STATE OF SOUTH CAROLINA
IN THE COURT OF COMMON PLEAS
COUNTY OF GREENVILLE
ORDER AND FINAL JUDGMENT
A hearing having been held before this Court (the “Court”) on December 9, 2010, pursuant to the Court’s Order of August 11, 2010, filed on August 13, 2010 (the “Scheduling Order”), upon a Stipulation and Agreement of Compromise, Settlement and Release, dated as of August 6, 2010, filed on August 9, 2010 (the “Stipulation”), of the above-captioned action (the “Consolidated Action”), which Scheduling Order and Stipulation are incorporated herein by reference; it appearing that due notice of said hearing has been given in accordance with the aforementioned Scheduling Order and that said notice was adequate and sufficient; the Plaintiffs and Defendants having appeared by their attorneys of record; the Court having received evidence in support of the proposed Settlement; the attorneys for these respective parties having been heard in support of the Settlement of the Consolidated Action; an opportunity to be heard having been given to all other persons desiring to be heard as provided in the notice; and the entire matter of the Settlement having been considered by the Court;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, this 9th day of December 2010, as follows:1. Unless otherwise defined herein, all defined terms shall have the meanings as set forth in the Stipulation.
2. The Notice of Pendency of Class Action, Proposed Class Action Determination, Proposed Settlement of Class Action Claims, Settlement Hearing, Right to Object and Right to Appear (the “Notice”), Summary Notice and website posting have been provided to the Class (as defined therein and in paragraph 4 herein) pursuant to and in the manner directed by the Scheduling Order; proof of the mailing of the Notice, publication of the Summary Notice and website posting has been filed with the Court; and full opportunity to be heard has been offered to all settling parties, the Class, and persons in interest. The form and manner of the Notice, Summary Notice and website posting are hereby determined to have been the best notice practicable under the circumstances and to have been given in full compliance with the requirements of South Carolina Rule of Civil Procedure 23 and due process, and it is further determined that all members of the Class and their successors are bound by this Order and Final Judgment.
3. Based on the record in the Consolidated Action, each of the provisions of South Carolina Rule of Civil Procedure 23 has been satisfied and the Consolidated Action has been properly maintained according to the provisions of South Carolina Rule of Civil Procedure 23(a). Specifically, this Court finds that: (1) the Class, as defined below, is so numerous that joinder of all members is impracticable; (2) there are questions of law and fact common to the Class; (3) the claims of the Plaintiffs are typical of the claims of the Class; (4) the Plaintiffs and their counsel have fairly and adequately protected the interests of the Class; and (5) the relief primarily sought is injunctive or declaratory with respect to the class as a whole.
4. The Consolidated Action is hereby certified as a non-opt-out class action, pursuant to South Carolina Rule of Civil Procedure 23, on behalf of a class consisting of all public record and beneficial holders of common stock of TSFG at any time from May 17, 2010 (the date the proposed Merger was publicly announced) through and including the date of the consummation of the Merger, and the respective legal representatives, heirs, successors in interest, transferees and assigns of all such foregoing holders and/or owners, immediate and remote, excluding the Settling Defendants (the “Class”). Plaintiffs G.A. Milner, III; W. Gordon Parrott, III; Harold D. Enloe; Wade Brodie; and John H. Robison are hereby certified as the representatives of the Class. The law firm of Motley Rice LLC is hereby certified as Plaintiffs’ Class Counsel and W. Douglas Smith as Liaison Counsel.
5. In addition to providing a material benefit to the Class, the Settlement is found to be fair, reasonable and adequate and in the best interests of the Class and is hereby approved pursuant to South Carolina Rule of Civil Procedure 23(c).
6. The parties to the Stipulation are hereby authorized and directed to comply with and to consummate the Settlement in accordance with its terms and provisions, and the Court Clerk is directed to enter and docket this Order and Final Judgment.
7. This Order and Final Judgment shall not constitute any evidence or admission by any party herein that any acts of wrongdoing have been committed by any of the parties to the Consolidated Action and shall not be deemed to create any inference that there is any liability therefore.
8. The Consolidated Action is hereby dismissed with prejudice as to all Defendants named in the Consolidated Action, with each party to bear its own costs except as provided herein and in the Stipulation.
9. Any and all claims, demands, rights, actions or causes of action, liabilities, damages, losses, obligations, judgments, suits, matters and issues of any kind or nature whatsoever, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, that have been or could have been asserted in the Consolidated Action or in any court, tribunal or proceeding (including, but not limited to, any claims arising under federal or state law relating to alleged fraud, breach of any duty, negligence or violations of the federal or state securities laws) by or on behalf of the Plaintiffs in the Consolidated Action or any or all of the members of the Class (collectively, the “Releasing Parties”), whether individual, class, derivative, representative, legal, equitable or any other type or in any other capacity, against Edward J. Sebastian, a former director of TSFG who was initially named as a defendant in the Consolidated Action, or any or all Settling Defendants in the Consolidated Action, and/or any of their families, parent entities, associates, affiliates or subsidiaries and each and all of their respective past or present, officers, directors, stockholders, representatives, employees, attorneys, financial or investment advisors, consultants, accountants, investment bankers, commercial bankers, insurers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates, administrators, and each of their respective predecessors, successors, and assigns (collectively, the “Released Persons”), which the Plaintiffs or any member of the Class ever had, now has, or hereafter can, shall or may have by reason of, arising out of, relating to or in connection with the allegations, facts, events, transactions, acts, occurrences, statements, representations, misrepresentations, omissions or any other matter, thing or cause whatsoever, or any series thereof, embraced, involved, or set forth in or otherwise related, directly or indirectly, to the Consolidated Action, the negotiation and consideration of the Merger, any shareholder vote in connection with the Merger, the Merger, the Merger Agreement, the Share Purchase Agreement, the Preliminary Proxy, the Additional Disclosures, or the Securities Purchase Agreement, including without limitation any agreements or fiduciary or disclosure obligations in connection with any of the foregoing, except claims to enforce the Settlement (collectively, the “Settled Claims”) are hereby completely discharged, dismissed with prejudice, and settled, enjoined, and released as to the Released Persons, provided, however, that Plaintiffs retain the right to enforce in the Court the terms of the Stipulation. Settling Defendants release Plaintiffs, the members of the Class and their counsel from all claims arising out of the initiation, prosecution, settlement or resolution of the Consolidated Action and the Settled Claims, provided, however, that the Settling Defendants and each of them shall retain the right to enforce in the Court the terms of the Stipulation.
10. The parties providing releases under paragraph 9 waive their rights, to the extent permitted by federal law, state law, foreign law or principles of common law, that may have the effect of limiting the releases set forth in that paragraph. This shall include a waiver of any rights pursuant to Section 1542 of the California Civil Code or any similar, comparable or equivalent provision. Section 1542 of the California Civil Code provides as follows:
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
The Releasing Parties acknowledge that the Releasing Parties may discover facts in addition to or different from those now known or believed to be true with respect to the Settled Claims, but that it is the intention of the Releasing Parties to hereby completely, fully, finally and forever compromise, settle, release, discharge and extinguish any and all Settled Claims with respect to the Released Persons known or unknown, suspected or unsuspected, which now exist, or heretofore existed, through and including the date of the execution of the Stipulation, and without regard to the subsequent discovery or existence of additional or different facts. The Releasing Parties hereby voluntarily waive the provisions, rights and benefits of Section 1542 of the California Civil Code and the provisions, rights and benefits of any law of any state or territory of the United States, federal law, or principle of common law, which is similar, comparable or equivalent to Section 1542 of the California Civil Code. Plaintiffs acknowledge, and the Class Members shall be deemed by operation of the Judgment to have acknowledged, that the foregoing waiver was separately bargained for and a key element of the settlement of which this release is a part.11. The Releasing Parties are hereby permanently enjoined from asserting, commencing, prosecuting, assisting, instigating or in any way participating in the commencement or prosecution of any action or other proceeding, in any forum, asserting any Settled Claims, either directly, representatively, derivatively, or in any other capacity, against any Released Person with respect to the Settled Claims.
12. Plaintiffs’ counsel are hereby awarded attorneys’ fees and expenses (including costs and disbursements) in a total amount of $ 425,000, which sum the Court finds to be fair and reasonable and which shall be paid to Plaintiffs’ Class Counsel in accordance with the terms of the Stipulation.
13. The effectiveness of this Order and Final Judgment and the obligations of Plaintiffs and Defendants under the Settlement shall not be conditioned upon or subject to the resolution of any appeal from this Order and Final Judgment that relates solely to the issue of Plaintiffs’ counsel’s application for an award of attorneys’ fees and expenses.
14. In the event that the Settlement does not become final or is terminated in accordance with the terms and provisions of the Stipulation, then this Judgment shall be rendered null and void and be vacated and the Stipulation, except to the extent that it expressly provides otherwise, and all orders entered in connection therewith by this Court shall be rendered null and void.
15. Without affecting the finality of this judgment in any way, this Court retains continuing jurisdiction: (a) over the implementation, administration, and consummation of this Settlement; (b) over the Consolidated Action until the judgment contemplated hereby has become final and each and every act agreed to be performed by the parties to the Stipulation shall have been performed pursuant to the Stipulation; and (c) over all parties to the Consolidated Action and all parties to the Stipulation for the purpose of taking such other actions as may be necessary to conclude and administer this Settlement and to implement and enforce the Stipulation. Notwithstanding the foregoing, this Order shall constitute a final judgment. There is no just reason for delay in entering judgment in accordance with the Stipulation. Accordingly the Clerk is hereby directed to enter this judgment forthwith.
HON. EDWARD W. MILLER