According to a press release dated March 15, 2006, the U.S. District Court for the Eastern District of New York approved a settlement agreement between investors and a company, its predecessor and the predecessor's CEO in a securities fraud class action, ruling that the settlement was fair, reasonable and adequate. Luxottica Group S.P.A. tendered an offer of $11.50 per share of stock of Sunglass Hut International Inc., and 35 million shares or 97% of all outstanding shares were tendered. The day before the takeover bid was announced, the CEO of Sunglass Hut entered into a five-year non-compete agreement with Luxottica in exchange for $15 million. Shareholders of Sunglass Hut sued Luxottica, Sunglass Hut, and the CEO for violations of § § 10(b), 13(d) and 14(d) of the Securities and Exchange Act of 1934 and the Williams Act. The shareholders alleged that the non-competition agreement violated the best price rule under the Williams Act, which requires all shareholder must be paid the highest consideration offered under a tender offer. After five years of litigation, the parties entered into a proposed settlement agreement. The parties moved the district court for final approval of the settlement, including the allocation of attorneys' fees and expenses. The proposed settlement agreement released claims against Luxottica and Sunglass Hut in exchange for $18.25 million to the class and payment of fees and expenses.
According to the Notice Of Proposed Partial Settlement With The Luxottica Defendants dated November 15, 2005, the Court will hold a Settlement Hearing at 10:00 a.m. on February 9, 2006, at the United States District Court for the Eastern District of New York, Courtroom 10, 225 Cadman Plaza East, Brooklyn, New York 11201. At this hearing the Court will consider whether the settlement is fair, reasonable and adequate. The partial settlement provides for a $14.5 million settlement fund for the benefit of investors who tendered shares of Sunglass Hut International, Inc. (“Sunglass Hut”) in connection with Luxottica Group S.p.A’s (“Luxottica”) March 5, 2001 tender offer (“Tender Offer”). The partial settlement resolves all claims against Luxottica, Sunglass Hut International Inc. (formerly known as and named in the Litigation as Shade Acquisition Corporation (“Shade”)) and Leonardo Del Vecchio (the controlling shareholder of Luxottica), (collectively, “Luxottica Defendants” or the “Settling Defendants”) arising out of the Tender Offer. The two partial settlements combined, will settle the entire case for $18.25 million.
As summarized by the same Notice, on July 19, 2005, the Luxottica Defendants filed motions for summary judgment. On August 12, 2005, Plaintiffs filed papers in opposition to the summary judgment motions. This settlement was reached before the motions were fully briefed or decided. The claims asserted against the Sunglass Hut Defendants and the proposed settlement with the Sunglass Hut defendants, were described in a prior Notice mailed on or about August 16, 2005. The fairness hearing to approve the partial settlement with the Sunglass Hut Defendants was previously scheduled for October 3, 2005, but was adjourned so that it could be conducted at the same time as the fairness hearing on the settlement with the Luxottica Defendants.
According to the Notice Of Pendency Of Class Action And Proposed Partial Settlement dated August 16, 2005, the Court will hold a Settlement Hearing at 11:00 a.m. on Monday, October 3, 2005, at the United States District Court for the Eastern District of New York, Courtroom 10, 225 Cadman Plaza East, Brooklyn, New York 11201. At this hearing the Court will consider whether the partial settlement is fair, reasonable and adequate. The partial settlement will provide a $3.75 million settlement fund for the benefit of investors who tendered shares of Sunglass Hut International, Inc. (“Sunglass Hut”) in connection with Shade Acquisition Corporation’s (“Shade”) and Luxottica Group S.p.A’s (“Luxottica”) March 5, 2001 tender offer (“Tender Offer”). The partial settlement resolves all claims against Sunglass Hut’s former Chief Executive Officer and Chairman of the Board of Directors, and Sunglass Hut’s Board of Directors (collectively, the “Settling Defendants”) which were alleged to have breached their fiduciary duties in connection with the Tender Offer. The claims against Luxottica, Shade and Leonardo Del Vecchio (the controlling shareholder of Luxottica), (collectively, “Luxottica Defendants” and the “Non-Settling Defendants”) arising out of the Tender Offer, are continuing.
As summarized by the same Notice, Plaintiff, Greenway Partners, L.P. (the “Lead Plaintiff” or “Greenway”), was designated Lead Plaintiff by Memorandum and Order of the Court dated September 25, 2001. By order of the Court dated September 25, 2001, Goodkind Labaton Rudoff & Sucharow LLP (the “Goodkind firm”) was appointed as Lead Counsel for the Class. Pursuant to an order of the Court dated October 22, 2004, Wolf Haldenstein Adler Freeman & Herz LLP (“Wolf Haldenstein”) was appointed as new Lead Counsel for the Class, replacing the Goodkind firm. On November 1, 2001, the Lead Plaintiff filed a First Amended Consolidated Class Action Complaint (“First Amended Complaint”), against the Settling Defendants and the Sunglass Hut Defendants. Defendants filed motions to dismiss the Complaint on April 12, 2002. By Memorandum and Order dated November 26, 2003, the Court denied in part and granted in part Defendants’ motion to dismiss the Complaint. Specifically, the Court granted the motion to dismiss the claim brought pursuant to Section 10(b) of the Securities and Exchange Act of 1934. The Court denied the motion to dismiss the claims brought based on violations of the Best Price Rule of the Williams Act and breach of fiduciary duty. On June 8, 2004, plaintiffs filed a Second Amended and Consolidated Complaint (“Second Amended Complaint”), adding a claim for control person liability, pursuant to Section 20(a) of the Securities Exchange Act of 1934, against Leonardo Del Vecchio. On June 25, 2004, Defendants answered the Second Amended Complaint. Defendants deny that they violated any laws or did anything wrong. They believe that their actions were proper under the federal securities laws and under state law. By Order dated December 23, 2004, the Court certified the Class as described above, with Greenway as Class Representative and Wolf Haldenstein as Lead Counsel.
The original Complaint charges Defendants with violations of Section 14(d) of the Exchange Act and Rule 14d-10 promulgated thereunder. The Complaint alleges, among other things, that pursuant to the Tender Offer and as an integral part thereof, Defendants offered and paid greater consideration to Hauslein than to other tendering Sunglass shareholders, as an inducement to Hauslein to support the Tender Offer and to tender his approximately 1.7 million Sunglass shares to Shade. The Complaint alleges that the additional consideration to Hauslein, which was never offered nor paid to other Sunglass shareholders, was in the form of a lucrative Consulting Agreement entered into between Hauslein and Luxottica, under which Luxottica allegedly agreed to pay Hauslein $15 million over a five-year period.
Note: This action was filed on behalf of all persons who tendered their shares of common stock of Sunglass Hut International, Inc. to Shade Acquisition Corp., pursuant to the Tender Offer dated March 5, 2001 by Luxottica Group S.p.A. and Shade to Sunglass shareholders, in exchange for $11.50 net cash per share (the "Class"). Excluded from the Class are the named Defendants and James N. Hauslein, who is the Chairman of the Board of Sunglass.