Free Response in Opposition to Motion - District Court of Arizona - Arizona

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BEUS GILBERT PLLC
ATTORNEYS AT LAW

4800 NORTH SCOTTSDALE ROAD SUITE 6000 SCOTTSDALE, ARIZONA 85251 TELEPHONE (480) 429-3000

Leo R. Beus/002687 ­ [email protected] Scot C. Stirling/005757 ­ [email protected] Steven E. Weinberger/015349 ­ [email protected] Attorneys for Individual Plaintiffs and Trustee

STEVE BROWN & ASSOCIATES, LLC
1414 E. INDIAN SCHOOL ROAD, SUITE 200 PHOENIX, ARIZONA 85014-2412 TELEPHONE (602) 264-9224

Steven J. Brown/010792 ­ [email protected] Co-Counsel for Trustee UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DIANE MANN, as Trustee for the Estate of LeapSource, Inc., CHRISTINE V. KIRK, et al., Plaintiffs, vs. GTCR GOLDER RAUNER, L.L.C.; et al., Defendants.

Case No.: CIV-02-2099-PHX-RCB

PLAINTIFFS' RESPONSE TO GTCR RENEWED MOTION FOR SUMMARY JUDGMENT RE REMAINING CLAIMS IN COUNTS 2 AND 5 (Honorable Robert C. Broomfield) (Oral Argument Requested)

MICHAEL MAKINGS, Counterclaimant,

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vs. LEAPSOURCE, INC., et al., Counterdefendants.

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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................. Error! Bookmark not defined. I. II. INTRODUCTION. ........................................................................................................ 1 ARGUMENT................................................................................................................. 5 A. B. III. The Duty Of Loyalty / Good Faith (Counts 2 and 5) ......................................... 5 The Duty of Care (Count 2).............................................................................. 11

CONCLUSION............................................................................................................ 15

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Plaintiffs submit the following response to the GTCR Renewed Motion For Summary Judgment Regarding Remaining Claims 2 and 5 (Docket No. 475). This Response is

supported by the plaintiffs' Response to GTCR's Statement of Uncontested ICG-Related Facts and Statement of Additional Facts Precluding Summary Judgment, submitted contemporaneously with this Response. GTCR's Motion should be denied because the record demonstrates the existence of

7 8 9 10 11 12 13 14 15 16 17 following pages will therefore attempt to abbreviate the legal analysis that would otherwise 18 19 20 21 22 23 24 25
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genuinely disputed material facts concerning the GTCR defendants' breaches of their duty of loyalty, including the duty of good faith, and of breaches of duty of care by the GTCR majority shareholders. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION. By its order dated March 30, 2007, the Court has already provided its legal analysis of the duty of loyalty, including the duty of good faith, under Delaware law. The Court has also provided its legal analysis of the duty of care claim with respect to the GTCR majority shareholders. Mann v GTCR Golder Rauner, 483 F. Supp. 2d 884 (D. Ariz. 2007). The

be required with respect to some of those issues. In brief, with respect to the duty of loyalty / good faith, the facts show that the GTCR defendants knew that LeapSource had paid $10 million for the ICG business in January 2000, and knew of Mike Makings' interest in acquiring those assets from LeapSource no later than January 2001. Knowing that LeapSource was headed for bankruptcy ­ because the GTCR defendants made the decision to stop funding and to put the company into bankruptcy 1
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­ they nevertheless made no effort to locate other potential buyers for the ICG assets,1 nor did they obtain an appraisal of the ICG assets. Instead, they allowed Makings to take the assets in a fraudulent transfer by failing to do or to attempt anything else to preserve those assets for the benefit of LeapSource and its creditors. The evidence shows that GTCR itself estimated the value of the ICG assets at $4-6 million as recently as Monday, March 12, 2001 ­ the same day that Makings was visiting

7 8 9 10 11 12 13 14 15 16 assets to Makings' new company effective March 23. Makings barely had time to resign 17 18 19 20 21 22 23 24 25 Before LeapSource purchased the ICG assets for $10 million in January 2001, Makings had been negotiating with at least two other companies interested in purchasing ICG. The GTCR defendants did nothing to inquire about or to follow up with previously identified potential purchasers, or to find another potential purchaser, before giving the assets away to Makings.
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with GTCR in Chicago. When Makings returned to Phoenix from that trip, before the end of the week he had formed a new corporation for the purpose of acquiring the ICG assets ­ even using the name "ICG Group," although LeapSource had acquired ICG and its tradenames in January 2000. See the Purchase Agreement attached as Exhibit 1 to the GTCR Statement of Facts, Section 1.1.2. Makings announced his intent to acquire the ICG assets at a board meeting on the following Tuesday, March 20, with David Eaton's apparent approval, while he was still CEO and on the board of directors of LeapSource, and an agreement was made to transfer the ICG

from the board on March 22 before the effective date of the transaction. The GTCR Motion takes up the sale of the ICG assets as if the idea sprang up from out of the ground on March 30, 2001, when the GTCR principals on the LeapSource board

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and GTCR VI as the majority shareholder approved the closing of the transaction. GTCR actually argues that the LeapSource board and GTCR VI were suddenly faced with this decision for the first time at the end of March, when there was "no time" for negotiations with Makings or for marketing the ICG assets, and thus no ability to do anything but give the assets away to Makings. See GTCR Statement of Facts paragraphs 24 and 25. That is not what happened. The GTCR defendants knew of Makings' interest in

7 8 9 10 11 12 13 14 15 16 fraudulently transfer the ICG assets to him for no real consideration at all. After transferring 17 18 19 20 21 22 23 24 25
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acquiring these assets from LeapSource no later than January 2001, remained aware of his interest in those assets during the following two months, and at least began the discussions that led to giving him those assets while he remained an officer and director of the company. Knowing of his interest in those assets and knowing of his obvious conflict, they made no effort to protect those assets or the value that they represented for the benefit of other creditors of LeapSource, knowing that LeapSource was insolvent. Instead, they recruited Makings as an ally in their fight with Chris Kirk and Tom Gilman, removed Kirk and Gilman from the board, made Makings the CEO, and then struck a deal with Makings to

the ICG assets to Makings in March, GTCR waited out the 90-day preference period, and only then put LeapSource into bankruptcy. In a tacit admission that they were simply giving the assets to Makings, the Purchase Agreement (attached as Exhibit 16 to the GTCR Statement of Facts) provides in Section 2.5 that, if Makings should turn around and sell the assets within one year, he would be required to divide the entire proceeds of the sale "in excess of any capital invested by Buyer in the business prior to such sale" ­ not to divide the "net" proceeds in excess of the consideration

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supposedly paid by Makings for the ICG assets, but to divide the entire proceeds excluding only any capital investment by Makings made prior to the sale. If Makings had actually provided consideration to LeapSource worth millions of dollars, as he claims, such a provision to divide the proceeds of a sale with LeapSource would make absolutely no sense from Makings' standpoint. The GTCR directors and GTCR VI did not act loyally to LeapSource, and did not act

7 8 9 10 11 12 13 14 15 16 breach of their duty of care in approving the transaction that gave the ICG assets to Makings, 17 18 19 20 21 22 23 24 25
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in good faith, when they allowed this transaction to go forward. Moreover, this is not a case where the GTCR defendants were merely careless in failing by proper oversight to prevent Makings or Eaton from breaching their fiduciary duties to LeapSource. Here, the GTCR defendants themselves participated at every step in the process and in the transaction that culminated in giving the ICG assets to Makings. They breached their duties of loyalty and good faith to LeapSource, and should be liable for the resulting loss to the LeapSource estate. The same conduct also supports a claim against the GTCR majority shareholders for

without making any effort to inquire or to investigate the availability of other potential purchasers of the ICG assets ­ including companies that had been negotiating with Makings to acquire the ICG business just before it was acquired by LeapSource only one year earlier. Without any attempt to appraise or to market the assets before giving them to Makings, and without considering whether the transaction was fair to LeapSource and to other creditors of LeapSource, which was clearly insolvent and headed for bankruptcy by GTCR's decision, GTCR gave the ICG assets to Makings for no real consideration to LeapSource.

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II.

ARGUMENT A. The Duty Of Loyalty / Good Faith (Counts 2 and 5)

The Court has recognized that good faith is a necessary component of the duty of loyalty: Third, and perhaps most significant in terms of the present motion, the business judgment rule will not shield a director from liability if that director did not act in good faith. Mann v GTCR Golder Rauner, 483 F. Supp. 2d 884, 902 (D. Ariz. 2007). A party cannot satisfy its obligations as a director or majority shareholder by allowing the assets of a company of which it owes fiduciary duties to be squandered in a transaction that is irrational

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In the event of a bankruptcy, the interests of a majority shareholder are not congruent with the interests of creditors for whom some recovery may be possible if the assets of the bankruptcy company are protected and not squandered before the company is put into bankruptcy.
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and wasteful, particularly when the transaction is apparently motivated by a desire to "avoid embarrassment" or to protect other interests of the majority shareholder, such as its relations with other portfolio companies. See, e.g., Response to GTCR SOF paragraph 37. From the standpoint of creditors of LeapSource creditors,2 such motivations and conduct are simply irrational. Stated somewhat differently, "[i]rrationality is the outer limit of the business judgment rule." Brehm, 746 A.2d at 264. "Irrationality may be the functional equivalent of the waste test or it may tend to show that the decision is not made in good faith, which is a key ingredient of the business judgment rule." Mann v GTCR Golder Rauner, 483 F. Supp. 2d 884, 902 (D. Ariz. 2007).

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Here, GTCR caused the ICG assets to be squandered by waiting until late March to decide that there was nothing to be done with them except to give them to Mike Makings. Notwithstanding GTCR's knowledge, beginning no later than January 2001, that Makings was interested in acquiring the ICG assets and returning to his former business (and thus also his interest in leaving LeapSource), the GTCR directors completely abdicated their responsibility to act to preserve the assets for the benefit of LeapSource and its creditors.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 learned from Makings in January of his interest in acquiring the ICG assets. They were also 24 25 the same people who ultimately determined that GTCR would stop funding LeapSource. 6 The GTCR majority shareholders also did nothing to appraise or to market the ICG assets, or even to determine whether they could be sold to Makings for a fair price, before deciding that the time for acting on their fiduciary obligations had simply run out. Neither exercised business judgment with respect to Makings' interest in those assets when it was called for. On the other hand, "[i]f the presumption of the business judgment rule is rebutted, ..., the burden shifts to the director defendants to prove to the trier of fact that the challenged transaction was `entirely fair' to the shareholder plaintiff." Emerald Partners, 787 A.2d at 91 (internal quotation marks and footnote omitted). Mann v GTCR Golder Rauner, 483 F. Supp. 2d 884, 903 (D. Ariz. 2007). "Thus, directors' decisions will be respected by courts unless the directors are interested or lack independence relative to the decision, do not act in good faith, act in a manner that cannot be attributed to a rational business purpose or reach their decision by a grossly negligent process that includes the failure to consider all material facts reasonably available." Brehm, 746 A.2d at 264 n. 66. Mann v GTCR Golder Rauner, 483 F. Supp. 2d 884, 903 (D. Ariz. 2007) (emphasis added). Here, the GTCR directors on the LeapSource board were the same people who

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Knowing their own intentions with respect to LeapSource, they did not act on the information actually known to them and reasonably available to determine whether the ICG assets could be sold for a reasonable price to potential purchasers who may have been interested in acquiring the company only twelve months earlier, when ICG was sold to LeapSource. There is ample evidence on this record of fiduciaries' failure to act in the face of a

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 there was nothing the GTCR directors and majority shareholders could do on March 30 when 23 24 25 suddenly "faced with the decision" whether to sell the ICG assets to Makings, except to give them to Makings on the terms that he offered ­ and to throw in a meaningless provision 7 recognized duty. Before the ICG assets were given to Makings in late March, the GTCR representatives who were both on the LeapSource board and advising the GTCR Investment Committee recognized Makings' interest in the ICG assets, their value, and the need to obtain an appraisal. SOAF paragraphs 42-48 (Makings' interest and the need for an

appraisal) and 59 (noting a "conservative estimate of the value [of ICG] is approximately $46 M [million]"). A failure to act in good faith may be shown, for instance, where the fiduciary intentionally acts with a purpose other than that of advancing the best interests of the corporation, where the fiduciary acts with the intent to violate applicable positive law, or where the fiduciary intentionally fails to act in the face of a known duty to act, demonstrating a conscious disregard for his duties. There may be other examples of bad faith yet to be proven or alleged, but these three are the most salient. Stone v. Ritter, 911 A.2d 362, 369 (Del. 2006), quoting In re Walt Disney Co. Deriv. Litig., 906 A.2d 27, 67 (Del. 2006) (emphasis added). The entire thrust of GTCR's argument with respect to this issue appears to be that

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about dividing the proceeds from the sale if Makings turned around and sold the assets within one year, in order to make it appear that the GTCR defendants had got something in return for the assets. See response to paragraph 30, Plaintiffs' Statement of Facts at p. 26. That attitude, and the conduct that resulted from it, is not consistent with the duty of loyalty, because no conscientious director or majority shareholder could honestly justify a fraudulent transfer of millions of dollars of an insolvent company's assets to an insider by

7 8 9 10 11 12 13 14 15 16 17 another potential purchaser while there was time to do so, without negotiating a fair price 18 19 20 21 22 23 24 25
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explaining that time just ran out on their options to do anything else. The second doctrinal consequence is that the fiduciary duty of loyalty is not limited to cases involving a financial or other cognizable fiduciary conflict of interest. It also encompasses cases where the fiduciary fails to act in good faith. As the Court of Chancery aptly put it in Guttman, "[a] director cannot act loyally towards the corporation unless she acts in the good faith belief that her actions are in the corporation's best interest." Stone v. Ritter, 911 A.2d at 370, quoting Guttman v. Huang, 823 A.2d 492, 506 n. 34 (Del. Ch. 2003) (emphasis added). It cannot be enough for the GTCR Defendants to say that they believed that they were acting in the best interests of LeapSource, when they gave the ICG assets to Makings without any honest effort to obtain an appraisal and to market the assets to

from Makings, and without attempting to preserve the value of the ICG assets under the protection of the Bankruptcy Court in order to allow an opportunity to realize their actual value from another potential purchaser. The GTCR defendants have attempted to rationalize their failure to preserve the ICG assets by implying that it couldn't be done. Because one of the many scenarios considered in early February involved a "revitalization" plan for LeapSource and ICG together, the

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GTCR defendants suggest that the failure of the assumptions behind that plan ­ including the assumption that GTCR would continue to fund LeapSource ­ made it impossible to realize the value in the ICG assets. That is rank nonsense. ICG had been operating as a standalone company only one year earlier, before it was acquired by LeapSource, and the GTCR defendants recognized that it had the ability to do so again. They had a duty to preserve the value of the ICG assets for the benefit of the LeapSource and its creditors, and they refused

7 8 9 10 11 12 13 14 15 16 in the best interest of LeapSource. 17 18 19 20 21 22 23 24 25
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to honor a clear duty to do so. The GTCR defendants have also attempted to hide behind Eaton ­ a conflicted advisor that they were responsible for selecting, and who was retained without disclosing his relationship to Kirkland & Ellis to the non-GTCR members of the board. See Response to GTCR Statement of Facts paragraph 20. However, the GTCR defendants were themselves directly involved in the events that led to the fraudulent transfer of the ICG assets to Makings, and knew that Eaton's rationalizations of the transaction were only meant to provide them with cover for a transaction that they caused to occur knowing that it was not

The GTCR defendants allowed the sale of the ICG assets to Makings. They attempt to exculpate themselves from liability for that obviously fraudulent transaction by arguing that they relied upon Eaton's recommendation ­ but that is a question of fact for the jury to believe or not to believe, and in any case it was the GTCR defendants who put Eaton in a position to make that recommendation. Whether the GTCR defendants actually relied upon Eaton's suggestion that they could "get comfortable" with the terms of that transaction is a fact question for the jury. The

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GTCR defendants knew that LeapSource had paid $10 million for those assets only one year earlier, because they had approved the acquisition of ICG at that price. They also knew (and the record does not show that they ever told Osborn Maledon) that they believed the ICG assets were still worth $4-6 million in March of 2001. They also knew that the promissory note to Makings was essentially worthless, after they had refused to put up the money to pay the interest on the note when it became due, which caused the note to be in default. Eaton

7 8 9 10 11 12 13 14 15 16 deposition finally admitted that he had "no opinion" about the value of the promissory note. 17 18 19 20 21 22 23 24 25
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testified that, without additional funding from GTCR, LeapSource was insolvent, and it had already failed to pay interest on the note when it became due. GTCR and Makings expert Ed McDonough opinion that the transaction was fair was based in part upon his assertion that the worthless promissory note that Makings surrendered in exchange for the ICG Assets was actually worth $2.5 million, without regard to its collectibility. That opinion is simply laughable, and is not entitled to any weight or

consideration at all. After trying to dance around that issue and to avoid confronting the question of the promissory note's actual value for as long as he could, Mr. McDonough at his

Q. So then when this report says at page 28 that "Table 13 reflects the value of the Promissory Note, including accrued interest," it is not reflecting the fair market value of the promissory note; is that right? A. I'd say that's a correct statement. Q. And you made no effort to determine the fair market value of the promissory note as of that date; is that right? A. That's correct. Q. And you have no opinion about the fair market value of that promissory note as of that date; is that correct?

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A. That's correct. McDonough Dep. at 194:9-21 (emphasis added). The GTCR defendants knew better. They had not guaranteed the note, and they knew it was worthless, because they refused to provide LeapSource with the money to pay it. The GTCR defendants did not act loyally or in good faith when they caused the ICG assets to be transferred to Makings without receiving value in return for the benefit of LeapSource and its other creditors.

8 9 10 11 12 13 14 15 16 17 18 undermining LeapSource management in a way that sabotaged efforts to market the 19 20 21 22 23 24 25
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B.

The Duty of Care (Count 2)

The evidence of the GTCR majority shareholders' lack of good faith in approving the fraudulent transfer of the ICG assets to Makings is also evidence of their lack of care. The GTCR majority shareholders' bizarre conduct in the first quarter of 2001, including their interference with efforts to market LeapSource or to find other potential investors for LeapSource, is also evidence of their lack of due care for the interests of LeapSource during a time when LeapSource needed coherent direction from its board of directors and management in order to pursue any strategy for the sale of the company. In response to justified criticism from Tom Gilman, the GTCR majority shareholders reacted by

company. See SOAF paragraphs 50-54. GTCR majority shareholders have argued, in effect, that there really is no such thing as a duty of care on the part of a majority shareholder, because there can never be a breach of the duty of care unless it is also a breach of the duty of loyalty (in which case the breach of the duty of care is obviously redundant and effectively meaningless). We do not believe that

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Official Comm. Of the Unsecured Creditors of Color Tile, Inc. v. Investcorp S.A., 137 F.Supp.2d 502, 514-15 (S.D.N.Y. 2001) can fairly be interpreted to simply do away with the duty of care in that fashion. We believe the Court has rejected the GTCR defendants' argument with respect to this point in its March 30, 2007 Order. Mann v GTCR Golder Rauner, 483 F. Supp. 2d 884, 915-16 (D. Ariz. 2007), and that the test for whether the duty of due care has been violated is

7 8 9 10 11 12 13 14 15 16 17 Gilman for their destructive interference in the management of the company, and for the 18 19 20 21 22 23 24 25
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not whether there has also been a breach of the duty of loyalty, but rather: The [threshold] question is whether the process employed [in making the decision] was either rational or employed in a good faith effort to advance corporate interests. Id. (bold emphasis added). The conduct described by Tom Gilman in his February 24 memorandum is not consistent with the GTCR shareholders' duty to act rationally. In its original Motion to dismiss this claim, GTCR denied that it was "grossly negligent" in its decision-making process. In fact, its conduct was worse than grossly negligent; in the end, it was malicious, because when GTCR and the GTCR directors were properly chastised by director Tom

directors' total abdication of their responsibility to the Company, they reacted by firing the CEO, removing Mr. Gilman from the board, and disposing of the pieces of the business without making any serious effort to preserve the value of the business for the benefit of creditors.

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GTCR has also argued previously that GTCR "went to great lengths to inform itself" before it began taking radical action to interfere in the management of LeapSource, particularly in early 2001. In fact, one of the complaints made by Tom Gilman in his memorandum to the board on February 24 2001 was that, while the GTCR defendants who were directors of LeapSource neglected their responsibilities to the Company ­ the board did not even meet and therefore did not review or control the actions taken by GTCR beginning

7 8 9 10 11 12 13 14 15 16 in allowing the fraudulent transfer of the ICG assets to Makings, and also in their reaction to 17 18 19 20 21 22 23 24 25
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in late December 2000 ­ GTCR gave inconsistent direction directly to people at different levels of management in the company, and interfered with management's ability to implement a coherent strategy to market the company, at a time when GTCR was unwilling to continue funding it. SOAF paragraph 56. Even if GTCR did not have a duty to continue funding the company under the Purchase Agreement, as the Court has said, it nevertheless owed a duty to the company and to its creditors when the company was insolvent, to allow the company to act in a way that preserved the value of its assets for the benefit of creditors. In this case, there is evidence that the GTCR majority shareholders acted in bad faith

the Gilman Memorandum and to a confrontation that threatened to embarrass GTCR by exposing the board's (with a majority of GTCR principals) and the majority shareholders' abdication of their responsibility to the company, and their failure to provide the support and direction and oversight promised by GTCR and required of the GTCR directors. Rather than act in the best interests of LeapSource, GTCR quickly revealed that its priorities were to "(1) limit downside (2) avoid embarrassment [and] (3) protect COMSYS and other GTCR investment(s)." Response to GTCR SOF paragraph 37, Sean Cunningham

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notes, Dep. Ex. 196 at Bates range number GTCR012260-012261.

(SOAF Exhibit 8)

Protecting GTCR investments in other companies, and avoiding embarrassment to GTCR are not interests shared by other LeapSource shareholders, and GTCR's concern for protecting those interests of GTCR also caused it to act contrary to the best interests of LeapSource. In paragraphs 50-54 of the Plaintiffs' Statement of Additional Facts, the plaintiffs have pointed to specific complaints made by Tom Gilman, the acting CFO and a member of

7 8 9 10 11 12 13 14 15 16 made by Makings that were not being shared with LeapSource management, or with the 17 18 19 20 21 22 23 24 25
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the board of directors at the time, about GTCR's conduct and its effects on LeapSource, including the following: The Gilman Memorandum noted the lack of board meetings and the failure of the board to exercise its proper role both to restrain very disruptive "direct action" by GTCR and to exercise its own proper authority over LeapSource management. Gilman Memorandum at 3-4 ("Management Issues"), EX605-006 to -007. (SOAF paragraph 52) The Gilman Memorandum also complained about the effect that GTCR's relationship with Makings was having on management's ability to run the company, as plans were being

entire board. paragraph 53)

Gilman Memorandum, at EX605-007, second full paragraph.

(SOAF

The Gilman Memorandum recited the continuing possibility of selling LeapSource to other companies, potentially including EDS, Exult, Perot Systems, and ACS, and the importance of having a decision to fund the acquisition of Cargill as a new client. GTCR's mixed signals contributed to the loss of a client in Computer Horizons, and further damaging

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efforts to market the company to a potential purchaser. Gilman Memorandum at EX605-009 to -010 (Recent Events). (SOAF paragraph 54) This evidence from a member of the board at the time these events occurred is certainly relevant, and demonstrates the existence of genuine issues of material fact concerning GTCR's uninformed, incoherent, and irrational conduct toward LeapSource management at a critical time, and the harmful effects of GTCR's conduct on LeapSource's

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efforts to market the company as GTCR was refusing to continue funding its operations. III. CONCLUSION. The GTCR Motion for Summary Judgment should be denied. Dated this 19th day of July, 2007. BEUS GILBERT PLLC

By

Scot C. Stirling Leo R. Beus Scot C. Stirling Steven E. Weinberger 4800 North Scottsdale Road Suite 6000 Scottsdale, AZ 85251 Attorneys for Individual Plaintiffs and Trustee

STEVE BROWN & ASSOCIATES, LLC Steven J. Brown 1414 E. Indian School Road, Suite 200 Phoenix, AZ 85014 Co-Counsel for Trustee

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CERTIFICATE OF SERVICE I hereby certify that on 19 July, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Kevin A. Russell David S. Foster Nicholas B. Gorga LATHAM & WATKINS LLP [email protected] [email protected] [email protected] Attorneys for Defendants GTCR Golder Rauner, LLC, GTCR Fund VI, LP, GTCR VI Executive Fund, LP, GTCR Associates VI, Joseph P. Nolan, Bruce V. Rauner, Daniel Yih, David A. Donnini and Philip A. Canfield Don P. Martin Edward A. Salanga QUARLES & BRADY STREICH LANG, LLP [email protected] [email protected] Attorneys for Defendants GTCR Golder Rauner, LLC, GTCR Fund VI, LP, GTCR VI Executive Fund, LP, GTCR Associates VI, Joseph P. Nolan, Bruce V. Rauner, Daniel Yih, David A. Donnini and Philip A. Canfield Merrick B. Firestone Veronica L. Manolio RONAN & FIRESTONE, PLC [email protected] [email protected] Attorney for Defendant Michael Makings

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Richard A. Halloran Jon Weiss LEWIS & ROCA, L.L.P. [email protected] [email protected] Attorneys for Defendants David Eaton and AEG Partners LLC John Bouma James R. Condo Patricia Lee Refo SNELL & WILMER LLP [email protected] [email protected] [email protected] Attorneys for Kirkland & Ellis Steven J. Brown STEVE BROWN & ASSOCIATES, LLC Co-Counsel for Trustee [email protected]

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