According to the Judgment signed by U.S. District Judge Donald C. Nugent and entered on September 8, 2005, the Settlements of the Action with OM Group, Inc., certain Individual Defendants (collectively, the "OMG Settling Defendants") and Ernst & Young LLP (together with the OMG Settling Defendants, the "Settling Defendants") on the terms and conditions set forth in the Settlement Stipulations are, after hearing, determined in all respects to be fair, reasonable and adequate and are hereby approved pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. Further, the OM Group, Inc. common stock is unrestricted and freely tradable exempted securities pursuant to Section 3(a)(10) of the Securities Act of 1933, 15 U.S.C. § 77c(a)(10). The Court also entered that day the Final Order Awarding Attorneys' Fees and Reimbursement of Expenses. According to the Order, Plaintiffs' counsel are awarded attorneys' fees in the amount of 18 % of the Settlement Fund. Plaintiffs' counsel are further awarded $3,109,823.74 as reimbursement for reasonable out-of-pocket expenses.
By the Notice of Pendency of Class Action dated June 24, 2005, two proposed settlements of a class action lawsuit filed against: (i) OM Group, Inc. and the Individual Defendants; and (ii) defendant Ernst & Young LLP. The total value of the Settlements is $92,400,000. The settlement with the OM Group and Individual Defendants is for $82,500,000 ($82.5 million), which is comprised of a cash payment of $74,000,000, and $8,500,000 in unrestricted and freely tradable OM Group common stock, plus interest. The settlement with E&Y is for $9,900,000 in cash. The Final Approval Hearing will be held at 9:00 a.m. on September 8, 2005, before the Honorable Donald C. Nugent, at the United States District Court for the Northern District of Ohio, Carl B. Stokes United States Courthouse, 801 West Superior Avenue, Cleveland, Ohio 44114, to determine: (i) whether the proposed Settlements are fair, reasonable and adequate and should be approved by the Court; (ii) whether the OM Group common stock to be issued pursuant to the OMG Settlement is exempt from registration with the Securities and Exchange Commission pursuant to Section 3(a)(10) of the Securities Act of 1933, 15 U.S.C. § 77c(a)(10), and may be distributed to Class Members as freely tradable securities; (iii) whether the claims against the Settling Defendants should be dismissed with prejudice as set forth in the Stipulations; (iv) whether the proposed Plan of Allocation is fair and reasonable and should be approved; and (v) whether the application by Lead Counsel for an award of attorneys’ fees and reimbursement of litigation expenses should be approved.
In July 2003, the Court denied in full Defendants' Motion to Dismiss the action. Lead Plaintiff subsequently conducted extensive fact discovery and, on June 30, 2004, filed a Second Amended Consolidated Class Action Complaint. The Second Amended Complaint extended the Class Period by approximately two years, named E&Y as a defendant, and added substantive new allegations against Defendants OMG, OMG's former CEO and Chairman, OMG's former CFO and another former CFO of OMG. Defendants OMG, OMG's former CEO and Chairman, and one of OMG's former CFO answered the Complaint while Defendants E&Y and the other former CFO of OMG moved to dismiss the Complaint. On October 25, 2004, the Court denied in part and granted in part Defendant OMG’s former CFO’s Motion to Dismiss. On January 14, 2005, the Court denied in full Defendant E&Y's Motion to Dismiss.
The original complaint charges OM Group and certain of its officers and directors with violations of the Securities Exchange Act of 1934. OM Group produces and markets metal-based speciality chemicals and related materials. Certain of the Company's products are value-added and some are commodity. The complaint
alleges that during the Class Period, defendants made false statements about the Company's business and prospects. After reporting somewhat disappointing 2ndQ 02 results, defendants told investors that its business was strong and all the indicators were for a good second half. As a result, OM Group stock continued to trade above $50 per share. On 9/19/02, OM Group warned the 3rdQ 02 results would be slightly lower than prior statements, but that results would still be significantly higher than in the prior year. Then, on 10/29/02, OM Group announced a huge loss, an inventory write-down and a future restructuring. OM Group stock dropped to as low as $8.60 per share on volume of $22 million shares. Later, on 10/31/02, it was
disclosed that OM Group's Chief Executive Officer had sold all his holdings to
cover a margin call on some 710,000 shares on OM Group stock which he had used as collateral for a huge loan. On this news, the stock dropped even further to as low as $6.12 per share.