SEATTLE, May 24, 2024
/PRNewswire/ --
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
JB AND MARGARET
BLAUGRUND FOUNDATION,
Plaintiff,
v.
GUGGENHEIM FUNDS
INVESTMENT ADVISORS,
LLC, RANDALL C. BARNES, ANGELA BROCK-
KYLE, THOMAS F. LYDON, JR., RONALD A.
NYBERG, SANDRA G. SPONEM, RONALD E.
TOUPIN, JR., and AMY J. LEE,
Defendants.
|
C.A. No.
2021-1094-NAC
|
SUMMARY NOTICE OF PENDENCY AND PROPOSED
SETTLEMENT OF
STOCKHOLDER CLASS ACTION, SETTLEMENT HEARING,
AND RIGHT TO APPEAR
TO: All holders of common shares of Fiduciary/Claymore Energy
Infrastructure Fund ("FMO") common stock as of the closing of the
merger of FMO with Kayne Anderson Energy Infrastructure Fund
("KYN") on March 7, 2022 (the
"Merger") (the "Settlement Class").
Certain persons and entities are excluded from the Settlement
Class by definition, as set forth in the full Notice of Pendency
and Proposed Settlement of Stockholder Class Action, Settlement
Hearing, and Right to Appear (the "Notice"), available at
www.FMOStockholdersLitigation.com. Any capitalized terms used in
this Summary Notice that are not otherwise defined in this Summary
Notice shall have the meanings given to them in the Stipulation and
Agreement of Settlement, Compromise, and Release dated March 29, 2024 (the "Stipulation"), which is also
available at www.FMOStockholdersLitigation.com.
PLEASE READ THIS SUMMARY NOTICE CAREFULLY. YOUR RIGHTS WILL
BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS
COURT.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the
Court of Chancery of the State of
Delaware (the "Court"), that the above-captioned stockholder
class action (the "Action") has been preliminarily certified as a
class action on behalf of the Settlement Class defined
above.
YOU ARE ALSO NOTIFIED that (i) Plaintiff JB and Margaret
Blaugrund Foundation ("Plaintiff"), on behalf of itself and the
other members of the Settlement Class; and (ii) Defendants
Guggenheim Funds Investment Advisors, LLC, Randall C. Barnes, Angela Brock-Kyle, Thomas F. Lydon, Jr., Ronald A. Nyberg, Sandra
G. Sponem, Ronald E. Toupin,
Jr., and Amy J. Lee
(collectively, "Defendants"; Plaintiff and Defendants together, the
"Parties") have reached a proposed settlement of the Action for
$18,800,000 in cash (the
"Settlement"). The terms of the Settlement are stated in the
Stipulation. If approved by the Court, the Settlement will resolve
all claims in the Action.
A hearing (the "Settlement Hearing") will be held on
July 9, 2024, at
1:30 p.m., before The Honorable
Nathan A. Cook, Vice Chancellor, either in person at the Court
of Chancery of the State of
Delaware, New Castle
County, Leonard L. Williams Justice Center, 500 North King
Street, Wilmington, DE 19801, or
remotely by telephone or videoconference (in the discretion of the
Court), to, among other things: (i) determine whether to
finally certify the Settlement Class for settlement purposes only,
pursuant to Court of Chancery Rules 23(a), 23(b)(1), and 23(b)(2);
(ii) determine whether Plaintiff and Plaintiff's
Counsel—Bernstein Litowitz Berger & Grossmann LLP and Morris
Kandinov LLP—have adequately represented the Settlement Class, and
whether Plaintiff should be finally appointed as Class
Representative for the Settlement Class and Plaintiff's Counsel
should be finally appointed as Class Counsel for the Settlement
Class; (iii) determine whether the proposed Settlement should
be approved as fair, reasonable, and adequate to Plaintiff and the
other members of the Settlement Class and in their best interests;
(iv) determine whether the proposed Order and Final Judgment
approving the Settlement, dismissing the Action with prejudice, and
granting the Releases provided under the Stipulation should be
entered; (v) determine whether the proposed Plan of Allocation
of the Net Settlement Fund is fair and reasonable, and should
therefore be approved; (vi) determine whether and in what
amount any award of attorneys' fees and expenses to Plaintiff's
Counsel (the "Fee and Expense Award") should be paid out of the
Settlement Fund, including any incentive award for Plaintiff (the
"Incentive Award"); (vii) hear and rule on any objections to the
Settlement, the proposed Plan of Allocation, and/or Plaintiff's
Counsel's Fee and Expense Application, including Plaintiff's
application for an Incentive Award; and (viii) consider any
other matters that may properly be brought before the Court in
connection with the Settlement.
Any updates regarding the Settlement Hearing, including any
changes to the date, time, or format of the hearing or updates
regarding remote or in-person appearances at the hearing, will be
posted to the Settlement website,
www.FMOStockholdersLitigation.com.
If you are a member of the Settlement Class, your rights will
be affected by the pending Action and the Settlement, and you may
be entitled to share in the Net Settlement Fund. If you have
not yet received the Notice, you may obtain a copy of the Notice by
contacting the Settlement Administrator by mail at FMO Stockholders
Litigation, c/o JND Legal Administration, P.O. Box 91400,
Seattle, WA 98111; by telephone at
855-208-4128; or by email at info@FMOStockholdersLitigation.com. A
copy of the Notice can also be downloaded from the Settlement
website, www.FMOStockholdersLitigation.com.
If the Settlement is approved by the Court and the Effective
Date occurs, the Net Settlement Fund will be distributed on a
pro rata basis to Eligible Class Members in accordance
with the proposed Plan of Allocation stated in the Notice or such
other plan of allocation as is approved by the Court. Pursuant to
the proposed Plan of Allocation, each Eligible Class Member will be
eligible to receive a pro rata payment from the Net
Settlement Fund equal to the product of (i) the number of
Eligible Shares held by the Eligible Class Member and (ii) the
"Per-Share Recovery" for the Settlement, which will be determined
by dividing the total amount of the Net Settlement Fund by the
total number of Eligible Shares held by all Eligible Class Members.
As explained in further detail in the Notice, pursuant to the Plan
of Allocation, payments from the Net Settlement Fund to Eligible
Class Members will be made in the same manner in which
Eligible Class Members received the Merger consideration.
Eligible Class Members do not have to submit a claim form to
receive a payment from the Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Plaintiff's Counsel's Fee and Expense Application,
including Plaintiff's application for an Incentive Award, must be
filed with the Register in Chancery in the Court of Chancery of the
State of Delaware and delivered to Plaintiff's Counsel and
Defendants' Counsel such that they are received no later
than June 24, 2024, in accordance
with the instructions set forth in the Notice.
Please do not contact the Court or the Office of the Register
in Chancery regarding this Summary Notice. All questions about this
Summary Notice, the proposed Settlement, or your eligibility to
participate in the Settlement should be directed to the Settlement
Administrator or Plaintiff's Counsel.
Requests for the Notice should be made to the Settlement
Administrator:
FMO Stockholders Litigation
c/o JND Legal Administration
P.O. Box 91400
Seattle, WA 98111
855-208-4128
info@FMOStockholdersLitigation.com
www.FMOStockholdersLitigation.com
Inquiries, other than requests for the Notice, should be made
to Plaintiff's Counsel:
Jeroen van Kwawegen
Bernstein Litowitz Berger
& Grossmann LLP
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
800‑380‑8496
settlements@blbglaw.com
Aaron T.
Morris
Morris Kandinov LLP
305 Broadway, 7th Floor
New York, NY 10007
212-431-7473
aaron@moka.law
BY ORDER OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE
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SOURCE JND Legal Administration