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1
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ORDER AND FINAL JUDGMENT
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EXTRACTED KEY WORDS
COURT PLAINTIFF MEMBERS DIRECTORS STIPULATION HEREBY JUDGEMENT PARTIES CHANCERY RULES SCHEDULING ORDER ATTORNEYS PURSUANT DETERMINATION ADEQUATE COUNSEL LAW COMMON REPRESENTATIVES UTILX PREJUDICE DISCLOSURES SETTLEMENT HEARING THEREIN ACCORDANCE MATTER DEFENDANTS MONTE VINER TRUSTEE MANNER |
IN THE COIJRT OF CHANCERY OF THE STATE OF DELAWARE
MN AND FOR NEW CASTLE COUNTY
MONTE VINER as Trustee for
the Monte Viner Trust
Plaintiff, i
:;-I
V. i C.A. No. 18318 .
;.=:
.-
INFRASTRUX GROUP, INC., -' , `,.A
; :,_
/
INFRASTRUX ACQUISITION, INC. ) :
~- ,
and JOHN DURKIN
7,
i ._
~`
Defendants. ) :.i\-
,' -:
- __
ORDER AND FINAL JUDGMENT
The Stipulation of Settlement, filed December 1, 2000 (the
"Stipulation"), of the above-captioned action (the "Action"), having been presented
at the Settlement Hearing on February 26, 2001, pursuant to the Scheduling
Order for Approval of Settlement of Class Action entered herein on December 21,
2000 (the "Scheduling Order"), which Stipulation was joined and consented to by
all parties to the Action and which (along with the defined terms therein) is
incorporated herein by reference; and the Court having determined that notice of
said hearing was given in accordance with the Scheduling Order to members of the
Class as certified by the Court in the Scheduling Order and that said notice was
adequate and sufficient; and the parties having appeared by their attorneys of
record; and the attorneys for the respective parties having been heard in support
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2
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DEFENDANTS BRIEF IN OPPOSITION TO REQUEST FOR ATTORNEYS FEES
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EXTRACTED KEY WORDS
FEE STOCKHOLDERS SETTLEMENT MERGER ATTORNEYS FEES DEFENDANTS COURT AMOUNT INFRASTRUX INFORMATION STATEMENT LITIGATION FINANCIAL STATEMENTS REQUEST FACTS LAWSUIT UTILX DISCLOSURE NACHBAR AFF NORMAL HOURLY RATES STIPULATION OPPOSITION RONALD BERENSTAIN CONSUMMATION AFFIDAVIT COMPLAINT INFRASTRUX GROUP PERKINS COIE LLP GRETCHEN BAUMGARDNER NATURE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
lN AND FOR NEW CASTLE COUNTY
MONTE VINER as Trustee for the Monte
Viner Trust,
Plaintiff,
INFRASTRUX GROUP, INC.,
INFRASTRUX ACQUISITZON, INC.,
and JOHN DURBXN,
Defendants. i
DEFENDANTS' BRIEF IN OPPOSITION TO
PLAINTIFF'S COUNSEL'S REQUEST FOR ATTORNEYS FEES
MORRIS, NICHOLS, ARSHT & TUNNELL
Kenneth J. Nachbar
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899-I 347
(302) 658-9200
Attorneys for Defendants
OF COUNSEL:
Perkins Coie LLP
Ronald Berenstain
Gretchen Baumgardner
1201 Third Avenue, Suite 4800
Seattle, WA 98 101-3099
206-583-8903
February 23, 2001
i.
TABLE OF CONTENTS
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3
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INC. PLAINTIFFS BRIEF
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EXTRACTED KEY WORDS
SETTLEMENT PLAINTIFF DEL COUNSEL AWARD INFRASTRUX DEFENDANTS CHANCERY STOCKHOLDERS EXPENSES ATTORNEYS COURT DELAWARE DISCLOSURE SUPR INFRASTRUX ACQUISITION INFORMATION STATEMENT CLASS ACTION CHANCERY COURT RULES JOHN DURBIN PROCEEDING MATERIALS REPRESENTATION SHAREHOLDERS CONNECTION FINANCIAL STATEMENTS INFRASTRUX GROUP KING STREET WILMINGTON |
. " `_ .,
IN THE COTJRT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
MONTE VINER as Trustee for
the Monte Viner Trust
Plaintiff,
i
V. C.A. No. 18318
i
INFRASTRUX GROUP, INC.,
INFRASTRUX ACQUISITION, INC. ;
and JOHN DURBIN
,'
Defendants. )
PLAINTIIFF'S BRIEF IN SUPPORT OF (1) THE PROPOSED
SETTLEMENT AND (2) PLAINTIFF'S COUNSELS' PETITION
FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES
PRICKET, JONES & ELLIOTT
Ronald A. Brown, Jr.
1310 King Street
Wilmington, Delaware 19801
(302) 888-6500
Attorneys for Plaintiff
OF COUNSEL:
SUSMAN & WATKINS
Arthur T. Susman
Charles R. Watkins
Two First National Plaza
Suite 600
Chicago, Illinois 60603
(312) 346-3466
Dated: February 16, 2001
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4
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STIPULATION OF SETTLEMENT
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EXTRACTED KEY WORDS
UTILX SETTLEMENT COURT PARTIES MERGER INFRASTRUX ATTORNEYS ACQUISITION TENDER PLAINTIFF STOCKHOLDERS APPRAISAL RIGHTS DEFENDANTS DELAWARE REPRESENTATIVES COMMITTEE INFORMATION STATEMENT PURSUANT EXPENSES IJTILX CONNECTION COMMON STOCK FINANCIAL STATEMENTS SUCCESSORS MONTE VINER INFRASTRUX GROUP BUSINESS UTILX BOARD DISINTERESTED NON-EMPLOYEE DIRECTORS |
c/i
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE i'
I-N AND FOR NEW CASTLE COUNTY
MONTE VINER as Trustee for the Monte
\iiner `rrnst,
Plaintiff;
INFRASTRUX GROUP, INC.,
INFRASTRUX ACQUISITION, INC.,
and JOHN DURBIN, 1
Defendants. 1
STIPULATION OF SETTLEMENT
A
T'he parties to Ihc above-captioned action, by and through their undersigned
attorneys, have entered into the following Stipulation of' Settlement (the "Stipulation") subject to
the :approval of the Court of Chanc~xy of the State of Delaware in and for New Castle County
(the "Court of'Chancery"jj:
WHEREAS.
A. U?`ILX Corporation ("UTILX") was, until the tender offer and merger
described herein, a publicly-tra.ded company engaged primarily in the business of using
proprietary technology to rejuvenate, replace or restore underground cables;
B. In May, 2000, representatives of` Pugct Sound Energy, Inc. ("Puget")
dkcussed with representatives of WTlLX a possible b1Lsines.s combination between UTILX and
InfrastruX Group, Inc. ("InfrastruX"), a wholly-owned subsidiary of Puget. On May 3 1, 2000,
the UTILX Board appointed a committee of disinterested non-employee directors (the "Special
Committee") to consider a possible sale of IJTILX, including the InfrastruX proposal;
C. Followillg negotiations, InfrastruX, lnfrastrux Acquisition, Inc.
("Acquisition," a wholly-owned subsidiary of InfrastruX) and UTILX entered into an Agreement
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5
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CLASS ACTION COMPLAINT
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EXTRACTED KEY WORDS
UTILX INFRASTRUX DISCLOSURE MERGER PLAINTIFF DEFENDANTS CONNECTION FACTS FIDUCIARY DUTY COURT PRICE MINORITY STOCKHOLDERS MEMBERS SHARES COMMON STOCK ACQUISITION COUNSEL ADJUDICATIONS EXCEEDS FAITH CHANCERY COURT RULE DURBIN VOTE FORCED SELLERS UNITED STATES OUTSTANDING CONTROLS OWES |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
I
IN AND FOR NEW CASTLE COUNTY I
MONTE VINER as Trustee for
the Monte Viner Trust
i
F'laintiff, )
V . C.A. No. ./ST& `,
INFRASTRUX GROUP, INC.,
INFRASTRUX ACQUISITION, INC. )
and JOHN DURBIN
,'
Defendants. )
_C!LASS ACTION COMPLAINT
Plaintiff, by :his attorneys, for his complaint allege as follows:
NATURE OF CASE
1. This a.ction challenges the disclosure in connection with the proposed
acquisiti.on by InfrastruX Group, Inc. ("InfrastruX") of the approximately 12% of Utilx
Corporation ("Utilx" or th'e "Company") that it does not already own in a freeze-out
merger at a price of $6.125 per share (the "Merger"). An information statement (the
"Information Statement") `was mailed to the Company's minority stockholders on or
about August 24, 2000 in connection with a stockholders' meeting scheduled for
September 15, 2000 at whil:h InfrastruX intends to vote its 88% stockholdings in favor
of the Merger. The Compa:ny's minority stockholders are essentially forced sellers who
must decide whether to accept the $6.125 per share or demand appraisal. However,
the Information Statement does not come close to providing the minority stockholders
with all of the material information necessary for them to make an informed decision
as to whether to demand appraisal or accept the $6.125 freeze-out price. The
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