NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES
A Federal Court authorized this Notice. This is not a solicitation from a lawyer.
NOTICE OF PENDENCY OF CLASS ACTION: Please be advised that your rights may be affected by the above-captioned securities class action (the “Action”) pending in the United States District Court for the Middle District of Florida (the “Court”), if, during the period between December 21, 2018 and April 1, 2019, inclusive (the “Settlement Class Period”), you purchased or otherwise acquired Apyx Medical Corporation common stock (“Apyx Common Stock”) or call options on Apyx Common Stock (“Apyx Call Options”), or sold put options on Apyx Common Stock (“Apyx Put Options”), and were damaged thereby.
NOTICE OF SETTLEMENT: Please also be advised that Court-appointed Lead Plaintiff Gregory P. Mouton and plaintiff Kyle Pritchard (collectively, “Plaintiffs”), on behalf of themselves and the Settlement Class (as defined in ¶29 of the Notice), have reached a proposed settlement of the Action for $3,000,000 in cash that, if approved, will resolve all claims in the Action (the “Settlement”).
PLEASE READ THE NOTICE CAREFULLY. The Notice explains important rights you may have, including the possible receipt of cash from the Settlement. If you are a member of the Settlement Class, your legal rights will be affected whether or not you act.
If you have any questions about the Notice, the proposed Settlement, or your eligibility to participate in the Settlement, please DO NOT contact defendant Apyx Medical Corporation (“Apyx” or the “Company”) or defendant Charles D. Goodwin (the “Individual Defendant,” together with Apyx, the “Defendants”), or their counsel. All questions should be directed to Lead Counsel or the Claims Administrator (see ¶96 of the Notice).
1. Description of the Action and the Settlement Class: The Notice relates to a proposed Settlement of claims in a pending securities class action brought by investors alleging, among other things, that Defendants violated the federal securities laws by making false and misleading statements regarding Apyx. A more detailed description of the Action is set forth in paragraphs 11-19 of the Notice. The proposed Settlement, if approved by the Court, will settle claims of the Settlement Class, as defined in paragraph 29 of the Notice. The claims that will be released. and definitions relevant thereto, are set forth in paragraphs 33-39 of the Notice.
2. Statement of the Settlement Class’s Recovery: Subject to Court approval, Plaintiffs, on behalf of themselves and the Settlement Class, have agreed to settle the Action in exchange for a settlement payment of $3,000,000 in cash (the “Settlement Amount”) to be deposited into an escrow account. The Net Settlement Fund (i.e., the Settlement Amount plus any and all interest earned thereon (the “Settlement Fund”) less (a) any Taxes, (b) any Notice and Administration Costs, (c) any Litigation Expenses awarded by the Court, and (d) any attorneys’ fees awarded by the Court) will be distributed in accordance with a plan of allocation that is approved by the Court, which will determine how the Net Settlement Fund shall be allocated among members of the Settlement Class. The proposed plan of allocation (the “Plan of Allocation”) is set forth on pages 10-16 of the Notice.
3. Estimate of Average Amount of Recovery Per Share or Option: Based on Plaintiffs’ damages expert’s estimates of the number of shares of Apyx Common Stock and Apyx Call Options purchased, and Apyx Put Options sold, during the Settlement Class Period that may have been affected by the conduct at issue in the Action and assuming that all Settlement Class Members elect to participate in the Settlement, the estimated average recovery would be approximately $0.579 per affected share of common stock, before the costs of providing notice and administering the Settlement. Settlement Class Members should note, however, that these are only estimates based on the overall number of potentially affected shares and options. Some Settlement Class Members may recover more or less than this estimated amount depending on, among other factors, when and at what prices they purchased/acquired or sold their Apyx Securities, and the total number of valid Claim Forms submitted. Distributions to Settlement Class Members will be made based on the Plan of Allocation set forth herein (see pages 10-16 of the Notice) or such other plan of allocation as may be ordered by the Court.
4. Statement of Potential Outcome of the Case: The Parties do not agree on whether Plaintiffs would have prevailed on their claims against the Defendants. Nor do they agree on the average amount of damages per share, call option, and put option that would be recoverable if Plaintiffs were to prevail in the Action. Defendants deny that they have engaged in any wrongdoing as alleged by Plaintiffs, deny any liability whatsoever for any of the claims that Plaintiffs alleged in the Complaint, and deny that the price of Apyx Common Stock and Call Options was artificially inflated, and that the price of Apyx Put Options was artificially depressed, as a result of Defendants’ alleged violations of the federal securities laws. The issues on which the Parties disagree include: (i) whether any of the Defendants failed to make required disclosures during the Settlement Class Period; (ii) whether or not Defendants’ conduct caused any harm to Settlement Class Members for which any damages could be recovered if Plaintiffs were to have prevailed on each claim alleged; (iii) the amounts by which the price of Apyx Common Stock and Call Options was artificially inflated, and the price of Apyx Put Options was artificially depressed, if at all, during the Settlement Class Period; (iv) the extent to which external factors, such as general market, economic and industry conditions, influenced the trading price of Apyx Securities during the Settlement Class Period; (v) who, if anyone, can be included in the Settlement Class; (vi) the amount, if any, of any alleged damages suffered by Settlement Class Members during the Settlement Class Period; and (vii) whether Defendants had other meritorious defenses to the alleged claims.
5. Attorneys’ Fees and Expenses Sought: Plaintiffs’ Counsel, which have been prosecuting the Action on a wholly contingent basis since its inception in 2019, have not received any payment of attorneys’ fees for their representation of the Settlement Class and have advanced the funds to pay expenses necessarily incurred to prosecute this Action. Court-appointed Lead Counsel, Glancy Prongay & Murray LLP, will apply to the Court for an award of attorneys’ fees for all Plaintiffs’ Counsel in an amount not to exceed 33⅓% of the Settlement Fund. In addition, Lead Counsel will apply for reimbursement of Litigation Expenses paid or incurred in connection with the institution, prosecution and resolution of the claims against the Defendants, in an amount not to exceed $50,000, which may include an application for reimbursement of the reasonable costs and expenses incurred by Plaintiffs directly related to their representation of the Settlement Class. Any fees and expenses awarded by the Court will be paid from the Settlement Fund. Settlement Class Members are not personally liable for any such fees or expenses. If the Court approves Lead Counsel’s fee and expense application, the estimated average amount of fees and expenses, assuming claims are filed for all affected shares, call options, and put options will be approximately $0.203 per affected share of Apyx Common Stock.
6. Identification of Attorneys’ Representatives: Plaintiffs and the Settlement Class are represented by Casey Sadler, Esq. of Glancy Prongay & Murray LLP, 1925 Century Park East, Suite 2100, Los Angeles, CA 90067, (888)773-9224, email@example.com.
7. Reasons for the Settlement: Plaintiffs’ principal reason for entering into the Settlement is the substantial immediate cash benefit for the Settlement Class without the risk or the delays inherent in further litigation. Moreover, the substantial cash benefit provided under the Settlement must be considered against the significant risk that a smaller recovery—or indeed no recovery at all—might be achieved after contested motions, a trial of the Action and the likely appeals that would follow a trial. This process could be expected to last several years. Defendants, who deny all allegations of wrongdoing or liability whatsoever, are entering into the Settlement solely to eliminate the uncertainty, burden and expense of further protracted litigation.
YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT:
SUBMIT A CLAIM FORM EITHER ONLINE OR POSTMARKED NO LATER THAN DECEMBER 16, 2020.
This is the only way to be eligible to receive a payment from the Settlement Fund. If you are a Settlement Class Member and you remain in the Settlement Class, you will be bound by the Settlement as approved by the Court and you will give up any Released Plaintiffs’ Claims (defined in ¶34 of the Notice) that you have against Defendants and the other Defendants’ Releasees (defined in ¶35 of the Notice), so it is in your interest to submit a Claim Form.
EXCLUDE YOURSELF FROM THE SETTLEMENT CLASS BY SUBMITTING A WRITTEN REQUEST FOR EXCLUSION SO THAT IT IS RECEIVED NO LATER THAN OCTOBER 16, 2020.
If you exclude yourself from the Settlement Class, you will not be eligible to receive any payment from the Settlement Fund. This is the only option that allows you ever to be part of any other lawsuit against any of the Defendants or the other Defendants’ Releasees concerning the Released Plaintiffs’ Claims.
OBJECT TO THE SETTLEMENT BY SUBMITTING A WRITTEN OBJECTION SO THAT IT IS RECEIVED NO LATER THAN OCTOBER 16, 2020.
If you do not like the proposed Settlement, the proposed Plan of
Allocation, or the request for attorneys’ fees and reimbursement of Litigation Expenses, you may write to the Court and explain why you do not like them. You cannot object to the Settlement, the Plan of Allocation or the fee and expense request unless you are a Settlement Class Member and do not exclude yourself from the Settlement Class.
GO TO A HEARING ON
NOVEMBER 6, 2020 AT 9:00
A.M., AND FILE A NOTICE
OF INTENTION TO APPEAR SO THAT IT IS RECEIVED NO LATER THAN OCTOBER 16, 2020.
Filing a written objection and notice of intention to appear by October 16, 2020 allows you to speak in Court, at the discretion of the Court, about the fairness of the proposed Settlement, the Plan of Allocation, and/or the request for attorneys’ fees and reimbursement of Litigation Expenses. If you submit a written objection, you may (but you do not have to) attend the hearing and, at the discretion of the Court, speak to the Court about your objection.
If you are a member of the Settlement Class and you do not submit a valid Claim Form, you will not be eligible to receive any payment from the Settlement Fund. You will, however, remain a member of the Settlement Class, which means that you give up your right to sue about the claims that are resolved by the Settlement and you will be bound by any judgments or orders entered by the Court in the Action.