TIDMNCRA
RNS Number : 5018E
News Corporation
10 May 2013
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
May 6, 2013
DATE OF REPORT
(DATE OF EARLIEST EVENT REPORTED)
NEWS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 001-32352 26-0075658
(STATE OR OTHER JURISDICTION (COMMISSION FILE NO.) (IRS EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
1211 Avenue of the Americas, New York, New York 10036
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
(212) 852-7000
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
NOT APPLICABLE
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST
REPORT)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions:
.. Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
.. Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
.. Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
.. Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
ITEM 8.01 OTHER EVENTS.
In connection with the News Corporation (the "Company")
shareholder derivative litigation, the Company commenced a mailing
of the Notice of Pendency of Derivative Action, Proposed Settlement
of Derivative Action, Settlement Hearing, and Right to Appear (the
"Notice") to holders of the Company's common stock in accordance
with the Scheduling Order dated May 6, 2013 (the "Scheduling
Order"). The Scheduling Order requires that the Company also file a
copy of the Notice with the U.S. Securities and Exchange
Commission.
The Notice contains a link to a web site with information that
may be of interest or use to the reader. The Company is not
responsible for the content made available at the web site address
provided in the Notice and will not be held liable for any use of
such information.
A copy of the Notice is attached hereto as Exhibit 99.1 and is
incorporated herein by reference.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
Exhibit
Number Description
------- --------------------------------------------------------------------------
99.1 Notice of Pendency of Derivative Action, Proposed Settlement of Derivative
Action, Settlement Hearing, and Right to Appear, dated May 6, 2013.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
NEWS CORPORATION
(REGISTRANT)
By: /s/ Janet Nova
-------------------------
Janet Nova
Senior Vice President and
Deputy General Counsel
Dated: May 10, 2013
Exhibit Index
Exhibit
No. Description
------- ------------------------------------------------------------------
99.1 Notice of Pendency of Derivative Action, Proposed Settlement of
Derivative Action, Settlement Hearing, and Right to Appear, dated
May 6, 2013.
Exhibit 99.1
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN RE NEWS CORPORATION Consolidated
SHAREHOLDER DERIVATIVE C.A. No. 6285-VCN
LITIGATION
--------------------------
NOTICE OF PENDENCY OF DERIVATIVE ACTION,
PROPOSED SETTLEMENT OF DERIVATIVE ACTION,
SETTLEMENT HEARING, AND RIGHT TO APPEAR
TO: ALL RECORD AND BENEFICIAL HOLDERS OF SHARES OF COMMON STOCK
OF NEWS CORPORATION ("NEWS CORP." OR THE "COMPANY") AT THE CLOSE OF
BUSINESS ON MAY 1, 2013 (THE "RECORD DATE"). BROKERAGE FIRMS,
BANKS, AND OTHER PERSONS OR ENTITIES WHO HELD NEWS CORP. SHARES OF
RECORD ON MAY 1, 2013 WHO ARE NOT ALSO BENEFICIAL OWNERS, ARE
DIRECTED TO FORWARD THIS NOTICE PROMPTLY TO THE BENEFICIAL OWNERS
OF SUCH SHARES, OR REQUEST NEWS CORP. TO DO SO (SEE SECTION AT THE
END OF THIS NOTICE ENTITLED "NOTICE TO PERSONS OR ENTITIES HOLDING
RECORD OWNERSHIP ON BEHALF OF OTHERS").
The purpose of this Notice is to inform you about: (i) the
pendency of the above-captioned shareholder derivative action (the
"Delaware Action"), which was brought by certain News Corp.
stockholders on behalf of and for the benefit of News Corp. in the
Court of Chancery of the State of Delaware (the "Court"); (ii) a
proposed settlement of the Delaware Action (the "Settlement"),
subject to Court approval and subject to other conditions of the
Settlement being satisfied, i.e. , the Effective Date occurs, as
provided in a Stipulation of Settlement (the "Stipulation") that
was filed with the Court and is publicly available for review as
indicated at paragraph 43 below; (iii) the hearing that the Court
will hold on June 26, 2013 to determine whether to approve the
Settlement and to consider Delaware Co-Lead Counsel's application
for an award of attorneys' fees and expenses; and (iv) current
stockholders' rights with respect to the proposed Settlement and
Delaware Co-Lead Counsel's application for attorneys' fees and
expenses. 1
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY.
YOUR RIGHTS WILL BE AFFECTED BY THE DELAWARE ACTION.
The Stipulation was entered into as of May 3, 2013, between and
among: plaintiffs in the Delaware Action, The Amalgamated Bank, as
Trustee for the LongView LargeCap 500 Index Fund and the LongView
LargeCap 500 Index VEBA Fund ("Amalgamated Bank"), Central Laborers
Pension Fund ("Central Laborers"), and New Orleans Employees'
Retirement System ("NOERS") (collectively, and acting on behalf of
other stockholders of News Corp. that initiated
1 All capitalized terms not otherwise defined in this Notice
shall have the meaning provided in the Stipulation.
derivative actions later consolidated with the Delaware Action,
the "Delaware Plaintiffs"); (ii) defendants Rupert Murdoch, James
Murdoch, Lachlan Murdoch, Chase Carey, David F. DeVoe, Joel Klein,
Arthur M. Siskind, Roderick Eddington, Andrew S.B. Knight, Thomas
J. Perkins, Peter Barnes, José María Aznar, Natalie Bancroft,
Kenneth E. Cowley, Viet Dinh, and John L. Thornton (the
"Defendants"); and (iii) nominal defendant News Corp. (collectively
with Delaware Plaintiffs and Defendants, the "Settling Parties"),
subject to the approval of the Court pursuant to Delaware Chancery
Court Rule 23.1.
Because this Action was brought as a derivative action on behalf
of and for the benefit of News Corp., the benefits from the
Settlement will go to News Corp. Individual News Corp. stockholders
will not receive any direct payment from the Settlement.
WHAT IS THE PURPOSE OF THIS NOTICE?
1. The purpose of this Notice is to explain the Delaware Action,
the terms of the proposed Settlement, and how the proposed
Settlement affects News Corp. stockholders' legal rights.
2. In a derivative action, one or more people and/or entities
who are current stockholders of a corporation sue on behalf of and
for the benefit of the corporation, seeking to enforce the
corporation's legal rights.
3. As described more fully in paragraph 41 below, current
stockholders have the right to object to the proposed Settlement
and the application by Delaware Co-Lead Counsel for an award of
attorneys' fees and expenses. They have the right to appear and be
heard at the Settlement Hearing, which will be held before The
Honorable John W. Noble on June 26, 2013, at 10:00 a.m., at the
Court of Chancery courtroom, Kent County Courthouse, 38 The Green,
Dover, Delaware 19901. At the Settlement Hearing, the Court will
(a) determine whether Amalgamated Bank, Central Laborers, NOERS,
and Delaware Co-Lead Counsel have adequately represented the
interests of News Corp. and its stockholders; (b) determine whether
the Settlement should be approved by the Court as fair, reasonable,
adequate, and in the best interests of News Corp. and its
stockholders; (c) determine whether the Court should enter an Order
and Final Judgment, substantially in the form attached as Exhibit C
to the Stipulation, dismissing the Delaware Action with prejudice,
and releasing, barring, and enjoining prosecution of any and all
Released Claims against the Releasees; (d) consider the application
by Delaware Co-Lead Counsel for an award of attorneys' fees and
expenses; (e) hear and determine any objections to the Settlement
or the application by Delaware Co-Lead Counsel for an award of
attorneys' fees and expenses; and (f) rule on such other matters as
the Court may deem appropriate.
4. The Court has reserved the right to adjourn or continue the
Settlement Hearing, including consideration of the application by
Delaware Co-Lead Counsel for attorneys' fees and expenses, without
further notice to you other than by announcement at the Settlement
Hearing or any adjournment thereof. The Court has further reserved
the right to approve the Settlement, at or after the Settlement
Hearing, with such modifications as may be consented to by the
Settling Parties and without further notice of any kind.
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WHAT IS THIS CASE ABOUT? WHAT HAS HAPPENED SO FAR?
THE FOLLOWING DESCRIPTION OF THE DELAWARE ACTION AND THE
SETTLEMENT HAS BEEN PREPARED BY COUNSEL FOR THE SETTLING PARTIES.
THE COURT HAS MADE NO FINDINGS WITH RESPECT TO SUCH MATTERS, AND
THIS NOTICE IS NOT AN EXPRESSION OR STATEMENT BY THE COURT OF
FINDINGS OF FACT.
5. On February 21, 2011, the Company announced that it planned
to acquire Shine Group Ltd. ("Shine"), a television and movie
production company based in the U.K. which produces, among other
television shows, Got to Dance , The Biggest Loser , Master Chef ,
and Minute to Win It , for an enterprise value of GBP415 million,
or $670 million (the "Shine Acquisition"). Shine's investors
included Sony Entertainment and British Sky Broadcasting, as well
as majority owner Elisabeth Murdoch, the daughter of Defendant
Rupert Murdoch. The Company's February 21, 2011, announcement also
indicated that Rupert Murdoch expected Elisabeth Murdoch to join
the News Corp. board of directors (the "News Corp. Board").
6. In March 2011, the following stockholder derivative and class
actions were filed in the Court, asserting claims against
Defendants related to the proposed Shine Acquisition: (i) The
Amalgamated Bank, as Trustee, et al. v. Murdoch, et al. , C.A. No.
6285-CC, and (ii) New Orleans Employees' Retirement System v.
Aznar, et al. , C.A. No. 6316-CC. The complaints challenged the
Company's reasons for entering into the proposed Shine Acquisition,
as well as the process leading to and price of the proposed Shine
Acquisition.
7. On April 5, 2011, the Company announced that it had completed
the acquisition of Shine after the News Corp. Audit Committee,
consisting at that time of Defendants Eddington, Knight, Barnes,
and Perkins, approved the Shine Acquisition after receiving advice
from its legal and financial advisers.
8. On April 6, 2011, the Court entered an Order (i)
consolidating the Amalgamated Bank and NOERS actions under the
caption In re News Corporation Shareholder Derivative Litigation ,
Consolidated C.A. No. 6285-CC; (ii) appointing Amalgamated Bank and
Central Laborers as co-lead plaintiffs in the Delaware Action and
NOERS as a named plaintiff; and (iii) appointing the law firms of
Bernstein Litowitz Berger & Grossmann LLP and Grant &
Eisenhofer P.A., as Co-Lead Counsel in the Delaware Action
("Delaware Co-Lead Counsel").
9. On April 12, 2011, the Delaware Action was reassigned to Vice
Chancellor Noble.
10. On May 13, 2011, Delaware Plaintiffs filed a verified
consolidated shareholder derivative and class action complaint (the
"Consolidated Complaint").
11. On June 10, 2011, Defendants moved to dismiss the
Consolidated Complaint.
12. On July 8, 2011, Delaware Plaintiffs filed a verified
amended consolidated shareholder derivative and class action
complaint (the "First Amended Complaint"), restating and expanding
upon the claims relating to the Shine Acquisition and adding, among
other things,
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breach of fiduciary claims against Defendants relating to phone
hacking at News of the World , a U.K. newspaper published at the
time of the filing of the First Amended Complaint by News Group
Newspapers Limited, an indirect subsidiary of News Corp., and for
failure of oversight in connection therewith, and other related
matters (the "Oversight-Related Claims").
13. Beginning in July 2011, News Corp. stockholders commenced
the following actions derivatively on behalf of News Corp. in the
United States District Court for the Southern District of New York
(the "New York Court"): Shields v. Murdoch , No. 1:11-cv-04917-PGG
(S.D.N.Y.); G.E. Stricklin v. Murdoch , No. 1:11-cv-05073
(S.D.N.Y.); and Iron Workers Mid-South Pension Fund v. Murdoch ,
No. 1:11-cv-05556 (S.D.N.Y.) (collectively, the "New York
Derivative Actions"). The New York Derivative Actions arose from
the same underlying operative facts and asserted claims that were
substantially similar to the claims brought in the Delaware Action.
The plaintiffs in the Shields and Stricklin actions have
represented to the Settling Parties that they support the
Settlement and intend to consent to the dismissal of their lawsuits
if the Settlement is approved by the Court.
14. On August 3, 2011, Mary Lou Mench ("Mench"), a purported
News Corp. stockholder, made a demand on News Corp. for inspection
of books and records related to the Oversight-Related Claims.
15. On September 21, 2011, Delaware Plaintiffs filed a verified
second amended consolidated shareholder derivative and class action
complaint (the "Second Amended Complaint").
16. During November and December 2011, the parties filed briefs
related to Defendants' motions to dismiss the Second Amended
Complaint.
17. On February 21, 2012, Mench sent a demand letter (the
"Demand Letter") to the News Corp. Board related to the
Oversight-Related Claims. Mench is represented by the Law Offices
of Bernard M. Gross P.C. ("Demand Letter Counsel").
18. On March 20, 2012, the Court consolidated two additional
related derivative cases, Massachusetts Laborers' Pension &
Annuity Funds v. Murdoch, et al. , C.A. No. 6671-VCN, and Cohen v.
Murdoch, et al. , C.A. No. 7299-VCN, into the Delaware Action.
19. On June 18, 2012, Delaware Plaintiffs filed their verified
third amended consolidated shareholder derivative complaint (the
"Third Amended Complaint"). The Third Amended Complaint, now the
operative complaint in the Delaware Action, contains five claims.
Counts I and II relate to the Shine Acquisition, alleging, among
other things, that Defendants breached their fiduciary duties by
agreeing to acquire Shine without considering whether the
transaction served a legitimate corporate objective and permitting
the purchase of Shine at an excessive price. Counts III, IV, and V
are Oversight-Related Claims, alleging, among other things, that
Defendants breached their fiduciary duties by not investigating,
between July 2009 and 2011, the hacking claims at News of the World
, and as a result, the Company was harmed. The Third Amended
Complaint eliminated Delaware Plaintiffs' class-action claims.
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20. Defendants have at all times denied, and continue to deny,
all of Delaware Plaintiffs' allegations and assertions of
wrongdoing, liability, and violation of any laws and the existence
of any damages asserted in or arising from the Delaware Action. On
July 18, 2012, Defendants moved to dismiss the Delaware Action in
its entirety under Chancery Court Rules 12(b)(6) and 23.1 (the
"Motions to Dismiss"). Defendants argued, among other things, that
Delaware Plaintiffs failed to satisfy the stockholder demand
requirement under Chancery Court Rule 23.1 and that Delaware
Plaintiffs failed to state a claim for which relief can be
granted.
21. During July and August 2012, the parties filed briefs
related to the Motions to Dismiss. On September 19, 2012, the Court
heard extensive oral argument on all aspects of the Motion to
Dismiss.
22. Following the oral argument on the Motions to Dismiss,
counsel for Delaware Plaintiffs and Defendants began to explore the
possibility of reaching a settlement. In late 2012, Delaware
Plaintiffs and Defendants agreed to engage in mediation and
requested that the Court withhold its decision on the Motions to
Dismiss pending mediation.
23. Prior to mediation, the parties engaged in discovery,
including Delaware Plaintiffs' review of over 100,000 pages of
documents consisting of materials produced directly by Defendants
and publicly available materials.
24. In anticipation of the mediation, Delaware Plaintiffs
engaged certain experts to assist them in negotiating the scope of
any resolution.
25. On February 13-14, 2013, Delaware Plaintiffs and Defendants,
through counsel, and Demand Letter Counsel participated in a
two-day mediation session before the Honorable Layn R. Phillips
(the "Mediator"), a former federal district court judge in the
United States District Court for the Western District of Oklahoma.
In advance of that session, the parties exchanged mediation
statements, which addressed in detail the issues of both liability
and damages. The session ended without any agreement being
reached.
26. Over the course of the next two months, the Mediator
conducted numerous additional separate discussions with the parties
and the parties continued to engage in direct and indirect
settlement discussions.
27. On March 18, 2013, counsel for Delaware Plaintiffs met with
in-house and outside counsel for Defendants for a full-day meeting
to discuss in detail the parties' respective corporate governance
and compliance enhancement proposals.
28. In mid-March 2013, the parties agreed to hold another
full-day mediation session with the Mediator, which was scheduled
for April 2, 2013.
29. On April 2, 2013, the second mediation session with the
Mediator was held. Following a full day of mediation and several
additional days of negotiations, including an additional in-person
meeting and numerous additional telephonic caucus sessions overseen
by the Mediator and his colleague, Jill Sperber, Esquire, the
parties reached an agreement in principle to settle the Delaware
Action.
5
30. After several more weeks of negotiations with the continued
oversight of the Mediator and his colleague, Ms. Sperber, on April
17, 2013, the parties executed a memorandum of understanding
reflecting the terms of their agreement to settle the Delaware
Action (the "MOU"). The MOU was filed with the Court on April 22,
2013. On May 3, 2013, the parties entered into the formal
Stipulation of Settlement setting forth the terms of the
Settlement.
31. In addition to the mediation discovery that Defendants
provided to the Delaware Plaintiffs, the Settlement is subject to
the completion of reasonable due diligence by Delaware Plaintiffs.
In connection with this due diligence, the Settling Parties have
agreed on supplemental document production to Delaware Plaintiffs
and that Delaware Plaintiffs will take the deposition of Defendants
Viet Dinh and Roderick Eddington prior to the filing of Delaware
Plaintiffs' brief in support of final approval of the Settlement.
Delaware Plaintiffs, by Delaware Co-Lead Counsel, reserved the
right to withdraw from the proposed Settlement at any time prior to
filing their brief in support of final approval of the Settlement,
if they, in their good faith discretion, determine that the
information produced during the due diligence renders the proposed
Settlement unfair, unreasonable or inadequate.
WHAT ARE THE TERMS OF THE SETTLEMENT?
32. As consideration for the Settlement:
(i) Within ten (10) business days of the Effective Date,
Defendants or their representative shall cause to be paid on
Defendants' behalf the amount of $139 million (the "Settlement
Payment"), minus the amount of any Fee Award (defined in paragraph
39 below), to the Company. The Settlement Payment shall be paid
from an escrow account created for the benefit of Defendants
pursuant to an agreement reached prior to the April 2, 2013
mediation session between Defendants, through their counsel, and
Defendants' directors' and officers' liability insurers for the
payment of insurance proceeds, subject to a claims release, to help
to resolve the Delaware Action, which will be funded prior to the
Settlement Hearing; and
(ii) Within thirty (30) calendar days of the date of entry of
the Judgment (defined in paragraph 36 below) by the Court, the
Company shall implement, to the extent not already implemented, the
corporate governance and compliance enhancements set forth in
Exhibit D to the Stipulation, available for review at
http://www.newscorpderivativesettlement.com, which enhancements
shall remain in effect at least through December 31, 2016.
WHAT ARE THE SETTLING PARTIES' REASONS FOR THE SETTLEMENT?
33. Delaware Plaintiffs and Delaware Co-Lead Counsel thoroughly
considered the facts and law underlying the Delaware Action.
Although Delaware Plaintiffs and Delaware Co-Lead Counsel believe
that the claims asserted have merit, the Court could have adopted
Defendants' view of the applicable legal standard or of the
underlying evidence, and could enter judgment for the Defendants,
either dismissing the Delaware Action prior to trial or after
trial.
6
Delaware Plaintiffs and Delaware Co-Lead Counsel also considered
the expense and length of continued proceedings necessary to pursue
their claims against the Defendants through trial, as well as the
uncertainty of appeals. Delaware Plaintiffs and Delaware Co-Lead
Counsel also considered the possibility that a Court may not be
able to order the specific relief achieved in the Settlement.
34. In light of the monetary recovery and valuable corporate
governance measures included in the Settlement, Delaware Plaintiffs
and Delaware Co-Lead Counsel have determined that the proposed
Settlement is fair, reasonable, adequate, and in the best interests
of News Corp and its stockholders. The Settlement provides
substantial immediate benefits to News Corp. without the risk that
continued litigation could result in obtaining similar or lesser
relief for News Corp. after continued extensive and expensive
litigation, including trial and the appeals that were likely to
follow.
35. Defendants, who believe they have substantial defenses to
the claims alleged against them in the Third Amended Complaint,
have denied and continue to deny the allegations of wrongdoing,
liability, and violation of any laws and the existence of any
damages asserted in or arising from the Delaware Action, but have
nevertheless concluded that further litigation in connection with
the Delaware Action would be time consuming and expensive, and
after weighing the costs and uncertainties of continued litigation,
have determined that the Delaware Action should be fully and
finally settled in the manner and upon the terms and conditions set
forth in the Stipulation, and that these terms and conditions are
fair, reasonable, and adequate to News Corp. and its
stockholders.
WHAT WILL HAPPEN IF THE SETTLEMENT IS APPROVED? WHAT CLAIMS
WILL THE SETTLEMENT RELEASE?
36. If the Settlement is approved, the Court will enter a
judgment (the "Judgment"). Upon entry of the Judgment, the Delaware
Action will be dismissed in its entirety and with prejudice and the
following releases will occur: 2
Release of Claims by Delaware Plaintiffs and News Corp. : News
Corp., Delaware Plaintiffs, and each and every other News Corp.
shareholder, on behalf of themselves and any other person or entity
who could assert any of the Released Plaintiffs' Claims on their
behalf, in such capacity only, shall fully, finally, and forever
release, settle, and discharge, and shall forever be enjoined from
prosecuting, the Released Plaintiffs' Claims against Defendants'
Releasees.
2 The "Effective Date" of the Settlement shall occur only if (a)
the Court has approved the Settlement, entered the Judgment, and
the Judgment has become Final; and (b) each of the New York Actions
has been dismissed, voluntarily or involuntarily, with prejudice,
and the New York Court's orders dismissing the New York Actions
with prejudice have become Final. Should the Effective Date fail to
occur for any reason, the Judgment entered in the Delaware Action
and the dismissal of the Delaware Action and Releases provided
thereunder shall be null and void and the Settling Parties shall
revert to their respective positions in the Delaware Action as of
April 16, 2013.
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"Released Plaintiffs' Claims" means all any and all manner of
claims, demands, rights, liabilities, losses, obligations, duties,
damages, costs, debts, expenses, interest, penalties, sanctions,
fees, attorneys' fees, actions, potential actions, causes of
action, suits, agreements, judgments, decrees, matters, issues and
controversies of any kind, nature, or description whatsoever,
whether known or unknown, disclosed or undisclosed, accrued or
unaccrued, apparent or not apparent, foreseen or unforeseen,
matured or not matured, suspected or unsuspected, liquidated or not
liquidated, fixed or contingent, including Unknown Claims (defined
below), whether based on state, local, foreign, federal, statutory,
regulatory, common, or other law or rule (including claims within
the exclusive jurisdiction of the federal courts, such as, but not
limited to, the Section 14(a) claims asserted in the New York
Derivative Actions), that are, have been, could have been, could
now be, or in the future could, can, or might be asserted, in the
Delaware Action or in any other court, tribunal, or proceeding by
Delaware Plaintiffs or any other News Corp. stockholder
derivatively on behalf of News Corp., or by News Corp. directly
against any of the Defendants' Releasees, which, now or hereafter,
are based upon, arise out of, relate in any way to, or involve,
directly or indirectly, any of the actions, transactions,
occurrences, statements, representations, misrepresentations,
omissions, allegations, facts, practices, events, claims or any
other matters, things or causes whatsoever, or any series thereof,
that were alleged, asserted, set forth, claimed, embraced,
involved, or referred to in, or related to the Third Amended
Complaint, the Demand Letter, or the Delaware Action, except for
claims relating to the enforcement of the Settlement. For the
avoidance of doubt, the Released Plaintiffs' Claims include all of
the claims asserted in the New York Derivative Actions, but do not
include claims based on future conduct of Defendants' Releasees,
including any conduct of Defendants' Releasees after execution of
the MOU.
"Defendants' Releasees" means News Corp., Defendants, defendants
in the New York Derivative Actions, and any other current or former
officer or director of News Corp., and their respective past,
present, or future family members, spouses, heirs, trusts,
trustees, executors, estates, administrators, beneficiaries,
distributees, foundations, agents, employees, fiduciaries,
partners, partnerships, general or limited partners or
partnerships, joint ventures, member firms, limited liability
companies, corporations, parents, subsidiaries, divisions,
affiliates, associated entities, stockholders, principals,
officers, directors, managing directors, members, managing members,
managing agents, predecessors, predecessors-in-interest,
successors, successors-in-interest, assigns, financial or
investment advisors, advisors, consultants, investment bankers,
entities providing any fairness opinion, underwriters, brokers,
dealers, lenders, commercial bankers, attorneys, personal or legal
representatives, accountants, insurers, co-insurers, reinsurers,
and associates.
Release of Claims by Defendants: Defendants and the other
Defendants' Releasees, on behalf of themselves and any other person
or entity who could assert any of the Released Defendants' Claims
on their behalf, in such capacity only, shall fully, finally, and
forever release, settle, and discharge, and shall forever be
enjoined from prosecuting, the Released Defendants' Claims against
Plaintiffs' Releasees.
"Released Defendants' Claims" means any and all manner of
claims, demands, rights, liabilities, losses, obligations, duties,
damages, costs, debts, expenses, interest, penalties,
8
sanctions, fees, attorneys' fees, actions, potential actions,
causes of action, suits, agreements, judgments, decrees, matters,
issues and controversies of any kind, nature, or description
whatsoever, whether known or unknown, disclosed or undisclosed,
accrued or unaccrued, apparent or not apparent, foreseen or
unforeseen, matured or not matured, suspected or unsuspected,
liquidated or not liquidated, fixed or contingent, including
Unknown Claims (defined below), whether based on state, local,
foreign, federal, statutory, regulatory, common, or other law or
rule (including claims within the exclusive jurisdiction of the
federal courts), that arise out of or relate in any way to the
institution, prosecution, or settlement of the claims against
Defendants in the Delaware Action, except for claims relating to
the enforcement of the Settlement. For the avoidance of doubt, the
Released Defendants' Claims do not include claims based on future
conduct of the Plaintiffs' Releasees.
"Plaintiffs' Releasees" means Delaware Plaintiffs, all other
News Corp. stockholders, and any current or former officer or
director of any of Delaware Plaintiffs or any other News Corp.
stockholder, and their respective past, present, or future family
members, spouses, heirs, trusts, trustees, executors, estates,
administrators, beneficiaries, distributees, foundations, agents,
employees, fiduciaries, partners, partnerships, general or limited
partners or partnerships, joint ventures, member firms, limited
liability companies, corporations, parents, subsidiaries,
divisions, affiliates, associated entities, stockholders,
principals, officers, directors, managing directors, members,
managing members, managing agents, predecessors,
predecessors-in-interest, successors, successors-in-interest,
assigns, financial or investment advisors, advisors, consultants,
investment bankers, entities providing any fairness opinion,
underwriters, brokers, dealers, lenders, commercial bankers,
attorneys, personal or legal representatives, accountants,
insurers, co-insurers, reinsurers, and associates.
"Unknown Claims" means any Released Plaintiffs' Claims that News
Corp., Delaware Plaintiffs or any other News Corp. stockholder does
not know or suspect to exist in his, her or its favor at the time
of the release of the Defendants' Releasees, and any Released
Defendants' Claims that any of the Defendants or any of the other
Defendants' Releasees does not know or suspect to exist in his, her
or its favor at the time of the release of the Plaintiffs'
Releasees, which, if known by him, her or it, might have affected
his, her or its decision(s) with respect to the Settlement. With
respect to any and all Released Plaintiffs' Claims and Released
Defendants' Claims, the Settling Parties stipulate and agree that
News Corp., Delaware Plaintiffs and each of the Defendants shall
expressly waive, and each of the other News Corp. stockholders and
each of the other Defendants' Releasees shall be deemed to have
waived, and by operation of the Judgment shall have expressly
waived, any and all provisions, rights, and benefits conferred by
California Civil Code --1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
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and any law of any state or territory of the United States, or
principle of common law or foreign law, which is similar,
comparable, or equivalent to California Civil Code --1542. News
Corp., Delaware Plaintiffs and each of the Defendants acknowledge,
and each of the other News Corp. stockholders and each of the other
Defendants' Releasees shall be deemed by operation of law to have
acknowledged, that the foregoing waiver was separately bargained
for and is a key element of the Settlement.
37. If the Settlement is approved and the Effective Date occurs,
since News Corp. will have released the Released Plaintiffs' Claims
described above against any of the other Defendants' Releasees, no
News Corp. stockholder will be able to bring another action
asserting those claims against those persons on behalf of the
Company.
38. Pending final determination of whether the Settlement should
be approved, all proceedings in the Delaware Action, other than
such proceedings as may be necessary to carry out the terms and
conditions of the Settlement, have been stayed and suspended.
Pending final determination of whether the Settlement should be
approved, Delaware Plaintiffs, all News Corp. stockholders,
Defendants, and the Company are enjoined from filing, commencing,
or prosecuting any Released Claims against the Releasees in the
Delaware Action or in any other lawsuit in any jurisdiction,
including the New York Derivative Actions.
HOW WILL THE ATTORNEYS BE PAID?
39. Plaintiffs' Counsel 3 have not received any payment for
their services in pursuing the claims asserted in their respective
actions, nor have Plaintiffs' Counsel been reimbursed for their
out-of-pocket expenses. Plaintiffs' Counsel invested their own
resources for pursuing their respective cases on a contingency
basis, meaning they would only recover their expenses and be
compensated for their time if they created benefits through the
actions. In light of the risks undertaken in pursuing the
respective actions on a contingency basis and the benefits created
for News Corp. through the Settlement and the prosecution of the
Delaware Action, Delaware Co-Lead Counsel, on behalf of all
Plaintiffs' Counsel, intend to petition the Court for an award of
attorneys' and litigation expenses to be paid from the Settlement
Payment, and from no other source, which is no greater than the
lesser of: (a) 20% of the Settlement Payment plus reimbursement of
Plaintiffs' Counsel's reasonable litigation expenses; or (b) $28
million. The Court will determine the amount of any fee and expense
award to Plaintiffs' Counsel (the "Fee Award").
3 "Plaintiffs' Counsel" consists of Delaware Co-Lead Counsel;
the additional counsel who filed derivative actions on behalf of
News. Corp that were consolidated into the Delaware Action; Demand
Letter Counsel; Greenfield & Goodman, LLC and Shepherd,
Finkelman, Miller & Shah, LLP, counsel for G.E. Stricklin, the
plaintiff in G.E. Stricklin v. Murdoch , No. 1:11-cv-05073
(S.D.N.Y.); and Glancy Binkow & Goldberg LLP, counsel for
Gregory L. Shields, the plaintiff in Shields v. Murdoch , No.
1:11-cv-04917-PGG (S.D.N.Y.). No payment from any attorneys' fees
award shall be made to any counsel not affiliated with Plaintiffs'
Counsel.
10
WHEN AND WHERE WILL THE SETTLEMENT HEARING BE HELD? DO I
HAVE THE RIGHT TO APPEAR AT THE SETTLEMENT HEARING?
40. The Court will consider the Settlement and all matters
related to the Settlement at the Settlement Hearing. The Settlement
Hearing will be held before The Honorable John W. Noble on June 26,
2013, at 10:00 a.m., at the Court of Chancery courtroom, Kent
County Courthouse, 38 The Green, Dover, Delaware 19901.
41. Any person that owned News Corp. common stock as of May 1,
2013 and continues to own such stock through June 26, 2013, the
date of the Settlement Hearing, who objects to the Settlement or
the application for attorneys' fees and expenses by Delaware
Co-Lead Counsel, or who otherwise wishes to be heard, may appear in
person or through his, her, or its attorney at the Settlement
Hearing and present any evidence or argument that may be proper and
relevant; provided, however , that no such person shall be heard,
and no papers, briefs, pleadings, or other documents submitted by
any such person shall be received and considered by the Court
unless, no later than June 16, 2013, such person files with the
Register in Chancery, Court of Chancery, 500 North King Street,
Wilmington, Delaware, 19801, the following: (a) a written and
signed notice of intention to appear which states the name, address
and telephone number of the objector and, if represented, his, her
or its counsel; (b) proof that the objector owned shares of News
Corp. stock as of May 1, 2013 and continues to hold such shares;
and (c) a written detailed statement of the person's objections to
any matter before the Court, and the specific grounds therefor or
the reasons why such person desires to appear and to be heard, as
well as all documents and writings which such person desires the
Court to consider, including any legal and evidentiary support. Any
such filings with the Court must also be served upon each of the
following counsel (by hand, first class U.S. mail, or express
service) such that they are received no later than June 16,
2013:
Delaware Co-Lead Counsel:
Mark Lebovitch, Esquire
Amy Miller, Esquire
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1285 Avenue of the Americas
New York, NY 10019
11
Jay W. Eisenhofer, Esquire
Geoffrey C. Jarvis, Esquire
Diane Zilka, Esquire
GRANT & EISENHOFER P.A.
123 S. Justison Street
Wilmington, DE 19801
Counsel for Defendants and News Corp.:
Gregory V. Varallo, Esquire
Thomas A. Uebler, Esquire
RICHARDS, LAYTON & FINGER,
P.A.
One Rodney Square
920 North King Street
Wilmington, DE 19801
42. Unless the Court otherwise directs, any person who fails to
object in the manner prescribed above shall be deemed to have
waived his, her, or its right to object and shall be forever barred
from raising any objection to the Settlement or Delaware Co-Lead
Counsel's application for an award of attorneys' and expenses, or
any other matter related to the Settlement, in the Delaware Action
or in any other action or proceeding.
CAN I SEE THE COURT FILE? WHOM SHOULD I CONTACT IF I HAVE
QUESTIONS?
43. This Notice does not purport to be a comprehensive
description of the Delaware Action, the allegations related
thereto, the terms of the Settlement, or the Settlement Hearing.
For a more detailed statement of the matters involved in the
Delaware Action, you may inspect the pleadings, the Stipulation of
Settlement, the Orders entered by the Court, and other papers filed
in the Delaware Action at the Office of the Register in Chancery in
the Court of Chancery of the State of Delaware, New Castle County
Courthouse, 500 N. King Street, Wilmington, Delaware 19801, during
regular business hours of each business day. You may also view a
copy of the Stipulation of Settlement at
http://www.newscorpderivativesettlement.com. If you have questions
regarding the Settlement, you may write or call Delaware Co-Lead
Counsel: Mark Lebovitch, Esquire, Bernstein Litowitz Berger &
Grossmann LLP, 1285 Avenue of the Americas, New York, NY 10019,
(800) 380-8496, and Jay W. Eisenhofer, Esquire, Grant &
Eisenhofer P.A., 123 S. Justison Street, Wilmington, DE 19801,
(302) 622-7000.
DO NOT CALL OR WRITE THE COURT OR THE OFFICE OF
THE REGISTER IN CHANCERY REGARDING THIS NOTICE.
12
NOTICE TO PERSONS OR ENTITIES HOLDING RECORD OWNERSHIP ON BEHALF
OF OTHERS.
44. Brokerage firms, banks, and other persons or entities who
hold shares of News Corp. common stock as record owners, but not as
beneficial owners, are directed to either (a) promptly request from
News Corp. sufficient copies of this Notice to forward to all such
beneficial owners and after receipt of the requested copies
promptly forward such Notices to all such beneficial owners; or (b)
promptly provide a list of the names and addresses of all such
beneficial owners to Laura Cleveland, Corporate Secretary, News
Corporation, 1211 Avenue of the Americas, New York, New York 10036,
after which News Corp. will promptly send copies of the Notice to
such beneficial owners. Copies of this Notice may be obtained by
calling News Corp. at (212) 852-7000.
Dated: May 6, 2013
BY ORDER OF THE COURT:
/s/ Register in Chancery
------------------------
13
This information is provided by RNS
The company news service from the London Stock Exchange
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