Opinion
Case No. CIV 99-0166 PHX ROS
December 12, 2002
ORDER AND FINAL JUDGMENT
This matter having come before the Court upon a motion for final approval of the terms of Stipulation of Settlement ("Stipulation") between the Court-appointed Lead Plaintiff in the above-captioned action (the "Action") and Defendants SkyMall, Inc., ("SkyMall") and Robert M. Worsley (collectively the "Defendants"); and the Court having held a hearing, as noticed, on December 12, 2002 (the "Hearing") to consider the proposed Settlement as embodied in the Stipulation (the "Settlement") (all capitalized terms used herein have the meanings defined in the Stipulation); and due and adequate notice (the "Notice") having been published once in the national edition of The Wall Street Journal and caused to be mailed by first class mail, postage prepaid, to those persons and entities who could reasonably beidentified as having purchased shares of SkyMall common stock during the period from December 28, 1998 through and including December 30, 1998; and having considered any objection to the proposed settlement or the fee and expense request of Lead Plaintiffs' Counsel described in the Notice; and having considered all papers submitted in connection with the Settlement, the oral presentations of counsel at the Hearing; and all prior proceedings herein; and good cause appearing therefor,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
1. This Judgment incorporates by reference the definitions in the Stipulation, and all terms used herein shall have the same meanings set forth in the Stipulation. 2. The Court has jurisdiction over the subject matter of this Action and over all parties to the Action, including but not limited to, all Class members and the Defendants.
3. Pursuant to its May 24, 2001 Order, the Court certified a Class consisting of:
All persons or entities who purchased shares of SkyMall common stock from December 28, 1998 through December 30, 1998, inclusive (the "Class Period"), on the open market and were damaged thereby. Excluded from the Class are the Defendants, members of the Individual Defendant's immediate family; any director, officer, subsidiary, or affiliate of SkyMall; any entity in which any excluded person had a controlling interest prior to such entity's purchase of SkyMall common stock; and their legal representatives, heirs, successors and assigns.
4. The Mailed Notice was disseminated in accordance with the Order of Preliminary Approval of Settlement and the Summary Notice was published in accordance with that Order.
5. The Notice constitutes the best notice practicable under the circumstances, fairly and adequately informed members of the Class of all material elements of the Action and the Settlement, and complies fully with Rule 23 of the Federal Rules of Civil Procedure, the Private Securities Litigation Reform Act of 1995, and due process.
6. Neither the Settlement nor this Order and Final Judgment are an admission by any defendant of any liability, damage or wrongdoing whatsoever, nor is this Order and Final Judgment a finding of the validity or invalidity of any claims in the Action, or any wrongdoing by any of the Defendants therein. Furthermore, neither the Stipulation, this Order and Final Judgment nor the fact of the Settlement shall be used or construed as an admission of any fault, liability or wrongdoing by any person. Neither the Stipulation, the fact of the Settlement or the settlement proceedings and negotiations, nor this Order and Final Judgment, nor any related document shall be offered or received in evidence as an admission, concession, presumption or inference against any party in any proceeding other than such proceedings as may be necessary to consummate or enforce the Settlement.
7. The Stipulation filed in this Action dated as of October 4, 2002 (which is incorporated herein) and the Settlement and plan of distribution set forth therein are approved as having been entered into in good faith and as fair, reasonable and adequate to the Class within the meaning of Federal Rule of Civil Procedure 23 and as in the best interests of the Class. The parties to the Settlement are hereby directed to consummate the Settlement in accordance with the terms and provisions of the Stipulation and the Final Order and Judgment.
8. The Action is dismissed with prejudice, with each party to bear its own costs, except as otherwise provided herein.
9. Lead Plaintiff, the Class and each or every member of the Class (other than persons who have timely and validly excluded themselves from the Class and who are listed on Exhibit A hereto) and their heirs, assigns, executors and successors in interest are forever enjoined and barred from asserting, commencing or prosecuting all direct, individual, derivative, representative, or class claims, rights, demands, causes of action, liabilities, suits, matters and issues, whether known or unknown, pleaded or unpleaded, that have been, might have been, could have been or could be asserted by Lead Plaintiff, the Class, or any member of the Class, or the heirs, successors, and assigns of any of them, in the Action or in any court of competent jurisdiction, arising out of or related, directly or indirectly in any way, to the subject matter of the Action or to the purchase, sale or holding of any SkyMall common stock during the Class Period by any Class Member, whether arising under any state or federal statutory, regulatory or common law or otherwise, against Defendants, their past or present subsidiaries, parents, successors and predecessors, officers, directors, shareholders, agents, employees, attorneys, advisors, investment advisors, auditors, accountants, insurers, reinsurers and any person, firm, trust, corporation, officer, director or other individual or entity in which any Defendant has a controlling interest or which is related to or affiliated with any of the Defendants, the legal representatives, heirs, successors in interest or assigns of the Defendants, and members of the Individual Defendant's immediate family (collectively the "Released Parties"). Nothing in the Release shall extinguish any claims that a Class Member may have against said Class Member's own securities broker, brokerage firm, investment advisor or financial adviser for any actions taken on behalf of, or advice provided to, said Class Member.
10. All persons are hereby barred from asserting any future claims for contribution against the Released Parties.
11. The releases set forth in the Stipulation are rendered and declared fully effective and enforceable as of the Effective Date of the Settlement (as defined in the Stipulation). On the Effective Date, each member of the Class shall be deemed to have fully and forever released the Released Parties with respect to any and all of Settled Claims as that term is defined in Stipulation.
12. Shapiro Haber Urmy LLP shall maintain the Gross Settlement Fund in accordance with the requirements set forth in the Stipulation. Each of the Escrow Agents and the administrator of claims ("Claims Administrator") shall have no liability to any Class member with respect to any aspect of the administration of this Settlement, including but not limited to the processing of proofs of claim and the distribution of the Gross Settlement Fund to Class members.
13. Without affecting the finality of this Judgment, the Court retains jurisdiction over: (a) implementation of the Settlement and any award, distribution or other disposition of the Gross Settlement Fund; (b) enforcing and administering this Judgment, (c) enforcing and administering the Settlement, including any releases executed or deemed to have been executed in connection therewith; and (d) other matters related or ancillary to the administration and consummation of the Settlement.
14. The Court hereby awards to counsel for the Class attorneys' fees in the amount of 25% of the Gross Settlement Fund; and reimbursement of costs and expenses in the amount of $ 88,099.00; all to be paid out of the Gross Settlement Fund in accordance with the terms of the Stipulation. The allocation among counsel for the Class of the amounts awarded as attorneys' fees shall be in the sole discretion of Lead Plaintiff's Counsel, based on each counsel's relative contribution to the case.
15. Lead Plaintiff Bruce Levine, the Class Representative, is reimbursed $ 3,700.00; for his reasonable costs and expenses (including lost wages) directly related to his representation of the Class.
16. The Court finds that during the course of the Action, the parties and their respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11.
17. The Court hereby directs that this judgment be entered by the clerk forthwith pursuant to Federal Rule of Civil Procedure 54(b). The direction of the entry of final judgment pursuant to Rule 54(b) is appropriate and proper because this judgment fully and finally adjudicates the claims of the plaintiffs and the Class against the Defendants in this Action, it allows consummation of the Settlement, and it will expedite the distribution of the Settlement proceeds to the Class members.