reasonably extended by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior so as to the Settlement Hearingavoid prejudice to any Party or Party’s counsel, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure terms and provisions of the Effective Date Settlement Agreement shall have no further force and effect with respect to occur the Parties and shall not be used in the Litigation or in any other proceeding for any reasonpurpose, and any judgment or order entered by the Court in accordance with the terms of the Settlement Agreement shall be treated as vacated, nunc pro tunc. For avoidance of doubtNotwithstanding any statement in this Settlement Agreement to the contrary, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or reducing the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, the Settlement Fund shall be used to pay any Costs of Claims Administration that have already been incurred by the Claims Administrator, and the remaining Settlement Fund shall be paid back to Defendant.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1. The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of This Agreement has been signed by the Stipulation Parties, Class Counsel and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesDefendant CCL’s Counsel, Defendant VOMT’s Counsel, and Defendant ▇▇▇▇▇▇▇’▇ Counsel;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Settlement Agreement, following notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment substantially consistent with this Agreement; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an order and final judgment in a form other than that provided above (“Alternative Judgment”) to which the Parties have consented, that Alternative Judgment has become Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished9.2. If some or all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the this Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 9.3, unless Class Counsel and Defendants’ Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive award to the Class Representatives, regardless of the amounts awarded, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3. If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1, 9.1, or 9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order status quo ante with respect to the Action as if this Agreement had never been entered into and, pursuant to Paragraph 10.4 below, this Agreement shall not be used for any purpose whatsoever against any of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationParties.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount Defendant has been deposited with the Escrow Agent;
(c) Defendants have not exercised their its option to terminate the Stipulation Settlement Agreement pursuant to ¶8.4 hereof;¶ 4.3,
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(eb) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fc) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.12.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 10.2 If all of the conditions specified in ¶8.1 ¶ 1.12 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof unless Lead Class Counsel and Defendant’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that10.3 Within fourteen (14) days after the Opt-Out Date, upon the occurrence Settlement Administrator shall furnish to Class Counsel and to Defendant’s counsel a complete list of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, timely and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all valid requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate (the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. “Opt-Out List”).
10.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation Agreement or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, releases set forth in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is ¶ 6.1 above are not approved by the Court or the Settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or Service Awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, Defendant shall be obligated to pay amounts already billed or incurred for costs of notice to the Class, Settlement Administration, and Dispute Resolution pursuant to ¶¶ 2.4, 3.2, 9.1-9.4 above and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 7.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 ¶7.3 hereof;
(dc) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 ¶3.1 hereof;
(ed) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(fe) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 7.2 Upon the occurrence of all of the events referenced in ¶8.1 ¶7.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 ¶7.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 ¶7.4 hereof unless Lead Counsel and counsel for Defendants on behalf of their respective clients mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, 7.3 If Persons who otherwise would be members of the Class have timely and validly requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in if the aggregate purchased or otherwise acquired a total number of shares of Camping World JCPenney common stock and shares underlying exchange-traded call options on JCPenney common stock purchased or acquired, or exchange-traded put options sold, by such Persons during the Class Period in equals or exceeds an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping WorldDefendants, Camping World then Defendants shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World Defendants concerning its their interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel within the sooner of two (2) days of Lead Counsel’s receipt or seven (7) days prior to the Settlement Hearing. Camping World JCPenney may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven ten (710) business days after the receipt of all of the copies of the deadline for requests for exclusion, on or before ten five (105) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World JCPenney serves a written notice of termination pursuant to the Supplemental Agreementtermination, Camping World JCPenney may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Central Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 7.4 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five fourteen (514) business days after written notification of such event is sent by counsel for Defendants or Lead Counselto the Escrow Agent, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 ¶¶2.7 or 3.8 2.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their its designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 7.5 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16April 20, 20192017. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.281.26, 3.7-3.92.8- 2.9, 7.2, and 8.4-8.6 and 9.3-9.5 8.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16April 20, 2019, and shall be required to present an amended trial schedule to the Court2017. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, fees and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.
7.6 JCPenney warrants and represents that, as of the time this Stipulation is executed and as of the time the Settlement Amount is actually transferred or made as reflected in this Stipulation, it is not “insolvent” within the meaning of 11 U.S.C. §101(32). If, before the Settlement becomes Final, JCPenney files for protection under the Bankruptcy Code, or any similar law, or a trustee, receiver, conservator, or other fiduciary is appointed under bankruptcy, or any similar law, and in the event of the entry of a final order of a court of competent jurisdiction determining the transfer of money or any portion thereof to the Escrow Agent by or on behalf of JCPenney to be a preference, voidable transfer, fraudulent transfer or similar transaction and any portion thereof is required to be returned, and such amount is not promptly deposited with the Escrow Agent by others, then, at the election of Lead Plaintiff, the Settling Parties shall jointly move the Court to vacate and set aside the release given and the Judgment entered in favor of the Defendants and that the Defendants and Plaintiffs and the members of the Class shall be restored to their litigation positions as of April 20, 2017.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 7.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents Court has entered the Preliminary Approval Order, as may be required to obtain final Court approval of by ¶3.1 hereof, substantially in the Stipulation form set forth in a form satisfactory to the Settling PartiesExhibit A attached hereto;
(b) the Settlement Amount has been deposited with into the Escrow AgentAccount;
(c) the Settling Defendants have not exercised their option to terminate the Stipulation Settlement pursuant to ¶8.4 ¶7.3 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth aboveJudgment; and
(fe) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 7.2 Upon the occurrence of all of the events referenced in ¶8.1 hereofEffective Date, any and all remaining interest or right of the Settling Defendants or the Settling Defendants’ insurers in or to the Settlement FundAmount, if any, shall be absolutely and forever extinguishedextinguished and the releases herein shall be effective. If all of the conditions specified in ¶8.1 ¶7.1 hereof are not met, then the Stipulation Settlement shall be canceled and terminated subject to ¶8.5 ¶7.4 hereof unless Lead Counsel and counsel for the Settling Defendants mutually agree in writing to waive any condition that has not been satisfied and proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all 7.3 Any of the events referenced Settling Defendants, and only the Settling Defendants, shall have the option to terminate the Settlement as to himself (in ¶8.1 hereof, the action captioned case of ▇▇▇▇) or themselves (in the case of ▇▇▇▇▇▇▇ and ▇▇▇▇▇) if:
(a) the Court declines to approve the proposed settlement of the ▇▇▇▇▇▇ v. Camping WorldLitigation or the settlement of the ▇▇▇▇▇▇ Litigation is otherwise terminated, et al., No. 2019-CH-02404 provided that any Settling Defendant electing to terminate the Settlement pursuant to this subparagraph notifies Lead Counsel and the Escrow Agent in writing of such termination within thirty (Ill. Cir. Ct. Cook Cty.30) will be subsequently dismisseddays of the ▇▇▇▇▇▇ Litigation settlement’s disapproval or termination, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to termination shall have no effect on the Settlement Hearing, Persons who otherwise would be members of as to any Settling Defendant(s) not opting to terminate the Class have timely requested Settlement pursuant to this subparagraph; or
(b) valid requests for exclusion from the Class in accordance with exceed the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons criteria set forth in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (the “Supplemental AgreementOpt Out Threshold”) executed between Plaintiffs and Camping Worldthe Settling Defendants through their respective counsel concurrently with this agreement. The terms of the Supplemental Agreement shall not be disclosed in any other manner other than the statements herein and in the Notice, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth or as otherwise provided in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court , unless and until the Court otherwise directs or a dispute arises between Plaintiffs and Camping World the Settling Defendants concerning its interpretation or application arises. Copies application; provided, however, that the Settling Defendants may include a copy of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement with the Opt Out Threshold redacted in the CAFA Notice. If submission of the Supplemental Agreement to the Court is required for resolution of a dispute or is otherwise ordered by serving written notice of termination the Court, the Settling Parties will undertake to have the Court review the Supplemental Agreement in camera without filing it on the docket. If the Court and Lead Counsel on requires that the Supplemental Agreement be filed, the Settling Parties shall request that it be filed under seal or before seven (7) business days after with the receipt of all of Opt Out Threshold redacted.
7.4 Unless otherwise ordered by the copies of Court, if the requests for exclusionSettlement is not approved by the Court or the Settlement is terminated, on canceled, or before the Effective Date otherwise fails to occur, within ten (10) business calendar days after written notification of such event is sent by Settling Defendants’ Counsel or Lead Counsel to the Court grants additional time for exclusion Escrow Agent, the Settlement Fund (including accrued interest), less Taxes, Tax Expenses, and Notice and Administration Expenses which have either been disbursed pursuant to ¶¶2.9 and 2.10 hereof, or are chargeable to the Settlement Fund pursuant to ¶¶2.9 and 2.10 hereof, shall be refunded by the Escrow Agent pursuant to written instructions from the respective Settling Defendants’ Counsel. The Escrow Agent or its designee shall apply for any reason, or tax refund owed on or before three (3) business days before the Settlement HearingAmount and pay the proceeds, whichever occurs lastafter deduction of any fees or expenses incurred in connection with such application(s) for refund, pursuant to written instructions from the Settling Defendants’ Counsel. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination any funds received by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior consistent with ¶6.3 have not been refunded to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so Fund within ten (“Termination Notice”) to all other parties hereto within thirty (3010) calendar days of: specified in this paragraph, those funds shall be refunded by the Escrow Agent to the Settling Defendants (aor such other Persons as Settling Defendants may direct) immediately upon their deposit into the Court’s refusal to enter Escrow Account consistent with ¶6.3.
7.5 If the Notice Order; (b) Settlement is not approved by the Court’s refusal to approve Court or the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment Settlement is reversed or vacated or altered following an appeal taken therefromterminated, canceled, or is successfully collaterally attacked; or (e) the failure of the Effective Date otherwise fails to occur occur, the Settling Parties shall be restored to their respective positions in the Litigation as of June 4, 2021 (as to Settling Defendant ▇▇▇▇), and June 18, 2021 (as to Settling Defendants ▇▇▇▇▇▇▇ and ▇▇▇▇▇), accordingly. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶2.8-2.11, 6.3-6.5, 7.4-7.6, and 8.5-8.6 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Litigation or in any other proceeding for any reasonpurpose, and any judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc. For avoidance of doubt, no No order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, expenses expenses, and interest awarded by the Court to Lead any of Plaintiffs’ Counsel or costs or awards expenses to the Plaintiffs shall operate to terminate or cancel this Stipulation the Settlement or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, 7.6 If the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in is terminated, canceled, or the Stipulation is terminated or Effective Date otherwise fails to become effective in accordance with its termsoccur, neither Plaintiffs nor any of their counsel shall have any obligation to repay any amounts disbursed pursuant to ¶¶2.9 or 2.10. In addition, any expenses already incurred pursuant to ¶¶2.9 or 2.10 hereof at the Settling Parties time of such termination or cancellation but which have not been paid, shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered paid by the Court Escrow Agent in accordance with the terms of the Stipulation prior to the balance being refunded in accordance with ¶¶2.11 and 7.4 hereof.
7.7 The Settling Defendants warrant and represent that they are not “insolvent” within the meaning of 11 U.S.C. §101(32) as of the time the Stipulation is executed. This representation is made by the Settling Defendants and not by Settling Defendants’ Counsel. In the event of a Final order of a court of competent jurisdiction, not subject to any further proceedings, determining the transfer of the Settlement Fund, or any portion thereof, by or on behalf of the Settling Defendants to be a voidable preference, voidable transfer, fraudulent transfer, or similar transaction under Title 11 of the United States Code (Bankruptcy), or applicable state law, and any portion thereof is required to be refunded and such amount is not promptly deposited in the Settlement Fund by or on behalf of the Settling Defendants, then, at the election of Plaintiffs, the Settlement may be terminated and the Judgment entered in favor of the Settling Defendants pursuant to the Settlement shall be treated as vacatednull and void. Alternatively, nunc pro tuncat the election of Plaintiffs, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by jointly move the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination vacate and set aside the release given and the Judgment entered in favor of the StipulationSettling Defendants and that the Settling Defendants and Plaintiffs and the Members of the Class shall be restored to their litigation positions as of June 4, 2021 (as to Settling Defendant ▇▇▇▇) and June 18, 2021 (as to Settling Defendants ▇▇▇▇▇▇▇ and ▇▇▇▇▇), accordingly, and the Settlement Fund, less any amounts disbursed or incurred pursuant to ¶2.9 and ¶2.10, shall be promptly returned.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1. The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to This Agreement has been signed by the Settling Parties, Class Counsel and Hearst’s Counsel;
(b) The Court has entered an order granting Preliminary Approval of the Settlement Amount has been deposited with the Escrow AgentAgreement;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Settlement Agreement, following notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment substantially consistent with this Agreement; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an order and final judgment in a form other than that provided above (“Alternative Judgment”) to which the Parties have consented, that Alternative Judgment has become Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished9.2. If some or all of the conditions specified in ¶8.1 hereof Provision 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the this Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Provision 9.3, unless Class Counsel and Hearst’s Counsel mutually agree in writing to proceed with this Agreement. If any Settling Party is in material breach of the terms hereof, any other Settling Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all other Settling Parties. Notwithstanding anything herein, the Settling Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive award to the Class Representative, regardless of the amounts awarded, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3. If this Agreement is terminated or fails to become effective for the reasons set forth in Provisions 6.1, 6.2, 9.1, or 9.2 above, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order status quo ante with respect to the Action as if this Agreement had never been entered into and, pursuant to Provision 10.4 below, this Agreement shall not be used for any purpose whatsoever against any of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationSettling Parties.
Appears in 2 contracts
Sources: Class Action Settlement Agreement, Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on mean one (1) business day after the occurrence of all of the following events:
: (a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(bi) the Settlement Amount pursuant to this Settlement Agreement is finally approved by the Court; and (ii) the time to appeal or seek permission to appeal from the Final Judgment Order and Judgment has expired or, if appealed, any appeal has been deposited with dismissed in its entirety, or the Escrow Agent;Final Judgment Order has been affirmed in its entirety by the court of last resort to which such appeal may be taken, and such dismissal or affirmance has become no longer subject to further appeal or review. Notwithstanding the above, any order modifying or reversing any Attorneys’ Fees and Expense Award or Service Awards made in this case shall not affect the calculation of the Effective Date.
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) 9.2 If the Court has entered does not approve this Settlement Agreement or the Notice OrderEffective Date does not occur for any reason, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the this Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation Agreement shall be canceled and terminated subject to ¶8.5 hereof Section IV.9.5 unless Lead Class Counsel and ▇▇▇▇▇▇▇▇▇’s counsel for Defendants mutually agree in writing to proceed with the Settlementthis Settlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before 9.3 Within seven (7) business days after the receipt Opt-Out Date, the Settlement Administrator shall furnish to Class Counsel and to Defendant’s counsel the Opt-Out List, including a complete list of all of the copies of the timely and valid requests for exclusion.
9.4 This Settlement Agreement may be terminated and canceled at the sole and exclusive discretion of Defendant if a certain number of individuals within the Settlement Class, previously agreed to in a Confidential Class Action Settlement Term Sheet between the Parties and their counsel, timely and validly opt out of the Settlement Class pursuant to Section IV.4.1, on or before ten (10) business days after the Court grants additional time for ground that such exclusion for any reason, or on or before three (3) business days before would frustrate the essential purpose of this Agreement. Defendant may exercise its right to terminate this Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination Agreement under this paragraph by providing written notice notification to Class Counsel of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their its election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant Administrator has delivered the Opt-Out List to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counselParties.
8.7 In 9.5 Subject to Section IV.9.2, in the event that this Settlement Agreement or the Stipulation is releases set forth herein are not approved by the Court Court, the Effective Date does not occur for any reason, or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, (a) the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties Litigation and shall not jointly request that all scheduled litigation deadlines be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered reasonably extended by the Court in accordance with the terms of the Stipulation shall be treated so as vacatedto avoid prejudice to any Party or Party’s counsel, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.and
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Order of Preliminary Approval and Publishing of Notice Order, substantially in the form of Exhibit A heretoa Final Approval Hearing, as required by ¶4.1 hereof▇▇ ¶ 3.1;
(eb) Barlow has not exercised its option to terminate the Settlement Agreement pursuant to ¶ 4.3;
c) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.14.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.4 unless Lead Counsel Proposed Cl▇▇▇ ▇▇unsel and ▇▇▇▇▇▇s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon 9.3 Within seven (7) days after the occurrence of all of the events referenced in ¶8.1 hereofOpt-Out Date, the action captioned Claims Administrator shall furnish to Proposed Clas▇ ▇▇▇▇sel and to ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired s counsel a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies complete list of all timely and valid requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate (the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. Opt-Out List).
9.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party or Settling Partys counsel, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ attorneys fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agree▇▇▇▇ ▇o the contrary, ▇▇▇▇▇▇ shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class, Claims Administration, and Dispute Resolution above and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 or 6.2 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Parties and Settlement Class Members. Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, the Fee Award to be requested by Class Counsel and/or the Service Award to be requested for the Class Representative, as set forth in Paragraph 8 above, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1 and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.this Agreement
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until ten (10) days after each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined in ¶1.10 hereofabove, or, if the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental if this Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to paragraph 6.1 unless Class Counsel and Defendant's Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Settling Parties. Notwithstanding anything herein, the Parties agree that the Court's failure to approve, in whole or in part, Class Counsel's request for payment of attorneys' fees, costs and/or
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in paragraphs 6.1 or 6.2 and/or 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the moment just prior to the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid or payable and less any taxes and tax expenses paid, due or owing, shall be required refunded by the Settlement Administrator to present Defendant, based upon written instructions provided by Defendant's Counsel. If the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an amended trial schedule appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days repay to Defendant, based upon written instructions provided by Defendant's Counsel, the Court. No order full amount of the Court or modification or reversal on appeal of attorneys' fees and costs paid to Class Counsel from the Settlement Fund, including any such order of accrued interest. If the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, attorney fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Lead Defendant, based upon written instructions provided by Defendant's Counsel, the attorneys' fees and costs paid to Class Counsel and/or Class Representative from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, including any accrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 6.1 The Effective Date of the Stipulation shall be conditioned on upon the occurrence of all of the following events:
(ai) execution the Court’s entry of the Stipulation District Court Approval Order and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesJudgment;
(bii) the Settlement Amount has been deposited payment of the Fee Award in accordance with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 ¶¶5.1-5.2 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(fiii) the Judgment has become Final, as defined in ¶1.10 hereof; and
(iv) Dismissal with prejudice of the State Derivative Action.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, 6.2 If any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof ¶6.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed¶6.4, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action Actions and the Shareholder Demand as of August 16the date immediately preceding the date of this Stipulation, 2019unless Plaintiffs’ Counsel, Shareholder’s Counsel, and Defendants’ Counsel mutually agree in writing to proceed with the Stipulation.
6.3 Each of the Settling Parties shall have the right to terminate the Settlement by providing written notice of their election to do so to all other Settling Parties within twenty (20) calendar days of the date on which: (i) the Court declines to approve this Stipulation, or the terms contained herein, in any material respect; (ii) the Preliminary Approval Order is not entered in substantially the form attached as Exhibit B hereto; (iii) the District Court Approval Order and the Judgment are not entered in substantially the form attached as Exhibits E and F hereto; (iv) the Judgment is reversed or substantially modified on appeal, reconsideration, or otherwise; (v) the Effective Date of the Settlement does not occur; or (vi) the State Derivative Action is not dismissed with prejudice as provided in this Stipulation; except that such right to terminate shall not be exercised by any Settling Party unless and until the Settling Parties have used their best efforts to remedy the issue. Notwithstanding anything herein to the contrary, an 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 cancel the Stipulation, allow for the termination of the Settlement, or affect or delay the finality of the Judgment.
6.4 In the event that the Stipulation is not approved by the Court, or the Settlement is terminated for any reason, including pursuant to ¶6.3 above, all negotiations, proceedings, documents prepared, and statements made in connection herewith shall be without prejudice to the Settling Parties, shall not be deemed or construed to be an admission by any of the Settling Parties of any act, matter, or proposition, and shall not be used in any manner for any purpose in any subsequent proceeding in the Actions, in any other action or proceeding, or in connection with the Shareholder Demand. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.281.38, 3.7-3.95.5, 7.25.6, 6.2, 6.4, 8.4-8.6 , 8.5, 8.10, 8.11, 8.14, 8.15, 8.16, and 9.3-9.5 hereof8.17 of this Section IV, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or the Actions, in any other proceeding proceeding, or in connection with the Shareholder Demand for any purpose, and any Judgment judgment or order orders entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Order of Preliminary Approval and Publishing of Notice Order, substantially in the form of Exhibit A heretoa Final Fairness Hearing, as required by ¶4.1 hereof¶ 3.1;
(eb) Circles has not exercised its option to terminate the Settlement Agreement pursuant to ¶ 4.4;
c) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.12.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.3 unless Lead Proposed Class Counsel and Circles’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. 9.3 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party or Settling Party’s counsel, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, Circles shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class, Claims Administration, and Dispute Resolution above and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs subject to the provisions in Section 1.12:
(a) execution of This Agreement has been signed by the Stipulation Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesClass Counsel;
(b) The Arbitrator has entered the Preliminary Approval Order approving the Settlement Amount has been deposited with the Escrow AgentAgreement;
(c) Defendants have not exercised their option The Arbitrator has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant Settlement Class and a Final Approval Hearing, and has entered the Final Approval Order, or a judgment materially identical to ¶8.4 hereof;the Final Approval Order, and such order or judgment has become final and unappealable; and
(d) In the Court has entered event the Notice Arbitrator enters an approval order and final judgment in a form other than that provided above (“Alternative Approval Order”) to which the Parties have consented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence 9.2 If some of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Arbitrator, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated, unless Class Counsel and Respondent’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Arbitrator’s decision as to the amount of the Fee Award to Class Counsel set forth above or the Individual Consideration to the Class Representative, regardless of the amounts awarded, shall not prevent the Settlement Agreement from becoming effective, nor shall it be grounds for termination of the Agreement—unless the award(s) were to exceed the amounts set forth above as agreed and thereby exceed the Settlement Fund.
9.3 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the this Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court Arbitrator in accordance with the terms of the Stipulation this Settlement Agreement, including, but not limited to, class and/or collective certification, shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Settlement Agreement had never been entered into.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1. The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution the Court has entered the Order of the Stipulation Preliminary Approval and such other documents Publishing of Notice of a Final Fairness Hearing, as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesby ¶ 3.1;
(b) AUS has not exercised its option to terminate the Settlement Amount has been deposited with the Escrow AgentAgreement pursuant to ¶ 4.4;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.11.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished10.2. If all of the conditions specified in ¶8.1 ¶ 10.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 10.4 unless Lead Settlement Class Counsel and AUS’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No10.3. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before Within seven (7) business days after the receipt Opt-Out Date, the Claims Administrator shall furnish to Settlement Class Counsel and to AUS’s counsel a complete list of all of the copies of the timely and valid requests for exclusion, on or before ten exclusion (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last“Opt-Out List”).
10.4. In the event that the Camping World serves a written notice Settlement Agreement is not approved by the Court or the settlement set forth in the Settlement Agreement is terminated in accordance with its terms, (i) the Parties shall be restored to their respective positions in the Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as to avoid prejudice to any Party or its counsel, and (ii) the terms and provisions of termination pursuant the Settlement Agreement shall have no further force and effect with respect to the Supplemental AgreementParties and shall not be used in the Litigation or in any other proceeding for any purpose, Camping World may withdraw its written notice and any judgment or order entered by the Court in accordance with the terms of termination by providing written notice of such withdrawal to Lead Counsel and the Settlement Agreement shall be treated as vacated, nunc pro tunc. Notwithstanding any statement in this Settlement Agreement to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubtcontrary, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or reducing the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, AUS shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class, Claims Administration, and Dispute Resolution pursuant to ¶ 2.3 above and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution the Court has entered the Order of the Stipulation Preliminary Approval and such other documents Publishing of Notice of a Final Fairness Hearing, as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesby ¶ 3.1;
(b) the Settlement Amount HMHD has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation Settlement Agreement pursuant to ¶8.4 hereof¶¶ 4.3 or 4.4;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(ec) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.9.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 10.2 If all of the conditions specified in ¶8.1 ¶ 10.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 10.4 unless Lead Proposed Settlement Class Counsel and HMHD’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before 10.3 Within seven (7) business days after the receipt Opt-Out Date, the Administrator shall furnish to Proposed Settlement Class Counsel and to HMHD’s counsel a complete list of all of the copies of the timely and valid requests for exclusion, on or before ten exclusion (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. “Opt-Out List”).
10.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party or Settling Party’s counsel, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or incentive awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, HMHD shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class and Claims Administration and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1. The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of This Settlement Agreement has been signed by the Stipulation Parties, Class Counsel, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesChandon’s Counsel;
(b) The Court has entered an order granting Preliminary Approval of the Settlement Amount has been deposited with the Escrow AgentAgreement;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Settlement Agreement, following notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the California Rules of Civil Procedure, and has entered the Final Judgment, or a judgment substantially consistent with this Settlement Agreement; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an order and final judgment in a form other than that provided above (“Alternative Judgment”) to which the Parties have consented, that Alternative Judgment has become Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished9.2. If some or all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the this Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Settlement Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 9.3, unless Class Counsel and Chandon’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Settlement Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything to the contrary in this Settlement Agreement, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive award to the Class Representative, regardless of the amounts awarded, shall not prevent the Settlement Agreement from becoming effective, nor shall it be grounds for termination of the Settlement Agreement.
9.3. If this Settlement Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1, 9.1, or 9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Settlement Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order status quo ante with respect to the Action as if this Settlement Agreement had never been entered into and, pursuant to Paragraph 10.4 below, this Settlement Agreement shall not be used for any purpose whatsoever against any of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationParties.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of this Settlement Agreement shall not occur until all of the Stipulation following events occur, and shall be conditioned on the occurrence of all date which falls ten (10) days after the last (in time) of the following events:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Illinois Code of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined in ¶1.10 hereofabove, or, if the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental if this Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 unless Class Counsel and Termax’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Settling Parties. Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, Class Counsel’s request for payment of attorneys’ fees, costs and/or expenses and/or the request for incentive award payments set forth in Paragraph 8 above shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective, including but not limited to, for the reasons set forth in Paragraphs 6.1 and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the moment just prior to the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Courtstatus quo ante with respect to the Action as if this Agreement had never been entered into. No order If the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall within thirty (30) days repay to Termax, based upon written instructions provided by Termax’s Counsel, the full amount of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees and costs paid to Class Counsel from the Settlement Fund, costs, including any accrued interest. If the attorneys’ fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Lead Termax, based upon written instructions provided by Termax’s Counsel, the attorneys’ fees and costs paid to Class Counsel and/or Class Representative from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, including any accrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesPlaintiffs’ counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are met, and once a Final Judgment becomes Final, as defined above, or in the event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final, Plaintiffs shall file with the Court a
9.3 If some or all of the conditions specified in Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all Parties, except that any attempted termination of this Agreement after the Preliminary Approval Order is entered will not take effect without an order of the Court, and this Agreement may not be terminated after the Final Judgment is entered without an order of the Court vacating the Final Judgment or an order of any appellate court reversing or vacating the Final Judgment. Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, the attorneys’ fees payment to Class Counsel and/or the incentive award set forth in Paragraph 8 above shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.4 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1-6.2 or 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action Actions as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tuncvacated by the Court, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesActions (including with respect to Defendant’s April 14, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.2023 Rule 23(f) petition filed in
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The Effective Date of the Stipulation 9.1 This Settlement Agreement shall be conditioned on the occurrence of all not become effective unless and until each of the following eventsevents has occurred:
(a) execution of the Stipulation a. This Agreement has been signed by Plaintiff, Defendants, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesClass Counsel;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the b. The Court has entered the Notice Preliminary Approval Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;; and
(e) the c. The Court has entered the Judgment thatFinal Approval Order and Judgment, inter aliafollowing notice to the Settlement Class and a Final Approval Hearing, dismisses or a final approval order and judgment substantially consistent with prejudice the Action, as to Plaintiffs and the Defendants, as set forth abovethis Agreement; and
(f) d. All appeals have been resolved or the Judgment time for filing any appeal has become Final, as defined in ¶1.10 hereofrun.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If this Agreement is terminated or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or an order approved the Settlement set forth in the Stipulation Agreement is terminated or fails to become effective in accordance with its termsreversed on appeal, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms any Final Approval Order and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the litigation as of August 16if this Agreement had never been entered into. If the termination or failure to become effective occurs before the Preliminary Approval Order is entered, 2019, the Parties agree that Defendants shall have no obligation to make any payment to the Settlement Administrator and that any sums on deposit with the Settlement Administrator shall be required returned to present an amended trial schedule Defendants. If the termination or failure to be approved occurs after the initial payment, provided for in Section 2.2, above, has been made to the Court. No order Settlement Administrator and charges have been incurred, then any sums not necessary for incurred expenses, or already expended upon notice at the time of the Court termination or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court failure to Lead Counsel or Plaintiffs be approved shall constitute grounds for cancellation or termination of the Stipulationbe returned to Defendants.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 77. The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs subject to the provisions in Paragraph 78:
(a) execution a. This Agreement has been signed by the Parties, Class Counsel and Defendant’s Counsel;
b. The Court has entered a Preliminary Approval Order;
c. The Court has entered a Final Approval Order, or a judgment materially identical to this Settlement Agreement that has become final and no longer appealable, following Notice to the Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure; and
d. In the Stipulation event that the Court enters an approval order and such other documents as may be required to obtain final Court approval of the Stipulation judgment in a form satisfactory other than that provided above (the “Alternative Approval Order”) to which the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants Parties have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderconsented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and no longer appealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished78. If some or all of the conditions specified in ¶8.1 hereof Paragraph 77 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Paragraph 79, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the following shall not prevent the Settlement Agreement from becoming effective, nor shall they be grounds for termination of the Agreement: (1) the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the Service Award to the Class Representative, regardless of the amounts awarded, or (2) the Court’s determination that it lacks jurisdiction such that the Parties’ Agreement will be renewed in an appropriate forum.
79. If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Settlement Agreement had never been entered into.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on mean one (1) business day after the occurrence of all of the following events:
: (ai) execution the settlement pursuant to this Settlement Agreement is approved by the court; and (ii) the time to appeal or seek permission to appeal from the Final Judgment Order and Judgment has expired or, if appealed, any appeal has been dismissed in its entirety, or the Final Judgment Order has been affirmed in its entirety by the court of last resort to which such appeal may be taken, and such dismissal or affirmance has become no longer subject to further appeal or review. Notwithstanding the above, any order modifying or reversing any Attorneys’ Fees and Expense Award or Service Award made in this case shall not affect the calculation of the Stipulation and such other documents as may be required to obtain final Effective Date.
9.2 If the Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) does not approve the Settlement Amount has been deposited with Agreement or the Escrow Agent;
(c) Defendants have Effective Date does not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderoccur for any reason, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.4 unless Lead Class Counsel and Defendant’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that9.3 Within seven (7) days after the Opt-Out Date, upon the occurrence Settlement Administrator shall furnish to Class Counsel and to Defendant’s counsel a complete list of all timely and valid requests for exclusion (the “Opt-Out List”).
9.4 The Settlement Agreement may be terminated and cancelled at the sole and exclusive discretion of Defendant if 150 or more of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, Settlement Class Members timely and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to validly exclude themselves from the Settlement HearingClass, Persons who otherwise would be members on the ground that exclusion at that level threatens to frustrate the essential purpose of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option this agreement. Defendant may exercise their right to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies under this subsection by providing written notification to Class Counsel of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven their election within five (75) business days after the receipt of all of Settlement Administrator has delivered the copies of Opt-Out List to the requests for exclusionParties.
9.5 In the event that the Settlement Agreement or the releases set forth in ¶ 6.1 above are not approved by the Court, on or before ten (10) business days after the Court grants additional time for exclusion Effective Date does not occur for any reason, or on or before three (3) business days before the settlement set forth in the Settlement HearingAgreement is terminated in accordance with its terms, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the CourtParties shall be restored to their respective positions in the Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as to avoid prejudice to any Party or Party’s refusal to enter the Notice Order; counsel, and (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure terms and provisions of the Effective Date Settlement Agreement shall have no further force and effect with respect to occur the Parties and shall not be used in the Litigation or in any other proceeding for any reasonpurpose, and any judgment or order entered by the Court in accordance with the terms of the Settlement Agreement shall be treated as vacated, nunc pro tunc. For avoidance of doubtNotwithstanding any statement in this Settlement Agreement to the contrary, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or reducing the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or Service Award shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, the Settlement Fund shall be used to pay any Costs of Claims Administration that have already been incurred by the Settlement Administrator, and the remaining Settlement Fund shall be paid back to Defendant or its insurer, as the case may be.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesClass Counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Fairness Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined in ¶1.10 hereofParagraph 1.17, or, in the event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final, as defined in Paragraph 1.17.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, must provide
(1) written notice to the alleged breaching party with 30 days to cure, and (2) a period of time to convene a remote session with Judge ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ before terminating this Agreement on notice to all of the Settling Parties, except that any attempted termination of this Agreement after the Preliminary Approval Order is entered will not take effect without an order of the Court, and this Agreement may not be terminated after the Final Judgment is entered without an order of the Court vacating the Final Judgment or an order of any appellate court reversing or vacating the Final Judgment. Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, the Fee Award to Class Counsel and/or the Service Award shall not prevent the Agreement from becoming effective, and shall not be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1-6.2 or 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tuncvacated by the Court, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties and Court approval if required is obtained, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid or payable and less any taxes and tax expenses paid, due or owing, shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded refunded by the Court Settlement Administrator to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationDefendant, based upon written instructions provided by Defendant’s Counsel.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with into the Escrow AgentAccount;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 ¶8.3 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment thatJudgment, inter alia, dismisses with prejudice substantially in the Action, as to Plaintiffs and the Defendants, as set forth aboveform of Exhibit B hereto; and
(f) the Judgment has become Final, as defined in ¶1.10 ¶1.9 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 ¶8.4 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World Rubicon common stock during pursuant to the Class Period March 2014 Offering in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs Lead Plaintiff and Camping WorldDefendants, Camping World Defendants shall have the sole option (which option must be exercised unanimously) to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs Lead Plaintiff and Camping World Defendants concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead CounselCounsel or the Claims Administrator, and in any event not less than fourteen (14) days prior to the Settlement Hearing. Camping World Defendants may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven five (75) business days after the receipt of all of the copies of the requests for exclusion, on or before ten five (105) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves Defendants serve a written notice of termination pursuant to the Supplemental Agreementtermination, Camping World Defendants may withdraw its their written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 8.4 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead CounselCounsel to the Escrow Agent, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 ¶¶3.6 or 3.8 3.7 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 8.5 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16October 29, 20192015, and the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.6 or 3.7 shall be returned to the original source of the Settlement Fund. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.281.25, 3.73.6-3.93.8, 7.2, 8.4-8.6 8.5 and 9.3-9.5 9.4 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16October 29, 2019, and shall be required to present an amended trial schedule to the Court2015. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.
8.6 Lead Counsel shall have the right but not the obligation to terminate the Settlement twenty-one (21) calendar days after the failure of Rubicon to timely pay the Settlement Amount.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs subject to the provisions in Section 1.11:
(a) execution of This Agreement has been signed by the Stipulation Parties, Class Counsel, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesDefendant’s Counsel;
(b) The Court has entered the Settlement Amount has been deposited with Preliminary Approval Order approving the Escrow AgentAgreement;
(c) Defendants have not exercised their option The Court has entered the Final Approval Order, or a judgment materially identical to terminate the Stipulation pursuant to ¶8.4 hereof;Final Approval Order, and the Effective Date has occurred; and
(d) In the event the Court has entered enters an approval order and final judgment in a form other than that provided above (“Alternative Approval Order”) to which the Notice OrderParties have consented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs date on which that Alternative Approval Order becomes final and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all appeals of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement FundAlternative Approval Order, if any, shall be absolutely and forever extinguished. have been resolved.
9.2 If some or all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental this Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated unless, within 20 days, Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Settlement Agreement.
9.3 If this Settlement Agreement is terminated or fails to become effective for the Settling reasons set forth above, the Parties shall be restored to their respective positions in the this Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement, including, but not limited to, class certification, shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Settlement Agreement had never been entered into.
Appears in 1 contract
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The Effective Date of the this Stipulation shall be conditioned on conditioned, and shall be deemed to have occurred, upon the occurrence or waiver of all of the following events:
(a) execution of the Stipulation and such other documents Court has entered the Notice Order, as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesby ¶4.1 hereof;
(b) the Settlement Amount has been deposited with by Defendants or their insurers into the Escrow Account maintained by the Escrow Agent, as required by ¶2.1 hereof;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 ¶8.3 hereof;
(d) the Court has entered the Notice OrderJudgment, substantially in the form of Exhibit A B attached hereto, as required or such other substantially similar form mutually agreed to by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth aboveSettling Parties; and
(fe) the Judgment has become Final, as defined in ¶1.10 ¶1.13 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants or their insurers in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the SettlementStipulation.
8.3 The Settling Parties expect that, upon Defendants shall have the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate option to seek such dismissal.
8.4 If, prior to terminate the Settlement Hearing, in the event that Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired more than a certain number of shares of Camping World Terex common stock during the Settlement Class Period in an amount greater than choose to exclude themselves from the sum specified Settlement Class (“Opt-Out Threshold”), as set forth in a separate Supplemental Agreement Regarding Requests for Exclusion agreement (the “Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel, which is incorporated by reference into this Stipulation. Plaintiffs agree that they shall not elect The Opt-Out Threshold may be disclosed to opt out from the Class.
8.5 Each Court for purposes of Plaintiffs and Defendants shall have approval of the right to terminate the Settlement and this Stipulation Settlement, as may be required by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal , but such disclosure shall be carried out to enter the Notice Order; (b) fullest extent possible in accordance with the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order practices of the Court or modification or reversal on appeal of any order of so as to maintain the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the SettlementOpt-Out Threshold as confidential.
8.6 8.4 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, then within five ten (510) business days after written notification of such event is sent by counsel for Defendants or Lead CounselCounsel to the Escrow Agent, the Settlement Fund (including accrued interest), less any expenses which have either been and costs reasonably and actually incurred or disbursed pursuant to ¶¶3.7 or 3.8 ¶2.7 and paid from the Settlement Fund and Taxes and Tax Expenses that have been paid pursuant to ¶2.8 hereof, shall be refunded by the Escrow Agent pursuant to written instructions from counsel for Defendants’ counsel. At the request of counsel for Defendants’ counsel, the Escrow Agent or their its designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any fees or expenses incurred in connection with such application(s) for refund, at the pursuant to written direction of from Defendants’ counsel.
8.7 8.5 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action Litigation as of August 16February 8, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1¶¶2.7-1.282.9, 3.78.3-3.98.4, 7.28.6, 8.4-8.6 9.4 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, Fee and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs Expense Award shall constitute grounds for cancellation or termination of the Stipulation.
8.6 If the Effective Date does not occur, or if the Stipulation is terminated pursuant to its terms, neither the Plaintiffs nor Lead Counsel shall have any obligation to repay any amounts actually and properly disbursed for notice costs and Taxes and Tax Expenses pursuant to ¶¶2.7-2.8 hereof. In addition, any expenses already incurred and properly chargeable pursuant to ¶2.7 hereof at the time of such termination or cancellation, but which have not been paid, shall be paid by the Escrow Agent in accordance with the terms of the Stipulation prior to the balance being refunded in accordance with ¶¶2.9 and 8.4 hereof.
8.7 If a case is commenced in respect to any Defendant under Title 11 of the United States Code (Bankruptcy), or a trustee, receiver or conservator is appointed under any similar law, and in the event of the entry of a final order of a court of competent jurisdiction determining the transfer of the Settlement Fund, or any portion thereof, by or on behalf of such Defendant to be a preference, voidable transfer, fraudulent transfer or similar transaction, and any portion thereof is required to be returned, and such amount is not promptly deposited to the Settlement Fund by others, then, at Plaintiffs’ option, as to such Defendant, the releases given and Judgment entered in favor of such Defendant pursuant to this Stipulation shall be null and void.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Preliminary Approval Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereofParagraph 3.1;
(eb) the Court has entered the Final Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fc) the Final Judgment has become Final, as defined in ¶1.10 hereofParagraph 1.16.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 hereof Paragraphs 9.1(a)–(c) are not metsatisfied, then the Stipulation this Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof Paragraph 9.3 unless Lead Proposed Class Counsel and counsel for Defendants Aon’s Counsel mutually agree in writing to proceed with the Settlementthis Settlement Agreement.
8.3 The Settling 9.3 In the event that this Settlement Agreement is not approved by the Court or the settlement set forth in this Settlement Agreement is terminated in accordance with its terms, (i) the Parties expect that, upon shall be restored to their respective positions in the occurrence of all Litigation as if the Agreement had never been entered into (and without prejudice to any of the events referenced in ¶8.1 hereof, Parties’ respective positions on the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.issue of class certification or any other issue) will and shall jointly request that all scheduled litigation deadlines be subsequently dismissedreasonably extended by the Court so as to avoid prejudice to any Party, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior (b) the terms and provisions of this Settlement Agreement shall be void and have no further force and effect with respect to the Settlement HearingParties and shall not be used in the Litigation or in any other proceeding for any purpose, Persons who otherwise would be members of and any judgment or order entered by the Class have timely requested exclusion from the Class Court in accordance with the provisions terms of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental this Settlement Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counseltreated as vacated, nunc pro tunc. Camping World may terminate the Stipulation and Notwithstanding any statement in this Settlement pursuant Agreement to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusioncontrary, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant including but not limited to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubtParagraph 9.4, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or reducing the amount of attorneys’ fees, expenses fees and interest awarded by the Court to Lead Counsel or litigation costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of expenses and/or the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs service award shall constitute grounds for cancellation or termination of this Settlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the Stipulationcontrary, Aon shall be obligated to pay amounts already billed or incurred for costs of Notice and Claims Administration and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
9.4 This Settlement Agreement may be terminated and/or cancelled by any of the Parties if (i) the Court rejects, materially modifies, materially amends, or changes, or declines to preliminarily approve or finally approve this Settlement Agreement apart from the award of attorneys’ fees and expenses; (ii) an appellate court reverses the Preliminary Approval Order and/or Judgment, and this Settlement Agreement is not reinstated and finally approved without material change by the Court on remand; or (iii) the Court or any reviewing appellate court incorporates material terms or provisions into, or deletes or strikes material terms or provisions from, or materially modifies, amends, or changes, the proposed Preliminary Approval Order, the Preliminary Approval Order, the proposed Final Judgment, the Final Judgment, or this Settlement Agreement, other than the amount of attorneys’ fees and expenses.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 16 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of 17 the following events:
(18 a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Order of Preliminary Approval and Publishing of 19 Notice Order, substantially in the form of Exhibit A heretoa Final Fairness Hearing, as required by ¶4.1 hereof¶ 3.1;
(e20 b) Faneuil has not exercised its option to terminate the Settlement Agreement 21 pursuant to ¶ 4.3;
22 c) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement 23 as set forth aboveherein; and
(f24 d) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.13.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 25 9.2 If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement 26 shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.4 unless Lead Proposed Settlement Class Counsel and 27 ▇▇▇▇▇▇▇’s counsel for Defendants mutually agree in writing to proceed with the Settlement.Settlement Agreement. 28
8.3 The Settling Parties expect that, upon 1 9.3 Within seven (7) days after the occurrence of all of the events referenced in ¶8.1 hereofOpt-Out Date, the action captioned Claims Administrator shall 2 furnish to Proposed Settlement Class Counsel and to ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired ’s counsel a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies complete list of all timely 3 and valid requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate (the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. “Opt-Out List”).
4 9.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation Agreement or the amount of attorneys’ feesreleases set forth in paragraphs 5 6.1, expenses 6.2, and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is 6.3 above are not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement 6 Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to 7 their respective positions in the Action Litigation and shall jointly request that all scheduled litigation 8 deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party or 9 Settling Party’s counsel, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have 10 no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation 11 or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in 12 accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution The Court has entered a judgment in the Interpleader Action in favor of the Stipulation Metretek Defendants and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesjudgment has become Final;
(b) Gulf has paid to Metretek or into the Settlement Amount has been deposited with Fund, whether directly, through the Interpleader Account, through the Escrow AgentAccount or otherwise, the sum of at least $2,375,000 in Insurance Proceeds from the Insurance Policy on behalf of the Settling Defendants, which Insurance Proceeds shall not be subject to any further claims by any other Person, provided, however, that Metretek shall have the right, in its sole discretion, but not the obligation to waive such condition if Gulf pays a lesser amount of proceeds from the Insurance Policy on behalf of the Settling Defendants that Metretek, in its sole discretion, deems acceptable;
(c) Defendants have not exercised their option to terminate The Court has entered the Stipulation pursuant to ¶8.4 hereofPreliminary Approval Order, as required above;
(d) the The Court has entered the Notice Final Judgment and Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(fe) the The Final Judgment and Order has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof herein are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Class Counsel and counsel for Settling Defendants mutually agree in writing to proceed with the SettlementStipulation.
8.3 The Settling Parties expect thatIn the event that this Stipulation is terminated pursuant to the terms herein, upon the occurrence of following shall occur: - all parties shall stand in the same position, without prejudice, as if this Stipulation had not been made and submitted to the Court for its consideration and approval; - neither this Stipulation, nor the Preliminary Approval Order, nor the Final Judgment and Order, nor any documents or oral representations relating to any of the events referenced in ¶8.1 hereofforegoing, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will shall be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior offered as evidence relating to the Settlement Hearing, Persons who otherwise would be members merits or legal sufficiency of the Class have timely requested exclusion from allegations in the Class Action; and - no right, claim, obligation, liability, or defense of any person affected by the termination shall arise from or be affected by the negotiation or execution of this Stipulation. - in accordance with the provisions event termination is due to the failure of the Notice Order and Court to include the Notice given pursuant thereto, and such Persons contribution bar order in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs Final Judgment and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures Order as set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless Section 3.5 and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered Metretek's failure to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) waive this condition in writing within 5 business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered entered by the Court, in the event the Stipulation then Metretek shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction sum of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by $200,000 into the Court or within 60 days for the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions benefit of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationClass.
Appears in 1 contract
Sources: Stipulation of Settlement (Metretek Technologies Inc)
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Illinois Code of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above in ¶1.10 hereofParagraph 1.15, or, in the event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 or 6.2 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Parties. Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, the attorneys’ fees payment to Class Counsel and/or the incentive award set forth in Paragraph 8 above shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1, 6.2, and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16the date of the signing of this Agreement, 2019unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with the Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.this
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If
9.3 If this Agreement is terminated or fails to become effective for the Settling reasons set forth in Paragraphs 6.1 or 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid or payable and less any taxes and tax expenses paid, due or owing, shall be required refunded by the Settlement Administrator to present Defendant or Defendant’s insurers, based upon written instructions provided by Defendant’s Counsel. In the event Defendant terminates this Agreements because of Plaintiff’s or Class Counsel’s breach of this Agreement, Class Counsel shall refund to Defendant, based upon written instructions provided by Defendant’s Counsel, any Settlement Administration costs actually incurred prior to termination. In the event that the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an amended trial schedule appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days repay to Defendant or Defendant’s insurers, based upon written instructions provided by Defendant’s Counsel, the Court. No order full amount of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees and costs paid to Class Counsel from the Settlement Fund, costs, including any accrued interest. In the event the attorney fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Lead Defendant or Defendant’s insurers, based upon written instructions provided by Defendant’s Counsel, the attorneys’ fees and costs paid to Class Counsel and/or Class Representative from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, including any accrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 7.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the this Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount Fund has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 ¶7.3 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 ¶3.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs Lead Plaintiff and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 7.2 Upon the occurrence of all of the events referenced in ¶8.1 ¶7.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all any of the conditions specified in ¶8.1 ¶7.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 ¶7.4 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 7.3 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World ▇▇▇▇▇▇ publicly traded common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs Lead Plaintiff and Camping WorldDefendants, Camping World Defendants shall have the sole option (which option must be exercised unanimously) to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs Lead Plaintiff and Camping World Defendants concerning its interpretation or application arisesarises or if requested by the Court. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World Defendants may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven five (75) business days after the receipt of all of the copies of the requests for exclusion, on or before ten five (105) business days after Defendants receive enough information about the holdings of any opt-outs such that Defendants can determine whether the threshold percentage specified in ¶1 of the Supplemental Agreement has been met (but no later than on or before three (3) business days before the Settlement Hearing), on or before five (5) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves Defendants serve a written notice of termination pursuant to termination, the Supplemental Agreement, Camping World Defendants may withdraw its their written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Central Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 7.4 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead CounselCounsel to the Escrow Agent, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 ¶¶2.6 or 3.8 2.7 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their its designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 7.5 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16July 6, 20192015. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.281.23, 3.72.6-3.92.8, 7.26.2, 8.47.4-8.6 7.5 and 9.38.3-9.5 8.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16July 6, 20192015, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs Lead Plaintiff shall constitute grounds for cancellation or termination of the Stipulation.
7.6 Lead Counsel shall have the right but not the obligation to terminate the Settlement fifteen (15) calendar days after the failure of Defendants to timely pay the Settlement Fund.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all this Settlement Agreement will not occur unless and until each and every one of the following eventsevents occurs, and will be the date upon which the last (in time) of the following events occurs:
(a) execution of 10.1.1 This Agreement has been signed by the Stipulation Parties, Class Counsel, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesDefendant’s Counsel;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the 10.1.2 The Court has entered an order granting Preliminary Approval of the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereofAgreement;
(e) the 10.1.3 The Court has entered an order finally approving the Judgment thatSettlement, inter alia, dismisses with prejudice following Notice to the ActionSettlement Class and Damages Settlement Subclass and a Final Approval Hearing, as to Plaintiffs provided in the Federal Rules of Civil Procedure, and has entered the DefendantsFinal Judgment, as set forth aboveor a judgment substantially consistent with this Agreement; and
(f) the 10.1.4 The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an order and final judgment in a form other than that provided above (“Alternative Judgment”) to which the Parties have consented, that Alternative Judgment has become Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 10.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 10.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the this Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement may be canceled and terminated subject to Paragraph 10.3, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all other Parties. Subject to Paragraph 8.1, the Parties shall agree that the Court’s decision as to the
10.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 8.1, 8.2, 10.1, or 10.2 above, the Parties will be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation shall this Agreement will be treated as vacated, nunc pro tunc, and the Settling Parties shall will be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order status quo ante with respect to the Action as if this Agreement had never been entered into and, pursuant to Paragraph 11.4 below, this Agreement may not be used for any purpose whatsoever against any of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationParties.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an order and final judgment in a form other than that provided above (“Alternative Judgment”) and that has the consent of the Parties, such Alternative Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Parties. Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, the attorneys’ fees payment to Class Counsel and/or the
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1 and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Agreement had never been entered into.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The 7.1 This Stipulation, the Settlement and the Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of Smart Online, H▇▇▇▇ ▇▇▇▇▇, and Maxim Group shall have paid or caused to be paid the Stipulation and such other documents consideration making up the Class Settlement Fund as may be required by ¶¶2.1 to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties2.10 above;
(b) Smart Online shall have signed and delivered to Lead Plaintiff’s Counsel the Settlement Amount has been deposited with the Escrow AgentAssignment Agreement;
(c) Defendants The Board of Directors of Smart Online will have reviewed and approved the Stipulation;
(d) The Court has entered the Preliminary Approval Order, as required by ¶3.1, above;
(e) Smart Online has not exercised their its option to terminate the Stipulation pursuant to ¶8.4 ¶7.2 hereof;
(df) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the The Court has entered the Judgment thatin the Class Action in substantially the form of Exhibit B attached hereto, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth aboverespectively; and
(fg) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon 7.2 Smart Online shall have the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or option to terminate the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate event that Settlement Class Members who purchased or otherwise acquired more than a certain number of Smart Online shares of Camping World common stock during the Class Period in an amount greater than choose to exclude themselves from the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping WorldSettlement Class, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures as set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute arises between the Class Lead Plaintiffs and Camping World Class Settling Defendants concerning its interpretation or application arisesapplication.
7.3 Smart Online and Lead Plaintiff shall each have the right to terminate the settlement if the Settlement is not approved by the Court within eight (8) months following the Settlement Hearing. Copies In the event either Party wishes to terminate the Settlement on this ground, the terminating Party may do so by providing written notice of all requests for exclusion receivedsuch termination to the other Party and such termination, together with copies of all written revocations of requests for exclusionif not withdrawn, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before effective ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. thereafter.
7.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, is not approved or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, terminate or shall not become effective for any reason, within five ten (510) business days after written notification of such event is sent by counsel for the Settling Defendants or Lead CounselPlaintiff’s Counsel to the Escrow Agent, the Smart Online Settlement Stock, together with any proceeds from the sale or other disposition of Smart Online Settlement Stock pursuant to ¶2.7, shall be returned to Smart Online and H▇▇▇▇ ▇▇▇▇▇ in proportion to their respective contributions to the Settlement Fund as set forth in ¶¶ 2.2 hereto and the cash component of the Settlement Fund (including accrued interest), plus any amount then remaining in the Class Notice and Administration Fund (including accrued interest), less expenses and costs which have either been incurred or disbursed pursuant to ¶¶3.7 ¶¶ 2.17 to 2.19 hereto, or 3.8 hereof, are chargeable to the Class Notice and Administration Fund shall be refunded pursuant by the Escrow Agent to written instructions Smart Online and Maxim Group in proportion to their respective cash contributions to the Settlement Fund as set forth in ¶¶ 2.9 to 2.10 hereto. Under no circumstances shall Lead Plaintiff or Lead Plaintiff’s Counsel be responsible for, or required to reimburse or return any amounts disbursed or incurred for notice to Settlement Class Members or administration of the Settlement whether such amounts are disbursed from Defendants’ counselthe Class Notice and Administration Fund or the Class Fee and Expenses Award. At the request of counsel for Settling Defendants, the Escrow Agent or their its designee shall apply for any tax refund owed on to the Class Settlement Fund and pay the proceeds, after deduction of any reasonable fees or expenses incurred in connection with such application(s) for refund, at refund to Smart Online and Maxim Group in proportion to the written direction of Defendants’ counselrespective contributions to the Settlement Fund as set forth in ¶¶ 2.2 to 2.10 hereto.
8.7 7.5 In the event that the Stipulation or Settlement is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its termsfor any reason, the Settling Parties shall be restored to their respective positions in the Action as the date of August 16this Stipulation, 2019and all negotiations, proceedings, documents prepared and statements made in connection herewith shall be without prejudice to the Settling Parties, shall not be deemed or construed to be an admission by any Settling Party of any act, matter or proposition and shall not be used in any manner or 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 ¶¶1.1-1.281.43, 3.72.11-3.92.20, 7.2, 8.47.1-8.6 7.8 and 9.3-9.5 hereof8.4 herein, shall have no further force and effect with respect to the Settling Parties and shall not be used in this the Action or in any other proceeding for any purpose, and any Judgment Judgments or order orders entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc. The Settling Parties agree that in the event that the Stipulation or Settlement is not approved by the Court or the Settlement set forth in the Stipulation is terminated for any reason, and neither Lead Plaintiff nor any of the Settling Class Members shall commence, maintain or prosecute any of the Released Claims against the Settling Defendants, in any court or tribunal for a period of sixty (60) days and, during this sixty (60) day period, the Settling Parties shall engage in good faith negotiations to reach a new resolution of all outstanding issues between them, including the Released Claims.
7.6 If the Effective Date does not occur, or if the Stipulation is terminated for any reason, neither Lead Plaintiff nor any of Lead Plaintiff’s Counsel shall have any obligation to repay any amounts actually and properly disbursed from or chargeable for notice to Settlement Class Members or administration of the Settlement. In the event the amounts remaining at the time of such termination are insufficient to pay the cost of notice to the Settlement Class Members and administration of the Settlement properly incurred, Lead Plaintiff’s Counsel shall pay such amounts from the Class Fee and Expense Award prior to the return of the balance of the Class Fee and Expense Award as provided in paragraph 6.3 above. In addition, any expenses already incurred and properly chargeable to the Class Notice and Administration Fund pursuant to ¶2.17 hereof at the time of such termination or cancellation but which have not been paid, shall be paid by the Escrow Agent in accordance with the terms of the Stipulation prior to the balance being refunded.
7.7 Maxim Group shall have the option to exclude itself from the Settlement in the event that Settlement Class Members who purchased or otherwise acquired more than a certain number of Smart Online shares during the Class Period choose to exclude themselves from the Settlement Class, as set forth in the Supplemental Agreement. Maxim Group shall be entitled to exercise its option to withdraw from the settlement only if Maxim Group provides lead Plaintiffs’ Counsel and Smart Online with written notice of its withdrawal from the settlement and files that notice with the Court within four (4) days prior to the Settlement Hearing. In the event that Maxim Group opts to exclude itself from the Settlement:
(a) Maxim Group and Lead Plaintiff shall be restored to their respective positions in the Action as the date of this Stipulation, and all negotiations, proceedings, documents prepared and statements made in connection herewith shall be without prejudice to them, shall not be deemed or construed to return to their status as be an admission by either Maxim Group or Lead Plaintiff of August 16any act, 2019, matter or proposition and shall not be required to present an amended trial schedule used in any manner or for any purpose in any subsequent proceeding in the Action or in any other action or proceeding.
(b) Any cash contribution of Maxim Group to the Court. No order of Settlement Fund pursuant to ¶ 2.10 shall be refunded by the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the Escrow Agent to MaximGroup, less Maxim Group’s proportionate amount of any attorneys’ feesadministrative costs and expenses already incurred pursuant to ¶ 5.1(a) at the time that Maxim Group gives notice to exclude itself from the Settlement pursuant to ¶ 7.7.
(c) There shall be no effect on the other Settling Defendants or their respective obligations under the Stipulation and the releases given and the Judgments entered in favor of other Settling Defendants shall remain in full force and effect.
7.8 The Settling Parties agree that, costswith respect to any Settling Defendant, and expensesin the event of a final order of a court of competent jurisdiction, and interest awarded by not subject to any further proceedings, determining the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination transfer of the StipulationClass Settlement Fund, or any portion thereof, by or on behalf of such Settling Defendant to be a preference, voidable transfer, fraudulent transfer or similar transaction under Title 11 of the United States Code (Bankruptcy) or applicable state law and any portion thereof is required to be refunded and such amount is not promptly deposited in the Class Settlement Fund by any other Defendant, then, at the election of Lead Plaintiff’s Counsel, as to such Class Settling Defendant, the releases given and the Judgments entered in favor of such Settling Defendant pursuant to the Stipulation shall be null and void. The releases given and the Judgments entered in favor of other Settling Defendants shall remain in full force and effect.
Appears in 1 contract
Sources: Stipulation and Agreement of Partial Class Settlement (Smart Online Inc)
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 7.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court Board’s approval of the Stipulation in a form satisfactory to Settlement and each of its terms, including the Settling Partiesseparately negotiated Fee and Expense Amount;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Scheduling Order, substantially in the form of Exhibit A attached hereto, as required by ¶4.1 hereof;
(e) ; and the Court has entered the Judgment thatOrder and Final Judgment, inter alia, dismisses with prejudice substantially in the Action, as to Plaintiffs and the Defendants, as set forth aboveform of Exhibit C attached hereto; and
(fc) the Order and Final Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, 7.2 If any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof ¶7.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof the provisions of ¶7.4, unless Lead Counsel and counsel for Defendants the Settling Parties mutually agree in writing to proceed with the Settlementan alternative or modified Stipulation and submit it for Court approval.
8.3 7.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall each have the right to terminate the Settlement and this Stipulation Stipulation, by providing written notice of their election to do so (“Termination Notice”) to all the other parties hereto to this Stipulation within thirty (30) calendar days ofof any of the following, which notice shall constitute grounds for termination of the Settlement: (a) the Court’s refusal to enter the Notice OrderScheduling Order in any material respect; (b) the Court’s refusal to approve enter the Order and Final Judgment in any material respect as to the Settlement; or (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Order and Final Judgment is modified or reversed or vacated or altered following an appeal taken therefromin any material respect by the Delaware Supreme Court. The provisions of ¶7.4 below shall apply to any termination under this paragraph.
7.4 If for any reason this Stipulation is terminated, cancelled, or is successfully collaterally attacked; or (e) the failure of the Effective Date otherwise fails to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five :
(5a) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the The Settling Parties shall be restored to their respective positions that existed immediately prior to the date of execution of this Stipulation;
(b) All negotiations, proceedings, documents prepared, and statements made in connection with this Stipulation shall be without prejudice to the Settling Parties, shall not be deemed or construed to be an admission by a Settling Party of any act, matter, or proposition, and shall not be used in any manner for any purpose (other than to enforce the terms remaining in effect) in any subsequent proceeding in the Action as of August 16, 2019. In such event, the Derivative Matters or in any other action or proceeding; and
(c) The terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 the provisions of ¶¶4.3 and 9.3-9.5 hereof6.3, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Derivative Matters or in any other proceeding for any purpose, and any Judgment judgment or order orders entered by the Court in accordance with the Stipulation’s terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. .
7.5 No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest expenses awarded by the Court to Lead Plaintiff’s Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation, affect the enforceability of the Stipulation, or delay or preclude the Order and Final Judgment from becoming Final.
Appears in 1 contract
Sources: Stipulation and Agreement of Compromise, Settlement, and Release
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class, as provided in the CPLR, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, 9.2 If any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Parties and Settlement Class Members (which notice may be given by the Settlement Administrator via email to the email addresses on record for Settlement Class Members). Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, the Fee Award to be requested by Class Counsel and/or the Service Award to be requested for the Class Representative, as set forth in Paragraph 8 above, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1-6.2 and/or 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid, or payable, and less any taxes and/or tax expenses paid, due, or owing, shall be refunded by the Settlement Administrator to Defendant, based upon written instructions provided by Defendant’s Counsel. In the event that the Final Judgment or any material part thereof is vacated, overturned, reversed, or rendered void as a result of any timely filed appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within fourteen (14) days thereof repay to Defendant, based upon written instructions provided by Defendant’s Counsel, the full amount of the Fee Award, including any accrued interest, and shall be required cause Class Representative to present an amended trial schedule repay to Defendant, based upon written instructions provided by Defendant’s Counsel, the full amount of the Service Award, including any accrued interest. In the event the Final Judgment or any material part is upheld but the Fee Award, Service Award, and/or any part thereof is vacated, modified, reversed, or rendered void as a result of a timely filed appeal, Class Counsel shall within fourteen (14) days thereof repay, or cause Class Representative to repay, to the Court. No order of Settlement Fund, based upon written instructions provided by the Court or modification or reversal on appeal of any such order of Settlement Administrator, the Court concerning the Plan of Allocation or Fee Award and/or Service Award, in the amount of vacated or modified, including any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationaccrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1, unless Class Counsel and Defendants’ Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Parties and Settlement Class Members (which notice may be given by the Settlement Administrator via email to the email addresses on record for Settlement Class Members). Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, the Fee Award to be requested by Class Counsel and/or the Service Award to be requested for the Class Representative, as set forth in Paragraph 8 above, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1 and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid or payable and less any taxes and tax expenses paid, due or owing, shall be refunded by the Settlement Administrator to Defendants, based upon written instructions provided by Defendants’ Counsel. In the event that the Final Judgment or any material part thereof is vacated, overturned, reversed, or rendered void as a result of any timely filed appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days thereof repay to Defendants, based upon written instructions provided by Defendants’ Counsel, the full amount of the Fee Award, including any accrued interest, and shall be required cause Class Representative to present an amended trial schedule repay to Defendants, based upon written instructions provided by Defendants’ Counsel, the full amount of the Service Award, including any accrued interest. In the event the Fee Award, Service Award, or any part thereof is vacated, modified, reversed, or rendered void as a result of a timely filed appeal, Class Counsel shall within thirty (30) days thereof repay, or cause Class Representative to repay, to the Court. No order of Settlement Fund, based upon written instructions provided by the Court or modification or reversal on appeal of any such order of Settlement Administrator, the Court concerning the Plan of Allocation or Fee Award and/or Service Award, in the amount of vacated or modified, including any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationaccrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 12.1. The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to 12.1.1 this Agreement has been signed by the Settling Parties, Class Counsel, and Defendant’s Counsel;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) 12.1.2 the Court has entered an Order granting Preliminary Approval of the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereofAgreement;
(e) 12.1.3 the Court has entered an Order finally approving the Settlement Agreement, following notice to the Settlement Class and a Final Approval Hearing, and has entered the Final Judgment that, inter alia, dismisses or a judgment substantially consistent with prejudice this Agreement;
12.1.4 Plaintiffs have filed a notice of dismissal of their appeal in the Action, as to Plaintiffs and the Defendants, as set forth aboveFirst Circuit; and
(f) 12.1.5 the Final Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished12.2. If some or all of the conditions specified in ¶8.1 hereof this section are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the this Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, the Settling Parties then this Settlement Agreement shall be restored cancelled and terminated subject to their respective positions Paragraph 11, unless Class Counsel and Defendant’s Counsel mutually agree in the Action as writing to proceed with this Agreement. If any Settling Party is in material breach of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purposeSettling Party, and any Judgment or order entered by the Court provided that it is in accordance substantial compliance with the terms of the Stipulation shall be treated as vacatedthis Agreement, nunc pro tuncmay terminate this Agreement on notice to all other Settling Parties. Notwithstanding anything herein, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to agree that the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or ’s decision as to the amount of any attorneys’ feesthe Fee Award to Class Counsel set forth above, costsregardless of the amount awarded, and expensesshall not prevent the Agreement from becoming effective, and interest awarded by the Court to Lead Counsel or Plaintiffs nor shall constitute it be grounds for cancellation or termination of the StipulationAgreement.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs subject to the provisions in Section 1.11:
(a) execution a. This Agreement has been signed by the Parties and Class Counsel;
b. The Court has entered a Preliminary Approval Order approving the Agreement;
c. The Court has entered a Final Approval Order finally approving the Agreement, or a judgment substantially consistent with this Settlement Agreement that has become final and unappealable, following Notice to the Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure; and
d. In the Stipulation event that the Court enters an approval order and such other documents as may be required to obtain final Court approval of the Stipulation judgment in a form satisfactory other than that provided above (“Alternative Approval Order”) to which the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants Parties have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderconsented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Section 9.3, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the following shall not prevent the Settlement Agreement from becoming effective, nor shall they be grounds for termination of the Agreement: (1) the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive award to the Class Representative, regardless of the amounts awarded, or (2) the Court’s determination that it lacks jurisdiction such that the Parties’ Agreement will be renewed in an appropriate forum.
9.3 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Courtstatus quo ante with respect to the Action as if this Settlement Agreement had never been entered into. No order of In the Court or modification or reversal on appeal event of any such order termination, any documents relating to the Parties’ settlement communications or dealings shall be subject to Federal Rule of the Court concerning the Plan of Allocation Evidence 408 or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationequivalent state law.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 A. The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs:
(a) execution 1. This Agreement has been signed by the Parties, Class Counsel, and Samsung’s Counsel;
2. The Court has entered an order granting Preliminary Approval of the Stipulation Agreement;
3. The Court has entered an order approving the Settlement Agreement after a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and such other documents as may be required to obtain has entered the Final Judgment, or a judgment substantially consistent with this Agreement; and
4. The Final Judgment has become final and non-appealable, or, in the event that the Court approval of the Stipulation enters an order and Final Judgment in a form satisfactory other than that provided above but which is substantially consistent with this Agreement and to which the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants Parties have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderconsented, that substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the consistent Judgment has become Final, as defined in ¶1.10 hereoffinal and non-appealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest B. If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section VII.A are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the this Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Section VII.C, unless Class Counsel and Samsung’s Counsel mutually agree in writing to proceed with this Agreement and subject to any necessary court approval. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the following shall not prevent the Agreement from becoming effective, nor shall they be grounds for termination: (1) the Court’s failure to approve, in whole or in part, the attorneys’ fees payment to Class Counsel and/or the Service Award set forth in Sections II.C and D; or (2) the Court’s determination that it lacks jurisdiction such that the Parties’ Agreement will be renewed in an appropriate forum.
C. If this Agreement is terminated or fails to become effective for the reasons set forth in Sections V, VII.A, or VII.B, the Parties shall be restored to their respective positions in the Action Lawsuit as of August 16, 2019the date of the signing of this Agreement. In such event, the terms Agreement will be deemed null and provisions of the Stipulationvoid ab initio, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order status quo ante with respect to the Lawsuit as if this Agreement had never been entered into and, pursuant to Section VIII.G below, this Agreement shall not be used for any purpose whatsoever against any of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationParties.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs:
(a) execution a. This Agreement has been signed by the Parties, Class Counsel, and Defendant’s Counsel;
b. The Court has entered a Preliminary Approval Order approving of the Stipulation Agreement;
c. The Court has entered a Final Approval Order finally approving the Agreement, or a judgment substantially consistent with this Settlement Agreement that has become final and such other documents as may be required unappealable, following Notice to obtain the Settlement Class and a Final Approval Hearing; and
d. In the event that the Court enters an approval order and final Court approval of the Stipulation judgment in a form satisfactory other than that provided above (“Alternative Approval Order”) to which the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants Parties have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderconsented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 10.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Section 9.3, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive award to the Class Representative, regardless of the amounts awarded, shall not prevent the Settlement Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
10.3 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Settlement Agreement had never been entered into.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of this Settlement Agreement shall not occur until all of the Stipulation following events occur, and shall be conditioned on the occurrence of all date which falls ten (10) calendar days after the last (in time) of the following events:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined in ¶1.10 hereofabove, or, if the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental if this Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement
9.3 If this Agreement is terminated or fails to become effective, including but not limited to, for the Settling reasons set forth in Paragraphs 4.6, 4.7, 6.1, and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16the moment just prior to the signing of this Agreement and the Class Action Settlement Term Sheet entered into between Waste Management and the Class Representative shall be cancelled, 2019null, and void. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Courtstatus quo ante with respect to the Action as if this Agreement and the Class Action Settlement Term Sheet had never been entered into. No order If the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall comply with the Undertaking and, within thirty (30) days repay to Waste Management, based upon written instructions provided by Waste Management’s Counsel, the full amount of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees and costs paid to Class Counsel from the Settlement Fund, costs, including any accrued interest. If the attorneys’ fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall comply with the Undertaking and within thirty (30) days repay to Lead Waste Management, based upon written instructions provided by Waste Management’s Counsel, the attorneys’ fees and costs paid to Class Counsel and/or Class Representatives from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, including any accrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution the Court has entered the Order of the Stipulation Preliminary Approval and such other documents Publishing of Notice of a Final Fairness Hearing, as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesby ¶ 3.1, hereof;
(b) TJX has not exercised its option to terminate the Settlement Amount has been deposited with the Escrow AgentAgreement pursuant to ¶ 9.3 hereof;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 ¶ 1.6, hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.4 hereof, unless Settlement Class Co-Lead Counsel and counsel for Defendants TJX mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon 9.3 Within 7 days after the occurrence of all of deadline established by the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate Court for Persons to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested request exclusion from the Settlement Class, Settlement Class Co-Lead Counsel shall furnish to counsel for TJX a complete list of all timely and valid requests for exclusion (the “Opt-Out List”). TJX, in accordance with the provisions of the Notice Order and the Notice given pursuant theretoits sole discretion, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation Settlement Agreement if the aggregate number of Persons who submit valid and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all timely requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before from the Settlement Hearing, whichever occurs last. Class exceeds 10,000 Persons eligible to be Settlement Class Members.
9.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action Litigation, except that all scheduled litigation deadlines shall be reasonably extended so as of August 16, 2019to avoid prejudice to any Settling Party or litigant. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest expenses awarded by the Court to Settlement Class Co-Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement.
Appears in 1 contract
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 8.1. The Effective Date of the Stipulation Settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents Court has entered the Preliminary Approval Order, as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesby ¶ 4.1 hereof;
(b) the The Settlement Amount has been deposited with into the Escrow AgentAccount;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 ¶ 8.3 hereof;
(d) the Court has entered the Notice OrderJudgment, or a judgment substantially in the form of Exhibit A B attached hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(fe) the Judgment has become Final, as defined in ¶1.10 ¶ 1.13 hereof.
8.2 8.2. Upon the occurrence of all of the events referenced in ¶8.1 hereofEffective Date, any and all remaining interest or right of the Defendants or the Defendants’ insurers in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 ¶ 8.1 hereof are not met, then the Stipulation Settlement shall be canceled and terminated subject to ¶8.5 ¶¶ 8.3 and 8.5 hereof unless Lead Counsel and counsel for Defendants Defendants’ Counsel mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon 8.3. Defendants shall have the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 right (Ill. Cir. Ct. Cook Cty.which right must be exercised collectively) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to terminate the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, render it null and such Persons void in the aggregate event that Settlement Class Members who purchased or otherwise acquired more than a number certain percentage of shares of Camping World HCSG publicly traded common stock during the Settlement Class Period in an amount greater than exclude themselves from the sum specified Settlement Class, as set forth in a separate Supplemental Agreement Regarding Requests for Exclusion agreement (the “Supplemental Agreement”) executed between Plaintiffs Lead Plaintiff and Camping WorldDefendants, Camping World shall have the sole option to terminate this Stipulation by and Settlement in accordance with the procedures set forth in the Supplemental Agreementthrough their counsel. The Supplemental Agreement will Agreement, which is being executed concurrently herewith, shall not be filed with the Court and its terms shall not be disclosed in any other manner (other than the statements herein, to the extent necessary, or as otherwise provided in the Supplemental Agreement), unless and until the Court otherwise directs or a dispute arises between Plaintiffs and Camping World the Settling Parties concerning its interpretation or application arisesapplication. Copies If submission of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement is required for resolution of a dispute or is otherwise ordered by serving written notice of termination on the Court, the Settling Parties will seek to have the Supplemental Agreement submitted to the Court and Lead Counsel on in camera or before seven (7) business days after the receipt of all filed under seal.
8.4. Each of the copies Defendants warrants and represents that, as of the requests for exclusiontime this Stipulation is executed and as of the time the Settlement Amount is actually transferred or made as reflected in this Stipulation, on or before ten (10) business days after it is not “insolvent” within the Court grants additional time for exclusion for any reasonmeaning of 11 U.S.C. § 101(32). If, or on or before three (3) business days before the Settlement Hearingbecomes Final, whichever occurs last. In any Defendant files for protection under the Bankruptcy Code, or any similar law, or a trustee, receiver, conservator, or other fiduciary is appointed under bankruptcy, or any similar law, and in the event that of the Camping World serves entry of a written notice final order of termination pursuant a court of competent jurisdiction determining the transfer of money or any portion thereof to the Supplemental Agreement, Camping World may withdraw its written notice of termination Escrow Agent by providing written notice or on behalf of such withdrawal Defendant to be a preference, voidable transfer, fraudulent transfer or similar transaction and any portion thereof is required to be returned, and such amount is not promptly deposited with the Escrow Agent by others, then, at the election of Lead Counsel and to Plaintiff, the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as Settling Parties shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by jointly move the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination vacate and set aside the release given and the Judgment entered in favor of the SettlementDefendants and that the Defendants and Lead Plaintiff and the Members of the Settlement Class shall be restored to their litigation positions as of March 17, 2021.
8.6 8.5. Unless otherwise ordered by the Court, in the event the this Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five fifteen (515) business days after written notification of such event is sent by counsel for the Defendants or Lead CounselCounsel to the Escrow Agent, the Settlement Fund (including accrued interest)Fund, less expenses Taxes, Tax Expenses and Notice and Administration Expenses which have either been incurred or disbursed pursuant to ¶¶3.7 ¶¶ 3.6 and 3.7 hereof, or 3.8 are chargeable to the Settlement Fund pursuant to ¶¶ 3.6 and 3.7 hereof, shall be refunded by the Escrow Agent pursuant to written instructions from Defendants’ counselCounsel. At the request of counsel for Defendants, the The Escrow Agent or their its designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any fees or expenses incurred in connection with such application(s) for refund, at the pursuant to written direction of instructions from Defendants’ counselCounsel.
8.7 8.6. In the event that the this Stipulation is not approved by the Court or the Settlement set forth in the this Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16March 17, 20192021. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1¶¶ 1.1-1.2842, 3.73.5-3.93.8, 7.27.3-7.4, 8.4-8.6 8.6, and 9.3-9.5 11.4 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the this Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expensesLitigation Expenses, and interest awarded by the Court to any of Lead Plaintiff’s Counsel or Plaintiffs the Lead Plaintiff shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the this Stipulation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be first business day after the date upon which the last (in time) of the following events occurs:
(a) execution of This Agreement has been signed by the Stipulation Parties, Class Counsel, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesNRG’s Counsel;
(b) The Court has entered Preliminary Approval of the Settlement Amount has been deposited with the Escrow AgentSettlement;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Settlement, following notice to terminate the Stipulation pursuant to ¶8.4 hereofSettlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment substantially consistent with this Agreement;
(d) The time expires for filing or noticing any appeal of the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;Court’s Final Judgment approving this Settlement Agreement; and
(e) If there is an appeal or are appeals from the Court has entered Final Judgment, disposition, in a manner that finally affirms and leaves in place the Final Judgment thatwithout any material modification, inter aliaof all proceedings arising out of the appeal or appeals (including, dismisses with prejudice but not limited to, the Actionexpiration of all deadlines for motions for reconsideration, as to Plaintiffs petitions for review, rehearing, rehearing en banc, or certiorari, all proceedings ordered on remand, and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereofall proceedings arising out of any subsequent appeal or appeals following decisions on remand).
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 10.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof paragraph 10.1 above are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to paragraph 10.3 below, unless Class Counsel and NRG’s Counsel mutually agree in writing to proceed with this Agreement. If the Settling reason for termination is that the Court fails to approve the Settlement, the Parties agree to make good faith efforts, over a period of 30 days from the date of the Court’s decision, to negotiate revisions to the Agreement to address the reasons for the Court’s decision before paragraph 10.3 below takes effect. If any Party is in material breach of the terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all other Parties, provided, however, that the Parties shall present the issue to Magistrate Judge ▇▇▇▇▇▇▇ in good faith and in order to make reasonable efforts to resolve the issue before a Party exercises the right to terminate under this provision. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award or the incentive award to the Class Representative, regardless of the amounts awarded, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination of the Agreement, provided that the amounts awarded by the Court do not exceed the amounts permitted by this Agreement.
10.3 If this Agreement is terminated or fails to become effective for the reasons set forth in paragraphs7.1, 7.2, 10.1, or 10.2, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order status quo ante with respect to the Action as if this Agreement had never been entered into and, pursuant to paragraph 11.5 below, this Agreement shall not be used for any purpose whatsoever against any of the Court or modification or reversal on appeal of any Parties. Under such order of circumstances, the Court concerning Settlement Administrator shall return the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court Settlement Fund to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationNRG.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final or, in the event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Parties and Settlement Class Members (which notice may be given by the Settlement Administrator via email to the email addresses on record for Settlement Class Members). Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, the Fee Award to be requested by Class Counsel and/or the Service Award to be requested for the Class Representative, as set forth in Section 8 above, shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1 and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid or payable and less any taxes and tax expenses paid, due or owing, shall be refunded by the Settlement Administrator to Defendant or its insurer(s), based upon written instructions provided by Defendant’s Counsel. In the event that the Final Judgment or any material part thereof is vacated, overturned, reversed, or rendered void as a result of any timely filed appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days thereof repay to Defendant or its insurer(s), based upon written instructions provided by Defendant’s Counsel, the full amount of the Fee Award, including any accrued interest, and shall be required cause Class Representative to present an amended trial schedule repay to Defendant or its insurer(s), based upon written instructions provided by Defendant’s Counsel, the full amount of the Service Award, including any accrued interest. In the event the Fee Award, Service Award, or any part thereof is vacated, modified, reversed, or rendered void as a result of a timely filed appeal, Class Counsel shall within thirty (30) days thereof repay, or cause Class Representative to repay, to the Court. No order of Settlement Fund, based upon written instructions provided by the Court or modification or reversal on appeal of any such order of Settlement Administrator, the Court concerning the Plan of Allocation or Fee Award and/or Service Award, in the amount of vacated or modified, including any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationaccrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution the Court has entered the Order of the Stipulation Preliminary Approval and such other documents Publishing of Notice of a Final Fairness Hearing, as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesby ¶ 3.1, hereof;
(b) TJX has not exercised its option to terminate the Settlement Amount has been deposited with the Escrow AgentAgreement pursuant to ¶ 9.3 hereof;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 ¶ 1.6, hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.4 hereof, unless Settlement Class Co-Lead Counsel and counsel for Defendants TJX mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon 9.3 Within 7 days after the occurrence of all of deadline established by the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate Court for Persons to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested request exclusion from the Settlement Class, Settlement Class Co-Lead Counsel shall furnish to counsel for TJX a complete list of all timely and valid requests for exclusion (the “Opt-Out List”). TJX, in accordance with the provisions of the Notice Order and the Notice given pursuant theretoits sole discretion, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation Settlement Agreement if the aggregate number of Persons who submit valid and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all timely requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before from the Settlement Hearing, whichever occurs last. Class exceeds 10,000 Persons eligible to be Settlement Class Members.
9.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (a) the Settling Parties shall be restored to their respective positions in the Action Litigation, and shall jointly request that all scheduled litigation deadlines shall be reasonably extended by the Court so as to avoid prejudice to any Settling Party or litigant, which extension shall be subject to the decision of August 16the Court, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest expenses awarded by the Court to Settlement Class Co-Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement.
Appears in 1 contract
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this
9.3 If this Agreement is terminated or fails to become effective for the Settling reasons set forth in Paragraphs 6.1-6.3 and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid or payable and less any taxes and tax expenses paid, due or owing, shall be required refunded by the Settlement Administrator to present an amended trial schedule Defendant, based upon written instructions provided by Defendant’s Counsel. In the event that the Final Settlement Order and Judgment or any material part of it is vacated, overturned, reversed, or rendered void as a result of any timely filed appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days thereof repay to Defendant, based upon written instructions provided by Defendant’s Counsel, the Court. No order full amount of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees and costs paid to Class Counsel from the Settlement Fund, costs, including any accrued interest. In the event the attorney fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Lead Defendant, based upon written instructions provided by Defendant’s Counsel, the attorneys’ fees and costs paid to Class Counsel and/or Representative Plaintiffs from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, including any accrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount Defendant has been deposited with the Escrow Agent;
(c) Defendants have not exercised their its option to terminate the Stipulation Settlement Agreement pursuant to ¶8.4 hereof¶ 4.3;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(eb) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, Settlement as set forth aboveherein; and
(fc) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.15.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 10.2 If all of the conditions specified in ¶8.1 ¶ 1.15 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof unless Lead Class Counsel and Defendant’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that10.3 Within fourteen (14) days after the Opt-Out Date, upon the occurrence Settlement Administrator shall furnish to Class Counsel and to Defendant’s counsel a complete list of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, timely and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all valid requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate (the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. “Opt-Out List”).
10.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation Agreement or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, releases set forth in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is ¶ 6.1 above are not approved by the Court or the Settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or Service Awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, Defendant shall be obligated to pay amounts already billed or incurred for costs of notice to the Class, Settlement Administration, and Dispute Resolution pursuant to ¶¶ 2.4, 3.2, 9.1-9.4 above and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of this Settlement Agreement shall not occur until all of the Stipulation following events occur, and shall be conditioned on the occurrence of all date which falls ten (10) calendar days after the last (in time) of the following events:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Illinois Code of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined in ¶1.10 hereofabove, or, if the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental if this Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 unless Class Counsel and HHS’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Settling Parties. Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, Class Counsel’s request for payment of attorneys’ fees, costs and/or expenses and/or the request for
9.3 If this Agreement is terminated or fails to become effective, including but not limited to, for the reasons set forth in Paragraphs 6.1 and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16the moment just prior to the signing of the Class Action Settlement Term Sheet and this Agreement and the Class Action Settlement Term Sheet entered into between HHS and the Class Representative shall be cancelled, 2019null, and void. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Courtstatus quo ante with respect to the Action as if this Agreement and the Class Action Settlement Term Sheet had never been entered into. No order If the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall within thirty (30) days repay to HHS, based upon written instructions provided by HHS’s Counsel, the full amount of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees and costs paid to Class Counsel from the Settlement Fund, costs, including any accrued interest. If the attorneys’ fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Lead HHS, based upon written instructions provided by HHS’s Counsel, the attorneys’ fees and costs paid to Class Counsel and/or Class Representatives from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, including any accrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The Effective Date of the Stipulation 9.1 This Settlement Agreement shall be conditioned on the occurrence of all not become effective unless and until each of the following eventsevents has occurred:
(a) execution of the Stipulation This Agreement has been signed by Plaintiffs, Monitronics, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesClass Counsel;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow Agent;Preliminary Approval Order; and
(c) Defendants have not exercised their option The Court has entered the Final Approval Order and Judgment, following notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, or a final approval order and judgment substantially consistent with this Agreement; and
(d) All appeals have been resolved or the Court time for filing any appeal has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereofrun.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If this Agreement is terminated or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or an order approving the Settlement set forth in the Stipulation Agreement is terminated or fails to become effective in accordance with its termsreversed on appeal, the Settling Parties shall be restored to their respective positions in the Action MDL as of August 16, 2019the date of the signing of this Agreement. In such event, the terms any Final Approval Order and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the litigation as of August 16if this Agreement had never been entered into. If the termination or failure to become effective occurs before the Preliminary Approval Order is entered, 2019, the Parties agree that Monitronics shall have no obligation to make any payment to the Settlement Administrator and that any sums on deposit with the Settlement Administrator shall be required returned to present an amended trial schedule Monitronics. If the termination or failure to be approved occurs after the initial payment, provided for in Section 2.2, above, has been made to the Court. No order Settlement Administrator and charges have been incurred, then any sums not necessary for incurred expenses, or already expended upon notice at the time of the Court termination or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court failure to Lead Counsel or Plaintiffs be approved shall constitute grounds for cancellation or termination of the Stipulationbe returned to Monitronics.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution the Court has entered the Order of the Stipulation Preliminary Approval and such other documents Publishing of Notice of a Final Fairness Hearing, as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesby ¶ 3.1, hereof;
(b) Heartland has not exercised its option to terminate the Settlement Amount has been deposited with the Escrow AgentAgreement pursuant to ¶ 9.3 hereof;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 ¶ 1.8, hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.4 hereof, unless Co-Lead Settlement Class Counsel and counsel for Defendants Heartland mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon 9.3 Within seven (7) days after the occurrence of all of deadline established by the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate Court for Persons to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested request exclusion from the Settlement Class, Co-Lead Settlement Class Counsel shall furnish to counsel for Heartland a complete list of all timely and valid requests for exclusion (the “Opt-Out List”). Heartland, in accordance with the provisions of the Notice Order and the Notice given pursuant theretoits sole discretion, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation Settlement Agreement if the aggregate number of Persons who submit valid and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all timely requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before from the Settlement Hearing, whichever occurs last. Class exceeds 2,500 Persons eligible to be Settlement Class Members.
9.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (a) the Settling Parties shall be restored to their respective positions in the Action Litigation, and shall jointly request that all scheduled litigation deadlines shall be reasonably extended by the Court so as to avoid prejudice to any Settling Party or litigant, which extension shall be subject to the decision of August 16the Court, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest expenses awarded by the Court to Co-Lead Settlement Class Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1. The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution the Court has entered the Order of the Stipulation Preliminary Approval and such other documents Publishing of Notice of a Final Fairness Hearing, as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesby ¶ 3.1;
(b) OSF has not exercised its option to terminate the Settlement Amount has been deposited with the Escrow AgentAgreement pursuant to ¶ 4.4;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.11.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished10.2. If all of the conditions specified in ¶8.1 ¶ 10.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 10.4 unless Lead Settlement Class Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.OSF
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No10.3. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before Within seven (7) business days after the receipt of all of Opt-Out Date, the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Claims Administrator shall furnish to Settlement Hearing, whichever occurs lastClass Counsel and to OSF
10.4. In the event that the Camping World serves a written notice Settlement Agreement is not approved by the Court or the settlement set forth in the Settlement Agreement is terminated in accordance with its terms,
(i) the Parties shall be restored to their respective positions in the Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as to avoid prejudice to any Party or its counsel, and (ii) the terms and provisions of termination pursuant the Settlement Agreement shall have no further force and effect with respect to the Supplemental AgreementParties and shall not be used in the Litigation or in any other proceeding for any purpose, Camping World may withdraw its written notice and any judgment or order entered by the Court in accordance with the terms of termination by providing written notice of such withdrawal to Lead Counsel and the Settlement Agreement shall be treated as vacated, nunc pro tunc. Notwithstanding any statement in this Settlement Agreement to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubtcontrary, no order of the Court or modification or reversal on appeal of any order of reducing the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by Settlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the Courtcontrary, in the event the Stipulation OSF shall terminate, be obligated to pay amounts already billed or be canceled, or shall not become effective incurred for any reason, within five (5) business days after written notification costs of such event is sent by counsel for Defendants or Lead Counsel, notice to the Settlement Fund (including accrued interest)Class, less expenses which have either been incurred or disbursed Claims Administration, and Dispute Resolution pursuant to ¶¶3.7 or 3.8 hereof, ¶ 2.4 above and shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refundnot, at the written direction any time, seek recovery of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect same from any other party to the Settling Parties and shall not be used in this Action Litigation or in from counsel to any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule party to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationLitigation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the 1. The Court has entered the Preliminary Approval Order and Publishing of Notice Order, substantially in the form of Exhibit A heretoa Final Approval Hearing, as required by ¶4.1 hereof¶¶ 3.1 and 3.4;
(e) the 2. The Court has entered the Final Judgment that, inter alia, dismisses with prejudice and Order granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(f) the 3. The Final Judgment and Order has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished¶ 1.12. If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof terminated, unless Lead Class Counsel and counsel for Defendants Advent Health mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. 9.2 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation Agreement or the amount of attorneys’ feesreleases set forth in ¶¶ 1.21-1.23, expenses 1.30 and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is 6.1-6.2 above are not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, : (i) the Settling Parties shall be restored to their respective positions in the Action and shall jointly request that all scheduled Action deadlines be reasonably extended by the Court so as of August 16, 2019. In such event, to avoid prejudice to any Settling Party or Settling Party’s counsel; (ii) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this the Action or in any other proceeding for any purpose, and (iii) any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, Advent Health shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class, Claims Administration, and dispute resolution, and shall not, at any time, seek recovery of same from any other party to the Action or from counsel to any other party to the Action.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs:
(a) execution a. This Agreement has been signed by the Parties, Class Counsel and Defendant’s Counsel;
b. The Court has entered an order granting Preliminary Approval of the Stipulation Agreement;
c. The Court has entered an order finally approving the Agreement, following Notice to the Settlement Class and such other documents a Final Approval Hearing, as may be required to obtain provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment substantially consistent with this Settlement Agreement that has become final and unappealable; and
d. In the event that the Court approval of the Stipulation enters an order and final judgment in a form satisfactory other than that provided above (“Alternative Judgment”) to which the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants Parties have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderconsented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the that Alternative Judgment has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Section 9.3, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the following shall not prevent the Settlement Agreement from becoming effective, nor shall they be grounds for termination of the Agreement: (1) the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive award to the Class Representative, regardless of the amounts awarded; or (2) the Court’s determination that it lacks jurisdiction such that the Parties’ Agreement will be renewed in an appropriate forum.
9.3 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the Action as of August 16the date of the signing of this Agreement, 2019and Defendant’s entry into the Settlement Agreement shall not be considered, in any way, as an admission concerning liability or the propriety of class certification. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Settlement Agreement had never been entered into.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution the Court has entered the Order of the Stipulation Preliminary Approval and such other documents Publishing of Notice of a Final Fairness Hearing, as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesby ¶ 3.1;
(b) the Settlement Amount Navicent has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation Settlement Agreement pursuant to ¶8.4 hereof¶ 4.3;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(ec) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.11.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 10.2 If all of the conditions specified in ¶8.1 ¶ 10.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 10.4 unless Lead Proposed Settlement Class Counsel and Navicent’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before 10.3 Within seven (7) business days after the receipt Opt-Out Date, the Claims Administrator shall furnish to Proposed Settlement Class Counsel and to Navicent’s counsel a complete list of all of the copies of the timely and valid requests for exclusion, on or before ten exclusion (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. “Opt-Out List”).
10.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, ,
(i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party or Settling Party’s counsel, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, Navicent shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class, Claims Administration, and Dispute Resolution pursuant to ¶ 2.6 above and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The 7.1 With respect to Defendants’ Insurer and the Released Party Defendants other than Graña y Montero, the Effective Date of the Stipulation Settlement shall be conditioned on the occurrence of all of the following events:
(a) execution the Court has entered the Preliminary Approval Order directing notice to the Settlement Class, as required by ¶3.1 hereof;
(b) five million U.S. dollars ($5,000,000) has been deposited in full into the Escrow Account by Defendants’ Insurer as provided in ¶2.2 hereof;
(c) the Court has approved the Settlement as described herein, following notice to the Settlement Class and a hearing, as prescribed by Rule 23 of the Stipulation Federal Rules of Civil Procedure, and such other documents entered the Judgment in the form attached hereto as may be required to obtain final Court approval Exhibit B without any material change, including, but not limited to, the scope of the Stipulation in a form satisfactory releases provided to the Settling Parties;
(d) the Judgment as to Defendant ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ has become Final, as defined in ¶1.11 hereof; and
(e) the Effective Date as to Defendants’ Insurer and the Released Party Defendants other than Graña y Montero is distinct and is not contingent in any way on Defendant Graña y ▇▇▇▇▇▇▇’▇ actions in relation to this Stipulation, including the payment of any amount required to be paid by Defendant Graña y Montero pursuant ¶2.2 hereof.
7.2 With respect to Defendant Graña y ▇▇▇▇▇▇▇, the Effective Date of the Settlement shall be conditioned on the occurrence of all of the following events:
(a) the Court has entered the Preliminary Approval Order directing notice to the Settlement Class, as required by ¶3.1 hereof;
(b) the Settlement Amount fifteen million U.S. dollars ($15,000,000) plus any accrued interest has been deposited with in full into the Escrow AgentAccount by Defendant Graña y ▇▇▇▇▇▇▇ as provided in ¶2.2 hereof;
(c) Defendants have Defendant Graña y Montero has not exercised their its option to terminate the Stipulation Settlement pursuant to ¶8.4 ¶7.4 hereof;
(d) the Court has approved the Settlement as described herein, following notice to the Settlement Class and a hearing as prescribed by Rule 23 of the Federal Rules of Civil Procedure, and entered the Notice Order, substantially Judgment in the form attached hereto as Exhibit B without any material change, including, but not limited to, the scope of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered releases provided to the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth aboveSettling Parties; and
(fe) the Judgment has become Final, as defined in ¶1.10 ¶1.11 hereof.
8.2 7.3 Upon the occurrence of all of the events referenced in ¶8.1 hereofEffective Date, any and all remaining interest or right of the Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguishedextinguished and the Releases herein shall be effective. The Released Defendant Parties shall not have any liability, obligation, or responsibility for the payment of Claims, Taxes, legal fees, or any other expenses payable from the Settlement Fund. If all of the conditions specified in ¶8.1 ¶7.1 hereof are not met, then the Stipulation Settlement shall be canceled and terminated subject to ¶8.5 ¶¶7.5, 7.6 and 7.7 hereof unless Lead Counsel and counsel for Defendants the Settling Parties mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, expenses expenses, and interest awarded by the Court to Lead Counsel or costs or awards expenses to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the SettlementStipulation.
8.6 7.4 Graña y ▇▇▇▇▇▇▇ shall have the unilateral right to terminate the Settlement and render it null and void in the event Members of the Settlement Class who purchased or otherwise acquired more than a certain percentage of Graña y Montero ADS subject to this Settlement exclude themselves from the Settlement Class, as set forth in a separate agreement (the “Supplemental Agreement”) executed between Plaintiffs and Graña y Montero, by and through their counsel. The Settling Parties agree to maintain the confidentiality of the Supplemental Agreement, which is being executed concurrently herewith. The Supplemental Agreement shall not be filed with the Court and its terms shall not be disclosed in any other manner (other than the statements herein and in the Notice, to the extent necessary, or as otherwise provided in the Supplemental Agreement) unless and until the Court requires the Settling Parties to file the Supplemental Agreement or disclose its terms. If submission of the Supplemental Agreement is ordered by the Court or is necessary to resolve a dispute between the Plaintiffs and Graña y Montero, the Settling Parties will seek to have the Supplemental Agreement submitted to the Court in camera or filed under seal, but such disclosure shall be carried out to the fullest extent possible in accordance with the practices of the Court so as to preserve the confidentiality of the Supplemental Agreement, particularly the threshold aggregate number of ADS. Notwithstanding the foregoing, Defendants may include a redacted copy of the Supplemental Agreement with any notice provided pursuant to CAFA.
7.5 Unless otherwise ordered by the Court, in the event this Stipulation is not approved or this Stipulation or the Stipulation shall terminateSettlement is terminated, or be canceled, or shall not become effective the Effective Date otherwise fails to occur for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counselincluding, the Settlement Fund (including accrued interest)without limitation, less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Judgment is not approved by the Court reversed or the Settlement set forth in the Stipulation vacated or altered following any appeal taken therefrom, or is terminated or fails to become effective in accordance with its termssuccessfully collaterally attacked, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.within ten
Appears in 1 contract
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs:
(a) execution a. This Agreement has been signed by the Parties, Class Counsel, Defendant’s Counsel, and West Bend’s Counsel;
b. The Court has entered an order granting Preliminary Approval of the Stipulation Agreement;
c. The Court has entered an order finally approving the Agreement, following Notice to the Settlement Class and such other documents as may be required to obtain a Final Approval Hearing, and has entered the Final Judgment, or a judgment substantially consistent with this Settlement Agreement that has become final and unappealable; and
d. In the event that the Court approval of the Stipulation enters an order and final judgment in a form satisfactory other than that provided above (“Alternative Judgment”) to which the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants Parties have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Orderconsented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the that Alternative Judgment has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subject to Section 9.3, unless Class Counsel, Defendant’s Counsel, and West Bend’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the incentive award to the Class Representative, regardless of the amounts awarded, shall not prevent the Settlement Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the Action as of August 16the date of the signing of this Agreement, 2019and Defendant’s entry into the Settlement Agreement shall not be considered, in any way, as an admission concerning liability or the propriety of class certification. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Settlement Agreement had never been entered into.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until ten (10) days after each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Finala Final Order, as defined in ¶1.10 hereofabove, or, if the Court enters an Alternate Judgment, such Alternate Judgment becomes a Final Order.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental if this Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Settling Parties. Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, Class Counsel’s request for payment of attorneys’ fees, costs and/or expenses and/or the request for incentive award payments set forth in Paragraph 8 above shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1-6.2 and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16, 2019the moment just prior to the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order status quo ante with respect to the Action as if this Agreement had never been entered into.
9.4 Within five (5) business days after written notification of termination as provided in this Agreement is sent to the other Parties, the Settlement Fund, less any Settlement
9.5 If the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days repay to Defendant, based upon written instructions provided by Defendant’s Counsel, the full amount of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees and costs paid to Class Counsel from the Settlement Fund, costs, including any accrued interest. If the attorney fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Lead Defendant, based upon written instructions provided by Defendant’s Counsel, the attorneys’ fees and costs paid to Class Counsel and/or Class Representatives from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, including any accrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 10.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution the Court has entered the Order of the Stipulation Preliminary Approval and such other documents Publishing of Notice of a Final Fairness Hearing, as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiesby ,r 3.1;
(b) the Settlement Amount GCPA has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation Settlement Agreement pursuant to ¶8.4 hereof,r 4.3;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(ec) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; andand 270307649v.l
(fd) the Judgment has become Final, as defined in ¶1.10 hereof,r 1.12.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 10.2 If all of the conditions specified in ¶8.1 ,r 10.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ,r 10.4 unless Lead Counsel and counsel for Defendants the Settling Parties mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before 10.3 Within seven (7) business days after the receipt Opt-Out Date, the Claims Administrator shall furnish to counsel for the Settling Parties a complete list of all of the copies of the timely and valid requests for exclusion, on or before ten exclusion (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. "Opt-Out List").
10.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, :
(i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party or Settling Party's counsel, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule tune. Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ ' fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the Stipulation.Settlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, GCPA shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class, Claims Administration, and Dispute Resolution pursuant to ,r 2 above and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation. 270307649v.l
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount Fund amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 ¶8.3 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs Lead Plaintiffs, the Class, and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 ¶8.4 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World Allscripts common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Lead Plaintiffs and Camping WorldDefendants, Camping World Defendants shall have the sole option (which option must be exercised unanimously) to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Lead Plaintiffs and Camping World Defendants concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World Defendants may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven five (75) business days after the receipt of all of the copies of the requests for exclusion, on or before ten five (105) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves Defendants serve a written notice of termination pursuant to termination, the Supplemental Agreement, Camping World Defendants may withdraw its their written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Lead Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 8.4 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead CounselCounsel to the Escrow Agent, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 ¶¶3.6 or 3.8 3.7 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 8.5 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective positions in the Action as of August 16February 17, 20192015, and the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.6 or 3.7 shall be returned to the original source of the Settlement Fund. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.281.24, 3.73.6-3.93.8, 7.2, 8.4-8.6 8.5 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16February 17, 2019, and shall be required to present an amended trial schedule to the Court2015. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Lead Plaintiffs shall constitute grounds for cancellation or termination of the Stipulation.
8.6 Lead Counsel shall have the right but not the obligation to terminate the Settlement twenty-one (21) calendar days after the failure of Defendants to timely pay the Settlement Amount.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Order of Preliminary Approval and Publishing of Notice Order, substantially in the form of Exhibit A heretoa Final Fairness Hearing, as required by ¶4.1 hereof¶ 3.1;
(eb) OFP has not exercised its option to terminate the Settlement Agreement pursuant to ¶ 4.3;
c) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.12.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.4 unless Lead Proposed Class Counsel and OFP’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. 9.3 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16to avoid prejudice to any Settling Party or Settling Party’s counsel, 2019. In such event, and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, OFP shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class, Claims Administration, and Dispute Resolution above and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The Effective Date of 9.1 If the Stipulation Court’s Final Approval Order is reversed or otherwise rejected on appeal, or the Court requires material alterations to this Settlement Agreement, then this Settlement Agreement shall be conditioned on the occurrence of canceled, terminated and deemed void, and all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) monies deposited into the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, Fund shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered returned to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before Insurer within seven (7) business calendar days after (minus any actual, reasonable and necessary expenses incurred by the receipt Settlement Administrator prior to the date of all of termination), unless the copies of Parties amend this Agreement in a mutually executed writing in order to accommodate the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reasonCourt’s, or on appellate court’s, reasoning or before three (3) business days before the Settlement Hearing, whichever occurs last. suggested alterations.
9.2 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, the Settling Parties shall be restored to their respective pre-settlement positions in the Action as Litigation without any penalty or sanction, the Parties shall retain all of August 16their pre-settlement litigation rights and defenses, 2019and this entire Agreement shall become null and void. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and this Agreement shall not be used in this Action the Litigation, or in any other proceeding proceeding, for any purpose, and any Judgment all communications and documents related to this Agreement shall be subject to Federal Rule of Evidence 408 and all other applicable settlement, negotiation and mediation privileges; and the Final Approval Order or other judgment or order entered by the Court in accordance with the terms of the Stipulation shall pursuant to this Agreement will be treated as vacated, nunc pro tunc.
9.3 Up to, but not exceeding, the amount set forth in Paragraph 5.3 for Class Notice and Administrative Fees, Defendants’ shall bear all actual, reasonable and necessary costs incurred in connection with the Settling Parties administration of this Class Action Settlement Agreement by the Settlement Administrator up until its termination. Neither the Class Representatives nor Class Counsel shall be deemed responsible for any such settlement related costs. Upon termination of this Agreement, neither Defendants nor Defendants’ Insurer shall have any financial responsibility exceeding the amount previously paid into the Settlement Fund with respect to return to their status as of August 16, 2019, Class Notice and shall be required to present an amended trial schedule to Administrative Fees. In the Court. No order event of the Court or modification or reversal on appeal termination of this Agreement, Defendants and Defendants’ Insurer shall have the right to challenge the reasonableness of any such order costs incurred in connection with administration of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded this Agreement by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationSettlement Administrator.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Order of Preliminary Approval and Publishing of Notice Order, substantially in the form of Exhibit A heretoa Final Fairness Hearing, as required by ¶4.1 hereof¶ 3;
(eb) Hy-Vee has not exercised its option to terminate the Settlement Agreement pursuant to ¶ 4.3;
c) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.10.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.4 unless Lead Proposed Class Counsel and Hy-Vee’s counsel for Defendants mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before 9.3 Within seven (7) business days after the receipt Opt-Out Date, the Settlement Administrator shall furnish to Proposed Class Counsel and to Hy-Vee’s counsel a complete list of all of the copies of the timely and valid requests for exclusion, on or before ten exclusion (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. “Opt-Out List”).
9.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled litigation deadlines be reasonably extended by the Court so as of August 16, 2019. In such event, to avoid prejudice to any Settling Party or Settling Party’s counsel; and (b) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, Hy-Vee shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class, Claims Administration, and Dispute Resolution above and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following eventsevents occurs and shall be the date upon which the last (in time) of the following events occurs:
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an Alternate Judgment, such Alternate Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Settlement Agreement shall be canceled and terminated subject to Paragraph 6.1 or 6.2 unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Agreement. If any Party is in material breach of the terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Agreement on notice to all of the Settling Parties. Notwithstanding anything herein, the Parties agree that the Court’s failure to approve, in whole or in part, the attorneys’ fees payment to Class Counsel and/or the incentive award set forth in Paragraph 8 above shall not prevent the Agreement from becoming effective, nor shall it be grounds for termination.
9.3 If this Agreement is terminated or fails to become effective for the reasons set forth in Paragraphs 6.1, 6.2, and 9.1-9.2 above, the Parties shall be restored to their respective positions in the Action as of August 16the date of the signing of this Agreement, 2019unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with the Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed returned to return the status quo ante with respect to their status the Action as if this Agreement had never been entered into. Within five (5) business days after written notification of August 16termination as provided in this Agreement is sent to the other Parties, 2019the Settlement Fund (including accrued interest thereon), less any Settlement Administration costs actually incurred, paid or payable and less any taxes and tax expenses paid, due or owing, shall be required refunded by the Settlement Administrator to present Defendant or Defendant’s insurer, if applicable, based upon written instructions provided by Defendant’s Counsel. In the event that the Final Settlement Order and Judgment or any part of it is vacated, overturned, reversed, or rendered void as a result of an amended trial schedule appeal, or the Settlement Agreement is voided, rescinded, or otherwise terminated for any other reason, Class Counsel shall, within thirty (30) days repay to Defendant or Defendant’s insurer, if applicable, based upon written instructions provided by Defendant’s Counsel, the Court. No order full amount of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees and costs paid to Class Counsel from the Settlement Fund, costs, including any accrued interest. In the event the attorney fees and expenses, and interest costs awarded by the Court or any part of them are vacated, modified, reversed, or rendered void as a result of an appeal, Class Counsel shall within thirty (30) days repay to Lead Defendant or Defendant’s insurer, if applicable, based upon written instructions provided by Defendant’s Counsel, the attorneys’ fees and costs paid to Class Counsel and/or Representative Plaintiff from the Settlement Fund, in the amount vacated or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationmodified, including any accrued interest.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date Settlement is conditioned upon Preliminary Approval and Final Approval of the Stipulation shall be conditioned on Settlement Agreement, and all terms and conditions thereof without material change, material amendments, or material modifications by the occurrence Court, except to the extent such changes, amendments, or modifications are agreed to in writing between the Parties. All exhibits attached hereto are incorporated into this Settlement Agreement. Accordingly, any Party may elect to terminate and cancel this Settlement Agreement by providing written notice of all the election to do so to Class Counsel or Defendants’ Counsel within ten (10) calendar days of any of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) a. the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) Preliminary Approval Order approving of this Agreement in any material respect;
b. the Court’s refusal to enter the JudgmentFinal Approval Order in this Action in any material respect;
c. the Court’s refusal to enter a final judgment in this Action in any material respect; (d) or
d. the date upon which the Judgment Final Approval Order is modified or reversed in any material respect by the Court of Appeals or vacated or altered following an appeal taken therefrom, or the Supreme Court.
9.2 If any Party is successfully collaterally attacked; or (e) the failure in material breach of the Effective Date terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to occur for any reasonall other Parties. For avoidance of doubtNotwithstanding anything herein, no order of the Court or modification or reversal on appeal of any order of Parties agree that the Court concerning the Plan of Allocation or Court’s decision as to the amount of attorneys’ feesthe Fee Award to Class Counsel set forth above or the Service Award to the Class Representative, expenses and interest awarded by regardless of the Court to Lead Counsel or costs or awards to Plaintiffs amounts awarded, shall operate to terminate or cancel this Stipulation or constitute not prevent the Settlement Agreement from becoming effective, nor shall it be grounds for cancellation or termination of the SettlementSettlement Agreement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the 9.3 If this Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation Agreement is terminated or fails to become effective in accordance with its termsfor the reasons set forth above, the Settling Parties shall be restored to their respective positions in the Action as of August 16, 2019. In such eventthe date of the signing of this Agreement, the terms and provisions of Parties shall be returned to the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect status quo ante with respect to the Settling Parties and shall not be used in Action as if this Action or in any other proceeding for any purpose, and any Judgment or order Settlement Agreement had never been entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tuncinto, and the Settling Parties Settlement Fund payment shall be deemed returned to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to the Court. No order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationPIIC.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs subject to the provisions in Section 1.11:
(a) execution of This Agreement has been signed by the Stipulation Parties, Class Counsel, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesDefendants’ Counsel;
(b) The Court has entered the Settlement Amount has been deposited with Preliminary Approval Order approving the Escrow AgentAgreement;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant Settlement Class and a Final Approval Hearing, and has entered the Final Approval Order, or a judgment materially identical to ¶8.4 hereof;the Final Approval Order, and such order or judgment has become final and unappealable; and
(d) In the event the Court has entered enters an approval order and final judgment in a form other than that provided above (“Alternative Approval Order”) to which the Notice OrderParties have consented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence 9.2 If some of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated, unless Class Counsel and Defendants’ Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the Individual Settlement Amount for Non-FMWA Claims to the Class Representative, regardless of the amounts awarded, shall not prevent the Settlement Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the this Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement, including, but not limited to, class certification, shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Courtstatus quo ante with respect to the Action as if this Settlement Agreement had never been entered into. No order of In addition, in the Court event this Settlement Agreement is terminated or modification fails to become effective for the reasons set forth above, it shall not be used for any purpose, including without limitation, in connection with the Action or reversal on appeal of any such order of the Court concerning the Plan of Allocation other lawsuit, administrative, or the amount of any attorneys’ feesother legal proceeding, costsclaim, and expensesinvestigation, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the Stipulationcomplaint.
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 The Effective Date 1. Subject to all other Sections herein, in the event that the Court makes any material modification to the terms of the Stipulation shall be conditioned on Settlement, including, but not limited to, any modification which operates to materially change the occurrence of all scope of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment has become Final, as defined in ¶1.10 hereof.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in Class or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned require ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ v. Camping WorldBeauty to pay any amounts in excess of the Settlement Fund (with the exception of any modification to the terms, et al.timing or proposed amount of any Fee Award or Incentive Award), Nothe terms contained in this Settlement Agreement and any amendments thereto, may be terminated by either Party. 2019-CH-02404 Such termination may be effectuated by providing written election of the right to do so (Ill. Cir. Ct. Cook Cty.“Termination Notice”) will be subsequently dismissedto the other Party within fourteen (14) days of any event triggering the right to terminate (as described above), and will take all steps reasonably appropriate including: (i) the Court’s refusal to seek such dismissalgrant Preliminary Approval of this Agreement in any material respect; (ii) the Court’s refusal to grant final approval of this Agreement in any material respect; (iii) the Court’s refusal to enter Final Approval Judgment in this Action in any material respect; (iv) the date upon which Final Approval Judgment is vacated, modified or reversed in any material respect by the Court, the Illinois Appellate Court, the Illinois Supreme Court, or the Supreme Court of the United States; or (v) the date upon which an Alternate Judgment is vacated, modified or reversed in any material respect by the Court, the Illinois Appellate Court, the Illinois Supreme Court, or the Supreme Court of the United States.
8.4 If, 2. If prior to the Settlement Final Approval Hearing, Persons who otherwise would be members of the Settlement FILED DATE: 8/8/2024 8:04 AM 2022CH11832 Class Members have timely requested exclusion from the Settlement Class in accordance with the provisions of the Notice Preliminary Approval Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased equal to or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount are greater than one percent of the sum specified Estimated Number of Class Members, CTBI shall have, in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs its sole and Camping Worldabsolute discretion, Camping World shall have the sole option to terminate this Stipulation and Settlement by giving notice as set forth above, herein, Section XVI. 22.
3. If any Party is in accordance material breach of the terms of this Settlement Agreement, then the other Party, provided that it is in substantial compliance with the procedures set forth in terms of this Agreement, may move to enforce the Supplemental Agreement. The Supplemental terms of or terminate this Settlement Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all upon written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant notice to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Classother Party.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and 4. If this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is not approved by the Court or the Settlement set forth in the Stipulation Agreement is terminated or fails to become effective in accordance with its termseffective, then the Settling Parties shall be restored to their respective positions in the Action as of August 16the moment just prior to the signing of this Agreement, 2019and the Settlement Term Sheet entered into between CTBI and the Named Plaintiff shall be canceled, null and void. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purpose, and any Final Approval Judgment or other order entered by the Court in accordance with the terms of the Stipulation this Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of Action as if this Agreement and the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationSettlement Term Sheet had never been entered into.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation this Settlement Agreement shall be conditioned on the occurrence of all not occur unless and until each of the following events:events occurs and shall be the date upon which the last (in time) of the
(a) execution of the Stipulation The Parties and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Partiestheir counsel have executed this Agreement;
(b) The Court has entered the Settlement Amount has been deposited with the Escrow AgentPreliminary Approval Order;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant to ¶8.4 hereof;Settlement Class and a Final Approval Hearing, as provided in the Federal Rules of Civil Procedure, and has entered the Final Judgment, or a judgment consistent with this Agreement in all material respects; and
(d) the Court has entered the Notice Order, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the The Final Judgment has become Final, as defined above, or, in ¶1.10 hereofthe event that the Court enters an order and final judgment in a form other than that provided above (“Alternative Judgment”) and that has the consent of the Parties, such Alternative Judgment becomes Final.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest 9.2 If some or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Paragraph 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, the Settling Parties then this Settlement Agreement shall be restored canceled and terminated subject to their respective positions Paragraph 6.1 unless Class Counsel and Defendant’s Counsel mutually agree in the Action as writing to proceed with this Agreement. If any Party is in material breach of August 16, 2019. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action or in any other proceeding for any purposeParty, and any Judgment or order entered by the Court provided that it is in accordance substantial compliance with the terms of the Stipulation shall be treated as vacatedthis Agreement, nunc pro tunc, and may terminate this Agreement on notice to all of the Settling Parties. Notwithstanding anything herein, the Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule to agree that the Court. No order of ’s failure to approve, in whole or in part, the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ feesfees payment to Class Counsel and/or the incentive award set forth in Paragraph 8 above shall not prevent the Agreement from becoming effective, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs nor shall constitute it be grounds for cancellation termination.
9.3 If this Agreement is terminated or termination of fails to become effective for the Stipulation.reasons set
Appears in 1 contract
Sources: Class Action Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation settlement shall be conditioned on the occurrence of all of the following events:
(a) execution of the Stipulation and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling Parties;
(b) the Settlement Amount has been deposited with the Escrow Agent;
(c) Defendants have not exercised their option to terminate the Stipulation pursuant to ¶8.4 hereof;
(d) the Court has entered the Order of Preliminary Approval and Publishing of Notice Order, substantially in the form of Exhibit A heretoa Final Fairness Hearing, as required by ¶4.1 hereof¶ 3.1;
(eb) GCBS has not exercised its option to terminate the Settlement Agreement pursuant to ¶ 4.3;
c) the Court has entered the Judgment that, inter alia, dismisses with prejudice granting final approval to the Action, as to Plaintiffs and the Defendants, settlement as set forth aboveherein; and
(fd) the Judgment has become Final, as defined in ¶1.10 hereof¶ 1.11.
8.2 Upon the occurrence of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. 9.2 If all of the conditions specified in ¶8.1 ¶ 9.1 hereof are not metsatisfied, then the Stipulation Settlement Agreement shall be canceled and terminated subject to ¶8.5 hereof ¶ 9.4 unless Lead Class Counsel and counsel for Defendants GCBS mutually agree in writing to proceed with the SettlementSettlement Agreement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before 9.3 Within seven (7) business days after the receipt Opt-Out Date, the Claims Administrator shall furnish to Class Counsel and to GCBS’s counsel a complete list of all of the copies of the timely and valid requests for exclusion, on or before ten exclusion (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. “Opt-Out List”).
9.4 In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation Agreement or the amount of attorneys’ feesreleases set forth in ¶¶ 6.1, expenses 6.2, and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation is 6.3 above are not approved by the Court or the Settlement settlement set forth in the Stipulation Settlement Agreement is terminated or fails to become effective in accordance with its terms, : (i) the Settling Parties shall be restored to their respective positions in the Action Litigation and shall jointly request that all scheduled Litigation deadlines be reasonably extended by the Court so as of August 16, 2019. In such event, to avoid prejudice to any Settling Party or Settling Party’s counsel; (ii) the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, Settlement Agreement shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action the Litigation or in any other proceeding for any purpose, and (iii) any Judgment judgment or order entered by the Court in accordance with the terms of the Stipulation Settlement Agreement shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule . Notwithstanding any statement in this Settlement Agreement to the Court. No contrary, no order of the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or reducing the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs and/or service awards shall constitute grounds for cancellation or termination of the StipulationSettlement Agreement. Further, notwithstanding any statement in this Settlement Agreement to the contrary, GCBS shall be obligated to pay amounts already billed or incurred for costs of notice to the Settlement Class, and Claims Administration, and shall not, at any time, seek recovery of same from any other party to the Litigation or from counsel to any other party to the Litigation.
Appears in 1 contract
Sources: Settlement Agreement
CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION. 8.1 9.1 The Effective Date of the Stipulation shall be conditioned on the occurrence of all not occur unless and until each and every one of the following eventsevents occurs, and shall be the date upon which the last (in time) of the following events occurs subject to the provisions in Section 1.11:
(a) execution of This Agreement has been signed by the Stipulation Parties, Class Counsel, and such other documents as may be required to obtain final Court approval of the Stipulation in a form satisfactory to the Settling PartiesDefendant’s Counsel;
(b) The Court has entered the Settlement Amount has been deposited with Preliminary Approval Order approving the Escrow AgentAgreement;
(c) Defendants have not exercised their option The Court has entered an order finally approving the Agreement, following Notice to terminate the Stipulation pursuant Settlement Class and a Final Approval Hearing, and has entered the Final Approval Order, or a judgment materially identical to ¶8.4 hereof;the Final Approval Order, and such order or judgment has become final and unappealable; and
(d) In the event the Court has entered enters an approval order and final judgment in a form other than that provided above (“Alternative Approval Order”) to which the Notice OrderParties have consented, substantially in the form of Exhibit A hereto, as required by ¶4.1 hereof;
(e) the Court has entered the Judgment that, inter alia, dismisses with prejudice the Action, as to Plaintiffs and the Defendants, as set forth above; and
(f) the Judgment that Alternative Approval Order has become Final, as defined in ¶1.10 hereoffinal and unappealable.
8.2 Upon the occurrence 9.2 If some of all of the events referenced in ¶8.1 hereof, any and all remaining interest or right of Defendants in or to the Settlement Fund, if any, shall be absolutely and forever extinguished. If all of the conditions specified in ¶8.1 hereof Section 9.1 are not met, then the Stipulation shall be canceled and terminated subject to ¶8.5 hereof unless Lead Counsel and counsel for Defendants mutually agree or in writing to proceed with the Settlement.
8.3 The Settling Parties expect that, upon the occurrence of all of the events referenced in ¶8.1 hereof, the action captioned ▇▇▇▇▇▇ ▇▇▇▇ v. Camping World, et al., No. 2019-CH-02404 (Ill. Cir. Ct. Cook Cty.) will be subsequently dismissed, and will take all steps reasonably appropriate to seek such dismissal.
8.4 If, prior to the Settlement Hearing, Persons who otherwise would be members of the Class have timely requested exclusion from the Class in accordance with the provisions of the Notice Order and the Notice given pursuant thereto, and such Persons in the aggregate purchased or otherwise acquired a number of shares of Camping World common stock during the Class Period in an amount greater than the sum specified in a separate Supplemental Agreement Regarding Requests for Exclusion (“Supplemental Agreement”) executed between Plaintiffs and Camping World, Camping World shall have the sole option to terminate this Stipulation and Settlement in accordance with the procedures set forth in the Supplemental Agreement. The Supplemental Agreement will not be filed with the Court unless and until a dispute between Plaintiffs and Camping World concerning its interpretation or application arises. Copies of all requests for exclusion received, together with copies of all written revocations of requests for exclusion, shall be promptly delivered to Defendants’ counsel by Lead Counsel. Camping World may terminate the Stipulation and Settlement pursuant to the Supplemental Agreement by serving written notice of termination on the Court and Lead Counsel on or before seven (7) business days after the receipt of all of the copies of the requests for exclusion, on or before ten (10) business days after the Court grants additional time for exclusion for any reason, or on or before three (3) business days before the Settlement Hearing, whichever occurs last. In the event that the Camping World serves a written notice of termination pursuant to the Supplemental Agreement, Camping World may withdraw its written notice of termination by providing written notice of such withdrawal to Lead Counsel and to the Court by no later than 5:00 PM Eastern Time on the day prior to the Settlement Hearing, or by such later date as shall be agreed upon in writing as between Lead Counsel and Defendants’ counsel. Plaintiffs agree that they shall not elect to opt out from the Class.
8.5 Each of Plaintiffs and Defendants shall have the right to terminate the Settlement and this Stipulation by providing written notice of their election to do so (“Termination Notice”) to all other parties hereto within thirty (30) calendar days of: (a) the Court’s refusal to enter the Notice Order; (b) the Court’s refusal to approve the Settlement; (c) the Court’s refusal to enter the Judgment; (d) the date upon which the Judgment is reversed or vacated or altered following an appeal taken therefrom, or is successfully collaterally attacked; or (e) the failure of the Effective Date to occur for any reason. For avoidance of doubt, no order of the Court or modification or reversal on appeal of any order of the Court concerning the Plan of Allocation or the amount of attorneys’ fees, expenses and interest awarded by the Court to Lead Counsel or costs or awards to Plaintiffs shall operate to terminate or cancel this Stipulation or constitute grounds for cancellation or termination of the Settlement.
8.6 Unless otherwise ordered by the Court, in the event the Stipulation shall terminate, or be canceled, or shall not become effective for any reason, within five (5) business days after written notification of such event is sent by counsel for Defendants or Lead Counsel, the Settlement Fund (including accrued interest), less expenses which have either been incurred or disbursed pursuant to ¶¶3.7 or 3.8 hereof, shall be refunded pursuant to written instructions from Defendants’ counsel. At the request of counsel for Defendants, the Escrow Agent or their designee shall apply for any tax refund owed on the Settlement Fund and pay the proceeds, after deduction of any expenses incurred in connection with such application(s) for refund, at the written direction of Defendants’ counsel.
8.7 In the event that the Stipulation Agreement is not approved by the Court Court, or the Settlement settlement set forth in the Stipulation this Agreement is terminated or fails to become effective in accordance with its terms, then this Agreement shall be canceled and terminated subjection to Section 9.4, unless Class Counsel and Defendant’s Counsel mutually agree in writing to proceed with this Settlement Agreement. If any Party is in material breach of the Settling terms hereof, any other Party, provided that it is in substantial compliance with the terms of this Agreement, may terminate this Settlement Agreement on notice to all other Parties. Notwithstanding anything herein, the Parties agree that the Court’s decision as to the amount of the Fee Award to Class Counsel set forth above or the Incentive Award to the Class Representative, regardless of the amounts awarded, shall not prevent the Settlement Agreement from becoming effective, nor shall it be grounds for termination of the Agreement.
9.3 If this Settlement Agreement is terminated or fails to become effective for the reasons set forth above, the Parties shall be restored to their respective positions in the this Action as of August 16, 2019the date of the signing of this Agreement. In such event, the terms and provisions of the Stipulation, with the exception of ¶¶1.1-1.28, 3.7-3.9, 7.2, 8.4-8.6 and 9.3-9.5 hereof, shall have no further force and effect with respect to the Settling Parties and shall not be used in this Action any Final Approval Order or in any other proceeding for any purpose, and any Judgment or order entered by the Court in accordance with the terms of the Stipulation this Agreement, including, but not limited to, class certification, shall be treated as vacated, nunc pro tunc, and the Settling Parties shall be deemed to return to their status as of August 16, 2019, and shall be required to present an amended trial schedule returned to the Court. No order of status quo ante with respect to the Court or modification or reversal on appeal of any such order of the Court concerning the Plan of Allocation or the amount of any attorneys’ fees, costs, and expenses, and interest awarded by the Court to Lead Counsel or Plaintiffs shall constitute grounds for cancellation or termination of the StipulationAction as if this Settlement Agreement had never been entered into.
Appears in 1 contract
Sources: Class Action Settlement Agreement