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Case: 1:07-cv-03033 Document #: 77-3 Filed: 11/03/11 Page 2 of 25 PageID #:1012
Case: I :07-cv-03033 Document #: 55-2 Filed: 04/30/08 Page 1 of 63 PagelD #:546
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LOU ANN MURPHY, Individually and On ) Behalf Of All Others Similarly Situated, )
)
Plaintiff, ) )
V. )
)
CDW CORPORATION, JOT-IN A. ) EDWARDSON, MICHELLE L. COLLINS, ) CASEY G. COWELL, DANIEL S. GOLDIN, ) THOMAS J. HANSEN, DONALD P. JACOBS,) STEPHAN A. JAMES, MICHAEL P. ) KRASNY, TERRY L. LENOFELDER, ) SUSAN D. WELLINGTON, and BRIAN E. ) WILLIAMS, )
)
Defendants. )
Case No. 07 CV 3033
Judge James B. Zagel
STIPULATION OF SETTLEMENT
Lead Plaintiff Roberta Schuman ('Lead Plaintiff"), on her own behalf and on
behalf of the Settlement Class (as defined below), MOU Plaintiffs (as defined below), and CDW
Corporation ("CDW'), John A. Edwardson, Michelle L. Collins, Casey G. Cowell, Daniel S.
Goldin, Thomas J. Hansen, Donald P. Jacobs, Stephan A. James, Michael P. Krasny, Terry L.
Lengfelder, Susan D. Wellington, Brian E. Williams, and Madison Dearborn Partners, LLC
("Madison Dearborn") (collectively, "Defendants"), each acting through their respective
attorneys, have entered into this Stipulation of Settlement (the "Stipulation"). This Stipulation is
intended to fully, finally, and forever resolve, discharge, and settle the Class Actions and Settled
Claims (as defined below), upon and subject to the terms and conditions hereof. Throughout this
Stipulation, all capitalized terms used, but not immediately defined, have the meaning given to
them in paragraph 1 below.
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WHEREAS, on May 29, 2007, CDW entered into a merger agreement ("Merger
Agreement") pursuant to which, among other things, affiliates of Madison Dearborn and
Providence Equity Partners Inc. would acquire CDW and the outstanding shares of common
stock of CDW would be converted into the right to receive $87.75 per share in cash (the
"Merger").
WHEREAS, on May 31, 2007, Lou Ann Murphy filed a complaint on behalf of a
putative class of CDW shareholders to initiate an action captioned Murphy v. CD Corporation,
et a!, No. 07 CV 3033, naming the CDW Defendants and challenging the Merger.
WHEREAS, on May 31, 2007, Roberta Schuman and Lisa Fruchter each filed
complaints on behalf of a putative class of CDW shareholders, thereby initiating actions
captioned Schuman v. CD Corporation, et al., No. 07 CH 1416, and Fruchter v. CDW
Corporation, et al., No. 07 CH 1417 (collectively, the "State Court Actions"), respectively,
naming the CDW Defendants and challenging the Merger. The Schuman complaint also named
Madison Dearborn as a defendant.
WHEREAS, on June 26, 2007, John C. Brogan, as trustee for various trusts, filed
a complaint on behalf of a putative class of CDW shareholders to initiate an action captioned
Sarah E. Martin 1983 Minor's Trust, et aL, by John C. Brogan, Trustee v. CDW Corporation, et
al., No. 07 CV 3571 (together with Murphy, the "Federal Actions") (the Federal Actions together
with the State Court Actions, the "Class Actions"), naming the CDW Defendants and
challenging the Merger.
WHEREAS, on July 30, 2007, the State Court Actions were dismissed without
prejudice on the ground that there was another action pending on behalf of the same putative
class for the same cause in federal court,
2
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WHEREAS, on July 30, 2007, following several sessions of arm's-length
negotiations concerning a possible settlement of the Class Actions, the Parties reached an
agreement in principle to settle the Class Actions and executed a Memorandum of Understanding
("MOU"). The MOU memorialized the Parties' agreement that in consideration for the
settlement and dismissal with prejudice of the Class Actions and the releases provided in the
MOU, CDW would disclose certain additional information ("Additional Information") by
including the Additional Information in an SEC filing on Form 8-K to be made on or about
August 2, 2007, and prior to the shareholders meeting in connection with the Merger.
WHEREAS, the Additional Information was included in an SEC filing on Form
8-K made on August 2, 2007.
WHEREAS, the Merger was approved at a shareholders meeting held on August
9, 2007, and closed on October 12, 2007.
WHEREAS, following execution of the MOU, Lead Plaintiff conducted
additional discovery to confirm the fairness and adequacy of the Settlement and the disclosures
relating to the Merger.
WHEREAS, Plaintiffs' Counsel believe that the claims asserted in the Class
Actions have merit, but have determined that the Settlement set forth in this Stipulation is in the
best interests of the Settlement Class. Defendants deny that they have committed any disclosure
violations or any other breach of duty whatsoever in connection with the Merger or the
Preliminary Proxy or the Definitive Proxy, but have determined that it is desirable that the claims
against them be settled on the terms reflected in this Stipulation.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by
and among Lead Plaintiff (on behalf of herself and each of the Settlement Class Members) and
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MOU Plaintiffs, on the one hand, and Defendants, on the other hand, by and through their
respective attorneys, that, subject to the approval of the Court, the Class Actions shall be finally
and fully compromised, settled, released, and dismissed with prejudice, and the Settled Claims
released as to all Released Parties, upon and subject to the terms and conditions of the
Stipulation, as follows.
1. Definitions
As used in this Stipulation, the following capitalized terms have the meanings
specified below:
1.1 "CDW Defendants" means COW, John A. Edwardson, Michelle L.
Collins, Casey G. Cowell, Daniel S. Goldin, Thomas J. Hansen, Donald P. Jacobs, Stephan A.
James, Michael P. Krasny, Terry L. Lengfelder, Susan D. Wellington, and Brian E. Williams.
1.2 "Consolidated Federal Action" means the action resulting from the
consolidation of Murphy v. CDW Corporation, etal., No. 07 CV 3033, and Sarah E. Martin
1983 Minor's Trust, et al., by John C. Brogan, Trustee v. CD Corporation, et al., No. 07 CV
3571, for all purposes.
1.3 "Definitive Proxy" means the Definitive Proxy Statement filed by CDW
with the SEC on July 13, 2007.
1.4 "Final Court Approval" means that the Court has entered an order
approving the certification of the Settlement Class and the Settlement, that such order is finally
affirmed on appeal or is no longer subject to appeal, and that the time for filing any appeal or
motion for reconsideration has expired.
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1.5 "Judgment" means the order of judgment and dismissal with prejudice
approving the Settlement to be rendered by the Court, substantially in the form attached hereto as
Exhibit B.
1.6 "MOU Plaintiffs" means the Class Action plaintiffs other than Lead
Plaintiff Roberta Schuman who entered into the MOU on July 30, 2007: Lou Ann Murphy; Lisa
Fruchter; and Sarah B. Martin 1983 Minor's Trust, Patrick W. Martin 1983 Minor's Trust, Philip
A. Martin 1983 Minor's Trust, Joseph William Zellerbach 1988 Minor's Trust, and Elizabeth
Ellen Zellerbach 1988 Minor's Trust, by John C. Brogan, Trustee.
1.7 "Notice" means the notice of the proposed Settlement that is to be sent to
the Settlement Class Members substantially in the form attached hereto as Attachment 1 to
Exhibit A.
1.8 "Parties" means the parties to this Stipulation.
1.9 "Person" means an individual, corporation, limited liability corporation,
professional corporation, limited liability partnership, partnership, limited partnership,
association, joint stock company, estate, legal representative, trust, unincorporated association,
government or any political subdivision or agency thereof, or any other business or legal entity.
1.10 "Lead Plaintiffs Counsel" means court-appointed Lead Counsel
Harwood Feffer LLP and Liaison Counsel Miller Law LLC.
1.11 "Plaintiffs' Counsel" means all of the attorneys representing Lead
Plaintiff, MOU Plaintiffs, and the Settlement Class as identified at the end of this Stipulation.
1.12 "Preliminary Approval Order" means an order substantially in the form
attached hereto as Exhibit A.
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1.13 "Preliminary Proxy" means the Preliminary Proxy Statement filed by
CDW with the SEC on July 2, 2007.
1.14 "Released Parties" means the Defendants (or any of them) and any of their
respective families, parent entities, associates, affiliates, or subsidiaries and each and all of their
respective past, present or future officers, directors, shareholders, partners, members,
representatives, employees, financial or investment advisors (including, without limitation,
Morgan Stanley & Co. Incorporated and William Blair & Company, L.L.C.), consultants,
accountants, attorneys, investment bankers, commercial bankers, engineers, advisors or agents,
heirs, executives, trustees, general or limited partners or partnerships, personal representatives,
estates, administrators, predecessors, successors, and assigns.
1.15 "Releasing Parties" means Lead Plaintiff, MOU Plaintiffs, and each
Settlement Class Member.
1.16 "Settled Claims" means all claims, demands, rights, actions or causes of
action, rights, 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, matured or unrnatured, specifically including Unknown
Claims as defined in paragraph 1.21, that have been, could have been, or in the future can or
might be asserted in the Class Actions 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 otherwise) by or on behalf of any member of the Settlement Class, whether
individual, class, derivative, representative, legal, equitable, or any other type or in any other
capacity against the Released Parties which have arisen, could have arisen, arise now or hereafter
arise out of, or relate in any manner to, the allegations, facts, events, transactions, acts,
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occurrences, statements, representations, misrepresentations, omissions, or any other matter,
thing, or cause whatsoever, or any series thereof, embraced, involved, set forth, or otherwise
related to the Complaints or Amended Complaints filed in the Class Actions or any allegations
therein, to the Merger, to the fiduciary obligations of any of the Defendants or Released Parties
in connection with the Merger, or to the disclosure obligations of any of the Defendants or
Released Parties in connection with the Merger, including but not limited to the Preliminary and
Definitive Proxy; provided, however, that the Settled Claims shall not include any claims to
enforce the Settlement.
1.17 "Settlement" means the settlement of the Class Actions embodied in this
Stipulation.
1.18 "Settlement Class" means all record and beneficial owners of common
stock of CDW beginning on May 29, 2007, and continuing through and including October 12,
2007, including without limitation Lead Plaintiff and MOU Plaintiffs, and including any and all
of their respective successors in interest, predecessors, representatives, trustees, executors,
administrators, heirs, assigns, or transferees, immediate and remote, and any person or entity
acting for or on behalf of, or claiming under any of them, and each of them. The Defendants,
members of their immediate families, and affiliates of the Defendants as the term "affiliate" is
defined in the Securities Exchange Act of 1934 and SEC Rule 12b-2 promulgated thereunder are
excluded from the Settlement Class.
1.19 "Settlement Class Member" means a Person who falls within the
definition of the Settlement Class.
1.20 "Settlement Hearing" means the hearing to be held by the Court to
consider final approval of the Settlement.
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1.21 "Unknown Claims" means any Settled Claim that Lead Plaintiff, any
MOU Plaintiff, or any Settlement Class Member does not know or suspect to exist at the time of
the release of the Released Parties that, if known, might have affected this Stipulation or any of
the terms thereof, or might have affected his, her, or its decision not to object to this Settlement.
2. Settlement Terms
2.1 In consideration for the Settlement and dismissal with prejudice of the
Class Actions and the releases provided herein, CDW has disclosed the Additional Information
by including the Additional Information in a Current Report on Form 8-K that was filed with the
SEC on August 2, 2007. A copy is attached as Exhibit C. Defendants make no admission that
the Additional Information is material.
2.2 Notice to the Settlement Class of the proposed Settlement shall be
provided by CDW at its expense. Subject to the approval of the Court, this requirement shall be
satisfied by means of the mailing of a notice of settlement (the "Notice"), substantially in the
form of Attachment I to Exhibit A hereto, to members of the Settlement Class who can be
identified with reasonable effort, with notice costs to be borne by CDW. Notice of the
Settlement as required by the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, also shall be
provided by CDW at its expense.
2.3 The Parties agree, solely for purposes of this Stipulation and the
Settlement set forth herein, to the certification of the Consolidated Federal Action for settlement
purposes only as a class action pursuant to Rules 23(b)(1) and 23(b)(2) of the Federal Rules of
Civil Procedure, with the Lead Plaintiff as class representative, on behalf of the Settlement Class.
2.4 All proceedings in the Consolidated Federal Action, other than
proceedings as may be necessary to carry out the terms and conditions of the Settlement, shall be
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stayed and suspended-until further order of the Court and pending final determination of whether
the Settlement provided for in the Stipulation should be approved, Lead Plaintiff, MOU
Plaintiffs, and all members of the Settlement Class, or any of them, are barred and enjoined from
commencing, prosecuting, or refihing any action in any court (including, without limitation,
refiling the State Court Actions) asserting against any of the Defendants or any other persons or
entities any claims, either directly, representatively, derivatively, or in any other capacity, which
have been or could have been asserted, or which arise out of, or relate in any way to, the Settled
Claims.
3. Preliminary Approval Order, Settlement Hearing, and Notice
3.1 As soon as practicable upon execution of this Stipulation, the Parties shall
submit to the Court this Stipulation, together with its exhibits, and shall apply for entry of the
Preliminary Approval Order, substantially in the form of Exhibit A hereto, which shall request,
inter alia:
a) Consolidation of the Federal Actions for all purposes;
b) Preliminary approval of the Settlement set forth in the Stipulation;
C) Approval of the form of and authorization to send the Notice to the
Settlement Class Members who can be identified with reasonable effort, substantially in the form
and content of Attachment I to Exhibit A hereto;
d) Preliminary certification of the Settlement Class pursuant to Rules
23(b)(1) and 23(b)(2) of the Federal Rules of Civil Procedure;
e) That the Court schedule a Settlement Hearing;
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I) That the Court enjoin Lead Plaintiff, MOU Plaintiffs, and the
Settlement Class Members from instituting, commencing, or prosecuting any claim which asserts
Settled Claims against any of the Released Parties.
4. Releases
4.1 Upon the Effective Date, the Releasing Parties shall be deemed to have,
and by operation of the Judgment shall have, fully, finally, and forever released, relinquished and
discharged all Settled Claims, specifically including Unknown Claims, against the Released
Parties, shall have covenanted not to sue the Released Parties with respect to all such Settled
Claims, and shall be permanently barred and enjoined from instituting, commencing,
prosecuting, or asserting any such Settled Claim against the Released Parties.
4.2 The releases contemplated by this Settlement shall extend to claims that
the Releasing Parties do not know or suspect to exist at the time of the release, which if known,
might have affected the Releasing Parties' decision to enter into the release. Lead Plaintiff, each
member of the Settlement Class, MOU Plaintiffs, and Defendants shall be deemed to waive any
and all provisions, rights, and benefits conferred by any law of the United States, or principle of
common law, which governs or limits a person's release of unknown claims. Lead Plaintiff,
each member of the Settlement Class, MOU Plaintiffs, and Defendants shall be deemed to
relinquish, to the full extent permitted by law, the provisions, rights and benefits of Section 1542
of the California Civil Code which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
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In addition, Lead Plaintiff, each member of the Settlement Class, MOU Plaintiffs, and
Defendants, also shall be deemed to waive any and all provisions, rights and benefits conferred
by any law of any state or territory of the United States, or principle of common law, which is
similar, comparable or equivalent to California Civil Code Section 1542. Lead Plaintiff, for
herself and on behalf of the Settlement Class (specifically including MOU Plaintiffs)
acknowledges that Settlement Class Members may discover facts in addition to or different from
those that they now know or believe to be true with respect to the subject matter of this release,
but that it is her intention, as Lead Plaintiff and on behalf of the Settlement Class, to fully,
finally, and forever settle and release any and all claims released hereby known or unknown,
suspected or unsuspected, which now exist, or heretofore existed, or may hereafter exist, and
without regard to the subsequent discovery or existence of such additional or different facts.
Lead Plaintiff acknowledges, and the Settlement Class Members (including MOU Plaintiffs)
shall be deemed to have acknowledged, and by operation of the Court's Judgment shall have
acknowledged, that the foregoing waiver was separately bargained for and a key element of the
Settlement of which this release is a part.
4.3 If any action that would be barred by the releases contemplated by this
Settlement is commenced against any of the Defendants or the Released Parties in any court
prior to Final Court Approval and (a) following a motion by the Defendant or the Released
Parties to dismiss or stay that action, such action is not dismissed or stayed in contemplation of
dismissal subject only to the approval of the Settlement contemplated hereby, and (b) Defendant
or the Released Parties exhaust all available appeals, any Defendant may at his, her or its sole
option, prior to the Settlement Hearing, withdraw from the Settlement. The Settlement shall
remain binding as to the remaining parties thereto.
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4.4 Upon the Effective Date, each of the Defendants shall be deemed to have,
and by operation of the Judgment shall have, fully, finally, and forever released, relinquished,
and discharged each and all of the Lead Plaintiff, MOU Plaintiffs, and Plaintiffs' Counsel from
all claims arising out of, in any way relating to, or in connection with the institution, prosecution,
assertion, settlement, or resolution of the Class Actions or the Settled Claims, except claims to
enforce the terms and conditions contained in the Stipulation.
5. Plaintiffs' Counsel's Attorneys' Fees and Expenses
5.1 After reaching agreement on the disclosure of the Additional Information,
the Parties negotiated at arms' length and in good faith the amount of attorneys' fees, costs, and
expenses to be paid to Plaintiffs' Counsel by CDW, subject to approval by the Court. The
Parties have agreed that Lead Plaintiff may seek an award of attorneys' fees to Plaintiffs'
Counsel in the Class Actions and reimbursement of actual costs and expenses in the sum of
$575,000 in the aggregate. All other Defendants agree that they Will not oppose Lead Plaintiff's
application made in accordance with the terms herein, and in no event will CDW be obligated to
pay an award in excess of that amount. No Defendant other than CDW will be obligated to pay
any award. The petition filed in the Consolidated Federal Action shall be the only fee petition in
the Class Actions, and MOU Plaintiffs shall not file a separate fee petition in any court. None of
the Defendants shall be obligated to pay the costs, attorneys' fees, or expenses of Lead Plaintiff,
MOU Plaintiffs, or any member of the Settlement Class, or with respect to the Class Actions,
except as provided in this paragraph and in paragraph 2.2 above. The approval of fees and
expenses in the amount up to $575,000 as stated in this paragraph shall not be a condition of the
Settlement of the Class Actions or the entry of final judgment therein.
12
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5.2 CDW shall pay the amount of fees and expenses awarded by the Court in
an amount not to exceed $575,000 to Lead Plaintiffs Counsel within five (5) business days after
Final Court Approval or after the Court's order on Lead Plaintiffs fee application is final and no
longer subject to appeal, whichever is later.
6. Conditions of Settlement, Effect of Disapproval, Cancellation, or Termination
6.1 The Effective Date of the Settlement shall be the earliest date on which all
of the following events have occurred:
a) The Court has entered the Preliminary Approval Order,
substantially in the form of Exhibit A attached hereto, including the injunction outlined in
paragraph 3.1(t) above;
b) The Court has approved the Settlement, following notice to the
Settlement Class and the Settlement Hearing, and has entered Judgment, substantially in the form
of Exhibit B attached hereto, dismissing the Consolidated Federal Actions with prejudice; and
C) Final Court Approval has occurred, as defined in paragraph 1.5
above.
6.2 If the Court does not enter the Judgment substantially in the form of
Exhibit B hereto, or if the Court enters the Judgment and appellate review is sought and, on such
review, the entry of the Judgment is finally vacated, modified, or reversed, then this Stipulation
and the Settlement incorporated herein shall be cancelled and terminated, unless all Parties agree
in writing to proceed with the Settlement under the terms of the Judgment as modified by the
Court or on appeal. No Party shall have any obligation whatsoever to proceed under any terms
other than substantially in the form provided and agreed to herein; provided, however, that no
order of the Court concerning award of attorneys' fees, costs, or expenses, or any modification or
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reversal on appeal of such order, shall constitute grounds for cancellation or termination of this
Stipulation by any Party. Without limiting the foregoing, Defendants shall have, in their sole and
absolute discretion, the option to terminate the Settlement in its entirety in the event that the
Judgment does not include the releases set forth in paragraphs 4.1-4.3 above, or does not provide
for the dismissal with prejudice of the Consolidated Federal Action as against them. If any Party
engages in a material breach of the terms hereof, any other Party, provided that it is in substantial
compliance with the terms of this Stipulation, may terminate this Stipulation on notice to the
breaching Party or sue for enforcement.
6.3 This Stipulation shall be null and void and of no force and effect should
any of the conditions set forth herein not be met, including if the Stipulation is not approved by
the Court. In any such event, (a) this Stipulation, and all negotiations, transactions, and
proceedings connected with it, shall be deemed not to prejudice in any way the respective
positions of the Parties with respect to the Class Actions and the Parties shall be restored to their
respective positions in the Class Actions as of July 30, 2007; (b) this Stipulation shall not be
deemed or construed as evidence or an admission by any party of any fact, matter, or thing; (c)
the Defendants shall not be obligated to pay any fees or expenses of Plaintiffs' Counsel, except
that Lead Plaintiffs Counsel shall retain the right to seek an award of attorneys' fees and
expenses, which Defendants reserve the right to oppose; (d) the certification of the Settlement
Class as provided for herein shall be vacated and of no further force and effect, and any
judgment or order entered by the Court in accordance with the terms of the Stipulation shall be
treated as vacated, nunc pro tunc; and (e) neither the existence of this Stipulation nor its contents
shall be admissible in evidence or shall be referred to for any purpose in the Class Actions or in
any other litigation or proceeding.
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6.4 In the event that the Settlement is terminated or cancelled for any reason,
Defendants reserve the right to oppose certification of any class in future proceedings.
7. Miscellaneous Provisions
7.1 The Parties: (a) acknowledge that it is their intent to consummate this
agreement; and (b) agree to cooperate to the extent reasonably necessary to effectuate and
implement all terms and conditions of the Stipulation and to exercise their best efforts to
accomplish the foregoing terms and conditions of the Stipulation.
7.2 The Parties intend this Settlement to be a final and complete resolution of
all disputes between them with respect to the Class Actions. The Settlement comprises claims
which were contested and shall not be deemed an admission by any of the Parties as to the merits
of any claim or defense. The Parties agree that the Settlement was negotiated in good faith by
the Parties, and reflects a settlement that was reached voluntarily after consultation with
competent legal counsel.
7.3 Defendants have denied and continue to deny they have committed or
attempted to commit any violations of law or breached any duty owed to CDW and/or its
shareholders, and Defendants are entering into the Settlement solely because the Settlement
would eliminate the burden, expense, and distraction of further litigation and would permit the
merger to proceed without risk of injunctive or other relief.
7.4 The Settlement set forth herein reflects the results of the Parties'
negotiations and the terms of the MOU. An agreement in principle was only reached after
arm's-length negotiations between the Parties who were all represented by counsel with
extensive experience and expertise in shareholder class action litigation. During the
negotiations, all Parties had a clear view of the strengths and weaknesses of their respective
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claims and defenses. Plaintiffs' Counsel have determined that a settlement of the Class Actions
on the terms reflected herein confers substantial benefits upon the Settlement Class and is fair,
reasonable, adequate, and in the best interests of CDW's shareholders.
7.5 Lead Plaintiff, MOU Plaintiffs, and Plaintiffs' Counsel acknowledge that,
in view of the discovery taken by them of Defendants, together with other information available
to them, Lead Plaintiff (on behalf of herself and the Settlement Class), MOU Plaintiffs, and
Plaintiffs' Counsel are satisfied that an adequate factual record has been established that supports
the Settlement and hereby waive any right to conduct further discovery to confirm the
Settlement.
7.6 Neither the Stipulation nor the Settlement, nor any act performed or
document executed pursuant to or in furtherance of the Stipulation or the Settlement, is or may
be deemed to be or may be used as an admission of, or evidence of, the validity of any Settled
Claim against any Released Person, or of any fault, wrongdoing, or liability of the Defendants in
any civil, criminal, or administrative proceeding in any court, administrative agency, or tribunal.
This Stipulation may, however, be filed and used in other proceedings, where relevant, to
demonstrate the fact of its existence and this Settlement, including but not limited to Defendants
filing the Stipulation and/or the Judgment in any action that may be brought against them in
order to support a defense or counterclaim based on principles of res judicata, collateral
estoppel, release, good faith settlement, judgment bar or reduction, or any other theory of claim
preclusion, issue preclusion, similar defense, or counterclaim.
7.7 All agreements made and orders entered during the course of the Class
Actions relating to the confidentiality of information shall survive this Stipulation.
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7.8 All of the exhibits to the Stipulation are material and integral parts hereof
and are fully incorporated herein by this reference.
7.9 The Stipulation may be amended or modified only by a written instrument
signed by or on behalf of all Parties or their respective successors-in-interest.
7.10 The Stipulation, including the exhibits attached hereto, constitutes the
entire agreement among the Parties hereto and supersedes and extinguishes any prior agreements
among them. No representations, warranties, or inducements have been made to any Party
concerning the Stipulation or its exhibits other than the representations, warranties, and
covenants contained and memorialized in such documents. It is understood by the Parties that,
except for matters expressly represented herein, the facts or law with respect to which this
Stipulation is entered into may turn out to be other than or different from the facts now known to
each Party or believed by such Party to be true; each Party therefore expressly assumes the risk
of the facts or law turning out to be different, and agrees that this Stipulation shall be in all
respects effective and not subject to termination by reason of any such facts or law. Except as
otherwise provided herein, each Party shall bear its own costs and attorneys' fees incurred in the
Class Actions or in connection with the Settlement.
7.11 Lead Plaintiff's Counsel and Lead Plaintiff represent and warrant that
Lead Plaintiffs' Counsel, on behalf of the Settlement Class, are expressly authorized by Lead
Plaintiff to take all appropriate actions required or permitted to be taken by or on behalf of the
Settlement Class pursuant to this Stipulation to effectuate its terms and also are expressly
authorized to enter into any modifications or amendments to this Stipulation on behalf of the
Settlement Class as Lead Plaintiffs' Counsel deem appropriate.
17
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7.12 Each counsel or other Person executing this Stipulation or any of its
exhibits on behalf of any Party hereto hereby warrants that such Person has the full authority to
do so.
7.13 The Stipulation may be executed in one or more counterparts. All
executed counterparts and each of them shall be deemed to be one and the same instrument. A
complete set of executed counterparts shall be filed with the court.
7.14 The Stipulation shall be binding upon, and inure to the benefit of, the
successors and assigns of the Parties.
7.15 The Stipulation, including the exhibits hereto, shall be considered to have
been negotiated, executed, and delivered, and to be wholly performed, in the State of Illinois, and
the rights and obligations of the Parties to the Stipulation shall be construed and enforced in
accordance with, and governed by, the internal, substantive laws of the State of Illinois without
giving effect to that State's choice of law principles.
7.16 Lead Plaintiff, MOU Plaintiffs, and Plaintiffs' Counsel represent and
warrant that none of the claims or causes of action asserted in the Class Actions, including any
Settled Claim, has been assigned, encumbered, or in any manner transferred in whole or in part.
IN WITNESS WHEREOF, the Parties hereto have caused the Stipulation to be executed,
by their duly authorized attorneys, dated as of January , 2008.
18
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amuel K. Ro liAR WOOD FEFFER LLP 488 Madison Avenue New York, NY 10022
Marvin A. Miller Lori A. Fanning MILLER LAW LLC 115 South LaSalle Street, Suite 2910 Chicago, IL 60603
Counsel for Lead Plaintiff Roberta Schuman and the Settlement Class
Counselfor PlaintiffLou Ann Murphy in the Murphy Federal Action
Samuel H. Rudman David,A....Rosenfeld ............................................. LERACI-I COUGI-ILIN STOIA GELLER
RUDMAN & ROBBINg LLP 58 South Service Road, Suite 200 Melville, NY 11747
Leigh R. Lasky Norman Rifkind Amelia S. Newton LASKY & RIFKLND, LTD, 350 North LaSalle Street, Suite 1320 Chicago, IL 60610
Counsel for PlaintiffLisa Fruchier
Lawrence W. Schad James Shedden Tony Kim SCHAD, DIAMOND & SHEDDEN, PC 332 South Michigan Avenue, Suite 1000 Chicago, 1L 60604
Peter D. Bull Joshua M. Lifshitz BULL & LIFSHITZ, LLP 18 East 41st Street, #11 New York , Ny 10017
Counsel/or Plaintiffs Sarah E. Martin 1983 Minor's Trust, Patrick W Martin 1983 Minor's Trust, Philip A. Martin 1984 Minor's Trust, Joseph William Zelle4rbaeja 1988 Minor's Trust, Elizabeth Ellen Zel(erbach 1988 Minor's Trust, by John C. Brogan, Trustee
R-adXeemFaru;qhi~- Shaft T.-Rdwley David ft Leventhal Antonio Vozzolo FARUQI & FARUQI, LLP 369 Lexington Avenue, j0ch Floor New York, NY 10017-6531
Clinton A, Krislov Michael R. Karnuth Jeffrey M. Salas KR1SLOV & ASSOCIATES, LTD. 20 North Wacker Drive, Suite 1350 Chicago, 1L 60606
Christopher M. Kennedy KENNEDY PIERSON & STRACHAN 668 North Western Avenue Lake Forest, IL 60045
Counselfor Plaintiff Roberta Schuman in the Schuman State Court Action
110
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Samuel K. Rosen HAR WOOD FEFFER LLP 488 Madison Avenue New York, NY 10022
Marvin A. Miller Lori A. Fanning MILLER LAW LLC 115 South LaSalle Street, Suite 2910 Chicago, IL 60603
Counsel for Lead Plaintiff Roberta Schuman and the Settlement Class
Counselfor PlainqffLou Ann Murphy in the Murphy Federal Action
müél H. Rudman Da%o A. Rosenfeld. ..........................-
HUN STOIA GELLER RUDMAN & ROBBNS LLP
58 South Service Road, Suite 200 Melville, NY 11747
Leigh R. Lasky Norman Rifkind Amelia S. Newton LASKY & RIFKTND, LTD. 350 North LaSalle Street, Suite 1320 Chicago, IL 60610
Counsel for Plaintiff Lisa Fruchrer
Lawrence W. Schad James Shedden Tony Kim SCHAD, DIAMOND & SHEDDEN, PC 332 South Michigan Avenue, Suite 1000 Chicago, IL 60604
Peter D. Bull Joshua M. Lifshitz BULL & LIFSHITZ, LLP IS East 41st Street, #11 New York, NY 10017
Counsel for Plaintiffs Sarah E. Martin 1983 Minor's Trust, Patrick W Martin 1983 Minor's Trust, Philip A. Martin 1984 Minor's Trust, Joseph William Zellerbach 1988 Minor Trust, Elizabeth Ellen Zellepj,ach 1988 Minor's Trust, by John C. Brogan, Trustee
Nadeem Faruqi ----
David H. Leventhal Antonio Vozzolo FARUQ1 & FARUQI, LLP 369 Lexington Avenue, 10th Floor New York, NY 10017-6531
Clinton A. Kxislov Michael R. K.arnuth Jeffrey M. Salas KR1SLOV & ASSOCIATES, LTD. 20 North Wacker Drive, Suite 1350 Chicago, IL 60606
Christopher M. Kennedy KENNEDY PIERSON & STRACHAN 668 North Western Avenue Lake Forest, IL 60045
Counsel for Plaint ffRoberta Schuman in the Schuman State Court Action
19
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Samuel K. Rosen HAR WOOD FEFFER LLP 488 Madison Avenue New York, NY 10022
Marvin A. Miller Lori A. Fanning MILLER LAW LLC 115 South LaSalle Street, Suite 2910 Chicago, IL 60603
Counsel for Lead Plaintiff Roberta Schuman and the Settlement Class
Counsel for Plaintiff Lou Ann Murphy in the Murphy Federal Action
Samuel H. Rudman David A. Rosenfeld LERACH COUGHLIN STOIA GELLER
RUDMAN & ROB BINS LU' 58 South Service Road, Suite 200 Melville, NY 11747
Leigh R. Lasky Norman Rifkind Amelia S. Newton LASKY & R1FKIND, LTD. 350 North LaSalle Street, Suite 1320 Chicago, IL 60610
Counsel for P(ain:ffLisa Fruchter
4~6k'~2-- Lawrence W. Schad James Shedden Tony Kim SCHAD, DIAMOND & SF!EDE)EN, PC 332 South Michigan Avenue, Suite 1000 Chicago, IL 60604
Peter D, Bull Joshua M. Lifshitz BULL & LLFSHITZ, LU' 18 East 41st Street, /111 New York, NY 10017
Counsel far Plaintiffs Sarah E. Martin 1983 Minor's Trust, Patrick W Martin 1983 Minor's Trust, Philip A. Martin 1984 Minor's Trust, Joseph William Zellerbach 1988 MInor's Tru;t, Elizabeth Ellen Zellerbach 1988 Minor's Trust, by John C. Brogan Trustee
Nadeem Faruqi Shane T.Rowley
-
David FL Leventhal Antonio Vozzolo FARUQI & FARUQI, LLP 369 Lexington Avenue, 1011 Floor New York, NY 10017-6531
Clinton A. Krislov Michael R. Karnuth Jeffrey M. Salas KRISLOV & ASSOCIATES, LTD. 20 North Wacker Drive, Suite 1350 Chicago, IL 60606
Christopher M. Kennedy KENNEDY PIERSON & STRACHAN 668 North Western Avenue Lake Forest, IL 60045
Counselfor PlaintffRoberta Schuman in the Schuman State Court Action
19
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L~~ V~J,4- Walter C. C -son Linton J. Childs James W. Ducayet Kristen R. Seeger SIDLEY AUSTIN LLP One South Dearborn Street Chicago, Illinois 60603
Counsel for Defendants CDW Corporation, John A. Edwardson, Michelle L. Collins, Casey G. Cowell, Daniel S. Go/din, Thomas I Hansen, Donald P. Jacobs, Stephan A. James, Terry L. Len gfelder, Susan D. Wellington, and Brian E. Williams
Eric D. Brandfonbrener PERKINS COlE LLP 131 South Dearborn Street, Suite 1700 Chicago, IL 60603-5559
David B. Tuichin David M.J. Rein SULLI VAN & CROMWELL LLP 125 Broad Street New York, NY 10004-2498
Counsel for Defendant Michael P. Krasny
Timothy A. Duffy KIRKLAND & ELLIS LLP 200 East Randolph Street Chicago, IL 60601
Counselfor Defendant Madison Dearborn Partners, LLC
20 041 4023479v.4
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Walter C. Carlson Linton J. Childs James W. Ducayet Kristen R. Seeger SIDLEY AUSTIN LLP One South Dearborn Street Chicago, Illinois 60603
Counsel for Defendants CDWCorporation, John A. Edwardson, Michelle L. Collins, Casey G. Cowell, Daniel S (Jo/din, Thomas J Hansen, Donald P. Jacobs, Stephan A. James, Terry L. Lengfelder, Susan D. Wellington, and Brian E Williams
D (2 Eric D. Brandfonbrener PERKINS COlE LU' 131 South Dearborn Street, Suite 1700 Chicago, IL 60603-5559
David B. Tuichin David M.J. Rein SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004-2498
Counsel for Defendant Michael P. Krasny
Timothy A. Duffy KIRKLAND & ELLIS LLP 200 East Randolph Street Chicago, IL 60601
Counsel for Defendant Madison Dearborn Partners, LLC
20 CHI 4O249v.4
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Walter C. Carlson Linton I. Childs James W. Ducayet Kristen R. Seeger SJDLEY AUSTIN LLP One South Dearborn Street Chicago, Illinois 60603
Counsel for Defendants CD W Corporation, John A. Edwardson, Michelle L. Collins, Casey G. Cowell, Daniel S. Goldin, Thomas Hansen, Donald P. Jacobs, Stephan A. James, Terry L. Lengfelder, Susan D. Wellington, and Brian E. Williams
Eric D. Brandfonbrener PERKINS COLE LLP 131 South Dearborn Street, Suite 1700 Chicago, IL 60603-5559
David B. Tuichin David M.J. Rein SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004-2498
Counsel for Defendant Michael P. Krasny
Timothy A KIRKLAND & ELLIS LLP 200 East Randolph Street Chicago, IL 60601
Counselfor Defendant Madison Dearborn Partners, LL
20 di 4023479v.4