AGREEMENT IN PRINCIPLE
This confirms the agreement-in-principle of the parties to
settle the three actions (the "Actions") pending wider the caption In re
Atalanta/Sosnoff Capital Corporation, Consolidated C. A. No. 20068-NC, before
the Delaware Court of Chancery, subject to negotiation and execution of a
definitive settlement agreement (the "Settlement Agreement") and approval by the
Court.
1. The Settlement Agreement will contain releases of all
claims against defendants, their affiliates, agents, representatives, advisors
(including but not limited to The Blackstone Group L.P.), employees and
successors and assigns, and all persons and entities assisting or acting in
concert with any defendant, arising out of or relating to the allegations of the
complaints filed in the Actions and/or the contemplated tender offer for the
outstanding shares of Atalanta/Sosnoff Capital Corporation ("Atalanta") and
subsequent merger (the "Transaction").
2. The parties will stipulate to certification of a mandatory
settlement class of all holders of the common stock of Atalanta, other than the
individual defendants, members of their immediate families and related
entities.
3. Without admitting any wrongdoing or merit to the allegations
of the complaints in the Actions, defendants acknowledge that plaintiffs'
written preliminary analysis delivered on or about May 9, 2003 regarding the
adequacy of the $12.50 per share price contained in the preliminary oral
acquisition proposal of Xxxxxx X. Xxxxxxx (the "Original Proposal") was a
factor reviewed and utilized by the special committee of Xxxxxxxx's independent
outside directors in negotiating and obtaining an increase in the consideration
of the Original Proposal from $12.50 per share to $13.95 par share, and that
the pendency of the Actions and defendants' wish, to resolve them facilitated
this increase. Plaintiffs will have an opportunity to review and comment on the
Offer to Purchase to be disseminated to all Atalanta stockholders in connection
with the Transaction. The agreement to settle the Actions on these terms is the
result of arms' length negotiations between Plaintiffs' counsel and counsel for
defendants.
4. Defendants will provide Xxxxxxxx's counsel with such
documents and depositions as are reasonably necessary to confirm the fairness
and adequacy of the settlement.
5. The parties will use their reasonable efforts to agree upon
and expeditiously execute an appropriate Settlement Agreement and such other
documents as may be required to obtain final Court approval of the Settlement
Agreement. The
parties agree to use their best efforts to complete a Settlement Agreement
within sixty (60) days.
6. Following notice to the class, plaintiffs' counsel will
submit a motion for final approval of the Settlement Agreement by the Court and
shall seek entry of an order and final judgment in a form to be agreed upon by
the parties directing that the Actions be dismissed with prejudice as against
the defendants.
7. There will be no admission of liability or wrongdoing by
any of the defendants, and there will be affirmative denials of liability and
wrongdoing by each of the defendants.
8. Plaintiffs' counsel have agreed to apply for, defendants
will not oppose, and Atalanta will pay, attorneys' fees and expenses of no more
than $350,000 in the aggregate.
9. Atalanta will provide notice to members of the class in
accordance with the scheduling order and pay the reasonable costs of providing
such notice.
/s/ Xxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxx
/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxx
Xxxxxxxx X. Xxxxxx
Attorneys for Plaintiffs and
the Proposed Settlement Class
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Attorney for Defendants
Atalanta/Sosnoff Capital Corporation,
Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Attorney for Defendants
Xxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxx
and Xxxxxxxx Xxxxx-Xxxxx
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