<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
--------------------------------------------
(Name of Issuer)
COMMON STOCK, WITHOUT PAR VALUE
-------------------------------
(Title of Class of Securities)
46005H100
---------
(CUSIP Number)
Arthur D. Wolfcale, Esq.
General Counsel
The Edward J. DeBartolo Corporation
7620 Market Street
Youngstown, Ohio 44512
(330) 965-2047
--------------------------------------
(Name, Address and Telephone Number
of Person Authorized to Receive Notices
and Communications)
November 12, 1996
--------------------------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Check the following box if a fee is being paid with the statement |_|.
<PAGE>
SCHEDULE 13D
CUSIP No. 46005H100
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
EDWARD J. DEBARTOLO, JR., individually and as co-
executor of The Estate of Edward J. DeBartolo
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[X]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
7. SOLE VOTING POWER
2,533,450
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY 1,983,013 (as co-executor of The
OWNED BY Estate of Edward J. DeBartolo)
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON
WITH 2,533,450
10. SHARED DISPOSITIVE POWER
1,983,013 (as co-executor of The
Estate of Edward J. DeBartolo)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,516,463
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.74%
14. TYPE OF REPORTING PERSON*
IN
<PAGE> 2
SCHEDULE 13D
CUSIP No. 46005H100
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
THE ESTATE OF EDWARD J. DEBARTOLO
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[X]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
7. SOLE VOTING POWER
1,983,013
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON
WITH 1,983,013
10. SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,516,463
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.74%
14. TYPE OF REPORTING PERSON*
OO
<PAGE> 3
SCHEDULE 13D
CUSIP No. 46005H100
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
MARIE DENISE DEBARTOLO YORK, solely in her capacity as
co-executor of The Estate of Edward J. DeBartolo
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[X]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
7. SOLE VOTING POWER
0
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY 1,983,013 (as co-executor of The
OWNED BY Estate of Edward J. DeBartolo)
EACH
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON
WITH 0
10. SHARED DISPOSITIVE POWER
1,983,013 (as co-executor of The
Estate of Edward J. DeBartolo)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,516,463
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.74%
14. TYPE OF REPORTING PERSON*
IN
<PAGE> 4
The Reporting Persons, as defined below, hereby amend and
restate in its entirety the Schedule 13D as originally filed with the Securities
and Exchange Commission ("SEC") on December 21, 1990 (as amended by Amendment
No. 1 filed with the SEC on February 19, 1991, Amendment No. 2 filed with the
SEC on May 17, 1991, Amendment No. 3 filed with the SEC on October 22, 1991,
Amendment No. 4 filed with the SEC on November 13, 1991, Amendment No. 5 filed
with the SEC on May 20, 1992, Amendment No. 6 filed with the SEC on May 28,
1992, Amendment No. 7 filed with the SEC on June 25, 1992, Amendment No. 8 filed
with the SEC on July 31, 1992, Amendment No. 9 filed with the SEC on August 12,
1992, Amendment No. 10 filed with the SEC on September 18, 1992, Amendment No.
11 filed with the SEC on October 8, 1992, Amendment No. 12 filed with the SEC on
January 9, 1995 and Amendment No. 13 filed with the SEC on March 15, 1995,
collectively, the "Prior 13Ds") relating to the common shares, without par
value, of International Murex Technologies Corporation (formerly Murex Clinical
Technologies Corporation), a British Columbia corporation. This amendment and
restatement of Schedule 13D relates to the transaction as more fully described
in Item 4 below (the "Current Transaction"). All exhibits to the Schedule 13D
previously filed are incorporated herein by reference.
<PAGE> 5
Item 1. Security and Issuer.
-------------------
This statement relates to the common shares, without par value (the
"Shares"), of International Murex Technologies Corporation (formerly Murex
Clinical Technologies Corporation), a corporation organized under the laws of
the Province of British Columbia, Canada (the "Issuer"). The Issuer's principal
executive offices are located at 3075 Northwoods Circle, Norcross, Georgia
30071.
Item 2. Identity and Background.
-----------------------
This statement is being filed by Edward J. DeBartolo, Jr. ("DeBartolo,
Jr."), individually and as co-executor of the Estate (the "Estate") of Edward J.
DeBartolo, Sr. ("DeBartolo, Sr."), the Estate, and Marie Denise DeBartolo York,
solely in her capacity as co-executor of the Estate ("York" and, together with
DeBartolo, Jr. in his capacity as co-executor of the Estate, the "Executors")
(collectively, the "Reporting Persons").
The principal occupation of DeBartolo, Jr., a natural person, is to act
as President and Chief Administrative Officer of The Edward J. DeBartolo
Corporation, an Ohio corporation ("EJDC"), a corporation primarily engaged in
the business of developing and managing real estate. The business address of
DeBartolo, Jr. is 7620 Market Street, Youngstown, Ohio 44512. DeBartolo, Jr. is
a United States citizen.
<PAGE> 6
DeBartolo, Sr. died on December 19, 1994. The Shares beneficially owned
by DeBartolo, Sr. at the time of his death devolved to his Estate by operation
of law upon the appointment of the Executors pursuant to the Entry Appointing
Fiduciary; Letters of Authority (previously filed as Exhibit 28 and incorporated
herein by reference) on December 29, 1994. The co-executors of the Estate are
DeBartolo, Jr. and York. Accordingly, the Estate and the Executors are joining
the defined class of Reporting Persons for purposes of this Schedule 13D with
respect to the Shares. The business address of the Estate is c/o The Edward J.
DeBartolo Corporation, 7620 Market Street, Youngstown, Ohio 44512.
The principal occupation of York, a natural person, is to act as Vice
Chairman of The Edward J. DeBartolo Corporation. The business address of York is
7620 Market Street, Youngstown, Ohio 44512. York is a United States citizen and
is the daughter of the late DeBartolo, Sr.
None of the Reporting Persons has been, during the last five years, (a)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (b) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or
<PAGE> 7
mandating activities subject to, federal or state securities laws or finding any
violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
-------------------------------------------------
With respect to the transactions described in the Prior 13Ds, see Item
3 to the Prior 13Ds which is incorporated herein by reference. With respect to
the Current Transaction, not applicable.
Item 4. Purpose of Transaction.
----------------------
The purposes of the transactions described in
the Prior 13Ds are hereby incorporated by reference. With respect to the Current
Transaction, pursuant to a certain stipulation of settlement, dated May 17, 1996
(the "Stipulation of Settlement"), the parties thereto agreed to settle all
claims against DeBartolo, Jr., the late DeBartolo, Sr., the Estate, the Issuer
and two of its executive officers, arising out of class action lawsuits
instituted on behalf of all persons who had purchased Shares between May 21,
1992 and August 19, 1992 (described below). The Stipulation of Settlement is
subject to final approval by the United States District Court for the Eastern
District of New York ("Court Approval"), which is expected by late 1996. The
Stipulation of Settlement is not an admission or indication by the DeBartolos or
any defendant of any liability or wrongdoing by any of them. A copy of the
Stipulation of
<PAGE> 8
Settlement is attached hereto as Exhibit 31 and is incorporated herein by
reference.
Pursuant to the Stipulation of Settlement, the defendants agreed to pay
a total of $5.4 million for the benefit of authorized claimants, of which (i)
DeBartolo, Jr. is responsible for $540,000 and (ii) the Estate, on behalf of
DeBartolo, Sr., is responsible for $540,000. Each party's contribution was
determined pursuant to the Agreement, dated May 17, 1996 (the "Agreement") by
and among the defendants. The payments by DeBartolo, Jr. and the Estate are
payable in cash or Shares and all payments will be held in escrow for the
benefit of claimants pending Court Approval. A copy of the Agreement is attached
hereto as Exhibit 32 and is incorporated herein by reference.
On November 12, 1996, (i) DeBartolo, Jr. tendered 92,943 Shares and
(ii) the Estate tendered 92,943 Shares, each in payment of all relevant
obligations under the Stipulation of Settlement. In accordance with the
Stipulation of Settlement, the Shares tendered by DeBartolo, Jr. and the Estate
were delivered directly to the Issuer for cancellation, which, in turn, will
issue new Shares directly to authorized claimants, and were valued at $5.81 per
Share, or the average closing price for the trading of such Shares on the Nasdaq
National Market System for the 30 day period
<PAGE> 9
ending ten days before the date of delivery of such Shares to the
Issuer.
The complaints filed in the actions had alleged that the defendants
omitted and/or misrepresented material facts about the Issuer which resulted in
artificially inflating the market price of the Issuer's securities, permitting,
in part, DeBartolo, Jr. and DeBartolo, Sr. to sell certain Shares in late July
and early August of 1992 in violation of federal and Texas securities laws. The
DeBartolos and the other defendants have denied the substantive allegations and
that their conduct was unlawful or caused the plaintiffs any legally recoverable
damages. However, all defendants, including DeBartolo, Jr. and the Estate, on
behalf of DeBartolo, Sr., while continuing to expressly deny any wrongdoing,
agreed to enter into the Stipulation of Settlement in order to put to rest all
controversy and to avoid further expense, inconvenience and distraction
necessitated by further defenses of the consolidated action.
Except as limited below with respect to the Estate, the Reporting
Persons own the Shares for investment purposes. Such persons intend continuously
to review their investment in the Issuer. In reaching any decision with respect
to such investment, the Reporting Persons will take into consideration various
factors, such as the Issuer's business
<PAGE> 10
and prospects, other developments concerning the Issuer, other investment
opportunities available to such persons and general economic and market
conditions. Depending upon the results of their review of such factors, such
persons may decide to purchase (on such terms and at such times as they consider
desirable) additional equity securities of the Issuer, or such persons may
decide to dispose of all or a portion of any such securities of the Issuer
(whether now or hereafter held). In connection with any such disposition of
Shares, the Reporting Persons may consider utilizing the registration rights
granted to such persons by the Issuer pursuant to the Registration Rights
Agreement, as amended (attached as Schedule A to Exhibit 2 and Exhibits 21, 24
and 30 and described in Item 6 of the Schedule 13D).
In addition, the Executors are charged with administering the assets
properly included in the Estate, including Shares owned by DeBartolo, Sr. at his
death on December 19, 1994, for the benefit of the Estate's creditors and then
for heirs, legatees and devisees in accordance with the directions of the Last
Will and Testament of DeBartolo, Sr.
Except as set forth above, or in any other item hereof, the Reporting
Persons do not have any present plans or proposals that would relate to or
result in any of the actions required to be described in Item 4 of Schedule 13D.
<PAGE> 11
Item 5. Interest in Securities of the Issuer.
------------------------------------
(a) The information set forth in this Item 5(a) is given as of November
12, 1996 and is based on 16,280,196 Shares deemed outstanding.1 The Reporting
Persons beneficially own 4,516,463 Shares, which represent approximately 27.74%
of the outstanding Shares.
The Estate has direct beneficial ownership of 1,983,013 Shares, which
represent approximately 12.18% of the outstanding Shares. DeBartolo, Jr. has
direct beneficial ownership of 2,533,450 Shares and, by virtue of his authority
as Executor of the Estate, may be deemed to own beneficially (as that term is
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
("Rule 13d-3"), the 1,983,013 Shares directly beneficially owned by the Estate.
Thus, DeBartolo, Jr. may be deemed to own beneficially 4,516,463 Shares, which
represent approximately 27.74% of the outstanding Shares. DeBartolo, Jr.
disclaims beneficial ownership for all other purposes of the Shares which the
Estate has direct beneficial ownership except to the extent of his presently
indeterminate pecuniary interest in such Shares.
York does not directly beneficially own any Shares but, by virtue of
her authority as Executor of the Estate,
- -------------------
1 The number of Shares outstanding as of November 4, 1996 was 16,280,196
according to information provided by International Murex Technologies
Corporation.
<PAGE> 12
may be deemed to own beneficially (as that term is defined in Rule 13d-3) the
1,983,013 Shares directly beneficially owned by the Estate, which
represent approximately 12.18% of the outstanding Shares. York disclaims
beneficial ownership for all other purposes of the Shares which the Estate has
direct beneficial ownership except to the extent of her presently indeterminate
pecuniary interest in such Shares.
(b) The information set forth in this Item 5(b) is given as of November
12, 1996. DeBartolo, Jr. has sole power to vote or to direct the vote and to
dispose or to direct the disposition of the 2,533,450 Shares of which he has
direct beneficial ownership and DeBartolo, Jr. and York, as Executors, share
equally the power to vote or to direct the vote and to dispose or to direct the
disposition of the 1,983,013 Shares directly beneficially owned by the Estate.
(c) Except for Shares tendered by DeBartolo, Jr. and the Estate
pursuant to the Stipulation of Settlement (described in Item 4 of the Schedule
13D), no transactions in the Shares have been effected by the Reporting Persons
during the past 60 days.
(d) All proceeds from the tender of the Shares by DeBartolo, Jr. and
the Estate will be held in escrow for thebenefit of the authorized claimants
pursuant to the Stipulation of Settlement.
(e) Not Applicable.
<PAGE>13
Item 6. Contracts, Arrangements, Understandings, or
Relationships with Respect to Securities of
the Issuer.
-------------------------------------------
All contracts, arrangements, understandings, or relationships with
respect to the Prior 13Ds are hereby incorporated by reference. Pursuant to Rule
13d-1(f) promulgated under the Exchange Act, the Reporting Persons have entered
into an agreement with respect to the joint filing of this statement, and any
amendment or amendments hereto, which has been filed previously as Exhibit 27
and is incorporated herein by reference.
Pursuant to a Mutual Limited Release and Covenant Not to Sue,
dated May 2, 1995, between the Issuer and DeBartolo, Jr., (i) the 153,742
Shares directly beneficially owned by DeBartolo, Jr. which were subject to the
Pooling Agreement (previously filed as Exhibit 12 incorporated herein by
reference), were released from the escrow established by the Pooling Agreement
and (ii) the Pooling Agreement was terminated. As a result, such Shares are no
longer subject to the restrictions on transfer set forth therein.
The Registration Rights Agreement dated as of October 26, 1990, as
amended by the Registration Rights Amendment dated June 23, 1992, further
amended by the Letter Agreement, dated September 17, 1992, and further amended
by the Letter Amendment, dated March 14, 1995 (previously filed as Schedule A to
Exhibit 2 and Exhibits 21, 24 and 30, respectively, and incorporated herein by
reference) (together with all amendments, the "Registration Rights Agreement"),
provides that, among other things, the Issuer agrees to register the Shares in
up to three registered offerings under the Securities Act of 1933, as amended,
upon written notice of request of registration. The Issuer's obligation to
register the Shares continues until December 31, 1996, provided the Reporting
Persons must bear fifty percent of the expenses incurred by the Issuer in
connection with any
<PAGE> 14
registration statements for which the Reporting Persons sent written notice to
the Issuer after December 31, 1995.
The lock-up provisions of the Registration Rights Agreement which had
previously prohibited the selling, transferring, assigning, pledging or
otherwise disposing of any Shares of which a Reporting Person has direct or
indirect beneficial ownership, with certain exceptions, expired on July 15,
1995.
Except as described herein and in the Prior 13Ds, there are no
contracts, arrangements, understandings or relationships among the persons named
in Item 2 or between such persons and any other person with respect to any
securities of the Issuer.
Item 7. Material to be Filed as Exhibits
--------------------------------
Exhibit 31 - Stipulation of Settlement
dated May 17, 1996
Exhibit 32 - Agreement, dated May 17, 1996
by and among the Issuer, DeBartolo,
Jr., the Estate and Encon Insurance
Managers, Inc.
Exhibit 33 - Mutual Release and Covenant Not To Sue,
dated May 2, 1995, between the Issuer and DeBartolo, Jr.
<PAGE>
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: November 12, 1996
/s/ Edward J. DeBartolo, Jr.
--------------------------------
Edward J. DeBartolo, Jr.
<PAGE>
SCHEDULE 13D
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: November 12, 1996 /s/ Edward J. DeBartolo, Jr.
--------------------------------
Edward J. DeBartolo, Jr.in
his capacity as Executor of
the Estate of Edward J.
DeBartolo
Dated: November 12, 1996 /s/ Marie Denise DeBartolo York
--------------------------------
Marie Denise DeBartolo York,
in her capacity as Executor
of the Estate of Edward J.
DeBartolo
<PAGE>
SCHEDULE 13D
EXHIBIT INDEX
Exhibit 31 - Stipulation of Settlement
dated May 17, 1996
Exhibit 32 - Agreement, dated May 17, 1996
by and among the Issuer, DeBartolo,
Jr., the Estate and Encon Insurance
Managers, Inc.
Exhibit 33 - Mutual Release and Covenant
Not To Sue, dated May 2,
1995, between the Issuer and
DeBartolo, Jr.
<PAGE>
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- ----------------------------------------X
IN RE INTERNATIONAL MUREX : Master File No:
TECHNOLOGIES CORPORATION : 93 Civ. 336 (JG)
SECURITIES LITIGATION :
- ----------------------------------------X
This document applies to : ALL ACTIONS
TABLE OF CONTENTS
I. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. Certification of the Proposed Class and Settlement . . . . . . . . . . 9
A. Class Certification . . . . . . . . . . . . . . . . . . . . . . . 9
B. Settlement Fund Amount . . . . . . . . . . . . . . . . . . . . . 9
C. No More than 20% of Settlement Fund
to Be in Stock . . . . . . . . . . . . . . . . . . . . . . . . . 9
<PAGE>
III. Preliminary Approval Order and 23(e) Hearing . . . . . . . . . . . . . 10
A. Application for Preliminary Approval Order . . . . . . . . . . . 10
B. Contents of Preliminary Approval Order . . . . . . . . . . . . . 10
IV. The Final Order and Judgment. . . . . . . . . . . . . . . . . . . . . 13
A. Contents of the Final Order and Judgment . . . . . . . . . . . . 13
V. The Settlement Fund . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Payment of Settlement Fund . . . . . . . . . . . . . . . . . . . 15
B. Investment of the Cash Portion of the Settlement Fund Pending
Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . 16
C. Valuation of Murex Stock Portion of Settlement Fund . . . . . . . 16
D. Payment of Fees and Expenses . . . . . . . . . . . . . . . . . . 17
E. Administration of the Settlement . . . . . . . . . . . . . . . . 18
<PAGE>
F. Distribution of Settlement Fund; Calculation of Each Authorized
Claimant's Settlement Share . . . . . . . . . . . . . . . . . . . 19
G. Return of Settlement Funds After Distribution . . . . . . . . . . 20
H. Opt-Outs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
VI. Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. Terms of Release . . . . . . . . . . . . . . . . . . . . . . . . 21
B. Checks to Be Marked in Full Satisfaction . . . . . . . . . . . . 22
VII. Plaintiffs' Fees, Expenses and Costs . . . . . . . . . . . . . . . . . 22
VIII. Conditions of Settlement, Effect of
Disapproval, Cancellation or Termination . . . . . . . . . . . . . . 23
A. Conditions of Effective Date; Opt Outs To Be Limited to
$1,000,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. Cancellation of Settlement . . . . . . . . . . . . . . . . . . . 24
C. Consequences of Termination or Non-Approval . . . . . . . . . . . 24
IX. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. No Admission . . . . . . . . . . . . . . . . . . . . . . . . . . 25
C. Incorporation of Exhibits . . . . . . . . . . . . . . . . . . . . 26
D. No Modification Except in Writing . . . . . . . . . . . . . . . . 26
E. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 26
F. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 26
G. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 27
H. Retention of Jurisdiction. . . . . . . . . . . . . . . . . . . . 27
I. Tax Election . . . . . . . . . . . . . . . . . . . 27
<PAGE>
EXHIBITS
Exhibit A Preliminary Approval Order
Exhibit B Notice of Class Action Determination, Proposed Settlement,
and Hearing
Exhibit C Proof of Claim and Release and Substitute Form W-9
Exhibit D Summary Notice of Class Action Settlement and Hearing on
__________, 1996 (____ a.m.)
Exhibit E Urgent Communication
Exhibit F Final Order and Judgment
<PAGE>
IN RE INTERNATIONAL MUREX : Master File No:
TECHNOLOGIES CORPORATION : 93 Civ. 336 (JG)
SECURITIES LITIGATION :
- ----------------------------------------X
This document applies to : ALL ACTIONS
STIPULATION OF SETTLEMENT
STULL, STULL & BRODY LAW OFFICES OF JOSEPH H. WEISS
6 East 45th Street 319 Fifth Avenue
New York, NY 10017 New York, NY 10016
(212) 687-7230 (212) 532-4171
Co-Lead Counsel to Plaintiffs
REID & PRIEST LLP WILLKIE FARR & GALLAGHER
40 West 57th Street 153 East 53rd Street
New York, NY 10019 New York, NY 10022
(212) 603-2000 (212) 935-8000
Counsel to the Murex Counsel to the DeBartolo
Defendants Defendants
<PAGE>1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- ----------------------------------------X
IN RE INTERNATIONAL MUREX : Master File No:
TECHNOLOGIES CORPORATION : 93 Civ. 336 (JG)
SECURITIES LITIGATION :
- ----------------------------------------X
This document applies to : ALL ACTIONS
STIPULATION OF SETTLEMENT
WHEREAS, plaintiff Phyllis Miller filed the original complaint in
this consolidated action on September 10, 1992, in the United States District
Court for the Southern District of Texas, Houston Division, File No. H-92-2782
(the "Miller Action"), and thereafter, plaintiffs Eleanor Werbowsky and Barry
Fishman filed separate complaints alleging substantially similar allegations
to those of the Miller Action in the same court in Texas (the "Werbowsky
Action" and the "Fishman Action"); and
WHEREAS, on January 8, 1993, plaintiffs and defendants in the
Miller, Werbowsky and Fishman Actions entered into a So-Ordered stipulation
transferring the cases from the United States District Court for the Southern
District of Texas to the United States District Court for the Eastern District
of New York; and
WHEREAS, this Court ordered the three actions be consolidated on or
about April 22, 1993 under the referenced caption (the "Consolidated Action");
and
WHEREAS, on March 30, 1993, plaintiffs Edward J. Wucik, David Ronald
Carrasco, Sanja Holovac, Gary O. Garrett and James
<PAGE>1
M. Lyster filed a complaint in the Eastern District of New York, (the "Wucik
Action"); and
WHEREAS, this Court amended its prior order and ordered that the
Wucick Action be consolidated with the Consolidated Action; and
WHEREAS, Defendants have answered all the complaints in the
Consolidated Action and have denied all charges asserted against them and
raised defenses to the claims set forth therein and continue to deny all
charges asserted against them and disclaim any wrongdoing or liability
whatsoever; and
WHEREAS, on June 11, 1993, the eight Plaintiffs moved the Court that
their individual claims be certified as a class action pursuant to Rule 23 of
the Federal Rules of Civil Procedure, seeking certification of certain of the
named Plaintiffs as representatives of:
"a class consisting of all persons and entities that purchased the
securities of International Murex Technologies Corporation during the
period May 21, 1992 through August 19, 1992, inclusive, and who were
damaged thereby" (the "Class"), and
"a Sub-Class consisting of all persons who purchased International Murex
securities contemporaneously with the sales of stock by the individual
defendants, Edward J. DeBartolo, Sr. and Edward J. DeBartolo, Jr. during
the Class Period" (the "Sub-Class"); and
WHEREAS, two of the named Plaintiffs, Sanja Holovac and James M.
Lyster, have withdrawn from the Consolidated Action; and
WHEREAS, pursuant to this stipulation of settlement the parties here
stipulated to the certification of the Class and the Sub-Class on the terms
set forth herein; and
<PAGE>3
WHEREAS, counsel for the remaining Plaintiffs and the Class have
conducted a thorough investigation of the facts, circumstances and
transactions relating to and surrounding the allegations set forth in the
Consolidated Action, including extensive document discovery and the taking of
oral depositions of parties and non-parties; and
WHEREAS, counsel for the Plaintiffs and the Class having conducted a
thorough investigation of the facts, circumstances and transactions relating
to and surrounding the allegations set forth in the Consolidated Action, have
concluded that approximately half of the out-of-pocket losses sustained by the
Class Members is attributable to the actions of the defendants;
WHEREAS, the parties have engaged in protracted, arms-length
negotiations and now propose to settle, in accordance with the terms and
provisions of this stipulation of settlement (the "Stipulation of
Settlement"), including the release referred to in Article VI(A) below; and
WHEREAS, counsel for Plaintiffs and the Class have agreed to enter
into the Stipulation of Settlement after taking into account the likelihood
that this Consolidated Action, if not settled now by voluntary agreement among
the parties, will be protracted (including a trial and time-consuming
appeals), and will involve highly complex issues relating both to liability
and damages, as well as other uncertainties and risks inherent in litigation;
and
<PAGE>4
WHEREAS, Plaintiffs claim and continue to claim that each and every
allegation in the Consolidated Action has merit, but nonetheless recognize and
acknowledge the expense and length of continued proceedings necessary to
prosecute this action through trial and appeals, as well as the uncertainty
and risk of such litigation. Plaintiffs' counsel believe that the settlement
set forth in this stipulation confers substantial benefits on the Class and
each of its members; and
WHEREAS, Defendants, without in any way acknowledging any fault or
liability, have agreed to enter into the Stipulation of Settlement in order to
put to rest all controversy and to avoid the further expense, inconvenience
and distraction of this burdensome and protracted litigation; and
WHEREAS, the Defendants continue to contest vigorously and to deny
all the allegations of the Consolidated Action and to state their intent to
take all reasonable steps to obtain dismissal of the Consolidated Action in
the event that the Court does not approve this Stipulation; and
NOW, THEREFORE, IT IS STIPULATED AND AGREED, by and among the
undersigned, that this purported class action shall be compromised and
settled, subject to the approval of the Court as required by Rule 23(e) of the
Federal Rules of Civil Procedure, in the manner and on the terms and
conditions set forth below.
I. Definitions
As used in the Stipulation of Settlement, the following terms have
the meanings specified below:
<PAGE>5
"Authorized Claimant" shall mean a member of the Class who has not
duly requested exclusion therefrom and who files a valid and allowed Proof of
Claim. "Authorized Claimant" shall include the legal representative of such
person, including, without limitation, administrators, executors, heirs,
successors and assigns, but shall not include any named Defendant herein, or
any member of his immediate family or any affiliate or subsidiary of a
corporate Defendant;
"Claims Administrator" means David Berdon & Co., LLP, 415 Madison
Avenue, New York, New York 10017;
"Class Member" means a member of the Class;
"Class Period" means the period of time from May 21, 1992 through
August 19, 1992, inclusive;
"DeBartolo Defendants" means Edward J. DeBartolo, Jr., Edward J.
DeBartolo, Sr. and the estate of Edward J. DeBartolo, Sr.;
"Defendants" means International Murex Technologies Corporation, C.
Robert Cusick, Richard D. Strayer, Jr., Edward J. DeBartolo, Jr., Edward J.
DeBartolo, Sr. and the estate of Edward J. DeBartolo, Sr.;
"Effective Date" of this Stipulation of Settlement shall be ten (10)
days after the date of Final Approval;
"Final Approval" means the following: The date of entry of an order
of final affirmance or dismissal on an appeal, including the expiration of the
time (including any possible extensions thereof) for the filing of any further
appeals or
<PAGE>6
motions for reconsideration or rehearing thereof, or for the filing of a
petition for a writ of certiorari and the denial of such petition, or, if
certiorari be granted, the date of final affirmance following review pursuant
to that grant, or the expiration of the time required (including any possible
extensions thereof) to file any such appeal, or petition for a writ of
certiorari without such appeal or petition having been filed, following the
entry of the Court's Judgment approving the Stipulation of Settlement,
substantially in the form of Exhibit F hereto;
"Judgment" means the judgment to be rendered by the Court,
substantially in the form attached as Exhibit F;
"Lead Counsel" means Stull, Stull & Brody, 6 East 45th Street, New
York, New York 10017 and the Law Offices of Joseph H. Weiss, 319 Fifth Avenue,
New York, New York 10016; and
"Murex" means International Murex Technologies Corporation;
"Murex Defendants" means International Murex Technologies
Corporation, C. Robert Cusick and Richard D. Strayer, Jr.;
"Person" means an individual, corporation, partnership, limited
partnership, association, joint stock company, estate, legal representative,
trust, unincorporated association, government or any political subdivision or
agency thereof, and any business or legal entity and their spouses, heirs,
predecessors, successors, representatives, or assigns; and
<PAGE>7
"Preliminary Approval Order" means the order, in the form annexed as
Exhibit A hereto, entered by the Court as provided in Article III(A) hereof,
which shall provide, among other things, for a fairness hearing by the Court,
pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, to consider
the settlement, and authorizing the giving of notice of the settlement to all
Class Members, substantially in the forms of Exhibits B and E attached hereto;
and
"Securities Damages" shall mean (i) if the Authorized Claimant
purchased International Murex Technologies Corporation common stock on or
after May 21, 1992 and then sold such common stock on or before August 19,
1992, the Authorized Claimant's Securities Damages shall be one-half of the
difference between the purchase price (including any brokerage commissions and
other expenses of purchase and sale) and sale price (net any brokerage
commissions and other expenses of purchase and sale) multiplied by the number
of shares sold; (ii) if the Authorized Claimant purchased International Murex
Technologies Corporation common stock on or after May 21, 1992 but did not
sell such shares on or before August 19, 1992, the Authorized Claimant's
Securities Damages shall be one-half of the difference between the purchase
price (including any brokerage commissions and other expenses of purchase and
sale) and nine dollars ($9.00), the closing price for International Murex
Technologies Corporation common stock on August 19, 1992, multiplied by the
number of shares; (iii) if the Authorized Claimant purchased International
Murex Technologies
<PAGE>8
Corporation warrants on or after May 21, 1992 and exercised such warrants on
or before August 19, 1992, the Authorized Claimant's Securities Damages shall
be one-half of the difference between the exercise price (including any
brokerage commissions and other expenses of purchase and sale) and the common
stock price (net any brokerage commissions and other expenses of purchase and
sale), multiplied by the number of shares purchased; (iv) if the Authorized
Claimant purchased International Murex Technologies Corporation warrants on or
after May 21, 1992 but did not exercise such warrants on or before August 19,
1992, the Authorized Claimant's Securities Damages shall be one-half of the
difference between the exercise price (including any brokerage commissions and
other expenses of purchase and sale) and nine dollars ($9.00), multiplied by
the number of shares that could have been purchased; or (v) if the Authorized
Claimant purchased International Murex Technologies Corporation warrants on or
after May 21, 1992 and sold such warrants on or before August 19, 1992, the
Authorized Claimant's Securities Damages shall be one-half of the difference
between the purchase price (including any brokerage commissions and other
expenses of purchase and sale) and sale price (net any brokerage commissions
and other expenses of purchase and sale), multiplied by the number of warrants
sold. The limitations of Article V(E)(2) hereof shall also apply to the
calculation of Securities Damages pursuant hereto.
"Settlement Fund" means the total consideration as set forth in
Article II(B) below.
<PAGE>9
Any terms not defined in Article I, but defined elsewhere in this
Stipulation of Settlement, may still be used as defined terms.
II. Certification of the Proposed Class and Settlement
A. Class Certification. For purposes of this settlement only, this
action shall proceed as a class action on behalf of a class consisting of all
Persons that purchased Murex securities during the Class Period, and who were
damaged thereby (the "Class"). Such Class shall contain a sub-class
consisting of all Persons who purchased Murex securities contemporaneously
with the sales of Murex stock by the individual defendants, Edward J.
DeBartolo, Sr. and Edward J. DeBartolo, Jr. during the Class Period (the "Sub-
Class"). Under the terms of this Stipulation of Settlement, the Members of
the Class and Sub-Class will have equivalent but not cumulative rights and
responsibilities.
B. Settlement Fund Amount. In full settlement and compromise of all
claims asserted in the Consolidated Action, and subject to the terms of this
Stipulation of Settlement and the approval of the Court as provided for herein
and in Rule 23(e) of the Federal Rules of Civil Procedure, Defendants shall
pay a total of Five Million Four Hundred Thousand Dollars ($5,400,000), in
cash and Murex stock, from which each Authorized Claimant shall receive
payment (the "Settlement Share") as provided by Article V(F) below.
C. No More Than 20% of Settlement Fund to be in Stock. No more than
twenty percent (20%) of the Settlement Fund shall be
<PAGE>10
paid in Murex stock, as valued in Article V(C) below. Murex warrants that the
stock delivered pursuant to Article V(A) shall be free of any liens, claims,
charges or encumbrances or restrictions (including any restrictions on resale
under the Securities Act of 1933, as amended) as of the delivery date.
III. Preliminary Approval Order and 23(e) Hearing
A. Application for Preliminary Approval Order. Promptly after the
execution of this Stipulation of Settlement, the parties hereto shall submit
to the Court and shall apply jointly for and consent to the entry of the
Preliminary Approval Order in substantially the form annexed hereto as Exhibit
A.
B. Contents of Preliminary Approval Order. The Preliminary Approval
Order shall specifically include provisions that, among other things:
1. Conditionally certify the Class and Sub-Class as set forth in
Article II(A) hereof;
2. Preliminarily approve this Stipulation of Settlement set forth
herein as being fair, reasonable and adequate;
3. Approve as to form and content the proposed (i) Notice of
Class Action Determination, Proposed Settlement, and Hearing; (ii) Proof of
Claim; (iii) Summary Publication Notice; and (iv) Letter to Nominees,
substantially in the form of Exhibits B, C, D and E, annexed hereto;
<PAGE>11
4. Schedule a hearing pursuant to Rule 23(e) of the Federal Rules
of Civil Procedure (the "23(e) Hearing"): (i) to determine whether the
settlement of this Consolidated Action as provided for in this Stipulation of
Settlement is fair, reasonable and adequate and should be approved by the
Court, and whether a Judgment, as provided in Article IV hereof, should be
entered herein; (ii) to consider the application by the attorneys for
Plaintiffs and the Class for award of fees and disbursements; (iii) to certify
the Class and Sub-Class; and (iv) to provide for any other necessary relief.
5. Provide that the 23(e) Hearing may, from time to time and
without further notice to the Murex stockholders, be continued or adjourned by
order of the Court;
6. Find that the notice given pursuant to Article III(B)(7)-(9)
hereof, constitutes the best notice practicable under the circumstances,
including individual notice to all Persons who purchased Murex securities
during the Class Period and who can be identified upon reasonable effort, and
constitutes valid, due and sufficient notice to all such Persons, complying
fully with the requirements of Rule 23 of the Federal Rules of Civil
Procedure, and any other applicable law;
7. Direct that notice of the pendency of the class action and of
the 23(e) Hearing with respect to the proposed settlement be given to Persons
identified as members of the Class, based on a reasonable search, by first-
class mail and by
<PAGE>12
publication pursuant to Rules 23(c)(2) and 23(e) of the Federal Rules of Civil
Procedure;
8. Direct the Claims Administrator to cause the Summary
Publication Notice to be published once in the national edition of The Wall
Street Journal;
9. Request that nominees who purchased Murex securities for Class
Members send the Notice to all such beneficial owners of such Murex securities
within 10 days after receipt of the Notice or send a list of the names and
addresses of such beneficial owners to the Claims Administrator within 10 days
of receipt of the Notice;
10. Provide that any objections to (i) the proposed settlement
contained in the Stipulation of Settlement; (ii) entry of the Judgment
approving the settlement; or (iii) Class and Plaintiffs' counsels' fee and
expense applications, shall be heard and any papers submitted in support of
said objection shall be received and considered by the Court at the 23(e)
Hearing only if, on or before a date to be specified in the Preliminary Order,
Persons making such objections file and serve notice of their intention to
appear (which shall set forth each objection and the basis therefor) and
copies of any papers in support of their position as set forth in the
Preliminary Order;
11. Set forth scheduling and procedures for the implementation of
the terms and conditions of the proposed settlement including, among other
things, provisions for exclusions from the Class pursuant to Rule 23(c)(2) of
the
<PAGE>13
Federal Rules of Civil Procedure and for the filing of objections to the
proposed settlement by members of the Class;
12. Pending the final determination of the fairness, reasonableness
and adequacy of the settlement and approval thereof as provided in the
Stipulation of Settlement, enjoin the Plaintiffs, all members of the Class and
any purchaser of Murex securities, either directly, representatively or
derivatively, or in any other capacity from instituting or commencing any
separate action or proceeding against the Defendants based upon or relating to
the purchase of Murex stock or warrants during the Class Period and to any of
the matters, transactions, or omissions alleged in the Consolidated Action;
and
13. Provide that the administration of the proposed settlement, the
resolution of all disputed questions of law and fact with respect to the
validity of any claim to participate in the Settlement Fund (including the
manner of proving claims) and payments out of the Settlement Fund, as defined
below, shall be under the authority of the Court.
IV. The Final Order and Judgment
A. Contents of the Final Order and Judgment. Upon the approval by the
Court of the proposed settlement of this action as provided for in the
Stipulation of Settlement (including any modification or amendment thereto
approved by counsel for Plaintiffs and the Class and counsel for Defendants),
a judgment shall be entered in due and proper form:
<PAGE>14
1. Declaring that this action shall proceed as a class action
under Rule 23 of the Federal Rules of Civil Procedure on behalf of a Class
consisting of all Persons that purchased Murex securities during the Class
Period, and who were damaged thereby. Such Class shall also contain the
Sub-Class consisting of all Persons who purchased Murex securities
contemporaneously with the sales of Murex stock by the individual defendants
Edward J. DeBartolo, Sr. and Edward J. DeBartolo, Jr. during the Class Period;
provided, however, that no member of the Sub-Class shall be treated any
differently pursuant to this Stipulation of Settlement than any other member
of the Class;
2. Approving the Stipulation of Settlement and adjudging the terms
thereof to be fair, reasonable and adequate, directing consummation of its
terms and provisions, and retaining jurisdiction to effectuate the same;
3. Awarding and directing payment to Plaintiffs' and Class
attorneys of their reasonable fees and disbursements including fees of experts
and accountants;
4. Dismissing the Consolidated Action as against the Defendants on
the merits and with prejudice;
5. Barring and permanently enjoining all members of the Class,
except those Persons who have timely requested exclusion pursuant to Rule
23(c)(2) of the Federal Rules of Civil Procedure, from prosecuting any
individual or class claims which are or might have been asserted in the
Consolidated Action, arising out of the purchase of Murex stock or warrants
during the
<PAGE>15
Class Period and any acts, facts, transactions, omissions or other subject
matters set forth, alleged, embraced or otherwise referred to in the
Consolidated Action including any claims for violations of federal, state or
other law, or of the common law;
6. Declaring that, pursuant to Section 3(a)(10) of the Securities
Act of 1933, the stock to be issued by Murex in accordance with this
Stipulation of Settlement will be issued in exchange for the claims of the
Class and Sub-Class and that the terms and conditions of such issuance are
fair to the Class and Sub-Class such that the issuance of such stock is exempt
from registration; and
7. Containing such other and further provisions consistent with
the terms and conditions of the Stipulation of Settlement as the Court may
deem advisable.
V. The Settlement Fund
A. Payment of Settlement Fund. Ten (10) days prior to the 23(e)
Hearing, the Defendants shall pay the sum of five million four hundred
thousand dollars ($5,400,000), as referred to in Article II(B) above. Any
payments made in the form of cash will be made to the Claims Administrator to
hold in escrow for the benefit of the Class. Any payments made in the form of
Murex common stock shall be delivered to Murex for cancellation. Murex will
issue new shares of Murex stock directly to each of the Authorized Claimants
in accordance with Article V(F), and to counsel in accordance with Article
(V)(D), up to the same number of shares as were delivered to Murex. Such
issuance by Murex
<PAGE>16
shall not constitute a transfer to the Authorized Claimants and counsel of
shares delivered to Murex, but shall constitute an original issuance by Murex.
B. Investment of the Cash Portion of the Settlement Fund Pending
Distribution. The cash portion of the Settlement Fund shall be invested and
reinvested in short-term United States government obligations, certificates of
deposit or money market accounts of banks with assets in excess of one billion
dollars ($1,000,000,000) or such other investments as the Court may approve,
and disbursed as set forth below.
C. Valuation of the Murex Stock Portion of Settlement Fund. Any Murex
common stock to be delivered pursuant to this Stipulation of Settlement, as
provided in Articles II(B)-(C) and V(A) above, shall be valued at the average
closing price for the trading of such stock on The Nasdaq National Market
System for the thirty day period ending ten days before the date of delivery
of such shares to Murex (the "Valuation Period"). This calculation shall be
adjusted in the event that there are any changes in the number of outstanding
shares during the Valuation Period. In the event of any merger, consolidation
or other business combination prior to the time of the delivery of the stock
involving Murex in which Murex is not the surviving entity, or any sale or
conveyance to other person or entity of the property or assets of Murex as an
entity or substantially as an entity, the portion of the settlement
consideration to be in Murex stock shall be paid in shares of the surviving
corporation,
<PAGE>17
or in shares of the corporation to which the assets are conveyed, in an
equivalent valued amount.
D. Payment of Fees and Expenses. Within twenty (20) days after the
Effective Date, the cash portion of the fees and disbursements awarded by the
Court to the attorneys for the Plaintiffs and the Class shall be deducted from
the Settlement Fund or from any interest earned thereon. Subject to any
applicable order of the Court, payment of the fees shall be in cash and stock
in the same proportion which cash and stock were paid by Defendants pursuant
to Article II(C). Further, within five (5) days after the Effective Date or
as soon thereafter as possible, Lead Counsel shall advise Murex as to the
distribution of the stock portion of the award among Plaintiffs and Class
counsel. Murex shall then issue such stock to Plaintiffs and Class counsel as
soon as practicable. Murex shall advance the expenses of providing notice to
the Class, as required by Rule 23 of the Federal Rules of Civil Procedure, the
Preliminary Approval Order and this Stipulation of Settlement; it being
understood and agreed, however, that (i) prior to the conclusion of the
administration of the settlement, the expenses of providing notice to Class
Members, the other expenses of administration and taxes, if any, advanced by
Murex shall also be deducted from the Settlement Fund or from any interest
earned thereon and reimbursed to Murex; (ii) neither Plaintiffs nor counsel
for Plaintiffs nor the Class shall have any liability for such expenses of
notice and administration; and (iii) in the event
<PAGE>18
this Stipulation of Settlement, for any reason, is not approved or
implemented, Murex shall not be entitled to any reimbursement of monies which
it may previously here advanced and shall remain liable for any such expense
previously incurred, and not previously reimbursed, by the Claims
Administrator.
E. Administration of the Settlement. The Claims Administrator shall
administer the settlement of this action subject to review by Plaintiffs'
counsel and the Class.
1. Such administration shall include, among other things: (i)
identification of all Class Members and giving such notice or notices as the
Court shall direct; (ii) the processing and tabulation of Proofs of Claim;
(iii) issuance of checks for and the mailing to the appropriate Class Members;
(iv) specifying the number of shares of Murex stock to be issued to each of
the Authorized Claimants; and (v) preparation of any necessary tax returns,
including calculation of any estimated tax payments.
2. Such administration shall also include the review of Proofs of
Claim for their legal and substantive sufficiency. Without limiting the
generality of such review, (i) any Authorized Claimant who both purchased and
sold securities during the Class Period shall only be allowed to claim damages
on the net amount of purchases made by him during the Class Period, so that no
damages may be based on any Class Member's securities which were purchased
during the Class Period and also sold during the Class Period; (ii) the date
of purchase or of sale shall be the trade date and not settlement date; and
(iii) no Authorized
<PAGE>19
Claimant shall be allowed to claim damages on the basis of purchases which
covered a short position of any kind or nature.
F. Distribution of Settlement Fund; Calculation of Each Authorized
Claimant's Settlement Share. The Settlement Fund shall be distributed to
Authorized Claimants as soon as practicable following the completion of the
processing and tabulation of Proofs of Claim. An Authorized Claimant's
Settlement Share shall be determined as follows:
1. Each Authorized Claimant shall be entitled to receive twenty-
seven percent (27%) of their Securities Damages, less their pro rata share of
Court-awarded attorney's fees and expenses, as set forth in Article VII
hereof, and their pro rata share of the other expenses set forth in Article
V(D) hereof.
2. Payment of such Settlement Shares to each Authorized Claimant
shall be made in cash and Murex stock in the same proportion that cash and
stock were paid by Defendants pursuant to Article II(C) above. The cash
portion of such Settlement Shares shall be paid by the Claims Administrator
and the stock portion shall be paid in Murex stock issued directly to the
Authorized Claimants by Murex at direction of the Claims Administrator at the
same per share value rate at which the stock was delivered to Murex pursuant
to Article II(C). In no event will Murex be obligated to issue more shares
than actually were delivered by Defendants pursuant to Article II(C).
Further, in no event will fractional shares be issued. If an Authorized
Claimant's Settlement Share is calculated to included a
<PAGE>20
fractional share of stock that is less than or equal to half a share, the
Authorized Claimant will receive that number of shares less the fractional
share. If an Authorized Claimant's Settlement Share is calculated to include
a fractional share of stock that is greater than half a share, the Authorized
Claimant will receive that number of share plus one additional share.
3. If the total amount of Securities Damages claimed by the
Authorized Claimants is such that twenty-seven percent (27%) of such
Claimants' Securities Damages exceeds the amount of the Settlement Fund, then
each Authorized Claimant's Settlement Share shall be reduced pro rata, after
payment of the attorney's fees and other expenses referred to in Article
V(F)(1) above. In no event shall Defendants be liable for more than the
Settlement Fund.
4. The reason for reducing the claims of Authorized Claimants by
one-half in calculating their Securities Damages is the plaintiffs' estimate
that damages caused by the alleged securities fraud are approximately one-half
the market losses suffered by Class Members.
G. Return of Settlement Funds After Distribution. If the total amount
of Securities Damages claimed by the Authorized Claimants is such that twenty-
seven percent (27%) of such damages is less than the Settlement Fund, then any
funds remaining following the final administration of the settlement will be
returned to and revert back to Murex. In such an event, any stock not issued
by Murex will remain in the possession and
<PAGE>21
control of Murex and shall be canceled or retired. In no event shall any
Authorized Claimant receive more than twenty-seven percent (27%) of such
Claimant's Securities Damages, less such Claimant's pro rata share of the
attorneys' fees and other expenses referred to in Article V(F)(1) above.
H. Opt-Outs. If any Class Member timely elects to exclude himself from
the Class in accordance with Rule 23(c)(2) of the Federal Rules of Civil
Procedure and the accompanying Preliminary Approval Order, such excluded
member shall not receive any part of the Settlement Fund; shall have no rights
with respect to this Stipulation of Settlement; and shall not be bound by its
terms.
VI. Release
A. Terms of Release. Upon condition that this proposed settlement
becomes effective pursuant to Article VIII hereof:
1. Plaintiffs and all members of the Class who have not requested
exclusion therefrom, on behalf of themselves, their heirs, executors and
administrators, successors and assigns and any Person(s) they represent
(collectively, the "Releasors"), shall be deemed to have remised, released and
forever discharged each of the Defendants, and their respective agents,
servants, estates, trustees, attorneys, present and former employees, officers
and directors, subsidiaries, affiliates, stockholders, heirs, executors,
representatives, successors and assigns, from each and every class or
individual claim which has been or might have been asserted in the
Consolidated Action in connection with
<PAGE>22
the purchase of Murex stock or warrants during the Class Period and arising
out of or in any way related to any acts, facts, transactions or omissions set
forth, alleged, embraced or otherwise referred to in the Consolidated Action,
including any claims for violations of federal, state or other law, or of the
common law, which the Releasors, or any of them, had, now have, or may
hereafter have as a member of the Class, or the Sub-Class, or as an
individual, against any of the Defendants, individually or collectively; and
2. Defendants shall be deemed to have remised, released and
forever discharged each of the Plaintiffs, plaintiffs and Class counsel and
all Class Members not requesting exclusion pursuant to Article V(H), from all
claims arising out of, relating to, or in connection with the institution,
prosecution and/or settlement of the Consolidated Action.
B. Checks to Be Marked in Full Satisfaction. All checks in payment of
any distribution to any Class Member may contain appropriate language
confirming the release of said Person's claims.
VII. Plaintiffs' Fees, Expenses and Costs
The Plaintiffs' and Class counsel intend to submit an application to
the Court for an award of attorneys' fees incurred in connection with
prosecuting the Consolidated Action, in an amount not to exceed one million
eight hundred thousand dollars ($1,800,000), as well as an application for
reimbursement for expenses, including the fees of experts and consultants in
an
<PAGE>23
amount not to exceed two hundred thousand dollars ($200,000). Such fees and
expenses as may be awarded by the Court shall be deducted from the Settlement
Fund as provided for in Article V(D) hereof. None of the Defendants will take
a position on Plaintiffs' and Class counsels' fee and expense applications.
VIII. Conditions of Settlement, Effect of
Disapproval, Cancellation or Termination
A. Conditions of Effective Date; Opt Outs To Be Limited to $1,000,000.
In addition to such conditions as may be expressed in Article I hereof, the
Effective Date of the Stipulation of Settlement shall be conditioned on the
occurrence of all of the following events:
1. The Court has entered the Preliminary Approval Order, as
required by Article III hereof;
2. The Court has entered the Judgment, approving the Stipulation
of Settlement in the Consolidated Action in the form of Exhibit F hereto;
3. Final Approval of the Judgment approving the Stipulation of
Settlement in the Consolidated Action has been rendered;
4. There shall have been a decision on Plaintiffs' and the Class
counsels' fee applications to be submitted pursuant to Article VII hereof, and
such decision shall receive Final Approval; and
5. The total Securities Damages of the Class Members seeking
exclusion pursuant to Rule 23(c)(2) of the Federal Rules
<PAGE>24
of Civil Procedure does not exceed One Million Dollars ($1,000,000).
B. Cancellation of Settlement. If all of the conditions specified in
Article VIII(A) hereof cannot be met except by material modification of this
Stipulation of Settlement prior to Final Approval, then the Stipulation of
Settlement may be canceled and terminated unless Plaintiffs' counsel, the
Murex Defendants and the DeBartolo Defendants mutually agree in writing to
proceed with the Stipulation of Settlement, or to modify the Stipulation of
Settlement, and as so modified to proceed with the Stipulation of Settlement.
C. Consequences of Termination or Non-Approval. In the event that the
Stipulation of Settlement is not approved by the Court, or the settlement set
forth in the Stipulation of Settlement is terminated or fails to become
effective in accordance with its terms, or if the Judgment is revised or
modified upon appeal or certiorari (except as provided in Article VIII(B)
hereof), or if the Judgment for any other reasons fails to reach Final
Approval by December 31, 1997, the parties shall be restored to their
respective positions in the Consolidated Action as of the date hereof, and the
parties shall cooperate in seeking appropriate extensions of the discovery and
other deadlines so that the parties have the same time to complete their
discovery, pretrial and trial preparations had this Stipulation of Settlement
not be executed. In such event, the terms and provisions of the Stipulation
of Settlement shall
<PAGE>25
have no further force and effect with respect to the parties and shall not be
admitted into evidence, referred to or otherwise used in the Consolidated
Action or in any other proceeding for any purpose, except as provided for in
Article IX(B) hereof; and any Judgment entered by the Court in accordance with
the terms of the Stipulation of Settlement shall be treated as vacated, nunc
pro tunc.
IX. Miscellaneous
A. General. The Parties (a) acknowledge that it is their intent
to consummate this agreement; (b) agree to cooperate to the extent necessary
to effectuate and implement all terms and condition of the Stipulation of
Settlement and to exercise their best efforts to accomplish the foregoing
terms and conditions; and (c) represent that the Stipulation of Settlement is
the product of arm's length negotiation.
B. No Admission. Neither (i) the Stipulation of Settlement, (ii)
the negotiations or proceedings hereunder, nor (iii) the acts performed or
documents executed pursuant to or in furtherance of the Stipulation of
Settlement: (a) is or may be deemed to be or may be used as an admission or
concession of, or evidence of, the validity of any claim, or of any wrongdoing
or liability of the Defendants; (b) is or may be deemed to be or may be used
as an admission or concession of, or evidence of, any fault or omission of any
Defendant in any civil, criminal or administrative proceeding in any court,
administrative agency or other tribunal, other than in such proceedings as may
be
<PAGE>26
necessary to consummate or enforce the Stipulation of Settlement, the
settlement or the Judgment; except that Defendants may file and use the
Stipulation of Settlement and/or the Judgment in any action that may be
brought against them in order to support a defense or counterclaim based on
principles of res judicata, collateral estoppel, release, good-faith
settlement, judgment bar or reduction or any other theory of claim preclusion
or issue preclusion or similar defense or counterclaim.
C. Incorporation of Exhibits. All of the Exhibits to the
Stipulation of Settlement are material and integral parts hereof and are fully
incorporated herein.
D. No Modification Except in Writing. The Stipulation of
Settlement may be amended or modified only by a written instrument signed by
or on behalf of all parties or their successors-in-interest.
E. Entire Agreement. The Stipulation of Settlement and the
Exhibits attached hereto constitute the entire agreement among the parties
hereto and no representations, warranties or inducements have been made to any
party concerning the Stipulation of Settlement or its Exhibits other than the
representations, warranties and covenants contained and memorialized in such
documents. Except as otherwise provided herein, each party shall bear its own
costs.
F. Counterparts. The Stipulation of Settlement may be executed in
one or more counterparts. All executed counterparts and each of them shall be
deemed to be one and the
<PAGE>27
same instrument. Counsel for the parties to the Stipulation of Settlement
shall exchange among themselves original signed counterparts and a complete
set of original executed counterparts shall be filed with the Court.
G. Successors and Assigns. The Stipulation of Settlement shall be
binding upon, and inure to the benefit of, the successors and assigns of the
parties thereof.
H. Retention of Jurisdiction. Without affecting the finality of
the Judgment entered in accordance with the Stipulation of Settlement, the
Court shall retain jurisdiction with respect to implementation and enforcement
of the terms of the Stipulation of Settlement, and administration of the
settlement and the distribution of the Settlement Fund, including but not
limited to adjudicating any disputes over whether someone is or is not an
Authorized Claimant or is or is not a Class Member or has or has not properly
calculated his or her actual damages. All parties hereto submit to the
jurisdiction of the Court for purposes of implementing, enforcing and
administering the settlement embodied in the Stipulation of Settlement.
I. Tax Election. The Settlement Fund shall be treated as a
"Qualified Settlement Fund" within the meaning of
<PAGE>28
Section 468B of the Internal Revenue Code and Treas. Reg. Section 1.468B
promulgated thereunder.
Dated: New York, New York
May 17, 1996
STULL, STULL & BRODY
By:________________________________
Jules Brody (JB9151)
Howard T. Longman, Esq. (HT2489)
Attorneys for Plaintiffs
6 East 45th Street
New York, New York 10017
(212) 687-7230
and
LAW OFFICES OF JOSEPH H. WEISS
By:______________________________
Joseph H. Weiss, Esq. (JW4534)
Moshe Balsam (MB0390)
Attorneys for Plaintiffs
319 Fifth Avenue
New York, New York 10016
(212) 532-4171
and
<PAGE>29
KAUFMAN, MALCHMAN, KAUFMANN
& KIRBY
By:__________________________
Roger Kirby (RK____)
Attorneys for Plaintiffs
919 Third Avenue
New York, New York 10022
(212) 371-6600
and
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
By:__________________________
Jeffrey Klafter, Esq. (JK0953)
Attorneys for Plaintiffs
1285 Avenue of the Americas
33rd Floor
New York, New York 10019
(212) 554-1400
and
KILGORE & KILGORE, INC.
By:____________________________
Roger Claxton, Esq.
Attorneys for Plaintiffs
3131 McKinney Avenue
Suite 800, LB 102
Dallas, TX 75204
(214) 969-9099
and
<PAGE>30
SCHOENGOLD & SPORN
By:_______________________________
Samuel P. Sporn, Esq. (SS 4444)
Joel P. Laitman, Esq. (JL8177)
Attorneys for Plaintiffs
233 Broadway
39th Floor
New York, New York 10279
(212) 964-0046
and
REID & PRIEST LLP
By:_________________________________
Richard P. Swanson, Esq. (RS6068)
Susan Logan Bedford, Esq. (SB7116)
Attorneys for the Murex
Defendants
40 West 57th Street
New York, New York 10019-4097
(212) 603-2000
and
WILLKIE FARR & GALLAGHER
By:_______________________________
Richard L. Klein, Esq. (RK0186)
Attorneys for the DeBartolo
Defendants
One Citicorp Center
153 East 53rd Street
New York, New York 10022-4677
(212) 935-8000
and
<PAGE>31
ARMEL, COHEN, STIEBER
By:________________________________
Deborah Berlach, Esq. (DB )
Attorneys for Murex Directors' and
Officers' Liability Insurance Carriers
55 University Avenue, Suite 800
Toronto, Ontario M5J 2K4
CANADA
(416) 368-1400
<PAGE>
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- ----------------------------------------X
IN RE INTERNATIONAL MUREX : Master File No:
TECHNOLOGIES CORPORATION : 93 Civ. 336 (JG)
SECURITIES LITIGATION :
- ----------------------------------------X
This document applies to : ALL ACTIONS
TABLE OF CONTENTS
I. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. Certification of the Proposed Class and Settlement . . . . . . . . . . 9
A. Class Certification . . . . . . . . . . . . . . . . . . . . . . . 9
B. Settlement Fund Amount . . . . . . . . . . . . . . . . . . . . . 9
C. No More than 20% of Settlement Fund
to Be in Stock . . . . . . . . . . . . . . . . . . . . . . . . . 9
<PAGE>49
III. Preliminary Approval Order and 23(e) Hearing . . . . . . . . . . . . . 10
A. Application for Preliminary Approval Order . . . . . . . . . . . 10
B. Contents of Preliminary Approval Order . . . . . . . . . . . . . 10
IV. The Final Order and Judgment. . . . . . . . . . . . . . . . . . . . . 13
A. Contents of the Final Order and Judgment . . . . . . . . . . . . 13
V. The Settlement Fund . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Payment of Settlement Fund . . . . . . . . . . . . . . . . . . . 15
B. Investment of the Cash Portion of the Settlement Fund Pending
Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . 16
C. Valuation of Murex Stock Portion of Settlement Fund . . . . . . . 16
D. Payment of Fees and Expenses . . . . . . . . . . . . . . . . . . 17
E. Administration of the Settlement . . . . . . . . . . . . . . . . 18
<PAGE>33
F. Distribution of Settlement Fund; Calculation of Each Authorized
<PAGE>50
Claimant's Settlement Share . . . . . . . . . . . . . . . . . . . 19
G. Return of Settlement Funds After Distribution . . . . . . . . . . 20
H. Opt-Outs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
VI. Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. Terms of Release . . . . . . . . . . . . . . . . . . . . . . . . 21
B. Checks to Be Marked in Full Satisfaction . . . . . . . . . . . . 22
VII. Plaintiffs' Fees, Expenses and Costs . . . . . . . . . . . . . . . . . 22
VIII. Conditions of Settlement, Effect of
Disapproval, Cancellation or Termination . . . . . . . . . . . . . . 23
A. Conditions of Effective Date; Opt Outs To Be Limited to
$1,000,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. Cancellation of Settlement . . . . . . . . . . . . . . . . . . . 24
C. Consequences of Termination or Non-Approval . . . . . . . . . . . 24
IX. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. No Admission . . . . . . . . . . . . . . . . . . . . . . . . . . 25
C. Incorporation of Exhibits . . . . . . . . . . . . . . . . . . . . 26
D. No Modification Except in Writing . . . . . . . . . . . . . . . . 26
E. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 26
<PAGE>51
F. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 26
G. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 27
H. Retention of Jurisdiction. . . . . . . . . . . . . . . . . . . . 27
I. Tax Election . . . . . . . . . . . . . . . . . . . 27
<PAGE>34
EXHIBITS
Exhibit A Preliminary Approval Order
Exhibit B Notice of Class Action Determination, Proposed Settlement,
and Hearing
Exhibit C Proof of Claim and Release and Substitute Form W-9
Exhibit D Summary Notice of Class Action Settlement and Hearing on
__________, 1996 (____ a.m.)
Exhibit E Urgent Communication
Exhibit F Final Order and Judgment
<PAGE>1
EXHIBIT A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - -x
: Master File No:
IN RE INTERNATIONAL MUREX : 93 Civ. 336 (JG)
TECHNOLOGIES CORPORATION :
SECURITIES LITIGATION : PRELIMINARY APPROVAL
: ORDER
- - - - - - - - - - - - - - - - - - -x
This document applies to: ALL ACTIONS
The parties having made application, pursuant to Rule 23(e) of the
Federal Rules of Civil Procedure, for an Order approving the settlement of
this action in accordance with a Stipulation of Settlement, dated December 18,
1995 (the "Stipulation of Settlement"), which, together with the exhibits
annexed thereto, sets forth the terms and conditions for a proposed settlement
of this action and for a dismissal of this action upon such terms and
conditions; and
The Court having read and considered the Stipulation of Settlement,
and the exhibits annexed thereto; and
The parties having consented to the entry of this Order; it is
ORDERED:
1. For purposes of this settlement only, this action shall proceed
as a class action on behalf of a class consisting of all persons and entities
that purchased International Murex Technologies Corporation ("Murex")
securities during the period
<PAGE>2
May 21, 1992 through August 19, 1992, inclusive (the "Class Period"), and who
were damaged thereby (the "Class"). Further, such Class shall contain a
Sub-Class consisting of all persons who purchased Murex securities
contemporaneously with the sales of stock by the individual defendants Edward
J. DeBartolo, Sr. and Edward J. DeBartolo, Jr. during the Class Period (the
"Sub-Class").
2. On or before _____________________, 1996, Murex or its
representative shall provide Plaintiffs' and Class counsel a list, if possible
in label or computer-receivable form, of the purchasers of Murex securities
during the Class Period.
3. On or before _____________________, 1996, Plaintiffs' and Class
counsel shall cause notice of this class action determination and of the
hearing on the proposed settlement and counsels' fee and expense application
to be given members of the Class as follows:
(a) A copy of the Notice of Class Action Determination,
Proposed Settlement, and Hearing (the "Notice"), together with a copy of the
proof of claim (the "Proof of Claim"), if applicable, substantially in the
form annexed as Exhibits B and C to the Stipulation of Settlement, shall be
mailed by first class mail to all persons appearing on the stock or transfer
records as owners of record of Murex securities during the Class Period at
their addresses listed on the stock or transfer records of Murex;
<PAGE>3
(b) A Summary Publication Notice (the "Summary Publication
Notice") substantially in the form annexed as Exhibit D to the Stipulation of
Settlement shall be published once in the national edition of The Wall Street
Journal; and
(c) A Letter to Nominees, substantially in the form annexed as
Exhibit E to the Stipulation of Settlement, shall be mailed by first class
mail to all banks, brokerage firms or other nominees (the "Nominees") shown by
the stock or transfer records of Murex to have purchased securities during the
Class Period, and the Claims Administrator shall use reasonable efforts to
obtain from all Nominees the names and addresses of their customers for whom
they purchased as Nominees Murex securities during the Class Period and to
cause a copy of the Notice, together with a copy of the Proof of Claim, to be
mailed by first class mail to each such person at the address provided
promptly after receipt of the name and address of each such person, or use
reasonable efforts (including offering to defray the reasonable cost of
effecting such mailings) to cause the Nominees to make such mailings.
(d) At or prior to the hearing provided for in Paragraph 6 of
this Order, Plaintiffs' and Class counsel shall file proof, by affidavit, of
such publications and mailings.
4. The Court approves the form of Notice, Proof of Claim, Summary
Publication Notice and Letter to Nominees and finds that the publication,
mailing and distribution of such notices substantially in the manner and form
set forth in
<PAGE>4
Paragraph 2 and all subparts thereto of this Order meet the requirements of
Rule 23 of the Federal Rules of Civil Procedure and due process; is the best
notice practicable under the circumstances; and shall constitute due and
sufficient notice to all persons entitled thereto.
5. Members of the Class shall be bound by all determinations and
judgments in this action whether favorable or unfavorable, unless such persons
shall mail by first class mail a written request for exclusion from the Class,
postmarked no later than _________________, 1996, addressed to the Claims
Administrator, David Berdon & Co., LLP, 415 Madison Avenue, New York, New York
10017. Such request for exclusion shall state the name and address of the
person seeking exclusion, number of shares and dates of acquisition and sale,
if any, of Murex securities owned or acquired during the period in question,
the names in which such Murex securities were registered, the expenses
incurred in purchasing and/or selling such securities, and shall state that
"the undersigned hereby requests to be excluded from the Murex International
Technologies Corporation Class." A request for exclusion from the Class shall
not be effective unless it is made in the manner and within the time provided
for herein. If a member of the Class requests to be excluded, he will not
receive any benefit provided for in the Stipulation of Settlement in the event
it is approved by the Court.
<PAGE>5
6. All members of the Class who do not request exclusion therefrom
in the manner provided in Paragraph 4 of this Order may, but need not, enter
an appearance in this action through counsel of their own choice. If they do
not enter an appearance, they will be represented by counsel for plaintiffs
and the Class, Stull, Stull & Brody, 6 East 45th Street, New York, New York
10017 and the Law Offices of Joseph H. Weiss, 319 Fifth Avenue, New York, New
York 10016.
7. A hearing (the "Hearing") shall be held before this Court on
_____________, 1996 at________o'clock in the ______ noon in Courtroom
_________ in the United States Courthouse, 225 Cadman Plaza East, Brooklyn,
New York (i) to determine whether the proposed settlement on the terms and
conditions provided for in the Stipulation of Settlement is fair, reasonable
and adequate and should be approved by the Court and whether a judgment as
provided in Article IV of the Stipulation of Settlement should be entered
thereon and (ii) to consider the applications of attorneys for plaintiffs and
the Class for award of fees and disbursements (including the fees of
plaintiffs' experts and accountants, if any) or, if such application is not
heard at the Hearing, to reserve jurisdiction and set a date for a subsequent
Hearing on such application.
8. Any member of the Class who has not requested exclusion
therefrom in the manner provided in Paragraph 4 of this Order may appear and
show cause, why the proposed settlement should not be approved as fair,
reasonable and adequate, why
<PAGE>6
plaintiffs' and Class counsel should not be awarded fees and disbursements,
including experts' and accountants' fees, as requested, or why a judgment
should not be entered thereon; provided, that no Class member or any other
person shall be heard or entitled to contest the approval of the terms and
conditions of the proposed settlement, the fees requested or, if approved, the
judgment to be entered thereon approving the same, unless on or before
________, 1996, that person or his counsel has served by hand or by
first-class mail a written notice of his intention to appear and object to the
proposed settlement together with any supporting written objections and copies
of any documents and briefs upon Stull, Stull & Brody, 6 East 45th Street, New
York, New York 10017 (Attention: Howard T. Longman, Esq.); Reid & Priest LLP,
40 West 57th Street, New York, New York 10019 (Attention: Richard P. Swanson,
Esq.); and Willkie Farr & Gallagher, One Citicorp Center, 153 East 53rd
Street, New York, New York 10022-4677 (Attention: Richard L. Klein, Esq.);
and filed said objections, documents and briefs, showing proof of due service
upon said counsel for plaintiff and the Class and said counsel for defendants,
with the Clerk of the United States District Court for the Eastern District of
New York, United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York;
and any member of the Class who does not make his objection in the manner
provided shall be deemed to have waived such objection and shall forever be
foreclosed from making any objection to the
<PAGE>7
fairness, reasonableness or adequacy of the proposed settlement as
incorporated in the Stipulation of Settlement.
9. Upon entry of a judgment approving the Stipulation of
Settlement and the settlement thereunder, all members of the Class who have
not requested exclusion shall conclusively be deemed to have withdrawn and
released, and shall be barred from asserting, in any action or proceeding, any
class or individual claim which has been or might have been asserted in the
Consolidated Action (as defined in the Stipulation of Settlement) in
connection with, arising out of the purchase of Murex stock and warrants
during the Class Period and in any way related to any acts, facts,
transactions or omissions set forth, alleged, embraced or otherwise referred
to in the Consolidated Action, including any claim for violation of federal,
state or other law, or of the common law, which said persons, or any of them,
had, now have or may hereafter have as a member of the Class or as an
individual against the defendants in this action, or any of them individually.
10. In order to be entitled to participate in the Net Distribution
Fund (as defined and provided for in the Stipulation of Settlement), a Class
member who has not requested exclusion from the Class must file a Proof of
Claim in the manner set forth below. Any Class member who does not file a
valid and timely Proof of Claim shall be barred from receiving any payments
out of the Net Distribution Fund pursuant to the Stipulation of Settlement but
shall in all other respects be bound by all of the
<PAGE>8
terms of the Stipulation of Settlement and any final judgment or other order
entered in this action.
11. The filing of Proofs of Claim shall be subject to the following
conditions:
(a) a Proof of Claim must be submitted by no later than
____________, 1996, unless otherwise ordered by the Court. Each Proof of
Claim received prior to Court approval of the distribution of the Net
Distribution Fund shall be deemed to have been filed when posted, if mailed by
first class mail or air mail, postage prepaid, and addressed in accordance
with the instructions given therein. Any Proof of Claim filed otherwise shall
be deemed to have been filed when it is actually received.
(b) a Proof of Claim must satisfy the following conditions:
(i) the Proof of Claim must be substantially complete and provide all the
information requested therein; (ii) the Proof of Claim must be properly
executed by each claimant; (iii) if the person executing the Proof of Claim is
acting in a representative capacity, the Proof of Claim must be accompanied by
proof of the authority of the representative to act on behalf of and to bind
the claimant; (iv) the Proof of Claim must be accompanied by a broker's
confirmation slip or account statement or a notarized statement from the
broker or other satisfactory proof of all acquisitions or dispositions of
Murex securities during the period in question; and (v) the Proof of Claim
must be filed in a timely manner in accordance with the provisions of this
Paragraph;
<PAGE>9
(c) by filing a Proof of Claim, each Authorized Claimant (as
defined in the Stipulation of Settlement) thereby submits to the jurisdiction
of the Court for purposes of this action and agrees that the Proof of Claim is
subject to investigation and discovery pursuant to the Federal Rules of Civil
Procedure and to such Authorized Claimant's status as an Authorized Claimant
and the allowable amount of the claim; and
(d) all issues of law and fact concerning Proofs of Claim
disputed in whole or in part shall be decided by the Court.
12. All Proofs of Claim shall be administered by the Claims
Administrator in accordance with reasonable procedures agreed to by counsel
for plaintiffs, the Class and counsel for the defendants.
13. The Hearing scheduled for , 1996, or any adjournment
thereof may be adjourned without further notice except as may be announced by
the Court at such Hearing, or any adjournment thereof.
14. All discovery and other pretrial proceedings in this action are
stayed and suspended until further order of the Court. Pending the final
determination of the fairness, reasonableness and adequacy of the proposed
settlement, no member of the Class may institute or commence any claim which
has been or could have been asserted in this Consolidated Action arising from
the purchase of Murex stock or warrants during the Class Period and any other
claim arising out of or in any way related
<PAGE>10
to any acts, fact, transactions, omissions or other subject matter set forth,
alleged, embraced or otherwise referred to in the Consolidated Action.
15. In the event the Stipulation of Settlement does not become
effective for any reason (as provided in the Stipulation of Settlement) the
Stipulation of Settlement shall become null and void and of no further force
and effect, and shall not be admitted into evidence, taken to be an admission
of liability or wrongdoing, used or referred to for any purpose whatsoever.
In such event, the Stipulation of Settlement and all negotiations and
proceedings relating thereto shall be withdrawn without prejudice as to the
rights of any and all parties thereto, who, subject to the provisions of
Articles VIII the Stipulation of Settlement, shall be restored to their
respective positions existing as of the date of the Stipulation of Settlement.
16. The Court reserves the right to approve the Stipulation of
Settlement with such modifications as the Court may deem just and proper, and
without further notice to members of the Class, and retains jurisdiction of
this action to consider
<PAGE>11
all further applications arising out of or connected with the proposed
settlement herein.
Dated: Brooklyn, New York
____________, 1996
----------------------------------
U.S.D.J.
ENTRY OF ORDER CONSENTED TO:
STULL, STULL & BRODY
By:___________________________
Jules Brody (JB9151)
Howard T. Longman (HT2489)
Attorneys for Plaintiffs
6 East 45th Street
New York, New York 10017
(212) 687-7230
and
LAW OFFICES OF JOSEPH H. WEISS
By:__________________________
Joseph H. Weiss (JW4534)
Moshe Balsam (MB0390)
Attorneys for Plaintiffs
319 Fifth Avenue
New York, New York 10016
(212) 532-4171
and
<PAGE>12
REID & PRIEST
By:___________________________
Richard P. Swanson (RS6068)
Susan Logan Bedford (SB7116)
Attorneys for the Murex
Defendants
40 West 57th Street
New York, New York 10019
(212) 603-2000
and
WILLKIE FARR & GALLAGHER
By:__________________________
Richard L. Klein (RK0186)
Attorneys for the DeBartolo
Defendants
One Citicorp Center
153 East 53rd Street
New York, New York 10022-4677
(212) 935-8000
<PAGE>1
EXHIBIT B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- ----------------------------------------X
IN RE INTERNATIONAL MUREX : Master File No:
TECHNOLOGIES CORPORATION : 93 Civ. 336 (JG)
SECURITIES LITIGATION :
- ----------------------------------------X
This document applies to : ALL ACTIONS
NOTICE OF CLASS ACTION DETERMINATION,
PROPOSED SETTLEMENT, AND HEARING
with respect to
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED INTERNATIONAL MUREX
TECHNOLOGIES CORPORATION ("MUREX") SECURITIES THROUGH MAY 21, 1992 AND
AUGUST 19, 1992, INCLUSIVE
Class Determination
By order of the United States District Court for the Eastern
District of New York, dated __________, 1996 and pursuant to Rule 23 of the
Federal Rules of Civil Procedure, you are hereby notified that the
above-captioned action ("Consolidated Action") has been certified as a class
action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, for
purposes of settlement only. The class consists of all persons and entities
that purchased securities of International Murex Technologies Corporation
("Murex") from May 21, 1992 through and including August 19, 1992 (the "Class
Period") and who were damaged thereby (the "Class" or "Class Members"). The
Class also includes a sub-
<PAGE>2
class consisting of all persons who purchased Murex securities
contemporaneously with the sale of stock by the Edward J. DeBartolo, Jr. and
Edward J. DeBartolo Sr. during the Class Period (the "Sub-Class"). Pursuant
to the Stipulation of Settlement, the members of the Sub-Class are to be
treated the same as members of the Class.
Proposed Settlement and Hearing
You are also notified that, pursuant to an Order of the United
States District Court for the Eastern District of New York (the "Court"),
filed ______________, 1996 and pursuant to Rule 23(e) of the Federal Rules of
Civil Procedure, a hearing will be held on _______________, 1996 (the "Hearing
Date") at __:__ _.m. in Room ___, United States Courthouse, 225 Cadman Plaza,
Brooklyn, New York, for the purpose of determining whether the terms of a
Stipulation of Settlement in the Consolidated Action dated December 18, 1995,
including the establishment of a Settlement Fund in the amount of Five Million
Four Hundred Thousand Dollars ($5,400,000) in cash and stock, is fair,
adequate and reasonable and should be approved by the Court, and in order to
fix the amount of plaintiffs' and the Class' attorneys' fees and disbursements
that shall be awarded and reimbursed (the "Hearing"). The Hearing may be
adjourned by the Court from time to time without any further notice.
<PAGE>3
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY.
YOU MAY BE ENTITLED TO RECEIVE A PAYMENT PURSUANT TO THE
PROPOSED SETTLEMENT DESCRIBED HEREIN.
Description of the Litigation
The following cases have been filed and are presently consolidated
and pending on the docket of the United States District Court for the Eastern
District of New York:
Miller v. International Murex Technologies Corporation, et al.,
Civil No. 93 Civ. 336 (E.D.N.Y.);
Werbowsky v. International Murex Technologies Corporation, et al.,
93 Civ. 442 (E.D.N.Y.);
Fishman v. International Murex Technologies Corporation, et al., 93
Civ. 667 (E.D.N.Y.); and
Wucick, et al. v. International Murex Technologies Corporation, et
al., 93 Civ. 1392 (E.D.N.Y.).
Plaintiffs seek damages on behalf of themselves and the Class Members. All of
the defendants have denied the substantive allegations and that their conduct
was unlawful or caused the Class any legally recoverable damage.
In the various complaints filed in this Consolidated Action, the
Plaintiffs have alleged that International Murex Technologies Corporation, C.
Robert Cusick, Richard D. Strayer, Jr., Edward J. DeBartolo, Sr. (now
deceased) and Edward J. DeBartolo, Jr. (the "Defendants") violated Section
10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder and that the
Defendants are liable for fraud, negligent misrepresentation and other related
claims as a consequence of making false or reckless statements to the
investing public primarily concerning four
<PAGE>4
matters: (i) FDA approval of Murex's rapid single use AIDS test product, (ii)
predictions of future earnings, (iii) prediction of earnings growth of the
Murex Diagnostic Limited division, a division of Murex, and (iv) 1992 first
quarter earnings, thereby causing damage by inflating stock prices, and
injuring plaintiffs through plaintiffs' reliance on these statements and on
the integrity of the market. Additionally, the plaintiffs have alleged that
two major shareholders, Edward J. DeBartolo Sr. and Edward J. DeBartolo Jr.,
sold a portion of their shares with the benefit of non-public information,
thereby benefitting from the artificially inflated stock price. The DeBartolo
shares were sold, in late July and early August of 1992, pursuant to demand
registration rights and a prospectus filed with the Securities and Exchange
Commission. In response, the Defendants have specifically denied these
allegations and have asserted various affirmative defenses to the plaintiffs'
claims.
The Court has not determined the merits of the claims or defenses,
and this Notice does not imply that there has been any finding of any
violation of law by any defendant or that recovery could be had in any amount
if the litigation is not settled.
Plaintiffs, by their attorneys, have made an investigation of the
law, facts and circumstances involved in the Consolidated Action. After
taking into account the likelihood that the case, if not settled now, will be
further protracted (including potential time-consuming appeals) and will
involve
<PAGE>5
complex issues of liability and damages, and further taking into account the
risks inherent in the litigation, counsel for the plaintiffs and the Class
have concluded that it would be in the best interests of the Class that the
Consolidated Action be settled in accordance with the terms of the Stipulation
of Settlement and that the proposed settlement is fair, reasonable and
adequate to all Class Members.
Defendants, while expressly denying any wrongdoing, have nonetheless
agreed to enter into the Stipulation of Settlement in order to put to rest all
controversy and to avoid the further expense, inconvenience and distraction
necessitated by further defense of the Consolidated Action. The proposed
settlement and this Notice are not be to construed as admissions of liability
of any kind whatsoever by any defendant.
Summary of the Proposed Settlement
In full settlement of all the claims in the Consolidated Action, the
Defendants have agreed to pay into a settlement fund $5,400,000 in cash and
stock (the "Settlement Fund"). No more than twenty percent of the total
Settlement Fund will be paid in Murex stock. Counsel for plaintiffs and the
Class, having conducted a thorough investigation of the facts, circumstances
and transactions relating to and surrounding the allegations of the
Consolidated Action, estimate that the Securities Damages are approximately
one-half of the out-of-pocket, market damages suffered by Class Members. The
settlement has been negotiated by attorneys for the plaintiffs and the Class
<PAGE>6
and by Defendants' attorneys in cognizance of the differing facts and
circumstances concerning liability, damages and risks of litigation, and
plaintiffs' and the Class' attorneys have concluded that the settlement
providing for such payments is fair, reasonable and adequate.
The Settlement Fund will be administered under the supervision of
the Court. Settlement administration expenses as well as legal fees, taxes,
if any, and disbursements of counsel for the plaintiffs and the Class will be
deducted from the Settlement Fund prior to distribution.
The Settlement Fund (remaining after deduction of administration
expenses, taxes, if any, legal fees and disbursements of the plaintiffs' and
the Class' attorneys as awarded by the Court) and any interest earned, shall
be distributed to Authorized Claimants based on a percentage of the Securities
Damages sustained by each of the Authorized Claimants. An Authorized
Claimant's settlement share shall be determined as follows:
1. Each Authorized Claimant shall be entitled to receive twenty-
seven percent (27%) of their Securities Damages, less their pro rata share of
Court-awarded attorney's fees and expenses, and their pro rata share of the
other expenses; and
2. If the total amount of Securities Damages claimed by the
Authorized Claimants is such that twenty-seven percent (27%) of such
Claimants' Securities Damages exceeds the amount of the Settlement Fund, then
each Authorized Claimant's settlement
<PAGE>7
share shall be reduced pro rata, after payment of the attorney's fees and
other expenses.
Any and all funds or assets remaining after administration of the
Settlement Fund, if any, will be returned to Murex.
Exclusions
If you wish to be excluded from the Class, you must mail by first
class mail a written request for exclusion from the Class postmarked no later
than _______________ 1996, addressed to the Claims Administrator, David Berdon
& Co., LLP, 415 Madison Avenue, New York, New York 10017. Such request for
exclusion must state your name and address, number of securities, dates of
acquisition and sale of Murex securities owned or acquired during the periods
in question, cost of acquiring such securities and the names in which such
securities were registered, and state that "the undersigned hereby requests to
be excluded from the International Murex Technologies Class." A request for
exclusion from the Class shall not be effective unless it is made in the
manner and within the time provided for herein. However, pursuant to Rule
23(c)(2)(C) of the Federal Rules of Civil Procedure, if you do not request
exclusion from the Class you may still enter your own appearance by counsel of
your choice. Otherwise, you will be represented by counsel for the Class
representatives. If a member of the Class requests to be excluded, he will
not receive any benefit provided for in the
<PAGE>8
Stipulation of Settlement in the event it is approved by the Court.
All Class Members who do not request to be excluded from this
Consolidated Action will continue to be members of the Class, will be
represented by plaintiffs in this Consolidated Action and by their attorneys
including co-lead counsel Stull, Stull & Brody, 6 East 45th Street, New York,
New York 10017 and the Law Offices of Joseph H. Weiss, 319 Fifth Avenue, New
York, New York 10016, and will be bound by the judgment of this Court, whether
favorable or unfavorable to the Class.
If the settlement is approved, the Court will enter final judgment
dismissing the Consolidated Action with prejudice and releasing and
discharging all defendants from all claims which were or could have been
asserted in the Consolidated Action concerning the matters complained of in
the Consolidated Action.
Appearance at Hearing
Any Class Member who has not filed a timely request for exclusion
from the Class may appear at the hearing in person or by counsel if he so
desires and show cause, if he has any, why the settlement should not be
approved and why this Consolidated Action should not be dismissed with
prejudice as settled.
No such person shall be heard, however, unless he or his counsel
shall first file a written notice of his intention to appear and object to the
proposed settlement, together with any supporting written objections,
documents and briefs in support of his position. Such objections and
supporting documents and
<PAGE>9
briefs will only be considered by the Court if they are filed with the Clerk
of the Court no later than _______________, 1996, showing due proof of service
on Stull, Stull & Brody, 6 East 45th Street, New York, New York 10017
(Attention: Howard T. Longman); Reid & Priest LLP, 40 West 57th Street, New
York, New York 10019 (Attention: Richard P. Swanson); and Willkie Farr &
Gallagher, One Citicorp Center, 153 East 53rd Street, New York, New York
10022-4677 (Attention: Richard L. Klein).
Any Class Member who does not make and serve his written objections
in the manner provided above shall be deemed to have waived any objection and
shall be forever foreclosed from making objections (by appeal or otherwise) to
the proposed settlement.
Final Judgment and Release
In the event the Court approves the proposed settlement, a final
judgment will be entered in the Consolidated Action dismissing the same as to
all defendants on the merits and with prejudice as against plaintiffs and the
Class. When such judgment shall be final and no longer subject to appeal in
the Consolidated Action, all defendants shall without further act by any
person be released from, and each and every Class Member and Sub-Class Member
who has not requested exclusion from the Class shall be permanently barred and
enjoined from, instituting or prosecuting (directly, indirectly or
derivatively), any claim, demand, right or cause of action which has been,
could have been, or in the future might have been asserted by plaintiffs and
Class
<PAGE>10
Members or any of them in connection with or arising out of the purchase of
Murex securities and any of the acts, omissions, misrepresentations, events,
matters, transactions or occurrences complained of in the Consolidated Action.
Attorneys' Fees and Disbursements
In connection with the proposed settlement, counsel for plaintiffs
and the Class intend to apply to the Court for a for an award of attorneys'
fees incurred in connection with prosecuting the Consolidated Action, in an
amount not to exceed one million eight hundred thousand dollars ($1,800,000),
as well as for reimbursement for expenses, including the fees of experts and
consultants in an amount not to exceed two hundred thousand dollars
($200,000). If the settlement is approved by the Court, that the Court will
award counsel fees and reimbursement of disbursements to plaintiffs' and the
Class' counsel in amounts deemed to be fair and reasonable by the Court. Such
fees and expenses as the Court may award shall be paid out of the Settlement
Fund in cash and Murex stock in the same proportion that Authorized Claimants
receive payment. The amount of fees and disbursements eventually to be
awarded to counsel for plaintiffs and the Class shall be determined by the
Court at the Hearing (or any adjournment thereof) to consider whether the
terms of the proposed settlement are fair, reasonable and adequate.
<PAGE>11
Addresses of Class Members and Inquiries
The address to which this Notice was sent is your last address as
shown in the records of the transfer agent of Murex or of the nominee in whose
name your securities were registered. If the address on the envelope mailed
to you was incorrect or if you move to a new address after receiving this
Notice, please supply your new address to: Claims Administrator, David Berdon
& Co., LLP 415 Madison Avenue, New York, New York 10017.
Inquiries concerning this Notice or the litigation may be addressed
in writing to the attorneys for plaintiffs and the Class:
STULL, STULL & BRODY
6 East 45th Street
New York, New York 10017
(Attention: Howard T. Longman, Esq.)
Telephone: (212) 687-7230
and/or
THE LAW OFFICES OF JOSEPH H. WEISS
319 Fifth Avenue
New York, New York 10016,
(Attention: Joseph H. Weiss, Esq.)
Telephone: (212) 532-4171
Proofs of Claim
Each member of the Class and Sub-Class who desires to assert a claim
for recovery from the Net Distribution Fund must submit a properly executed
Proof of Claim form ("Proof of Claim"), one of which is enclosed herewith,
supported by such documents as are designated therein.
<PAGE>12
The Proof of Claim must be mailed to:
Murex Securities Litigation
David Berdon & Co., LLP
415 Madison Avenue
New York, New York 10017
All Proofs of Claim must be postmarked by ___________,
1996. Any Class or Sub-Class Member who fails to file a valid and timely
Proof of Claim within such period may be barred from receiving any payments
out of the Settlement Fund pursuant to this settlement but shall in all other
respects be bound by all of the terms of the Stipulation of Settlement and any
final judgment or other order entered in this Consolidated Action.
A Proof of Claim shall be deemed to have been filed when posted, if
mailed by first class mail or air mail, postage prepaid, and addressed in
accordance with the instructions given therein. Any Proof of Claim filed
otherwise shall be deemed to have been filed when it is actually received.
Submission of a Proof of Claim shall not constitute a waiver of a Class
Member's right to object to the settlement, to the application for counsel
fees and disbursements, or to any other matter pertaining to the settlement
and the application. In order to be valid, a Proof of Claim must be
substantially complete and provide all the information requested therein, must
be properly executed by each claimant and, if the person executing the Proof
of Claim is acting in a representative capacity, the Proof of Claim must be
accompanied by appropriate proof of the authority of the representative.
<PAGE>13
Each member Class and Sub-Class who files a Proof of Claim thereby
submits to the jurisdiction of the Court for purposes of the Consolidated
Action.
Any person submitting a Proof of Claim may be required to furnish
such additional documentation as Defendants' counsel or their designee deem
appropriate, including evidence of beneficial ownership, proof of purchase of
Murex securities and the date of sale of such securities. Such information or
any other information as may reasonably be required to establish the
claimant's right to participate in the Settlement Fund can be called for by
Defendants' counsel or their designee.
A Class or Sub-Class member who has not personally received a Proof
of Claim in the mail or desires additional copies thereof may obtain the same
by requesting them in writing addressed to: David Berdon & Co., LLP, 415
Madison Avenue, New York, New York 10017, or may photocopy and use blank Proof
of Claim forms received by other Class Members.
Notice to Brokers and Other Nominees
The Court requests each brokerage firm and other nominee in whose
name any member of the Class may have held Murex securities promptly either
(a) to send a copy of this Notice and the Proof of Claim to each such Class
Member and furnish written confirmation thereof to the Claims Administrator at
the address given below, or (b) to furnish the Claims Administrator with the
names and addresses of each such Class Member by writing to David Berdon &
Co., LLP, 415 Madison Avenue, New York, New York 10017.
<PAGE>14
Adequate quantities of the Notice and Proof of Claim will be mailed to you at
your request.
Examination of Papers
The foregoing is only a summary of the litigation, the claims and
defenses asserted therein and the settlement and matters related thereto. For
a more detailed statement of the matters involved in this Consolidated Action,
reference is made to the Stipulation of Settlement and documents incorporated
therein and to the pleadings and the other papers filed in the Consolidated
Action, all of which are on file and may be inspected during regular business
hours at the office of the Clerk of the United States District Court, Eastern
District of New York, United States Courthouse, 225 Cadman Plaza East,
Brooklyn, New York, 11201. Any questions that any person to whom this Notice
is addressed may have with respect thereto or with respect to the Proof of
Claim or the Consolidated Action generally may be directed to Lead Counsel,
Stull, Stull & Brody, 6 East 45th Street, New York, New York 10017 and/or to
the Law Offices of Joseph H. Weiss, 319 Fifth Avenue, New York, New York
10016, and should not be addressed to the Court.
<PAGE>15
The sending of this Notice is not to be construed as an expression
of any opinion by the Court as to the merits of the case.
Dated: Brooklyn, New York
____________, 1996
BY ORDER OF THE COURT
----------------------------------
Clerk
<PAGE>1
EXHIBIT C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- ----------------------------------------X
IN RE INTERNATIONAL MUREX : Master File No:
TECHNOLOGIES CORPORATION : 93 Civ. 336 (JG)
SECURITIES LITIGATION :
- ----------------------------------------X
PROOF OF CLAIM AND
RELEASE AND SUBSTITUTE FORM W-9
NOTE: YOU SHOULD NOT COMPLETE THIS FORM UNLESS YOU PURCHASED COMMON
STOCK OR WARRANTS OF INTERNATIONAL MUREX TECHNOLOGIES CORPORATION ("MUREX")
DURING THE PERIOD FROM MAY 21, 1992 THROUGH AUGUST 19, 1992, INCLUSIVE. IF
YOU DID SO, YOU ARE A "CLASS MEMBER" ENTITLED TO PARTICIPATE IN THE SETTLEMENT
OF THE ABOVE-CAPTIONED CLASS ACTION (THE "LITIGATION"). (Excluded from the
Class are Defendants, members of the immediate families of the individual
defendants, subsidiaries, affiliates, officers and directors of Murex and
entities it controls, and successors, heirs and assigns of the Defendants.)
PURSUANT TO THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF NEW YORK ("THE COURT") DATED ________________, 1996, IN ORDER TO
RECEIVE ANY PAYMENTS TO WHICH YOU MAY BE ENTITLED AS A CLASS MEMBER, YOU MUST
COMPLETE AND SIGN
<PAGE>2
THIS PROOF OF CLAIM, AND MAIL IT BY PRE-PAID, FIRST-CLASS MAIL, POSTMARKED NO
LATER THAN _____________ __, 1996, TO THE FOLLOWING ADDRESS:
David Berdon & Co., LLP
415 Madison Avenue
New York, New York 10017
IF YOU FAIL TO SUBMIT YOUR CLAIM BY ____________ __, 1996 YOUR CLAIM MAY BE
REJECTED AND THIS MAY PRECLUDE YOU FROM RECEIVING ANY MONEY IN CONNECTION WITH
THE SETTLEMENT OF THIS LITIGATION. A Proof of Claim will be deemed submitted
when postmarked, or, if submitted other than by first-class mail, on the date
actually received.
I. IDENTITY OF CLAIMANT
Name of Claimant(s):____________________________________________
________________________________________________________________
Address: _______________________________________________________
City: _________________ State: ________________ Zip Code: _____
<PAGE>3
County: ________________________________________________________
____ Individual ____ Corporation ____ Estate ____ Other (Specify)
(___) ___________________________
Area Code Telephone Number (Day)
(___) ___________________________
Area Code Telephone Number (Evening)
<PAGE>4
II. SUBSTITUTE FORM W-9 REQUEST FOR
TAXPAYER IDENTIFICATION NUMBER
Enter your taxpayer identification number below. For most individuals,
this is your Social Security number. The Internal Revenue service requires
your taxpayer identification number. If you fail to furnish your correct
taxpayer identification number, a percentage of your distributive share of the
Settlement Fund will be withheld.
Social Security Number: ________________________________________
(for individuals)
OR
Employer Identification Number: ________________________________
(for estates, trusts, corporations, etc)
NOTE: A copy of the Instructions for Completing Substitute Form W-9 and a
description of payees subject to or exempt from the backup withholding
requirements are included as part of the Notice accompanying this Proof of
Claim.
III. PROOF OF CLAIM
By submitting this Proof of Claim, I state that I believe in good faith
that I am a member of the Settlement Class as defined in the Notice of Class
Action Determination, Proposed Settlement and Hearing ("Notice"), or am acting
for such person; that I have read and understood the contents of the Notice;
and that I am not and am not acting for Murex, subsidiaries or affiliates of
Murex, any officer or director of Murex, the individual defendants, any
members of the immediate families of the individual defendants,
<PAGE>4
or legal representatives, estates, successors or assigns of any of the
Defendants; that I have not filed a request for exclusion, seeking to be
excluded from the class; that I believe that I am entitled to receive a share
of the Settlement Fund; and that I desire the participate in the proposed
Settlement described in the Notice.
IV. I have enclosed photocopies or facsimiles of the stockbroker's
confirmation slips or other documents evidencing each purchase and sale listed
below in support of my claimed loss (IF ANY SUCH DOCUMENTS ARE NOT IN YOUR
POSSESSION, PLEASE OBTAIN COPIES, FACSIMILES OR EQUIVALENT CONTEMPORANEOUS
DOCUMENTS FROM YOUR BROKER. THESE DOCUMENTS ARE NECESSARY TO PROVE AND
PROCESS YOUR CLAIM.)
V. I understand that the information contained on this Proof of Claim is
subject to such verification as the Court may direct and I agree to cooperate
in any such verification. I further agree and understand that if the proposed
Settlement is approved by the Court and becomes effective, all claims against
any or all defendants or certain other persons which have been or could have
been asserted relating to the subject matter of the Litigation will be
satisfied, discharged and extinguished forever.
VI. My signature hereto constitutes a full and complete release, remise and
discharge by me or, if I am submitting this Proof of Claim on behalf of a
corporation, a partnership, estate or one or more other persons, by it, him,
her or them, and by my, its, his,
<PAGE>5
her or their heirs, executors, administrators, predecessors, successors,
affiliates and assigns, and each of them, of Murex, C. Robert Cusick, Richard
D. Strayer, Jr., Edward J. DeBartolo, Jr., Edward J. DeBartolo, Sr. and the
estate of Edward J. DeBartolo, Sr. (including their respective past or present
spouses, heirs, trustees, executors, administrators, assigns, estates,
trustees, directors, partners, principals, agents, attorneys, accountants,
insurers, subsidiaries, parents, affiliates, predecessors or successors), and
each of them, of and from any and all manner of actions and causes of actions,
suits, obligations, claims, debts, demands, agreements, promises, liabilities,
controversies, costs, expenses, and attorneys' fees whatsoever, whether in law
or in equity and whether based on any federal law, state law, or common law
right of action or otherwise, foreseen or unforeseen, matured or unmatured,
known or unknown, accrued or not accrued, which I or the members of the Class
in the Litigation, or any of them, ever had, now have, or can have, or shall
or may hereafter have, either individually, or as a member of a class, by
reason of, based upon, arising from or in any way related to, the purchase of
Murex Stock or warrants during the Class Period and the alleged acts, failures
to act, omissions, misrepresentations, facts, events, transactions,
statements, occurrences, or other subject matter involved in the Litigation
including without limitation any allegations of alleged misstatements or non-
disclosures relating to, among other things, (i) FDA approval of Murex's rapid
single use AIDS test
<PAGE>6
product; (ii) predictions of future earnings; (iii) prediction of earnings
growth of the Murex Diagnostic Limited division, a division of Murex; (iv)
1992 first quarter earnings, thereby causing damage by inflating stock prices,
and injuring plaintiffs through plaintiffs' reliance on these statements and
on the integrity of the market and (v) any other factual allegations that were
set forth in the various complaints or which otherwise were the subject of
discovery in this Litigation. I covenant not to make any demand or claim, or
commence, prosecute, cause or permit to be prosecuted, any action at law or in
equity, or any proceeding of any description against any of the Defendants
(including their respective past or present spouses, heirs, executors,
administrators, assigns, estates, trustees directors, partners, principals,
agents, attorneys, accountants, insurers, subsidiaries, parents, affiliates,
predecessors or successors), based in whole or part upon, arising from or in
any way related to purchase of Murex stock or warrants during the Class Period
and to the alleged acts, failures to act, omissions, misrepresentations,
facts, events, transactions, statements, occurrences, or other subject matter
involved in the Litigation including without limitation any allegations or
alleged misstatements or non-disclosures relating to, among other things, (i)
FDA approval of Murex's rapid single use AIDS test product; (ii) predictions
of future earnings; (iii) prediction of earnings growth of the Murex
Diagnostic Limited division, a division of Murex; (iv) 1992 first quarter
earnings, thereby causing damage
<PAGE>7
by inflating stock prices, and injuring plaintiffs through plaintiffs'
reliance on these statements and on the integrity of the market and (v) any
other factual allegations that were set forth in the various complaints or
which otherwise were the subject of discovery in this Litigation.
VII. STATEMENT OF CLAIM
A. Shares Purchased: Claimant(s) made the following purchases of Murex
common stock during the period from May 21, 1992 through August 19, 1992,
inclusive. The date of purchase is defined as the trade date as opposed to
the settlement date. (If you have acquired any Murex common stock that had
been purchased during the Class Period by gift, inheritance, or operation of
law, you are to report this transaction as if you acquired the stock at the
same time and at the same cost as the person who purchased the stock.)
Date(s) of Aggregate
Purchase Cost
(List Chrono- Number of Purchase (including
logically) Shares Price Per commissions,
Month/Day/Year Purchased Share taxes and fees)
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
<PAGE>8
B. Shares Sold: Of the stock listed above in Section VII(A)
Claimant(s) sold the following shares of Murex common stock on or before
August 19, 1992. (The date of sale is defined as the trade date as opposed to
the settlement date.):
Date(s) of
Sale Amount Realized
(List Chrono- Number Selling (net of commis-
logically) of Shares Price Per sions, taxes
Month/Day/Year Sold Share and fees)
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
C. Shares Held
Claimant(s) held ____ shares of Murex common stock on August 19,
1992. If none were owned as of that date, state "none".
D. Warrants Purchased: Claimant(s) made the following purchases of
Murex warrants during the period from May 21, 1992 through August 19, 1992,
inclusive. The date of purchase is defined as the trade date as opposed to
the settlement date. (If you have acquired any Murex warrants that had been
purchased during the Class Period by gift, inheritance, or operation of law,
you are to report this transaction as if you acquired the stock at the same
time and at the same cost as the person who purchased the stock.):
<PAGE>9
Date(s) of Aggregate
Purchase Cost
(List Chrono- Number of Purchase (including
logically) Warrants Price Per commissions,
Month/Day/Year Purchased Warrant taxes and fees)
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
E. Warrants Sold: Of the warrants listed above in Section VII(D)
Claimant(s) sold the following Murex warrants on or before August 19, 1992.
(The date of sale is defined as the trade date as opposed to the settlement
date.):
Date(s) of
Sale Amount Realized
(List Chrono- Number of Selling (net of commis-
logically) Warrants Price Per sions, taxes
Month/Day/Year Sold Warrants and fees)
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
______________ _________ $________ $______________
F. Warrants Held
Claimant(s) held ____ Murex warrants on August 19, 1992. If none
were owned as of that date, state "none".
<PAGE>10
VIII. CERTIFICATION
UNDER THE PENALTIES OF PERJURY, I (WE) CERTIFY THAT ALL OF THE
INFORMATION PROVIDED IN THIS FORM IS TRUE, CORRECT AND COMPLETE. I (We)
certify that I am (we are) NOT subject to backup withholding under the
provisions of Section 3406(a)(1)(c) of the Internal Revenue Code. (NOTE: If
you have been notified by the Internal Revenue Service that you are subject to
backup withholding strike out the word "NOT" in the preceding sentence.) If I
am signing on behalf of someone else, I hereby certify and warrant that I am
authorized to make this Proof of Claim. I hereby certify and warrant that I
have not previously sold, transferred or assigned or granted any interest in
any of the claims released hereby (as set forth at paragraph VI above) to any
other person or entity.
Signature of Claimant(s)
(If this claim is being made on
behalf of joint claimants, each
must sign.)
_______________________________
(Signature)
_______________________________
(Signature)
Date: _________________________
THIS PROOF OF CLAIM MUST BE SUBMITTED NO LATER THAN _________,
1996 AND MUST BE MAILED TO:
Murex Securities Litigation
David Berdon & Co., LLP
415 Madison Avenue
New York, New York 10017
<PAGE>1
EXHIBIT D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- ----------------------------------------X
IN RE INTERNATIONAL MUREX : Master File No:
TECHNOLOGIES CORPORATION : 93 Civ. 336 (JG)
SECURITIES LITIGATION :
- ----------------------------------------X
This document applies to : ALL ACTIONS
SUMMARY NOTICE OF
CLASS ACTION SETTLEMENT AND HEARING ON
____________, 1996 (____ .m.)
TO: All persons who during the period May 12, 1992 to August 19,
1992, inclusive, purchased or otherwise acquired securities of
International Murex
Technologies Corporation ("Class Action").
A hearing will be held on __________, 1996 at _____ in Courtroom
_____, in the United States District Court, Eastern District of New York, 225
Cadman Plaza, Brooklyn, New York 11201. The purpose of the hearing will be to
determine (1) certifying the litigation as a Class Action; (2) whether the
proposed settlement of the Class Action as against Defendants for $5,400,000
in cash and stock, should be approved by the Court as fair, reasonable, and
adequate; (3) whether the plan of allocation for the distribution of the
Settlement Fund should be approved as fair and reasonable; and (4) whether the
applications of plaintiff's and Class's counsels for an award of attorneys'
fees, expert fees and expenses should be granted.
<PAGE>2
If you purchased International Murex Technologies securities on or
between May 12, 1992 and August 1992 and have not already receive the Notice
of Class Action Determination, Proposed Settlement and Hearing (the "Notice"),
and/or Proof of Claim, please request copies by writing to:
David Berdon & Co., LLP
415 Madison Avenue
New York, New York 10017
The Notice and Proof of Claim contain important information about the
litigation, including the steps you must now take to share in a settlement if
it is approved. Proofs of Claim must be postmarked by _____________, 1996.
You may be heard personally or through an attorney at the hearing if you file
papers requesting to do so and setting forth your views by ____________, 1996,
with the Court and with counsel for the parties: Stull, Stull & Brody, 6 East
45th Street, New York, New York 10017 (Attention: Howard T. Longman, Esq.);
Reid & Priest LLP, 40 West 57th Street, New York, New York 10019 (Attention:
Richard P. Swanson, Esq.); and Willkie Farr & Gallagher, One Citicorp Center,
153 East 53rd Street, New York, New York 10022-4677 (Attention: Richard L.
Klein, Esq.). Please do not contact the Court for information.
Dated: As of _____________, 1996
By Order of the Court
______________________________
Clerk
<PAGE>1
EXHIBIT E
URGENT COMMUNICATION
DATE
TO: ALL BROKERAGE FIRMS, BANKS, INSTITUTIONS AND OTHER
ENTITIES WHICH HELD AS NOMINEES SHARES OF INTERNATIONAL
MUREX TECHNOLOGIES CORPORATION SECURITIES AT ANY TIME
FROM MAY 21, 1992 TO AND INCLUDING AUGUST 19, 1992,
INCLUSIVE
RE: In Re International Murex
Technologies Corporation
Securities Litigation
93 Civ. 336 (E.D.N.Y.)
Gentlemen:
We are enclosing copies of a Notice of Class Action Determination,
Proposed Settlement, and Hearing with respect to the above-entitled class
action and a Proof of Claim form for eligible claimants. The persons eligible
to submit the enclosed Proof of Claim form are persons who purchased
International Murex Technologies Corporation ("Murex") securities at any time
from May 21, 1992 to and including August 19, 1992 (the "Class Period"). If
you held Murex securities during the Class Period as nominee for any such
persons, they are or may be eligible to file Proofs of Claim and to share in
the Settlement Fund.
In order to assure distribution of the Notice and Proof of Claim
form to as many eligible claimants as possible, we would request that within
10 days you either mail copies of the Notice and Proof of Claim directly to
all persons for whom you held as nominee Murex securities during the Class
Period as reflected by your records, or provide us with a list of the names
and addresses of such persons, in which case we will undertake to mail them
copies of the Notice and Proof of Claim. We will be happy to provide you with
additional copies of the Notice and Proof of Claim upon request.
Claims Administrator will, upon request, reimburse you for your
reasonable out-of-pocket expenses incurred in identifying possible claimants,
forwarding the Notice and Proof of Claim to such persons or supplying us with
the names and addresses of such persons. If you mail the Notice and Proof of
Claim directly, or if you have no record of ownership, purchases, sales or
tenders as nominee on behalf of beneficial owners of Murex securities during
the Class Period, we would appreciate being so informed.
<PAGE>2
Questions can be directed to the undersigned at David Berdon & Co.,
LLP, 415 Madison Avenue, New York, New York 10017.
If any case, we would appreciate your responding to this letter by
completing and returning to us the enclosed card. Thank you for your
cooperation.
Very truly yours,
Enclosures
<PAGE>3
[Form of Broker Search Card]
RE: In Re International Murex
Technologies Corporation
Securities Litigation
93 Civ. 336
We have no records of having owned, held or purchased Murex
securities as nominee for third parties during the Class Period
described in the Notice accompanying your letter of
_________________, 1996.
We have records of having owned, held or purchased Murex securities
as nominee for third parties during the Class Period described in
the Notice accompanying your letter of _____________, 1996 and will
undertake to mail copies of the Notice and Proof of Claim to such
periods. In this regard, please supply us with copies of the Notice
and Proof of Claim and send materials to:
______________________________ at ______________________________
(Name of Person) (Address)
We have records of having owned, held or purchased Murex securities
as nominee for third parties during the Class Period described in
the Notice accompanying your letter of ___________, 1996 and will
provide you with a list of such periods. In order to make
arrangements to obtain the list of names and addresses, please
contact:
______________________________ at ______________________________
(Name of Person) (Address)
Name, address and telephone number of responding broker or other nominee:
Name: _________________________________________________________
Address: ______________________________________________________
Tel. No.: ______________________________________________________
Date:
<PAGE>1
EXHIBIT F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - -x
: Master File No:
IN RE INTERNATIONAL MUREX : 93 Civ. 336 (JG)
TECHNOLOGIES CORPORATION :
SECURITIES LITIGATION : FINAL ORDER AND JUDGMENT
:
- - - - - - - - - - - - - - - - - - -x
This document applies to: ALL ACTIONS
The parties having made application, pursuant to Rule 23(e) of the
Federal Rules of Civil Procedure, for an Order approving the settlement of
this action in accordance with a Stipulation of Settlement dated ____________,
1996 (the "Stipulation of Settlement"), which, together with the exhibits
annexed thereto, sets forth the terms and conditions for a proposed settlement
of these consolidated actions (collectively, the "Consolidated Action") and
for a dismissal of the Consolidated Action upon such terms and conditions; and
The Court having read and considered the Stipulation of Settlement,
the exhibits annexed thereto; and
The Court having held a hearing, pursuant to Rule 23(e) of the
Federal Rules of Civil Procedure, to consider the fairness and adequacy of the
settlement and having found the settlement to be reasonable and adequate; and
The parties having consented to the entry of this Judgment; it is
<PAGE>2
ORDERED, ADJUDGED AND DECREED that,
1. The Court has jurisdiction over the subject matter of this
Consolidated Action and over all parties to the Consolidated Action, including
all members of the Class and Sub-Class as defined below;
2. The definition of terms set forth in the Stipulation of
Settlement, dated ____________, 1996 and in the Preliminary Approval Order
entered by this Court on ___________, 1996, are hereby incorporated herein as
through fully set forth in this Order and Judgment;
3. The Court hereby approves the settlement as set forth in the
Stipulation of Settlement and finds the terms thereof to be fair, reasonable
and adequate. The parties are authorized to enter into and consummate the
transactions provided for by the Stipulation of Settlement. The class shall
consist of all persons and entities that purchased International Murex
Technologies Corporation ("Murex") securities during the period May 21, 1992
through August 19, 1992, inclusive (the "Class Period"), and who were damaged
thereby (the "Class"). Such Class shall also contain a sub-class consisting
of all persons who purchased Murex securities contemporaneously with the sales
of Murex stock by the individual defendants Edward J. DeBartolo, Sr. and
Edward J. DeBartolo, Jr. during the Class Period (the "Sub-Class"), provided,
however, that the Class and the Sub-Class shall not include
________________________________, each of whom has submitted valid and timely
requests for exclusion pursuant to
<PAGE>3
the terms and procedures of the Notice of Class Action Determination, Proposed
Settlement and Hearing, dated _____________, 1996 and who are not bound by
this Order and Judgment;
4. Neither this Order and Judgment, the Stipulation of Settlement,
nor the settlement are an admission or indication by the Defendants, or any of
them, of the validity of any claims in this Consolidated Action or of any
liability or wrongdoing by them or any of them of any violation of law; the
Order and Judgment, Stipulation of Settlement and settlement are not a
concession and shall not in any way be used as an admission or indication with
respect to any claim of any wrongdoing, fault, or omission by any Defendant or
any other person in connection with any transaction or occurrence or any
statement, release, or written document issued, filed, or made; and neither
this Order and Judgment, the Stipulation of Settlement, nor the settlement,
nor any related document, proceeding, or action, nor any reports or accounts
thereof, shall be offered in evidence in any civil, criminal or administrative
action or proceeding other than such proceedings as may be necessary to
consummate or enforce this Order and Judgment, the Stipulation or the
settlement except that Defendants may file and use the Stipulation of
Settlement and/or the Order and Judgment in any action that may be brought
against them in order to support a defense or counterclaim based on principles
of res judicata, collateral estoppel, release, good faith settlement, judgment
bar or reduction or any other theory
<PAGE>4
of claim preclusion or issue preclusion or similar defense or counterclaim;
5. This Court hereby dismisses this Consolidated Action on the
merits and with prejudice against all persons and entities who are members of
the Class, except for those persons requesting exclusion from the Class,
listed in paragraph 3 hereof, (and all persons acting or purporting to act on
their behalf), and in favor of each and all of the Defendants, and without
costs to any of the parties as against any other settling party, except as
provided in the Stipulation of Settlement;
6. All persons and entities who are members of the Class, and each
Class Member's issues, heirs, spouses, representatives, successors, and
assigns, (and all persons acting or purporting to act in their behalf), are
hereby barred and permanently enjoined from prosecuting, commencing, or
continuing any claims, causes of action, damages and liability of any kind,
nature, and character whatsoever in law, equity, or otherwise, known or
unknown, suspected or unsuspected, that now exist, may exist, or heretofore
existed, arising out of, related to, connected with, or based in whole or in
part on (1) the purchase of Murex Stock or warrants during the Class Period,
and (2) the matters set forth in the Consolidated Action, and all other claims
and causes of action that have or have been or could be asserted by reasons
of, or with respect to, or in connection with, or that arise out of, or that
relate in any way to any of these matters, including all pendant state law
claims, including
<PAGE>5
each Defendant in this Consolidated Action and his/its present and former
officers, directors, agents, attorneys, accountants, insurers, estates,
executors, trustees, reinsurers, personal representatives, spouses, issues,
heirs, successors, assigns, parent corporation, subsidiaries, divisions and
affiliates, trusts, or entities controlled by him/it; and all Class Members
(and all persons purporting to act in their behalf), shall be conclusively
deemed to have released and discharged any and all of the above persons of and
from any and all such claims, whether or not they have filed a Proof of Claim;
7. The Court hereby approves the formula for distribution set
forth in the Stipulation of Settlement;
8. The Court hereby finds, pursuant to Section 3(a)(10) of the
Securities Act of 1933, that the stock to be issued by Murex in accordance
with the Stipulation of Settlement will be issued in exchange for the claims
of the Class and Sub-Class and is exempt from registration; and that the terms
and conditions of such issuance are fair to the Class and Sub-Class.
9. The notice given to the Class in the form annexed to the
Stipulation of Settlement as Exhibits B, D and E, which sets forth the
principal terms of the Stipulation of Settlement and other matters set forth
herein, was the best notice practicable under the circumstances, including
publication of a summary notice and individual notice to all members of the
Class or Murex stockholders of record during the Class Period, who could be
identified through reasonable efforts. Said notices
<PAGE>6
provided due and adequate notice of these proceedings and of the matters set
forth therein, including the settlement set forth in the Stipulation of
Settlement, to all persons entitled to such notice, and said notice fully
satisfied the requirement of Rule 23 of the Federal Rules of Civil Procedure
and the requirements of due process;
10. Class and Plaintiffs' counsel are awarded fees of $__________
and disbursements of $___________ to be paid from the Settlement Fund after
Judgment becomes final. Such fees are to be distributed by Lead Counsel in
their reasonable discretion to each of plaintiffs and Class's counsel in
proportion to the contribution of counsel to the result obtained;
11. No distributions or disbursements, except for the costs so
provided in the Stipulation of Settlement, shall be made from the Settlement
Fund prior within twenty (20) days after the Effective Date except upon order
of this Court with notice to Defendants, or written agreement by counsel for
all parties;
12. Without affecting the finality of this Judgment in any way,
this Court hereby retains continuing jurisdiction over: (a) implementation of
the settlement and any distributions to Class Members; (b) disposition of the
Settlement Fund; (c) this Consolidated Action, until this Judgment becomes
Final, and each and every act agreed to be performed by the parties has been
performed pursuant to the Stipulation of Settlement; and (d) all parties to
this Consolidated Action, for the purpose of enforcing and administering the
Stipulation of Settlement;
<PAGE>7
13. If the Settlement does not become Final in accordance with the
terms of the Stipulation of Settlement, then this Judgment shall be rendered
null and void and shall be vacated and, in such event, all orders entered in
connection therewith shall be vacated and rendered null and void; and
14. All members of the Class, except those persons who have timely
requested exclusion pursuant to Rule 23(c)(2) of the Federal Rules of Civil
Procedure, are hereby barred and permanently enjoined from prosecuting any
individual or class claims which are or might have been asserted in this class
action, arising out of the purchase of Murex stock or warrants during the
Class Period and out of any acts, facts, transactions, omissions or other
subject matters set forth, alleged, embraced or otherwise referred to in the
Consolidated Action including any
<PAGE>8
claims for violations of federal, state or other law, or of the common law.
Dated: Brooklyn, New York
__________________ , 1996
___________________________
U.S.D.J.
ENTRY OF JUDGMENT CONSENTED TO:
STULL, STULL & BRODY
By:___________________________
Jule Brody (JB9151)
Howard T. Longman (HT2489)
Attorneys for Plaintiffs
6 East 45th Street
New York, New York 10017
(212) 687-7230
and
LAW OFFICES OF JOSEPH H. WEISS
By:__________________________
Joseph H. Weiss (JW4534)
Moshe Balsam (MB0390)
Attorneys for Plaintiffs
319 Fifth Avenue
New York, New York 10016
(212) 532-4171
and
<PAGE>9
REID & PRIEST
By:___________________________
Richard P. Swanson (RS6068)
Susan Logan Bedford (SB7116)
Attorneys for the Murex
Defendants
40 West 57th Street
New York, New York 10019
(212) 603-2000
and
WILLKIE FARR & GALLAGHER
By:__________________________
Richard L. Klein (RF0186)
Attorneys for the DeBartolo
Defendants
One Citicorp Center
153 East 53rd Street
New York, New York 10022-4677
(212) 935-8000
<PAGE>1
AGREEMENT
THIS AGREEMENT is made the 17th day of May, 1995 by and among
International Murex Technologies Corporation, a Canadian corporation ("Murex"),
Edward J. DeBartolo, Jr., the Estate of Edward J. DeBartolo, Sr.
and Encon Insurance Managers, Inc. ("Encon").
WHEREAS, Murex, C. Robert Cusick, Richard D. Strayer, Jr.,
Edward J. DeBartolo, Jr. and Edward J. DeBartolo, Sr. (now deceased), are
defendants in In re International Murex Technologies Corporation Securities
Litigation, Master File No. 93 Civ. 336 (the "Litigation"); and
WHEREAS, the parties to the Litigation have reached an
agreement in principle settling the Litigation for five million four hundred
thousand dollars ($5,400,000) in cash and stock (the "Settlement Fund"); and
WHEREAS, the parties are entering into a definitive
Stipulation of Settlement (the "Stipulation"), which defines the rights and
responsibilities of the various parties to the Litigation and to the settlement;
and
WHEREAS, terms used as defined terms in this Agreement which
are not expressly defined herein are use as defined in the Stipulation; and
WHEREAS, Encon represents and warrants that it is has
authority to enter into this agreement on behalf of certain underwriters at
Lloyd's, namely Continental Insurance Company, Royal Insurance Company of
Canada, The General Accident Assurance
<PAGE>2
Company of Canada, Simcoe & Erie General Insurance Company and
Non-Marine Underwriters at Lloyd's under Contract No. ENC 192 (collectively, the
"Insurance Companies"), the director's and officer's liability insurance
carriers for Murex; and
WHEREAS, this Agreement is in addition to and not in lieu of
the Stipulation, and the parties to this Agreement acknowledge they are also
bound to the provisions of the Stipulation;
IT IS HEREBY AGREED THAT, in accordance with the provisions of
the Stipulation, the undersigned will contribute to the Settlement Fund as
follows:
Murex: two million one hundred sixty thousand U.S. dollars
($2,160,000) in cash;
Insurance Companies: two million one hundred sixty thousand
U.S. dollars ($2,160,000) in cash; and
Edward J. DeBartolo, Jr. and the estate of Edward J.
DeBartolo, Sr.: one million eighty thousand U.S. dollars ($1,080,000) in cash
or Murex common stock, at their election;
and;
FURTHER IT IS AGREED, that Murex, Edward J. DeBartolo, Jr.,
the Estate of Edward J. DeBartolo, Sr. and Encon, individually and on behalf of
the Insurance Companies, shall make any cash payments to the Claims
Administrator to hold in escrow for the benefit of the class ten (10) days
prior to the Rule 23(e) Hearing, in accordance with the Stipulation; and
FURTHER IT IS AGREED, Edward J. DeBartolo, Jr., and the
Estate of Edward J. DeBartolo, Sr., shall make any
contribution of Murex stock by delivering certificates evidencing shares of
<PAGE>3
Murex common stock, as contemplated by Article V(A) of the Stipulation, to
Murex, together with appropriate stock powers for cancellation at the time and
under the circumstance set forth in the Stipulation.
FURTHER IT IS AGREED, that payment by the Insurance Companies
in accordance with this agreement, will satisfy and fulfill and be in full
settlement of all the Insurance Companies' obligations for claims and/or
expenses arising out of or relating to the Litigation; and
FURTHER IT IS AGREED, that Edward J. DeBartolo, Jr., the
Estate of Edward J. DeBartolo, Sr., and Encon, individually and on behalf of
the Insurance Companies, waive any and all claims that they may have or will
have to any reversion interest in any unclaimed Settlement Funds, as set forth
in Article V(F) of the Stipulation.
INTERNATIONAL MUREX
TECHNOLOGIES CORPORATION
By:_________________________
C. Robert Cusick
Vice Chairman and Chief
Financial Officer
/s/ Edward J. DeBartolo, Jr.
EDWARD J. DeBARTOLO, JR.
ESTATE OF EDWARD J. DeBARTOLO, SR.
By: /s/ Edward J. DeBartolo, Jr.
Edward J. DeBartolo, Jr.
Executor
<PAGE>4
ENCON INSURANCE MANAGERS, INC.
By:__________________________
<PAGE>
MUTUAL LIMITED RELEASE AND COVENANT NOT TO SUE
THIS MUTUAL LIMITED RELEASE AND COVENANT NOT TO SUE (this
"Release") is made this 2nd day of May, 1995 (the "Effective Date"), by and
among INTERNATIONAL MUREX TECHNOLOGIES CORPORATION, a company organized under
the Laws of British Columbia, Canada ("IMTC"), and Edward J. DeBartolo, Jr.
("DeBartolo").
STATEMENT OF BACKGROUND:
WHEREAS, a Pooling Agreement was entered into December 16,
1985 by and among Scarab Resource Corporation (which is now IMTC), certain
shareholders of Scarab Resource Corporation (including DeBartolo), and Montreal
Trust Company (the "Pooling Agreement");
WHEREAS, the shares set forth and identified on Schedule A
hereto (the "Shares") are being held in escrow pursuant to the Pooling
Agreement, and a question as to when the Shares should be released to DeBartolo
has been raised;
WHEREAS, the parties hereto have agreed that, in consideration
of this Release, the statements contained herein, and other good and valuable
consideration, the Shares should be released to DeBartolo and the Pooling
Agreement deemed to be of no further force and effect;
WHEREAS, this Release shall not be construed as an
admission of liability of any nature whatsoever by any person or entity;
NOW, THEREFORE, in consideration of the release of the
Shares, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree as
follows:
1. DeBartolo's Release and Covenant Not to
Sue. DeBartolo does hereby release, acquit, and forever discharge each of the
IMTC Released Parties (as defined in Section 6 below) from, and does hereby
covenant and agree never to institute or cause to be instituted any suit or
other form of action or proceeding of any kind or nature whatsoever against any
of the IMTC Released Parties based upon, any and all claims, demands,
indebtedness, agreements, causes of action, or liabilities of any nature
whatsoever, in law or in equity, whether or not known, suspected or claimed,
that DeBartolo had or claimed to have, now has or claims to have, or may
hereafter have or claim to have, against any of the IMTC Released Parties by
reason of any event, matter, cause, act or omission occurring on or before the
Effective Date arising out of or related in any way to the Pooling Agreement or
the Shares or any event, matter, cause, act,
<PAGE>
omission, agreement, document, or instrument related thereto or affected
thereby.
2. IMTC's Release and Covenant Not to Sue.
IMTC does hereby release, acquit, and forever discharge each of the DeBartolo
Released Parties (as defined in Section 6 below) from, and does hereby covenant
and agree never to institute or cause to be instituted any suit or other form
of action or proceeding of any kind or nature whatsoever against any of the
DeBartolo Released Parties based upon, any and all claims, demands,
indebtedness, agreements, causes of action, or liabilities of any nature
whatsoever, in law or in equity, whether or not known, suspected or claimed,
that IMTC had or claimed to have, now has or claims to have, or may hereafter
have or claim to have, against any of the DeBartolo Released Parties by reason
of any event, matter, cause, act or omission occurring on or before the
Effective Date arising out of or related in any way to the Pooling Agreement or
the Shares or any event, matter, cause, act, omission, agreement, document, or
instrument related thereto or affected thereby.
3. No Admission of Liability. Nothing in
this Release shall be construed as an admission of any liability.
4. Entire Agreement. This Release
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof, and supersedes any prior agreement or understanding
between the parties hereto with respect to the subject matter hereof.
5. Choice of Law. This Release shall be
governed in accordance with the laws of the State of Georgia.
6. Parties, Bound and Benefitted.
(a) This Release shall be binding upon and shall
inure to the benefit of IMTC and each of its subsidiaries,
affiliates, predecessor and successor entities, and each of
their respective predecessors, successors and assigns, and
each of their respective past and present, direct and
indirect, subsidiaries, parents and affiliated entities, and
each of their respective past and present employees, agents,
attorneys in fact, attorneys at law, officers, directors,
shareholders, partners and joint venturers, and all of said
individual's heirs, executors, administrators and assigns,
and every other individual or entity who has acted or is
acting or may act in the future on behalf or in connection
with any of the persons or entities referenced in this
Section 6(a) (collectively, the "IMTC Released Parties");
<PAGE>
(b) This Release shall be binding upon and shall
inure to the benefit of DeBartolo and each of his, her or its
subsidiaries, affiliates, predecessor and successor entities,
heirs, executors, administrators and assigns, and each of
their respective predecessors, successors and assigns, and
each of their respective past and present, direct and
indirect, subsidiaries, parents and affiliated entities, and
each of their respective past and present employees, agents,
attorneys in fact, attorneys at law, officers, directors,
shareholders, partners and joint venturers, and all of said
individual's heirs, executors, administrators and assigns, and
every other individual or entity who has acted or is acting or
may act in the future on behalf or in connection with any of
the persons or entities referenced in this Section 6(b)
(collectively, the "DeBartolo Released Parties").
7. Severability. The provisions contained
herein are severable and should be so interpreted and construed. If any court
or other tribunal of competent jurisdiction determines that any provision,
taken in its entirety as a whole, is invalid or unenforceable under applicable
law because of being unreasonable or against public policy or for any other
reason, it is the intention of the parties to abide by those provisions or
portions thereof as such competent authority determines would have been
enforceable and compatible with public policy. Notwithstanding the foregoing,
if any clause or provision herein contained is invalid or unenforceable under
applicable law, then the remainder of this Agreement is to remain operative and
in full force and effect.
8. Release of the Shares; Effective Date.
Upon the execution of this Release by each party hereto, and upon the full
execution of similar releases by each other party to the Pooling Agreement,
IMTC shall (i) execute this Release, (ii) promptly cause the Shares to be
released to DeBartolo (and cause all other shares subject to the Pooling
Agreement to be released to the respective owners thereof), and (iii) fill in
the "Effective Date" of this Release with the date of the release of the
Shares. Accordingly, this Release shall not become effective, and neither
DeBartolo nor IMTC shall be bound by its terms until such time, if ever, as
(aa) this Release has been executed by each party hereto and similar releases
have been executed by each other party to the Pooling Agreement and by IMTC,
and (bb) IMTC has released the Shares to DeBartolo.
<PAGE>
IN WITNESS WHEREOF, the parties have signed, sealed, and
delivered this Release as of the date first written above.
"IMTC"
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
By: /s/ C. Robert Cusick
Name: C. Robert Cusick
Title: Vice Chairman and Chief
Financial Officer
"DEBARTOLO"
/s/ Edward J. Debartolo, Jr.
Edward J. DeBartolo, Jr.
<PAGE>
SCHEDULE A
The Shares
SHARES CERTIFICATE REGISTRATION
153,742 CO3976 Edward J. DeBartolo, Jr.
