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This notice (“Notice”) advises you of a proposed settlement (the
“Settlement”) of litigation (referred to herein as the “Action”) brought by
Joseph Henry and Michael Malinky (the “Plaintiffs”) against Bank of America, N.
A. formerly known as U.S. Trust Company of California, N.A. (“Defendant”).
Plaintiffs and Defendant are referred to herein collectively as the “Parties.”
In the Action, Plaintiffs seek to recover losses, which they allege were
suffered by the CommutAir ESOP as the result of breaches of fiduciary duty by
Defendant.
The United States District Court for the Northern District of New York (the
“Court”) has preliminarily approved the Settlement, and has scheduled a hearing
(the “Fairness Hearing”) to evaluate the fairness and adequacy of the Settlement
at which the Court will consider: (i) whether to approve the Settlement as fair
and adequate; (ii) whether to enter a judgment (the “Judgment”) which will bar
you from filing your own lawsuit on issues raised in the Action; (iii) whether
to approve the Plan of Allocation; and (iv) whether to award attorneys’ fees and
expenses to Plaintiffs' Counsel and incentive awards to Plaintiffs. The
Fairness Hearing, before the Hon. Randolph F. Treece, has been scheduled for
February 14, 2012, at 9:30 a.m., at the United States District Court for the
Northern District of New York, James T. Foley U.S. Courthouse, 445 Broadway,
Room 314, Albany, NY 12207. If the Court issues final approval of the
Settlement, Defendant will cause the payment of Two Million Dollars
($2,000,000.00) into an Escrow Account. Following payment of all approved fees,
expenses and incentive awards, the Net Settlement will be paid to the ESOP’s
current trustee for allocation to Eligible Participants who qualify for benefits
under the Plan of Allocation.
The terms of the Settlement are contained in a Settlement Agreement (the
“Settlement Agreement”), a copy of which is available on this website.
Any questions regarding the Settlement should be directed to Plaintiffs’
Counsel: Gary Greenwald, Keller Rohrback P.L.C., 3101 N. Central Avenue, Suite
1400, Phoenix, Arizona 85012, tel: 602-230-6326, Terence Devine, Devine,
Markovits & Snyder, LLP, 52 Corporate Circle, Albany, New York 12203, tel:
518-464-0640, or Stanley H. Shayne, Shayne Nichols LLC, Two Miranova Place,
Suite 220, Columbus, Ohio 43215 tel: 614-221-2220. Plaintiffs’ Counsel has
established a toll-free phone number, (800) 315-7082, for your questions or
comments. Plaintiffs’ Counsel may also be contacted
via email. Please do not contact
the Court, as Court personnel will not be able to answer your questions.
SUMMARY OF SETTLEMENT
Under the Settlement, $2.0 million in cash will be paid into a qualified
settlement fund (the “Settlement Fund”). This amount shall be disbursed as
follows:
(a) Court awarded Plaintiffs' Counsel’s attorneys’ fees and expenses,
Plaintiffs’ incentive awards, and reasonable costs of the Settlement either
approved by the Court or previously agreed to by the parties, shall be paid from
the Settlement Fund.
(b) The balance in the Settlement Fund shall be disbursed to the ESOP’s
current trustee, subject to the Plan of Allocation (the "Net Settlement").
Disbursements will be made as promptly as practicable after the Court's
approval of the Settlement has become Final.
THE PLAN OF ALLOCATION
In general terms, the Plan of Allocation provides:
The Settlement Agreement provides for the Plaintiffs and the ESOP’s
Independent Fiduciary to jointly submit to the Court a proposed Plan of
Allocation that will provide for the allocation of amounts deposited into the
Settlement Fund (after payment of Court-approved attorneys’ fees, expenses and
Plaintiff incentive awards as well as other settlement related costs and
expenses including the fee and any expenses of the Independent Fiduciary) to
ESOP participants and beneficiaries.
Under the Plan of Allocation, “Eligible Participants” will be defined to
include each individual who was (a) an employee of Champlain Enterprises, Inc.
and an ESOP participant on January 3, 2001, or (b) a former employee of
Champlain Enterprises, Inc. and an ESOP participant on January 3, 2001.
Allocations will be made as of the appropriate Allocation Date based upon a
formula which allocated to affected Participants’ Cash Account a share of the
Net Proceeds of settlement in a ratio that the total balance of his Cash Account
and his Stock Account on the Allocation Date (reduced by any distributions of
Capital Accumulation made before or after the Allocation Date) bears to the sum
of such Account Balances for all Eligible Participants as of the Allocation
Date.
A detailed Plan of Allocation has been filed with the Court and is posted on
this website.
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