 |
 |
|
|
|
|
|
|
|
| | | |
|
|
|
|
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
1
.
MEMORANDUM OPINION
|
EXTRACTED KEY WORDS
SHARES CERTIFICATE BUYBACK SHAREHOLDER BUYBACK PROVISION MICHAEL ANDREW BYLAWS COURT BROTHERS LORETO TRANSFER RESTRICTION DELAWARE TIBER HOLDING PLAINTIFFS MANDATORY BUYBACK SETTLEMENT AGREEMENT DEFENDANTS PENNSYLVANIA REASONS SET AFFIRMATIVE DEFENSES LORETO FAMILY BUSINESS AUTHORIZES SHAREHOLDER SEEKING AMENDED CERTIFICATE PROPOSED SETTLEMENT WRITTEN CONSENT ELIGIBLE TRANSFEREE PEPPER HAMILTON LLP |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE:
IN AND FOR NEW CASTLE COUNTY ..'
MICHAEL DI LORETO and >
ANDREW DI LORETO, >
Plaintiffs,
V.. Civil Action No. 16564
TIBER HOLDING
CORPOR4TION,
Defendants.
MEMORANDUM OPINION
Date Submitted: April 13, 1999
Date Decided: May 12, 1999
Date Revised: June 29, 1999
Ronald A. Brown, Jr., of PRICKETT, JONES, ELLIOTT & KRISTOL,
Wilmington, Delaware, Attorney for Plaintiffs.
Sean P. McDevitt and Andrea B. Unterberger, of PEPPER HAMILTON
LLP, Wilmington, Delaware, and Thomas E. Zemaitis, of PEPPER
HAMILTON LLP, Philadelphia, Pennsylvania, Attorneys for Defendant.
CHANDLER, Chancellor
For the reasons set forth below, I award plaintiffs Michael and Andrew
Di Loreto the book value of their Class B common shares in defendant Tiber
Holding Corporation, a closely-held Di Loreto family business, subject to Tiber's
set-off for unpaid judgments. Brothers Michael and Andrew seek specific
SNIPPETS:
|
|
2
.
FINAL ORDER AND JUDGMENT
|
EXTRACTED KEY WORDS
PURCHASE SHARES PLAINTIFFS PLNINTITTMICHAEL STOCK JUDGEMENT FEES CNTCRCD TOTAL AWARD AMOURRT THROUGL-L DAILY RATE OBLIGATION CONNECTION COMMON STOCK PROPERLY CNDORSCD COUNSEL ORTLCR NRNOUNT MASTER NCTIAN DIYIDCD EQUALLY BCTWCCN PARTICS ACCORDANCE TLIE ORCLCR APPOINTMENT ORDEREI HLARC |
MAR-30-01 FRI 03:15 PM FAX NO,
IN AND lX)K N W C.4.S'I'I,E CO~JN'I'Y
FINAL ORDER AND JUDGMENT
For the reasons stnkd in the C&It's Memorandum Opinions dated May 12, 1999
(wwiscd June 29, 1999) and kbmary 20, 2001, the Court hcrcby cntcrs this Final Order and
Jlld&rrlcI~t:
1. Plaintiffs had a I'l_rht, pursuant 10 Article VI, Section 4 of
defendant T~bcr `Ilolding Corpomrion ("Tibcr") to rcquirc Tibcr to purchase their shares
price xl Icxlh in that scclion.
2 PIaintiTf Andrew JXoreto exercised his right to require l'iber
his shsrcs by icttcr datctl March 7, 1998.
3. , PlnintiTTMichael IXoreto exercised his right to require Tibcr
his shares by leL;er dated March 9, 1998.
MAR-30-01 FRI 03:15 FM FAX NO.
4. The Court grants plaintiffs' request for specific
cuxcisc or rhcir 1' ght lo rcqui~l: Tibor to purchase heir shares.
5 . Piirinliffs LIE entitled to roccivc $27,493.33 for
Colnmon Stock (hat tllcy own.
SNIPPETS:
|
|
3
.
LETTER OPINION
|
EXTRACTED KEY WORDS
SETOFF TIBER JUDGMENTS COURT EXCEPTIONS PROVISION SHARES REPORT AMOUNT SPECIAL MASTER BYLAWS PARTIES CHARGING LIENS ATTORNEYS COMMON FINANCIAL STATEMENTS CONTINGENT FEE ACCORDING MANDATORY BUYBACK CONSOLIDATED FINANCIAL STATEMENTS TAX OBLIGATIONS FEE AGREEMENT THIRD PARTY TIBER HOLDING COURT AWARDED PLAINTIFFS DILORETO BROTHERS ACCORDANCE SUBSIDIARIES CHANCELLOR WOLCOTT |
COURT OF CHANCERY
OF THE
STATE OF DELAWARE jl L .. -. - " 7 1,
GEORGETOWN
Submitted: January 26,200l TELEPHONE (302)
FASCIMILE (302)
Decided: February 20,200 1
Ronald A. Brown, Jr., Esquire Sean P. McDevitt, Esquire
Prickett, Jones tSZ Elliott Andrea B. Unterberger, Esquire
13 10 King Street Pepper Hamilton LLP
Wilmington, DE 1980 1 1201 Market Street, Suite 1600
Wilmington, DE 1980 1
Thomas E. Zemaitis, Esquire
Pepper Hamilton LLP -,3
3000 Two Logan Square . . i
lSth & Arch Streets ._CT ,?
Z'
Philadelphia, PA 19 103-2799 I_
_
_
Re: Di Loreto v. Tibet Holding Corp. i
_.
_.
C.A. No. 16564 (' ;
L.C.,,
-.
Dear Counsel: -_. (ii
Having reviewed the briefs, and given my familiarity with this case, I do not
believe oral argument would be helpful. Accordingly, this is my decision on
plaintiffs' exceptions to the Special Master's November 15, 2000 Final Report.
This case involves a mandatory buyback provision contained in the bylaws
of defendant Tiber Holding Corporation ("Tibet-"), a closely-held Di Loreto family
business. This provision requires Tiber to buy plaintiffs Michael and Andrew Di
SNIPPETS:
|
|
4
.
FINAL REPORT OF SPECIAL MASTER
|
EXTRACTED KEY WORDS
PLAINTIFFS PARTIES JUDGEMENT TIBER DELAWARE FINANCIAL STATEMENTS SPECIAL MASTER OPINION SET-OFF CHANCERY DEFENDANT BYLAWS ATTORNEYS PURPOSES EQUITY BALANCE SHEET SUBSIDIARIES CHARGING LIENS CONSOLIDATED FINANCIAL STATEMENTS LITIGATION DRAFT REPORT STOCKHOLDERS EXCEPTIONS RECOMMEND CONTINGENT FEE PENNSYLVANIA JUDGMENTS BUYBACK PROVISION ACCOUNTING GAAP |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NE:W CASTLE COUNTY
MICHAEL DI LORETO and ANDREW
DI LORETO,
Plaintiffs, t
V. C.A. No. 16564-NC ,
TIBER HOLDING CORPORATION, * .
c
Defendant.
FINAL KEPORT OF SPECIAL MASTER .
By Order dated July 12, 1999 (the "July 12 Order"), the Court of Chancery
appointed the undersigned to act as a Special Master pursuant to Court of Chancery Rule 135 to
consider the remaining issues in this litigation as contemplated by the Court's Memorandum
Opinion dated May 12, 1999, as revised dated June 212, 1999 (the "1999 Opinion"). The July 12
Order specifically authorized the Special Master "to take such actions as necessary to make
recommeadations to the Court of Chancery for purposes of concluding this litigation." The
Special Master submitted a draft Report to the parties on November 8, 2000. The parties took
exception .to that draft Report to the extent that it made findings, rulings or decisions that were
different from the findings, rulings and decisions which the parties argued that the Special
Master should make in their written submissions to the Special Master.' The Special Master
- -
I Since the Draft Report of Special Master was rendered on cross-motions for summary
judgment on a paper record, the procedure utilized by the parties in submitting exceptions
to the Draft Report of Special Master was intended to enable the parties to preserve all of
their exceptions, objections and arguments in connection with the Court of Chancery's
review of this Final Report of Special Master without waiver of any exceptions,
objections or arguments under Delaware Court of Chancery Rule 144.
disallowed those exceptions by order dated November 15, 2000. This is the Final Report of the
SNIPPETS:
|
|
5
.
PLAINTIFFS REPLY IN SUPPORT OF MOTION FOR REARGUMENT
|
EXTRACTED KEY WORDS
MOTION REARGUMENT COURT SET-OFF TIBER DEFENDANT OPINION UNTIMELY MOTION PARTIES CONTENDS CERTIFICATE DELAWARE SUPPORT AFFIRMATIVE DEFENSE RIGHTS COUNSEL MISREPRESENTATION DISCRETION PETTINARO DEL SUPR DISCOVERY INTEND INFRINGE CONTRAST HOLDER JUDGEMENT TRICKERY LAWSUIT |
/- I) :. . .
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
MICHAEL DI LORETO and ANDREW )
DI LORETO, > :
(__..( i :
> I...'
`I ;.
Plaintiffs, . .
> ;' .,
.,
> I .'
V. > C.A. No.: 16564-NC ;.`,
> 1, {,'
-..
-_, ,-,.
TIBER HOLDING CORPORATION, ) Yj `_.
$fw;., f.
> - . .._. ` C.&j
A., u2
Defendant. > -<
PLAINTIFFS' REPLY IN SUPPORT OF PLAINTIFFS'
MOTION FOR REARGUMENT
Defendant's answer to plaintiffs' motion for reargument is without merit
because: (1) it does not respond to most of the arguments in plaintiffs' motion and
(2) it amounts to an untimely motion for reargument by defendant.
A. Defendant's Answer is Unresponsive
The basic point of plaintiffs' Motion for Reargument was that the set-off
affirmative defense was not before the Court for decision. Defendant does not
challenge that showing made by plaintiffs. Set-off is not an automatic legal right,
but rather is a discretionary, factually based affirmative defense. Pettinaro
Construction Co., Inc. v. Lindh, Del. Supr., 428 A.2d 1161, 1164 (1981).
SNIPPETS:
|
|
6
.
MEMORANDUM OPINION
|
EXTRACTED KEY WORDS
SHARES BUYBACK CERTIFICATE BUYBACK PROVISION SHAREHOLDER MICHAEL ANDREW BYLAWS COURT BROTHERS LORETO TRANSFER RESTRICTION DELAWARE HOLDING PLAINTIFFS MANDATORY BUYBACK SETTLEMENT AGREEMENT DEFENDANTS PENNSYLVANIA REASONS SET PROPOSED SETTLEMENT LORETO FAMILY BUSINESS AUTHORIZES SHAREHOLDER SEEKING AMENDED CERTIFICATE AFFIRMATIVE DEFENSES WRITTEN CONSENT ELIGIBLE TRANSFEREE PEPPER HAMILTON LLP |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
6
IN AND FOR NEW CASTLE COUNTY
MICHAEL DI LORETO and >
ANDREW DI LORETO, >
>
Plaintiffs, >
>
V. > Civil Action No. 16564
>
TIBER HOLDING >
CORPORATION, >
>
Defendants. >
MEMORANDUM OPINION
Date Submitted: April 13, 1999
Date Decided: May 12, 1999
Ronald A. Brown, Jr., of PRICKETT, JONES, ELLIOTT, KRISTOL &
SCHNEE, Wilmington, Delaware, Attorney for Plaintiffs.
Sean P. McDevitt and Andrea B. Unterberger, of PEPPER HAMILTON
LLP, Wilmington, Delaware, and Thomas E. Zemaitis, of PEPPER
HAMILTON LLP, Philadelphia, Pennsylvania, Attorneys for Defendant.
CHANDLER, Chancellor
For the reasons set forth below, I award plaintiffs Michael and Andrew
Di Loreto the book value of their Class B common shares in defendant Tiber
Holding Corporation, a closely-held Di Loreto family business, subject to Tiber's
set-off for unpaid judgments. Brothers Michael and Andrew seek specific
SNIPPETS:
|
|
7
.
DEFENDANTS ANSWER TO MOTION FOR REARGUMENT
|
EXTRACTED KEY WORDS
TIBER COURT JUDGMENTS OPINION MOTION CONSENT EXHIBIT MAJORITY SHAREHOLDERS LAW FACTS REARGUMENT STOCK COUNSEL PROVISIONS SATISFY AMOUNTS PAY CONTRACT REPRESENTATION RESPONSIBILITY HERETO REFERENCES FUNDS BASIS TAX OBLIGATIONS BYLAW PROVISIONS MISREPRESENTATION |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE 24
IN AND FOR NEW CASTLE COUNTY
MICHAEL DI LORETO and ANDREW )
DI LORETO, >
Plaintiffs,
V. > C.A. No.: 16564-NC
>
TIBER HOLDING CORPORATION, >>
Defendant. >
DEFENDANT'S ANSWER TO
PLAINTIFFS' MOTION FOR REARGUMENT
Defendant, Tiber Holding Corporation ("Tiber"), hereby responds to Plaintiffs'
Motion for Reargument pursuant to Chancery Court Rule 59(f).
1. Plaintiffs' Motion for Reargument seeks to have the Court modify its
Memorandum Opinion of May 12, 1999 ( the "May 12 Opinion") to provide for the possibility
that Tiber may not be permitted to setoff the repurchase price of its stock against the amounts
owed to Tiber by plaintiffs. Plaintiffs thus contend that Tiber must first pay plaintiffs the book
value of plaintiffs' stock as of December 31, 1997 and then chase plaintiffs through other court
processes to satisfy Tiber's millions of dollars in unsatisfied judgments against plaintiffs. As
explained below, such a modification would not only prolong the "litigation frenzy" the Court
seeks to avoid but would also defeat all principles of justice and equity. Moreover, this
application is directly contrary to the representation made to the Court at the argument on the
motions leading to the May 12 Opinion, wherein plaintiffs' counsel stated on the record: "My
clients were found responsible for something and they lost, And they are paying for it now. . . .
They [plaintiffs] are liquidating shares to get the money to pay the judgment, which they are
SNIPPETS:
|
|
8
.
REPLY BRIEF
|
EXTRACTED KEY WORDS
TIBER DEFENDANT COURT SETTLEMENT AGREEMENT TRANSFER RESTRICTIONS COUNTY STOCKHOLDERS DEL PUT-RIGHT CERTIFICATE AFFIRMATIVE DEFENSES MOTION COUNTERCLAIM BY-LAWS SHARES JUDGEMENT PLAIN LANGUAGE PROPOSED SETTLEMENT AGREEMENT ALLEGED SETTLEMENT AGREEMENT PARAGRAPH PLEADINGS ATTORNEYS CONTRACT ELIGIBLE TRANSFEREE CHESTER COUNTY ACTIONS REPURCHASE PROVISION ZUCKER AFF TIBER HOLDING |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
MICHAEL DI LORETO and ANDREW >
DILORETO, >>
Plaintiffs, >>
V. ) C.A. No.: 16564-NC
>
TIBER HOLDING CORPORATION,
Defendant.
PLAINTIFFS' COMBINED (1) REPLY BRIEF IN SUPPORT
OF PLAINTIFFS' MOTION TO DISMISS DEFENDANT'S
COUNTERCLAIM AND PLAINTIFFS' MOTION FOR PARTIAL
JUDGMENT ON THE PLEADINGS AND (2) ANSWERING BRIEF
IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
PRICKETT, JONES, ELLIOTT,
KRISTOL & SCHNEE
Ronald A. Brown, Jr.
1310 King Street
P.O. Box 1328
Wilmington, Delaware 19899
(302) 888-6500
Attorneys for Plaintiffs
Dated: February 4, 1999
15883. I I68864vI
TABLEOFCONTENTS
SNIPPETS:
|
|
9
.
AFFIDAVIT
|
EXTRACTED KEY WORDS
SETTLEMENT LORETO CIVIL ACTION CHESTER SETTLEMENT AGREEMENT ESQUIRE MICHAEL ANDREW COUNTY PARTIES CERTIFICATE COURT PENNSYLVANIA AFFIDAVIT ZUCKER AFF CLIENTS DELAWARE LANCE NELSON SWORN LAW GALLAGHER COMMONWEALTH PARS TELEPHONE CONVERSATION RECOLLECTION MINDS REGARD EXH |
:. 58532
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
MICHAEL DI LORETO and ANDREW )
DI LORETO, >
Plaintiffs >> C.A. No.: 16564-NC
v s . >1 - 1
TIBER HOLDING CORPORATION -_,l '
>
Defendants L:
AFFIDAVIT OF LANCE J. NELSON, ESQUIRE
I, Lance J. Nelson, Esquire, being duly sworn do depose and say:
1. I am an attorney with the law firm of MacElree, Harvey, Gallagher,
Sebastian, Ltd. in West Chester, Pennsylvania and I am admitted to practice law in the
Pennsylvania and the State of Delaware.
2. My partner, William Gallagher, and I represented Michael Di Loreto
Di Loreto in civil action Nos. 90-10443 and go-10445 in the Court of Common Pleas of Chester
Pennsylvania (the "Chester County Actions"). I have had an opportunity to review the Affidavit of
Kenneth H. Zucker, Esquire in this matter. The Affidavit of Mr. Zucker claims that, on behalf of
Di Loreto and Andrew Di Loreto, I accepted Mr. Zucker's alleged proposal to settle one of the
County Actions (No. 10445). (Zucker Aff. Pars. 3-4). This not correct.
3. On or about February 4, 1998, I did receive a telephone call from
inquiring as to whether Civil Action No. 10445 could be resolved. During that telephone
Mr. Zucker represented that he had persuaded Mr. Richard Di Loreto to rescind any changes to the
By-Laws and Articles of the Corporation at issue provided Michael Di Loreto and Andrew Di Loreto
agreed to sign a release from any claims associated with the original changes.
SNIPPETS:
|
|
|
| | | |
|
|
