In the Circuit Court of the State of Oregon

Transcription

1 In the Circuit Court of the State of Oregon for the County of Multnomah ASBESTOS WORKERS PHILADELPHIA PENSION FUND and W. DONALD WYBERT, individually and on behalf of all others similarly situated Plaintiffs, v. WILLIAM C. McCORMICK, MICHAEL D. BURGER, KIRBY A. DYESS, DONALD D. JOBE, GEORGE H. KERCKHOVE, WILLIAM W. LATTIN, ROBERT C. STRANDBERG, and FRANCIS YUEN, Defendants. X X C.A. No C.A. No Notice of Settlement of Class Action, of Fairness Hearing, and of Right to Appear TO ALL PERSONS WHO HELD ANY MERIX CORPORATION COMMON STOCK CONTINUOUSLY FROM OCTOBER 6, 2009 THROUGH AND INCLUDING FEBRUARY 16, ALL NOMINEES WHO WERE HOLDERS OF MERIX COMMON STOCK CONTINUOUSLY FROM OCTOBER 6, 2009 THROUGH AND INCLUDING FEBRUARY 16, 2010, ARE REQUIRED TO SEND THIS NOTICE TO THE BENEFICIAL OWNERS OF THAT STOCK NO LATER THAN 10 DAYS AFTER RECEIPT OF THIS NOTICE. ADDITIONAL COPIES OF THIS NOTICE MAY BE OBTAINED FROM In re Merix Corp. Shareholder Litigation c/o Heffler, Radetich & Saitta L.L.P Market Street, Suite 1700 Philadelphia, PA Telephone The purpose of this Notice ( Notice ) is to inform you of a proposed settlement (the Settlement ) between William C. McCormick, Michael D. Burger, Kirby A. Dyess, Donald D. Jobe, George H. Kerckhove, William W. Lattin, Robert C. Strandberg, and Francis Yuen, defendants in this class action ( Defendants ), and Asbestos Workers Philadelphia Pension Fund and W. Donald Wybert, plaintiffs in this class action ( Plaintiffs ). A hearing will be held in the Circuit Court of the State of Oregon for Multnomah County ( Court ) to consider the fairness, reasonableness and adequacy of the proposed Settlement. Your legal rights may be affected by this Notice and the proceedings in this litigation, whether you act or do not act. You should read this Notice carefully. Submit a Proof of Claim to Receive Compensation Your Legal Rights and Options in this Settlement You will receive compensation if you submit a timely and valid proof of claim and have not previously opted out of the Class. Your claims against Defendants will be released. Elect Not to Receive Compensation Object If you do not wish to receive any share of the Settlement proceeds, then do nothing, in which case you will receive no consideration and will be bound by all terms of the Settlement. If you opted out of the Class on or prior to June 25, 2011 you are not eligible to participate in or object to the Settlement in any event, and are not bound by its terms. If you wish to share in the Settlement but object to its terms, write to the Court about any objection you have to the Settlement. You may, but are not required to, appear at the Settlement hearing. These options are explained further herein. Questions? Call Toll Free, or Visit

2 Important Dates Deadline to Submit a Proof of Claim February 8, 2012 Deadline to Object October 27, 2011 Date of Final Approval Hearing November 10, 2011 Basic Information 1. What Is The Lawsuit About? The litigation is a class action filed by Plaintiffs on behalf of persons or entities that held any Merix Corporation ( Merix ) common stock continuously from October 6, 2009 through and including February 16, 2010, the date of the closing of the merger of Merix and Viasystems Group, Inc., ( Viasystems ). Defendants were directors of Merix at the time of the Merger. Plaintiffs Consolidated Amended Complaint ( CAC ) alleges that Defendants breached their fiduciary duties of loyalty, good faith and full disclosure to the shareholders of Merix in connection with the sale of Merix to Viasystems (the Merger ). Defendants deny any and all wrongdoing and maintain that they committed no breach of any duty owing to Merix shareholders and exercised in good faith their reasonable business judgment in recommending and approving the merger of Merix with Viasystems Group, Inc. 2. Who Is Included In The Settlement? The Court directed that, for purposes of the proposed settlement, the Class includes All persons or entities that held Merix common stock continuously from October 6, 2009 through the consummation of the merger on February 16, 2010 (the Class ). Excluded from the Class as defined are defendants named herein and any person, firm, trust, corporation or other entity controlled by or affiliated with any Defendant and holders of Merix common stock who were also bondholders of Merix. Any person who previously elected to opt-out of the Class on or before June 25, 2011, is excluded from participating in, receiving the benefits of or objecting to the Settlement. 3. What Does The Settlement Provide? In exchange for the Settlement and dismissal of the Action, Defendants, after any final approval, shall pay or cause to be paid $1,500,000 into a Settlement fund, with interest earned thereupon, to be divided among all eligible Class Members with recognized claims on a pro-rata basis, after plaintiffs administrative costs incurred in connection with the settlement, attorneys fees, expenses, costs of litigation, and all other administrative costs awarded by the Court, are paid. 4. Reasons for the Settlement Because of the risks associated with continuing to litigate and proceeding to trial, there was a danger Plaintiffs would not have prevailed on any of their claims, in which case the Class would receive nothing. The amount of damages suffered by the Class was and continues to be challenged by Defendants. Had the Action gone to trial, Defendants would have asserted that they had not breached any fiduciary duty to the Class, that the merger consideration and process was fair and that in any event, Class Members suffered no damages. In favoring settlement, Plaintiffs also considered the uncertainty of the following legal issues, among others, underlying the allegations in the litigation Whether Defendants breached a duty to maximize shareholder value with respect to the Merger; Whether Defendants complied with or violated the duties of good faith, loyalty, and/or candor with respect to the Merger; Whether any breaches of fiduciary duty by Defendants with respect to the Merger caused Merix shareholders to suffer monetary damages, and the specific amounts that would compensate shareholders for such damages; Whether Defendants Proxy dated January 4, 2010, included any material misrepresentations and/or failed to disclose material information regarding the Merger; Whether Plaintiffs suffered damages as a result of any alleged misconduct by Defendants; and Whether a jury would determine that the price accepted by Defendants fell within a reasonable range of potential valuations and thus, Plaintiffs suffered no damages. Questions? Call Toll Free, or Visit 2

3 The Court did not decide in favor of Plaintiffs or Defendants. Instead, both sides agreed to a settlement. In this manner, they avoid the risks and costs of a trial and lengthly appeals, and Class Members will receive compensation. Plaintiffs and their attorneys believe the settlement is in the best interests of all Class Members. Defendants in this Action, while continuing to deny all allegations of wrongdoing and liability whatsoever, recognize the expense, risks and uncertain outcome of litigation and appeals, especially in a complex action such as this, and wish to avoid the risks and costs associated with future litigation. 5. Who Are The Lawyers Representing Members of the Class? The Court has ordered that Barrack, Rodos & Bacine, 600 West Broadway, Suite 900, San Diego, CA 92101; Finkelstein Thompson LLP, 100 Bush St., Suite 1450, San Francisco, CA 94104; and Justine Fischer, Attorney at Law, 720 SW Washington Street, Suite 750, Portland, OR 97205, will represent all Class Members. These lawyers are called Class Counsel. Any fees awarded to Class Counsel shall be paid from the common settlement fund into which Defendants shall pay or cause to be paid the sum of $1,500,000 (the Settlement Fund ) and only after any approval by the Court. If you want to be represented by your own lawyer, you may hire one at your own expense. 6. Attorneys Fees and Expenses Sought. Class Counsel will apply to the Court for an award of attorneys fees not to exceed 30% of the gross Settlement Fund, plus interest thereon, and for reimbursements of costs and expenses not to exceed $215, Plaintiffs will also apply to the Court for a service award to Class representative plaintiff W. Donald Wybert not to exceed $5,000 for his time and expense in prosecuting the litigation; and for costs arising from or in connection with the administration of the Settlement and taxes paid in connection with administration of the Settlement Fund. The attorneys fees and expenses will be the only payment to Class Counsel for their efforts in achieving this Settlement and for their risk in undertaking this representation on a wholly contingent basis. Participating in the Settlement 7. How do I Participate in the Settlement? To qualify for a payment, you must send in a Proof of Claim in the form accompanying this Notice. Read the instructions carefully, fill out the Proof of Claim form, include all the documents the form asks for, sign it, and mail it postmarked no later than February 8, 2012 to In re Merix Corp. Shareholder Litigation c/o Heffler, Radetich & Saitta LLP 1515 Market Street, Suite 1700 Philadelphia, PA Additionally, if you do not file a Proof of Claim form, you will remain a member of the Class, and if the Settlement is ultimately approved by the Court, you will release all claims you might have against Defendants in connection with the issues in this case and all of the Court s orders will apply to legally bind you. If you already have litigation pending against Defendants associated with the merger of Merix and Viasystems, you should speak to your lawyer about this notice. Excluding Yourself from the Settlement 8. How does the Settlement affect persons who have already excluded themselves from the Class? On May 12, 2011, the Notice of Pendency of Class Action was issued to Class Members, which informed Class Members who wished to be excluded from the Class to mail a written request for exclusion postmarked on or before June 25, Such persons or entities who properly requested exclusion by this date will not be entitled to share in the benefits of any judgment or settlement, nor will they be bound by any settlement or judgment, and cannot object to the Settlement at the Settlement Hearing. Any persons who timely elected to be excluded from the Class, may pursue, at their own expense, whatever legal rights they may have. 9. How do I exclude myself from the proposed Settlement? If you did not exclude yourself from the Class but nevertheless do not wish to share in the settlement, then you need not do anything and will remain a Class Member bound by the terms of the Settlement, without receiving any pro-rata distribution from the net Settlement proceeds. Questions? Call Toll Free, or Visit 3

4 Objecting to the Settlement 10. How do I Object to the Settlement? If you are a Class Member who did not opt out of the Class by June 25, 2011, you can object to the terms of the Settlement or to Class Counsel s application for an award of fees and/or expenses. The Court will only consider your views if you file a proper objection within the deadline identified and according to the following procedures. To object, you must send a signed letter or other court submission stating you object to the proposed settlement in Asbestos Workers Philadelphia Pension Fund and W. Donald Wybert individually and on behalf of all others similarly situated v. William C. McCormick, et al., C.A. No and C.A. No to the following on or before October 27, 2011 COURT Clerk of the Court Circuit Court of the State of Oregon County of Multnomah 1021 SW Fourth Avenue Portland, OR CLASS COUNSEL Samuel M. Ward Barrack, Rodos & Bacine 600 West Broadway, Suite 900 San Diego, CA Mark Punzalan Finkelstein Thompson, LLP 100 Bush Street, Suite 1450 San Francisco, CA Justine Fischer Attorney at Law 720 Washington St., Ste. 750 Portland, OR DEFENDANTS COUNSEL James E. Burns, Jr. Richard Gallagher, Jr. Orrick, Herrington & Sutcliffe LLP The Orrick Building 405 Howard Street San Francisco, CA Your letter must state the amount of shares of Merix common stock you owned continuously from October 6, 2009 through and including February 16, 2010, and should include your name, address, daytime telephone number, and signature. You cannot object by telephone or . You do not need to go to the Final Settlement Hearing to have your written objection considered by the Court. However, any objector may appear in person or arrange, at that objector s expense, for a lawyer to represent the objector at the Final Settlement Hearing provided that objector has complied with the procedures set forth in this Notice for filing and serving a notice of intent to appear. The Final Approval Hearing The Court will hold a hearing to decide whether to approve the proposed Settlement and to award attorneys fees and reimbursement of costs and expenses. You may attend and you may ask to speak, but you do not have to. If you decide to travel to the Final Settlement Hearing, it will be at your own expense. 11. When and Where Will The Court Decide to Approve the Settlement? The Court will hold a Final Settlement Hearing at 900 a.m. on November 10, 2011, in the courtroom of the Honorable Jerome LaBarre at Courtroom 702, Circuit Court of the State of Oregon for the County of Multnomah, 1021 SW Fourth Avenue, Portland, OR At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate, and will consider the application of Class Counsel for attorneys fees and reimbursement of costs and expenses. The Court will take into consideration any written objections filed in accordance with the instructions in this Notice. The Court may also listen to people who have properly indicated, within the deadline identified above, of October 27, 2011 an intention to speak at the hearing, but decisions regarding the conduct of the hearing will be made by the Court. At or after the hearing, the Court will decide whether to approve the Settlement and request for attorneys fees and reimbursement of costs and expenses. You should be aware that the Court may change the date and time of the Final Settlement Hearing. Thus, if you want to come to the hearing, you should check with Class Counsel before coming to make sure that the date and/or time has not changed. Questions? Call Toll Free, or Visit 4

5 12. May I Speak At The Hearing? If you object to the settlement, you may ask the Court for permission to speak at the Final Settlement Hearing. To do so, you must include within your objection a statement that it is your intent to appear at the Final Settlement Hearing. You cannot speak at the Final Settlement Hearing if you have excluded yourself from the Class or if you have not provided written notice of your intention to speak at the Final Settlement Hearing by the deadline identified. 13. Further Information. Further information regarding the Action and this Notice may be obtained by contacting any of the following contacting Class Counsel Samuel M. Ward Barrack, Rodos & Bacine 600 West Broadway, Suite 900 San Diego, CA Telephone (619) Mark Punzalan Finkelstein Thompson LLP 100 Bush St., Suite 1450 San Francisco, CA Telephone (415) Justine Fischer Attorney at Law 720 Washington St., Ste. 750 Portland, OR Telephone (503) DO NOT TELEPHONE THE COURT REGARDING THIS NOTICE. DATED September 1, 2011 BY ORDER OF THE COURT CIRCUIT COURT OF THE STATE OF OREGON COUNTY OF MULTNOMAH Questions? Call Toll Free, or Visit 5

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7 In the Circuit Court of the State of Oregon for the County of Multnomah ASBESTOS WORKERS PHILADELPHIA PENSION FUND and W. DONALD WYBERT, individually and on behalf of all others similarly situated Plaintiffs, v. WILLIAM C. McCORMICK, MICHAEL D. BURGER, KIRBY A. DYESS, DONALD D. JOBE, GEORGE H. KERCKHOVE, WILLIAM W. LATTIN, ROBERT C. STRANDBERG, and FRANCIS YUEN, Defendants. X X GENERAL INSTRUCTIONS C.A. No C.A. No To recover as a member of the Class based on the Settlement preliminarily approved by the Court on August 24, 2011, in the above captioned consolidated action ( Action ), you must complete and sign this Proof of Claim where indicated and timely submit it to the Claims Administrator. If you fail to submit a properly addressed Proof of Claim (as set forth in Paragraph 4 below) your claim may be rejected and you may be precluded from any settlement fund recovery pursuant to the settlement on behalf of the Class with the Defendants. 2. CLASS MEMBERS DO NOT HAVE TO PERFORM ANY INDIVIDUAL DAMAGES CALCULATIONS. ALL CAL- CULATIONS WILL BE PERFORMED BY THE CLAIMS ADMINISTRATOR BASED ON THE PURCHASE AND SALE TRANSACTION INFORMATION PROVIDED BY CLASS MEMBERS ON THE PROOF OF CLAIM FORM. 3. Your Proof of Claim must be verified by the Claims Administrator and approved by the Court before you can share in the proceeds of the Settlement of the Action. 4. YOU MUST MAIL YOUR COMPLETED AND SIGNED PROOF OF CLAIM POSTMARKED ON OR BEFORE FEBRUARY 8, 2012, ADDRESSED AS FOLLOWS In re Merix Corporation Shareholders Litigation c/o Heffler, Radetich & Saitta LLP 1515 Market Street, Suite 1700 Philadelphia, PA If you are a member of the Class and you did not timely request exclusion, you are bound by the terms of the Judgment entered in the Action whether or not you submit a Proof of Claim. 6. If you did NOT continuously hold any common stock of Merix Corporation during the period from October 6, 2009 through consummation of the merger with Viasystems Group, Inc., on February 16, 2010, you are not a member of the Class and should NOT submit a Proof of Claim. CLAIMANT IDENTIFICATION 1. If you purchased Merix common stock and held the certificate(s) in your name, you are the beneficial purchaser as well as the record purchaser. If, however, you purchased Merix common stock and the certificate(s) were registered in the name of a third party, such as a nominee or brokerage firm, you are the beneficial purchaser and the third party is the record purchaser. 2. Use Part I of this form (entitled Claimant Identification ) to identify each purchaser of record, if different from the beneficial purchaser, of Merix common stock which forms the basis of this claim. 3. All joint purchasers must sign this claim. Executors, administrators, guardians, conservators and trustees must complete and sign this claim on behalf of persons represented by them and their authority must accompany this claim and their titles or capacities must be stated. The social security (or taxpayer identification) number and telephone number of the beneficial owner may be used in verifying the claim. Failure to provide the foregoing information could delay verification of your claim or result in rejection of the claim. 7

8 CLAIM FORM 1. Use Part II of this form (entitled Schedule of Transactions in Merix Common Stock ) to supply all required details of your transaction(s) in Merix common stock. If you need more space or additional schedules, attach separate sheets giving all of the required information in substantially the same format. Sign and print or type your name on each additional sheet. 2. Provide all requested information for all of your purchases of Merix common stock which took place on or before October 6, 2009 and which shares were held through the consummation of the merger transaction with Viasystems Group, Inc on February 16, Failure to report all such transactions may result in the rejection of your claim. 3. List each transaction separately and in chronological order, by trade date, beginning with the earliest. You must accurately provide the month, day and year of each transaction you list. 4. Brokerage commissions and transfer taxes paid by you in connection with your purchase of Merix common stock should be included in computing the total purchase price. 5. BROKERS CONFIRMATIONS, MONTHLY STATEMENTS OR OTHER DOCUMENTATION OF ALL OF YOUR TRANSACTIONS IN, AND OWNERSHIP OF, MERIX COMMON STOCK MUST BE ATTACHED TO YOUR CLAIM. FAILURE TO PROVIDE THIS DOCUMENTATION COULD DELAY VERIFICATION OF YOUR CLAIM AND RESULT IN REJECTION OF YOUR CLAIM. 6. IF YOU HAVE ANY QUESTIONS CONCERNING ANY PART OF THE CLAIM FORM YOU SHOULD CONTACT COUNSEL FOR THE PLAINTIFF BARRACK, RODOS & BACINE SAMUEL M. WARD 600 West Broadway, Suite 900 San Diego, CA (619) or JUSTINE FISCHER Attorney at Law 720 Washington St., Ste. 750 Portland, OR (503) or FINKELSTEIN THOMPSON, LLP MARK PUNZALAN 100 Bush Street, Suite 1450 San Francisco, CA (415) or HEFFLER, RADETICH & SAITTA LLP CLAIMS ADMINISTRATION 1515 Market Street, Suite 1700 Philadelphia, PA Telephone

9 In the Circuit Court of the State of Oregon for the County of Multnomah Asbestos Workers Philadelphia Pension Fund and W. Donald Wybert v. William C. Mccormick,et al. PART I CLAIMANT IDENTIFICATION Proof of Claim Please Type or Print MUST BE POSTMARKED NO LATER THAN FEBRUARY 8, Beneficial Owner s Name (First, Middle, Last) Joint Beneficial Owner s Name (First, Middle, Last) If you are a bank or other institution filing on behalf of a third-party, and an account number is needed to identify the claimant for your records, indicate account number here. Attn Street Address City 12 State Zip or Postal Code Foreign Province Foreign Country Check here if your preferred method of communication with the Claims Administrator is via Area Code Telephone No. (day) Area Code Telephone No. (evening) Social Security Number (for individuals) OR Employer Identification Number (for estates, trusts, corporations, etc.) 13 Check one 1 Individual/Sole Proprietor 1 Joint Owners 1 Pension Plan 1 Corporation-Executor 1 Partnership 1 Trust 1 IRA 1 Other Name of Purchaser of Record (if different from Beneficial Owner listed above) 9

10 PART II SCHEDULE OF TRANSACTIONS IN MERIX COMMON STOCK A) NUMBER OF SHARES OF MERIX COMMON STOCK HELD AT THE CLOSE OF TRADING ON OCTOBER 6, 2009 (must be documented). B) PURCHASES OF MERIX COMMON STOCK FROM OCTOBER 7, 2009 THROUGH FEBRUARY 16, 2010 Date(s) of Purchase (List Chronologically) (Month / Day / Year) Number of Shares of Common Stock Purchased Purchase Price Per Share of Common Stock Total Cost (including commissions, taxes, and fees) Total Shares Purchased C) SALES OF MERIX COMMON STOCK FROM OCTOBER 7, 2009 THROUGH FEBRUARY 16, 2010 Date(s) of Sale (List Chronologically) (Month / Day / Year) Number of Shares of Common Stock Sold Sale Price Per Share of Common Stock Total Cost (including commissions, taxes, and fees) Total Shares Sold D) NUMBER OF SHARES OF MERIX COMMON STOCK HELD AT THE CLOSE OF TRADING ON FEBRUARY 16, 2010 (must be documented). If you require additional space, attach extra schedules in the same format as above. Sign and print your name on each additional page. (Type or print your name here) (Sign your name here) Date 10

11 Submission to Jurisdiction of Court and Acknowledgments I submit this Proof of Claim under the Order of the Court. I also submit to the jurisdiction of the Circuit Court of the State of Oregon for the County of Multnomah with respect to my claim as a Class Member. I further acknowledge that I am bound by and subject to the terms of the Judgment entered in the Action. I agree to furnish additional information to Class Counsel or the Claims Administrator to support this claim if required to do so. I have not submitted any other claim covering the same purchases of Merix common stock held continuously from October 6, 2009 through the consummation of the Merger on February 16, 2010, and know of no other person having done so on my behalf. I hereby warrant and represent that I have not assigned or transferred or purported to assign or transfer, voluntarily or involuntarily, any claim covered by this Claim Form or any portion thereof. I (we) certify that I am (we are) NOT subject to backup withholding under the provisions of Section 3406(a)(1)(c) of the Internal Revenue Code. Note If you have been notified by the Internal Revenue Service that you are subject to backup withholding, please strike out the language that you are not subject to backup withholding in the certification above. I declare under penalty of perjury under the laws of the State of that the foregoing information supplied by the undersigned is true and correct and that this Proof of Claim was executed this day of 2011 in. (City, State) (Sign your name here) (Type or Print your name here) Joint Owner (Sign your name here) (Type or Print your name here) (Capacity of persons signing, e.g., Beneficial Purchaser, Executor or Administrator) Reminder Checklist 1. Please sign the above declaration. 2. Remember to attach supporting documentation and maintain a copy of all documentation submitted. 3. Do not send original stock certificates. 4. If you move, please send us your new address. 5. If you desire an acknowledgment of receipt of your claim form, please send it Certified Mail, Return Receipt Requested. 6. Keep a copy of your Proof of Claim form for your records. ACCURATE CLAIMS PROCESSING TAKES A SIGNIFICANT AMOUNT OF TIME. THANK YOU FOR YOUR PATIENCE. 11

12 In re Merix Corporation Shareholders Litigation c/o Heffler, Radetich & Saitta LLP 1515 Market Street, Suite 1700 Philadelphia, PA Please Forward First Class Mail Please Forward Important Legal Notice