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1
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STIPULATION AND ORDER OF DISMISSAL
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EXTRACTED KEY WORDS
DELAWARE ARDENT DISSOLUTION CINMARK DELAWARE CORPORATION CINCOM PARTIES DISTRICT PETITION DISCONTINUANCE STIPULATE SETTLEMENT OHIO SOUTHERN DISTRICT PARI OFTNE SETTLEMENT SHARES CLINR4ARK OWNERSHIP OBJECTSTUDIO PROCEEDING COUNSEL FEES PARTY JAMES TLRKC JOXPH CALLOW SARAH CHAPIN COLUMBIA JOHN BARANIAK |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
ICN AND FOR NEW CASTLE COUNTY
In ri:: CLNUARK SY:37'E!V[S, INC..
a Delaware corporation C.A. No. 16762-NC
STWLJI~ATION AND ORDER OF DISMISSA,I,
WI1EREAS. Cincorn Systems, Inc. ("Cincom") and Ardent Sofi.\vare. Inc. ("Ardent") are
each 500,/o shareholders of the joint venture CinMark Systems. Inc.. a Delaware corporation
%TIEREAS: on October 28, 1998, Ardent filed a Petition for Discontinuance and Dissolution
(the `"Petition") in this Cou~rt s.eeking dissolution of CinMark pursuant to 5 2'73 of the
General Corporation Law;
WHEREAS, on December 8, 1998: Cincom f?led a Response to the Petition;
WHEEAS, the parties stipulated to dissolve CinMark and agreed to negotiate a joint plan
of discontinuance, dissolution and distribution, and the Court so ordered on April12. 2000;
\VHEREAS, the parties have settled a related action pending in the United States District
Court for the Southern District of Ohio;
WHEREAS, as pari oftne settlement of the Ohio action, Ardent agreed to transfer its shares
in ClinR4ark to Cincom, including full ownership of all right, title and interest in and to
and Ardent and Cincom agreed to seek the dismissal of this proceeding.
Subject to the approval of the Court, counsel for the parties agree and stipulate to the
following:
1) The Court's Order of April 12, 2000 dissolving CinMark is rescinded, and CinMark
shall continue as a Delaware corporation.
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2
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PETITIONER ARDENTS MEMORANDUM IN OPPOSITION TO CINCOMS MOTION FOR SUMMARY JUDGMENT
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EXTRACTED KEY WORDS
CINCOM COURT JOINT VENTURE DISSOLUTION SUMMARY JUDGMENT CINMARK EXHIBIT PETITION DEL MOTION OBJECTSTUDIO AGREEMENT DEP PARTY MEMORANDUM DISCONTINUING DELAWARE CORPORATION STATUTORY SHAREHOLDERS OHIO ACTION UNCLEAN HANDS PETITIONER ARDENT SOFIWARE RESPONDENT CINCOM SYSTEM DESIRABILITY DEPOSITION MORRILL DEP WALSH DEP STOCKHOLDERS OPERATING EXPENSES |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
In re: CINMARK SYSTEMS, INC., i- :
a Delaware corporation CA. No. 1675:2JVC
PETITIONER ARDENT'S MEMORANDUM IN OPPOSI'iION
TO ClNCOM'S MOTION FOR SUMMARY JUDGMENT.
/':..'
Petitioner Ardent Sofiware, Inc. ("Ardent") submits this memorandum in
opposition to the motion of respondent Cincom System, Inc. ("Cincom") for summary
judgment.
Summaw of the Awument
In its opening memorandum, Cincom concedes that Ardent's petition meets each
of the statutory prerequisites for involuntary dissolution under 8 Del. C. 5 273 : (1)
CinMark is a Delaware corporation in which there are only two stockholders -- Cincom
and Ardent -- each of which holds 50% of the outstanding stock; (2) CinMark was
formed and operated as a joint venture; and (3) the two stockholders are unable to agree
upon the desirability of discontinuing the joint venture.' Cincom's arguments that
Ardent's petition should nonetheless be denied -- as a matter of law -- must be rejected.
To the contrary, if either party is to prevail on summary judgment, it is Ardent:
the joint venture should be dissolved.
' As its last argument, Cincom suggests that the parties cannot be "unable to
agree upon the desirability of discontinuing the joint venture" because the Shareholders'
Agreement does not expressly provide for termination of the joint venture. Cincom's
non-sensical syllogism, which is addressed at page 13, must be rejected.
RLFI-2139323-1
Relevant Background Facts
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3
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RESPONDENT CINCOM SYSTEMSS OPENING BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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EXTRACTED KEY WORDS
COURT CINMARK SUMMARY JUDGMENT ARDENT DELAWARE MOTION AGREEMENT DEL SHAREHOLDERS DISSOLUTION OBJECTSTUDIO CINCOM SYSTEMS PETITION UNCLEAN HANDS DEPO JOINT VENTURE RESPONDENT CINCOM SYSTEMS PROPOSED PLAN FUND CINMARK FEDERAL COURT AMENDMENT OHIO ACTION ROYALTIES PLAINTIFFS ELIZABETH WILMINGTON STOCKHOLDERS CUSTOMERS VMARK |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
`.
IN RE: CINMARK SYSTEMS,
INC., a Delaware corporation. C.A. No. 16762-NC ' -, `.
§ .._.-.. .
RESPONDENT CINCOM SYSTEMS, INC.'S OPENING BRIEF ;
IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT. "
PRICKETT, JONES & ELLIOTT
Ronald A. Brown, Jr.
Elizabeth A. Wilburn
1310 King Street
P.O. Box 1328
Wilmington, Delaware 19899
(302) 888-6500
Attorneys for Respondent
Dated: March 17. 2000
16103.1\110713V1
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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4
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PETITIONER ARDENT SOFTWARES OPPOSITION TO RESPONDENT CINCOM SYSTEMS MOTION FOR CONTINUANCE
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EXTRACTED KEY WORDS
ARDENT DISSOLUTION CINCOM PETITION MOTION OHIO JOINT VENTURE SUMMARY JUDGMENT CINMARK CONTINUANCE DELAWARE RESPONDENT SCHEDULING DELAY DEL REASON OPPOSITION SHAREHOLDERS DENY DISSOLUTION LEXIS PLAN PARTIES FEDERAL COURT BREACH MATTER DATA PROCESSING AVOID FAITH ALLEGATION |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
In re: CINMARK SYSTEMS, INC., >
a Delaware corporation > C.A. No. 16762-NC
PETITIONER ARDENT SOFTWARE, IING.`S .
OPPOSITION TO RESPONDENT CINCOM SYSTEMS, INC.%`-
MOTION FOR A CONTINUANCE OF THE TRIAL DATE
- -
Petitioner Ardent Software, Inc. ("Ardent") opposes respondent Cincom System, Inc's
("Cincom") Motion for a Continuance of the scheduled April trial in this matter. Ardent filed its
petition for dissolution under $273 of the Delaware Corporation Law (the $273 Petition) on October
28, 1998 -- more than sixteen (16) months ago. Ardent is entitled to its day in court in Delaware.
There is no good cause for further delay.
ARGUMENT
A. &-dent is Entitled to Dissolution Pursuant to $273.
There is no dispute that Ardent's petition for dissolution meets the three threshold
requirements for d-issolution under $273: (1) CinMark is a Delaware Corporation in which there
are only two shareholders -- Cincom and Ardent, each of which holds 50% of the outstanding stock;
(2) CinMark was formed and operated as a joint venture; and (3) the two shareholders are unable
to agree upon the d#esirability of discontinuing the joint venture and disbursing its assets.
While this Court has made it clear that dissolution is not to be ordered automatically upon
satisfaction of the fjtatutory requirements, In re Arthur Treacher's Fish and Chius, 386 A.2d 1162
(Del. Ch. 1978), it has also repeatedly held that the Court's power to deny dissolution where the
statutory standards are met "should be sparingly exercised." In re Data Processing Consultants,
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