STATE OF SOUTH CAROLINA
IN
THE COURT OF COMMON PLEAS
COUNTY OF GREENVILLE
In re THE SOUTH FINANCIAL GROUP, INC. |
Consolidated Case No. 2010-CP-23-5001 |
ORDER AND FINAL JUDGMENT
A hearing having been held before this Court (the
“Court”) on December 9, 2010, pursuant to the Court’s Order of August 11, 2010,
filed on August 13, 2010 (the “Scheduling Order”), upon a Stipulation and
Agreement of Compromise, Settlement and Release, dated as of August 6, 2010,
filed on August 9, 2010 (the “Stipulation”), of the above-captioned action (the
“Consolidated Action”), which Scheduling Order and Stipulation are incorporated
herein by reference; it appearing that due notice of said hearing has been
given in accordance with the aforementioned Scheduling Order and that said
notice was adequate and sufficient; the Plaintiffs and Defendants having
appeared by their attorneys of record; the Court having received evidence in
support of the proposed Settlement; the attorneys for these respective parties
having been heard in support of the Settlement of the Consolidated Action; an
opportunity to be heard having been given to all other persons desiring to be
heard as provided in the notice; and the entire matter of the Settlement having
been considered by the Court;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, this
9th day of December 2010, as follows:
1. Unless otherwise defined herein, all defined terms shall have the
meanings as set forth in the Stipulation.
2. The Notice of Pendency of Class Action, Proposed Class Action
Determination, Proposed Settlement of Class Action Claims, Settlement Hearing,
Right to Object and Right to Appear (the “Notice”), Summary Notice and website
posting have been provided to the Class (as defined therein and in paragraph 4
herein) pursuant to and in the manner directed by the Scheduling Order; proof
of the mailing of the Notice, publication of the Summary Notice and website
posting has been filed with the Court; and full opportunity to be heard has
been offered to all settling parties, the Class, and persons in interest. The
form and manner of the Notice, Summary Notice and website posting are hereby
determined to have been the best notice practicable under the circumstances and
to have been given in full compliance with the requirements of South Carolina
Rule of Civil Procedure 23 and due process, and it is further determined that
all members of the Class and their successors are bound by this Order and Final
Judgment.
3. Based on the record in the Consolidated Action, each of the
provisions of South Carolina Rule of Civil Procedure 23 has been satisfied and
the Consolidated Action has been properly maintained according to the
provisions of South Carolina Rule of Civil Procedure 23(a). Specifically, this
Court finds that: (1) the Class, as defined below, is so numerous that joinder
of all members is impracticable; (2) there are questions of law and fact common
to the Class; (3) the claims of the Plaintiffs are typical of the claims of the
Class; (4) the Plaintiffs and their counsel have fairly and adequately
protected the interests of the Class; and (5) the relief primarily sought is
injunctive or declaratory with respect to the class as a whole.
4. The Consolidated Action is hereby certified as a non-opt-out
class action, pursuant to South Carolina Rule of Civil Procedure 23, on behalf
of a class consisting of all public record and beneficial holders of common
stock of TSFG at any time from May 17, 2010 (the date the proposed Merger was
publicly announced) through and including the date of the consummation of the
Merger, and the respective legal representatives, heirs, successors in
interest, transferees and assigns of all such foregoing holders and/or owners,
immediate and remote, excluding the Settling Defendants (the “Class”).
Plaintiffs G.A. Milner, III; W. Gordon Parrott, III; Harold D. Enloe; Wade
Brodie; and John H. Robison are hereby certified as the representatives of the
Class. The law firm of Motley Rice LLC is hereby certified as Plaintiffs’
Class Counsel and W. Douglas Smith as Liaison Counsel.
5. In addition to providing a material benefit to the Class, the
Settlement is found to be fair, reasonable and adequate and in the best
interests of the Class and is hereby approved pursuant to South Carolina Rule
of Civil Procedure 23(c).
6. The parties to the Stipulation are hereby authorized and directed
to comply with and to consummate the Settlement in accordance with its terms
and provisions, and the Court Clerk is directed to enter and docket this Order
and Final Judgment.
7. This Order and Final Judgment shall not constitute any evidence
or admission by any party herein that any acts of wrongdoing have been
committed by any of the parties to the Consolidated Action and shall not be
deemed to create any inference that there is any liability therefore.
8. The Consolidated Action is hereby dismissed with prejudice as to
all Defendants named in the Consolidated Action, with each party to bear its
own costs except as provided herein and in the Stipulation.
9. Any and all claims, demands, rights, actions or causes of action,
liabilities, damages, losses, obligations, judgments, suits, matters and issues
of any kind or nature whatsoever, whether known or unknown, contingent or
absolute, suspected or unsuspected, disclosed or undisclosed, that have been or
could have been asserted in the Consolidated Action or in any court, tribunal
or proceeding (including, but not limited to, any claims arising under federal
or state law relating to alleged fraud, breach of any duty, negligence or
violations of the federal or state securities laws) by or on behalf of the
Plaintiffs in the Consolidated Action or any or all of the members of the Class
(collectively, the “Releasing Parties”), whether individual, class, derivative,
representative, legal, equitable or any other type or in any other capacity,
against Edward J. Sebastian, a former director of TSFG who was initially named
as a defendant in the Consolidated Action, or any or all Settling Defendants in
the Consolidated Action, and/or any of their families, parent entities, associates,
affiliates or subsidiaries and each and all of their respective past or
present, officers, directors, stockholders, representatives, employees,
attorneys, financial or investment advisors, consultants, accountants,
investment bankers, commercial bankers, insurers, engineers, advisors or
agents, heirs, executors, trustees, general or limited partners or
partnerships, personal representatives, estates, administrators, and each of
their respective predecessors, successors, and assigns (collectively, the
“Released Persons”), which the Plaintiffs or any member of the Class ever had,
now has, or hereafter can, shall or may have by reason of, arising out of,
relating to or in connection with the allegations, facts, events, transactions,
acts, occurrences, statements, representations, misrepresentations, omissions
or any other matter, thing or cause whatsoever, or any series thereof,
embraced, involved, or set forth in or otherwise related, directly or
indirectly, to the Consolidated Action, the negotiation and consideration of
the Merger, any shareholder vote in connection with the Merger, the Merger, the
Merger Agreement, the Share Purchase Agreement, the Preliminary Proxy, the
Additional Disclosures, or the Securities Purchase Agreement, including without
limitation any agreements or fiduciary or disclosure obligations in connection
with any of the foregoing, except claims to enforce the Settlement
(collectively, the “Settled Claims”) are hereby completely discharged,
dismissed with prejudice, and settled, enjoined, and released as to the
Released Persons, provided, however, that Plaintiffs retain the right to
enforce in the Court the terms of the Stipulation. Settling Defendants release
Plaintiffs, the members of the Class and their counsel from all claims arising
out of the initiation, prosecution, settlement or resolution of the
Consolidated Action and the Settled Claims, provided, however, that the
Settling Defendants and each of them shall retain the right to enforce in the
Court the terms of the Stipulation.
10. The parties providing releases under paragraph 9 waive their
rights, to the extent permitted by federal law, state law, foreign law or
principles of common law, that may have the effect of limiting the releases set
forth in that paragraph. This shall include a waiver of any rights pursuant to
Section 1542 of the California Civil Code or any similar, comparable or
equivalent provision. Section 1542 of the California Civil Code provides as
follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
The Releasing Parties acknowledge that the Releasing Parties
may discover facts in addition to or different from those now known or believed
to be true with respect to the Settled Claims, but that it is the intention of
the Releasing Parties to hereby completely, fully, finally and forever
compromise, settle, release, discharge and extinguish any and all Settled
Claims with respect to the Released Persons known or unknown, suspected or
unsuspected, which now exist, or heretofore existed, through and including the
date of the execution of the Stipulation, and without regard to the subsequent
discovery or existence of additional or different facts. The Releasing Parties
hereby voluntarily waive the provisions, rights and benefits of Section 1542 of
the California Civil Code and the provisions, rights and benefits of any law of
any state or territory of the United States, federal law, or principle of
common law, which is similar, comparable or equivalent to Section 1542 of the
California Civil Code. Plaintiffs acknowledge, and the Class Members shall be
deemed by operation of the Judgment to have acknowledged, that the foregoing
waiver was separately bargained for and a key element of the settlement of
which this release is a part.
11. The Releasing Parties are hereby permanently enjoined from
asserting, commencing, prosecuting, assisting, instigating or in any way
participating in the commencement or prosecution of any action or other
proceeding, in any forum, asserting any Settled Claims, either directly,
representatively, derivatively, or in any other capacity, against any Released
Person with respect to the Settled Claims.
12. Plaintiffs’ counsel are hereby awarded attorneys’ fees and
expenses (including costs and disbursements) in a total amount of $ 425,000,
which sum the Court finds to be fair and reasonable and which shall be paid to
Plaintiffs’ Class Counsel in accordance with the terms of the Stipulation.
13. The effectiveness of this Order and Final Judgment and the
obligations of Plaintiffs and Defendants under the Settlement shall not be
conditioned upon or subject to the resolution of any appeal from this Order and
Final Judgment that relates solely to the issue of Plaintiffs’ counsel’s
application for an award of attorneys’ fees and expenses.
14. In the event that the Settlement does not become final or is
terminated in accordance with the terms and provisions of the Stipulation, then
this Judgment shall be rendered null and void and be vacated and the
Stipulation, except to the extent that it expressly provides otherwise, and all
orders entered in connection therewith by this Court shall be rendered null and
void.
15. Without affecting the finality of this judgment in any way, this
Court retains continuing jurisdiction: (a) over the implementation,
administration, and consummation of this Settlement; (b) over the Consolidated
Action until the judgment contemplated hereby has become final and each and
every act agreed to be performed by the parties to the Stipulation shall have
been performed pursuant to the Stipulation; and (c) over all parties to the
Consolidated Action and all parties to the Stipulation for the purpose of
taking such other actions as may be necessary to conclude and administer this
Settlement and to implement and enforce the Stipulation. Notwithstanding the
foregoing, this Order shall constitute a final judgment. There is no just
reason for delay in entering judgment in accordance with the Stipulation.
Accordingly the Clerk is hereby directed to enter this judgment forthwith.
