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1
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PLAINTIFFS RESPONSE IN OPPOSITION TO MOTION FOR REARGUMENT OR CERTIFICATION
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EXTRACTED KEY WORDS
COURT WARRANT MOTION ART REARGUMENT ADJUSTMENT STOCK CONTRACT INVESTMENTS LAW CONSTRUCTION ANTI-DILUTION CONTEXT YORK SUPERFLUITY MEANING ANTI-DILUTION PROVISION CERTIFICATION MISAPPLICATION PHRASE TELECOM INTERPRETATION AGREEMENT REQUIRING MERGER READING MATTER EQUITALBLE REASON |
IN THE COURT OF CHANCERY OF THE STATE OF DELLLZWARE
IN AND FOR NEW CASTLE COUNTY 0
CL INVESTMENTS, L.P.,
Plaintiff, 1 Civil Action No. 17843
V. ;
ADVANCED RADIO TELECOM CORP. 1
and ART LICENSING CORP.,
;
Defendants. >
PLAINTIFF'S RESPONSE IN OPPOSI[TION TO.
DEFENDANTS' MOTION FOR REARGUMENTjlR CERTIFICATION
Charles F. Richards, Jr.
Srinivas M. Raju
RICHARDS,LAYTON&FINGER, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302) 658-6541
Attorneys for Plaintiff CL Investments, L.P.
OF COUNSEL:
Sarah S. Gold
Peter J.W. Sherwin
Amy F. Sandgrund
PROSKAUERROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
Dated: January 2,200l
RLFl-2250516-1
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2
.
MOTION OF DEFENDANTS FOR REARGUMENT
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EXTRACTED KEY WORDS
MEMORANDUM OPINION COURT DEFENDANTS RECONSIDERATION ART TELECOM ORDER CERTIFYING PURPOSES CONTEXT COMMON STOCK CONSTRUCTION DELAWARE PURSUANT MERGER REARGUMENT INTERPRETATION CHANCERY COURT RULE STOCK ISSUANCES ADJUSTMENT PROVISIONS PLAINTIFFS ACCORDING DELAWARE SUPREME EQUITABLE BASIS OBLIGATIONS BROAD COURT EXPLICIT COMMAND TRANSACTION CONTEMPLATION |
" )
`l, r,
!
-)$,
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CL INVESTMENTS, L.P.,
Plaintiff,
V.
ADVANCED RADIO TELECOM CORP.
and ART LICENSING CORP.,
Defendants.
-, . .
r,;-
. . .
MOTION OF DEFENDANTS FOR REARGUMIIZNT 6%
PART III.B.3 OF, OR ALTERNATIVELY FOR AN OR%@&
CERTIFYING FOR INTERLOCUTORY APPEAIL, THIS CO-tiRT'S c'
MEMORANDUM OPINION AND ORDER DATED DECEMBER 15.2000
Defendants respectfully submit this memorandum in support of their Motion for
Reargument of Part III.B.3 of, or Alternatively for an Order Certifying, for Interlocutory Appeal,
this Court's Memorandum Opinion and Order dated December 15,200O (the "Memorandum
Opinion"). Capitalized terms not otherwise defined herein have the mlsanings ascribed to such
terms in the Memorandum Opinion. For the reasons stated in Point I below, pursuant to
Chancery Court Rule 59(f) the Court should reconsider Part III.B.3 of the Memorandum Opinion
and, upon reconsideration, should rule that the context of the Warrant #does not "otherwise
require" that ART be deemed "the Company" for purposes of Section 7 of the Warrant.
Alternatively, for the reasons stated in Point II below, the Court should enter an order certifying
SNIPPETS:
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3
.
MEMORANDUM OPINION
|
EXTRACTED KEY WORDS
PLAINTIFF STOCK ADJUSTMENT DEFENDANTS SHARES PURCHASE ART WARRANT-HOLDER EXERCISING MERGER COURT TELECOM CONTRACT YORK TRANSACTIONS OBLIGATIONS CERTIFICATE COMMON STOCK ACCOUNTANTS ANTI-DILUTION ADJUSTMENT UNJUST ENRICHMENT MERGER AGREEMENT PROVISION COMPLAINT PURCHASE PRICE PLEADINGS SECURITIES DEFENDANTS ARGUE ATTORNEYS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
tN AND FOR NEW CASTLE COUNTY
CL INVESTMENTS, L.P., >>
PI aintiff, >>
V. > Civil Action No. 17843
>
ADVANCED RADIO TELECOM )
CORP. And ART LICENSING )
CORP., >>
Defendants. > ;`;;", 3`1
MEMORANDUM OPINION ?=
-_. . ;I z "
-it 1-I
c, c1
:`; rrf cfl
Date Submittedl: September 7,200O -2 Q
Date Decided: December 15,200O
Charles F. Richards, Jr. and Srinivas M. Raju, Esquires, of RICHARDS, LAYTON &
FINGER., P.A., Wilmington, Delaware; and Edward Brodsky, Peter J.W. Sherwin and
Amy F. Sandgrund, IEsquires of PROlSKAUER ROSE LLP, New York, New York;
Attorneys for Plaintiff
David C. McBride and Matthew P. Denn, Esquires, of YOUNG, CONAWAY,
STARGATT & TAYLOR, Wilmington, Delaware; and Douglas M. Heal, Rachel E.
Hershfang and Mark C. Fleming,, Esquires, of ROPES & GRAY, Boston,
Massachusetts; Attorneys for Defendants
JACOBS;, VICE CHANCELLOR
This action is brought to enforce the terms of a stock purchase warrant
that entitles the plaintiff, who is the warrant-`holder, to purchase a specific
number of shares of the issuer upon exercising the warrant. Importantly, the
warrant also requires two different kinds of adjustments of the type and
number of shares the warrant-holder is entitled to purchase. The first type of
adjustment occurs if the issuer of the warrant merges with another
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4
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PLAINTIFFS REPLY BRIEF IN SUPPORT OF ITS CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
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EXTRACTED KEY WORDS
WARRANT TELECOM TRANSACTIONS COMMON STOCK ANTI-DILUTION PROVISIONS INVESTMENTS COMMON STOCK TRIGGER READING OBLIGATIONS PURCHASE PRICE MOTION COURT PARTIAL SUMMARY JUDGMENT REASONABLE READING POST-ACQUISITION ADMISSION DEFENDANTS ACQUISITION ADJUSTMENT PLAIN LANGUAGE DILUTIVE TRANSACTIONS ANTIDILUTION PROVISIONS TRIGGERING PLAINTIFF ADJUSTMENT FORMULA EDWARD BRODSKY SANDGRUND ROSE LLP CONTRACT CONSTRUCTION |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CL INVESTMENTS, L.P.,
Plaintiff.
,' Civil Action No. 17843
v.
i
ADVANCED RADIO TELECOM CORP.
and ART LICENSING CORP., i
Defendan&.
PLAINTIFF'S REPLY BRIEF IN SUPPORT OF
ITS CROSS-RIOTION FOR PARTIAL SUMMARY JUDGMENT
Charles F. Richards, Jr.
Srinivas M. Raju
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302) 658-6541
Attorneys for Plaintiff CL Investments. L.P.
OF COUN!;EI,:
Edward Brodsky
Peter J.W. Shmvin
Amy F. Sandgrund
I'ROSKAIJER ROSE LLP
1585 13roadway
New York. Uew York 10036
(212) 969-?OOO
Dated: July 10, 2000
R! I~l-21:94h9-l
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5
.
DEFENDANTS REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS
|
EXTRACTED KEY WORDS
ART STOCK ADJUSTMENT DEFENDANTS FACTS TELECOM MERGER SHARES CONTRACT MOTION ALLEGE PLAINTIFF TRANSACTIONS DISMISS COURT OBLIGATIONS PROVISION ISSUANCES CERTIFICATE PER-SHARE CONSIDERATION PURCHASE PRICE COMPLAINT SUMMARY JUDGMENT YORK LAW MERGER AGREEMENT EVIDENCE EMPHASIS PLAINTIIY CONCEDES CONTROVERSY |
.!NV':Z3TItKWT'S b, 2 ; Civil Action No. 17843
lIMBEXD
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6
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PLAINTIFFS BRIEF IN OPPOSITION TO DEFENDANTS MOTION TO STAY DISCOVERY
|
EXTRACTED KEY WORDS
PLAINTIFF MOTION WARRANT COMMON STOCK ART DISCOVERY DISMISS ANTI-DILUTION PROVISIONS COURT TELECOM REASON PURCHASE ADJUSTMENT REASONABLE EXPECTATION TRANSACTIONS BREACH DEL DISPOSITIVE MOTION TRIGGER CONTRACT RESPONSE CHANDLER DENY DOCUMENT REQUEST RESOLVE SUBPOENA RESOLUTION READING AMENDED COMPLAINT |
rN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CL .INVESTMENTS, L.P.,
,'
Plaintiff,
,' Civil Action No. 17843
V. > T;:
: 7
9 !?
:"t.,- c_
ADVANCED RADIO TELECOM CORP. i I
-.
and ART LICENSING CORP., ; `/
._,
,'
Defendants. ) T
! r
PLAINTIFF'S BRIEF IN OPPOSITION TO
DEFENDANTS' MOTION TO STAY DISCOVERY
Charles F. Richards, Jr.
Srinivas M. Raju
R~ARDS,LAYTON&F~NGER,P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
OF COUNSEL: 302-658-6541
Attorneys for Plaintiff CL Investments, L.P.
Edward Brodsky
Peter J.W. Sherwin
Amy F. Sandgrund
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
212-969-3000
Dated: June 5,200O
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7
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DEFENDANTS OPENING BRIEF IN SUPPORT OF MOTION TO STAY DISCOVERY
|
EXTRACTED KEY WORDS
PLAINTIFF DISMISS DEFENDANTS ADVANCED RADIO TELECOM COURT DISCOVERY DEL WARRANT LITIGATION COMPLAINT CHANCERY STOCK DELAWARE REASONABLE EXPECTATION ART RESOLUTION PREJUDICE CERTIFICATE PROVISION THEREOF AMENDED COMPLAINT PREFERRED HEALTH TRANSACTIONS AMERICAN STANDARD DOCUMENTS SUFFICIENT AGREEMENTS PROCEEDING EFFICIENCY LITIGATION FAVORS SUFFER |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CL INVESTMENTS, L.P., Civil Action No. 17843
t
Plaintiff,
;
V.
;
ADVANCED RADIO TELECOM
CORP. and ART LICENSING ;
CORP.,
;
Defendants. >
DEFENDANTS' OPENING BRIEF IN SUPPORT OF i.
MOTION TO STAY DISCOVERY ; : :
L :
c
David C. McBride I ,I
Matthew P. Denn i j
Young Conaway Stargatt & Taylor, LLP -`i.!
Eleventh Floor, Rodney Square North
P.O. Box 391
Wilmington, DE 19899-0391
(302) 571-6600
Douglas H. Meal (Mass. Bar # 340971)
Rachel E. Hershfang (Mass. Bar # 63 1898)
Mark C. Fleming (Mass. Bar # 639358)
Ropes & Gray
One International Place
Boston, MA 02110
(617) 951-7000
Attorneys for Defendants
Dated: May 5, 2000
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8
.
DEFENDANTS OPENING BRIEF IN SUPPORT OF MOTION TO DISMISS THE AMENDED COMPLAINT
|
EXTRACTED KEY WORDS
COMPLAINT COMMON STOCK TELECOM PLAINTIFF PURCHASE ADJUSTMENT SHARES COURT DEFENDANTS PARTIES PURCHASE PRICE CHANCERY COURT RULE DELAWARE ART ADJUSTMENT PROVISION TRANSACTIONS ISSUANCES AMENDED COMPLAINT AGREEMENT ALLEGATIONS CONTROVERSY OBLIGATIONS ADVANCED RADIO TELECOM FACTUAL ALLEGATIONS CERTIFICATE UNJUST ENRICHMENT PER-SHARE CONSIDERATION CASTLE COUNTY PROVISIONS CONTAINED THEREIN |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CL INVESTMENTS, L.P., Civil Action No. 17843
Plaintiff,
;
V.
i
ADVANCED RADIO TELECOM
CORP. and ART LICENSING ,'
CORP.,
t
Defendants. > "d
; i
.
DEFENDANTS' OPENING BRIEF IN SUPPORT OF
THEIR MOTION TO DISMISS THE AMENDED COMPLAINT . .
"Y
David C. McBride
Matthew P. Denn
Young Conaway Stargatt & Taylor, LLP
1 lth Floor, Rodney Square North
Wilmington, DE 1980 1
(302) 571-6600
Attorneys for Defendants
Douglas H Meal (Mass. Bar #340971)
Rachel E. Hershfmg (Mass. Bar #63 1898)
Mark C. Fleming (Mass. Bar #639358)
Ropes & Gray
One International Place
Boston, MA 02 110
(617)951-7000
Attorneys for Plaintiffs
WP3 : 489399. 1 56881.1001
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9
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AMENDED COMPLAINT
|
EXTRACTED KEY WORDS
WARRANT ART COMMON STOCK PRICE DEFENDANTS PURCHASE PLAINTIFF ADJUSTMENT TELECOM MERGER REORGANIZATION ANTI-DILUTION PROVISIONS SHARES ADVANCED RADIO TELECOM TRANSACTIONS ART LICENSING RADIO TECHNOLOGIES CORPORATION SECURITIES APPLICABLE PURCHASE PRICE CERTIFICATE ADVANCED RADIO TECHNOLOGIES SUCCESSOR ANTI-DILUTION PROVISIONS REQUIRING ACCOUNTANTS FULLY SET CONVERTIBLE PREFERRED STOCK GIVING EFFECT PUBLIC OFFERING STOCK SPLIT EQUITABLE RELIEF |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE!
IN AND FOR NEW CASTLE COUNTY
CL INVESTMENTS, L.P., >
Plaintiff,
Civil Action No. 17843
V
ADVANCED RADIO TELECOM CORP.
and ART LICENSING CORP.,
Defendants. >
^
AMENDED COMPLAINT
1. This is an action for breach of a warrant entitling plaintiff to purchase
an undiluted basis common stock of defendant Advanced Radio Telecom Corp., formerly known
as Advanced Radio Technologies Corporation, ("ART").'
2. In March 1996, defendant ART Licensing Corp., then known as Advanced
Radio Telecom Corp., ("Telecom") issued a warrant for the purchase of its common stock or that
of its successor. In October 1996, as a result of a merger and reorganization in which Telecom
stock was exchanged for ART stock, plaintiff became entitled under the warrant to purchase
common stock of ART, instead of Telecom.
3. Since March 1996, defendants have entered into various transactions,
which, under the terms of the warrant, triggered the warrant's anti-dilution provisions requiring
adjustment of the amount and price of ART common stock that plaintiff is entitled to purchase
Defendants refuse to recognize any adjustment to the warrant and refuse to provide, as required
1 Pursuant to Court of Chancery Rule 15(aa), a black-lined version of this amended
complaint is attached hereto as Exhibit E.
RLFl-2133100-l
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10
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COMPLAINT
|
EXTRACTED KEY WORDS
WARRANT DEFENDANTS ART PLAINTIFF ADJUSTMENT TELECOM PURCHASE MERGER PRICE ANTI-DILUTION PROVISIONS CONVERTIBLE PREFERRED STOCK TRIGGERED1 ADVANCED RADIO TELECOM PREFERRED STOCK ART LICENSING STOCK SALE REORGANIZATION RADIO TECHNOLOGIES CORPORATION CERTIFICATE SECURITIES SUCCESSOR ART SOLD ACCOUNTANTS GIVING EFFECT PUBLIC OFFERING STOCK SPLIT ADVANCED RADIO TECHNOLOGIES REFERENCE AGREEMENT |
IN THE3 COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CL INVESTMENTS, L.P., >
Plaintiff, 5 Civil Action No. / x$3d c:
V.
I
ADVANCED RADIO TELECOM CORP. )
and ART LICENSING CORP.,
i
Defendants. >
COMPLAINT
1. This is an action for breach of a warrant entitling plaintiff to purchase
an undiluted basis common stock of defendant Advanced Radio Telecom Corp., formerly known
as Advanced Radio Technologies Corporation, ("ART").
2. In March 1996, defendant ART Licensing Corp., then known as Advanced
Radio Telecom Corp., ("Telecom") issued a warrant for the purchase of its common stock or that
of its successor. In October 1996, as a result of a merger and reorganczation in which Telecom
stock was exchanged for ART stock, plaintiff became entitled under the warrant to purchase
common stock of ART, instead of Telecom.
3. In September 1999, ART sold convertible preferred stock, which, under
the terms of the warrant, triggered the warrant's anti-dilution provisions requiring adjustment of
the amount and price of ART common stock that plaintiff is entitled to purchase. Defendants
refuse to recognize the adjustment and refuse to provide, as required. by the warrant, an
accountants' certification setting forth the adjustment and the basis therefor. Plaintiff seeks
specific performance of defendants' obligations to do so.
RLFl-2126288-l
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