E.I. du Pont de Nemours and Company
Notice of Dismissal of DuPont Stockholder Litigation and Agreement Upon Attorneys Fees
Notice is hereby provided to all persons holding shares of E. I. du Pont de Nemours and Company ("DuPont") (NYSE: DD).
The purpose of this notice is to inform you about developments with respect to the litigation in the Delaware Court of Chancery (the "Delaware Court") captioned The Vladimir Gusinsky Living Trust v. Ward, et al., C.A. No. 10811-VCG (the "Action"), including dismissal of the Action and an agreement by DuPont to pay attorneys' fees and expenses to counsel for plaintiff in the Action ("Plaintiff"). This notice is being issued by Block & Leviton LLP and Prickett, Jones & Elliott, P.A. who were Co-Lead Counsel to Plaintiff in the Action.
On December 18, 2014, DuPont announced that, in connection with the spin-off of its performance chemicals business, to be held by The Chemours Company ("Chemours") (NYSE: CC), a wholly owned subsidiary of DuPont, and effectuated by way of a pro rata dividend of the common stock of Chemours to DuPont's stockholders (the "Spin-off"), Chemours had filed a Form 10 Registration Statement (the "Form 10"). The Form 10 described, among other things, the terms of the proposed Spin-Off and certain corporate governance provisions to be in place at Chemours at the time of consummation of the Spin-Off. As described in the Form 10, Chemours' proposed certificate of incorporation would, at the time of the Spin-Off, provide for, among other things, a staggered board, with each class of directors serving non-concurrent three-year terms, a prohibition on stockholders acting by written consent, a 35% threshold for stockholders to call a special meeting and an 80% threshold to amend any of the foregoing provisions.
On March 18, 2015, Plaintiff commenced the Action on behalf of itself and a putative class of DuPont stockholders challenging certain of Chemours' corporate governance provisions. On March 20, 2015, Plaintiff filed an amended complaint adding allegations related to, among other things, alleged omissions made by DuPont about Chemours' corporate governance provisions in proxy solicitation materials filed in connection with DuPont's 2015 annual meeting.
On March 26, 2015, after oral argument the Court granted Plaintiff's motion for expedited proceedings on its disclosure claims and a hearing on Plaintiff's motion for a preliminary injunction was subsequently scheduled for April 28, 2015. Thereafter, the parties engaged in expedited briefing on Plaintiff's preliminary injunction motion with respect to Plaintiff's challenges to the disclosures in DuPont's proxy solicitation materials.
On March 30, 2015, DuPont announced that it had revised certain of Chemours' governance provisions, including (1) giving stockholders of Chemours the right to vote on whether or not to approve the classified board structure at Chemours' first annual meeting in 2016 and, if the classified board structure was not approved by a majority of the shares voted by Chemours' stockholders, the Chemours board would be declassified in connection with Chemours' 2017 annual meeting such that all Chemours directors would be up for election at such meeting and (2) lowering the ownership threshold required for Chemours' stockholders to call special meetings from 35% to 25%.
On April 23, 2015, DuPont issued a supplement to the March 23 Proxy Statement mooting Plaintiff's disclosure claims by making additional disclosures with respect to Chemours' corporate governance provisions, including the revised classified board structure and the lowering of the ownership structure required for stockholders to call special meetings;
On April 24, 2015, Plaintiff withdrew his motion for a preliminary injunction because his disclosure claims were mooted by the April 23, 2015 proxy supplement.
On May 13, 2015, DuPont held its annual meeting of stockholders, and on July 1, 2015, the Spin-Off was consummated.
Following the Spin-Off, Plaintiff concluded that the claims asserted in the Action, for which Plaintiff was primarily seeking equitable relief, were either moot or did not have merit.
On August 17, 2015, the Court entered a stipulated order, dismissing Plaintiff's claims (with prejudice as to Plaintiff and without prejudice as to the putative class) and retaining jurisdiction over the Action to determine an application by Plaintiff for an award of attorneys' fees and expenses to its counsel.
On September 10, 2015, Plaintiff filed its opening brief in support of his motion for an award of attorneys fees and expenses (the "Fee and Expense Application"). On December 1, 2015, Defendants Patrick J. Ward, Lee M. Thomas, Ulf M. Schneider, Lois D. Juliber, Marillyn A. Hewson, James L. Gallogly, Eleuthère I. du Pont, II, Alexander M. Cutler, Bertrand P. Collomb, Robert A. Brown, Edward D. Breen, Lamberto Andreotti, Ellen J. Kullman, Curtis J. Crawford, Richard H. Brown, and DuPont (the "DuPont Defendants") submitted their Answering Brief.
The parties subsequently resolved the dispute by agreeing that DuPont would make a fee and expense payment to counsel for Plaintiff in the amount of $400,000 in full and complete satisfaction of the Fee and Expense Application.