-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GXmDlX5xOBAwXBTSm+v9xzWYVkgYS7qeVpWgTd6PuF3foSJUnUi1b4xHdA03ujBn GkhOo2FgYQctB2Q712vw3g== 0000950130-02-008281.txt : 20021205 0000950130-02-008281.hdr.sgml : 20021205 20021205170623 ACCESSION NUMBER: 0000950130-02-008281 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20021205 GROUP MEMBERS: FIDELIO SUB, INC. GROUP MEMBERS: KONINKLIJKE PHILIPS ELECTRONICS N.V. GROUP MEMBERS: SONY CORPORATION OF AMERICA GROUP MEMBERS: STEPHENS ACQUISITION LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INTERTRUST TECHNOLOGIES CORP CENTRAL INDEX KEY: 0001089717 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING SERVICES [7371] IRS NUMBER: 521672106 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-57859 FILM NUMBER: 02850045 BUSINESS ADDRESS: STREET 1: 4750 PATRICK HENRY BLVD. CITY: SANTA CLARA STATE: CA ZIP: 95054 BUSINESS PHONE: 4088550100 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FIDELIO ACQUISITION CO LLC CENTRAL INDEX KEY: 0001206572 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: C/O SONY CORP OF AMERICA STREET 2: 550 MADISON AVE 35TH FL CITY: NEW YORK STATE: NY ZIP: 10022-3321 BUSINESS PHONE: 2128336039 MAIL ADDRESS: STREET 1: KOMINKLIJKE PHILIPS ELECTRONICS NV STREET 2: AMSTEPLEIN 2 CITY: BC AMSTERDAM STATE: P7 ZIP: 1096 SC TO-T/A 1 dsctota.htm AMENDMENT # 1 TO SCHEDULE TO Amendment # 1 to Schedule TO
 
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
SCHEDULE TO /A
(Rule 14d-100)
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
 
(Amendment No. 1)
 
 
INTERTRUST TECHNOLOGIES  CORPORATION
(Name of Subject Company (Issuer))
 
FIDELIO ACQUISITION COMPANY, LLC
FIDELIO SUB, INC.
KONINKLIJKE PHILIPS ELECTRONICS N.V.
SONY CORPORATION OF AMERICA
STEPHENS ACQUISITION LLC
(Names of Filing Persons (Offerors))
 
 
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
 
 
46113Q109
(CUSIP Number of Class of Securities)
 
 
Elizabeth Coppinger, Manager
Fidelio Acquisition Company, LLC
c/o Sony Corporation of America
550 Madison Avenue, 33rd floor
New York, New York 10022-3321
Telephone: (212) 833-8000
  
Ruud Peters, Manager
Fidelio Acquisition Company, LLC
c/o Koninklijke Philips Electronics N.V.
Amstelplein 2
1096 BC Amsterdam
The Netherlands
Telephone: +31 (20) 597-7777
(Name, Address and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
 
 
Copy to:
 
Morton A. Pierce, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
Telephone: (212) 259-8000
 
 

 
CALCULATION OF FILING FEE
 
Transaction Valuation*
  
Amount of Filing Fee**
$479,890,442
  
$44,150
*
 
Estimated for purposes of calculating the filing fee only. This amount assumes the purchase of all of the outstanding shares of common stock, par value $0.001 per share, of InterTrust Technologies Corporation (“InterTrust”) at a purchase price of $4.25 per share. As of November 13, 2002, there were 112,915,398 shares of InterTrust common stock outstanding on a fully diluted basis.
 
**
 
The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, equals $92 per $1,000,000 of the value of the transaction.
 
x
 
Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
 
Amount Previously Paid: $44,150
   
Filing Party: Fidelio Acquisition Company, LLC
Form or Registration No.: Schedule TO
   
Date Filed: November 22, 2002
 
¨
 
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer:
 
Check the appropriate boxes below to designate any transactions to which the statement relates:
 
x third-party tender offer subject to Rule 14d-1.
¨ issuer tender offer subject to Rule 13e-4.
¨ going-private transaction subject to Rule 13e-3.
¨ amendment to Schedule 13D under Rule 13d-2.
 
Check the following box if the filing is a final amendment reporting the results of the tender offer: ¨

2

 
SCHEDULE TO
 
This Amendment No. 1 amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission (the “Commission”) on November 22, 2002 (as amended hereby, the “Schedule TO”) by Fidelio Acquisition Company, LLC, a Delaware limited liability company (“Parent”), Fidelio Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Purchaser”), Koninklijke Philips Electronics N.V., a corporation organized under the laws of the Netherlands, Sony Corporation of America, a New York corporation, and Stephens Acquisition LLC, an Arkansas limited liability company. The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding shares of common stock, par value $0.001 per share (the “Common Stock”), of InterTrust Technologies Corporation, a Delaware corporation (“InterTrust”), including the associated preferred stock purchase rights (the “Rights” and, together with the Common Stock, the “Shares”) issued pursuant to the Rights Agreement, dated as of June 8, 2001, between InterTrust and American Stock Transfer and Trust Company, Inc., at a purchase price of $4.25 per Share, net to the seller in cash, without interest thereon and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 22, 2002 (the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with any supplements or amendments thereto, collectively constitute the “Offer”), copies of which are attached as Exhibits (a)(1)(A) and (a)(1)(B) to the Schedule TO, respectively.
 
Item 11.
   
Additional Information
Item 11 of the Schedule TO is hereby amended and supplemented by including the following:
    
The following is added to the end of the section entitled “16. Certain Legal Matters; Required
Regulatopry Approvals—Litigation” on page 35 of the Offer to Purchase:
    
 
On November 27, 2002, a purported stockholder class action was filed by James Kaufman and Barrie Kaufman, as trustees by and for the Kaufman Family Trust 9/03/98, and Colin Gilbert (collectively, the “Delaware Plaintiffs”), on behalf of themselves and all others similarly situated, against the members of the InterTrust Board, InterTrust and Parent. This lawsuit is described below.
 
JAMES KAUFMAN AND BARRIE KAUFMAN, AS TRUSTEES BY AND FOR THE KAUFMAN FAMILY TRUST 9/03/98, AND COLIN GILBERT V. CURTIS A. HESLER, ROBERT R. WALKER, LESTER HOCHBERG, DAVID C. CHANCE, DAVID LOCKWOOD, TIMO RIUKKA, SATISH K. GUPTA, VICTOR SHEAR, INTERTRUST TECHNOLOGIES CORPORATION AND FIDELIO ACQUISITION COMPANY, LLC, CASE NO. 20059-NC, NEW CASTLE COUNTY COURT OF CHANCERY IN THE STATE OF DELAWARE, FILED ON NOVEMBER 27, 2002.
 
This lawsuit, allegedly brought on behalf of the Delaware Plaintiffs and a class of Stockholders, alleges, among other things, that the defendants breached their duties of care, loyalty, disclosure, good faith and independence in connection with the Offer and certain other transactions. This lawsuit also alleges that Parent aided and abetted the alleged breaches of fiduciary duty by the other defendants. The Delaware Plaintiffs seek, among other things, (i) a direction to the defendants to fulfill their fiduciary duties to the Delaware Plaintiffs and the class of Stockholders by announcing defendants’ intention to take certain specified actions, including, among other things, cooperating with any entity or person having a bona fide interest in proposing any transactions that would maximize stockholder value, undertaking an evaluation of InterTrust’s worth as a merger/acquisition candidate, taking steps to enhance InterTrust’s value and attractiveness as a merger/acquisition candidate and to expose InterTrust to the marketplace in an effort to create an active auction of InterTrust, acting independently so that the interests of the public Stockholders will be protected, ensuring that no conflicts of interest exist between the defendants’ own interests and their fiduciary obligation to maximize stockholder value, or, in the event such conflicts exist, ensuring that all conflicts of interest are resolved in the best interest of the public Stockholders, and requiring the proper implementation of the Rights Agreement so as to maximize stockholder value; (ii) a direction to defendants, jointly and severally, to account to the Delaware Plaintiffs and the class of Stockholders for all damages suffered and to be suffered by them as a result of the actions and transactions alleged in the complaint; (iii) an award of the Delaware Plaintiffs’ costs and disbursements in connection with the Delaware Plaintiffs’ action, including reasonable attorneys’ and experts’ fees; and (iv) a grant of such other and further relief as may be deemed just and proper.
 
On December 2, 2002, the Delaware Plaintiffs filed in the Delaware Chancery Court motions for expedited proceedings, including expedited discovery, and for an order preliminarily enjoining the Offer.

3

 
    
InterTrust and Parent believe the allegations contained in the above-summarized complaints are entirely without merit and intend to defend against the claims vigorously.
    
The above descriptions of the lawsuits are qualified in their entirety by the complaints, copies of which are attached to the Schedule TO as Exhibits and incorporated herein by reference.
The second paragraph under the section entitled “16. Certain Legal Matters; Required Regulatory Approvals —Antitrust—U.S. Antitrust” beginning on page 36 of the Offer to Purchase is amended and restated in its entirety to read as follows:
    
Under the HSR Act, the purchase of Shares in the Offer may not be completed until the expiration of the 30-calendar-day waiting periods following the filings by Philips and SCA of certain required information and documentary material concerning the Offer with the FTC and the Antitrust Division, unless the waiting periods are earlier terminated by the FTC and the Antitrust Division. Philips filed its Premerger Notification and Report Form under the HSR Act with the FTC and the Antitrust Division in connection with the purchase of Shares in the Offer and the Merger on November 22, 2002, and SCA filed its Premerger Notification and Report Form on December 2, 2002. As a result, the required waiting periods with respect to the Offer and the Merger will expire at 11:59 p.m., New York City time, on January 2, 2003, which is the later of the expiration of the waiting periods for the Philips filing and the SCA filing, unless earlier terminated by the FTC or the Antitrust Division or a filing party receives a request for additional information or documentary material prior to the expiration of the applicable waiting period. If, within the applicable 30-calendar-day waiting period, either the FTC or the Antitrust Division requests additional information or documentary material from SCA or Philips, the initial waiting period would be extended for such person who receives such a request, for an additional period of 30 calendar days following the date of its substantial compliance with that request. Only one extension of the waiting period pursuant to a request for additional information is authorized by the HSR rules. After that time, the waiting period could be extended only by court order or with filing parties’ consent. The FTC or the Antitrust Division may terminate the additional 30-calendar-day waiting period before its expiration. In practice, complying with a request for additional information or documentary material can take a significant period of time. Although InterTrust is also required to make an HSR filing with the FTC and the Antitrust Division in connection with the Offer, neither InterTrust’s failure to make that filing nor a request made to InterTrust from the FTC or the Antitrust Division for additional information or documentary material will extend the waiting period with respect to the purchase of Shares in the Offer and the Merger. The FTC and the Antitrust Division frequently scrutinize the legality under the antitrust laws of transactions, such as Parent’s and Purchaser’s acquisition of Shares in the Offer and the Merger. At any time before or after the Purchaser’s purchase of Shares, the FTC or the Antitrust Division could take action under the antitrust laws that either considers necessary or desirable in the public interest, including seeking to enjoin the purchase of Shares in the Offer and the Merger, the divestiture of Shares purchased in the Offer or the divestiture of substantial assets of InterTrust or any of its subsidiaries or affiliates. Private parties as well as state attorneys general may also bring legal actions under the antitrust laws under certain circumstances. There can be no assurance that a challenge to the Offer on antitrust grounds will not be made or, if such a challenge is made, of the result thereof. See Section 15—“Certain Conditions of the Offer” of this Offer to Purchase.
 
Item 12.
   
Exhibits
    
Item 12 is hereby amended and supplemented to add the following exhibit:
    
(a)(1)(K)
   
Complaint filed by James Kaufman and Barrie Kaufman, as trustees by and for the Kaufman Family Trust 9/03/98, and Colin Gilbert in the Court of Chancery, New Castle County, Delaware, on November 27, 2002.

4

 
SIGNATURES
 
After due 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: December 5, 2002
 
FIDELIO ACQUISITION COMPANY, LLC
By:
  
/s/    Elizabeth Coppinger
   
Name:    Elizabeth Coppinger
   
Title:      Manager
 
By:
  
/s/    Ruud Peters
   
Name:    Ruud Peters
   
Title:      Manager
 
FIDELIO SUB, INC.
By:
  
/s/    Elizabeth Coppinger
   
Name:    Elizabeth Coppinger
   
Title:      Vice President
 
By:
  
/s/    Ruud Peters
   
Name:    Ruud Peters
   
Title:      Vice President
 
SONY CORPORATION OF AMERICA
By:
  
/s/    Steven E. Kober
   
Name:    Steven E. Kober
   
Title:      Senior Vice President          
 
KONINKLIJKE PHILIPS ELECTRONICS N.V.
By:
  
/s/    Ruud Peters
   
Name:    Ruud Peters
   
Title:      Executive Vice President
               Philips International B.V.
 
STEPHENS ACQUISITION LLC
By:
  
/s/    Jackson Farrow Jr.
   
Name:    Jackson Farrow Jr.
   
Title:      Manager

5

 
POWER OF ATTORNEY
 
The undersigned, Mr G.J. Kleisterlee, President and Chairman of the Board of Management of Koninklijke Philips Electronics N.V. (hereinafter referred to as "Philips") and Mr. J.H.M. Hommen, Vice-Chairman of the Board of Management of Philips, in such capacity jointly authorized to represent Philips, hereby authorize
 
Mr. R.J. Peters
Mr E. J. Westerink
and/or
Mr. J. Nolan
 
individually and each with the power of substitution, to sign and deliver in the name and on behalf of Philips a Merger Agreement with Intertrust, including the signing and delivery of an Acquisition Agreement and ancillary agreements and documents including any documents guaranteeing the performance under such agreements and documents, and further to do or cause to be done all such acts and things as are deemed necessary by them in connection with the said transaction.
 
Amsterdam, November 8, 2002
 
 
KONINKLIJKE PHILIPS ELECTRONICS N.V.
     
/S/    G.J. KLEISTERLEE
   
/S/    J.H.M. HOMMEN
  
G.J. Kleisterlee
   
J.H.M. Hommen
President and
Chairman of the Board of Management
   
Vice-Chairman of the Board of Management

6

 
EXHIBIT INDEX
 
(a)(1)(A)
   
Offer to Purchase, dated November 22, 2002.**
(a)(1)(B)
   
Form of Letter of Transmittal.**
(a)(1)(C)
   
Form of Notice of Guaranteed Delivery.**
(a)(1)(D)
   
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.**
(a)(1)(E)
   
Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.**
(a)(1)(F)
   
Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.**
(a)(1)(G)
   
Press Release issued by Fidelio Acquisition Company, LLC on November 13, 2002, incorporated herein by reference to Schedule TO-C previously filed with the Securities and Exchange Commission.
(a)(1)(H)
   
Summary Advertisement, dated November 22, 2002, appearing in The Wall Street Journal.**
(a)(1)(I)
   
Complaint filed by Fabrizio Righetti in the Superior Court, Santa Clara County, California on November 13, 2002.**
(a)(1)(J)
   
Complaint filed by Jong-Ho Nam in the Superior Court, Santa Clara County, California on November 13, 2002.**
(a)(1)(K)
   
Complaint filed by James Kaufman and Barrie Kaufman, as trustees by and for the Kaufman Family Trust 9/03/98, and Colin Gilbert in the Court of Chancery, New Castle County, Delaware, on November 27, 2002.
(b)
   
None.
(d)(1)
   
Agreement and Plan of Merger, dated as of November 13, 2002, by and among Fidelio Acquisition Company, LLC, Fidelio Sub, Inc. and InterTrust Technologies Corporation.**
(d)(2)
   
Letter Agreement, dated as of November 13, 2002, by and among Sony Corporation of America, Koninklijke Philips Electronics N.V. and InterTrust Technologies Corporation.**
(d)(3)(A)
   
Confidentiality Agreement, dated as of May 16, 2002, by and between Sony Corporation of America and InterTrust Technologies Corporation.**
(d)(3)(B)
   
Confidentiality Agreement, dated as of July 8, 2002, by and between Koninklijke Philips Electronics N.V. and InterTrust Technologies Corporation.**
(d)(3)(C)
   
Rider Regarding Confidential Information, dated as of September 30, 2002, by and among Sony Corporation of America, Koninklijke Philips Electronics N.V. and InterTrust Technologies Corporation.**
(d)(4)
   
Form of Stockholder Tender and Support Agreements, dated as of November 13, 2002, by and among Fidelio Acquisition Company, LLC, Fidelio Sub, Inc. and certain stockholders of InterTrust Technologies Corporation.**
(d)(5)
   
Exclusivity Letter Agreement, dated as of November 10, 2002, by and among Sony Corporation of America, Koninklijke Philips Electronics N.V. and InterTrust Technologies Corporation.**
(d)(6)(A)*
   
Patent License Agreement, dated as of May 20, 2002, by and between Sony Corporation and InterTrust Technologies Corporation.**
(d)(6)(B)
   
Amendment to Patent License Agreement, dated as of November 13, 2002, by and between Sony Corporation and InterTrust Technologies Corporation.**
(d)(6)(C)*
   
Foundation Patent License Agreement, dated as of November 13, 2002, by and between Koninklijke Philips Electronics N.V. and InterTrust Technologies Corporation.**

(d)(6)(D)
   
Amendment to Foundation Patent License Agreement, dated as of November 13, 2002, by and between Koninklijke Philips Electronics N.V. and InterTrust Technologies Corporation.**
(g)
   
None.
(h)
   
None.
*
 
Portions of this exhibit have been omitted based on a request for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Such omitted portions have been filed separately with the Securities and Exchange Commission.
**
 
Previously filed.
EX-99.(A)(1)(K) 3 dex99a1k.txt COMPLAINT FILED ON NOVEMBER 27, 2002 Exhibit (a)(1)(K) IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY - ------------------------------------------ JAMES KAUFMAN and BARRIE KAUFMAN, as Trustees by and for the KAUFMAN FAMILY TRUST 9/03/98 and COLIN GILBERT, on Behalf Case No. 20059-NC of themselves, and All Others Similarly -------- Situated, CLASS ACTION ------------ Plaintiffs, -against- CURTIS A. HESLER, ROBERT R. WALKER, LESTER HOCHBERG, DAVID C. CHANCE, DAVID LOCKWOOD, TIMO RIUKKA, SATISH K. GUPTA, VICTOR SHEAR, INTERTRUST TECHNOLOGIES CORPORATION, and FIDELIO ACQUISITION COMPANY, LLC, Defendants. - ------------------------------------------ COMPLAINT Plaintiffs, by and through their attorneys, allege upon personal knowledge as to themselves and their own acts and upon information and belief as to all other matters, based upon the investigation conducted by counsel, which included, inter alia, a review or public documents filed with the United States Securities and Exchange Commission ("SEC") and other published materials, as follows: SUMMARY OF THE ACTION 1. This is a class action brought by plaintiffs on behalf of the public stockholders of InterTrust Technologies Corporation ("InterTrust" or the "Company") common stock for injunctive and other appropriate relief in connection with the sale of InterTrust to Fidelio Acquisition Company, LLC ("Fidelio"), through a tender offer and merger that commenced on November 22, 2002 and is set to expire on December 20, 2002 (hereinafter, the "Tender Offer" or the "Tender Offer and Merger"). 2. The Tender Offer is unfairly structured to guarantee that Fidelio is the only purchaser in a position to purchase InterTrust. The decision of the Individual Defendants (defined below), who constitute InterTrust's Board of Directors, to pursue the proposed transaction will deny InterTrust's shareholders of the opportunity to share appropriately in the true value of InterTrust's assets. Plaintiffs allege that they and the other public stockholders of InterTrust are entitled to seek to enjoin the proposed transaction or, alternatively, to rescind the transaction and/or recover damages in the event the transaction is consummated. PARTIES 3. Plaintiffs James Kaufman and Barrie Kaufman are trustees of the Kaufman Family Trust 9/03/98 ("Kaufman Trust"), which is, and at all times relevant to the action has been, a shareholder of InterTrust. As of the date of the Tender Offer, the Kaufman Trust owned 250,000 shares of InterTrust common stock. 4. Plaintiff Colin Gilbert is, and at all relevant times to the action, a shareholder of InterTrust. As of the date of the Tender Offer, Mr. Gilbert owned approximately 230,000 shares of InterTrust common stock. 5. Defendant InterTrust is a Delaware corporation based in California. InterTrust is engaged in inventing and defining technologies for Digital Rights Management ("DRM"), including various trusted competing technologies that enable secure management of digital processes and information. 2 6. Defendant Fidelio is a Delaware limited liability company whose members are Koninklijke Philips Electronics N.V. ("Philips"), Sony Corporation of America ("SCA") and Stephens Acquisition LLC ("Stephens"). Fidelio Sub, Inc. ("Fidelio Sub"), a Delaware corporation and a wholly owned subsidiary of Fidelio, was organized to acquire all of the outstanding shares of InterTrust pursuant to the Tender Offer and Merger. Fidelio Sub has not conducted any activities other than in connection with the Tender Offer and the Merger since its organization. "Fidelio" hereinafter refers to Fidelio and Fidelio Sub, as well as Philips, SCA and Stephens. (a) Philips is a corporation organized under the laws of Netherlands with its principal executive offices located at Breitner Center, Amstelplein 2, 1096 BC Amsterdam, The Netherlands. Philips is Europe's largest and one of the world's largest electronics companies. (b) SCA is a New York corporation and an indirect, wholly owned subsidiary of Sony Corporation, a Japanese corporation ("Sony"). SCA's principal executive offices are located at 550 Madison Avenue, 33rd Floor, New York, New York, 10022. SCA is a leading manufacturer of audio, video, communications and information technology products for the consumer and professional markets. (c) Stephens is a newly formed entity that has not conducted any business other than in connection with the Tender Offer and Merger. Stephens is an Arkansas limited liability company and a wholly owned subsidiary of Stephens Group, Inc. Stephens Group, Inc. is a privately held, Little Rock, Arkansas based holding company, and is the parent of Stephens Inc., an investment banking firm that is a member of the National Association of Securities Dealers and the New York Stock Exchange. The principal executive offices of Stephens, 3 Stephens Group, Inc. and Stephens Inc. is 111 Center Street, Suite 500, Little Rock, Arkansas 72201. 7. Defendant Curtis A. Hessler ("Hessler") is a Board member of the Company. 8. Defendant Robert R. Walker ("Walker") is a Board member of the Company. 9. Defendant Lester Hochberg ("Hochberg") is a Board member of the Company. 10. Defendant David C. Chance ("Chance") is a Board member of the Company, and its former Vice Chairman. 11. Defendant David Lockwood ("Lockwood") is the Vice Chairman, President and CEO as well as a Board member of the Company. 12. Defendant Timo Ruikka ("Ruikka") is a Board member of the Company. 13. Defendant Satish K. Gupta ("Gupta") is a Board member of the Company. 14. Defendant Victor Shear ("Shear") is the Chairman of the Board of the Company. 15. The defendants named above in P.P. 6-14 are sometimes collectively referred to herein as the "Individual Defendants." Each Individual Defendant owed and owes the Company and its public stockholders fiduciary obligations and were and are required to, inter alia, further the best interests of the Company ----- ---- and its public stockholders; undertake an adequate evaluation of the Company's worth as to potential merger/acquisition candidates; refrain from abusing their positions of control; and refrain from favoring their own interests at the expense of the Company and its stockholders. CLASS ACTION ALLEGATIONS ------------------------ 16. Plaintiffs bring this action on their own behalf and as a class action pursuant to Rule 23 of the Rules of the Court of Chancery, on behalf of all holders of InterTrust stock who are being and will be harmed by defendants' actions described below (the "Class"). Excluded 4 from the Class are defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any defendant. 17. This action is properly maintainable as a class action. 18. The Class is so numerous that joinder of all members is impracticable. According to InterTrust's SEC filings, there were more than 96 million shares of InterTrust common stock outstanding. 19. There are questions of law and fact that are common to the Class and that predominate over questions affecting any individual Class member. The common questions include, inter alia, the following: ----- ---- (a) whether defendants have breached their fiduciary duties of loyalty, independence or due care with respect to plaintiffs and the other members of the Class in connection with the Tender Offer; (b) whether the Individual Defendants are engaging in self-dealing in connection with the Tender Offer; (c) whether the Individual Defendants are unjustly enriching themselves and other insiders or affiliates of InterTrust; (d) whether defendant have breached any of their other fiduciary duties to plaintiffs and the other members of the Class in connection with the Tender Offer, including the duties of good faith, disclosure, diligence, honesty and fair dealing; (e) whether the defendants, in bad faith and for improper motives, have impeded or erected barriers to discourage other offers for the Company or its assets; and 5 (f) whether plaintiffs and the other members of the Class would suffer irreparable injury were the transactions complained of herein consummated. 20. Plaintiffs' claims are typical of the claims of the other members of the Class and plaintiffs do not have any interests adverse to the Class. 21. Plaintiffs are adequate representatives of the Class, have retained competent counsel experienced in litigation of this nature and will fairly and adequately protect the interests of the Class. 22. The prosecution of separate actions by the individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual members of the Class which would establish incompatible standards of conduct for the party opposing the Class. 23. Plaintiffs anticipate that there will be no difficulty in the management of this litigation. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 24. Defendants have acted on grounds generally applicable to the Class with respect to the matters complained of herein, thereby making appropriate the relief sought herein with respect to the Class as a whole. SUBSTANTIVE ALLEGATIONS InterTrust's Future Prospects 25. InterTrust is engaged in inventing and defining DRM technologies, including various trusted competing technologies that enable secure management of digital processes and information. InterTrust is a leading holder of intellectual property in DRM, with at least 26 U.S. patents and at least 85 patent applications pending worldwide. InterTrust's patent portfolio 6 covers software and hardware technologies that can be implemented in a broad range of products that use DRM, including digital media platforms, web services and enterprise infrastructure. 26. A significant factor with respect to InterTrust's future prospects concerns broad and ongoing litigation against the Microsoft Corporation ("Microsoft"). As described in a Company press release dated June 24, 2002: InterTrust Technologies Corporation (Nasdaq: ITRU) today announced that it is further substantially broadening its patent infringement lawsuit against Microsoft Corporation (Nasdaq: MSFT). In accordance with a schedule agreed to by the parties, InterTrust served on Microsoft infringement allegations that add four new patents and more than doubles the number of new claims to the litigation, bringing the totals to 11 patents, 144 claims and over 190 separate infringement scenarios. Since initially suing Microsoft for patent infringement in April 2001, InterTrust has expanded the lawsuit by adding numerous significant Microsoft products and services that use InterTrust's patented innovations in basic infrastructure for trusted computing and digital rights management. InterTrust is now seeking an injunction against the following Microsoft products, among others: Windows XP, Office XP, Microsoft.NET, a number of Microsoft.NET-based products and services, Windows Media Player, new embedded products such as Windows CE for automotive, XBOX, and aspects of Microsoft's ActiveX technology. InterTrust is also seeking compensatory and punitive damages for Microsoft's acts of infringement. 27. In the Company's Form 10-Q for the quarter ended September 30, 2002, filed just days after the Company's November 13, 2002 announcement of the Tender Offer and Merger, the Company discussed the significant ongoing litigation against Microsoft, that discovery has started in the case and that a Markman hearing on a portion of the patents under dispute is scheduled for the second quarter of 2003. 7 Negotiations Leading To The Tender Offer and Merger - --------------------------------------------------- 28. According to the Tender Offer Statement filed in connection with the Tender Offer and Merger, representatives of InterTrust first met with representatives of SCA regarding a potential patent licensing arrangement in January 2002, and the parties engaged in negotiations regarding the terms of a DRM patent license agreement through April 2002. On April 25, 2002, SCA informed InterTrust that an acquisition of InterTrust was one of several alternatives that SCA was considering, in addition to entering into a DRM patent license agreement with InterTrust, as a means of establishing a patent licensing program. 29. On May 9, 2002, concurrent with the announcement of its first quarter financial results, InterTrust announced that it would narrow its business focus to licensing intellectual property. On May 23, 2002, shortly following that announcement, InterTrust and Sony announced that it had signed a global patent license agreement with Sony (the "Sony License Agreement"): InterTrust Licenses Patents to Sony for Integration into Future Digital Rights Management Products and Services SANTA CLARA, Calif., May 23, 2002--InterTrust Technologies Corporation (Nasdaq: ITRU) today announced a global licensing agreement with Sony Corporation (NYSE: SNE) that will allow Sony to use certain InterTrust patents in products that distribute digital consumer media content. Under the agreement, InterTrust will receive a $28.5 million fee, in addition to running royalties for future Sony products and services that integrate InterTrust patents related to digital rights management (DRM). InterTrust, which holds key patents in trusted computing and DRM, has licensed its intellectual property to Sony for the development, manufacture and marketing of digital media products and services across its diverse media and electronics business units. 8 30. In the Company's 10-Q for the quarter ended June 30, 2002, the Company reported that it would not be booking any of the $28.5 million as revenue, because under the Sony License Agreement $20 million was to be refunded if Sony or affiliates acquired the Company, and because the remaining $8.5 million would be booked in connection with other pending deals. 31. Item 601 of Regulation S-K of the SEC provides, in relevant part, for the filing of any contract "not made in the ordinary course of business which is material to the registrant and is to be performed in whole or in part at or after the filing of the registration statement or was entered into not more than two years before such filing." The Sony License Agreement was clearly material to the Company. Indeed, as reported in the Company's Form 10-Q for the period ended September 30, 2002, filed just a few days after the announcement of the Tender Offer and Merger: License revenues were $8.8 million, or 99% of total revenues, for the three months ended September 30, 2002, as compared to $1.5 million, or 80% of total revenues, in the three months ended September 30, 2001, and primarily represent the recognition of deferred revenue related to the Sony agreement and amortization of deferred license fees. License revenues for the nine months ended September 30, 2002 were $9.7 million, up from $4.5 million for the nine months ended September 30, 2001. The increase for both the three and nine month periods was due to the $8.5 million revenue from the Sony license completed in May 2002. 32. Nonetheless, in order to keep the price of InterTrust shares artificially low so that it could be acquired by Sony at a bargain price, the Individual Defendants violated the disclosure laws and never filed the Sony License Agreement. Indeed, the details and terms of the Sony License Agreement were not made public until the Tender Offer commenced on November 22, 2002. Had defendants obeyed the disclosure laws and filed the Sony License Agreement, InterTrust would have been "in play" much earlier and the consequent price to be paid for an 9 acquisition of InterTrust would have been much higher. The Sony License Agreement was hidden from public view so that only Sony or its affiliates would be in a position to acquire InterTrust. 33. In early November 2002, representatives of InterTrust met with representatives of SCA to discuss the terms of an amendment to the Sony License Agreement, which would eliminate the field of use limitations in the original Sony License Agreement and the obligation to pay ongoing royalties with respect to any services or content using the licensed patents. Also in early November 2002, representatives of InterTrust met with representatives of Philips to discuss the terms of a patent license agreement that would be substantially identical to the Sony License Agreement. 34. On November 9, 2002, the InterTrust Board held a special meeting to discuss a combined offer SCA and Philips for the shares of InterTrust, as well as the terms of the proposed amendment to the Sony License Agreement and a possible license agreement with Philips. The InterTrust Board authorized the team negotiating on behalf of InterTrust to negotiate an acquisition at a price of no less than $4.50 per Share. 35. On November 10, 2002, representatives of SCA and Philips indicated that each of them had secured internal approvals to negotiate a transaction at a price of $4.25 per share. Representatives of InterTrust stated that, although no formal board meeting had been held, most of InterTrust's directors had been contacted and were prepared to endorse a transaction at $4.25 per Share. The Tender Offer and Merger 36. On November 13, 2002 it was announced in a press release that InterTrust had entered into a definitive merger agreement (the "Merger Agreement") pursuant to which Fidelio 10 would commence the Tender Offer to purchase all outstanding shares of common stock of InterTrust for $4.25 per share in cash, conditioned upon the tendering of shares representing a majority of InterTrust's outstanding common stock and other customary conditions. Pursuant to stockholder support and tender agreements, certain principal stockholders of InterTrust owning approximately 20% of the outstanding common stock of InterTrust agreed to tender all of their shares into the Tender Offer and to grant irrevocable proxies to Fidelio to vote in the manner specified in such agreements. Under the Merger Agreement, shares of InterTrust common stock not purchased through the Tender Offer would be converted into the right to receive $4.25 per share, without interest. 37. The Tender Offer commenced on November 22, 2002 through the dissemination of a Tender Offer to InterTrust shareholders and a Schedule 14D filing with the SEC. In addition to all of the outstanding shares of InterTrust common stock, the Tender Offer includes stock purchase rights issued pursuant to a Rights Agreement, dated as of June 8, 2001, between InterTrust and American Stock Transfer and Trust Company, Inc., at a purchase price of $4.25 per Share. In addition to SCA and Philips, the Tender Offer Statement lists Stephens, which was not mentioned as a party to the Merger Agreement in InterTrust's previous announcement of the Tender Offer, as a member of Fidelio. 38. The purpose of the Tender Offer and the Merger is to acquire control of the entire equity interest in InterTrust. After consummation of the Merger, Fidelio will be merged with and into InterTrust, with InterTrust as the surviving company in the Merger. Accordingly, the Tender Offer and Merger will transfer 100% of InterTrust's revenues and profits to Fidelio with all of InterTrust's operations thereby accruing to the benefit of Fidelio -- i.e., to SCA, Philips and Stephens. 11 The Individual Defendants' Recommendation 39. In the Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") filed with the SEC in connection with the Tender Offer and signed by defendant Lockwood, the Individual Defendants recommended that the Company's stockholders accept the Tender Offer, tender their shares pursuant to the Tender Offer and approve the Merger and the Merger Agreement. The Schedule 14D-9 stated that as to the factors considered by the Board of Directors in its recommendation, the Individual Defendants did not attempt to weigh the value to the Company of success against Microsoft in the ongoing litigation, even though a Markman hearing is scheduled for soon after the Merger. The only mention of this litigation is in connection with a discussion of the "Opportunities and Challenges Facing the Company," which includes as "risks" to the Company "the risks associated with resolving the Microsoft litigation, including the risk that the Company's patents or claims could be rejected or narrowed by the Court." 40. The recommendation of the Individual Defendants was based, at least in part, on the opinion of Allen & Co., the financial advisor on the transaction, which concluded that the share price to be received by InterTrust shareholders in the Tender Offer and Merger is fair from a financial point of view. However, according to the Schedule 14D-9, in rendering its fairness opinion, Allen & Co. "did not give any effect to, and not attempt to assign any value to, any commercial arrangements entered into by InterTrust or [Fidelio] in connection with the merger, including the Sony License Amendment, the Philips License Agreement and the Philips License Amendment." Moreover, Allen & Co. engaged in no analysis whatsoever of the value of the Microsoft litigation to InterTrust. 12 41. In addition, under the terms of an engagement letter, dated January 8, 2002, InterTrust agreed to pay Allen & Co., in addition to a retainer of $500,000 creditable against any transaction fee that may become due, a transaction fee of 2% of the first $1 billion in any sale of the Company completed by January 8, 2003. Thus, Allen & Co. stands to gain $9.1 million if the Merger goes through, Allen & Co. was patently conflicted in its analysis of whether the Merger was fair to InterTrust shareholders, since it was motivated by its own interest in making sure that a transaction occurred by the end of 2002. In sum, Allen & Co.'s analysis could not have been reasonably relied upon by the InterTrust Board of Directors in connection with their recommendation. 42. The Individual Defendants were also clearly motivated to make sure that the transaction occurred since they stood to thereby gain millions of dollars from accelerating stock options. As described in the Schedule 14D-9, in the event of a change of control of the Company, the vesting of options held by defendant Lockwood to acquire 2.5 million shares would accelerate on most unvested shares, while acceleration will vest for defendant Wood with respect to an option for 675,000 shares. In addition, pursuant to acceleration letters, upon an extraordinary corporate transaction of the Company, 100% of any unvested shares granted to certain executive officers will become vested: (1) options to defendant Maher for 350,000 shares; (2) options granted to defendant Nguyen for 400,000 shares; (3) options granted to defendant Scadina for 50,000 shares; (4) options granted to defendant Sharnoon for 450,000 shares. Thus, as a group, the Individual Defendants will receive several millions of dollars worth of accelerated stock options pursuant to the Tender Offer and Merger. 13 Deterrence of Bidders Other Than Fidelio - ---------------------------------------- 43. The Company has in place a stock purchase rights plan ("Rights Agreement") pursuant to which rights were distributed at a rate of one right for each share of InterTrust common stock held by stockholders of record as of June 28, 2002. The rights plan acts as a poison pill ("Poison Pill") by diluting the value of InterTrust stock should an unwanted suitor seek to gain control of InterTrust without the consent of InterTrust's Board of Directors. Effective November 13, 2002, the Individual Defendants amended the Rights Agreement to provide that Fidelio will not be considered an "acquiring person" in connection with the Tender Offer and Merger. Therefore, the Poison Pill is no longer in effect with respect to Fidelio but it remains in effect as to all suitors other than Fidelio. 44. The Poison Pill as currently utilized dramatically impairs the rights of Class members to exercise freedom of choice in a proxy contest or to avail themselves of a bona fide offer to purchase their shares by an acquiror unfavored by incumbent management, i.e., any suitor other than Fidelio. This fundamental shift of control of the Company's destiny from the hands of its shareholders to the hands of the Individual Defendants results in a heightened fiduciary duty of the Individual Defendants to consider, in good faith, third party bids, and further requires the Individual Defendants to pursue a third party's interest in acquiring the Company and to negotiate in good faith with a bidder on behalf of the Company's shareholders. The only legitimate use of the Poison Pill is to maximize consideration to shareholders in any acquisition of the Company, and by suspending the Poison Pill as to Fidelio and to Fidelio only, the Individual Defendants have achieved precisely the opposite effect, in violation of their fiduciary duties. 14 45. The Individual Defendants have engaged in other acts in order to make an acquisition of InterTrust untenable for any third party other than Fidelio. Under Section 8.5 of the Merger Agreement, if the Company enters into an alternative proposal, a termination or "breakup" fee of $16 million, plus up to $2.5 million in expenses, will be awarded to Fidelio. This breakup fee, amounting to approximately 4% of the transaction amount, significantly raises the ante for any other potential offeror. Moreover, as alleged below, an additional $7 million will need to be paid to Fidelio for cancellation of patent rights granted to it by the Company, making the total "breakup" fee, in effect $25.5 million, or nearly 5% of the transaction amount. 46. In addition, in connection with the Tender Offer and Merger, the Individual Defendants have acted to significantly expand the patent rights granted under the Sony License Agreement and have provided Philips with those same rights. On November 13, 2002, at the same time the Tender Offer and Merger was announced, InterTrust entered into an Amendment to the Sony License Agreement (the "Sony License Amendment") with Sony, which expanded the Sony License Agreement to cover all fields, to include additional products and services in the definition of licensed products and services, and to terminate Sony's royalty obligations under the Sony License Agreement. As stated therein, the purpose of the Sony License Amendment was as follows: By this Agreement, the Parties desire to expand the rights granted to Sony by the Agreement, in particular for InterTrust to grant to Sony a royalty free, fully paid-up, nonexclusive license in all fields under the Licensed Patents for Sony products and services in accordance with the terms of this Amendment. 47. Also on November 13, 2002, InterTrust entered into a Foundation Patent License Agreement with Philips (the "Philips License Agreement"), the terms of which are substantially the same as the terms of the Sony License Agreement. Simultaneously therewith, InterTrust 15 entered into an Amendment to the Philips License Agreement (the "Philips License Agreement") with Philips, the terms of which are also substantially the same as the terms of the Sony License Amendment. 48. In exchange for this major expansion of rights, Sony has agreed to pay InterTrust $6 million on the Sony License Amendment, while Philips has agreed to pay Sony $12.5 million ($11.5 million on the Philips License Agreement and $1 million on the Philips License Amendment). However, those payments will obviously inure to Fidelio, and thereby Sony and Philips, after the Merger is consummated. Under the terms of these agreements, the Company or any successor may terminate these agreements by paying $7 million and $6 million on the Sony License Amendment and $1 million on the Philips License Amendment. 49. In effect, the Individual Defendants have transferred the "Crown Jewels" of InterTrust to Fidelio. The Sony License Agreement and the Phillips License Amendment were timed in connection with the Tender Offer so as to make InterTrust unattractive to any entity other than Fidelio since any other acquiror would be saddled with the license agreements with SCA and Philips until the expiration of the last of the licensed patents. Alternatively, any other acquiror would be required to pay an additional $7 million in order to eliminate the patent rights granted to Fidelio. Therefore, the total "breakup" fee to any other suitor would actually be $25.5 million, or over 5% of the transaction amount. CAUSE OF ACTION Claim for Breach of Fiduciary Duties 50. InterTrust represents a highly attractive acquisition candidate. The Individual Defendants' decision to lock in the transaction with Fidelio by making it impossible for any other 16 suitor to seek to acquire InterTrust will deprive the Company's public shareholders of the enhanced premium that further negotiation or exposure of InterTrust to the market could provide. 51. By reason of their positions with InterTrust, the Individual Defendants are in possession of non-public information concerning the financial condition and prospects of InterTrust, and especially the true value and expected increased future value of InterTrust and its assets, which they have not disclosed to InterTrust's public stockholders. The terms of the proposed transaction are grossly unfair to the Class, and the unfairness is compounded by the gross disparity between the knowledge and information possessed by the Individual Defendants by virtue of their positions of control of InterTrust and that possessed by InterTrust's public shareholders. 52. Defendants owe fundamental fiduciary obligations to InterTrust's stockholders to take all necessary and appropriate steps to maximize the value of their shares. In addition, the Individual Defendants have the responsibility to act independently so that the interests of the Company's public stockholders will be protected, to consider seriously all bona fide offers for the Company, and to conduct fair and active bidding procedures or other mechanisms for checking the market to assure that the highest possible price is achieved. Further, the directors of InterTrust must adequately ensure that no conflict of interest exists between the Individual Defendants' own interests and their fiduciary obligations to maximize stockholder value or, if such conflicts exist, to insure that all such conflicts will be resolved in the best interests of the Company's stockholders. 53. Defendants have refused to take those steps necessary to ensure that InterTrust's stockholders will receive maximum value for their shares of InterTrust stock. Defendants have refused to seriously consider offers, other than the offer of Fidelio, and have failed to announce 17 any active auction or open bidding procedures best calculated to maximize shareholder value in selling the Company. In addition, defendants have enacted unreasonable barriers which have made it untenable for any party other than Fidelio to acquire the Company. Moreover, despite their duty to maximize shareholder value, the defendants have clear and material conflicts of interest and are acting to better their own interest at the expense of InterTrust's public shareholders. 54. The proposed sale is wrongful, unfair and harmful to InterTrust's public stockholders, and represents an effort by the Individual Defendants to aggrandize their own financial position and interests at the expense of and to the detriment of Class members. The transaction is an attempt to deny plaintiffs and the other members of the Class their rights while usurping the same for the benefit of Fidelio on unfair terms. 55. The Individual Defendants have violated the fiduciary duties owed to the public shareholders of InterTrust, including their duties of loyalty, disclosure and duty of care. The Individual Defendants' agreement to the terms of the Tender Offer, its timing, and the failure to auction the Company and invite other bidders, and the Individual Defendants' failure to provide a market check demonstrates a clear absence of the exercise of loyalty to InterTrust's public shareholders. 56. By transferring the "Crown Jewels" of the Company to Fidelio, thereby assuring that no other potential bidder would be able to bid on the Company, the Individual Defendants have locked themselves into a merger with Fidelio without fully informing themselves about or intentionally ignoring the intrinsic worth of InterTrust. 57. The Individual Defendants have breached their fiduciary and other common law duties owed to plaintiffs and other members of the Class in that they have not and are not 18 exercising independent business judgment and have acted and are acting to the detriment of the Class. 58. Because the Individual Defendants have breached their duties of loyalty, disclosure, good faith and independence in connection with the sale of InterTrust, the burden of proving the inherent or entire fairness of the Acquisition, including all aspects of its negotiation and structure, is placed upon the Individual Defendants as a matter of law. 59. Defendant Fidelio has knowingly aided and abetted the breaches of fiduciary duty committed by the other defendants to the detriment of InterTrust's public shareholders. Indeed, the proposed transaction could not take place without the active participation of Fidelio. 60. As a result of the actions of the Individual Defendants, plaintiffs and the other members of the Class have been and will be damaged in that they have not and will not receive their fair proportion of the value of InterTrust's assets and businesses and/or have been and will be prevented from obtaining a fair and adequate price for their shares of InterTrust's common stock. 61. Plaintiffs seek preliminary and permanent injunctive relief and declaratory relief preventing defendants from inequitably and unlawfully depriving plaintiffs and the Class of their rights to realize a full and fair value for their stock, and to compel defendants to carry out their fiduciary duties to maximize shareholder value. 62. Only through the exercise of this Court's equitable powers can plaintiffs be fully protected from the immediate and irreparable injury which defendants' action threaten to inflict. Defendants are precluding the stockholders' enjoyment of the full economic value of their investment by failing to proceed expeditiously and in good faith to evaluate and pursue a premium acquisition proposal that would maximize shareholder value. 19 63. Unless enjoined by the Court, defendants will continue to breach their fiduciary duties owed to plaintiffs and the members of the Class, and/or aid and abet and participate in such breaches of duty, and will prevent the sale of InterTrust at an appropriate premium, all to the irreparable harm of plaintiffs and other members of the Class. 64. Plaintiffs and the Class have no adequate remedy at law. 20 WHEREFORE, plaintiffs demand judgment as follows: (a) Declaring this to be a proper class action, certifying plaintiffs as class representatives, and appointing their counsel to represent the Class; (b) Ordering the Individual Defendants to fulfill their fiduciary duties to plaintiffs and the other members of the Class by announcing their intention to: (i) Cooperate fully with any entity or person, having a bona fide interest in proposing any transactions that would maximize shareholder value; (ii) Immediately undertake an appropriate evaluation of InterTrust's worth as a merger/acquisition candidate; (iii) Take all appropriate steps to enhance InterTrust's value and attractiveness as a merger/acquisition candidate; (iv) Take all appropriate steps to effectively expose InterTrust to the marketplace in an effort to create an active auction of the Company; (v) Act independently so that the interests of the Company's public stockholders will be protected; and (vi) Adequately ensure that no conflicts of interest exist between the Individual Defendants' own interests and their fiduciary obligation to maximize shareholder value or, in the event such conflicts exist, to ensure that all conflicts of interest are resolved in the best interests of the public stockholders of InterTrust; (vii) Require the proper implementation of InterTrust's poison pill so as to maximize shareholder value; 21 (c) Ordering the Individual Defendants, jointly and severally, to account to plaintiffs and the Class for all damages suffered and to be suffered by them as a result of the acts and transactions alleged herein; (d) Awarding plaintiffs the costs and disbursements of this action, including a reasonable allowance for plaintiffs' attorneys' and experts' fees; and (e) Granting such other and further relief as may be just and proper. DATED: November 27, 2002 CHIMICLES & TIKELLIS LLP /s/ Pamela S. Tikellis --------------------------- Pamela S. Tikellis Robert J. Kriner, Jr. One Rodney Square Post Office Box 1035 Wilmington, DE 19899 Telephone: (302) 656-2500 Attorneys for Plaintiffs OF COUNSEL: WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP Michael Jaffe 270 Madison Avenue New York, New York 10016 Telephone: (212) 545-4600 Fax: (212) 545-4653 22 -----END PRIVACY-ENHANCED MESSAGE-----